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OML-AO-3902

December 22, 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 and the materials attached to it. Please accept my apologies for the delay in response.

You have requested an advisory opinion concerning "whether the Buffalo and Erie County Public Library [hereafter, ‘the Library’] is, in fact a ‘public body.’" It appears that your question may have been precipitated by another inquiry, whether committees of the Library Board of Trustees are subject to the Open Meetings Law.

As you are aware, the boards of trustees of a variety of entities characterized as "public libraries" are required to give effect to the Open Meetings Law. Some are governmental entities; others are not-for-profit corporations that typically have a relationship with government but which are not governmental entities. The boards of trustees of both the governmental and non-governmental public libraries are required to comply with the Open Meetings Law pursuant to §260-a of the Education Law, which states that:

"Every meeting, including a special district meeting, of a board of trustees of a public library system, cooperative library system, public library or free association library, including every committee meeting and subcommittee meeting of any such board of trustees in cities having a population of one million or more, shall be open to the general public. Such meetings shall be held in conformity with and in pursuance to the provisions of article seven of the public officers law. Provided, however, and notwithstanding the provisions of subdivision one of section ninety-nine of the public officers law, public notice of the time and place of a meeting scheduled at least two weeks prior thereto shall be given to the public and news media at least one week prior to such meeting."

Since Article 7 of the Public Officers Law is the Open Meetings Law, meetings of boards of trustees of various libraries, including public libraries that are not-for-profit corporations, must be conducted in accordance with that statute.

But for the enactment of §260-a, the boards of trustees of non-governmental or not-for-profit corporations that head public libraries would not fall within the scope of the Open Meetings Law. However, a board of trustees of a public library that is a governmental entity would fall within the coverage of the Open Meetings Law, even if §260-a of the Education Law had not been enacted, for it would constitute a "public body" subject to that statute.

Section 102(2) of the Open Meetings Law 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."

Based on the foregoing, the Open Meetings Law clearly applies to the governing bodies of governmental entities, and in addition, the last clause in the definition indicates that committees, subcommittees and similar bodies of a public body are themselves public bodies required to comply with the Open Meetings Law. In contrast, while the board of trustees of a public library that is not a governmental entity is required to conduct its meetings in accordance with the Open Meetings Law, §260-a of the Education Law provides, by implication, that committees and subcommittees of boards of trustees, except those in New York City, are not required to give effect to the Open Meetings Law.

In consideration of the preceding commentary, if the Board of Trustees of the Library is a public body, I believe that committees and subcommittees consisting of two or members of the Board would be required to comply with Open Meetings Law. In my view, the language of that law and the legislation creating the Library, as well as the judicial decisions to which your attorney referred, clearly indicate that the Board of Trustees is a public body and, therefore, that committees consisting of its members are also public bodies required to comply with the Open Meetings Law.

Because it is referenced in several instances, I note that the phrase "public corporation" is defined in the General Construction Law, which deals with the manner in which New York statutes should be construed. Specifically, §66(1) defines "public corporation" to include "a municipal corporation, a district corporation, or a public benefit corporation." Subdivision (4) of §66 defines "public benefit corporation" to mean "a corporation organized to construct or operate a public improvement wholly or partly within the state, the profits from which inure to the benefit of this or other states, or to the people thereof." Public corporations and public benefit corporations in New York are all governmental entities.

The legislation authorizing the creation of the Library, Chapter 768 of the Laws of 1953, includes provisions indicating that it is a governmental entity. Section 1 states that "the board of supervisors or other governing body of any county", such as a county legislature, is "authorized and empowered to establish a free public library", and section 2 states that the governing body of the county appoints the members of the boards of trustees of such libraries. Section 5 provides that the board of trustees of a library established under Chapter 768 "shall submit annually a budget request to the comptroller or other fiscal officer of the county", that the library is subject to auditing by the county and "shall in all respects be subject to and governed by the provisions of the budget or fiscal laws applicable to such county..." Section 15 indicates that employees of the Library are subject to civil service provisions and are public employees. Section 16 states that purchases made from appropriations may by the county’s governing body "shall be made under the procedure provided by law for the making of purchases by the said county." In short, a variety of provisions in the series of laws that authorized the creation of the Library indicate there is governmental control (i.e., through the appointment of members of the Board of Trustees by the County Legislature), that there are fiscal responsibilities and oversight applicable only to governmental entities, and that the employees of the Library are government employees subject to the civil service law and rules.

Having read the judicial decisions pertaining to the Library cited by your attorney, I must respectfully disagree with his interpretation of those decisions. He wrote that the Library "is not a governmental entity", relying on a portions of one of the decisions stating that "[T]he Library is not a branch of the county government, but is a distinct and separate corporation" [County of Erie, Plaintiff v. Board of Trustees of the Buffalo and Erie County Public Library et al., Defendants, 62 Misc.2d 396, 400 (1970); aff’d 35 AD2d 782 (1970); motion for leave to appeal denied, 28 NY2d 463 (1971)]. He cited a different decision in which it was found that "the Library is not a County department, but is a distinct and separate corporation..." [Buffalo and Erie County Public Library v. County of Erie, 171 AD2d 369, 372 (1991)]. While both decisions clearly indicate that the Library is an entity separate from the County, they also just as clearly conclude that it is a governmental entity. In the former, the court determined that "the Board is a public benefit corporation" and "[t]he Librarians are public employees of the Board", not of the County (County of Erie, supra). The issue in that case involved the exercise of control over personnel of the Library, and in holding that the Library Board, not the County, possessed such control, the court stated that the Board "may be likened to a Board of Education" that is "beyond control by municipalities and politics" (id.), and that "the Library is the public employer of the Librarians" (id., 401). In the latter, the court determined that "the Library, as a public corporation, [must] abide by the same budget and fiscal restraints that are applicable to all counties in the same position as the County of Erie" (Buffalo and Erie County Public Library, supra, 372; emphasis mine).

Again, public corporations are governmental entities, and public benefit corporations constitute a kind of public corporation. Based on those characterizations of the Library by the courts and the terms of the statutes dealing with its establishment, I believe that its Board of Trustees constitutes a public body, and that it would be subject to the Open Meetings Law, even in the absence of the enactment of §260-a of the Education Law.


I hope that I have been of assistance. Should any further questions arise, please feel free to contact me.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt