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OML-AO-4895

                                                                                                April 20, 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

            In follow up to our telephone conversation on Monday, April 12, and in response to your email submission from April 13, 2010, we offer the following clarification regarding requirements for notifying the public of the start of a meeting of a public body, such as the Northport-East Northport School District Board of Education.

            First, staff of the Committee on Open Government, including the Executive Director, Robert Freeman, and myself, are authorized to prepare advisory opinions regarding application of the Open Meetings Law, but only a court can determine whether there has been a “violation” of the Law.  Accordingly, we offer our opinions in an effort to provide assistance and guidance to achieve greater compliance with the Law.

            Second, the Open Meetings Law pertains to meetings of public bodies, and §102(1) of the Open Meetings Law defines the term "meeting" to mean "the official convening of a public body for the purpose of conducting public business". It is emphasized 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 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)].

            Third, §104 of the Open Meetings Law pertains to notice of meetings of public bodies, such as a board of education, 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.”

Almost one year ago, 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:  one, that notice must be posted in one or more conspicuous, public locations; two, that notice must be given to the news media; and three, that notice must be conspicuously posted on the body’s website, when there is an ability to do so. 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 consistently and regularly be posted. If, for instance, a bulletin board located at the entrance of a school district’s offices 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 of a school board will be held.  Similarly, every public body with the ability to do so must post notice of the time and place of every meeting online. 

            Our review of the “Calendar of Board Meetings 2008-2009 and 2009-2010” does not include reference to the times of the meetings indicated on the schedule.  Minutes from the July 6, 2009 Annual Organizational Meeting indicate that the Board adopted a schedule of meetings for 2009-2010 at its May 11, 2009 meeting, and our review of minutes from the May 11, 2009 meeting indicate that a schedule was adopted, but no start time is noted.  Similarly, minutes from the 2008 organizational meeting indicate that a schedule of meetings was adopted at the May 12, 2008 meeting.  However, our review of the minutes from the May 2008 meeting reveals no indication of the start time for such meetings nor the adoption of a calendar of meetings.

            Accordingly, based on the above, it is our opinion that the Board has failed to provide notice of the time of its regular meetings in keeping with the requirements of §104 of the Open Meetings Law.  In order to comply with the various provisions of the Open Meetings Law, the Board should (1) designate one or more physical locations at which it will post notice of the time and place of its meetings, (2) timely post notice of its meetings at such designated location, (3) send notice of the time and place of its meetings to the news media, and (4) conspicuously post notice of the time and place of its meetings on the Board’s website.  It is customary to designate the physical location for posting notice at the annual meeting; however, it can be accomplished at any meeting. 

            In the context of your inquiry, if a series of meetings have been scheduled in advance to be held at particular times, the posting of a notice of a schedule of those meetings in a conspicuous public location and transmittal of that notice once to the news media would in our view satisfy §104 of the Open Meetings Law regarding those meetings. The only instances in which additional notice would be required would involve unscheduled meetings that are not referenced in the notice.

            Therefore, if, for instance, the Board of Education establishes at its organizational meeting that formal meetings will be held on the first and third Monday of every month at 6:30 p.m. at the High School, and if notice containing that information is posted on a bulletin board and on the website continuously and transmitted once to the local news media, we believe that the Board would satisfy the notice requirements imposed by the Open Meetings Law. Again, the only additional notice would involve unscheduled meetings. We point out, too, that although notice of meetings must be given to the news media, there is no requirement that the news media print or publicize that a meeting will be held.

            With respect to your specific question regarding meetings on January 28 and March 2, 2010, we note that the Board was required to provide notice of those meetings as outlined in §104 of the Open Meetings Law.

            Email notification of upcoming meetings to a list of email addresses, in our opinion, is one way for a public body to provide notification of its meetings to the public; however, it does not fulfill any of the “notice” requirements contained in §104, nor is it required by the Open Meetings Law. 
With respect to your questions regarding executive sessions, to the extent that the Board enters into executive session after convening its public meeting, we believe such actions are in keeping with the requirements of the Open Meetings Law, as outlined in our opinion of April 9, 2010.

            With regard to your questions concerning notice of executive sessions, please note that there
are no separate statutory requirements for notice of executive sessions.  Notice provisions outlined in §104, above, pertain to public meetings, and all executive sessions must be held during the course of a meeting, as outlined in our previous opinion.

            Finally, with respect to your specific question regarding whether the 72 hour “notice” requirement is considered to be calculated in terms of business days or calendar days, we believe that notice must be posted in a conspicuous designated physical location 72 actual hours before the meeting.  Again, for notice to be "conspicuously" posted, we believe that it must be posted at a location or locations where those who may be interested in attending meetings have a reasonable opportunity to see the notice. If, for instance, a bulletin board located at the entrance of a school district’s high school or administrative offices has been designated as a location for posting notices of meetings, but access to the bulletin board is prohibited over the weekend, in our opinion, posting notice of a Monday night meeting on the bulletin board on the previous Friday night would not meet the 72 hour requirement.  Further, it is our opinion that posting an agenda with a start time for a Board meeting online one or two days prior to the Board meeting, or posting an agenda online on the day of the Board meeting is insufficient for purposes of meeting either the physical or internet posting requirements in the Law because it is neither conspicuous nor gives 72 hours prior to the meeting.

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

                                                                                                Sincerely,

 

                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director

CSJ:jm

cc:  Beth M. Nystrom, District Clerk
John H. Gross