March 15, 2004
FROM: Robert J. Freeman, Executive Director
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.
I have received your letter which, as in the case of previous correspondence, relates to action taken by the Town Board of the Town of Lloyd. You sent copies of correspondence pertaining to
the matter between the Town Supervisor and the law firm retained to provide services to the Town concerning the "proposed annexation territory", including the terms of the agreement. The phrase "annexation territory" appears several times in the agreement.
The minutes of the meeting during which the Board approved a resolution to retain the law firm states as follows:
"Resolution made by Shepard, seconded by Hammond, to authorize Supervisor to sign an agreement with Huff Wilks, LLP regarding procurement of border land."
You have questioned the adequacy of the minutes.
In this regard, §106(1) of the Open Meetings Law pertains to minutes of open meetings and requires that :
"1. Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon.
2. Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter.
3. Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meeting except that minutes taken pursuant to subdivision two hereof shall be available to the public within one week from the date of the executive session."
From my perspective, every law, including the Open Meetings Law, must be implemented in a manner that gives reasonable effect to its intent. Based on that presumption, I believe that minutes must be sufficiently descriptive to enable the public and others (i.e., future Town officials), upon their preparation and upon review perhaps years later, ascertain the nature of action taken by a public body, such as a town board.
In my opinion, in consideration of the substance of the agreement, an agreement to pay for legal services relative to the "annexation [of] territory", the minutes do not include sufficient information to ascertain the nature of the Board’s action. This is not to suggest that the minutes must include reference to each element of the agreement. However, at a minimum, I believe that the minutes should clearly have reflected the intent of the Board to attempt to engage in the "annexation [of] territory." I note that it has been held that a "bare bones" resolution referenced in minutes is inadequate to comply with the Open Meetings Law [see Mitzner v. Goshen Central School District Board of Education and Superintendent Colistra, Supreme Court, Orange Co, April 15, 1993.]
I hope that I have been of assistance.
cc: Town Board
Hon. Rosaria Schiavone Peplow