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OML-AO-4727

February 18, 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.

Dear :

I have received your letter and appreciate your interest in compliance with law. You included the language of portions of the Village code of the Village of Lawrence, and based on a review of those provisions, I believe that several are inconsistent with state statutes and are invalid. In this regard, I offer the following comments.

It is noted at the outset that §110 of the Open Meetings Law, entitled “Construction with other laws”, pertains to the relationship between that statute and other provisions. Subdivision (1) states that:

"Any provision of a charter, administrative code, local law, ordinance, or rule or regulation affecting a public body which is more restrictive with respect to public access than this article shall be deemed superseded hereby to the extent that such provision is more restrictive than this article."

Based on the foregoing, a village board or other public body could not adopt a provision that is more restrictive with respect to public access than the Open Meetings Law. Again, any such provision would be “deemed superseded” by the Open Meetings Law.

Language that you highlighted states that: “Meetings of the Board need not be public unless the Board so determines.” That provision is, in my opinion, clearly more restrictive than the Open Meetings Law. A “meeting”, according to §102(1) of that statute and judicial interpretations, includes any gathering of a majority, a quorum, of a public body for the purpose of conducting public business, even if there is no intent to take action, and irrespective of the characterization of the gathering [see e.g., Orange County Publications v. City of Newburgh, 60 AD2d 409, aff’d 45 NY2d 947 (1978)]. Further, §103 requires that meetings of public bodies, such as a village board of trustees or a zoning board of appeals, are open to the general public and must be preceded by notice given to the public by means of posting and to the news media pursuant to §104. Perhaps most importantly, the Open Meetings Law is based on a presumption of openness. Stated differently, meetings of public bodies must be conducted open to the public unless there is a basis for entry into executive session. Paragraphs (a) through (h) of §105(1) of the Law specify and limit the grounds for conducting an executive session. In short, a public body cannot engage in closed or executive sessions to discuss the subjects of its choice, for the Open Meetings Law details the subjects that may properly be discussed in private.

Another provision that you highlighted pertains to the Zoning Board of Appeals and states that: “All meetings of the Board of Appeals, except for the purpose of deliberation, shall be public.” Although the deliberations of zoning boards of appeals for a time had been exempt from the coverage of the Open Meetings Law, that has not been so for more than twenty-five years. By way of historical background, numerous problems and conflicting interpretations arose under the Open Meetings Law as originally enacted with respect to the deliberations of zoning boards of appeals. In §108(1), the Law had exempted from its coverage "quasi-judicial proceedings". When a zoning board of appeals deliberated toward a decision, its deliberations were often considered "quasi-judicial" and, therefore, outside the requirements of the Open Meetings Law. As such, those deliberations could be conducted in private. Nevertheless, in 1983, the Open Meetings Law was amended. In brief, the amendment to the Law indicates that the exemption regarding quasi-judicial proceedings may not be asserted by a zoning board of appeals. As a consequence, zoning boards of appeals are required to conduct their meetings pursuant to the same requirements as other public bodies subject to the Open Meetings Law.

Lastly, the Village code as it pertains to the Board of Appeals states that “The concurring vote of a majority of the members present shall be necessary for a decision.” Relevant in relation to the quoted language is section 41 of the General Construction, entitled “Quorum and majority”, which was enacted in 1909. The cited provision states that:

"Whenever three or 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 upon the language quoted above, a quorum is a majority of the total membership of a public body, notwithstanding absences or vacancies. Further, in order to carry a motion or take action, there must be an affirmative vote of a majority of the total membership. Therefore, if a public body consists of seven members, four affirmative votes would be needed to approve a motion, even if as few as four members are present.

I hope that I have been of assistance. Should additional questions arise, please feel free to contact me.

Sincerely,

Robert J. Freeman
Executive Director
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