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OML-AO-4801

August 25, 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

We are in receipt of your request for an advisory opinion concerning application of the Open Meetings Law to certain proceedings of the Germantown Town Board.  Your questions concern the authority and ability of Board members to amend minutes, and the formalities associated therewith.  In this regard, we offer the following comments.

            We believe that four provisions of law are pertinent to the matter. First, §106 of the Open Meetings Law deals with minutes and under that statute, it is clear that minutes need not consist of a verbatim account of what is said. Rather, at a minimum, minutes must consist of a record or summary of motions, proposals, resolutions, action taken and the vote of each member.

Second, subdivision (1) of §30 of the Town Law states in relevant part that the town clerk "shall attend all meetings of the town board, act as clerk thereof, and keep a complete and accurate record of the proceedings of each meeting".  As such, except in unusual circumstances, the town clerk has the sole responsibility to prepare the minutes.

Third, subdivision (1) of §30 of the Town Law provides that the clerk "shall have such additional powers and perform such additional duties as are or hereafter may be conferred or imposed upon him by law, and such further duties as the town board may determine, not inconsistent with law".  And fourth, §63 of the Town Law states in part that a town board "may determine the rules of its procedure".

In our opinion, inherent in each of the provisions cited is an intent that they be carried out reasonably, fairly, with consistency, and that minutes be accurate.

More specifically, §106 of the Open Meetings Law provides that:

"1. Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon.

2. Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter.

3. Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meetings except that minutes taken pursuant to subdivision two hereof shall be available to the public within one week from the date of the executive session."

Based on the foregoing, minutes need not consist of a verbatim account of everything that was said; on the contrary, so long as the minutes include the kinds of information described in §106, we believe that they would be appropriate and meet legal requirements. Most importantly, we believe that minutes must be accurate. Alteration of minutes in a manner that does not accurately reflect what occurred or what was said at a meeting, would, in our view, be inconsistent with law.

In good faith, we point out that in an opinion issued by the State Comptroller, it was advised that when a member of a board requests that his statement be entered into the minutes, the board must determine, under its rules of procedure, whether the clerk should record the statement in writing, which would then be entered as part of the minutes (1980 Op.St.Comp. File #82-181). Despite that opinion, it is unclear from our perspective whether a board has the authority to compel a clerk to include information in minutes beyond the requirements of the Open Meetings Law. It is unlikely in our view that a town board has the authority to require the exclusion of information from minutes of an open meeting that is accurate.

Additionally, we do not believe that a member of the board may unilaterally alter or direct that minutes be altered. That person is one among five members; in our view, minutes may be amended only pursuant to action taken by a majority of vote of the total membership of a town board. Moreover, as suggested earlier, any such alteration must accurately reflect what transpired at a meeting.

            The timing of the distribution of minutes to the entire board, in our opinion, would be a policy issue for the board to resolve.  Clearly, the Open Meetings Law requires that minutes be prepared and available within two weeks of the date of the meeting; however, there is no statutory requirement regarding dissemination of minutes to the board.  Similarly, while the Open Meetings Law requires that every action be recorded in the minutes, there is no requirement that each decision be made with the formality suggested by Roberts Rules of Procedure.

            On behalf of the Committee on Open Government we hope that this is helpful to you.

                                                                                                Sincerely,

 

                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director

 

CSJ:jm

cc: Town Board