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OML-AO-3784a

April 27, 2004

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

Dear

I have received your letter in which you requested an advisory opinion concerning the Open Meetings Law.

You wrote that the Seneca County Board of Supervisors has established several committees that typically consist of four members of the fourteen member Board. Committee meetings are normally scheduled for the fourth Tuesday of each month, notice of the time place of committee meetings is given, the public is authorized to attend, and minutes of those meetings are prepared by the Clerk of the Board of Supervisors. Meetings of committees are held sequentially in a conference room. You added that:

"Board members not on a particular committee are not allowed to move or vote upon a resolution or agenda item before that committee. However, as a practice, Board members are allowed to ask questions, make comments, and participate in deliberations of committees that they are not members of, in otherwise the same manner as committee members" (emphasis yours).

In consideration of the foregoing, you have been asked to raise the following questions:

"1. Because of the number of Supervisors in attendance, and potential participation therein, are the ‘committee meetings,’ in fact, meetings of the Board of Supervisors?

2. If these meetings are actually Board meetings, does the description of these meetings as committee meetings in the public notices comply with the notice requirements of the Open Meetings Law?

3. If there is a violation of the open meetings law, does this potentially render the action taken in committee void in whole or in part?"

In this regard, I offer the following comments.

First, as you are aware, the Open Meetings Law pertains to meetings of public bodies, including governing bodies, such as the Board of Supervisors, and committees and similar bodies consisting of members of governing bodies. Section 102(2) of that statute defines the phrase "public body" to include:

"...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."

Although the original definition of "public body" enacted in 1976 made reference to entities that "transact" public business, the current definition as amended in 1979 makes reference to entities that "conduct" public business and added specific reference to "committees, subcommittees and similar bodies" of a public body.

In view of the definition of "public body", I believe that any entity consisting of two or more members of a public body would fall within the requirements of the Open Meetings Law [see Glens Falls Newspapers, Inc. v. Solid Waste and Recycling Committee of the Warren County Board of Supervisors, 195 AD2d 898 (1993); also Syracuse United Neighbors v. City of Syracuse, 80 AD 2d 984 (1981)]. Therefore, a standing committee of Board of Supervisors members in my view constitutes a public body subject to the Open Meetings Law that is separate and distinct from the Board itself. Further, as a general matter, I believe that a quorum consists of a majority of the total membership of a body (see General Construction Law, §41). As such, since the Board of Supervisors consists of fourteen members, its quorum is eight. If a committee consisting of four Board members is designated, its quorum would be three.

It has been advised in similar situations that a member of the governing body who is not a member of a committee has the same right to attend a meeting of the committee as any member of the public. However, it has also been suggested that the only members of a committee who have the right to attend an executive session of the committee are the members of that committee, and that members of the governing body who are not members of the committee do not have the right to attend an executive session of the committee, unless a rule adopted by the governing body provides such a right. In short, in my view, although a committee of a governing body may be a component of the governing body, again, I believe that it is an entity separate and distinct from the governing body.

Second, the term "meeting" is defined in §102(1) of the Open Meetings Law to mean "the official convening of a public body for the purpose of conducting public business." Inherent in the definition is the notion of intent, and a key issue often involves whether there is an intent on the part of a public body to convene for the purpose of conducting public business collectively, as a body. Based on the facts that you offered, notice is given indicating that certain committees intend to convene to conduct meetings. Although members of the Board of Supervisors other than members of a committee may attend a meeting of a committee, there does not appear to be an intent on the part of the Board to gather as the Board.

Further, and in my view, significantly, you wrote that members of the Board who are not members of a committee that is conducting a meeting cannot "move or vote upon a resolution or agenda item before that committee." If that is so, I do not believe that a committee meeting is transformed into or becomes a meeting of the Board of Supervisors, even though other members of the Board are present, and the total number of Board members in attendance involves a majority of the Board. It appears, too, that the matters considered at a meeting of a committee are limited to the subjects indicated on the committee’s agenda. That limitation suggests that the meeting is indeed a meeting of a committee during which other members of the governing body may be present, but that the meeting is not and is not intended to be a meeting of the Board as a whole. Assuming that only committee members may vote at committee meetings, it does not appear that the participation of Board members who are not members of the committee would transform a committee meeting into a meeting of the Board.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

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