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OML-AO-4681

                                                                                                September 4, 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, unless otherwise indicated.

Dear

            As you are aware, I have received your letter, and again, hope that you will accept my apologies for the delay in response.  In your capacity as Executive Director of the Cattaraugus-Allegany Workforce Investment Board, Inc. (“the Board”), you raised issues concerning the obligation imposed by the Freedom of Information Law that requires that an agency must maintain a record in every instance in which final action is taken that indicates the manner in which each member voted.  From my perspective, before that issue can be considered, it must be determined whether meetings of the Board are subject to the Open Meetings Law.

            Following our initial discussion of that issue, I located two advisory opinions focusing on the status of workforce investment boards (“WIB’s”) under the Open Meetings Law.  In the first, it was advised that WIB’s are not subject to the Open Meetings Law, but in the second, it was advised that they are required to comply with that statute.  Because the Open Meetings Law applies to public bodies, the issue is whether those entities constitute public bodies.

            Section 102(2) of that statute the Open Meetings Law applies to meetings of public bodies, and §102(2) of the Open Meetings Law 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, to constitute a “public body”, an entity must consist of at least two members, conduct public business and perform a governmental function for the state or for one or more public corporations, i.e., municipalities.

            The Court of Appeals, the state’s highest court, in a case dealing with a “laboratory animals use committee” (a “LAUC”) created pursuant to federal law held that "the powers of the LAUC derive solely from Federal law...and for that reason alone...the Committee is not a public body as defined by the Open Meetings Law" [American Society for the Prevention of Cruelty to Animals v. Board of Trustees of the State University of New York, 79 NY2d 927, 929 (1992)].

            The federal statute authorizing the creation of a LAUC, 7 USC §2143, states that “each research facility [shall] establish at least one Committee”, that “[e]ach Committee shall be appointed by the chief executive officer of each such research facility and shall be composed of not fewer than three members”, and that “[s]uch members shall possess sufficient ability to assess animal care, treatment, and practices in experimental research as determined by the needs of the research facility and shall represent society’s concerns regarding the welfare of animal subjects used at such facility.”  In short, the head of every facility, whether public or private, that engages in laboratory research involving animals, was required to establish a LAUC.  There is no mandatory legal nexus between a LAUC and state or local government.

            In the provisions dealing with WIB’s, subdivision (a) of §116 the Workforce Investment Act of 1998 (H.R. 1385) provides that the governor of a state “shall designate local workforce areas within the State”.  Further, subdivision (c) provides that “a State may require regional planning by local boards”, “require” those boards to share information, and “require the local boards for a designated region to coordinate the provision of workforce investment activities...” The introductory portions §117 provide as follows:

“(a) ESTABLISHMENT. - There shall be established in each local area of a State, and certified by the Governor of the State, a local workforce investment board, to set policy for the portion of the statewide workforce investment system within the local area (referred to in this title as a ‘local workforce investment system’). 

(b) MEMBERSHIP. -

(1) STATE CRITERIA. - The Governor of the State, in partnership with the State board, shall establish criteria for use by chief elected officials in the local areas for appointment of members of the local boards in such local areas in accordance with the requirements of paragraph (2).”

Additionally, the initial provisions of subdivision (c) of §117 state:

“(A) IN GENERAL. - The chief elected official in a local area is authorized to appoint the members of the local board for such area, in accordance with the State criteria established under subsection (b).

(B) MULTIPLE UNITS OF LOCAL GOVERNMENT IN AREA. -
(i) IN GENERAL - In a case in which a local area includes more than 1 unit of general local government, the chief elected officials of such units may execute an agreement that specifies the respective roles of the individual chief elected officials -
(i) in the appointment of the members of the local board from the individuals nominated or recommended to be such members in accordance with the criteria established under subsection (b); and
(II) in carrying out any other responsibilities assigned to such officials under this subtitle.
(ii) LACK OF AGREEMENT. - If, after a reasonable effort, the chief elected officials are unable to reach agreement as provided under clause (i), the Governor may appoint the members of the local board from individuals so nominated or recommended.”

            A LAUC may be established in either a private or a governmental facility, and the case before the Court of Appeals involved a LAUC created at a branch of the State University, which is clearly a governmental entity.  In that circumstance, the members of a LAUC are appointed by the chief executive officer at the facility.  In the case of a WIB, the Governor and state and local government officials have the authority and often the responsibility to carry out certain functions in implementing federal law.  In its consideration of the LAUC, the Court of Appeals found that:

“...the Open Meetings Law excludes Federal bodies from its ambit.

"The LAUC's constituency, powers and functions derive solely from Federal law and regulations.  Thus, even if it could be characterized as a governmental entity, it is at most a Federal body that is not covered under the Open Meetings Law" (id., 929).

            In the second opinion prepared by this office, it was suggested that the “powers and functions” of a WIB do not “derive solely” from federal law, and that they derive in part from the powers, functions and duties of state and local government officials.  That being so, it was advised, in the words of the definition of “public body”, that they “conduct public business” and are involved in “performing a governmental function for the state...or for a public corporation”, such as a county, city, town or village.  If that conclusion is accurate, it was advised that a WIB constitutes a public body subject to the Open Meetings Law.

            As I indicated during our conversation, I asked our Assistant Director, also an attorney with years of experience concerning the Open Meetings Law, to review both of the opinions previously rendered and to offer her perspective.  She said that she is “clearly on the fence.”  In my view, if the question is brought before a court, as in the case of the LAUC, it could be found that a WIB functions solely as result of the enactment of federal law.  On the other hand, in consideration of the roles of state and local government officials, a WIB might be found to constitute a public body required to comply with the Open Meetings Law. 

            Although those officials perform certain functions in relation to WIB’s, WIB’s are clearly creations of federal law, and the powers and responsibilities of state and local officials in relation  to WIB’s, as in the case of a LAUC., derive solely from federal law.  Consequently, on balance, it would appear that WIB’s may not be subject to the Open Meetings Law or the requirements associated with the implementation of that statute.

            If you would like to discuss the matter, please feel free to contact me.  I hope that I have been of assistance.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
Executive Director

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