OML AO 5630A
By electronic mail only
March 25, 2020
Re: Request for Advisory Opinion on Behalf of New York State Cemetery Board
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence, except as otherwise indicated.
You seek an advisory opinion regarding the application of the New York State Open Meetings
Law (“OML”), the quorum requirements of New York State General Construction Law (“GCL”) § 41, and
Governor Andrew M. Cuomo’s New York State Executive Order 202.1 (the “Order”), to meetings of the New York State Cemetery Board (the “Board”). Specifically, you ask whether the Board may achieve for legal purposes a quorum by telephone for its meetings while the Order is effective.
By way of brief background, the Board was created pursuant to Article 15 of the New York State Not-for-Profit Corporation Law, is a “public body” as that term is defined in the OML, and accordingly is required to comply with the OML. The Board consists of three ex-officio members: the New York State Secretary of State, New York State Attorney General, and New York State Commissioner of Health, or their designees.
In general and in the absence of the Order, which is discussed below, the OML and the GCL require that voting and action by a public body may occur only at a meeting during which a quorum has physically, or virtually by videoconference, convened. Section 102(1) of the OML defines the term “meeting” as “the official convening of a public body for the purpose of conducting public business, including the use of videoconferencing for attendance and participation by the members of the public body.” The term “quorum” is defined in § 41 of the General Construction Law as:
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 . . . , shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty.
In summary, therefore, prior to the issuance of Executive Order 202.1, a valid meeting of a public body could occur only when a majority of the total membership of that body – a quorum – had “gathered together in the presence of each other or through the use of videoconferencing.” However, on March 13, 2020, Governor Cuomo, in response to a disaster emergency declared pursuant to New York State Executive Law § 28, issued Executive Order 202.1 suspending certain aspects of the OML relating to inperson attendance. The Order provides, in relevant part:
Suspension of law allowing the attendance of meetings telephonically or other similar service:
Article 7 of the Public Officers Law, to the extent necessary to permit any public body to meet and take such actions authorized by the law without permitting in public in-person access to meetings and authorizing such meetings to be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed.
In the Committee’s view, the plain language of the Order temporarily suspends the requirement that otherwise exists pursuant to the provisions of the OML and GCL discussed above that members of the Board be physically convened or convened by videoconferencing in order to achieve a quorum and conduct the public business of the Board. The Order similarly may fairly be read temporarily to suspend the OML requirement that notice of the meeting include the physical location of each Board member who is participating by telephone or similar means.
Thank you for your inquiry.
Very truly yours,
/s/ Shoshanah Bewlay