November 9, 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 in which you seek an advisory opinion concerning applicability of the Open Meetings Law to the regular meetings of the Industrial Board of Appeals (“the Board”).
By way of background, §100(1) of the Labor Law provides that the Board “shall be composed of five members”, all of whom are appointed by the Governor. Subdivision (5)(b) indicates that the Board “may designate one or more of its members or competent employees to hold a hearing or investigation relating to any matter pertaining to the exception of its functions...” Subdivision (5)(c) states that the Board “by one or more of its members” is empowered to “administer oaths and take affidavits”, issue subpoenas and compel the attendance of witness and the production of documents and other evidence, and to hear testimony and take depositions “in the manner prescribed by law for like depositions in the supreme court.” Section 101 pertains to review of petitions filed with the Board concerning “the validity or reasonableness of any rule, regulation or order made by the Commissioner”, and “[i]f the board finds that the rule, regulation or order, or any part thereof, is invalid or unreasonable, it shall revoke, amend or modify the same.” Section 102 specifies that a decision of the Board is final, except that it may be appealed in a proceeding under Article 78 of the Civil Practice Laws and Regulations.
You wrote that the Board’s monthly meetings “are almost exclusively devoted to reviewing and deliberating over proposed determinations”, and that “there are various discussions requiring the legal advice and opinion of counsel.” You added that “roughly 2 to 4 hours” are spent “deliberating on pending cases and written proposed decisions” as well as seeking advice of counsel, during a typical monthly meeting and expressed the belief that those portions of the meetings are exempt from the Open Meetings Law pursuant to §108 of that statute. According to your letter:
“The remainder of the Board’s monthly meeting consists of roughly 1 to 2 minutes voting to approve or modify the previous Board minutes; roughly 4 to 6 minutes reviewing the various status reports; roughly 1 to 2 minutes voting on the decisions; and roughly 5 to 10 minutes attending to ministerial matters, such as calendaring and informational updates. It is our understanding of the Open Meetings Law, that these portions of the Board’s meeting, consisting of no more than 20 minutes, are considered non-exempt.”
Based on my understanding of the foregoing, I believe that the majority of the Board’s meetings are exempt from the coverage of the Open Meetings Law. In this regard, I offer the following comments.
I point out that there are two vehicles that may authorize a public body to discuss public business in private. One involves entry into an executive session. Section 102(3) of the Open Meetings Law defines the phrase "executive session" to mean a portion of an open meeting during which the public may be excluded, and the Law requires that a procedure be accomplished, during an open meeting, before a public body may enter into an executive session. Specifically, §105(1) states in relevant part that:
"Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only..."
As such, a motion to conduct an executive session must include reference to the subject or subjects to be discussed and the motion must be carried by majority vote of a public body's membership before such a session may validly be held. The ensuing provisions of §105(1) specify and limit the subjects that may appropriately be considered during an executive session. Therefore, a public body may not conduct an executive session to discuss the subject of its choice.
The other vehicle involves "exemptions." Section 108 of the Open Meetings Law contains three exemptions. When an exemption applies, the Open Meetings Law does not, and the requirements that would operate with respect to executive sessions are not in effect. Stated differently, to discuss a matter exempted from the Open Meetings Law, a public body need not follow the procedure imposed by §105(1) that relates to entry into an executive session. Further, although executive sessions may be held only for particular purposes, there is no such limitation that relates to matters that are exempt from the coverage of the Open Meetings Law.
Perhaps most relevant to the duties of the Board is §108(1) of the Open Meetings Law, which exempts "judicial or quasi-judicial proceedings..." from the coverage of that statute.
In my view, one of the elements of a quasi-judicial proceeding is the authority to take final action. While I am unaware of any judicial decision that specifically so states, there are various decisions that infer that a quasi-judicial proceeding must result in a final determination reviewable only by a court. For instance, in a decision rendered under the Open Meetings Law, it was found that:
"The test may be stated to be that action is judicial or quasi-judicial, when and only when, the body or officer is authorized and required to take evidence and all the parties interested are entitled to notice and a hearing, and, thus, the act of an administrative or ministerial officer becomes judicial and subject to review by certiorari only when there is an opportunity to be heard, evidence presented, and a decision had thereon" [Johnson Newspaper Corporation v. Howland, Sup. Ct., Jefferson Cty., July 27, 1982; see also City of Albany v. McMorran, 34 Misc. 2d 316 (1962)].
Another decision that described a particular body indicated that "[T]he Board is a quasi-judicial agency with authority to make decisions reviewable only in the Courts" [New York State Labor Relations Board v. Holland Laundry, 42 NYS 2d 183, 188 (1943)]. Further, in a discussion of quasi-judicial bodies and decisions pertaining to them, it was found that "[A]lthough these cases deal with differing statutes and rules and varying fact patterns they clearly recognize the need for finality in determinations of quasi-judicial bodies..." [200 West 79th St. Co. v. Galvin, 335 NYS 2d 715, 718 (1970)].
It is my opinion that the final determination of a controversy is a condition precedent that must be present before one can reach a finding that a proceeding is quasi-judicial. Reliance upon this notion is based in part upon the definition of "quasi-judicial" appearing in Black's Law Dictionary (revised fourth edition). Black's defines "quasi-judicial" as:
"A term applied to the action, discretion, etc., of public administrative officials, who are required to investigate facts, or ascertain the existence of facts, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature."
When the Board deliberates toward a decision following an appeal concerning the validity or reasonableness of an order made by the Commissioner of Labor, and in consideration to its powers, which are analogous to that of a court, as well as its authority to render binding determinations reviewable only by a court, I agree that those deliberations are “quasi-judicial” and therefore, exempt from the coverage of the Open Meetings Law in accordance with §108(1).
Additionally, §108(3) exempts any matter made confidential by federal or state law from the Open Meetings Law. It has been consistently advised that when a public body, such as the Board, seeks legal advise from its attorney, the Board and its attorney create an attorney-client relationship under which their communications as privileged and confidential and, therefore, exempt from the Open Meetings Law based on assertion of the attorney-client privilege codified in §450(3) of the Criminal Procedure Law and Regulations.
Lastly, it is noted that although the deliberations of a public body may be outside the coverage of the Open Meetings Law, its vote and other matters would not be exempt. As stated in Orange County Publications v. City of Newburgh:
"there is a distinction between that portion of a meeting...wherein the members collectively weigh evidence taken during a public hearing, apply the law and reach a conclusion and that part of its proceedings in which its decision is announced, the vote of its members taken and all of its other regular business is conducted. The latter is clearly non-judicial and must be open to the public, while the former is indeed judicial in nature, as it affects the rights and liabilities of individuals" [60 AD 2d 409,418 (1978)].
In consideration of the foregoing, it appears that some portions of the Board’s meetings are subject to the Open Meetings Law and must be conducted in public, except to the extent that an executive session may properly be held in accordance with §105(1) of the Open Meetings Law.
I hope that I have been of assistance.
Robert J. Freeman
cc: Richard Baum, Esq.
David Rose, Esq.