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OML-AO-3899

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 several communications from you in which you raised questions, alleged that the Open Meetings Law was violated, and requested an "‘investigation’ of the matter."

By way of background, you wrote that you serve as President of the Community Education Council (CEC) of District 31 in New York City, and that CEC’s consisting of eleven members were "set up to replace the Community School Boards." In a letter signed by six of the eleven members of the CEC of District 31 addressed to Wayne Hawley, Counsel to the New York City Conflicts of Interest Board, it was contended that certain of your activities would create "bias" and "conflict", and they asked that you be restrained from engaging in those activities. When you apparently questioned whether the six members acted in a manner consistent with the Open Meetings Law, you were:

"...informed by one of the signatory’s that the reason that this is not to be considered a violation of the open meetings law is because at no one time were any of the six signatory’s in the same place at the same time when signing the letter. They all signed the letter at separate times."

In this regard, the Committee on Open Government has neither the resources nor the authority to conduct an "investigation." Its statutory charge involves the ability to prepare advisory opinions. That being so, I offer the following comments.

From my perspective, 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.

Section 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 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., the CEC, or a convening that occurs through videoconferencing.

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. Any other means of conducting a meeting, i.e., by telephone conference, by mail, by e-mail, or, as in this instance, by signing a letter in serial fashion at different times, would be inconsistent with law.

I point out that 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 through the use of a telephone of via e-mail, for example, or by means of the members signing a letter at different times.

Conducting a vote or taking action in that manner or via e-mail or a series of telephone calls, would not, according to case law, constitute a valid meeting. In a decision dealing with a vote taken by phone, Cheevers v. Town of Union (Supreme Court, Broome County, September 3, 1998), which cited and relied upon an opinion rendered by this office, the court 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..."

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 as a body or vote by phone, by mail, by e-mail or by signing a letter at different times.

In short, should there be a judicial challenge to action taken outside of a meeting held with a majority physically present or by means of videoconference as described earlier, I believe that a court would find such action be a nullity and of no effect.

I hope that I have been of assistance.

RJF:jm

cc: CEC #31
Jemina Bernard
Wayne G. Hawley