March 30, 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 in which you raised several questions. As you may be aware, the Committee on Open Government is authorized to provide advice and opinions pertaining to the Open Meetings and Freedom of Information Laws. The questions relate largely to one issue, the ability of a majority of the members of the City Council to take action without informing and in the absence of other members. The matter arose when a memorandum was sent to “department heads informing them that the Mayor and City Council have asked Corporation Council [sic] to restructure the consultant agreement...”, which was “troublesome”, for you and another councilwoman “were not included in any discussion that would conclude in that decision.”
In this regard, I offer the following comments.
First, the Open Meetings Law is applicable to meetings of public bodies, and §102(2) of the Open Meetings Law defines the phrase “public body” 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."
Based upon the foregoing, it is clear in my view that a city council constitutes a “public body” subject to the Open Meetings Law.
Second, from my perspective, a public body may validly conduct a meeting or carry out its authority only at a meeting during which a majority of its members has physically convened or during which a majority has convened by means of videoconferencing, but only when reasonable notice is given to all of the members.
Third, as indicated earlier, the definition of the phrase “public body” refers to entities that are required to conduct public business by means of a quorum. The term "quorum" is defined in §41 of the General Construction Law, which has been in effect since 1909. The cited provision 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" (emphasis added).
Based on the foregoing, again, 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.” 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. Consequently, it is my opinion that a public body may not take action or vote unless reasonable notice is given to all the members. If that does not occur, even if a majority is present, I do not believe that a valid meeting may be held or that action may validly be taken.
I hope that I have been of assistance.
Robert J. Freeman
cc: City Council