September 12, 2012

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 concerning the manner in which a resolution was passed by the Town Board of Fremont at a regularly scheduled monthly meeting. Specifically, you requested clarification regarding the Board’s responsibility to make a copy of the resolution available prior to the meeting, to what degree “pro-active openness is required of, or can be expected”, public participation allowed only after a vote, and when, if ever, a formal hearing can be required prior to a vote.

In this regard, first, §104 of the Open Meetings Law pertains to notice and states that:

  1. “ Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before such meeting.

  2. Public notice of the time and place of every other meeting shall be given to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.

  3. The public notice provided for by this section shall not be construed to require publication as a legal notice.

  4. If videoconferencing is used to conduct a meeting, the public notice for the meeting shall inform the public that videoconferencing will be used, identify the locations for the meeting, and state that the public has the right to attend the meeting at any of the locations.”

  5. When a public body has the ability to do so, notice of the time and place of a meeting given in accordance with subdivision one or two of this section, shall also be conspicuously posted on the public body’s internet website.”

Section 104 thereby imposes a three-fold requirement: one, that notice must be posted in one or more conspicuous, public locations; two, that notice must be given to the news media; and three, that notice must be conspicuously posted on the body’s website, when there is an ability to do so. The requirement that notice of a meeting be "posted" in one or more "designated" locations, in our opinion, mandates that a public body, by resolution or through the adoption of policy or a directive, select one or more specific locations where notice of meetings will consistently and regularly be posted. If, for instance, a bulletin board located at the entrance of a town hall has been designated as a location for posting notices of meetings, the public has the ability to know where to ascertain whether and when meetings of a town board will be held. Similarly, every public body with the ability to do so should post notice of the time and place of every meeting online.

Second, members of the public have on many occasions complained that they cannot fully understand discussions among members of public bodies, even though the discussions occur in public. For example, a board member might refer to the second paragraph of page 3 of a record without disclosing its content prior to the meeting. Although the public has the right to be present, the ability to understand or contribute to the decision-making process may be minimal and frustrating.

Based on complaints such as these, the Legislature added §103(e) to the Open Meetings Law, effective February 2012.The purpose of the legislation is simple: those interested in the work of public bodies should have the ability, within reasonable limitations, to see the records scheduled to be discussed during open meetings prior to the meetings and concurrently with the public discussion involving those records.

The amendment addresses two types of records:  first, those that are required to be made available pursuant to FOIL; and second, proposed resolutions, law, rules, regulations, policies or amendments thereto.  When either is scheduled to be discussed during an open meeting, the law requires that copies of records must be made available to the public prior to or at the meeting, upon request upon payment of a reasonable fee, and, when practicable, online prior to the meeting.  The amendment authorizes an agency to determine when and what may be “practicable” in making records available.

It is important to stress that the amendment involves an effort to take advantage of today’s information technology to promote transparency and citizens’ participation in government, and to reduce waste. If the agency in which a public body functions (i.e., a state department, a county, city, town, village or school district) “maintains a regularly and routinely updated website and utilizes a high speed internet connection,” the records described above that are scheduled to be discussed in public “shall be posted on the website to the extent practicable as determined by the agency…”.It is not incumbent upon the public to make a request that such records be posted online, it is the agency’s responsibility to do so.

With respect to public participation, we note that although the Open Meetings Law provides the public with the right “to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy” (see Open Meetings Law, §100), the Law is silent with respect to public participation.  Consequently, by means of example, if a public body, such as a town board, does not want to answer questions or permit the public to speak or otherwise participate at its meetings, we do not believe that it would be obliged to do so.  On the other hand, a public body may choose to answer questions and permit public participation, and many do so.  When a public body does permit the public to speak, we believe that it should do so based upon reasonable rules that treat members of the public equally.

Furthermore, although public bodies have the right to adopt rules to govern their own proceedings (see e.g., Town Law §63, Education Law, §1709), the courts have found in a variety of contexts that such rules must be reasonable.  For example, although a board of education may “adopt by laws and rules for its government and operations”, in a case in which a board’s rule prohibited the use of tape recorders at its meetings, the Appellate Division found that the rule was unreasonable, stating that the authority to adopt rules “is not unbridled” and that “unreasonable rules will not be sanctioned” [see Mitchell v. Garden City Union Free School District, 113 AD 2d 924, 925 (1985)].Similarly, if by rule, a public body chose to permit those who are in favor of a particular issue to speak before any of those who are opposed to the issue, such a rule, in our view, would be unreasonable.  Whether it is logical to entertain public comments on an issue after a vote has already been taken, in our opinion, is a question best raised before the Board, and/or may be an issue for voters in the next election.

Finally, the Open Meetings Law does not address when a public hearing is required or may be demanded.  Whether a public hearing is mandatory would depend on the nature of the resolution.  For example, based on Town Law §108, town boards are required to hold a public hearing on the preliminary budget on or before the Thursday immediately following the general election.  Similarly, town boards are required to hold public hearings prior to the adoption of a local law. There is no law that we know of that would require a board to hold a public hearing prior to the adoption of a resolution such as the one described in the materials that you submitted; however, that would not prohibit the town board from doing so.

I hope that we have been of assistance.

Camille S. Jobin-Davis
Assistant Director
CSJ: sb
cc: George Conklin, Supervisor, Town of Fremont