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From:   Jobin-Davis, Camille (DOS)
Sent:    Thursday, July 15, 2010 3:21 PM
Attachments:    flynn.pdf

Based on our conversation, I researched case law interpreting the definition of “public body”.  I believe the following two cases are most relevant to the situation that you described:

Smith v. CUNY, 92 NY2d 707 (1999) B
Association comprised of administrators, faculty members and students at community college
authorized to review proposed budgets, allocate student activity fees and disbursements
constitutes "public body" subject to the Open Meetings Law; performs "substantially more than advisory function", rather has "decision-making authority to implement its own initiatives"

Flynn v. Citizen Review Board, Supreme Court, Onondaga Cty.,  March 11, 1996 --
Citizens Review Board created by local law has subpoena power, but no authority to take final action.  In holding that it is covered by Open Meetings Law, court found that "The fact that a public body can only make recommendations or is an advisory board is not, in and of itself, the brightline test that the governmental organization is not a public body...Rather, the inquiry is directed to whether the body has been endowed with some governmental function.  The essence of a governmental function is whether the body has the 'right to exercise some part of the power of the sovereign'", i.e., conducting investigations and issuing subpoenas.  Court advised that the CRB in the future "consult with" the Committee on Open Government and criticized it for failing to utilize "the free resources provided by the State", wasting time and "incurring needless litigation costs."  Held that actions taken in violation of Open Meetings Law invalid.

Flynn, is unreported – I’ve attached a copy.

Further, and based on the above case law, I agree, when a committee has been granted authority to act on a public body’s behalf, the committee is a public body itself.  Whether the authority was implicitly or explicitly delegated to the committee, if the committee behaves as if it has such authority, in my opinion, it is subject to the Open Meetings Law.  Until or unless the committee’s authority to behave on behalf of a public body is clarified, in my opinion if it behaves as if it has such authority, it is subject to the Open Meetings Law.  In the alternative, perhaps you will argue, and I think with good reason, that the committee has no authority until or unless such authority is delegated.

I hope that this is helpful.  Please let me know if you have further questions.

Camille S. Jobin-Davis, Esq.
Assistant Director
NYS Committee on Open Government
Department of State
99 Washington Ave, Suite 650
Albany NY 12231
Tel: 518-474-2518
Fax: 518-474-1927