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OML-AO-4888

April 7, 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, except as otherwise indicated.

Dear

This is in response to your request for an advisory opinion regarding application of the Open Meetings Law to a gathering of three of the five Hartsville Town Councilmembers.  Specifically, and among other items of information, you indicated that two Councilmembers, registered Democrats, met in caucus with the Supervisor, a registered Republican.  Immediately following the “caucus”, a resolution to decrease the salary of the Highway Superintendent was passed by the three who attended, and you allege that discussion of the resolution was held during the caucus. 

In consideration of the issue, Councilperson Parini wrote that at the time of the caucus the Supervisor was a registered Republican who “ran on the Democratic Party ballot” with an endorsement from herself and the other Democratic Councilperson.  She further indicated that she had attended a conference held by the Association of Towns, at which time she had received advice that it would be “no problem” to invite a registered Republican into a Democratic caucus because he had run on the Democratic ballot.

In this regard, by way of background, the definition of "meeting" [Open Meetings Law, §102(1)] has been broadly interpreted by the courts. In a landmark decision rendered in 1978, the Court of Appeals found that any gathering of a majority of a public body for the purpose of conducting public business is a "meeting" that must be conducted open to the public, whether or not there is an intent to have 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 AD2d 409, aff'd 45 NY2d 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, such as "agenda sessions," held for the purpose of discussion, but without 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, when a majority of a town council is present to discuss town business, such a gathering, in our opinion, would ordinarily constitute a "meeting" subject to the Open Meetings Law, unless the meeting or a portion thereof is exempt from the Law.

With respect to the ability to exclude the public, the Open Meetings Law provides two vehicles under which a public body may meet in private. One is the executive session, a portion of an open meeting that may be closed to the public in accordance with §105 of the Open Meetings Law. The other arises under §108 of the Open Meetings Law, which contains three exemptions from the Law. When a discussion falls within the scope of an exemption, the provisions of the Open Meetings Law do not apply.

Section 108(2)(b), exempting political caucuses, states that:

"for purposes of this section, the deliberations of political committees, conferences and caucuses means a private meeting of members of the senate or assembly of the state of New York, or the legislative body of a county, city, town or village, who are members or adherents of the same political party, without regard to (i) the subject matter under discussion, including discussions of public business, (ii) the majority or minority status of such political committees, conferences and caucuses or (iii) whether such political committees, conferences and caucuses invite staff or guests to participate in their deliberations..."

Based on the foregoing, in general, either the majority or minority party members of a legislative body may conduct closed political caucuses, either during or separate from meetings of the public body.

            Consistent with the decision in Warren v Giambra, 12 Misc3d 650, 813 NYS2d 892 (Erie Cty, 2006), it is our view that if the Democratic members who serve on the Council gather to discuss public business with a Republican member, because there would be members of two political parties present, the gathering cannot be characterized as a political caucus that is exempt from the Open Meetings Law.  On the contrary, if there was a quorum of the Town Council present, and the discussion pertained to public business, that kind of gathering in our opinion would constitute a "meeting" subject to the Open Meetings Law.

Consistent with the statutory language, a political caucus by definition is restricted to members or adherents of a single political party. Webster’s New Collegiate Dictionary defines caucus as:

"a closed meeting of a group of persons belonging to the same political party or faction usu. to select candidates or to decide on policy."

In Warren, supra, the court held that, “Given the presence of the County Executive [a Republican], the private assembly of the Democratic majority of the County Legislature was not an exempt political caucus.”  Accordingly, if the gathering described in your letter and the article were attended by council members from two political parties, we do not believe that one of those members could be characterized as a "guest" or that such gathering could be described as a political caucus exempt from the Open Meetings Law.

In a variety of decisions, the courts have determined that provisions authorizing the exclusion of the public from meetings of public bodies should be construed narrowly.  Notable in the context of the situation described is Buffalo News v. Buffalo Common Council [585 NYS2d 275 (1992), which involved the interpretation of the exemption regarding political caucuses, the court concentrated on the expressed legislative intent appearing in §100 of the Open Meetings Law, stating that: "In view of the overall importance of Article 7, any exemption must be narrowly construed so that it will not render Section 100 meaningless" (id., 278).

We believe that this decision indicates that, in consideration of the intent of the Open Meetings Law, the exemption concerning political caucuses should be narrowly construed.  Based on its intent, if members registered to distinct political parties, constituting a majority of a public body, gather to discuss public business, again, it is our view that the gathering is no longer a political caucus, but rather a "meeting."  The decision continually referred to the term "meeting" and the deliberative process, and the language of the decision in many ways is analogous to that of the Appellate Division in Orange County Publications, supra.  Specifically, it was stated in Buffalo News that:

"The Court of Appeals in Orange County (supra) also declared:  'The purpose and intention of the State Legislature in the present context are interpreted as expressed in the language of the statute and its preamble.'  The legislative intent, therefore, expressed in Section 108, must be read in conjunction with the Declaration of Legislative Policy of Article 7 as set forth in its preamble, Section 100.

"It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants.  It is the only climate under which the commonwealth will prosper and enable the governmental process to operate for the benefit of those who created it" (id., 277).

Lastly, with respect to the ballot issue, we contacted the State Board of Elections and were directed to Election Law §6-102(4), which permits one political party to vote to allow a member of another political party to run on the same ballot.  This provision does not require a candidate to change political party affiliation for election purposes, and further, we know of no law that would convert a person’s party registration, temporarily or otherwise, upon receiving such permission or obtaining public office in this manner. Accordingly, it remains our opinion that a gathering of members of two or more political parties to discuss public business, constituting a majority of the members of a public body such as the town board, would constitute a “meeting” subject to the Open Meetings Law. 

On behalf of the Committee on Open Government, we hope that this is helpful.

Sincerely,

 

Camille S. Jobin-Davis
Assistant Director

CSJ:jm

cc: Hon. Madeline E. Parini
Hon. Zena Andrus
Lori Mithen, Association of Towns