September 21, 1994
Ms. Gail S. Shaffer
Secretary of State
Dept. of State
162 Washington Avenue
Albany, NY 12231
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.
Dear Secretary Shaffer:
Your interest in compliance with the Open Meetings Law is greatly appreciated. You have sought my opinion concerning a matter described in a letter addressed to you by Sal J. Sialiano, a member of the Yonkers City Council.
The situation to which he referred involved a visit to your office and the State Comptroller's Office in Albany by some fifteen officials of the City of Yonkers, including Councilman Sialiano and four other Councilmembers. In this regard, as you are aware, the Open Meetings Law applies to meetings of public bodies. Section 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." Based on the foregoing, the staff of the executive or legislative branches of a city government do not constitute a public body. When staff people gather, either among themselves, or perhaps with the head of a State agency and his or her staff, no public body is present, and the Open Meetings Law is inapplicable. Nevertheless, when a majority of a public body gathers to conduct public business, the Open Meetings Law clearly applies.
It is emphasized that the definition of "meeting" [see Open Meetings Law, §102(1)] 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, Second Department, which includes Westchester County and 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).
The court also dealt with the characterization of meetings as "informal," stating that:
"The word 'formal' is defined merely as 'following or according with established form, custom, or rule' (Webster's Third New Int. Dictionary). We believe that it was inserted to safeguard the rights of members of a public body to engage in ordinary social transactions, but not to permit the use of this safeguard as a vehicle by which it precludes the application of the law to gatherings which have as their true purpose the discussion of the business of a public body" (id.).
Based upon the direction given by the courts, when a majority of a public body gathers to discuss public business, in their capacities as members of the body, any such gathering, in my opinion, would constitute a "meeting" subject to the Open Meetings Law.
It is noted, too, that in a relatively recent decision, it was held that a gathering of a quorum of a city council for the purpose of holding a "planned informal conference" involving a matter of public business constituted a meeting that fell within the scope of the Open Meetings Law, even though the council was asked to attend by a person who was not a member [Goodson-Todman v. Kingston Common Council, 153 AD 2d 103 (1990)].
If a majority of the City Council had met in Albany to discuss public business, I believe that it would have done so in a manner inconsistent with the Open Meetings Law. In my opinion, a meeting of a municipal body must be held at a location where members of the public who might want to attend could reasonably do so. Again, since a majority of the City Council was present, a "meeting" would have occurred; nevertheless, residents of the City, despite their possible interest in the matters under consideration, would have been unable to attend.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Hon. Sal J. Sialiano