December 12, 1994
Mr. Peter W. Sluys
Community Media Inc.
25 W. Central Avenue, Box 93
Pearl River, NY 10965
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 Mr. Sluys:
I have received your letter of October 26 concerning meetings involving members of the Orangetown Town Board.
According to your letter:
"Twice in September, Supervisor Jack Cassidy - a Republican - met with three members of the Orangetown Town Board, all Republicans, together with staff of the Town of Orangetown, including the finance director [a Democrat], the town attorney [a Republican] and other staffers.
"The purpose of these meetings was to discuss the preparation of the town budget of the town of Orangetown.
"The fifth Town Board member, Dr. Edward Fisher, was excluded on the grounds that he was a Democrat, though allegedly he was 'filled in' at what transpired at these meetings thereafter."
On October 18, you wrote to the Supervisor and contended that the Board had violated the Open Meetings Law. In a letter prepared by the Town Attorney, the Supervisor indicated, in brief, that the gatherings in question constituted political caucuses exempt from the Open Meetings Law.
You have sought my opinion on the matter.
In this regard, since the Open Meetings Law became effective in 1977, it has contained an exemption concerning political committees, conferences and caucuses. Again, when a matter is exempted from the Open Meetings Law, the provisions of that statute do not apply. Questions concerning the scope of the so-called "political caucus" exemption have continually arisen, and until 1985, judicial decisions indicated that the exemption pertained only to discussions of political party business. Concurrently, in those decisions, it was held that when a majority of a legislative body met to discuss public business, such a gathering constituted a meeting subject to the Open Meetings Law, even if those in attendance represented a single political party [see e.g., Sciolino v. Ryan, 81 AD 2d 475 (1981)].
Those decisions, however, were essentially reversed by the enactment of an amendment to the Open Meetings Law in 1985. Section 108(2)(a) of the Law now states that exempted from its provisions are: "deliberations of political committees, conferences and caucuses." Further, §108(2)(b) states that:
"for purposes of this section, the deliberations of political committees, conferences and caucuses means a private meeting of members of the senate or assembly of the state of New York, or the legislative body of a county, city, town or village, who are members or adherents of the same political party, without regard to (i) the subject matter under discussion, including discussions of public business, (ii) the majority or minority status of such political committees, conferences and caucuses or (iii) whether such political committees, conferences and caucuses invite staff or guests to participate in their deliberations..."
Therefore, in general, either the majority or minority party members of a legislative body may conduct closed political caucuses, either during or separate from meetings of the public body.
Many local legislative bodies, recognizing the potential effects of the 1985 amendment, have taken action to reject their authority to hold closed caucuses and to continue to conduct their business open to the public as they had prior to the amendment. Additionally, there have been recent developments in case law regarding political caucuses that suggest that the exemption concerning political caucuses has in some instances been asserted as a means of excluding the public from gatherings that have little or no relationship to political party activities or partisan political issues.
One of the decisions, Humphrey v. Posluszny [175 AD 2d 587 (1991)], involved a private meeting held by members of a village board of trustees with representatives of the village police benevolent association. Although the board characterized the gathering as a political caucus outside the scope of the Open Meetings Law, the Appellate Division, Fourth Department, held to the contrary. In a brief discussion of the caucus exemption and its intent, the decision states that:
"The Legislature found that the public interest was promoted by 'private, candid exchange of ideas and points of view among members of each political party concerning the public business to come before legislative bodies' (Legislative Intent of L.1985,ch.136,§1). Nonetheless, what occurred at the meeting at issue went beyond a candid discussion, permissible at an exempt caucus, and amounted to the conduct of public business, in violation of Public Officers Law §103(a) (see, Public Officers Law §100. Accordingly, we declare that the aforesaid meeting was held in violation of the Open Meetings Law" (id., 588).
The Court did not expand upon when or how a line might be drawn between a "candid discussion" among political party members and "the conduct of public business." Although the decision was appealed, the appeal was withdrawn, because the membership on the board changed.
The second decision, Buffalo News v. City of Buffalo Common Council [585 NYS 2d 275 (1992)], involved a political caucus held by a public body consisting solely of members of one political party. As in Humphrey, the court concentrated on the expressed legislative intent regarding the exemption for political caucuses, as well as the statement of intent appearing in §100 of the Open Meetings Law, and found that:
"In a divided legislature where a meeting is restricted to the attendance of members of one political party, regardless of quorum and majority status, perhaps by that very restriction it would be fair to assume the meeting constitutes a political caucus. However, such a conclusion cannot be drawn if the entire legislature is of one party and the stated purpose is to adopt a proposed plan to address the deficit before going public. In view of the overall importance of Article 7, any exemption must be narrowly construed so that it will not render Section 100 meaningless. Therefore, the meeting of February 8, 1992 was in violation of Article 7 of the Open Meetings Law... "When dealing with a Legislature comprised of only one political party, it must be left to the sound discretion of honorable legislators to clearly announce the intent and purpose of future meetings and open the same accordingly consistent with the overall intent of Public Officers Law Article 7" (id., 278).
I hope that the foregoing serves to clarify your understanding of the Open Meetings Law, and that I have been of assistance. A copy of this response will be forwarded to the Town Supervisor.
Robert J. Freeman
cc: Hon. Jack Cassidy, Supervisor