October 25, 2007
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 a variety materials relating to it. You have sought an advisory opinion concerning the application of the Open Meetings Law.
You wrote that you serve on the Town Board of the Town of Stanford, and that the Board consists of five members. The issue involves your capacity to attend meetings of the Town Codes Committee and whether doing so would result in the convening of a meeting of the Town Board held in contravention of the Open Meetings Law. By way of background, you indicated that the Town Supervisor established the Codes Committee for the purpose of discussing and updating the Town’s “Master Plan and zoning regulations which can be put before the public for discussions and comments and upon which the Town Board will eventually vote.” You added that the Codes Committee “is made up of 7 people, two of whom are Town Board members,” and that Committee meetings are open to the public.
When you attended a meeting of the Codes Committee, you were asked to leave, and because you apparently chose not to do so, “the Supervisor cancelled the meeting and the entire committee walked out because [you were] in the audience.” Soon thereafter, the Supervisor posted the following on the Town’s website:
“Codes Committee meetings suspended.
At the September 20th meeting of the Codes Committee, Town Board member Virginia Stern was in the audience giving us three Town Board members in attendance.
Town Board member Joyce Hadden and myself as Town Supervisor are on the Codes Committee and both of us were in attendance. Our Attorney for the Town, Bill Bogle advised the Town Board that having three Board members at these meetings constitutes an illegal quorum of the Town Board, which is a violation of the Open Meetings Law (Public Officer’s [sic] Law). Attorney Bogle’s recommendation is that these meeting [sic] should have only two Town Board members present or the Town would be in violation of the Public Officer’s Law and could subject the Town to liability or the rejection of any information discussed at such sessions.
Therefore as Town Supervisor, since Virginia has refused to leave the meetings, I stopped the meeting, and the Codes committee won’t meet until this matter is resolved.”
In my view, the contentions of the Supervisor and the Town Attorney are inaccurate, and by means of the following comments, I hope that the matter will indeed be resolved.
First, the Open Meetings Law is applicable to meetings of public bodies, and §102(2) 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."
A meeting of a public body is a gathering of a quorum, a majority of its total membership, for the purpose of conducting public business, collectively, as a body. In the case of a town board consisting of five members, a quorum would be three, and a meeting would involve a gathering of three or more of its members for the purpose of conducting public business together as a body. I note that it has been held that when two of five members of a public body convene, because two is less than a quorum, the Open Meetings Law does not apply [Mobil Oil Corp. V. City of Syracuse Industrial Development Agency, 224 AD2d 15, motion for leave to appeal denied, 89 NY2d 811 (1997)].
The Codes Committee, as you described it, is an entity separate and distinct from the Town Board. Again, it consists of seven members, two of whom are members of the Town Board. A gathering of the Committee clearly would not constitute a meeting of the Town Board. In situations similar to that to which you and the Supervisor referred, it has been advised that a member of a governing body, such as yourself serving as a member of the Town Board, who attends a meeting of a different body, such as the Codes Committee, as a member of the audience, has the same right to attend as any member of the public. Further, because you attended as a member of the audience and were not situated with the members of the Committee in the front of the room at the table or area where the Committee members were conducting the meeting, your presence would not have transformed the meeting of the Committee into a meeting of the Town Board. In short, the members of the Town Board might have been present in the same room, but the three would not have gathered together or convened as a board or body.
Since your presence in the audience would not have converted a meeting of the Committee into a meeting of the Town Board, it is clear in my view that there would be no “illegal quorum” of the Town Board as suggested by the Town Supervisor and the Town Attorney. Consequently, there would be no “violation of the Public Officer’s (sic) Law”, nor would there be any issue involving liability in relation to the Board’s compliance with the Open Meetings Law.
With respect to “resolving” matter, it is my opinion in sum that the Codes Committee is an entity separate from the Town Board, that your presence as a member of the audience at meetings of the Codes Committee would not transform the gathering into a meeting of the Town Board, and because such gathering would not constitute a Town Board meeting, that your presence would not create any issue or liability concerning the Town Board’s compliance with the Open Meetings Law.
I hope that the foregoing serves to resolve the matter and that I have been of assistance.
Robert J. Freeman
cc: Dave Tetor, Supervisor
William F. Bogle, Jr.