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OML-AO-4057

October 19, 2005

E-Mail

TO:

FROM: Camille S. Jobin-Davis

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

This is in response to your e-mail of October 3, 2005 in which you request an advisory opinion concerning two unrelated issues. The first is whether the presence of six school board members at a meeting of a committee of the board would constitute a board meeting subject to the Open Meetings Law. The second is what, if any, action can be taken by a school board member in regard to a motion pending before the school board which was not acknowledged by the president of the school board.

As we interpret your remarks, a committee consisting of three school board members, all of whom were present, scheduled a meeting of the committee. Three additional school board members arrived after the committee meeting began, and two of them joined the three committee members "at the same table."

Based upon your description of this gathering, it is our opinion that the meeting would have been subject to the Open Meetings Law. In that regard we offer the following comments.

First, the Open Meetings Law 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)]. In the context of the situation that you described, once a quorum of the Board has convened, which would presumably involve a gathering of four the seven school board members, a gathering would constitute a meeting of the Board, and the Open Meetings Law would apply.

Second, when a committee consists solely of members of a public body, such as the school board, we believe that the Open Meetings Law is also applicable, for a committee composed of three school board members 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 were 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", we 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 school board, 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)]. Further, as a general matter, we believe that a quorum consists of a majority of the total membership of a body (see General Construction Law, §41). For example, in the case of a committee consisting of three, its quorum would be two.

When a committee is subject to the Open Meetings Law, we believe that it has the same obligations regarding notice, openness, and the taking of minutes, for example, as well as the same authority to conduct executive sessions, as a governing body [see Glens Falls Newspapers, Inc. v. Solid Waste and Recycling Committee of the Warren County Board of Supervisors, 195 AD 2d 898 (1993)].

If a majority of the committee met to conduct a meeting of the committee, and two other board members attended the meeting by sitting in the audience as observers, the gathering, in our view, would have constituted a meeting of the committee, but not a meeting of the board. On the other hand, if the two (or more members) joined the committee "at the same table to discuss school district business, a gathering of that nature in our opinion would have been a meeting of the board.

In regard to your second question concerning the procedural ramifications of a motion left pending at a school board meeting, please be advised that it is not within the jurisdiction of the Committee on Open Government to issue advisory opinions concerning meeting procedures, except to the extent that they are governed by the Open Meetings Law. Bylaws adopted by the school board which address meeting protocol and/or any formalized rules of procedure on which the board relies would likely be responsive to your question.

I hope this is helpful. Should you have any further questions, please contact me directly.

CSJD:jm