July 3, 2014
FROM: Camille Jobin-Davis, Assistant Director
The staff of the Committee on Open Government is authorized to issued advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence, expect as otherwise.
This is in response to your request for an advisory opinion regarding application of the
Freedom of Information and Open Meetings Law to circumstances surrounding the drafting of
minutes of a meeting of the Town Board of Butternuts, of which you are an elected member.
You included a copy of your March 19 submission to the Ethics Committee for our
consideration, as well as the Town Clerk’s March 6 correspondence to the Town Board and the
Ethics Committee. The Town Clerk has submitted a few additional comments, attached.
As you know, this office has neither the authority nor the expertise to advise with respect
to an ethics complaint; however, on many occasions we have provided advice regarding the
drafting and approving of minutes, and it is in an effort to illuminate some of the issues
associated therewith that we offer the following:
A town clerk’s responsibilities with respect to minutes are essentially grounded in
provisions of Town and the Open Meetings Law. Subdivision (1) of §30 of the Town Law states
in relevant part that the town clerk “shall attend all meetings of the town board, act as clerk
thereof, and keep a complete and accurate record of the proceedings of each meeting”. It further
provides that the clerk “shall have such additional powers and perform such additional duties as
are or hereafter may be conferred or imposed upon him by law, and such further duties as the town board may determine, not inconsistent with law”. Finally, Town Law §63 states in part that a town board “may determine the rules of its procedure”.
More specifically regarding the contents of the minutes, Open Meetings Law, §106,
provides as follows:
“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 theron.
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 theron; 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.”
Based on the foregoing, minutes need not consist of a verbatim account of everything that
was said; on the contrary, so long as the minutes include the kinds of information described in
§106, we believe that they would be appropriate and meet legal requirements. Certainly, if a clerk wants to include more information than is required by law, s/he may do so.
Inherent in each of the above provisions is an intent that they be carried out reasonably,
fairly, and with consistency, and that minutes be accurate.
Perhaps most importantly, there is nothing in the law that would prohibit a clerk from or require a clerk to request or receive assistance drafting minutes, nor is there anything that
prohibits anyone from offering or providing such assistance. It is our opinion that a clerk should
and is free to draft minutes with the resources s/he chooses. In our opinion, requesting assistance
from board members or from others who were present, or reviewing a recording when there are
questions, are all positive methods for creating accurate and, therefore, valuable minutes.
Although as a matter of practice, policy or tradition, many public bodies approve minutes
of their meetings, there is nothing in the Open Meetings Law or any other statute of which we
are aware that requires that minutes be approved. In an opinion of the State Comptroller, it was
found that there is no statutory requirement that a town board approve minutes of a meeting, but
that it was “advisable” that a motion to approve minutes be made after the members have had an
opportunity to review the minutes (1954 Ops.St.Compt. File#6609). In our opinion, the practice
of approving minutes is appropriate for clarification purposes, and again, for ensuring accuracy.
We hope that this is helpful.