OML-AO-4823 September 29, 2009
FROM: Robert J. Freeman, Executive Director
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 concerning a charter school board and the application of the Open Meetings Law. For purposes of clarity, such a board may be referenced in this response as a “public body”, for it is treated in that manner by the Education Law, §2854(1)(e).
First, in the case of a board consisting of twelve members, you asked whether a gathering of two members “to talk about issues concerning the school, without making any decisions”, would constitute a “meeting” subject to the Open Meetings Law. Based on the definition of “meeting” in §102(1) of that statute, a meeting is a gathering of a quorum of a public body, a majority of its total membership, for the purpose of conducting public business. If a board consists of twelve, a quorum would be seven, and any gathering of less than seven members would fall outside the coverage of the Open Meetings Law. During a gathering of less than quorum, there is no limitation on the ability to discuss issues concerning the school.
In a related vein, §102(3) of the Open Meetings Law defines the phrase “executive session” to mean a portion of a meeting during which the public may be excluded. To conduct an executive session, §105(1) requires that a motion be made to do so during an open meting and carried by a majority vote of a public body’s total membership. That being so, a quorum must be present in order to conduct a meeting or an executive session.
Next, the definition of “meeting” coupled with other elements of the Open Meetings Law make clear that a meeting may be held by means of videoconferencing, whereby the members of a public body may conduct public business and the public may attend, listen and observe a meeting in more than one location. Concurrently, it is clear due to those provisions as well as judicial decisions that a member of a public body cannot be counted for purposes of a quorum or vote through the use of a phone [see e.g., Town of Eastchester v. NYS Board of Real Property Services, 23 AD3d 484 (2005)], for the public, as you suggested, cannot see or observe a member in that circumstance.
Lastly, based on §105(2), only the members of a public body have the right to attend an executive session. However, that body may authorize the attendance of others. Therefore, a person who is the subject of a discussion may be invited to attend an executive session, but he/she has no right to do so.
I hope that I have been of assistance.