January 2, 2009
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.
As you are aware, I have received your letter concerning the status of local advisory councils created pursuant to Part 341 of the regulations promulgated by the Commissioner of what had been known as the Department of Social Services (18 NYCRR). Please accept my apologies for the delay in response.
The regulations, which have the force and effect of law, indicate in §341.1 that each social services district “shall establish an advisory council” that must consist of a minimum of twenty members and include recipients of public and medical assistance, providers of social services, medical services and domiciliary care, and members of the general public, including representatives of various specified groups whose functions relate to social services. An advisory council “shall be involved, in an advisory capacity only, in policy development, program planning and program evaluation....with respect to public assistance, medical assistance and services.” Section 342 requires the commissioner of a social services district to “have administrative responsibility for organization of meetings of the advisory council on a regular basis and for activities associated therewith including preparation of agendas, minutes and reports.” In addition, §342 requires that a social services district “submit to the department [the state agency that oversees social services districts] such reports on the activities of the advisory council as the department may from time to time direct.”
In this regard, the Open Meetings Law is applicable to meetings of public bodies, and §102(2) of that statute 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."
Judicial decisions indicate generally that advisory bodies having no power to take final action, other than committees consisting solely of members of public bodies, 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" [Goodson-Todman Enterprises, Ltd. v. Town Board of Milan, 542 NYS 2d 373, 374, 151 AD 2d 642 (1989); Poughkeepsie Newspapers 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 this instance, however, although a local advisory council may or may not have the ability to make determinations, it is a creation of law that has a permanent existence, it performs functions in the development of policy and programs in particular areas of social services.
In the decisions cited earlier, none of the entities were designated by law to carry out a particular duty and all had purely advisory functions. More analogous to the status of local advisory councils is the decision rendered in MFY Legal Services v. Toia [402 NYS 2d 510 (1977)]. That case involved an advisory body created by law to advise the Commissioner of the State Department of Social Services.
Perhaps most significant is a decision rendered by the Court of Appeals, the state’s highest court, in which it was found that:
“In determining whether an entity is a public body, various criteria and benchmarks are material. They include the authority under which the entity was created, the power distribution or sharing model under which it exists, the nature of its role, the power it possesses and under which it purports to act, and a realistic appraisal of its functional relationship to affected parties and constituencies.
“This Court has noted that the powers and functions of an entity should be derived from State law in order to be deemed a public body for Open Meetings Law purposes (see, Matter of American Socy. for Prevention of Cruelty to Animals v Board of Trustees of State Univ. of N.Y., 79 NY2d 927, 929). In the instant case, the parties do not dispute that CUNY derives its powers from State law and it surely is essentially a public body subject to the Open Meetings Law for almost any imaginable purpose...
“It may be that an entity exercising only an advisory function would not qualify as a public body within the purview of the Open Meetings Law...More pertinently here, however, a formally chartered entity with officially delegated duties and organizational attributes of a substantive nature, as this Association, Inc. enjoys, should be deemed a public body that is performing a governmental function (compare, Matter of Syracuse United Neighbors v. City of Syracuse, 80 AD2d 984, 985, appeal dismissed 55 NY2d 995)” [Smith v. CUNY, 92 NY2d 707; 713-714 (1999)].
In sum, because a local advisory council is a creation of law, is required by law to include representation from particular aspects of those involved in social services, and is authorized to perform particular functions, based on the direction of judicial decisions, it would appear that such an entity constitutes a “public body” required to comply with the Open Meetings Law.
I hope that I have been of assistance.
Robert J. Freeman