Robert J. Freeman
February 5, 2013
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
This is in response to your request for an advisory opinion regarding application of the Open Meetings Law to a gathering of some of the members of the City Council at a meeting of the Auburn Industrial Development Authority. You wrote that, there are two City Council members on the Board of the Authority, and at one particular meeting, a third City Council member attended, and asked a question involving City business. You indicated that the third City Councilor was invited to participate in the discussion of that business, which related to both the Authority and the City.
The presence of three or more members the of City Council at an Authority meeting may or may not constitute a City Council meeting, depending on the facts associated with their presence. As you know, the issue relates to the Open Meetings Law, which 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)].
The decision rendered by the Court of Appeals was precipitated by contentions made by public bodies that so-called "work sessions" and similar gatherings 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, 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).
In view of the foregoing, it may be that the conversation and circumstances that you described would constitute a meeting of the City Council. On the other hand, inherent in the definition of “meeting” and its judicial interpretation is the notion of intent. If there is an intent that a majority of a public body convene, collectively, as a body, for the purpose of conducting public business, such a gathering would, in our opinion, constitute a meeting subject to the requirements of the Open Meetings Law. However, if there is no intent that a majority of public body gather for purpose of conducting public business, as a body, but rather for the purpose of gaining education, or to listen to a speaker as part of an audience or group, we do not believe that the Open Meetings Law would be applicable.
Somewhat analogous questions have arisen in the past, and in some instances, the manner in which members of public bodies are situated suggests whether a “meeting” is being held. If a majority of the Council attending an Authority meeting sits at a dais or table together in the front of the room and functions as the Council, we believe that it would be conducting a "meeting" that falls within the coverage of the Open Meetings Law. On the other hand, if as you indicate, one of the Councilors is an attendee and the other two are Board members, and the three are not functioning as a body, in our view, their presence would not constitute a “meeting” of the Council.
Assuming that not all three of the Council members present were situated together on the dais, if they did not function as a body, the gathering, in our view, is likely not to have constituted a “meeting.” Related questions have arisen at workshops and seminars during which we have spoken and which were attended by many, including perhaps a majority of the membership of several public bodies. Some of those persons have asked whether their presence at those gatherings fell within the scope of the Open Meetings Law. In brief, we have responded that, since the members of those entities received information and advice that was generic to all public bodies, and did not pertain to the business of the particular public body, and because the body was not functioning as a body, the Open Meetings Law, in our opinion, did not apply.
We hope this is helpful.
Camille S. Jobin-Davis