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FOIL-AO-4113

January 13, 2006

E-MAIL

TO:

FROM: Camille S. Jobin-Davis, Assistant 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, unless otherwise indicated.

Dear

We are in receipt of your December 29, 2005 request for an advisory opinion concerning the application of the Open Meetings Law in your capacity as a member of the Sullivan West Central School District Board of Education. In conjunction with your request, we received an e-mail from your colleague, Catherine Novak, in which she offered additional details. Accordingly, we have incorporated the information contained in both e-mails in our response.

In response to your first question, pertaining to Board Members who attended "parent meetings" and may have discussed Board business with the Superintendent, we offer the following comments.

The Open Meetings Law pertains to meetings of public bodies, such as boards of education, and §102(1) of the Open Meetings Law defines the term "meeting" to mean "the official convening of a public body for the purpose of conducting public business". It is emphasized that the definition of "meeting" has been broadly interpreted by the courts. In a landmark decision rendered in 1978, the Court of Appeals, the state's highest court, found that any gathering of a quorum of a public body for the purpose of conducting public business is a "meeting" that must be convened open to the public, whether or not there is an intent to take action and regardless of the manner in which a gathering may be characterized [see Orange County Publications v. Council of the City of Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947 (1978)].

Inherent in the definition and its judicial interpretation is the notion of intent. If there is an intent that a majority of a public body convene for the purpose of conducting public business, such a gathering would, in our opinion, constitute a meeting subject to the requirements of the Open Meetings Law. If there is no intent, however, that a majority of public body will gather for purpose of conducting public business, collectively, as a body, but rather for the purpose of gaining education, training, to listen to a speaker or to attend a function as part of an audience or group, we do not believe that the Open Meetings Law would be applicable.

You indicate that "a quorum of the board attended the meeting and proceeded to discuss various school issues with the school superintendent." Ms. Novak wrote, however, that:

"for the most part, [the members] just listened to parent concerns and the Superintendent’s responses to those concerns. To my ears any speaking done by any of the board members present was pretty much from their perspective/concerns as parents attending a parent meeting with the Superintendent. It was not a two way discussion.... At no time did the 5 members have a group discussion of any kind."

If Board members present were situated as part of the group and did not function as a body, the gathering, in our view, would not have constituted a "meeting." We note, however, that the absence of verbal deliberation would not necessarily remove the gathering from the coverage of the Open Meetings Law. If, for example, a consultant makes a presentation to a board of education, and board members listen and do not speak, the gathering would nonetheless in our opinion constitute a "meeting" of a public body.

Related questions have arisen at workshops and seminars during which our Executive Director has spoken and which were attended by many, including perhaps a majority of the membership of several public bodies. Some of those persons have asked whether their presence at those gatherings fell within the scope of the Open Meetings Law. In brief, we have responded that, since the members of those entities did not attend for the purpose of conducting public business as a body, the Open Meetings Law, in our opinion, did not apply. It would appear that the same conclusion could be reached with respect to the matter that you and Ms. Novak described.

In response to your second question, we note that there is nothing in the Open Meetings Law that would preclude members of a public body from conferring individually, by telephone, via mail or e-mail. However, a series of communications between individual members or telephone calls among the members which results in a collective decision, a meeting held by means of telephone calls, or a vote taken by mail or e-mail would in our opinion be inconsistent with law.

From our perspective, voting and action by a public body may be carried out only at a meeting during which a quorum has physically convened, or during a meeting held by videoconference. As suggested earlier, the Open Meetings Law pertains to public bodies, and §102(2) 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."

Section 102(1) of the Open Meetings Law defines the term "meeting" in its entirety to mean "the official convening of a public body for the purpose of conducting public business, including the use of videoconferencing for attendance and participation by the members of the public body." Based upon an ordinary dictionary definition of "convene", that term means:

"1. to summon before a tribunal;

2. to cause to assemble syn see 'SUMMON'" (Webster's Seventh New Collegiate Dictionary, Copyright 1965).

In view of that definition and others, we believe that a meeting, i.e., the "convening" of a public body, involves the physical coming together of at least a majority of the total membership of such a body, i.e., the Board of Education, or a convening that occurs through videoconferencing. We point out, too, that §103(c) of the Open Meetings Law states that "A public body that uses videoconferencing to conduct its meetings shall provide an opportunity to attend, listen and observe at any site at which a member participates."

The provisions in the Open Meetings Law concerning videoconferencing are newly enacted (Chapter 289 of the Laws of 2000), and in our view, those amendments clearly indicate that there are only two ways in which a public body may validly conduct a meeting. Any other means of conducting a meeting, i.e., by telephone, by mail, or by e-mail, would be inconsistent with law.

As indicated earlier, the definition of the phrase "public body" refers to entities that are required to conduct public business by means of a quorum. The term "quorum" is defined in §41 of the General Construction Law, which has been in effect since 1909. The cited provision, which was also amended to include language concerning videoconferencing, 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 foregoing, again, 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. Consequently, it is our opinion that a public body may not take action or vote by means of a series of telephone calls or, for example, by e-mail.

In an early decision dealing with a vote taken by phone, the court found the vote to be a nullity. In Cheevers v. Town of Union (Supreme Court, Broome County, September 3, 1998), which cited and relied upon an opinion rendered by this office, the court stated that:

"...there is a question as to whether the series of telephone calls among the individual members constitutes a meeting which would be subject to the Open Meetings Law. A meeting is defined as ‘the official convening of a public body for the purpose of conducting public business’ (Public Officers Law §102[1]). Although ‘not every assembling of the members of a public body was intended to fall within the scope of the Open Meetings Law [such as casual encounters by members], ***informal conferences, agenda sessions and work sessions to invoke the provisions of the statute when a quorum is present and when the topics for discussion and decision are such as would otherwise arise at a regular meeting’ (Matter of Goodson Todman Enter. v. City of Kingston Common Council, 153 AD2d 103, 105). Peripheral discussions concerning an item of public business are subject to the provisions of the statute in the same manner as formal votes (see, Matter of Orange County Publs. v. Council of City of Newburgh, 60 AD2d 309, 415 Affd 45 NY2d 947).

"The issue was the Town’s policy concerning tax assessment reductions, clearly a matter of public business. There was no physical gathering, but four members of the five member board discussed the issue in a series of telephone calls. As a result, a quorum of members of the Board were ‘present’ and determined to publish the Dear Resident article. The failure to actually meet in person or have a telephone conference in order to avoid a ‘meeting’ circumvents the intent of the Open Meetings Law (see e.g., 1998 Advisory Opns Committee on Open Government 2877). This court finds that telephonic conferences among the individual members constituted a meeting in violation of the Open Meetings Law..."

Most recently, the Appellate Division confirmed that to be so in Eastchester v. New York State Board of Real Property Services, 2005 NY Slip Op 08732 (2nd Dept, November 14, 2005) in light of a recent amendment to the above-cited provision of the General Construction Law. In 2000, §41 was amended to specifically define the quorum and voting requirements in terms of a majority of the board gathered together in the presence of each other or through the use of videoconferencing (L. 2000, ch. 289, § 5, eff. August 23, 2000). Accordingly, the court held,

"Because General Construction Law §41 contains no provision authorizing participation by telephone conference call, only the votes cast by the members actually present at the meeting can be counted towards a majority vote." Id.

We direct your attention to the legislative declaration of the Open Meetings Law, §100, which states in part that:

"It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy.

Based on this section, the Open Meetings Law is intended to provide the public with the right to observe the performance of public officials in their deliberations. That intent cannot be realized if members of a public body conduct public business as a body or vote by phone, by mail, or by e-mail.

It is our opinion that this analysis would apply to your question about telephone calls from the Superintendent in which he apparently solicited responses from Board members concerning the salary range offered for a new position, as well as the e-mails from the District Clerk concerning whether to invite the architect to make a presentation to the Board. We understand from Ms. Novak, that e-mails from the District Clerk were in follow up to a request made by the Superintendent during the previous public board meeting.

"We had been requested (in public) to let the district clerk know if we wanted the presentation or not - her e-mail was a follow up/reminder as many of us had apparently not responded."

Assuming these facts to be accurate, it is our opinion that the Board’s collective determination of the answer to this question, what the salary range should be, should have occurred during an open meeting held in accordance with the provisions of the Open Meetings Law. Because a decision to offer a certain salary range was made, it is also our opinion that this action should be memorialized in minutes.

Section 106 of the Open Meetings Law provides that:

"1. Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon.

2. Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter.

3. Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meetings except that minutes taken pursuant to subdivision two hereof shall be available to the public within one week from the date of the executive session."

In view of the foregoing, it is clear in our opinion that minutes of open meetings must include reference to action taken by a public body.

If a public body reaches a consensus upon which it relies, case law indicates that minutes reflective of decisions reached must be prepared and made available. In Previdi v. Hirsch [524 NYS 2d 643 (1988)], the issue involved access to records, i.e., minutes of executive sessions held under the Open Meetings Law. Although it was assumed by the court that the executive sessions were properly held, it was found that "this was no basis for respondents to avoid publication of minutes pertaining to the 'final determination' of any action, and 'the date and vote thereon'" (id., 646). The court stated that:

"The fact that respondents characterize the vote as taken by 'consensus' does not exclude the recording of same as a 'formal vote'. To hold otherwise would invite circumvention of the statute.

"Moreover, respondents' interpretation of what constitutes the 'final determination of such action' is overly restrictive. The reasonable intendment of the statute is that 'final action' refers to the matter voted upon, not final determination of, as in this case, the litigation discussed or finality in terms of exhaustion or remedies" (id. 646).

Therefore, if the Board reached a "consensus" that is reflective of its final determination of an issue, we believe that minutes must be prepared that indicate its action, as well as the manner in which each member voted [see FOIL, §87(3)(a)].

We hope that we have been of assistance.

CSJ:jm

cc: Board of Education
Catherine M. Novak