From:   Freeman, Robert (DOS)
Sent:    Monday, April 07, 2008 1:19 PM
Cc:       Steven G. Leventhal
Subject:           RE: help on ethics code
Attachments:   F9522.wpd

Hi - -

As suggested during our conversation, it appears that the structure of the proposal is derived from standards applicable to the Commission on Government Integrity (formerly the State Ethics Commission).  That entity operates pursuant to the provisions of §94 of the Executive Law.  Paragraph (a) of subdivision (17) of that statute specifies that the records the Commission are not subject to the FOIL (Article 6 of the Public Officers Law), and that only certain records listed in that provision are accessible to the public; similarly, paragraph (b) states that the meetings of the Commission are not subject to the Open Meetings Law (Article 7 of the Public Officers).

There are no similar statutes that deal with the records and meetings of a municipal ethics board.  Consequently, records and meetings of those boards are subject to both the FOIL and the Open Meetings Law.  As you know, both laws are based on a presumption of access.  FOIL states that all records are accessible, except those records or portions thereof that fall within one or more of the exceptions to rights of access appearing in paragraphs (a) through (j) of §87(2); meetings of public bodies, such as ethics boards must be conducted open to the public, unless an executive session may be held in accordance with the provisions of paragraphs (a) through (h) of the Open Meetings Law.

Limiting the openness of records and meetings in the proposal offered for review would likely result in a variety of difficulties.  In short, insofar as the proposal is inconsistent with FOIL or the Open Meetings Law, both of which are state statutes, they would be void.  It noted that it has been held on several occasions that a local law or ordinance, for example, cannot create confidentiality when rights of access are conferred by a statute [see e.g., Morris v. Martin, 55 NY2d 1026 (1982)].  Further, §110(1) of the Open Meetings Law states, in essence, that any provision of a local enactment that is more restrictive than that statute is superseded. This is not intended to suggest that all records and meetings of a municipal ethics board must be open, for exceptions to rights of access often are pertinent in relation to the duties of those boards (see attached advisory opinion).

Rather than attempting to specify what is open or closed, it is suggested that any statement of intent might more appropriately indicate that the Ethics Board will abide by the provisions of the FOIL and the Open Meetings Law.

I hope that this is of value.  If you would like to discuss the matter further, please feel free to call.

Robert J. Freeman, Executive Director
Committee on Open Government
NYS Department of State
One Commerce Plaza
99 Washington Ave., Suite 650
Albany, NY 12231
(518) 474-2518
(518) 474-1927 - fax