December 30, 2014
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 hope that you will accept my apologies for the delay in response to your request for an advisory opinion.
In your capacity as the President of the Faculty Senate of the John Jay College of Criminal Justice, you wrote that the Senate has asked that you seek an opinion concerning the following question:
“Do exemptions to the OML exist, based on the reasons asserted in the attached memo…from John Jay College Legal Counsel, for a meeting that is not characterized as a meeting of a committee subject to the open meetings law, when the participants constitute a quorum of a committee that is subject to the open meetings law?”
The entity that is the subject of the question is Committee on Graduate Studies (CGS), which, according to your letter, “is officially acknowledged to be subject to the OML”.
Appendix A attached to your letter indicates that the CGS consists of 15 members and that the CGS:
“…shall be responsible for establishing general policy for the graduate programs, subject to review by the College Council. It shall have primary responsibility for admission, curriculum, degree requirements, course and standing matters, periodic evaluation of the graduate programs and for other areas of immediate and long-range importance to the quality and growth of graduate study. The committee shall also be responsible for advising on all matters relating to graduate student honors, prizes, scholarships and awards.”
The event that appears to have precipitated your inquiry was a request that the CGS “conduct informal meetings” and whether those gatherings constitute “meetings” that fall within the coverage of the OML. The memo prepared by Legal Counsel advised that a meeting of this nature “is not, in effect, a meeting of the Committee”, “notwithstanding that a majority of those present are also members of the Committee.” She added that the agenda “is informational and is for the benefit of those in attendance”, that persons other than Committee members would attend, that “the meeting is not for a public purpose”, nor would it “purport to address matters that are reserved to the Committee.”
The agenda for the “informal meeting” as indicated by Legal Counsel refers to:
- CUNY first—access levels
- Improvements in advisement
- Retention strategies
- Admissions and enrollment challenges
- Academic program assessment plans
- The Spring 2015 schedule –due date—September 17th
- Workshops- -students
- Website updates
- New business
Based on the description of the responsibilities of CGS quoted earlier, it appears that all or most of the agenda items fall within the areas of its charge. Assuming that to be so, and assuming that a majority of the members of the CGS attend and participate as members of that entity, I believe that the kind of gathering at issue would constitute a “meeting” of the CGS required to be conducted in accordance with the OML. The College is a governmental entity, and the items considered clearly relate to “public purposes.” Further, as recognized in the guidance provided by CUNY’s General Counsel in Appendix C, it is irrelevant that an entity may have no intention of taking action or making policy; if a majority gathers merely to discuss public business, such a gathering constitutes a “meeting” that falls within the scope of the OML.
The contentions offered by Legal Counsel that seek to distinguish an advisory function from a decision making function relate to whether an entity is a “public body” and, therefore, subject to the OML. If, as you indicated at the outset, it has been acknowledged and established that CGS is indeed a public body required to comply with the OML, those contentions would, in my view, be misplaced and irrelevant.
In sum and in consideration of the preceding commentary, it is my opinion that the “informal meetings” during which a majority of the members of the CGS participate are subject to the OML.
I hope that I have been of assistance.
Robert J. Freeman