December 12, 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.
As you are aware, I have received your letter in which you sought "a written clarification of proxy use and meeting notification in regards to the Western Erie Canal Heritage Corridor Planning Commission" (hereafter "the Commission").
According to your letter:
"Immediately preceding Labor Day Weekend, the Commission Chair and Program Coordinator spoke with selected members of the commission and then, without calling a meeting, setting an agenda, a motion, second or discussion, sent out a proxy form asking for a yes/no/abstain for each commissioner, and giving the Chair their proxy to vote to approve the entire management plan as an editor’s copy. Although the first eight chapters had gone through the management plan committee and the content been approved, noting that graphics, layout and final editing were to come, the last three chapters had not gone through any committee. Indeed, it had been agreed by both the executive committee and the management plan committee that the implementing entity to be included in the last three chapters, had to be determined through discussion and presentations by experts on various entity forms."
You also wrote that the Commission’s by-laws state in relevant part that:
"At all meetings, a quorum shall consist of a majority of the appointed Planning Commissioners. No official business may be transacted without a quorum. A majority vote is required to pass a resolution. A commissioner may vote by written proxy on matters duly noted in the meeting agenda. ‘Written proxy’ shall include original correspondence, fax, or e-mail. The Secretary or other designated person shall confirm receipt by reply by original correspondence, fax or e-mail."
In my opinion, the members of the Commission cannot vote by proxy. Moreover, certain aspects of the by-laws are, in my view, inconsistent with law. In this regard, I offer the following remarks.
First, the Open Meetings Law applies to public bodies, and §102(2) defines the phrase "public body" to mean:
"...any entity for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body."
The Commission was created by the enactment of Chapter 352 of the Laws of 1999 and amended earlier this year (Chapter 120, Laws of 2003). Its functions involve the preparation of a "management plan" for the Western Canal area in accordance with §35.05 of the Parks, Recreation and Historic Preservation Law and the obligation to "definitively specify and map out the physical boundaries of the heritage corridor within [certain] geographical borders..." Chapter 352 specifies that the Commission "shall have eighteen members" and describes their qualifications and the means by which they are appointed.
In my view, the Commission, in consideration of the means by which it was created and its statutory duties, clearly constitutes a "public body" required to comply with the Open Meetings Law.
Second, although Chapter 120 indicates that the Commission may adopt by-laws, I do not believe that the by-laws are valid insofar as they may be inconsistent with statutes. In this instance, I believe that the by-laws are inconsistent with two statutes, §41 of the General Construction Law and the Open Meetings Law. Based on relatively recently enacted amendments to those statutes, from my perspective, it is clear that voting and action by a public body may be carried out only at a meeting during which a quorum has physically convened, or during a meeting held by videoconference.
I note that§102(1) of the Open Meetings Law defines the term "meeting" to mean "the official convening of a public body for the purpose of conducting public business, including the use of videoconferencing for attendance and participation by the members of the public body." Based upon an ordinary dictionary definition of "convene", that term means:
"1. to summon before a tribunal;
2. to cause to assemble syn see 'SUMMON'" (Webster's Seventh New Collegiate Dictionary, Copyright 1965).
In consideration of that definition and others, I believe that a meeting, i.e., the "convening" of a public body, involves the physical coming together of at least a majority of the total membership of such a body, i.e., the Commission, or a virtual convening that occurs through videoconferencing. I point out, too, that §103(c) of the Open Meetings Law states that "A public body that uses videoconferencing to conduct its meetings shall provide an opportunity to attend, listen and observe at any site at which a member participates."
The provisions in the Open Meetings Law concerning videoconferencing were enacted three years ago (Chapter 289 of the Laws of 2000), and in my view, those amendments clearly indicate that there are only two ways in which a public body may validly conduct a meeting during which the members may vote. Any other means of conducting a meeting, i.e., by proxy, by telephone conference, by mail, or by e-mail, would be inconsistent with law.
Third, as indicated earlier, the definition of the phrase "public body" refers to entities that are required to conduct public business by means of a quorum. The term "quorum" is defined in §41 of the General Construction Law, which has been in effect since 1909. The cited provision, which was also amended to include language concerning videoconferencing, states that:
"Whenever three of more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of the whole number of such persons or officers, gathered together in the presence of each other or through the use of videoconferencing, at a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board of body, or at any duly adjourned meeting of such meeting, or at any meeting duly held upon reasonable notice to all of them, shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty. For the purpose of this provision the words 'whole number' shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting."
Based on the foregoing, again, a valid meeting may occur only when a majority of the total membership of a public body, a quorum, has "gathered together in the presence of each other or through the use of videoconferencing." Although the by-laws state that a majority of those appointed constitutes a quorum, §41 indicates that a quorum is a majority of the total membership, notwithstanding the fact that there may be vacancies. Moreover, only when a quorum has convened in the manner described in §41 of the General Construction Law would a public body have the authority to carry out its powers and duties. Consequently, it is my opinion that a public body may not take action nor can its members vote by proxy.
Lastly, I direct your attention to the legislative declaration of the Open Meetings Law, §100, which states in part that:
"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.
Based on the foregoing, the Open Meetings Law is intended to provide the public with the right to observe the performance of public officials in their deliberations. That intent cannot be realized if members of a public body conduct public business collectively, as a body, by proxy, phone, mail, or e-mail.
I hope that I have been of assistance.
Robert J. Freeman