January 19, 1994
William B. Heebink, Ph.D.
Superintendent of Schools
Port Washington Union Free School District
100 Campus Drive
Port Washington, NY 11050
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. Heebink:
I have received your letter of November 30 in which you indicated that you are familiar with an advisory opinion prepared concerning "the Compact for Learning Central Committees which were created by State regulation". You have asked that I "confirm that this same opinion would be equally applicable to the site-based decision-making committees also established consequent to the same State regulations".
The regulations to which you referred, 8 NYCRR §100.11, require that boards of education "in collaboration with" so-called "compact for learning" or "shared decisionmaking" committees must develop a plan "for the participation by teachers and parents with administrators and school board members in school-based planning and shared decisionmaking". As I interpret your inquiry, the question is whether "school-based" committees created pursuant to the plan adopted by a board of education are subject to the Open Meetings Law.
In conjunction with the following commentary, the answer in my view is dependent upon the nature of the functions conferred upon school-based committees by a district plan.
First, as you may be 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."
The definition quoted above includes reference to a quorum requirement. In this regard, even though the action creating school-based committees might not refer to a quorum requirement, I believe that it is imposed by statute. Specifically, §41 of the General Construction Law, which has been in effect since 1909, 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 dy. 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. Further, a public body cannot do what it is authorized or empowered to do except at a meeting during which a quorum is present.
Second, judicial decisions indicate generally that advisory bodies having no power to take final action, other than committees consisting solely of members of public bodies, 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)].
While the "compact for learning" or "shared decisionmaking" committees do not have the ability to make determinations, according to the Commissioner's regulations, they perform a necessary and integral function in the development of shared decisionmaking plans. Those committees must, by law, be involved in the development of district plans. The regulations also indicate that a plan may be adopted by a board of education or BOCES only "after consultation with and full participation by" such committee, and that the Commissioner may approve a plan only after having found that it "complies with the requirements of this section", i.e., when it is found that a committee was involved in the development of a plan. Further, an appeal may be made to the Commissioner if a board has failed to permit "full participation" of a committee.
In the decisions cited earlier, none of the entities were designated by law to carry out a particular duty and all had purely advisory functions. More analogous to the status of shared decisionmaking committees in my view is the decision rendered in MFY Legal Services v. Toia [402 NYS 2d 510 (1977)]. That case involved an advisory body created by statute to advise the Commissioner of the State Department of Social Services. In MFY, it was found that "[a]lthough the duty of the committee is only to give advice which may be disregarded by the Commissioner, the Commissioner may, in some instances, be prohibited from acting before he receives that advice" (id. 511) and that, "[t]herefore, the giving of advice by the Committee either on their own volition or at the request of the Commissioner is a necessary governmental function for the proper actions of the Social Services Department" (id. 511-512).
Since a plan cannot be adopted absent "collaboration" and participation by those committees, and since they carry out a necessary function in the development of shared decisionmaking plans, I believe that they perform a governmental function and, therefore, are public bodies subject to the Open Meetings Law.
With respect to the entities that are the subject of your inquiry, while the regulations make reference to "school-based" committees, there is no statement concerning their specific role, function or authority. It is my understanding, based upon a discussion with a representative of the State Education Department, that school-based committees carry out their duties in accordance with the plans adopted individually by boards of education in each school district, and that those plans are intended to provide the committees in question with a role in the decision making process. When, for example, a plan provides decision making authority to school-based committees within a district, those committees, in my opinion, would clearly constitute public bodies required to comply with the Open Meetings Law. Similarly, when a school-based committee performs a function analogous to that of the shared decision-making committee, i.e., where the school-based committee has the authority to recommend, and the decision maker or decision making body must consider its recommendations as a condition precedent to taking action, I believe that the committee would be a public body subject to the Open Meetings Law, even when the recommendations need not be followed.
In sum, due to the necessary functions that school-based committees perform pursuant to the Commissioner's regulations and the plans adopted in accordance with those regulations, I believe that those committees constitute "public bodies" subject to the requirements of the Open Meetings Law.
As you may be aware, the provisions of the Open Meetings Law are relatively straightforward, and in my opinion compliance with that statute by school-based committees should not be difficult to accomplish. However, in an effort to facilitate compliance, I offer the following general remarks.
Section 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". 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)].
Inherent in the definition and its judicial interpretation is the notion of intent. If there is an intent that a majority of a public body convene for the purpose of conducting public business, such a gathering would, in my opinion, constitute a meeting subject to the requirements of the Open Meetings Law. However, if there is no intent that a majority of public body will gather for the purpose of conducting public business, collectively, as a body, but rather for the purpose of gaining education and training, for example, I do not believe that the Open Meetings Law would be applicable.
Lastly, §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. Moreover, as indicated in subdivision (3) of §104, the notice given under the Open Meetings Law is not required to be a legal notice; therefore, there is no expense involved in providing notice under 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