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OML-AO-4240


                                                                                                August 11, 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

            I have received your letter in which you complained that the Ballston Town Planning Board adopted a series of recommendations at its May 4 meeting and forwarded them to the Town Board. Having requested the minutes of that meeting, you were informed by the Chair of the Planning Board that a letter containing the recommendations served as the minutes. Further, the letter apparently states that the Planning Board unanimously voted to adopt the recommendations included in the letter. However, according to correspondence sent to the Town Supervisor by an attorney representing a citizens’ group, “at least two members of the Planning Board were opposed to the recommendations and have stated so publicly...”

            In this regard, I offer the following comments.

            First, because the Planning Board constitutes a “public body” required to comply with the Open Meetings Law [see Open Meetings Law, §102(2)], it is required to prepare minutes in accordance with that statute. Section 106 pertains to minutes of meetings and directs 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."

            As the situation has been described, the adoption of recommendations that were transmitted to the Town Board in my view represent action taken by the Planning Board that must be memorialized in minutes. While the letter containing the recommendations might reflect the essence of the Board’s action, I do not believe that the letter may be characterized or serve as a substitute for minutes. Often issues arise years after action is taken and there is a need to review minutes, the official record of action taken by a public body. Without minutes, there may be no way of learning of the nature of governmental actions or even if actions were indeed taken. In addition, as you suggested, §106 requires that minutes be prepared and made available within two weeks of meetings.

            Second, in a related vein, §87(3)(a) of the Freedom of Information Law requires that:

"Each agency shall maintain:

(a) a record of the final vote of each member in every agency proceeding in which the member votes..."


Based upon the foregoing, when a final vote is taken by an "agency" subject to the Freedom of Information Law [see §86(3), a record must be prepared that indicates the manner in which each member who voted cast his or her vote. Ordinarily, records of votes will appear in minutes.

            In terms of the rationale of §87(3)(a), it appears that the State Legislature in precluding secret ballot voting sought to ensure that the public has the right to know how its representatives may have voted individually concerning particular issues. Although the Open Meetings Law does not refer specifically to the manner in which votes are taken or recorded, I believe that the thrust of §87(3)(a) of the Freedom of Information Law is consistent with the Legislative Declaration that appears at the beginning of the Open Meetings Law and states 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. The people must be able to remain informed if they are to retain control over those who are their public servants."

In an Appellate Division decision that was affirmed by the Court of Appeals, it was found that "The use of a secret ballot for voting purposes was improper." In so holding, the Court stated that: "When action is taken by formal vote at open or executive sessions, the Freedom of Information Law and the Open Meetings Law both require open voting and a record of the manner in which each member voted [Public Officers Law §87[3][a]; §106[1], [2]" Smithson v. Ilion Housing Authority, 130 AD 2d 965, 967 (1987); aff'd 72 NY 2d 1034 (1988)]. Most recently, the Court of Appeals confirmed that the law requires that a record of votes of the members must be prepared when action is taken by a public body and precludes secret ballot voting by its members [Perez v. City University of New York, 5 NY3d 522 (2005)].

            In an effort to enhance compliance with and understanding of the matter, copies of this opinion will be forwarded to Town officials.


            I hope that I have been of assistance.


                                                                                                Sincerely,



                                                                                               Robert J. Freeman

                                                                                               Executive Director


RJF:jm

cc: Town Board
      Planning Board