February 24, 2015

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 have received your letter and hope that you will accept my apologies for the delay in response.  You have requested an advisory opinion concerning a meeting of the City Council of the City of Mount Vernon.

According to your letter, “on or about December 29”, an “email notice of a special City Council meeting” was given regarding a meeting to be held at noon the next day “to vote on whether to override the New York State Municipal Tax Cap.”  You added that the meeting “carrie[d] with it an immense amount of importance to the stakeholders in the City of Mount Vernon.”

You wrote that the City “does not post its meeting notice in a designated conspicuous place to which the public has access”, and because notice was given less than 72 hours in advance, you contend that “most of the stakeholders of Mount Vernon are not available at 12:00 noon”.  That being so, you questioned whether scheduling and conducting a meeting at that time would “constitute a deprivation of the public’s right to ‘retain control of their public servants’” and preclude the public from being “fully aware of” and able to “observe the performance of public officials.”

Those questions reflect elements of the statement of intent that appears in section 100 of the Open Meetings Law.  While the intent of the law is significant, critical are the specific language of the law, its judicial interpretation, and reasonableness.

With regard to the language of the law, §104 of the Open Meetings Law pertains to notice of meetings and requires that:
“1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before such meeting.
2. Public notice of the time and place of every other meeting shall be given to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.
3. The public notice provided for by this section shall not be construed to require publication as a legal notice.
4. If videoconferencing is used to conduct a meeting, the public notice for the meeting shall inform the public that videoconferencing will be used, identify the locations for the meeting, and state that the public has the right to attend the meeting at any of the locations.”
Additionally, in 2009, a new subdivision (5) states that:
“5. When a public body has the ability to do so, notice of the time and place of a meeting given in accordance with subdivision one or two of this section, shall also be conspicuously posted on the public body’s internet website.”
Section 104 now imposes a three-fold requirement:  first, that notice must be posted in one or more conspicuous, public locations; second, that notice must be given to the news media; and third, that notice must be conspicuously posted on the body’s website, when there is an ability to do so. The requirement that notice of a meeting be "posted" in one or more "designated" locations, in our opinion, mandates that a public body, by resolution or through the adoption of policy or a directive, select one or more specific locations where notice of meetings will consistently and regularly be posted. If, for instance, a bulletin board located at the entrance of a City Hall has been designated as a location for posting notices of meetings, the public has the ability to know where to ascertain whether and when meetings of a the City Council will be held.  Similarly, every public body with the ability to do so must post notice of the time and place of every meeting online. 
There is nothing in the Open Meetings Law that refers specifically to “emergency” or “special” meetings.  However, the judicial interpretation of the Open Meetings Law suggests that the propriety of scheduling a meeting less than a week in advance is dependent upon the actual need to do so.  As stated in Previdi v. Hirsch:
"Whether abbreviated notice is 'practicable' or 'reasonable' in a given case depends on the necessity for same.  Here, respondents virtually concede a lack of urgency: They deny petitioner's characterization of the session as an 'emergency' and maintain nothing of substance was transacted at the meeting except to discuss the status of litigation and to authorize, pro forma, their insurance carrier's involvement in negotiations.  It is manifest then that the executive session could easily have been scheduled for another date with only minimum delay.  In that event respondents could even have provided the more extensive notice required by POL §104(1).  Only respondent's choice in scheduling prevented this result.
"Moreover, given the short notice provided by respondents, it should have been apparent that the posting of a single notice in the School District offices would hardly serve to apprise the public that an executive session was being called...

"In White v. Battaglia, 79 A.D. 2d 880, 881, 434 N.Y.S.ed 637, lv. to app. den. 53 N.Y.2d 603, 439 N.Y.S.2d 1027, 421 N.E.2d 854, the Court condemned an almost identical method of notice as one at bar:
"Fay Powell, then president of the board, began contacting board members at 4:00 p.m. on June 27 to ask them to attend a meeting at 7:30 that evening at the central office, which was not the usual meeting date or place. The only notice given to the public was one typewritten announcement posted on the central office bulletin board...Special Term could find on this record that appellants violated the...Public Officers that notice was not given 'to the extent practicable, to the news media' nor was it 'conspicuously posted in one or more designated public locations' at a reasonable time 'prior thereto' (emphasis added)" [524 NYS 2d 643, 645 (1988)].
Based upon the foregoing, absent an emergency or urgency, the Court in Previdi suggested that it would be unreasonable to conduct meetings on short notice, unless there is some necessity to do so.  If there was no urgency associated with the issue considered during the meeting to which you referred, in my view, it should not have been held on such short notice.  More importantly, even if there is an emergency that necessitates scheduling and conducting meetings quickly, the Open Meetings Law requires that notice be given.  It is not difficult to accomplish compliance with §104; notice of the time and place of a meeting can be given to the news media by email, fax or phone; notice can quickly posted in one or more conspicuous public locations; and when it is feasible for an entity to do so, notice can be posted on the entity’s website without delay.

I am unaware of whether there was a deadline for taking action relative to an override of the tax cap.  If there was no necessity of meeting within less than 72 hours, based on the judicial precedent cited above, t the meeting at issue would appear to have been held in a manner inconsistent with the Open Meetings Law.

Lastly, with regard to the time of the meeting, noon, I would conjecture that a court would find that a meeting scheduled at that time, during what most would characterize as regular business hours, would be reasonable.  It has been advised that a meeting scheduled early in the morning, i.e., 7 a.m., or late at night, i.e., starting at 11 p.m., would be unreasonable, for most interested in attending would not have reasonable ability to do so.  Although many “stakeholders” undoubtedly work at noon on regular business days, meetings of public bodies are routinely held during regular business hours.  In my view, there is no time that would accommodate all of those interested in attending meetings.  Some have argued that evening meetings interfere with school events, games or other activities. In short, while it is clear that meetings held at extremely early or late times would be unreasonable, again, it is doubtful in my opinion that a court would determine that noon is an unreasonable time to conduct a meeting.

I hope that I have been of assistance.  In an effort to enhance knowledge of and compliance with the Open Meetings Law, a copy of this opinion will be sent to the City Council.


Robert J. Freeman

Executive Director


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