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OML-AO-4190

May 8, 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 facts presented in your correspondence, unless otherwise indicated.

Dear

I have received your letter concerning the application of the Open Meetings Law. You indicated that you serve as Chair and CEO of the Roosevelt Island Operating Corporation (RIOC), which has a nine member board. Five members constitute a quorum, and six of the members reside on the Island.

One of the resident Island board members referred in a recent email to "a follow- up meeting where a group of RIOC Island resident board members met with a group of Island residents representing the Roosevelt Island Residents Association." You expressed concern that "if five or six members of the RIOC board were to participate in that meeting that it could be construed as a RIOC board meeting." You have sought advice concerning the matter, and in this regard, I offer the following comments.

First, 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."

According to §3 of Chapter 196 of the Unconsolidated Laws, the Roosevelt Island Operating Corporation "shall be a body corporate and politic constituting a public benefit corporation and a political subdivision of the state of New York". Since a public benefit corporation is a type of public corporation (see General Construction Law, §66), and since the powers and duties conferred upon the Corporation in §4 clearly indicate that it conducts public business and performs a governmental function, it is clear in my view that the RIOC Board is a public body required to comply with the Open Meetings Law. I note, too, that §41 of the General Construction Law, entitled "Quorum and majority", provides, in brief, that a majority of the total membership of a public body constitutes a quorum.

Second, it is emphasized that the Open Meetings Law has been broadly interpreted by the courts. In a landmark decision rendered in 1978, the Court of Appeals 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)].

The decision rendered by the Court of Appeals was precipitated by contentions made by public bodies that so-called "work sessions" and similar gatherings held for the purpose of discussion, but without an intent to take action, fell outside the scope of the Open Meetings Law. In discussing the issue, the Appellate Division, whose determination was unanimously affirmed by the Court of Appeals, stated that:

"We believe that the Legislature intended to include more than the mere formal act of voting or the formal execution of an official document. Every step of the decision-making process, including the decision itself, is a necessary preliminary to formal action. Formal acts have always been matters of public record and the public has always been made aware of how its officials have voted on an issue. There would be no need for this law if this was all the Legislature intended. Obviously, every thought, as well as every affirmative act of a public official as it relates to and is within the scope of one's official duties is a matter of public concern. It is the entire decision-making process that the Legislature intended to affect by the enactment of this statute" (60 AD 2d 409, 415).

The court also dealt with the characterization of meetings as "informal," stating that:

"The word 'formal' is defined merely as 'following or according with established form, custom, or rule' (Webster's Third New Int. Dictionary). We believe that it was inserted to safeguard the rights of members of a public body to engage in ordinary social transactions, but not to permit the use of this safeguard as a vehicle by which it precludes the application of the law to gatherings which have as their true purpose the discussion of the business of a public body" (id.).

It has also been held that "a planned informal conference" or a "briefing session" during which a quorum of a public body attended and functioned as a body constituted a "meeting" that fell within the coverage of the Open Meetings Law, even though the members were invited to attend by a non-member [see Goodman-Todman v. Kingston, 153 AD2d 103 (1990)].

In sum, assuming that at least five members of the RIOC Board gather with the Residents Association or any other person or group for the purpose of discussing matters within the jurisdiction of the RIOC, collectively, as a body, I believe that such a gathering, based on the judicial interpretation of the Open Meetings Law, would constitute a meeting that must be conducted in accordance with that statute and preceded by notice given to the news media and by means of posting pursuant to §104.

To be sure, not every instance in which a quorum of the RIOC Board is present would necessarily trigger the application of the Open Meetings Law. In the decision cited earlier, Orange County Publications, it was found that:

"We agree that not every assembling of the members of a public body was intended to be included within the definition. Clearly casual encounters by members do not fall within the open meetings statutes. But an informal 'conference' or 'agenda session' does, for it permits 'the crystallization of secret decisions to point just short of ceremonial acceptance'" (supra, at 416).

In view of the foregoing, if members of a public body meet by chance or at a social gathering, for example, I do not believe that the Open Meetings Law would apply, for there would be no intent to conduct public business, collectively, as a body.

I point out that questions similar to yours have arisen at workshops and seminars during which I have 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, I have responded that, since the members of those entities did not attend for the purpose of conducting public business as a body but rather as attendees in a large audience, the Open Meetings Law, in my opinion, did not apply. Based on our conversation, the gathering question would not have involved RIOC Board members as attendees in an audience or as observers, but rather as active participants, acting in their capacities as Board members. If that is so, and if a quorum is present, again, I believe that the gathering would constitute a meeting falling within the coverage of the Open Meetings Law. If, however, fewer than a quorum convenes, the Open Meetings Law would not apply.

I hope that I have been of assistance. Should any questions arise regarding the foregoing, please feel free to contact me.

RJF:tt