Sent: Monday, January 12, 2015 10:17 AM
Subject: RE: Request for an Advisory Opinion
Attachments: F3044.pdf; F3597.pdf

Based on a decision rendered by the Appellate Division, Fourth Department, which includes Erie County,
the gatherings to which you referred held to discuss County business would not be political caucuses
exempt from the Open Meetings Law, but rather “meetings” that fall within the coverage of the Open
Meetings Law (OML) when they involve discussions of County business. That decision, New Yorkers for
Constitutional Freedoms v. New York State Senate [98 AD3d 285 (2012)], dealt with the issues that you
raised, for it pertained a gathering of a republican members of the State Senate, constituting a majority
of that body, with the Governor, a democrat, and New York City Mayor Bloomberg, who lobbied on
behalf of the Marriage Equality Act. In brief, it was determined that the gathering was validly closed
based on the exemption concerning political caucuses found in §108(2) of the OML, and that the
presence of guests who are not members of that body or registered republicans, did not eliminate the
applicability of that exemption.

In the situation that you described, the Erie County Legislature consists of eleven members, and four
republicans, one member of the conservative party and another who is a member of the independence
party, gather together and conduct political caucuses. It is assumed that those gatherings are
conducted in private.

The Court quoted what it characterized as the “first part” of the political caucus exemption, which states
that “the deliberations of political committees, conferences and caucuses means a private meeting of
members of the senate or assembly of the state of New York, or of the legislative body of a county, city,
town or village, who are members or adherents of the same political party” (emphasis added by the
court). The Court found that the exemption pertains to members of a legislative body and offered
examples to clarify its point, stating that “under section 108 (2)(b), the Puerto Rican/Latino Caucus of
the State Senate would not be entitled to the benefit of the exemption to the extent that the Caucus is
comprised of members of different political parties, nor would the Legislative Women’s Caucus of New
York State qualify for the exemption were it comprised of members of varying political parties from one
house of the legislature (emphasis added). Rather, the only caucuses to which the exemption applies
are those comprised of members of the same political party, and that limitation arises from the
legislature’s inclusion of language restricting eligible caucuses only to those private meetings of
members…of the same political party” (id., 292-293). The term “members” in the context of the
decision pertains to members of the legislative body who are members of the same political party.

In referring to the “second part” of the exemption, the Court focused on “the provision that exemption
applies without regard to whether the caucuses invite staff or guests to participate in their
deliberations…and whether the definition of ‘guests’ in the exemption must be limited to people of the
same political party as those of the political caucus seeking the exemption, and thus whether the
attendance of Mayor Bloomberg and Governor Cuomo, respectively, at the Bloomberg and Cuomo
meetings removed those meetings from the protection of the exemption because neither Mayor
Bloomberg nor Governor Cuomo is a registered Republican” (id.).
In resolving that issue, it was held, clearly and directly “We conclude that the plain language of the
statute does not support plaintiffs’ position” referring to a guest “as a person who is invited to…take
part in a function organized by another” (id.).

In sum, because the gatherings to which you referred include republican, conservative and
independence party members who, together, comprise a majority of the County Legislature, insofar as
such gatherings are held to discuss Erie County business, I believe that they constitute “meetings”
subject to the OML, and that the exemption from the OML regarding political caucuses would not apply.

Attached are advisory opinions that deal in part with the provisions in the Election Law dealing with the
same issue as well as political party registration.

I hope that I have been of assistance.
Bob Freeman