November 25, 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 information presented in your correspondence.
Dear Mr. Shambo:
Since our last communication, I have engaged in additional research in an effort to clarify our initial response to your correspondence pertaining to the application of the Open Meetings Law to committee meetings of the New York Main Street Grant Program.
Established under Private Housing Finance Law, Article XXVI, the New York Main Street Program (NYMS) distributes funds to public benefit corporations, known as Local Program Administrators (LPAs), for the purpose of “provid[ing] financial assistance” to local properties within “main streets.” Section 1220 of Private Housing Finance Law defines eligible applicants as units of local government or local not-for-profit corporations. The Division of Housing and Community Renewal distributes funds to the LPAs that determine initial eligibility pursuant to program guidelines. According to conversations with Housing and Community Renewal employees and the NYMS official program guide, a Project Selection Committee applies set criteria to applications and makes a final decision regarding the funding of specific projects. It is the Project Selection Committee that is the subject of your inquiry.
The Open Meetings Law is applicable to meetings of public bodies, and §102(2) defines “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” (emphasis added).
I point out that §66 of the General Construction Law includes a series of definitions and states that:
“1. A ‘public corporation’ includes a municipal corporation, a district corporation, or a public benefit corporation…
4. A 'public benefit corporation' is a corporation organized to construct or operate a public improvement wholly or partly within the state, the profits from which inure to the benefit of this or other states, or the people thereof."
Based on the foregoing, a public benefit corporation is a type of public corporation, and its governing body, as well as committees consisting of two or more members of the governing body, must, therefore, abide by the Open Meetings Law. Consequently, I believe that a project selection committee, consisting of two or more members, is subject to the requirements of Open Meetings Law.
When an entity consisting of two or members that functions as a body has the authority to take action, i.e., through the power to allocate public monies or make determinations, the Court of Appeals, the state’s highest court, has held that the entity would constitute a public body subject to the Open Meetings Law. In a case dealing with a student government body at a public educational institution ("the Association, Inc."), the Court provided guidance concerning the application of the Open Meetings Law, stating that:
"In determining whether an entity is a public body, various criteria and benchmarks are material. They include the authority under which the entity was created, the power distribution or sharing model under which it exists, the nature of its role, the power it possesses and under which it purports to act, and a realistic appraisal of its functional relationship to affected parties and constituencies.
"This Court has noted that the powers and functions of an entity should be derived from State law in order to be deemed a public body for Open Meetings Law purposes (see, Matter of American Society for Prevention of Cruelty to Animals v Board of Trustees of State Univ. of N.Y., 79 NY2d 927, 929). In the instant case, the parties do not dispute that CUNY derives its powers from State law and it surely is essentially a public body subject to the Open Meetings Law for almost any imaginable purpose. The Association, Inc. contends, on the other hand, that is a separate, distinct, subsidiary entity, and does not perform any governmental function that would render it also a public body.
"It may be that an entity exercising only an advisory function would not qualify as a public body within the purview of the Open Meetings Law...More pertinently here, however, a formally chartered entity with officially delegated duties and organizational attributes of a substantive nature, as this Association, Inc. enjoys, should be deemed a public body that is performing a governmental function (compare, Matter of Syracuse United Neighbors v. City of Syracuse, 80 AD2d 984, 985, appeal dismissed 55 NY2d 995). It is invested with decision-making authority to implement its own initiatives and, as a practical matter, operates under protocols and practices where its recommendations and actions are executed unilaterally and finally, or receive merely perfunctory review or approval...This Association, Inc. possessed and exercised real and effective decision-making power. CUNY, through its by-laws, delegated to the Association, Inc. its statutory power to administer student activity fees (see, Education Law §6206[a]). The Association, Inc. holds the purse strings and the responsibility of supervising and reviewing the student activity fee budget. (CUNY By-Laws §16.5[a]). CUNY’s by-laws also provide that the Association, Inc. ‘shall disapprove any allocation or expenditure it finds does not so conform, or is inappropriate, improper, or inequitable,’ thus reposing in the Association, Inc. a final decision-making authority... [Smith v. CUNY, 92 NY2d 707; 713-714 (1999)].
In this situation, the Project Selection Committee was created to implement the formalized project selection process and determine final assignment of funds. To reiterate, because The Project Selection Committee’s decisions constitute binding instructions to the Local Program Administrator and the implementation of the NYMS Program, for these reasons, we believe that the committee is subject to the Open Meetings Law.
On behalf of the Committee on Open Government, we hope that this is helpful.
CC: Board of Trustees