March 10, 2010
FROM: Camille S. Jobin-Davis, Assistant 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.
We are in receipt of your request for an advisory opinion regarding application of the Open Meetings Law to the organizational meeting of the Town of Hartwick on January 4, 2010. You expressed concern that the meeting was not properly noticed and might have been held in violation of the Open Meetings Law. Specifically, you indicated that the meeting was not held at a “normal listed meeting time”, posted on the Town’s web site, or advertised in the Town’s paper of record, and that the Town’s newspaper of record was not notified of the meeting time and place. The only notice of the meeting was posted on the front door of Town Hall, yet you wrote that notices are typically posted in the Town’s post office. In this regard, we offer the following comments.
Section 104 of the Open Meetings Law pertains to notice 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.”
Recently, 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: first, that notice must be posted in one or more conspicuous, public locations; second, that notice must be given to the news media; and third, that notice must be conspicuously posted on the public body’s website, when the ability to do so exists. 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 be posted on a consistent and regular basis. If, for instance, a bulletin board located at the entrance of a town hall 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 will be held. Similarly, every public body with the ability to do so must now 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. 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 organizational meetings should be given to news media organizations that were selected at the previous organizational meeting. Similarly, for notice to be "conspicuously" posted at a designated location, we believe that it should be posted at a location or locations previously selected, 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. Until or unless the designated location or the “newspaper of record” are changed through Board action, in our opinion, their designation would remain in effect.
On behalf of the Committee on Open Government, we hope that this is helpful.
cc: Town Board