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OML-AO-3989

June 8, 2005

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

As you are aware, I have received your letter, which largely focuses on quorum and majority requirements applicable to the Dutchess County Legislature and its committees.

It is noted at the outset that the issues that you raised deal tangentially with the Open Meetings Law. However, since various provisions of that statute may be implicated by the application of the provisions to which you referred, I believe that it is within the authority of this office to respond. In this regard, I offer the following comments.

First, the County Legislature is clearly required to comply with the Open Meetings Law, and in my view, committees consisting of two or more of its members are also required to do so. That statute pertains to meetings of public bodies, and a "meeting" is a convening of a quorum of a public body for the purpose of conducting public business [see §102(1)]. Absent a quorum, the Open Meetings Law does not apply [see e.g., Mobil Oil Corp. v. City of Syracuse Industrial Development Agency, 224 AD2d 15, motion for leave to appeal denied, 89 NY2d 811 (1997)]. Further, when a committee consists solely of members of a public body, such as the County Legislature, the committee constitutes a "public body."

By way of background, when the Open Meetings Law went into effect in 1977, questions consistently arose with respect to the status of committees, subcommittees and similar bodies that had no capacity to take final action, but rather merely the authority to advise. Those questions arose due to the definition of "public body" as it appeared in the Open Meetings Law as it was originally enacted. Perhaps the leading case on the subject also involved a situation in which a governing body, a school board, designated committees consisting of less than a majority of the total membership of the board. In Daily Gazette Co., Inc. v. North Colonie Board of Education [67 AD 2d 803 (1978)], it was held that those advisory committees, which had no capacity to take final action, fell outside the scope of the definition of "public body".

Nevertheless, prior to its passage, the bill that became the Open Meetings Law was debated on the floor of the Assembly. During that debate, questions were raised regarding the status of "committees, subcommittees and other subgroups." In response to those questions, the sponsor stated that it was his intent that such entities be included within the scope of the definition of "public body" (see Transcript of Assembly proceedings, May 20, 1976, pp. 6268-6270).

Due to the determination rendered in Daily Gazette, supra, which was in apparent conflict with the stated intent of the sponsor of the legislation, a series of amendments to the Open Meetings Law was enacted in 1979 and became effective on October 1 of that year. Among the changes was a redefinition of the term "public body". "Public body" is now defined in §102(2) 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 made reference to entities that "transact" public business, the current definition makes reference to entities that "conduct" public business. Moreover, the definition makes specific reference to "committees, subcommittees and similar bodies" of a public body.

In view of the amendments to the definition of "public body", I believe that any entity consisting of two or more members of a public body, such as a committee or subcommittee consisting of members of a county legislature, would fall within the requirements of the Open Meetings Law, assuming that a committee discusses or conducts public business collectively as a body [see Syracuse United Neighbors v. City of Syracuse, 80 AD 2d 984 (1981)].

Second, as you aware, a "quorum", unless specific direction is provided by statute to the contrary, is, according to §41 of the General Construction Law, a majority of the total membership of a public body. Section 41 was amended in 2000 to authorize the presence of a quorum and the taking of action by public bodies by means of videoconferencing and 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 provision quoted above, 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.

Third, as I understand the County Law, its provisions are not inconsistent with the foregoing. Subdivision (2) of §153 states that a quorum of a county legislature is "a majority of the whole number of the members..." Similarly, subdivision (9) provides that:

"The terms ‘whole number of the members of the board’ and ‘whole number of its membership,’ as used in this chapter, shall be construed to mean the total number which the board of supervisors would have were there no vacancies and were none of the supervisors disqualified from acting."

Subdivision (8) of §153 states that: "Except as otherwise expressly provided, the board of supervisors [i.e., the County Legislature in this instance] of each county shall determine the rules of its procedure." From my perspective, any such rules must be reasonable and consistent with law. Stated differently, insofar as rules promulgated by a county legislature are inconsistent with a statute, they should be deemed superseded.

You wrote that permanent committees of the Legislature consist of seven members. The primary issue that you raised pertains to the Legislature’s Rule 5.5, entitled "Rules of Procedure for Committees", which in subsection C states in relevant part that:

"A quorum shall be defined as a majority of the members of any given committee. The Chairman of the Legislature, the Majority Leader, Assistant Majority Leader, Minority Leader and Assistant Minority Leader shall not be considered members of any given committee for purpose of determining whether a quorum has been established.

"For the purpose of conducting the business of any given committee, a quorum must be maintained. Except as provided in Rule 4.12, once a quorum has been established, all voting shall be decided by a majority of those present and voting, including the Chairman of the Legislature, the Majority Leader, Assistant Majority Leader, Minority Leader and Assistant Minority Leader..."

In consideration of the language quoted above, I believe that a quorum of a committee would be a majority of its total membership, and that the membership for purposes of determining the establishment of a quorum would exclude the Legislature’s leaders identified in Rule 5.5. Therefore, if there are seven members on a committee, excluding the leaders, a quorum would be four. If, on the other hand, a committee is considered to consist of seven, plus the five ex officio for a total of twelve members, quorum would still be four, but a majority would be seven.

It is not within my authority to determine or advise what a majority of a committee might be - - it would be four if the ex officio members do not vote; if they do vote, a majority would be seven. Irrespective of the number considered to be voting members, I believe that the portion of the Rule concerning voting is inconsistent with a state statute, specifically, §41 of the General Construction Law. To reiterate, as it pertains to voting and the ability to take action, §41 states that "not less than a majority of the whole number may perform and exercise such power, authority or duty." The Rule states that "all voting shall be decided by a majority of those present and voting..." If a quorum is four and five members are present, a majority of those present would be three. However, based on §41 of the General Construction Law, if the total membership of a committee is seven, four affirmative votes would be needed to approve a motion or otherwise take action.

I point out that I have never encountered a situation in which members who appear to have the ability to vote are not counted toward the establishment of a quorum. I must admit to being confused due to what I view as an inconsistency or perhaps an anomaly within Rule 5.5. While the first paragraph of Rule 5.5 indicates that the Legislature’s leaders serve as ex officio members of the committee, they are not counted for the purpose of determining the establishment of a quorum. Based on that provision, it would seem that the ex officio members cannot vote. Nevertheless, the second paragraph states that "all voting shall be decided by a majority of those present and voting", including the ex officio members. Those aspects of the Rule are unusual, and I cannot advise as to their intent or, therefore, their unequivocal meaning.

I regret that I cannot be of greater assistance.

Sincerely,

Robert J. Freeman
Executive Director

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