January 29, 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, and I hope that you will accept my apologies for the delay in response.
You have sought an advisory opinion concerning the status of committees of the Faculty Senate at the State University at Binghamton. The Faculty Senate, according to your letter, “is the University’s primary academic governance body, and is charged with the responsibility to formulate many of the institution’s academic policies” pursuant to the University’s Faculty by-laws. Those by-laws also “provide for the existence of various subsidiary committees of the Faculty Senate and require that actions of these committees be approved by the Faculty Senate as a whole...”
One of the subsidiary committees of the Faculty Senate is the University Undergraduate Curriculum Committee (UUCC), which “is charged to review and create proposals for University-wide curricular policies, and recommend Senate action on these matters.” You suggested that the Faculty Senate’s review of the UUCC’s reports is “perfunctory”, that during the period of 2004 -2008, the Faculty Senate approved “52 of 52" of the Committee’s reports, in most instances, “with minimal or no discussion prior to a vote lacking opposition.” Nevertheless, the Committee’s Chairperson has contended that the Committee’s functions are advisory and, therefore, that its meetings are not subject to the Open Meetings Law.
Based on the following analysis, I respectfully disagree.
By way of background, when the Open Meetings Law went into effect in 1977, questions consistently arose with respect to the status of committees, subcommittees and similar bodies that had no capacity to take final action, but rather merely the authority to advise. Those questions arose due to the definition of "public body" as it appeared in the Open Meetings Law as it was originally enacted. Perhaps the leading case on the subject also involved a situation in which a governing body, a school board, designated committees consisting of less than a majority of the total membership of the board. In Daily Gazette Co., Inc. v. North Colonie Board of Education [67 AD 2d 803 (1978)], it was held that those advisory committees, which had no capacity to take final action, fell outside the scope of the definition of "public body".
Nevertheless, prior to its passage, the bill that became the Open Meetings Law was debated on the floor of the Assembly. During that debate, questions were raised regarding the status of "committees, subcommittees and other subgroups." In response to those questions, the sponsor stated that it was his intent that such entities be included within the scope of the definition of "public body" (see Transcript of Assembly proceedings, May 20, 1976, pp. 6268-6270).
Due to the determination rendered in Daily Gazette, supra, which was in apparent conflict with the stated intent of the sponsor of the legislation, a series of amendments to the Open Meetings Law was enacted in 1979 and became effective on October 1 of that year. Among the changes was a redefinition of the term "public body". "Public body" is now defined in §102(2) to include:
"...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."
Although the original definition made reference to entities that "transact" public business, the current definition makes reference to entities that "conduct" public business. Moreover, the definition makes specific reference to "committees, subcommittees and similar bodies" of a public body.
In view of the amendments to the definition of "public body", I believe that any entity consisting of two or more members of a public body, such as a committee or subcommittee consisting of members of the Faculty Senate, which clearly appears to be a public body [see Perez v. City University of New York, 5 NY3d 922 (2003)], would fall within the requirements of the Open Meetings Law, assuming that a committee discusses or conducts public business collectively as a body [see Syracuse United Neighbors v. City of Syracuse, 80 AD 2d 984 (1981)].
I note that the decision cited above, Syracuse United Neighbors, dealt with two committees that were characterized as advisory. Nevertheless, the court considered their roles realistically and found that:
“While neither of the committees here usurp the powers of other municipal departments and their recommendations may be characterized as advisory only, in that they did not bind the common council or other city departments it is clear that their recommendations have been adopted and carried out without exception. To hold that they are not public bodies would be to exalt form over substance...To keep their deliberations and decisions secret from the public would be violative of the letter and spirit of the legislative declaration in section 95 [now section 100] of the Public Officers Law” (id., 985).
According to your letter, the reports of the UUCC have been adopted without alteration by the Faculty Senate for several years. Due to the similarity between the situation that you described and that described in passage quoted above, again, I believe that the UUCC constitutes a “public body” required to comply with the Open Meetings Law.
I hope that I have been of assistance.
Robert J. Freeman
cc: Sara A. Reiter