June 15, 1998

 

Ms. Jody Adams
P.O. Box 33
Peconic, NY 11958

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 Ms. Adams:

As you are aware, I have received your fax of May 19. Due to the possibility that a
library board of trustees may be subject to the Open Meetings Law but not the Freedom of
Information Law, you have asked whether minutes of meetings and a record of the votes
of the members must be prepared and made available.

From my perspective, in view of the remedial nature of the Freedom of Information
and Open Meetings Laws, and the clear intent of º260-a of the Education to require
accountability on the part of library boards of trustees, all such boards must prepare and
disclose their minutes in a manner consistent with the both the Open Meetings and
Freedom of Information Laws. Further, based on a judicial decision, I believe that they
must include an indication of the manner in which board members cast their votes.

As you may recall, º260-a of the Education Law states that:

"Every meeting, including a special district meeting, of a board of
trustees of a public library system, cooperative library system, public
library or free association library, including every committee meeting
and subcommittee meeting of any such board of trustees in cities
having a population of one million or more, shall be open to the
general public. Such meetings shall be held in conformity with and in
pursuance to the provisions of article seven of the public officers law.
Provided, however, and notwithstanding the provisions of subdivision
one of section ninety-nine of the public officers law, public notice of
the time and place of a meeting scheduled at least two weeks prior
thereto shall be given to the public and news media at least one week
prior to such meeting."

Since Article 7 of the Public Officers Law is the Open Meetings Law, meetings of boards
of trustees of various libraries, including library systems, must be conducted in accordance
with that statute.

Section 106 of the Open Meetings Law pertains to minutes and provides 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 meetings 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."

While some library boards of trustees may not be subject to the Freedom of Information
Law because they serve as the governing bodies of not-for-profit corporations separate
from government, it would be anomalous in my view to be subject to the Open Meetings
Law but exempt from critical requirements of that statute, specifically, those pertaining to
minutes of their meetings. For that reason, because of the obvious intent of º260-a of the
Education Law, and because of the general nature of the libraries subject to that statute
and the Open Meetings Law, I believe that the entities falling within the scope of those
provisions must prepare and generally disclose minutes of meetings as described above.

Lastly, although the Open Meetings Law does not refer specifically to the manner in
which votes are taken or recorded, I note that in an Appellate Division decision, it was
found that "The use of a secret ballot for voting purposes was improper." In so holding,
the Court stated that: "When action is taken by formal vote at open or executive sessions,
the Freedom of Information Law and the Open Meetings Law both require open voting
and a record of the manner in which each member voted [Public Officers Law º87[3][a];
º106[1], [2]" Smithson v. Ilion Housing Authority, 130 AD 2d 965, 967 (1987)].

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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