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OML-AO-3787

May 4, 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

This response is addressed to you collectively because each of you has written to me concerning communications between or among members of the Corning-Painted Post Area Board of Education outside of meetings during which a majority of the Board is physically present. Ms. O’Neil-Haight has raised other issues as well, which will be considered following consideration of the primary matter, which focuses largely on the ability of Board members to communicate via email and the relationship between those communications and the Open Meetings Law.

It appears that the issue concerning email communications arose following receipt of a letter to the Superintendent prepared by Mr. Streppa in which he wrote that:

"It is my understanding that the Open Meetings Law is not violated when Board members e-mail each other on such matters as scheduling Board of Education meetings or discussing items to be placed on Board meeting agendas. I believe there is also authority from your office that e-mails received at different times with no simultaneous communication is considered an inter-office memoranda and not subject to the provisions of the Open Meetings Law (emphasis his).

"I have advised the Board of Education that ‘Accordingly, communications between Board members by any means including e-mails, letters and telephone calls which generate responses and dialogue would be inappropriate, and should only occur in an open meeting session of the Board.’"

That letter also referred to opinions rendered by this office and the decision rendered in Cheevers v. Town of Union (Supreme Court, Broome County, September 3, 1998). Materials transmitted by others involve a variety of commentary, including articles entitled "The Perils of E-Mail" and "School boards in hot water over using e-mail for board business."

In this regard, it is emphasized at the outset that each of the fifty states has enacted some sort of an open meetings law, and that each such law is different. Activity that may violate the law in one jurisdiction may be valid in another. While it may be fully appropriate and wise to be alert and aware of emerging issues and possible pitfalls associated with the performance of your duties, I do not believe that guidance or judicial decisions from other jurisdictions are necessarily of value in New York. Further, due to its breadth, I disagree with the advice offered by the attorney.

An initial key issue involves the term "meeting", which 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, 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 view 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., a board of education, or a 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 are newly enacted (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: by means of a physical gathering or a gathering by means of video-conference. Any other means of conducting a meeting, i.e., by telephone conference, by mail, or by e-mail, would be inconsistent with law.

I note, too, that meetings involving a physical convening or videoconferencing are consistent with the intent of the Open Meetings Law as expressed in its Legislative Declaration (§100). The Declaration states in part that the public has the right to "observe the performance of public officials." That right does not exist when the members of a public body communicate by telephone or e-mail.

In my opinion, inherent in the definition of "meeting" is the notion of intent, and a question often involves whether there is an intent that the majority of the membership of a public body, a quorum, seeks to convene for the purpose of conducting public business.

In a landmark decision rendered in 1978, the state's highest court, the Court of Appeals, held that any gathering of a quorum of a public body for the purpose of conducting public business constitutes a "meeting" subject to the Open Meetings Law, whether or not there is an intent to take action, and regardless of the manner in which a gathering may be characterized [see Orange County Publications, Division of Ottoway Newspapers, Inc. v. Council of the City of Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947 (1978)]. The Court affirmed a decision rendered by the Appellate Division that dealt specifically with so-called "work sessions" and similar gatherings during which there was merely an intent to discuss, but no intent to take formal action. In so holding, the court stated:

"We believe that the Legislature intended to include more than the mere formal act of voting or the formal execution of an official document. Every step of the decision-making process, including the decision itself, is a necessary preliminary to form action. Formal acts have always been matters of public records and the public has always been made aware of how its officials have voted on an issue. There would be no need for this law if this was all the Legislature intended. Obviously, every thought, as well as every affirmative act of a public official as it relates to and is within the scope of one's official duties is a matter of public concern. It is the entire decision-making process that the Legislature intended to affect by the enactment of this statute" (60 AD 2d 409, 415).

With respect to social gatherings or chance meetings, it was found that:

"We agree that not every assembling of the members of a public body was intended to be included within the definition. Clearly casual encounters by members do not fall within the open meetings statutes. But an informal 'conference' or 'agenda session' does, for it permits 'the crystallization of secret decisions to point just short of ceremonial acceptance'" (id. at 416).

If a majority of a public body is present at a social gathering, and the intent is indeed to socialize, I do not believe that their presence would constitute a meeting of a public body. If a majority of the members meet one another by chance, in a "casual encounter", again, absent an intent to conduct public business, it is unlikely that the Open Meetings Law would apply [see Orange County Publications v. Council of the City of Newburgh, 60 AD2d 409, 416 (1978)]. However, if, by design, a majority of the members of a public body convene for the purpose of conducting public business, I believe that the gathering would constitute a meeting that falls within the coverage of the Open Meetings Law.

The definition of the phrase "public body"in §102(2) 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." 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 or vote by means of e-mail, a telephone conference, or a series of telephone conversations.

If there is an intent to ensure the presence of less than a quorum at any given time in order to evade the Open Meetings Law, in an Appellate Division decision, the court appears to have inferred that such activity would contravene that statute. As stated in Tri-Village Publishers v. St. Johnsville Board of Education:

"It has been held that, in order for a gathering of members of a public body to constitute a 'meeting' for purposes of the Open Meetings Law, a quorum must be present (Matter of Britt v County of Niagara, 82 AD2d 65, 68-69). In the instant case, there was never a quorum present at any of the private meetings prior to the regular meetings. Thus, none of these constituted a 'meeting' which was required to be conducted in public pursuant to the Open Meetings Law.

"We recognize that a series of less-than-quorum meetings on a particular subject which together involve at least a quorum of the public body could be used by a public body to thwart the purposes of the Open Meetings Law...However, as noted by Special Term, the record in this case contains no evidence to indicate that the members of respondent engaged in any attempt to evade the requirements of the Open Meetings Law" [110 AD 2d 932, 933-934 (1985)].

In Tri-Village, the Court found no evidence of an intent to circumvent the Open Meetings Law when a series of meetings was held, each involving less than a quorum of a board of education. However, as I interpret the passage quoted above, when there is an intent to evade the application of the Open Meetings Law by ensuring that less than a quorum is present, and, by design, a series of gatherings each consisting of less than a quorum occurs to discuss public business, such action would represent a failure to comply with that statute.

From my perspective, in most instances, contrary to Mr. Streppa’s suggestion, "communications between Board members by any means including e-mails, letters and telephone calls which generate responses and dialogue" may be, but are not generally inappropriate. In my experience, there are numerous situations in which detailed communications have been prepared and disseminated to or among members of public bodies in which the Open Meetings Law is not implicated. Often those communications serve as a means of acquiring or exchanging information, knowledge, expertise or different points of view, all of which enable members of public bodies to carry out their duties more effectively on behalf of the public.

If a member of a board having a particular interest or expertise offers information in writing to other members, by means of intra-agency memorandum or perhaps via email, I do not believe that it could be concluded that such action, by itself, would constitute a meeting, even if it leads to responses by other members. In my capacity as the director of an agency headed by a public body, I frequently transmit a variety of detailed materials to the members of the Committee on Open Government prior to its meetings in order that the members can become familiar with the issues, and to be prepared and conversant at the meetings. In some cases, the materials may be clear and convincing, thereby eliminating the need for a lengthy discussion of their contents at an upcoming meeting. I do not believe that the transmission, whether accomplished through receipt or consideration of the materials by use of email or the Postal Service, would constitute a meeting or that such activity in any way circumvents or contravenes the Open Meetings Law. If a superintendent of schools transmits materials to board members prior to meetings for the same reason, to enable the members to prepare for a meeting, I do not believe that the Open Meetings Law would be implicated. If two of the members want to discuss or communicate with respect to the content of the materials, whether briefly or in detail, unless the board consists of three members, I do not believe that the Open Meetings Law would apply or be implicated in any way.

As you are likely aware, there are different kinds of telephonic or email communications. Depending on their nature and factual circumstances, there may or may not be considerations involving the Open Meetings Law.

When a list of recipients of email, a listserv or its equivalent, is developed, those on the list receive an email message from a sender. The recipients generally open the contents at different times. If I am on the list, if the pc on my desk is on and a message is sent to me, I will open it now. Another recipient may be out of the office or receive the message on his or her home computer, and that person might not open the mail until the next day. A third might not routinely open his or her email and might not see the message until three days have passed. In that kind of circumstance, irrespective of the nature or content of the communication, even though each person on the list has received the same message, and even though the message might engender a response, I do not believe that the transmission or receipt of messages or information by means of email would constitute a "meeting" or that the Open Meetings Law would be implicated, unless, of course, the response involves a vote. In my opinion, there is little distinction between the communication of messages, memoranda and the like via the listserv and traditional inter-office mail. In both of those situations, although the same message may be distributed to all of the recipients, the messages are received at different times, there is no instantaneous interactive communication among the recipients, and no meeting, in my opinion, would be conducted.

If the members of a board of education are on a listserv or its equivalent and one member transmits an email message to all of the other members, again, the members would likely open the message at different times. But what if the receipt of a message precipitates a series of exchanges among the members? What if a majority of the members engage in instantaneous or simultaneous communications in a chat room or by means of instant messaging on what often is known as a "buddy list"? In that situation, what might be characterized as a "virtual" meeting would occur, absent the ability of the public to know of the meeting or to observe the performance of public officials. In my view, a court would determine that a virtual convening of that nature would constitute a secret meeting held in contravention of the Open Meetings Law.

Another possible scenario pertains to what might be characterized as "serial" communications. Although it did not involve email, the decision cited at the outset, Cheevers, supra, involved an effort to take action by means of a series of telephone conversations. In that case, the court determined that the action effectively taken was a nullity. The court cited and relied upon an opinion rendered by this office and stated that:

"...there is a question as to whether the series of telephone calls among the individual members constitutes a meeting which would be subject to the Open Meetings Law. A meeting is defined as ‘the official convening of a public body for the purpose of conducting public business’ (Public Officers Law §102[1]). Although ‘not every assembling of the members of a public body was intended to fall within the scope of the Open Meetings Law [such as casual encounters by members], ***informal conferences, agenda sessions and work sessions to invoke the provisions of the statute when a quorum is present and when the topics for discussion and decision are such as would otherwise arise at a regular meeting’ (Matter of Goodson Todman Enter. v. City of Kingston Common Council, 153 AD2d 103, 105). Peripheral discussions concerning an item of public business are subject to the provisions of the statute in the same manner was formal votes (see, Matter of Orange County Publs. v. Council of City of Newburgh, 60 AD2d 309, 415 Affd 45 NY2d 947).

"The issue was the Town’s policy concerning tax assessment reductions, clearly a matter of public business. There was no physical gathering, but four members of the five member board discussed the issue in a series of telephone calls. As a result, a quorum of members of the Board were ‘present’ and determined to publish the Dear Resident article. The failure to actually meet in person or have a telephone conference in order to avoid a ‘meeting’ circumvents the intent of the Open Meetings Law (see e.g., 1998 Advisory Opns Committee on Open Government 2877). This court finds that telephonic conferences among the individual members constituted a meeting in violation of the Open Meetings Law..."

In Cheevers, which involved a town board consisting of five members, one member contacted another by phone, who in turn phoned a third member, and that member phoned a fourth. Together they drafted a letter, determined to have it published and submitted a voucher for payment by the town to a newspaper. The fifth member, who had not been contacted, contended that the action taken by means of a series of telephone conversations constituted a meeting held in violation of the Open Meetings Law, and the court agreed.

In like manner, if a series of email communications among members of a board of education involves action taken by the board, I would agree that a meeting would effectively have been held in contravention of the Open Meetings Law. Nevertheless, I believe that there is a distinction between that situation and one in which the members, via email or telephone, exchange questions, information or points of view, so long as there is no virtual convening of a majority and "votes" are not collected or taken. Further, the kinds of exchanges exemplified by the printed email communications between two members, "megan" and "pop3" that Ms. O’Neil-Haight attached to her letter in my opinion would not contravene the Open Meetings Law. In my view, a conversation or exchange of questions or information between or among less than a majority of a public body does not implicate the Open Meetings Law. Even if copies of those communications between megan and pop3 were sent via listserv to the other members, again, there would be no instantaneous communication, and no virtual meeting; the communications would be equivalent to carbon copies, "cc’s" of correspondence, distributed to the members.

I recognize that it may difficult to draw a clear line of demarcation between a serial meeting and the kinds of communications described in the preceding paragraph involving Megan and pop3. However, I believe that a distinction can be made between communications of that nature, which in my view would not run afoul of the Open Meetings Law, and a situation in which a group of members constituting a majority function or act, collectively, as a body. In that latter instance, it is likely in my view that it would be determined that the Open Meetings Law applies and was contravened.

The remaining issues were raised by Ms. O’Neil-Haight. One involves a retreat conducted by the Board of Education last summer "as a two day private meeting, not open to the public." The topics considered at the retreat included the financial status of the District, the District’s capacity and demographics and a variety of other matters. Based on the decision cited earlier, Orange County Publications, supra, I believe that the retreat clearly constituted a meeting that fell within the coverage of the Open Meetings Law. In short, based on her description of the event, the Board convened for the purpose of conducting public business.

The other involved Ms. O’Neil-Haight’s contention that "weighing the pros and cons of possible scenarios to house children during renovations [should] take place in public session." She wrote that "[t]he Superintendent’s stated position is that she can not discuss this swing space issue in public because she fears that contractual details she is broaching may be compromised should we [the Board] have open debate." Ms. O’Neil-Haight added that "all conversations to date on this issue have taken place exclusively in executive session", and that the public has no knowledge of Board members’ views concerning such matters as "safety, what safety issues we are asking to be addressed, which one or more of us is concerned about relative costs, what the relative costs may be, and so on."

In my view, as Ms. O’Neil-Haight described the matter, the ability to conduct an executive session would be minimal.

The Open Meetings Law, in brief, is based on a presumption of openness. Further, the law
requires that a procedure be accomplished, during an open meeting, before a public body may enter into an executive session. Specifically, §105(1) states in relevant part that:

"Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only..."

As such, a motion to conduct an executive session must include reference to the subject or subjects to be discussed, and the motion must be carried by majority vote of a public body's membership before such a session may validly be held. The ensuing provisions of §105(1) specify and limit the subjects that may appropriately be considered during an executive session.

Based on a review of the grounds for entry into executive session, which are set forth in paragraphs (a) through (h) of §105(1), it does not appear that any of those grounds would have been applicable to the kinds of subjects that were described. I note, too, that there no provision concerning executive sessions that relates generally to contracts or contractual matters. The only provision dealing directly with contract negotiations is §105(1)(e), which pertains to collective bargaining negotiations involving a public employee union.

I hope that the foregoing will be considered to be educational and instructive, and that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

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