February 7, 2008
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.
I have received your letter and appreciate your kind words.
Attached to your letter is a copy of correspondence sent by John B. Kiernan to the Hon. Stan Lundine in Mr. Lundine’s capacity as a member of the New York State Commission on Local Government Efficiency and Competitiveness (“the Commission”) in which Mr. Kiernan referred to the status of the Commission under the Open Meetings Law. Having received several calls concerning a closed meeting held by the Commission, I am familiar with the issue. In short, based on a judicial decision that dealt with essentially the same issue, it appears that the Commission is not required to give effect to the Open Meetings Law.
By way of background, the Open Meetings Law is applicable to 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."
Based on the foregoing, a public body is, in my view, an entity required to conduct public business by means of a quorum that performs a governmental function and carries out its duties collectively, as a body.
Several judicial decisions indicate generally that advisory bodies, other than those consisting of members of a governing body, that have no power to take final action fall outside the scope of the Open Meetings Law. As stated in those decisions: "it has long been held that the mere giving of advice, even about governmental matters is not itself a governmental function" [GoodsonTodman Enterprises, Ltd. v. Town Board of Milan, 542 NYS 2d 373, 374, 151 AD 2d 642 (1989); Poughkeepsie Newspaper v. Mayor's Intergovernmental Task Force, 145 AD 2d 65, 67 (1989); see also New York Public Interest Research Group v. Governor's Advisory Commission, 507 NYS 2d 798, aff'd with no opinion, 135 AD 2d 1149, motion for leave to appeal denied, 71 NY 2d 964 (1988)]. In one of the decisions, Poughkeepsie Newspaper, supra, a task force was designated by then Mayor Koch consisting of representatives of New York City agencies, as well as federal and state agencies and the Westchester County Executive, to review plans and make recommendations concerning the City's long range water supply needs. The Court specified that the Mayor was "free to accept or reject the recommendations" of the Task Force and that "[i]t is clear that the Task Force, which was created by invitation rather than by statute or executive order, has no power, on its own, to implement any of its recommendations" (id., 67). Referring to the other cases cited above, the Court found that "[t]he unifying principle running through these decisions is that groups or entities that do not, in fact, exercise the power of the sovereign are not performing a governmental function, hence they are not 'public bod[ies] subject to the Open Meetings Law...”(id.).
On the other hand, if an entity consisting of two or more members that functions as a body has the authority to take action, i.e., through the power to allocate public monies or make determinations, the Court of Appeals has held that the entity would constitute a public body subject to the Open Meetings Law [ see e.g., Smith v. City University of New York, 92 NY 2d 707 (1999)].
The decision to which Mr. Kiernan alluded, New York Public Interest Research Group, supra, involved an entity created by former Governor Cuomo, the “Governor’s Advisory Commission to Make Findings and Recommendations about Problems Relating to Liability Insurance.” Like the Commission that is the subject of your letter, the entity in that case was also designated by means of an executive order, and in consideration of its role, the court concluded that:
“...the Commission is an advisory body which lacks the power to transact public business. It cannot make law, adopt regulations or direct any changes in State law or policy. It has no direct impact on the functioning of this state. Accordingly, the Commission is not subject to the OML.”
The Supreme Court’s ruling was affirmed with no opinion by the Appellate Division, and a motion for leave to appeal to the Court of Appeals was denied.
In consideration of the similarity between the entity at issue in New York Public Interest Research Group, as well as the holdings in the other decisions involving advisory bodies cited above, again, it does not appear that the Commission is subject to the Open Meetings Law.
It is noted that the Committee on Open Government in several of its annual reports to the Governor and State Legislature recommended that the Open Meetings Law be amended to include advisory bodies created by the an executive or governing body within the definition of “public body” in an effort to bring them within the coverage of the Open Meetings Law. Those recommendations, however, did not receive serious consideration, and no similar recommendation has been offered recently. If you are interested in developing legislation to deal with the issue, I would be most pleased to work with you and your staff.
I hope that the foregoing serves to clarify your understanding of the matter and that I have been of assistance.
Robert J. Freeman