December 22, 1993
Mary F. Barter, Ph.D.
Superintendent of Schools
Three Village Central School Districts
200 Nicolls Road
East Setauket, NY 11733-9050
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 Dr. Barter:
As you are aware, your letter of November 15 addressed to the Office of Counsel at the State Education Department has been forwarded to the Committee on Open Government. The Committee is authorized by §109 of the Public Officers Law to advise with respect to the Open Meetings Law.
According to your letter, the Three Village Central School District Board of Education "is planning work session(s) for the purpose of assessing its functioning as a Board", and one or more of those sessions "may involve the use of a consultant to assist the Board in its self assessment process." You asked whether your belief that such sessions need not be open to the public is accurate. Similarly, "should the Board wish to engage in training activities to increase its own knowledge of current trends (TQM, decision making by consensus, strategies for assessing student learning)", you asked whether such sessions may be conducted in private.
In this regard, the Open Meetings applies to meetings of public bodies, and §102(1) of the Law defines the term "meeting" to mean "the official convening of a public body for the purpose of conducting public business". Inherent in the definition is the notion of intent. A chance gathering or a social function, for example, would not in my view constitute a meeting, for there would be no intent on the part of those present to conduct public business, collectively, as a body. Similarly, in situations in which members of a public body are part of a large audience and are present as members of the audience, and not to conduct business as a body, I do not believe that the Open Meetings Law would apply, even though a majority of a public body may be present.
To be sure, 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)].
I point out that the decision rendered by the Court of Appeals was precipitated by contentions made by public bodies that so-called "work sessions" and similar gatherings held for the purpose of discussion, but without an intent to take action, fell outside the scope of the Open Meetings Law. In discussing the issue, the Appellate Division, whose determination was unanimously affirmed by the Court of Appeals, stated that:
"We believe that the Legislature intended to include more than the mere formal act of voting or the formal execution of an official document. Every step of the decision-making process, including the decision itself, is a necessary preliminary to formal action. Formal acts have always been matters of public record and the public has always been made aware of how its officials have voted on an issue. There would be no need for this law if this was all the Legislature intended. Obviously, every thought, as well as every affirmative act of a public official as it relates to and is within the scope of one's official duties is a matter of public concern. It is the entire decision-making process that the Legislature intended to affect by the enactment of this statute" (60 AD 2d 409, 415).
In short, based upon the direction given by the courts, if a majority of the Board gathers to conduct the business of the body, in their capacities as Board members, any such gathering, in my opinion, would constitute a "meeting" subject to the Open Meetings Law.
In the context of the situations that you described, if "self-assessment" sessions are held to discuss interpersonal relations and similar matters, and if the business of the Board is not intended to arise and does not arise, I do not believe that those kinds of gatherings would be subject to the Open Meetings Law. Likewise, if a session is to be held solely for the purpose of educating and training Board members, and if the members do not conduct Board business collectively as a body, the session would not in my view constitute a meeting of a public body subject to the Open Meetings Law.
I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.
Robert J. Freeman