February 23, 1993



Ms. Maria Dibble
Executive Director
Southern Tier Independence Center
107 Chenango Street
Binghamton, NY 13901

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.

Dear Ms. Dibble:

I have received your letter of February 8 in which you requested an advisory opinion concerning the Open Meetings Law.

According to your letter, your organization has been involved in a controversy relating to the opening of a sheltered workshop in Tioga County, and you wrote to the Commissioner of the Office of Mental Retardation and Developmental Disabilities, asking her to withdraw her support for the proposed project. A copy of that letter was obtained by the MRDD Subcommittee of the Tioga County Community Services Board. When two members of your staff attended a meeting of the Subcommittee, the Subcommittee "decided to go into executive session in order to decide how to respond to and handle [your] letter." You have asked whether the executive session was properly held.

In this regard, I offer the following comments.

First, the Open Meetings Law is applicable to meetings of public bodies, and §102(2) of the Open Meetings Law defines the phrase "public body" to include:

"...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." Although the original definition made reference to entities that "transact" public business, the current definition makes reference to entities that "conduct" public business. Moreover, the definition makes specific reference to "committees, subcommittees and similar bodies" of a public body.

Second, based on provisions of the Mental Hygiene Law, I believe that a community services board, or a committee or subcommittee of the board would fall within the requirements of the Open Meetings Law. Section 41.05(b) of the Mental Hygiene Law states that:

"Each local government unit shall have a community services board for services to the mentally ill, the mentally retarded and developmentally disabled and those suffering from alcoholism and substance abuse which shall have separate subcommittees for mental health, mental retardation and developmental disabilities, and alcoholism, except that, at the discretion of the local government, a subcommittee for alcoholism and substance abuse may be substituted for a subcommittee of alcoholism.:

Further, §44.11 of the Mental Hygiene Law states that community services boards shall consist of nine or fifteen members, and that such boards "shall have separate subcommittees for mental health, mental retardation and developmental disabilities, and alcoholism, or, at the discretion of the local government, alcoholism and substance abuse." As such, there is specific statutory reference to the kind of subcommittee that is the subject of your inquiry.

Lastly, as a general matter, the Open Meetings Law is based on a presumption of openness. Stated differently, meetings of public bodies must be conducted open to the public, except to the extent that an executive session may properly be convened. Paragraphs (a) through (h) of §105(1) of the Law specify and limit the subjects that may properly be considered during an executive session. Based upon the facts as I understand them and a review of the grounds for entry into executive session, I do not believe that any of the grounds could appropriately have been asserted to discuss the issue in question.

I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.


Robert J. Freeman
Executive Director


cc: MRDD Subcommittee, Tioga County Community Services Board