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OML-AO-4029

August 29, 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 information presented in your correspondence.

Dear

I have received your letter and the handbook of the New York State Public High School Athletic Association (hereafter "the Association"). Please accept my apologies for the delay in response. Your question is whether the Association is subject to the Open Meetings Law.

As you may be aware, the Open Meetings Law is applicable to public bodies, and §102(2) of that statute 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, in general, the Open Meetings Law pertains to governmental entities, rather than private or not-for-profit organizations. Nevertheless, in this instance, I believe that the Association’s board of directors, which is characterized as the "Central Committee" in Article III of the Association’s constitution, has each of the attributes necessary to conclude that it is a "public body" required to comply with the Open Meetings Law.

In considering the definition of "public body" by means of its components, the Central Committee consists of more than two members, it must conduct it business through a quorum requirement pursuant to the Not-for-Profit Corporation Law, and most significantly, based on a review of its constitution and by-laws, I believe that it conducts public business and performs a governmental function for school districts, which are public corporations (see General Construction Law, 66).

It is noted that I know of no judicial decision that deals squarely with an entity fully analogous to the Association. Further, in analyzing the issue, a variety of comparisons were made with other organizations whose membership consists wholly of government entities or officers. For instance, the New York State School Boards Association has a membership which I believe consists solely of boards of education of public school districts. However, there is no obligation imposed on a district board of education to join as a condition precedent to participation in activities integral to the functioning of a school district or necessary to comply with law. Further, if a district chooses not to join the School Boards Association, while it might not be able to avail itself of the services and expertise offered by the Association, it is my understanding that a failure to join does not preclude a school district from engaging in fundamental educational activities in which it is required to engage by law.

The Association’s handbook includes an excerpt from §135.4 of the regulations promulgated by the Commissioner of Education, which states in part that it is the duty of "trustees and boards of education to "conduct school extraclass athletic activities" [§134.4(7)(i)] and to "permit individuals to serve as coaches of interschool athletic teams, other than intramural or extramural teams...." Additionally, §134.4(7)(ii) states that: "It shall be the duty of trustees and board of education to conduct interschool athletic competition for grades 7 through 12..." In short, school boards are required by law to ensure that their districts’ students participate in interscholastic athletic programs.

The first paragraph of the Association’s "Bylaws and Eligibility Standards", quoting from its Constitution, Article II. (2), states as follows:

"These standards are the rules of the New York State Public High School Athletic Association, Inc. and apply to grades 9 to 12. Athletes must meet all standards of eligibility for practice and competition. ‘All schools agree to abide by the minimum eligibility rules adopted by the Central Committee in all interscholastic competitions.’"

As I understand the foregoing, neither a student nor a school district has the ability to participate in interscholastic sports unless both the student athlete and the school district agree to abide by the Association’s rules. Unlike other associations in which membership is optional and in which students and district may partake in various functions absent membership, in this instance, boards of education and the districts and students they serve cannot comply with the Commissioner’s regulations unless they agree to abide by the Association’s constitution and bylaws. Having reviewed minutes of meetings of the Central Committee on the Association’s website, it is clear that the Committee approves motions and take action that directly affect school districts’ activities in relation to interscholastic sports. Its actions are binding on districts, and they must be implemented by trustees and boards of education to comply with law, with the regulations of the Commissioner.

In view of the obligation of trustees and boards of education to comply with law, the Commissioner’s regulations, and their inability to do so unless they comply with the Association’s constitution and bylaws, it must be concluded in my opinion that the Central Committee conducts public business and performs a governmental function for hundreds of public corporations. If that is so, I believe that it constitutes a public body that falls within the requirements of the Open Meetings Law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Nina Van Erk