March 10, 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.
I have received your letter and much appreciate your kind words. You enclosed a copy of a document given to you by a member of the Town Board that “appears to suggest that the Town Board can hold a Special Meeting whenever they want.” Further, he “interprets the attached to say that members of the Town Board can even waive the required written notice.” You have sought my opinion on the matter.
From my perspective, there are two statutes require notice, the Open Meetings Law, and §62 of the Town Law. Neither makes reference to a waiver of notice. In this regard, I offer the following comments.
Section 104 of the Open Meetings Law states that:
"1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before each meeting.
2. Public notice of the time and place of every other meeting shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.
3. The public notice provided for by this section shall not be construed to require publication as a legal notice.
4. If videoconferencing is used to conduct a meeting, the public notice for the meeting shall inform the public that videoconferencing will be used, identify the locations for the meeting, and state that the public has the right to attend the meeting at any of the locations.”
Stated differently, if a meeting is scheduled at least a week in advance, notice of the time and place must be given to the news media and to the public by means of posting in one or more designated public locations, not less than seventy-two hours prior to the meeting. If a meeting is scheduled less than a week an advance, again, notice of the time and place must be given to the news media and posted in the same manner as described above, "to the extent practicable", at a reasonable time prior to the meeting. Although the Open Meetings Law does not make reference to "special" or "emergency" meetings, if, for example, there is a need to convene quickly, the notice requirements can generally be met by telephoning or faxing notice of the time and place of a meeting to the local news media and by posting notice in one or more designated locations. In my opinion, the requirements imposed by the Open Meetings Law, which involve notice to the news media and to the public by means of posting, can never be waived.
Further, the judicial interpretation of the Open Meetings Law suggests that the propriety of scheduling a meeting less than a week in advance is dependent upon the actual need to do so. As stated in Previdi v. Hirsch:
"Whether abbreviated notice is 'practicable' or 'reasonable' in a given case depends on the necessity for same. Here, respondents virtually concede a lack of urgency: They deny petitioner's characterization of the session as an 'emergency' and maintain nothing of substance was transacted at the meeting except to discuss the status of litigation and to authorize, pro forma, their insurance carrier's involvement in negotiations. It is manifest then that the executive session could easily have been scheduled for another date with only minimum delay. In that event respondents could even have provided the more extensive notice required by POL §104(1). Only respondent's choice in scheduling prevented this result” [524 NYS2d 643, 645 (1988)].
As you are aware, §62 of the Town Law includes reference to special meetings of town boards. That provision pertains to notice to the members of a board and requires that written notice be given to the members not less than two days prior to a special meeting. That requirement is separate and distinct from the obligations concerning notice imposed by the Open Meetings Law. Specifically, §62 states in relevant part that:
“The supervisor of any town may, and upon written request of two members of the board shall within ten days, call a special meeting of the town board by giving at least two days notice in writing to members of the board of the time when and the place where the meeting is to be held.”
Like the Open Meetings Law, there is nothing in §62 that refers to or authorizes a waiver of notice. I am mindful of the opinions rendered by the Attorney General and the Comptroller advising that business may validly be conducted at a meeting held on less than two days written notice of the members of a town board, so long as all of the members had actual notice, attended and participated. If that is so, the members may waive the two day written notice requirement. However, I believe that a town board must in all instances comply with the notice requirements found in the Open Meetings Law, for those requirements are separate and distinct from that found in the Town Law. Further, because there is no reference to the ability to waive notice included in §62 of the Town Law, with due respect to the Attorney General and the Comptroller, it is questionable in my view whether a court would reach the same conclusion as they did in consideration of the clear and unequivocal language that statute.
I hope that I have been of assistance.
Robert J. Freeman