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OML-AO-4690

 

                                                                                                September 23, 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

            I have received your correspondence and the materials attached to it. The documentation consists of news articles, an excerpt of a transcript of a meeting of June 10 of the Suffolk County Legislature, a resolution to amend the Legislature’s rules, and a transcript of the Legislature’s meeting of August 19 relating to a proposed change in the rules. You have sought my “impressions and thoughts” concerning the numerous issues raised upon review of their content.

            The first article pertains in part to a lawsuit that you initiated and concerns whether an action taken by the Legislature “was improperly discharged from committee because Lindsay”, the presiding officer, “cast the decisive vote in favor of the bill without counting his presence as a committee member.”  The article also indicates that a “consensus formed” during “a closed-door discussion” to appeal a lower court decision to the Appellate Division, that “[n]o formal minutes of the meeting were taken and there was no vote recorded in the public record.”  According to the article, counsel to the Legislature, George Nolan ,“said no public vote is required”, that 12 legislators “backed an appeal”, indicating that “It was the sense of the group.” He added that “[t]he group made the decision, that they wanted to defend the case.”

            From my perspective, the foregoing suggests a variety of failures to comply with law.  In this regard, I offer the following comments.

            First, it is noted 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 for excluding the public from a meeting 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.

            It has been advised that members of a public body may meet in private to seek legal advice from their attorney, and that when they do so, their communications fall within the attorney-client privilege.  Because the communications are confidential, a gathering of that nature would be exempt from the coverage of the Open Meetings Law pursuant to §108(3) of that statute, which exempts from the Open Meetings Law matters made confidential by state or federal law.  In situations in which a public body has been sued by one of its own members, that member, in my opinion, could be excluded from a gathering of the other members of the body when they are seeking legal advice.  However, the transcript of the June 10 meeting specifies that a motion was made to enter into executive session.  Because the gathering was an executive session rather than a matter exempt from the Open Meetings Law, I believe that you, a member of the Legislature, had the right to be present.  Section 105(2) states that: “Attendance at an executive session shall be permitted to any member of the public body and any other persons authorized by the public body.”  In short, although you might have been properly excluded from a gathering held outside the coverage of the Open Meetings Law based on the assertion of the attorney-client privilege, in my view, because of the manner in which the Legislature chose to engage in a private discussion, entry into an executive session, you had the right to attend that session. 

            Second, as indicated earlier, the Legislature took action by reaching a “consensus.”  In this regard, in Previdi v. Hirsch [524 NYS 2d 643 (1988)], which involved a board of education, the issue pertained to access to records, i.e., minutes of executive sessions held under the Open Meetings Law.  Although it was assumed by the court that the executive sessions were properly held, it was found that "this was no basis for respondents to avoid publication of minutes pertaining to the 'final determination' of any action, and 'the date and vote thereon'" (id., 646).  The court stated that:

"The fact that respondents characterize the vote as taken by 'consensus' does not exclude the recording of same as a 'formal vote'.  To hold otherwise would invite circumvention of the statute.

"Moreover, respondents' interpretation of what constitutes the 'final determination of such action' is overly restrictive.  The reasonable intendment of the statute is that 'final action' refers to the matter voted upon, not final determination of, as in this case, the litigation discussed or finality in terms of exhaustion or remedies" (id.).

            Whenever action is taken by a public body, I believe that it must be memorialized in minutes, and §106 of the Open Meetings Law provides that:

"1.  Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon.

2.  Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter.

3.  Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meetings except that minutes taken pursuant to subdivision two hereof shall be available to the public within one week from the date of the executive session."

            In my view, when the Legislature reached a consensus reflective of its decision to appeal, that decision, whether it was made in public or during an executive session, was required to have been memorialized in minutes prepared in accordance with §106 of the Open Meetings Law.

            There is a related requirement pertinent to the absence of a vote being recorded.  Section 87(3)(a) of the Freedom of Information Law provides that:

"Each agency shall maintain:

(a) a record of the final vote of each member in every agency proceeding in which the member votes..."

Based upon the foregoing, when a final vote is taken by an agency subject to the Freedom of Information Law [see §86(3)], a record must be prepared that indicates the manner in which each member who voted cast his or her vote.

            In terms of the rationale of §87(3)(a), it appears that the State Legislature in precluding secret ballot voting sought to ensure that the public has the right to know how its representatives may have voted individually concerning particular issues.  Although the Open Meetings Law does not refer specifically to the manner in which votes are taken or recorded, I believe that the thrust of §87(3)(a) of the Freedom of Information Law is consistent with the Legislative Declaration that appears at the beginning of the Open Meetings Law and states that:

"it is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy.  The people must be able to remain informed if they are to retain control over those who are their public servants."

Moreover, in an Appellate Division decision that was affirmed by the Court of Appeals, it was found that "The use of a secret ballot for voting purposes was improper."  In so holding, the Court stated that:  "When action is taken by formal vote at open or executive sessions, the Freedom of Information Law and the Open Meetings Law both require open voting and a record of the manner in which each member voted [Public Officers Law §87[3][a]; §106[1], [2]" Smithson v. Ilion Housing Authority, 130 AD 2d 965, 967 (1987); aff'd 72 NY 2d 1034 (1988)].

            There is nothing in either the Freedom of Information or Open Meetings Laws that specifies that a vote must be accomplished by means of a roll call or that a vote be “announced exactly at the same time it is cast.”  In my view, so long as a record is prepared that indicates the manner in which each member cast his or her vote, an entity would be acting in compliance with the open vote requirements imposed by those statutes.

            While the record of votes by members ordinarily is included in minutes, there is no requirement that it be included in minutes.  Although such a record must be prepared and made available, the Court of Appeals has held that such a record may be maintained separate from the minutes [Perez v. City University of New York, 5 NY3d 522, 530 (2005)].

            Lastly, attached to your letter is an editorial that appeared in Newsday on August 25 critical of a change the Legislature’s rules regarding the presiding officer’s votes in committees.  According to the commentary, “His vote counts to get the bill out of committee, but his presence doesn’t count to increase the number of votes needed for a majority.”  The new provision, in my opinion, is contrary to a state statute, §41 of the General Construction Law, entitled “Quorum and majority.” 
The new provision in the Legislature’s rules states that:

“Legislation laid on the table shall be placed on the agenda for consideration by the full Legislature at its next regularly scheduled meeting and shall be eligible for a vote by the full Legislature only if it has been discharged, with or without recommendation, by a majority of the members present and voting and the number of those present and voting to discharge equals in number at least a majority of the entire membership of the Legislative committee to which it has been assigned[, with or without recommendation].  For purposes of this rule, the term ‘entire membership of the Legislative committee’ shall mean the members appointed to the committee by the Presiding Officer and shall not include the Presiding Officer acting in his or her  ex-officio capacity.  The ‘entire membership of the Legislative committee’ shall not increase when the Presiding Officer votes at a committee meeting in his or her ex-officio capacity.  For the purposes of this rule, the term ‘members present and voting’ shall include members casting an abstention” (emphasis included in the text sent).

A quorum, unless specific direction is provided by statute to the contrary, is, according to §41 of the General Construction Law, a majority of the total membership of a public body.  Section 41 was amended in 2000 to authorize the presence of a quorum and the taking of action by public bodies by means of videoconferencing and states that:

“Whenever three of more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of the whole number of such persons or officers, gathered together in the presence of each other or through the use of videoconferencing, at a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board of body, or at any duly adjourned meeting of such meeting, or at any meeting duly held upon reasonable notice to all of them, shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty.  For the purpose of this provision the words 'whole number' shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting."

Based on the provision quoted above, a valid meeting may occur only when a majority of the total membership of a public body, a quorum, has “gathered together in the presence of each other or through the use of videoconferencing.”  A majority of the members present, unless all are present, would not constitute a quorum.  Only when a quorum has convened in the manner described in §41 of the General Construction Law would a public body have the authority to carry out its powers and duties.  Moreover, §41 specifies that those powers and duties can only be carried out by means of action approved by “not less than a majority of the whole number.”

            The new rule also contains an inconsistency involving the role of the Presiding Officer.  In one sentence, the rule indicates that the Presiding Officer acting in his or her ex officio capacity is not included as part of the “entire membership of the Legislative committee”, but in the next, the rule provides that “The ‘entire membership of the Legislative committee’ shall not increase when the Presiding Officer votes at a committee meeting in his or her ex officio capacity.”  In my view, an ex officio member of a entity is a member for all purposes relating to the powers and duties of that entity.  That person must in my opinion be included within requirements concerning the presence of a quorum and must be counted as a member when a committee takes action.  If my contention is accurate, the presence of that person would alter the meaning of the “entire membership of the Legislative committee”, and could alter the number of votes needed to take action.  Again, to comply with a state statute, that number cannot be less than a majority of the total membership of the committee.

            In an effort to enhance understanding of and compliance with law, a copy of this response will be sent to the County Legislature.

            I hope that I have been of assistance.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

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