August 5, 1993
Mr. Ronald A. Jackson
11 Fisher Avenue, Apt. 8B
White Plains, NY 10601
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 Mr. Jackson:
I have received your letter of July 30 in which you requested an opinion concerning certain activities and practices of the Board of the White Plains Housing Authority. In addition, I have listened to a tape recording of a recent meeting of the Board during which you raised questions relating to those practices and activities.
You wrote that prior to its scheduled meeting of July 13, the Authority "conducted a 'phone poll' vote to engage the services of a law firm..." You indicated that you were not called, and that other members may not have been called. Further, you indicated that a meeting was held on July 26 "for which there was no agenda, no board package, no notice to the press, no public notice and in fact, no notice to [you] as an elected Commissioner."
In conjunction with the foregoing, you raised the following questions:
"1. Can the White Plains Housing Authority take any action by telephone poll? - If so, who has to initiate the poll?
2. What is the status of any decision made by phone poll?
3. Can the White Plains Housing Authority hold a meeting without Public notice? - If so, who and how can said meeting be called?
4. What is the status of actions taken in the meeting mentioned in 3. above?
5. What action is called for on the above?
With respect to the first question, although a copy of an opinion previously rendered regarding the same issue was sent to you, I offer the following comments.
It is noted at the outset that there is nothing in the Open Meetings Law that would preclude members of a public body from conferring individually or by telephone. However, a series of communications between individual members or telephone calls among the members which results in a decision or a meeting held by means of a telephone conference, would in my opinion be inconsistent with law.
The definition of "public body" [see Open Meetings Law, §102(2)] refers to entities that are required to conduct public business by means of a quorum. In this regard, 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 of 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, 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 the language quoted above, a public body cannot carry out its powers or duties except by means of an affirmative vote of a majority of its total membership taken at a meeting duly held upon reasonable notice to all of the members. As such, it is my view that a public body has the capacity to carry out its duties only during duly convened meetings that are preceded by reasonable notice given to all members. Therefore, if reasonable notice of a meeting is not given to a member or members, I do not believe that a public body has the authority to perform its duties, even though a majority of its members may be present.
Moreover, §102(1) of the Open Meetings Law defines the term "meeting" to mean "the official convening of a public body for the purpose of conducting public business". In my opinion, the term "convening" means a physical coming together. Further, based upon an ordinary dictionary definition of "convene", that term means:
"1. to summon before a tribunal;
2. to cause to assembly syn see 'SUMMON'" (Webster's Seventh New Collegiate Dictionary, Copyright 1965).
In view of the ordinary definition of "convene", I believe that a "convening" of a quorum requires the assembly of a group in order to constitute a quorum of a public body.
I also direct your attention to the legislative declaration of the Open Meetings Law, §100, which states in part that:
"It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy."
In short, while I believe that members of public bodies may consult with one another individually or by phone, I do not believe that they may validly conduct meetings by means of telephone conferences, vote or make collective determinations by means of telephonic communications.
With regard to the "status of any decision made by phone poll", it is my opinion that those decisions, if reviewed by a court, could be deemed null and void. Again, if action can be taken by a public body only at a meeting during a majority of its membership is present, purported action taken outside the context of a meeting could be considered a nullity.
With regard to your remaining questions, by way of background, it is emphasized that the definition of "meeting" has been broadly interpreted by the courts. In a landmark decision rendered in 1978, the Court of Appeals, the state's highest court, found that any gathering of a quorum of a public body for the purpose of conducting public business is a "meeting" that must be convened open to the public, whether or not there is an intent to take action and regardless of the manner in which a gathering may be characterized [see Orange County Publications v. Council of the City of Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947 (1978)]. Based upon the direction given by the courts, when a quorum of the Board gathers to discuss public business, in their capacities as Board members, any such gathering, in my opinion, would constitute a "meeting" subject to the Open Meetings Law.
Section 104 of the Open Meetings Law pertains to notice of meetings and requires that every meeting be preceded by notice given to the news media and posted. That provision states 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. Therefore, 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.
It is also noted that, while notice of the time and place must be given prior to all meetings, there is no requirement that an agenda or notification of issues to be discussed be given, unless a public body has established rules or procedures requiring additional information in its notices of meetings.
Lastly, with respect to the enforcement of the Open Meetings Law, §107(1) of the Law states in part that:
"Any aggrieved person shall have standing to enforce the provisions of this article against a public body by the commencement of a proceeding pursuant to article seventy-eight of the civil practice law and rules, and/or an action for declaratory judgment and injunctive relief. In any such action or proceeding, the court shall have the power, in its discretion, upon good cause shown, to declare any action or part thereof taken in violation of this article void in whole or in part."
However, the same provision states further that:
"An unintentional failure to fully comply with the notice provisions required by this article shall not alone be grounds for invalidating any action taken at a meeting of a public body."
As such, when a legal challenge is initiated relating to a failure to provide notice, a key issue is whether a failure to comply with the notice requirements imposed by the Open Meetings Law was "unintentional".
In an effort to enhance compliance with and understanding of the Open Meetings Law, a copy of this opinion will be forwarded to the Authority Board. Additionally, your tape recording is enclosed.
I hope that I have been of some assistance.
Robert J. Freeman
cc: White Plains Housing Authority