October 14, 2004
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 and the materials relating to it and hope that you will accept my apologies for the delay in response.
You have sought an advisory opinion concerning "whether, pursuant to the Open Meetings Law, the New York State Insurance Fund (NYSIF) is required to provide the Public Employees Federation (PEF) with notice of the dates and location of monthly meetings of the NYSIF Board of Commissioners and to allow PEF representatives to attend those meetings."
In this regard, as you may be aware, the Open Meetings Law is applicable 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."
Based on provisions of the Workers’ Compensations Law (WCL), I believe that the commissioners of the State Insurance Fund ("the Fund") constitute a public body that falls within the requirements of the Open Meetings Law. Section 77 of the of the WCL provides that:
"The state insurance fund shall be administered by the commissioners of the state insurance fund, of whom there shall be eight. The commissioner of labor shall, in addition, be a commissioner of such fund by virtue of his or her office. The commissioners shall elect annually from the appointive members a chair and a vice-chair who shall act as chair in the absence of the chair. The commissioner of labor may designate a deputy commissioner to act in his or her place and stead as a commissioner of such fund. The commissioners shall be appointed by the governor, by and with the advice and consent of the senate. They shall be policyholders insured in the state insurance fund. The commissioners shall be appointed for terms of three years each. They shall serve until their successors are appointed and have qualified. Vacancies shall be filled for the unexpired terms. Each commissioner shall before entering upon his or her duties, take and subscribe the constitutional oath of office which shall be filed in the office of the secretary of state."
Section 79 requires that meetings of the commissioners must be held at least once a month, except for the month of August, that minutes must be prepared, and that the minutes must indicate "each matter brought before the commissioners for their consideration together with the vote of each commissioner thereon." Section 82 describes the powers and duties of the commissioners of the State Insurance Fund.
From my perspective, each of the conditions necessary to conclude that the commissioners constitute a public body can be met. There are eight members who conduct public business collectively, through "consideration together", and take action by casting votes. By so doing and carrying out their powers and duties, the commissioners perform a governmental function for the state. While I know of no specific reference to a quorum requirement, a separate statute, §41 of the General Construction Law, requires 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 as a board or similar body", they may carry out their duties only through the presence of a quorum and action taken by majority of the vote the total membership of such entity.
Assuming the accuracy of the foregoing and that the commissioners constitute a public body required to comply with the Open Meetings Law, every meeting of the commissioners must be preceded by notice of the time and place. Specifically, 104 of that statute provides 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."
Stated differently, if a meeting is scheduled at least a week in advance, notice of the time and place must be given to the news media and to the public by means of posting in one or more designated public locations, not less than seventy-two hours prior to the meeting. If a meeting is scheduled less than a week an advance, again, notice of the time and place must be given to the news media and posted in the same manner as described above, "to the extent practicable", at a reasonable time prior to the meeting. Although the Open Meetings Law does not make reference to "special" or "emergency" meetings, if, for example, there is a need to convene quickly, the notice requirements can generally be met by telephoning the local news media and by posting notice in one or more designated locations.
I note that there is nothing in the Open Meetings Law requiring that a public body provide notice to a particular entity, such as PEF, or person. However, again, it does require that notice be given to the news media and posted in one or more "designated" conspicuous public locations prior to every meeting. Additionally, although the Open Meetings Law is based on a presumption of openness, §105(1) authorizes a public body to enter into closed or executive sessions in specified circumstances.
I hope that I have been of assistance.
Robert J. Freeman
cc: Terence Morris, Chairman
Kenneth J. Ross