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.
We are in receipt of your request for an advisory opinion concerning application of the Open Meetings Law to certain gatherings of Community Board 12 in Brooklyn and the New York City Board of Standards and Appeals. Specifically, you questioned what requirements there are for providing notices of meetings and hearings of such boards to the public. In this regard, we offer the following comments.
First, we note that there is a distinction between a "meeting" and a "hearing". The former involves a gathering of a majority of a public body for the purpose of conducting public business collectively, as a body. As such, meetings are ordinarily held for the purpose of discussion, deliberation, taking action and the like. A "hearing" typically is held to enable members of the public express their views on a particular subject, i.e., application for a variance, a change in zoning, etc. Hearings are usually required to be preceded by the publication of a legal notice. In contrast, §104(3) of the Open Meetings Law specifies that notice of a meeting must merely be "given" to the news media and posted. Further, there is no requirement that a newspaper, for example, publish a notice given regarding a meeting to be held under the Open Meetings Law.
Second, §104 of the Open Meetings Law pertains to notice of meetings of public bodies and 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 such 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.”
Earlier this year, the Legislature added subdivision (5), set forth as follows:
“5. When a public body has the ability to do so, notice of the time and place of a meeting given in accordance with subdivision one or two of this section, shall also be conspicuously posted on the public body’s internet website.”
Section 104 now imposes a three-fold requirement, one, that notice must be posted in one or more conspicuous, public locations; two, that notice must be given to the news media; and three, that notice must be conspicuously posted on the body’s website, when there is an ability to do so. The requirement that notice of a meeting be "posted" in one or more "designated" locations, in our opinion, mandates that a public body, by resolution or through the adoption of policy or a directive, select one or more specific locations where notice of meetings will consistently and regularly be posted. If, for instance, a bulletin board located at the entrance of a building in which a community board meets has been designated as a location for posting notices of meetings, the public has the ability to know where to ascertain whether and when meetings of a school board will be held. Similarly, every public body with the ability to do so should post notice of the time and place of every meeting online.
With respect to notice to the news media, subdivision (3) of §104 specifies that the notice given pursuant to the Open Meetings Law need not be legal notice. That being so, a public body is not required to pay to place a legal notice prior to a meeting; it must merely "give" notice of the time and place of a meeting to the news media. Moreover, when in receipt of notice of a meeting, there is no obligation imposed on the news media to publish the notice.
From our perspective, every law, including the Open Meetings Law, must be implemented in a manner that gives reasonable effect to its intent. In that vein, to give effect to intent of the Open Meetings Law, we believe that notice of meetings should be given to news media organizations that would be most likely to make contact with those who may be interested in attending. The Jewish Press, in our opinion, although a publication of widespread circulation, might not meet this description.
Similarly, for notice to be "conspicuously" posted, we believe that it must be posted at a location or locations where those who may be interested in attending meetings have a reasonable opportunity to see the notice, and made accessible on a municipal website through an obvious link.
We point out that a public body is only required to provide notice of the time and place of a meeting. There is nothing in the Open Meetings Law that requires that notice of a meeting include reference to the subjects to be discussed. Similarly, there is nothing in that statute that pertains to or requires the preparation of an agenda.
Although the notice requirements relating to meetings are prescribed in §104 of the Open Meetings Law, we are unaware of any single statute that contains general requirements concerning notices of hearings. Similarly, there are no general provisions of which we are aware that deal with other requirements for hearings. Different statutes impose different requirements with respect to hearings. For example, while zoning boards of appeals are required to hold hearings, procedural requirements for those hearings are separately imposed under Village Law (§7-712-a) and Town Law (§267-a). General Municipal Law requires hearings on planning issues under certain circumstances in multiple statutes, as does County Law, and each one of those statutes is unique. In short, the procedural and notice requirements for any particular hearing would be governed by provisions separate and apart from the Open Meetings Law.
On behalf of the Committee on Open Government we hope that this is helpful to you.
Camille S. Jobin-Davis
cc: Meenakshi Srinivasan, Chair, NYC Board of Standards and Appeals
Marty Markowitz, Brooklyn Borough President