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EMAIL REQUEST

OML-AO-5246

From: Jobin-Davis, Camille (DOS)
Sent: Thursday, February 16, 2012 11:17 AM
To:
Subject: RE: Open Meeting Law Question

Hi,

Although I don't remember Jim asking this particular question, my best advice is that the MAB is a
public body subject to OML.

Based on my review of Unconsolidated Law Chapter 7, Section 4 (hope I'm not missing Section 8904?),
the MAB consists of nine members appointed by the Governor who serve on rotating terms, it has
powers and duties to prepare and submit regulations, standards and recommendations for approval to
the Commission, it is required to develop medical education programs, review credentials and
performance of physicians, among other various things.

Section 102(2) defines a public body as:

"...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."
Relevant, I think, is the decision rendered in MFY Legal Services v. Toia [402 NYS 2d 510 (1977)]. That
case involved an advisory body created by statute 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).
Because the MAB was created by state law, and/or if it performs a required function in the process of
decision making, I believe that its meetings would be subject to the Open Meetings Law. In that
circumstance, even if its authority is advisory, if the decision maker or decision making body must, by
law, consider the advice of the Advisory Board as a condition precedent to its ability to take action, I
believe that the Board would be carrying out a governmental function and, therefore, would
constitute a public body. If the MAB were not a creation of law and it performed no legally necessary
function in the decision making process, it would not, based on this decision, be required to comply
with Open Meetings Law.
While my search did not reveal any specific reference to the quorum requirement, the term "quorum"
is defined in ยง41 of the General Construction Law, which has been in effect since 1909. The cited
provision states that:
"Whenever three of more public officers are given any power or authority, or three or more
persons are charged with any public duty to be performed or exercised by them jointly or as
a board or similar body, a majority of the whole number of such persons or officers,
gathered together in the presence of each other or through the use of videoconferencing, at
a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board of
body, or at any duly adjourned meeting of such meeting, or at any meeting duly held upon
reasonable notice to all of them, shall constitute a quorum and not less than a majority of
the whole number may perform and exercise such power, authority or duty. For the
purpose of this provision the words 'whole number' shall be construed to mean the total
number which the board, commission, body or other group of persons or officers would have
were there no vacancies and were none of the persons or officers disqualified from acting."
Based on the foregoing, a valid meeting may occur only when a majority of the total membership of a
public body, a quorum, is present or videoconferencing in.
Like many of the cases involving committees and subcommittees but unlike the facts here, I believe
the Jae case involved an advisory committee that was not a creature of statute.

It is my understanding that most entities created by statute are public bodies subject to the OML.

For additional analysis regarding advisory bodies created in statute, you may want to take a look at
advisory opinions under "A" for "Advisory Body, Statutory".

Hope it helps and that you are well! Please let me know if you have further questions -

Regards,

Camille

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
www.dos.ny.gov/coog