March 5, 2010
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 regarding application of the Open Meetings Law to a meeting of the City of Oneida Common Council in January of 2010. You attached a copy of the agenda from the meeting, and a newspaper article that was apparently printed on the day of the meeting. The agenda stated that there was to be a “pre-meeting discussion” at 6 PM, and that a “regular meeting” would begin at 7 PM. The newspaper article indicated that the meeting would begin at 7 PM. You asked whether there are legal distinctions between pre-meetings and regular meetings, and whether, in our opinion, the “form of notice” was misleading. In this regard, we offer the following comments.
First, based on the judicial interpretation of the Open Meetings Law, there is no legal distinction between a “pre-meeting” and “regular meeting.”
By way of background, it is noted that the definition of "meeting" has been broadly interpreted by the courts. In a landmark decision rendered in 1978, the Court of Appeals, the state's highest court, found that any gathering of a quorum of a public body, such as a board of education, for the purpose of conducting public business is a "meeting" that must be convened open to the public, whether or not there is an intent to take action and regardless of the manner in which a gathering may be characterized [see Orange County Publications v. Council of the City of Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947 (1978)].
The decision rendered by the Court of Appeals was precipitated by contentions made by public bodies that so-called "work sessions" and similar gatherings held for the purpose of discussion, but without an intent to take action, fell outside the scope of the Open Meetings Law. In discussing the issue, the Appellate Division, whose determination was unanimously affirmed by the Court of Appeals, stated that:
"We believe that the Legislature intended to include more than the mere formal act of voting or the formal execution of an official document. Every step of the decision-making process, including the decision itself, is a necessary preliminary to formal action. Formal acts have always been matters of public record and the public has always been made aware of how its officials have voted on an issue. There would be no need for this law if this was all the Legislature intended. Obviously, every thought, as well as every affirmative act of a public official as it relates to and is within the scope of one's official duties is a matter of public concern. It is the entire decision-making process that the Legislature intended to affect by the enactment of this statute" (60 AD 2d 409, 415).
The court also dealt with the characterization of meetings as "informal," stating that:
"The word 'formal' is defined merely as 'following or according with established form, custom, or rule' (Webster's Third New Int. Dictionary). We believe that it was inserted to safeguard the rights of members of a public body to engage in ordinary social transactions, but not to permit the use of this safeguard as a vehicle by which it precludes the application of the law to gatherings which have as their true purpose the discussion of the business of a public body" (id.).
Based upon the direction given by the courts, if a majority of a public body gathers to discuss public business, any such gathering, in our opinion, would ordinarily constitute a "meeting" subject to the Open Meetings Law. Since a pre-meeting work session held by a majority of a public body is a “meeting”, it would have the same responsibilities in relation to notice and the taking of minutes as in the case of a formal meeting, as well as the same ability to introduce motions, to vote and to enter into executive sessions when appropriate .
With respect to your questions concerning proper notice, the Open Meetings Law requires that notice be given to the news media and posted prior to every meeting. Specifically, §104 of that statute provides 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.
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.”
Stated differently, if a meeting is scheduled at least a week in advance, notice of the time and place must be given to the news media and to the public by means of posting in one or more designated public locations and on the internet, not less than seventy-two hours prior to the meeting. If a meeting is scheduled less than a week an advance, again, notice of the time and place must be given to the news media and posted in the same manner as described above, "to the extent practicable", at a reasonable time prior to the meeting. Subsection (3) clarifies that publication of the time and place of a meeting as a legal notice is not required.
Finally, the Open Meetings Law makes no reference to agendas, and there is no law of which we are aware that requires that agendas be prepared or that they must be followed. To the extent that the City may have adopted by laws or rules of procedure that would govern is a matter beyond the jurisdiction of this office. Nevertheless, it is clear from the agenda that you submitted that the City met at 6 PM. While the newspaper article relayed accurate information concerning the “regular” meeting of the City Council, publishing a detailed agenda prior to a meeting is, in this case, more informative than not, and gives the public the ability to ascertain what portion of the meeting will contain discussions of interest. Had the City considered items listed on the agenda for 7 PM prior to 7 PM, or had the City taken action at 6 PM on items other than those listed on the 6 PM agenda, there may have been an issue of a misleading representation; however, those are not the facts alleged here.
On behalf of the Committee on Open Government, we hope that this is helpful.
Camille S. Jobin-Davis
cc: Hon. Sue Pulverenti