August 10, 2009
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.
I have received your letter and the material attached to it, all of which relates to the Enlarged City School District of Middletown and its Board of Education. As you may be aware, the advisory jurisdiction of the Committee on Open Government is limited to matters relating primarily to the Freedom of Information and Open Meetings Laws. In consideration of the issues raised in your letter and the materials, the ensuing comments will focus largely on the Open Meetings Law.
First, since you included an advisory opinion relating to the matter, this is to reiterate our view that every law, including the Open Meetings Law, must be implemented in a manner that gives reasonable effect to its intent. That being so, it has been advised and held judicially that when it is known in a advance of meeting that more people are interested in attending than can be accommodated in the usual site of meetings of a public body, such as a board of education, and when an alternative site that would accommodate those interested in attending is available, it would be unreasonable not to conduct a meeting at the alternative location.
Second, Robert’s Rules is not law, and there are elements of Robert’s Rules that may be inconsistent with the law of New York. Pursuant to §1709 of the Education Law, a board of education is authorized to adopt rules and procedures that govern its own proceedings, and it has been held in various contexts that any such rules or procedures must be reasonable.
Third, although many public bodies often prepare agendas, there is no reference in the Open Meetings Law to agendas. Therefore, while a public body may choose to prepare or abide by an agenda, there is no legal obligation to do so.
Next, the materials indicate that you asked that a letter that you prepared be included in the minutes of a meeting. While a public body may choose to do so, a member of the public cannot require that a document or his/her comments be included in minutes. Section 106 of the Open Meetings Law prescribes what may be characterized as minimum requirements concerning the content of minutes. Subdivision (1) states that:
"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."
Based on the foregoing, minutes may include reference to comments, statements or the entirety of documents, but there is no requirement that they must. If a member of a public body introduces a motion to include certain information within minutes, and the motion is approved by a majority of the total membership of that body, I believe that the information must be included. Absent such approval, again, I know of no obligation to include a statement or letter, for example, within minutes.
Lastly, you referred to a “retreat” to be held by the Board. As you are likely aware, the Open Meetings Law applies to meetings of public bodies, and §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". It is emphasized that the definition of "meeting" has been broadly interpreted by the courts. In a landmark decision rendered in 1978, the Court of Appeals found that any gathering of a quorum of a public body for the purpose of conducting public business is a "meeting" that must be convened open to the public, whether or not there is an intent to take action and regardless of the manner in which a gathering may be characterized [see Orange County Publications v. Council of the City of Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947 (1978)].
Inherent in the definition and its judicial interpretation is the notion of intent. If there is an intent that a majority of a public body will convene for the purpose of conducting public business, such a gathering would, in my opinion, constitute a meeting subject to the requirements of the Open Meetings Law.
I point out that the decision rendered by the Court of Appeals was precipitated by contentions made by public bodies that so-called "work sessions" and similar gatherings held for the purpose of discussion, but without an intent to take action, fell outside the scope of the Open Meetings Law. In discussing the issue, the Appellate Division, whose determination was unanimously affirmed by the Court of Appeals, stated that:
"We believe that the Legislature intended to include more than the mere formal act of voting or the formal execution of an official document. Every step of the decision-making process, including the decision itself, is a necessary preliminary to formal action. Formal acts have always been matters of public record and the public has always been made aware of how its officials have voted on an issue. There would be no need for this law if this was all the Legislature intended. Obviously, every thought, as well as every affirmative act of a public official as it relates to and is within the scope of one's official duties is a matter of public concern. It is the entire decision-making process that the Legislature intended to affect by the enactment of this statute" (60 AD 2d 409, 415).
The court also dealt with the characterization of meetings as "informal," stating that:
"The word 'formal' is defined merely as 'following or according with established form, custom, or rule' (Webster's Third New Int. Dictionary). We believe that it was inserted to safeguard the rights of members of a public body to engage in ordinary social transactions, but not to permit the use of this safeguard as a vehicle by which it precludes the application of the law to gatherings which have as their true purpose the discussion of the business of a public body" (id.).
Based upon the direction given by the courts, when a majority of a public body gathers to discuss public business, in their capacities as members of the body, any such gathering, in my opinion, would constitute a "meeting" subject to the Open Meetings Law.
On the other hand, if there is no intent that a majority of public body will gather for purpose of conducting public business, but rather for the purpose of gaining education, training, to develop or improve team building or communication skills, or to consider interpersonal relations, I do not believe that the Open Meetings Law would be applicable. In that event, if the gathering is to be held solely for those purposes, and not to conduct or discuss matters of public business, and if the members in fact do not conduct or intend to conduct public business collectively as a body, the activities occurring during that event would not in my view constitute a meeting of a public body subject to the Open Meetings Law.
If, for example, a retreat involves consideration of long term goals, policy and the like, I believe that it would constitute a “meeting” falling within the requirements of the Open Meetings Law.
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Education