June 20, 1995

 

 

Mr. Peter W. Sluys
Managing Editor
Community Media Inc.
25 W. Central Avenue
Box 93
Pearl River, NY 10956

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. Sluys:

I have received your letter of June 6 in which you requested an advisory opinion concerning the Open Meetings Law.

By way of background, you referred to four news media organizations whose coverage area includes the Village of Haverstraw. You identified them as the Rockland Journal-News, a daily newspaper with a circulation of approximately 4,000 in the Town of Haverstraw; the Rockland Independent, a weekly newspaper with a circulation in the Town of about 5,000; WRKL, a local radio station; and the Rockland County Times, a weekly designated as the Town's official newspaper with "a circulation in the Town of Haverstraw of approximately 800 copies, if that."

According to your letter:

"On May 26, 1995 the acting Village Justice Arthur Moskoff submitted his resignation to the town clerk. On Memorial Day, May 29th, the Mayor asked the town clerk to notice a meeting for the 31st of May, even though no declaration of emergency was made by the village.

"On May 30th the village clerk called the other members of the town board, and also called the Rockland County Times to tell them that a meeting was going to be held to appoint a replacement to Moskoff, which meeting was held on May 31, 1995.

"The Journal-News, the Rockland Independent, and WRKL Radio were concededly not given notice of this meeting, and the Rockland County Times [a weekly] would only publish any notice of this meeting after the meeting was held [i.e., the meeting was held on the 31st, the Times was published next on June 1st].

"In addition, no public notice of the meeting was posted at Village Hall or anywhere else in the Town of Haverstraw, and no written notice of the meeting was given at any time and at any place to any individual.

"In short, the only notice of the meeting given herein was given to a media that was friendly with the local Mayor and had the smallest circulation of any newspaper in Rockland County in the Village and Town of Haverstraw. The public had no knowledge whatsoever of the meeting, and had no opportunity to gain that knowledge by review of any posted material in the Village Clerk's office."

You have asked whether, in my view, the meeting was held in violation of the Open Meetings Law.

In this regard, I offer the following remarks, some of which may be repetitive of those offered to you in an advisory opinion dated May 4, 1992.

Before reaching the issues, I note that you referred to both the Town and Village of Haverstraw. Unless Haverstraw is a "town/village", it is likely that the Town and Village would be separate public corporations with distinct governments and governing bodies. That point, however, is not crucial with respect to the Open Meetings Law.

The focal point of the matter involves the extent to which the Haverstraw Village Board of Trustees complied with §104 of the Open Meetings Law. That provision requires that notice of the time and place of every meeting of a public body be given to the news media and posted. Specifically, §104 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 each 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."

Based upon the foregoing, it is clear that notice must be posted and given to the news media prior to every meeting. However, §104 does not specify which news media organizations must be given notice. In many instances, there are may be several news media organizations, i.e., newspapers, radio and television stations, that operate in the vicinity of a public body. So long as notice of a meeting is given to at least one news media organization prior to a meeting, I believe that a public body would be acting in compliance with the requirement that notice be given to the news media.

Nevertheless, in my opinion, every law, including the Open Meetings Law, should be implemented in a manner that gives reasonable effect to the intent of the law. It would be unreasonable in my view for the Village Board to transmit notice to the Washington Post or a New York City radio or television station, for those outlets would not likely reach residents of the Village, nor would they assign a reporter to attend a meeting of the Board. If notice is posted and given to a newspaper that has a significant circulation in the Village or to a radio station situated in or near the Village, I believe that the Board would be in compliance with the Open Meetings Law. In short, there is nothing in the Open Meetings Law that would require that notice of meetings be given to a particular newspaper. However, if a newspaper has a significant circulation in a municipality, it might be considered to be unreasonable to avoid providing notice to that newspaper.

In addition to giving notice to the news media, it is emphasized that the Open Meetings Law requires that notice be "conspicuously posted in one or more designated public locations." Consequently, I believe that a public body must designate, presumably by resolution, the location or locations where it will routinely post notice of meetings. To meet the requirement that notice be "conspicuously posted", notice must in my view be placed at a location that is visible to the public. The failure to post notice in the context of the facts that you presented would in my opinion have constituted a failure to comply with the Open Meetings Law.

Lastly, the judicial interpretation of the Open Meetings Law suggests that the propriety of scheduling a meeting less than a week in advance is dependent upon the actual need to do so. As stated in Previdi v. Hirsch:

"Whether abbreviated notice is 'practicable' or 'reasonable' in a given case depends on the necessity for same. Here, respondents virtually concede a lack of urgency: They deny petitioner's characterization of the session as an 'emergency' and maintain nothing of substance was transacted at the meeting except to discuss the status of litigation and to authorize, pro forma, their insurance carrier's involvement in negotiations. It is manifest then that the executive session could easily have been scheduled for another date with only minimum delay. In that event respondents could even have provided the more extensive notice required by POL §104(1). Only respondent's choice in scheduling prevented this result.

"Moreover, given the short notice provided by respondents, it should have been apparent that the posting of a single notice in the School District offices would hardly serve to apprise the public that an executive session was being called...

"In White v. Battaglia, 79 A.D. 2d 880, 881, 434 N.Y.S.ed 637, lv. to app. den. 53 N.Y.2d 603, 439 N.Y.S.2d 1027, 421 N.E.2d 854, the Court condemned an almost identical method of notice as one at bar:

"Fay Powell, then president of the board, began contacting board members at 4:00 p.m. on June 27 to ask them to attend a meeting at 7:30 that evening at the central office, which was not the usual meeting date or place. The only notice given to the public was one typewritten announcement posted on the central office bulletin board...Special Term could find on this record that appellants violated the...Public Officers Law...in that notice was not given 'to the extent practicable, to the news media' nor was it 'conspicuously posted in one or more designated public locations' at a reasonable time 'prior thereto' (emphasis added)" [524 NYS 2d 643, 645 (1988)].

Based upon the decision cited above, merely posting a single notice would fail to comply with the Open Meetings Law, for the Law requires that notice be given to the news media and posted "conspicuously" in one or more "designated public locations" prior to meetings. Similarly, for reasons described earlier and the clear direction provided in §104 of the statute, providing notice to a single weekly newspaper and failing to post notice at all, is in my view inconsistent with the requirements of the Open Meetings Law. Further, absent an emergency or urgency, the Court in Previdi suggested that it would be unreasonable to conduct meetings on short notice, unless there is some necessity to do so.

In an effort to provide guidance and enhance compliance with the Open Meetings Law, a copy of this opinion will be forwarded to the Board of Trustees.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Board of Trustees