OML-AO-05420

September 4, 2014

E-Mail

TO:       

FROM:  Camille S. Jobin-Davis, Assistant Director

CC:

 

The staff of the Committee on Open Government is authorized to issued advisory opinions.  The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear:

We are in receipt of your request for an advisory opinion regarding application of the Open Meetings Law to a certain gathering of the members of the School Board of the Chappaqua Central School District, which collaborated to write an email to the Chappaqua Town Board, and then collaborated to write a clarifying message, both of which were published online.  The relevant facts are not in dispute.  Board members gathered first at the school gymnasium and later at a local restaurant on election night.  At some point during that evening, all of the members agreed to sign an email sent from the Board President to the Town Board supporting the Town Administrator. 

From our perspective, a public body, such as a school board, may take action only during a meeting conducted in accordance with the Open Meetings Law. In this regard, we offer the following comments.

There is nothing in the Open Meetings Law that would preclude members of a public body from conferring individually, in person, by telephone, via mail or e-mail. And, there is nothing that would preclude or prohibit all of the members of a public body from attending a social gathering, at a private home, at a gymnasium, or at a local restaurant.  A series of  communications between individual members and among the members which results in a collective decision, however, or a meeting or vote held by means of a telephone conference,
by mail or e-mail, in our opinion, is inconsistent with law.

By way of background, in our view, voting and action by a public body may be carried out only at a meeting during which a quorum has physically convened, or during a meeting held by videoconference. The Open Meetings Law pertains to public bodies, and §102(2) 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.”

Section 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, including the use of videoconferencing for attendance and participation by the members of the public body.” Based upon an ordinary dictionary definition of “convene”, that term means:

“1. to summon before a tribunal;

2. to cause to assemble syn see ‘SUMMON’“ (Webster’s Seventh New Collegiate Dictionary, Copyright 1965).

In view of that definition and others, we believe that a meeting, i.e., the “convening” of a public body, involves the physical coming together of at least a majority of the total membership of such a body, i.e., the school board, or a convening that occurs through videoconferencing. We point out, too, that §103(c) of the Open Meetings Law states that “A public body that uses videoconferencing to conduct its meetings shall provide an opportunity to attend, listen and observe at any site at which a member participates.”  These provisions clearly indicate that there are only two ways in which a public body may validly conduct a meeting. Any other means of conducting a meeting, i.e., by telephone conference, by mail, or by e-mail, would be inconsistent with law.

As indicated earlier, the definition of the phrase “public body” refers to entities that are required to conduct public business by means of a quorum. The term “quorum” is defined in §41 of the General Construction Law, which has been in effect since 1909. The cited provision, which was also amended to include language concerning videoconferencing, states that:

“Whenever three or 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 or  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, again, a valid meeting may occur only when a majority of the total membership of a public body, a quorum, has “gathered together in the presence of each other or through the use of videoconferencing.” Moreover, only when a quorum has convened in the manner described in §41 of the General Construction Law would a public body have the authority to carry out its powers and duties. Consequently, it is our opinion that a public body may not take action or vote by other means.

There is no authority to take action outside of a meeting, and in the only decision dealing with a vote taken by phone, whose facts are somewhat similar to those here, the court found the vote to be a nullity. In Cheevers v. Town of Union (Supreme Court, Broome County, September 3, 1998), which cited and relied upon an opinion rendered by this office, the court stated that:

“The issue was the Town’s policy concerning tax assessment reductions, clearly a matter of public business. There was no physical gathering, but four members of the five member board discussed the issue in a series of telephone calls. As a result, a quorum of members of the Board were ‘present’ and determined to publish the Dear Resident article. The failure to actually meet in person or have a telephone conference in order to avoid a ‘meeting’ circumvents the intent of the Open Meetings Law (see e.g., 1998 Advisory Opns Committee on Open Government 2877). This court finds that telephonic conferences among the individual members constituted a meeting in violation of the Open Meetings Law...”

That school board members had “brief” conversations, that “not all board members were even sitting near each other” at the restaurant, or that there was no intent to conduct business or no intent to circumvent the law, are not determinative regarding application of the Open Meetings Law.  The email written on May 21 indicates that the Board as a whole determined to send a message to the Town Board.  The email written on June 9 indicates that the Board as a whole, determined to send a clarifying message.  The first email, in our opinion, represents a failure to comply with law.  Should the June 9 email have been sent pursuant to action taken outside of a properly noticed public meeting, in our opinion, that too would have constituted a failure to comply with law.

Nevertheless, we respect the School Board’s intentions and offer the following recommendation for the future.  The Open Meetings Law permits discussion of the employment history of a particular person in executive session.  When the members of a public body discuss a particular person and how well or how poorly s/he performs her job responsibilities, the discussion could be held in executive session. Should school board members understand that they share the same opinion about a particular person, the vote, upon returning to public session, could be to authorize the President to send an email in accordance with the opinions expressed.

We hope this is helpful.