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OML-AO-3692
October 27, 2003

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear

I have received your letter in which you raised a question concerning the location of meetings held by a board of fire commissioners.

According to your letter, the board conducts its meetings "in a small room above the fire
house." Although that room has generally been adequate, you indicated that "the size and
accessibility of the room has come into question." You added that the room "holds about 12-15 people and is not handicap accessible." The Fire District's bylaws state that meetings of its board"will be held in the aforementioned room." You have contended, however, that "so long as it is properly advertised, it can be moved to accommodate all who wish to hear and be heard."

You have sought my opinion on the matter, and in this regard, I offer the following
comments.

First, the Open Meetings Law applies to meetings of public bodies. Since a board of
commissioners is the governing body of a public corporation, I believe that it clearly constitutes a "public body" required to comply with the Open Meetings Law.

Second, §103(b) of the Open Meetings Law states that:

"Public bodies shall make or cause to be made all reasonable efforts to ensure that meetings are held in facilities that permit barrier-free physical access to the physically handicapped, as defined in subdivision five of section fifty or the public buildings law."

Based upon the foregoing, there is no obligation upon a public body to construct a new facility or to renovate an existing facility to permit barrier-free access to physically handicapped persons.

However, I believe that the Law does impose a responsibility upon a public body to make "all reasonable efforts" to ensure that meetings are held in facilities that permit barrier-free access to physically handicapped persons. Therefore, if, for example, the Board has the capacity to hold its meetings at a location that is accessible to handicapped persons, I believe that the meetings should be held in the room that is most likely to accommodate the needs of those people.

Third, although the Open Meetings Law does not specify where meetings must be held,
§103(a) of the Law states in part that "Every meeting of a public body shall be open to the general public..." Further, the intent of the Open Meetings Law is clearly stated in §100 as follows:

"It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the
deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants. It is the only climate under which the commonweal will prosper and enable the
governmental process to operate for the benefit of those who created it."

As such, the Open Meetings Law confers a right upon the public to attend meetings of public bodies and to observe the performance of public officials who serve on such bodies.

From my perspective, every provision of law, including the Open Meetings Law, should be implemented in a manner that gives reasonable effect to its intent. In my opinion, if it is known in advance of a meeting that a larger crowd is likely to attend than the usual meeting location will accommodate, and if a larger facility is available, it would be reasonable and consistent with the intent of the Law to hold the meeting in the larger facility. Conversely, assuming the same facts, I believe that it would be unreasonable to hold a meeting in a facility that would not accommodate those interested in attending.

The preceding paragraph appeared in an advisory opinion rendered in 1993 and was relied upon in Crain v. Reynolds (Supreme Court, New York County, NYLJ, August 12, 1998). In that decision, the Board of Trustees of the City University of New York conducted a meeting in a room that could not accommodate those interested in attending, even though other facilities were available that would have accommodated those persons. The court in Crain granted the petitioners' motion for an order precluding the Board of Trustees from implementing a resolution adopted at the meeting at issue until certain conditions were met to comply with the Open Meetings Law.

In sum, if the board has the ability to conduct its meetings at a location that is accessible to physically handicapped persons and that can accommodate those likely interested in attending, it would be unreasonable, in my view, not to hold meetings at that location.

Lastly, with regard to the Board's by-law, §110(1) of the Open Meetings Law states that:

"Any provision of a charter, administrative code, ordinance, or rule or regulation affecting a public body which is more restrictive with respect to public access than this article shall be deemed superseded hereby to the extent that such provision is more restrictive than this article."

In consideration of the foregoing, I believe that the by-law is invalid insofar as it is more
restrictive with respect to public access than the Open Meetings Law. In this instance, the use of the meeting room used in the past would be more restrictive with respect to public access than a nearby location that would permit access to those interested in attending.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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