March 24, 2015
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.
This is in response to your request for an advisory opinion regarding application of the Open Meetings Law to minutes of the Watertown City Council. Counsel for the City has provided a response, a copy of which is enclosed.
Initially, please note that while advisory opinions rendered by the office are not binding, we offer them in the hope that they are educational and persuasive.
Based on materials submitted with your request and the City’s response, it is clear that there was a meeting of the City Council on June 13, 2005, during which the City held an eight minute executive session “to discuss the employment history of a particular individual…” (Minutes of the Watertown City Council, June 13, 2005). Former City Clerk Dutton, who was present at the executive session reportedly indicated that the discussion in executive session was limited to the employment backgrounds of candidates for appointment to the position of Deputy City Clerk. Nevertheless, on a two-page document entitled Deputy City Clerk Job Specification, the following notation appears: “Approved by City Council 6/13/2005”; and there is no mention of such “approval” in the minutes.
Counsel to the City explains the lack of reference in the minutes of the public session in the following manner:
“The ‘approval’ was not reflected in the minutes of the meeting, and was not required to be in the minutes, because no formal vote was taken…. The Council effectively did nothing more than say, ‘It looks good to us.’”
Accordingly, for purposes of this analysis and based on the collective lack of memory regarding any particular discussion (more than 9 years ago), we will assume that there was some consideration given to the document entitled “Job Specification” during the public portion of the meeting, and that City Council members offered no specific comments, which resulted in a general “It looks good to us” response. The question then becomes what, if any, responsibility the City has to memorialize such conclusion in the minutes.
From our 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, we believe that minutes must be sufficiently descriptive to enable the public and others (i.e., future school board members), upon their preparation and review, perhaps years later, to ascertain the nature of action taken by an entity subject to the Open Meetings Law, such as the School Board. Most importantly, minutes must be accurate.
The Open Meetings Law includes direction concerning the minimum contents of minutes and the time within which they must be prepared. Specifically, §106 states 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.”
For many years, this office has advised that if a public body reaches a “consensus” upon which it relies, minutes reflective of decisions reached must be prepared and made available. In Previdi v. Hirsch, 138 Misc.2d 436, 524 NYS2d 643 (1988), the issue involved access to minutes of an executive session held under the Open Meetings Law. The court found that “this was no basis for respondents to avoid publication of minutes pertaining to the ‘final determination’ of any action, and ‘the date and vote thereon’.” (Id., at 646.) The court stated that:
“The fact that respondents characterize the vote as taken by ‘consensus’ does not exclude the recording of same as a ‘formal vote’. To hold otherwise would invite circumvention of the statute.” (Id., at 646.)
In a similar manner, there are circumstances under which we believe a simple “It looks good to us” should be memorialized in the minutes. In circumstances when Board approval is required, for example, it is our opinion that even a general acknowledgment with no objections raised is required to be recorded as action taken. In our opinion, when Board approval is sought and granted with no objections, such action should be recorded in the minutes.
In this instance, without further information, it is not possible to know the nature of the discussion, if any, from which the “Approved” notation originated. Due to the passage of time, and Counsel’s position that “the ‘Job Specification’ has no legal force and effect”, we are unable to offer an opinion either as to the necessity for Board action or whether such notation on the Job Specification document confirms action taken at a meeting.
Camille S. Jobin-Davis