July 20, 2016

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. Dear :

We have received your letter of July 14, 2016 concerning “contradictory information regarding public hearings.

” In brief, in a publication of the Department of State, “Conducting Public Meetings and Public Hearings”, it is advised that when a hearing is conducted, there must be “a quorum present”, and the entity holding the hearing “must comply with the requirements of the Open Meetings Law, as well as with the specific requirements found elsewhere that relate to the hearing itself.”

As suggested in an advisory opinion addressed to you on January 7 of this year, there are, in our view, instances in which a “hearing” and a “meeting” overlap. A “meeting”, according to the language of the Open Meetings Law and judicial precedent, involves a gathering of a majority of a public body for the purpose of conducting public business. A quorum, based on ยง41 of the General Construction Law, which pertains to the manner in which laws are to be construed, is a majority of the total membership of a public body, notwithstanding absences or vacancies. When a majority of a public body conducts a hearing, it has been advised that the hearing is also a meeting.

I believe that this is the source of the inconsistency to which you referred. One statute, the Open Meetings Law, applies generally to all public bodies in New York. Again, a meeting of a public body involves a quorum of its members who have convened to conduct public business. However, there is no general law pertaining to hearings, and an array of separate laws relate to public hearings. By means of example, separate provisions and requirements have been enacted in the Education Law regarding the hearing held prior to the adoption of a school district budget, in the Town Law concerning the hearing held before the adoption of a town budget, and in the Village Law before the adoption of a village budget. I know of no provision of law specifying that a quorum must be present in order to conduct those or other public hearings.

It is not uncommon for a hearing to be held without the presence of a quorum. Assembly and Senate hearings are routinely held by less than a majority of the members of the committee or committees conducting a hearing. County legislatures have on many occasions held hearings prior to the adoption of their budgets, even though no quorum was present.

Our Assistant Director, Kristin O’Neill, and I have discussed quorum requirements relative to public hearings with others, notably attorneys here at the Department of State and those employed by local government associations. In truth, some believe that a quorum must be present to conduct a hearing; others disagree. None of us has been able to locate a judicial decision specifying the need or absence of a need for the presence of a quorum in order to hold a hearing. We have simply agreed to disagree.

In consideration of the absence of law on the subject, as well as the common practice of holding hearings without the presence of a quorum, while we believe that the presence of a quorum is optimal, we continue to believe that it is not required.


Robert J. Freeman Executive Director

cc: Honorable Rossana Rosado, Secretary of State