August 31, 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 facts presented in your correspondence.
I have received your letter and the materials attached to it. You asked for my views concerning the validity of a special meeting held by the Marlborough Town Board in consideration of questions raised by Mr. Joseph Amodeo. You also requested correspondence that this office has received from Mr. Amodeo, as well as any responses to him.
In this regard, although I recall having spoken with Mr. Amodeo, I do not remember the details of our conversation. Further, having reviewed our files, we have not received a request for a written advisory opinion, and none has been prepared. If we have received other materials from Mr. Amodeo, because our correspondence is filed chronologically, we cannot locate them with reasonable effort without an approximate date or time period during which he might have written to this office.
With respect to the special meeting, as I understand the situation, it was originally scheduled to begin at 6:30 on June 1. Due to a conflict, the meeting time was changed to 5:30. You wrote that:
"The deputy supervisor advised the Town Clerk to post the change and notify the media. The public posting was done, but the Clerk assumed, since the official newspaper was past publication date, that she didn’t have to call them. Regardless, the fact remains, that a local reporter was on hand, at the state of the meeting, to record all action taken at the meeting."
In consideration of the foregoing, I offer the following comments.
First, there are two statutes that relate to notice of special meetings held by town boards. The phrase "special meeting" is found in §62(2) of the Town Law. That provision, from my perspective, deals with unscheduled meetings, rather than meetings that are regularly scheduled, and states in relevant part that:
"The supervisor of any town may, and upon written request of two members of the board shall within ten days, call a special meeting of the town board by giving at least two days notice in writing to the members of the board of the time when and place where the meeting is to be held."
The provision quoted above pertains to notice given to members of a town board, and the requirements imposed by §62 are separate from those contained in the Open Meetings Law.
Section 104 of the Open Meetings Law 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 post 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. Therefore, if, for example, there is a need to convene quickly, the notice requirements can generally be met by telephoning the local news media and by posting notice in one or more designated locations.
Second, because the Town Clerk mistakenly did not provide notice to the news media, I point out that §107(1) of the Open Meetings Law states in part that:
"Any aggrieved person shall have standing to enforce the provisions of this article against a public body by the commencement of a proceeding pursuant to article seventy-eight of the civil practice law and rules, and/or an action for declaratory judgment and injunctive relief. In any such action or proceeding, the court shall have the power, in its discretion, upon good cause shown, to declare any action or part thereof taken in violation of this article void in whole or in part."
However, the same provision states further that:
"An unintentional failure to fully comply with the notice provisions required by this article shall not alone be grounds for invalidating any action taken at a meeting of a public body."
As such, when a legal challenge is initiated relating to a failure to provide notice, a key issue is whether a failure to comply with the notice requirements imposed by the Open Meetings Law was "unintentional". That appears to have been so in this instance. Further, you wrote that a member of the news media was present at the meeting.
Lastly, there is nothing in the Open Meetings Law or any other law of which I am aware that deals specifically with agendas. While many public bodies prepare agendas, the Open Meetings Law does not require that they do so. Similarly, the Open Meetings Law does not require that a prepared agenda be followed. Therefore, I know of no law that would have prohibited the Town Board from discussing or acting upon matters that were not referenced in an agenda.
I hope that I have been of assistance.
Robert J. Freeman