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OML-AO-4250

August 28, 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.

Dear

As you are aware, I have received your letter and news media accounts pertaining to a meeting of the Syracuse Industrial Development Agency (SIDA) held on July 5. You wrote that "SIDA failed to give proper notice of its meeting, held the meeting in an unusual location, and failed to alert all of its members of the meeting", and you asked that "the conduct of SIDA be investigated."

In this regard, §109 of the Open Meetings Law (Public Officers Law, Article 7) authorizes the Committee on Open Government to prepare advisory opinions. The Committee has neither the jurisdiction nor the resources to conduct what might be characterized as an "investigation." Nevertheless, based on your comments and the news articles that you forwarded, I offer the following comments.

According to an article appearing in the Post-Standard on July 6:

"Late Tuesday evening, a notice from Economic Development director David Michel was faxed to members of the Syracuse Industrial Development Agency, an unelected board appointed by Driscoll. The notice said a ‘special’ meeting of the agency’s board would be held at 11 a.m. the next day.

The meeting would not be held at its usual location Common Council chambers on the third floor of City Hall. Instead, SIDA met in the less-conspicuous conference room of the Office of Community Development on the sixth floor of City Hall Commons a building kitty-corner to City Hall.

Notice of the meeting was not faxed to news outlets until 7:25 a.m. Wednesday. No phone calls were made or e-mails sent.

Vito Sciscioli, one of the five members of the agency, saw the fax sent to him on the holiday at 8 a.m. Wednesday..."

The article also referred to a "briefing" that began an hour before the meeting "to learn what the last-minute meeting was all about", and one of the members, Vito Sciscioli, said, in the words of the Post-Standard, that "To avoid having a quorum of the agency present and thus making the briefing public under the state Open Meetings Law board member E. Carlyle Smith was briefed separately." It was also reported, identifying each of the five members of SIDA, that:

"Only Sciscioli, Davis and Smith attended the agency’s meeting. Bright did not receive notice of the meeting and did not learn about it until after it was over. The board’s only other member, real estate investor, Gary Pickard, was in Watertown."

During the 11 a.m. meeting that followed the briefing, "The three board members unanimously approved three resolutions implementing the new tax deal part of an agreement that would not be subject to the council’s approval", referring to the City of Syracuse Common Council.

"Bright" is Terri Bright, who had served as the City’s Corporation Counsel. In a July 9 article, it was reported that Mayor Matt Driscoll appeared "in Terri Bright’s kitchen early Wednesday", July 5, the day of the SIDA meeting. Although the article indicates that the Mayor "said he handed her a notice of the development agency meeting when he arrived at her house", Bright "said she later found the folded paper on her dining room table." She added that, "Even if she had known where and when the development agency was meeting Wednesday, she would not have gone".

In an article of July 8 concerning the meeting of July 5, it was reported that an attorney retained by SIDA "said quick approval" was needed, but thereafter "acknowledged that the city faced no immediate court deadline, penalty or fines if it had waited three days as required under the open meetings law."

There are several issues involving the Open Meetings Law that relate to the scenario described in the preceding remarks.

First, the provisions concerning industrial development agencies are found in Article 18-A of the General Municipal Law, and §856(2) of the General Municipal Law states in part that an industrial development agency "shall be a corporate governmental agency, constituting a public benefit corporation." A public benefit corporation is a "public corporation" as that term is defined by §66(1) of the General Construction Law. Further, §856(3) of the General Municipal Law states that a majority of the members of an industrial development agency "shall constitute a quorum."

Second, the Open Meetings Law is applicable to meetings of public bodies, and §102(2) of the Open Meetings Law defines the phrase "public body" to include:

"...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."

Based upon the foregoing, it is clear in my view that the members of an industrial development agency constitute a "public body" subject to the Open Meetings Law, for they perform a governmental function for a public corporation. Moreover, §926 of the General Municipal Law established the Syracuse Industrial Development Agency and states that it is "a body corporate and politic", that its members "shall be appointed by the Mayor body of the City of Syracuse", and that it is governed by the provisions of Article 18-A of the General Municipal Law.

Third, from my perspective, a public body, such as a SIDA, may validly conduct a meeting or carry out its authority only at a meeting during which a majority of its members has physically convened or during which a majority has convened by means of videoconferencing, and even then, only when reasonable notice is given to all of the members.

By way of background, it is emphasized that the definition of "meeting" [Open Meetings Law, §102(1)] 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)].

Based upon the direction given by the courts, if a majority of the SIDA gathers to discuss public business, collectively as a body and in their capacities as Agency members, any such gathering, in my opinion, would constitute a "meeting" subject to the Open Meetings 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 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" (emphasis added).

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. Consequently, it is my opinion that a public body may not take action or vote unless reasonable notice is given to all the members. If that does not occur, even if a majority is present, I do not believe that a valid meeting could be held or that action may validly be taken.

In the context of the facts as described in the news articles, a key question is whether "reasonable notice" was given to all of the members. If a court were to determine that reasonable notice was not given to Ms. Bright, I believe that it would, of necessity, find that the gathering of July 5 was not validly held, and that action purportedly taken at that gathering is a nullity and of no effect.

Next, separate from the notice requirement involving the members of a public body and §41 of the General Construction Law are those imposed by the Open Meetings Law. Section 104 of that statute provides that:

"1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before each meeting.

2. Public notice of the time and place of every other meeting shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.

3. The public notice provided for by this section shall not be construed to require publication as a legal notice."

Stated differently, if a meeting is scheduled at least a week in advance, notice of the time and place must be given to the news media and to the public by means of posting in one or more designated public locations, not less than seventy-two hours prior to the meeting. If a meeting is scheduled less than a week an advance, again, notice of the time and place must be given to the news media and posted in the same manner as described above, "to the extent practicable", at a reasonable time prior to the meeting. Although the Open Meetings Law does not make reference to "special" or "emergency" meetings, if, for example, there is a need to convene quickly, the notice requirements can generally be met by telephoning or faxing notice of the time and place of a meeting to the local news media and by posting notice in one or more designated locations.

Further, the judicial interpretation of the Open Meetings Law suggests that the propriety of scheduling a meeting less than a week in advance is dependent upon the actual need to do so. As stated in Previdi v. Hirsch:

"Whether abbreviated notice is 'practicable' or 'reasonable' in a given case depends on the necessity for same. Here, respondents virtually concede a lack of urgency: They deny petitioner's characterization of the session as an 'emergency' and maintain nothing of substance was transacted at the meeting except to discuss the status of litigation and to authorize, pro forma, their insurance carrier's involvement in negotiations. It is manifest then that the executive session could easily have been scheduled for another date with only minimum delay. In that event respondents could even have provided the more extensive notice required by POL §104(1). Only respondent's choice in scheduling prevented this result.

"Moreover, given the short notice provided by respondents, it should have been apparent that the posting of a single notice in the School District offices would hardly serve to apprise the public that an executive session was being called...

"In White v. Battaglia, 79 A.D. 2d 880, 881, 434 N.Y.S.ed 637, lv. to app. den. 53 N.Y.2d 603, 439 N.Y.S.2d 1027, 421 N.E.2d 854, the Court condemned an almost identical method of notice as one at bar:

"Fay Powell, then president of the board, began contacting board members at 4:00 p.m. on June 27 to ask them to attend a meeting at 7:30 that evening at the central office, which was not the usual meeting date or place. The only notice given to the public was one typewritten announcement posted on the central office bulletin board...Special Term could find on this record that appellants violated the...Public Officers Law...in that notice was not given 'to the extent practicable, to the news media' nor was it 'conspicuously posted in one or more designated public locations' at a reasonable time 'prior thereto' (emphasis added)" [524 NYS 2d 643, 645 (1988)].

Based upon the foregoing, absent an emergency or urgency, the Court in Previdi suggested that it would be unreasonable to conduct meetings on short notice, unless there is some necessity to do so.

Lastly, when there is an intent to ensure the presence of less than a quorum at any given time in order to evade the Open Meetings Law, there is a judicial decision that infers that such activity would contravene that statute. As stated in Tri-Village Publishers v. St. Johnsville Board of Education:

"It has been held that, in order for a gathering of members of a public body to constitute a 'meeting' for purposes of the Open Meetings Law, a quorum must be present (Matter of Britt v County of Niagara, 82 AD2d 65, 68-69). In the instant case, there was never a quorum present at any of the private meetings prior to the regular meetings. Thus, none of these constituted a 'meeting' which was required to be conducted in public pursuant to the Open Meetings Law.

"We recognize that a series of less-than-quorum meetings on a particular subject which together involve at least a quorum of the public body could be used by a public body to thwart the purposes of the Open Meetings Law...However, as noted by Special Term, the record in this case contains no evidence to indicate that the members of respondent engaged in any attempt to evade the requirements of the Open Meetings Law" [110 AD 2d 932, 933-934 (1985)].

In Tri-Village, the Court found no evidence indicating an intent to circumvent the Open Meetings Law when a series of meetings were held, each involving less than a quorum of a board of education. Nevertheless, one might interpret the passage quoted above to mean that, when there is an intent to evade the Law by ensuring that less than a quorum is present, such an intent would violate the Open Meetings Law. If there was an intent to circumvent the Open Meetings Law in the context of the situation of your concern, it is possible that a court would find that the Open Meetings Law has been infringed.

I hope that I have been of assistance.

RJF:tt

cc: Syracuse Industrial Development Agency