From: Jobin-Davis, Camille (DOS)
Sent: Monday, October 05, 2009 4:14 PM
Subject: Open Meetings Law questions
As promised, the following are my responses to the two remaining questions. Please let me know if you have further questions.
#1: Are there situations in which committee and board chairpersons can negotiate matters without input from the entire board (i.e., meeting with other department heads or outside agency and business leaders)? When do chairs or mayors have the authority to negotiate without involving entire board at all times. Is there leeway – where?
There is nothing in the Open Meetings Law or related case law that I know of that addresses this
issue. In my experience, a public body may delegate the authority to negotiate on its behalf to one of its members by resolution; however, I believe that the authority to bind the agency would always rest with the public body. It appears to be common practice for a chair of a committee or an executive of an agency to meet with department heads or business leaders to attempt to shape agreements, but again, the final agreement would always be subject to approval by the public body.
If a representative of a public body were to meet with department heads or business representatives, because such gatherings would not involve a quorum of the public body, they would not be considered “meetings” subject to the requirements of the Open Meetings Law. Should a public body designate a committee to negotiate on its behalf, and the committee were made up solely of members of the public body, as mentioned in response to the first question, and the committee were to meet with department heads or with business representatives, such gatherings would be “meetings” subject to the Open Meetings Law.
#2: What repercussions are there for governments, regardless of level, that do not follow open
There are two types of enforcement remedies available through an Article 78 proceeding pursuant to the Open Meetings Law. The first pertains to the court’s authority to invalidate action taken at a meeting held in violation of the law, as follows:
"Any aggrieved person shall have standing to enforce the provisions of this article against a public body by the commencement of a proceeding pursuant to article seventy-eight of the civil practice law and rules, and/or an action for declaratory judgment and injunctive relief. In any such action or proceeding, the court shall have the power, in its discretion, upon good cause shown, to declare any action or part thereof taken in violation of this article void in whole or in part." OML §107(1).
However, the same provision states further that:
"An unintentional failure to fully comply with the notice provisions required by this article shall not alone be grounds for invalidating any action taken at a meeting of a public body."
As such, when a legal challenge is initiated relating to a failure to provide notice, a key issue is whether a failure to comply with the notice requirements imposed by the Open Meetings Law was "unintentional".
The second is the court’s discretionary authority to award costs and reasonable attorneys fees to the successful party.
In 2008, the Legislature amended §107(2) of the Open Meetings Law to include the following:
“If a court determines that a vote was taken in material violation of this article, or that substantial
deliberations relating thereto occurred in private prior to such vote, the court shall awards costs and reasonable attorney’s fees to the successful petitioner, unless there was a reasonable basis for a public body to believe that a closed session could properly have been held.”
This new mandatory award of attorney’s fees would apply only when secrecy is the issue. In other instances, those in which the matter involves compliance with other aspects of the Open Meetings Law, such as a failure to fully comply with notice requirements, the sufficiency of a motion for entry into executive session, or the preparation of minutes in a timely manner, the award of attorney’s fees by a court would remain discretionary.
Camille S. Jobin-Davis, Esq.
NYS Committee on Open Government
Department of State
99 Washington Ave, Suite 650
Albany NY 12231