OML-AO-3383 December 10, 2001
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, unless otherwise indicated.
As you are aware, I have received your letter concerning the propriety of a meeting held by members of the Watervliet Board of Education, which you serve as president.
You wrote that the Board consists of five members, and as I understand the matter, three members conducted a meeting on October 16; you and another member were absent. During the course of the meeting the Board took action on several issues, but the vote on two matters was two in favor, none opposed, and one abstention. By the same vote, "a special emergency meeting" was scheduled for the next morning at 9 a.m., and you were contacted by phone and informed of the meeting at 7:30 a.m. on that morning. If my recollection is correct, you indicated by phone that the Board adopted Robert's Rules of Procedure.
If I understand the facts correctly, the votes of two in favor, none opposed and one abstention would not have been approved and the result would have been that no action was taken. Further, the meeting at 9 a.m. on October 17 would not have validly been held. In this regard, I offer the following comments.
First, Robert's Rules do not represent the law of this state, and insofar as those rules may be inconsistent with law, I believe that they would be superseded.
Second, the Open Meetings Law applies to meeting of public bodies, and §102(2) of the Law defines the phrase "public body" to mean:
"...any entity for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body."
Based on the foregoing, the Board of Education is clearly a public body, and a quorum must convene for a public body to conduct public business. Third, the term "quorum" is defined in §41 of the General Construction Law, which has been in effect since 1909. The cited provision states that:
"Whenever three or more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of the whole number of such persons or officers, gathered together in the presence of each other or through the use of videoconferencing, at a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board of body, or at any duly adjourned meeting of such meeting, or at any meeting duly held upon reasonable notice to all of them, shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty. For the purpose of this provision the words 'whole number' shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting."
Based upon language quoted above, a quorum is a majority of the total membership of a public body, notwithstanding absences or vacancies, for example; the number of the total membership determines what a quorum is, and absences or vacancies do not alter quorum requirements. Further, in order to carry a motion or take action, there must be an affirmative vote of a majority of the total membership. Therefore, if a public body consists of five members, three affirmative votes would be needed to approve a motion, even if as few as three members are present.
With respect to the effects of abstentions, §41 of the General Construction Law has been interpreted by the courts on various occasions regarding abstentions. In short, it has consistently been found that an abstention has the effect of a negative vote and that action may be taken only by means of an affirmative vote of the majority of the total membership of a public body [see e.g., Rockland Woods, Inc. v. Suffern, 40 AD 2d 385 (1973); Walt Whitman Game Room, Inc. v. Zoning Board of Appeals, 54 AD 2d 764 (1975); Guiliano v. Entress, 4 Misc. 2d 546 (1957); and Downing v. Gaynor, 47 Misc. 2d 535 (1965); also Ops Atty Gen 88-87 (informal)]. In the opinion of the Attorney General cited above, it was advised that on a seven member board where two members are absent and two others abstain, no action can be validly taken.
In sum, I believe that the Board may carry motions and take action only by means of an affirmative vote of a majority of its total membership, not, as suggested in Roberts Rules, by means of a majority of votes cast. Lastly, with respect to notice of the 9 a.m. meeting, I point out that the Education Law, §1606(3), states that "A meeting of the board may be ordered by any member thereof, by giving not less than twenty-four hours' notice of the same." Based on your rendition of the facts, that requirement was not met.
Additionally, while there is nothing in the Open Meetings Law that directly addresses the matter of notice of special meetings, that statute requires that notice be posted and given to the news media prior to every meeting of a public body. Specifically, §104 of that statute provides 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 each 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."
Stated differently, if a meeting is scheduled at least a week in advance, notice of the time and place must be given to the news media and to the public by means of posting in one or more designated public locations, not less than seventy-two hours prior to the meeting. If a meeting is scheduled less than a week an advance, again, notice of the time and place must be given to the news media and posted in the same manner as described above, "to the extent practicable", at a reasonable time prior to the meeting. Although the Open Meetings Law does not make reference to "special" or "emergency" meetings, if, for example, there is a need to convene quickly, the notice requirements can generally be met by telephoning the local news media and by posting notice in one or more designated locations.
I note that 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 Law...in 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.
I hope that I have been of assistance.
Robert J. Freeman