October 7, 1994



Hon. Richard E. Slagle, Mayor
Village of Celoron
21 Boulevard Avenue
Celoron, NY 14720

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 Mayor Slagle:

I have received your letter of September 16 in which you raised a series of questions relating to meetings of the Village Board of Trustees.

On the date of your letter, we discussed a controversy that arose concerning a Board meeting held on August 22. A resolution was submitted at that meeting to authorize the clerk to attend the Fall Training School sponsored by the New York Conference of Mayors and the Office of the State Comptroller. You and three trustees were present, and the vote on the matter was 2-2. Soon after, a special meeting was held to address a separate issue and to resubmit the resolution to enable the clerk to attend the School. The full Board was present at that meeting and the resolution was approved by a vote of 3-2.

A member of the Board has contended that as Mayor, you cannot vote a second time to break a tie. She referred to a portion of a manual stating that:

"A problem arises when a tie exists even after the mayor or president has voted. For example, when there is a vacancy in office or a trustee is absent and the mayor opts to vote, a tie vote may result; (e.g., two trustees, yes, one trustee, no, and mayor, no). In that situation, the issue at hand has not passed. There is no provision in the State Law to resolve such an occurrence. The Mayor may not vote a second time to break the tie. Municipalities may, however, provide the procedure to be followed when such a tie does occur by local law. If the local law increases or decreases the number of votes which any member of the legislative body is entitled to cast, or if it abolishes, transfers or curtails any power of an elective office, such law is subject to a mandatory referendum."

She also referred to sources of information stating that only village trustees may introduce legislation and, consequently, contends that the mayor of a village may not do so.

From my perspective, the Trustee who has questioned your capacity to vote or introduce legislation likely misunderstands the status and role of a mayor of a village. In short, a mayor is a member of a board of trustees. Section 3-301(4) of the Village Law states that: "The mayor and the trustees of a village shall constitute the board of trustees thereof." In this instance, as Mayor, you are one among five members of the Board of Trustees, which is the legislative body of the Village. Consequently, I believe that you have the same authority to introduce resolutions as any other member of the Board.

Additionally, §4-400(1)(a) of the Village Law states that it is a mayor's responsibility:

"To preside at the meetings of the board of trustees, and may have a vote upon all matters and questions coming before the board and he shall in case of a tie, however on all matters and questions, he shall vote only in his capacity as mayor of the village and his vote shall be considered as one vote" (emphasis added).

As I understand the preceding language, a mayor may but is not required to vote on all matters before the board, unless there is a tie between the members other than the mayor, in which case the mayor is required to vote. If there is a tie between the members when the mayor has voted, which occurred on August 22, the mayor cannot vote twice; in other words, the mayor cannot have two votes on the same matter in order to break a tie. I know of no provision of law, however, that precludes the resubmission of the resolution at a later of meeting of a board, which in fact occurred on August 26. The action taken then was in my view separate and distinct from the vote taken four days earlier. While I believe that your vote on August 26 was required to break what otherwise would have been a tie, that action represented a new action taken by the Board. Clearly you did not cast two votes in the same matter; rather, as prescribed by the Village Law, you cast one vote, as a member of the Board of Trustees, out of a total of five.

You asked whether at the special meeting of August 26 held to discuss the renewal of a bond anticipation note, the Board could act on the resolution concerning attendance by the Clerk at the Training School. In this regard, there is nothing in the Open Meetings Law nor is there any provision of which I an aware in the Village Law that deals specifically with special meetings or the subjects that may be considered at those meetings. Consequently, I do not believe that the Board would have been prohibited from acting on a second resolution concerning the clerk's attendance.

You also raised several questions pertaining to minutes and their correction or amendment. The Open Meetings Law pertains to minutes and provides what might be characterized as minimum requirements concerning the contents of minutes. Specifically, §106 of that statute states that:

"1. Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon.

2. Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter.

3. Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meetings except that minutes taken pursuant to subdivision two hereof shall be available to the public within one week from the date of the executive session."

Based upon the foregoing, although minutes must be prepared and made available within two weeks, it is clear that minutes need not consist of a verbatim account of every comment that was made. It is also noted that in an opinion issued by the State Comptroller, it was advised that when a member of a board requests that his or her statement be entered into the minutes, the board must determine, under its rules of procedure, whether the clerk should record the statement or whether the board will accept the member's statement in writing, which would then be entered as part of the minutes (1980 Op. St. Compt. File #82-181). As such, I do not believe that member of the Board may "order the Clerk to alter the minutes or any other record."

In my opinion, the most important attribute of minutes is that they be accurate. Further, I agree with your inference that when the Trustees vote on the minutes, they are considering "the accuracy of the minutes as a village record," "not on whether they agree with what happened at the meeting."

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director