November 15, 2010
We have received your letter and the materials relating to it and hope that you will accept our apologies for the delay in response.
You have sought an advisory opinion pertaining to the status of
Rental Horse Licensing & Protection Advisory Board in relation to the Open Meetings Law. Although you contend that the Board is subject to the
requirements imposed by that statute, a representative of the New York City Health Department wrote that your belief "is wrong", for "the Board is merely an advisory body to the Commissioner without its own authority
to implement any of its recommendations..."
In this regard, the Board is a creation of law, and the New York City Administrative Code, §17-331,
indicates that it consists of five members, all of whom are appointed by the Commissioner of Health and Mental
Hygiene. Section 17-330(a) of the Administrative Code states that the Commissioner, "with the advice of the
advisory board..." shall promulgate regulations. Based on those provisions, I believe that the Board constitutes
a "public body" that falls within the scope of the Open Meetings Law.
Section 102(2) of the Open Meetings Law defines the phrase "public body" to mean:
"...any entity for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body."
Judicial decisions indicate generally that advisory bodies having no power to take final action, other than
committees consisting solely of members of public bodies, fall outside the scope of the Open Meetings Law. As
stated in those decisions: "it has long been held that the mere giving of advice, even about governmental matters
is not itself a governmental function" [Goodson-Todman Enterprises, Ltd. v. Town Board of Milan, 542 NYS
2d 373, 374,151 AD 2d 642 (1989); Poughkeepsie Newspapers v. Mayor's Intergovernmental Task Force, 145
AD 2d 65, 67 (1989); see also New York Public Interest Research Group v. Governor's Advisory Commission,
507 NYS 2d 798, affd with no opinion, 135AD 2d 1149, motion for leave to appeal denied, 71 NY 2d 964
In the decisions cited above, none of the entities was designated by law to carry out a particular duty and all had purely advisory functions. More analogous to the matter in my view is the decision rendered in MFY
Legal Services v. Toia [402 NYS 2d 510 (1977)]. That case involved an advisory body created by law to advise
the Commissioner of the State Department of Social Services. In MFY, it was found that "[a]lthough the duty of
the committee is only to give advice which may be disregarded by the Commissioner, the Commissioner may,
in some instances, be prohibited from acting before he receives that advice" (id. 511) and that, "[t]herefore, the
giving of advice by the Committee either on their own volition or at the request of the Commissioner is a
necessary governmental function for the proper actions of the Social Services Department" (id. 511-512).
If my interpretation ofthe language of §12-331(a) of the Administrative Code is accurate, that the
Commissioner may promulgate regulations only after having sought advice from the Board, as in MFY, the
Board, although advisory in nature, performs a necessary and essential function in the decision making process.
And if that is so, judicial precedent indicates that the Board constitutes a public body required to give effect to
the Open Meetings Law.
I hope that I have been of assistance.
Robert J. Freeman
cc: Rena Bryant