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OML-AO-4107

January 3, 2006

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

I have received your letter in which you raised questions relating to the Open Meetings Law and political caucuses.

You asked first whether a political caucus to be held "for the purpose of inviting all Party members in a community" must be preceded by public notice. In this regard, the Open Meetings Law is applicable to meetings of public bodies. The phrase public body is defined 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."

Further, a "meeting" for purposes of the Open Meetings Law involves a gathering of a quorum of a public body for the purpose of conducting public business [see §102(1)].

The kind of gathering that you described would not appear to be meeting of a public body or, therefore, that the Open Meetings Law would apply. Even if a majority of a public body, such as a town board or a county legislature, is present at a political caucus, it is unlikely that the Open Meetings Law would be applicable. By way of background, the Open Meetings Law provides two vehicles under which a public body may meet in private. One is the executive session, a portion of an open meeting that may be closed to the public in accordance with §105 of the Open Meetings Law. The other arises under §108 of the Open Meetings Law, which contains three exemptions from the Law. When a discussion falls within the scope of an exemption, the provisions of the Open Meetings Law do not apply.

Since the Open Meetings Law became effective in 1977, it has contained an exemption concerning political committees, conferences and caucuses. Again, when a matter is exempted from the Open Meetings Law, the provisions of that statute do not apply. Questions concerning the scope of the so-called "political caucus" exemption have continually arisen, and until 1985, judicial decisions indicated that the exemption pertained only to discussions of political party business. Concurrently, in those decisions, it was held that when a majority of a legislative body met to discuss public business, such a gathering constituted a meeting subject to the Open Meetings Law, even if those in attendance represented a single political party [see e.g., Sciolino v. Ryan, 81 AD 2d 475 (1981)].

Those decisions, however, were essentially reversed by the enactment of an amendment to the Open Meetings Law in 1985. Section 108(2)(a) of the Law now states that exempted from its provisions are: "deliberations of political committees, conferences and caucuses." Further, §108(2)(b) states that:

"for purposes of this section, the deliberations of political committees, conferences and caucuses means a private meeting of members of the senate or assembly of the state of New York, or the legislative body of a county, city, town or village, who are members or adherents of the same political party, without regard to (I) the subject matter under discussion, including discussions of public business, (ii) the majority or minority status of such political committees, conferences and caucuses or (iii) whether such political committees, conferences and caucuses invite staff or guests to participate in their deliberations..."

Based on the foregoing, in general, either the majority or minority party members of a legislative body may conduct closed political caucuses, either during or separate from meetings of the public body. When a political caucus is held, the Open Meetings Law does not apply, and there would be no requirement imposed by that law, or any other of which I am aware, concerning notice to the public.

You second question is whether "a board [may] hold a Republican caucus and have Democrats present." It is assumed that you are referring to republican and democrat members of a board and that a majority of the board would be present. If that is so, I do not believe that the gathering could be characterized as a political caucus that is exempt from the Open Meetings Law; on the contrary, that kind of gathering would in my view constitute a "meeting" subject to the Open Meetings Law. A political caucus by definition is in my opinion restricted to members or adherents of a single political party. Webster’s New Collegiate Dictionary defines caucus as:

"a closed meeting of a group of persons belonging to the same political party or faction usu. to select candidates or to decide on policy."

Since the gathering described would be attended by members of more than one political party, I do not believe that it could be described as a political caucus exempt from the Open Meetings Law. Again, it would appear to be a "meeting" that falls within the coverage of that statute.

I hope that I have been of assistance.

RJF:jm