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OML-AO-4757

May 4, 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 in which you sought an “interpretation of the Open Meetings Law as it applies to the meetings of the Task Force created by Section 50-b of the Workers’ Compensation Law.”

            Section 50-b established a task force on group self-insurance that includes a specific membership and whose chair is appointed by the Governor.  Its statutory obligation involves the preparation of a report to the Governor, the Speaker of the Assembly and the Temporary President of the Senate consisting of recommendations concerning:

“1.  the prevention of future defaults by group self-insurers;

 2.  regulation of group self-insurers and its impact and effectiveness;

 3.  payment of claims insured by defaulted group self-insurers;

 4.  the long term viability of group self-insurers; and

 5.  such other topics related to group self-insurers as the task force may deem necessary.”

Although the statute specifies that the report containing the recommendations of the Task Force was required to be submitted by February 1 of this year, you wrote that appointments to the Task Force were not made with sufficient time to do so, and that it has scheduled several meetings yet to be held.

            In this regard, the Open Meetings Law is applicable to 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."

            As you may be aware, 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 the decisions cited above, none of the entities were created by statute to carry out a particular duty and all had purely advisory functions.  More analogous to the matter in my view is the decision rendered in MFY Legal Services v. Toia [402 NYS 2d 510 (1977)].

            When an entity is a statutory creation whose existence is preceded by approval of its existence by the Senate and the Assembly and final approval by the Governor, when it has specific statutory duties that must be accomplished, when it has two or more members, and when it can act only by means of a quorum, it is my opinion, and I believe that a court would concur, that such an entity constitutes a “public body” required to give effect to the Open Meetings Law.  It is noted that §41 of the General Construction Law pertains to quorum requirements and states in relevant part 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” (emphasis mine), those persons or officers may do so only by means of a quorum, a majority of the total membership of an entity, and that any such duty may be approved only by means of an affirmative vote of a majority of a majority of the total membership.

            In my opinion, in consideration of the statutory charge imposed upon the Task Force, which totals fifteen members (public officers and others representing particular entities), and the obligation to conduct public business by means of a quorum, the Task Force constitutes a public body subject to the Open Meetings Law.

            In brief, that statute is based on a presumption of openness.  Stated differently, meetings of public bodies must be preceded by notice given in accordance with §104 of the Open Meetings Law and conducted open to the public, except to the extent that an executive session may be held pursuant to §105(1).  Paragraphs (a) through (h) of that provision specify and limit the grounds for entry into executive session.  As I understand the duties of the Task Force, it is unlikely that any of those grounds would be pertinent or applicable as a basis for excluding the public from its meetings.

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

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

RJF:jm

cc: Patrick Cremo