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OML-AO-3894

December 9, 2004

E-Mail

TO:

FROM: Robert J. Freeman, Executive Director

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

As you are aware, I have received your letter. Please accept my apologies for the delay in response.

You indicated that you serve as a member of a community board in New York City, and you wrote as follows:

"Recently they started having private strategy sessions not open to the public or media to discuss a rezoning application. Is this legal? When asked, they then switched and said the meeting was from the ‘Friends of CB#1, which is a separate legal entity where the officers of the corporation are all community board officers or staff. The address, phone and fax is also the community board’s.

"I though the Sunshine laws would make them hold executive sessions where everyone can come, but only listen. Can they hold secret meetings?"

Although the situation that you described is not entirely clear, I offer the following comments.

First, the Open Meetings Law is applicable to public bodies, and the phrase "public body" is defined 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."

Based on the foregoing, governing bodies, community boards, and committees and subcommittees consisting of two or more members of those entities constitute "public bodies" required to comply with the Open Meetings Law.

Typically, "friends" groups are organized as not-for-profit corporations. While they often seek to assist governmental entities, they are not ordinarily part of the government. If that is so in the situation that you described, I do not believe that the "Friends of CB#1" would constitute a public body or that its meetings would be subject to the Open Meetings Law.

Second, the application of the Open Meetings Law is triggered when there is a meeting of a public body. A "meeting" is a gathering of a quorum of a public body for the purpose of conducting public business [see Open Meetings Law, §102(1)]. If, for example, a community board consists of fifty-one members, a gathering of a majority, at least twenty-six, for the purpose of discussing board business would constitute a meeting subject to the Open Meetings Law. If the Board designates a committee consisting of nine of its members, that committee would also constitute a public body, and a gathering of five or more members, in their capacities as members of that committee, for the purpose of discussing committee business, would be a meeting of the committee falling within the scope of the Open Meetings Law.

I point out that every meeting of a public body must be preceded by notice given in accordance with §104 of the Open Meetings Law. In brief, notice of the time and place must be given prior to a meeting to the news media and by means of posting in one or more designated, conspicuous public locations.

If a gathering does not include a quorum of a public body, the Open Meetings would not apply. Therefore, if the board of directors of the Friends of CB#1 consists of less than a quorum of the Community Board, or if less than a quorum of the Community Board is present at a Friends meeting, I do not believe that the Open Meetings Law would be applicable. Contrarily, if a meeting of the Friends includes a quorum of the Community Board, and the Board members are present for the purpose of conducting Community Board business, the gathering, in my view, would appear to constitute a meeting of the Board falling within the coverage of the Open Meetings Law.

Lastly, for purposes of clarification, I point out that §102(3) of the Open Meetings Law defines the phrase "executive session" to mean a portion of an open meeting during which the public may be excluded. Paragraphs (a) through (h) of §105(1) specify and limit the grounds for entry into executive session. Further, while the Open Meetings Law clearly gives the public the right to attend meetings of public bodies, it is silent concerning the ability of the public to speak or otherwise participate during meetings. In short, a public body may but is not required to permit the public to speak at its meetings. When it chooses to do so, it has been advised that it should do so by means of reasonable rules that treat members of the public equally.

I hope that the foregoing serves to enhance your understanding of the Open Meetings Law and that I have been of assistance. Should any further questions arise, please feel free to contact me.

RJF:jm