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OML-AO-4180

April 19, 2006

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

We are in receipt of your request for an advisory opinion concerning the recent adoption of Local Law No. 1, 2006 by the Village of Saltaire, as set forth in relevant part as follows:

"§34-2. Findings.

The Board of Trustees of the Village of Saltaire has determined that, because the Village is located on a barrier island with limited or no ferry service during parts of the year, is geographically separated with no reasonable alternative access, and is primarily a seasonal community with a substantial number of residents having second homes widely dispersed throughout the region, it is in the best interests of the residents of the Village that the Board periodically hold public meetings outside of the boundaries of the Incorporated Village of Saltaire in order to facilitate and maximize the attendance and participation of as many residents as possible at said meetings. In recognition of the foregoing there may be occasions when the convenience and needs of the residents of the Village are better served by scheduling a meeting of the Board at a location outside of the Village.

"§34-3. Designation of time and place of meetings.

The Board of Trustees shall hold public meetings at such times and places in the Village and at places outside the Village as it shall, by resolution, provide. The Board of Trustees, at its discretion, may hold one or more of its meetings at a location outside of the Incorporated Village of Saltaire when the convenience and needs of the community indicate that such an alternative location would be necessary or desirable; provided that (a) any chosen location shall be open and accessible to the public, (b) such location shall be connected telephonically or by similar means to a meeting location designated within the Incorporated Village of Saltaire, unless same is not possible for uncontrollable reasons and (c) such location shall be located in the State of New York."

In this regard, there is nothing in the Open Meetings Law that specifies precisely where meetings must be held. Nevertheless, it has been advised in a variety of contexts that every provision of law, including the Open Meetings Law, must be carried out in a manner that gives reasonable effect to its intent. Section 100 of that statute, the legislative declaration, states in part that: "It is essential...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." In our opinion, a meeting of the Village Board, or any municipal body, must be held at a location where members of the public who might want to attend may have a reasonable opportunity to do so.

What is reasonable, in our view, may be dependent on attendant facts and circumstances. As you may be aware, there are judicial decisions indicating that meetings held by a board of education some twenty miles from the district it serves (Goetschius .v Board of Education, Supreme Court, Westchester County, March 8, 1999) and others held at 7:30 a.m. [Goetschius v. Board of Education, 244 AD2d 552 (1997)] effectively precluded many from attending and represented an unreasonable exercise of authority in a manner inconsistent with the Open Meetings Law. In those cases, it appears that a public body’s actions were intended to ensure that some individuals, notably the petitioner, a union activist, and others, could not attend.

In the context of the information which you have relayed and the findings of fact which the Village has adopted, access to the Village is limited during parts of the year, it is primarily a seasonal community, and there is a twenty-five year history of holding budget hearings at an alternative location in New York County in order to facilitate and maximize the attendance and participation of as many residents as possible.

There is likely no perfect time or place for holding meetings that would accommodate the needs of all of those interested in attending. While a substantial percentage of the Village’s population is seasonal, there are some who reside year-round in the Village of Saltaire. While a large percentage of second-home owners may reside in New York County, it may be that some do not. What may be fair to some may be unfair to others. In consideration of the facts associated with the situation that you presented, however, we do not believe that a court would determine that the local law is unreasonable or inconsistent with the Open Meetings Law.

We note that in an attempt to ameliorate the effects of holding meetings in remote locations, Local Law No. 1 provides for the telephonic connection between the open meeting and a designated location within the incorporated limits of the Village of Saltaire when possible. In this regard, we offer the following comments for guidance.

As amended, §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, 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 Village Board, 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 amendments to the Open Meetings Law in our view 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 above, 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 or 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." 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. Accordingly, it is our opinion that a resident who wishes to observe proceedings via telephone would not be prohibited from doing so, however, a Board Member’s participation by telephone would not be sufficient for attendance and/or voting purposes. Further, we point out that the notice requirements set forth in §104 would apply to both "locations" of the meeting, New York County and the Village of Saltaire.

On behalf of the Committee on Open Government, we hope this is helpful to you.

Sincerely,

 

Camille S. Jobin-Davis
Assistant Director

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