October 27, 1993
Mr. Garnold E. Hance, Business Manager
Brasher Falls Central School District
St. Lawrence Central School
Rt. 11 - PO Box 307
Brasher Falls, NY 13613
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. Hance:
I have received your letter of September 17. In your capacity as Chairman of the St. Lawrence-Lewis Counties School Employee Health Plan Committee, you wrote that a question was recently raised "as to whether or not [that] Committee would be a public body subject to the Open Meetings Law, and open to the public."
According to the Plan's by-laws, the Committee includes one representative from each participating school district, who "shall be the Chief School Officer or his designee", and each representative has one vote. The by-laws include a quorum requirement, references to officers and minutes of meetings, and they specify the Committee's responsibilities. Those responsibilities include the operation of an insurance program in the best interest of member schools, review of the adequacy of coverage, establishment of rates, preparation of an annual report to be made to participating boards of education, promulgation of requirements for new entrants, and determination of the method of reserve distribution on an annual basis.
In this regard, I offer the following comments.
As you are aware, the Open Meetings Law is applicable to meetings of 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."
I point out that, recent decisions indicate generally that advisory ad hoc entities, other than committees consisting solely of members of public bodies, having no power to take final action fall outside the scope of the Open Meetings Law. As stated in those decisions: "it has long been held that the mere giving of advice, even about governmental matters is not itself a governmental function" [Goodson-Todman Enterprises, Ltd. v. Town Board of Milan, 542 NYS 2d 373, 374, 151 AD 2d 642 (1989); Poughkeepsie Newspapers v. Mayor's Intergovernmental Task Force, 145 AD 2d 65, 67 (1989); see also New York Public Interest Research Group v. Governor's Advisory Commission, 507 NYS 2d 798, aff'd with no opinion, 135 AD 2d 1149, motion for leave to appeal denied, 71 NY 2d 964 (1988)]. Therefore, an advisory body such as a citizens' advisory committee, would not in my opinion be subject to the Open Meetings Law.
In the case of the Committee at issue, however, based upon its by-laws, its functions include the authority to take final action on behalf of member school districts. Further, the by-laws indicate that the Committee has each of the characteristics necessary to conclude that it is a public body. Specifically, it consists of at least two members, it carries out its duties pursuant to quorum requirements, and it conducts public business and performs a governmental function, in that it carries out various responsibilities and acts for or on behalf of several boards of education, which are the governing bodies of public corporations (school districts).
For the foregoing reasons, I believe that the Committee is a public body required to comply with the Open Meetings Law. As such, in my opinion, its meetings must be preceded by notice and conducted open to the public, unless an executive session may properly be held.
I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.
Robert J. Freeman