August 20, 1993
Mr. Tom de Peyster, Chair
P.O. Box 573
Valatie, NY 12184
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. de Peyster:
Ms. Marilyn E. Kaplan has asked that I prepare an advisory opinion concerning "the number of affirmative votes required to pass an action at a local Planning Board."
In this regard, the Open Meetings Law applies to public bodies, and §102(2) of that statute 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."
As such, a planning board clearly constitutes a public body required to comply with the Open Meetings Law.
Perhaps of primary significance, however, is §41 of the General Construction Law, which has been in effect since 1909. That 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 duty held at a time fixed by law, or by and 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; the number of the total membership determines what a quorum is, and absences or vacancies do not alter quorum requirements. 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 eight members, for example, five would constitute a quorum, and five affirmative votes would be needed to approve a motion, even if as few as five members are present.
It is also noted that §41 of the General Construction Law has been interpreted by the courts on various occasions regarding abstentions. In short, it has consistently been found that an abstention cannot be counted as an affirmative vote and that action may be taken only by means of an affirmative vote or the majority of the total membership of a public body [see e.g., Rockland Woods, Inc. v. Suffern, 40 AD 2d 385 (1973); Walt Whitman Game Room, Inc. v. Zoning Board of Appeals, 54 AD 2d 764 (1975); Guiliano v. Entress, 4 Misc. 2d 546 (1957); and Downing v. Gaynor, 47 Misc. 2d 535 (1965); also Ops Atty Gen 88-87 (informal)]. In the opinion of the Attorney General cited above, it was advised that on a seven member board where two members are absent and two others abstain, no action can be taken.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Marilyn E. Kaplan