December 22, 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, unless otherwise indicated.
I have received your letter and hope that you will accept my apologies for the delay in response.
You wrote that you are employed by the Smithtown Special Library District and that you sought to attend a meeting of the Library’s Buildings & Grounds Committee. The Committee is “comprised of 3 Library Board members and the Library Director”, and you were informed that it is not subject to the Open Meetings Law.
Based on a review of the Library’s by-laws, the language of the Open Meetings Law, and its judicial interpretation, I believe that the Committee is required to comply with that statute and that the public has the right to attend its meetings. In this regard, I offer the following comments.
First, having reviewed the Library’s by-laws, the Library Director is not a member of the Committee. Article V of the by-laws entitled “Committees” states in §1.h. that “The Library Director or his/her designee shall attend all committee meetings and may take part in deliberations but shall have no vote.” Section 2.b.i. of Article 5 entitled “Standing Committees” provides as follows: “Composition: Three (3) Board members.” Therefore, the committee that is the subject of your inquiry consists of three Board members; the Library Director, although authorized to join in committees’ deliberations, is not a member of committees.
Second, when a committee consists solely of members of a public body, such as the Board of Trustees of a library district, the Open Meetings Law is applicable.
By way of background, when the Open Meetings Law went into effect in 1977, questions consistently arose with respect to the status of committees, subcommittees and similar bodies that had no capacity to take final action, but rather merely the authority to advise. Those questions arose due to the definition of "public body" as it appeared in the Open Meetings Law as it was originally enacted. Perhaps the leading case on the subject also involved a situation in which a governing body, a school board, designated committees consisting of less than a majority of the total membership of the board. In Daily Gazette Co., Inc. v. North Colonie Board of Education [67 AD 2d 803 (1978)], it was held that those advisory committees, which had no capacity to take final action, fell outside the scope of the definition of "public body".
Nevertheless, prior to its passage, the bill that became the Open Meetings Law was debated on the floor of the Assembly. During that debate, questions were raised regarding the status of "committees, subcommittees and other subgroups." In response to those questions, the sponsor stated that it was his intent that such entities be included within the scope of the definition of "public body" (see Transcript of Assembly proceedings, May 20, 1976, pp. 6268-6270).
Due to the determination rendered in Daily Gazette, supra, which was in apparent conflict with the stated intent of the sponsor of the legislation, a series of amendments to the Open Meetings Law was enacted in 1979 and became effective on October 1 of that year. Among the changes was a redefinition of the term "public body". "Public body" is now defined in §102(2) to include:
"...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."
Although the original definition made reference to entities that "transact" public business, the current definition makes reference to entities that "conduct" public business. Moreover, the definition makes specific reference to "committees, subcommittees and similar bodies" of a public body.
In view of the amendments to the definition of "public body", I believe that any entity consisting of two or more members of a public body, such as a committee, a subcommittee or “similar body” consisting of members of the Board of the Library District, would fall within the requirements of the Open Meetings Law when such an entity discusses or conducts public business collectively as a body [see Syracuse United Neighbors v. City of Syracuse, 80 AD 2d 984 (1981)]. A quorum of a public body is a majority of its total membership (see General Construction Law, §41). Therefore, in a body consisting of seven, a quorum would be four. If that body designates a committee of three, a quorum of the committee would be two.
A committee subject to the Open Meetings Law must abide by the same requirements concerning openness, notice, and minutes, as well as the same ability to enter into executive session when appropriate to do so, as the governing body, the Board of Trustees. As you may be aware, meetings of public bodies must be conducted open to the public, except to the extent that there is a basis for entry into executive session. Paragraphs (a) through (h) of §105(1) of the Open Meetings Law specify and limit the grounds for entry into executive session.
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Trustees