March 23, 1993
Ms. Christine Owad
Windham, N.Y. 12496
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. Owad:
I have received your recent letter, as well as correspondence relating to it. You have sought an advisory opinion concerning a matter involving the Town of Windham Architectural Review Board, upon which you serve as one of six members.
According to your letter, at a meeting held on February 22, the Board considered a sign permit application, and a vote on the issue resulted in a tie, with three members voting in favor and three voting against. Notwithstanding the foregoing, Board members received a copy of a communication dated February 24 from the Chairman of the Board, entitled "Decision", in which he wrote that the proposed sign "was in complete conformity with the sign permit rules but was rejected by some of the board members," adding that "[t]he board is in an impasse 3 for - 3 against and in this Chairman's opinion they (the 3 no voters) are acting arbitrarily and capricious manner." Finally, he wrote that "[t]here is no legal reason to deny this permit and as Chairman and acting in good faith and in the interest of justice I am approving the permit."
In conjunction with the foregoing, you asked whether the Chairman's decision is "legal", whether a seventh vote can be "created" by the Chairman, and what is the "appropriate way to handle a tie vote."
In this regard, I offer the following comments.
First, the Open Meetings Law applies to meetings 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 Architectural Review Board in my view clearly constitutes a "public body."
Second, 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 on exercised by them jointly or as a board or similar body, a majority of the whole number of such persons or officers, at a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board or body, or at any duly adjourned meeting of such meeting, or at a 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 one of the persons or officers disqualified from acting."
Based upon the foregoing, a quorum is a majority of the total membership of a public body, notwithstanding absences or vacancies, for example. 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 six members, four affirmative votes would be needed to approve a motion or to take action. In addition, when the Open Meetings Law is read in conjunction with §41 of the General Construction Law, I believe that action may be taken only at a meeting during which a majority of the total membership of a public body is present.
Based on the foregoing, in my view, a tie vote, or an affirmative vote of less than a majority of the Board's total membership resulted in a failure to approve the motion to grant the application for the permit. Moreover, unless there is some statutory basis to do so, the chairman in my view has no authority to render a "decision" unilaterally or to cast more than one vote, notwithstanding his views on the issue. While as chairman of the Board, as one of six members, he has no greater authority in terms of the weight of his vote than any other member. In short, I do not believe that the Chairman, acting outside the context of a meeting during which a quorum of the Board is present, has the authority to render a "decision" or otherwise alter the outcome of a tie vote or a negative vote of the Board by means of his individual action.
Lastly, from my perspective, the deliberative process of a public body, which may involve compromise and "give and take" by the members, serves as the appropriate method of dealing with a tie vote or an "impasse". Through deliberations and persuasion, I believe that ties can most often be broken.
I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.
Robert J. Freeman