December 12, 1994



Mr. John Goetschius
Greenburgh Eleven Federation of Teachers
P.O. Box 248
Dobbs Ferry, NY 10522

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. Goetschius:

I have received your letter of November 3 in which you requested an advisory opinion concerning the Open Meetings Law.

Attached to your letter is correspondence addressed to you by the Superintendent of the Greenburgh Eleven Union Free School District. She advised that "staff members, including yourself, who are prohibited from being on the campus due to disciplinary reasons may not attend meetings which are held on the campus" (emphasis supplied by the Superintendent). Although the Superintendent offered to make tape recordings of the meetings available for the "usual $5.00 reproduction fee", she effectively precluded you and certain others from attending meetings of the Board of Education. You added by way of background that "the teachers and staff members being denied access were not dismissed or brought up on dismissal charges for any disruptive behavior or for any unlawful conduct at prior Board of Education meetings."

In my opinion, since the Open Meetings Law confers the right to attend meetings of public bodies upon the "general public", any person would have the right to attend meetings of the Board. The Open Meetings Law does not distinguish between residents and non-residents, employees or others; it simply states in §103 that "Every meeting of a public body shall be open to the general public." From my perspective, when disciplinary action is imposed against an employee, it is imposed upon that person as an employee, not as a member of the general public. While the Superintendent may have the authority to take certain action against you in your capacity as an employee, I do not believe that she has the authority to prohibit any member of the public, including yourself, from attending an open meeting of a public body.

By means of analogy, in a case brought under the Freedom of Information Law, the companion statute of the Open Meetings Law, an agency sought to preclude the use of that law by a person who had initiated litigation against the agency. In rejecting that contention, the Court of Appeals, the State's highest court, held that: "Access to records of a government agency under the Freedom of Information Law (FOIL) (Public Officers Law, Article 6) is not affected by the fact that there is pending or potential litigation between the person making the request and the agency" [Farbman v. NYC Health and Hospitals Corporation, 62 NY 2d 75, 78 (1984)]. Similarly, in an earlier decision, the Court of Appeals determined that "the standing of one who seeks access to records under the Freedom of Information Law is as a member of the public, and is neither enhanced...nor restricted...because he is also a litigant or potential litigant" [Matter of John P. v. Whalen, 54 NY 2d 89, 99 (1980)]. The Court in Farbman, supra, discussed the distinction between the use of the Freedom of Information Law as opposed to the use of discovery in Article 31 of the Civil Practice Law and Rules. Specifically, it was found that:

"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on governmental decision-making, its ambit is not confined to records actually used in the decision-making process (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request.

"CPLR article 31 proceeds under a different premise, and serves quite different concerns. While speaking also of 'full disclosure' article 31 is plainly more restrictive than FOIL. Access to records under CPLR depends on status and need. With goals of promoting both the ascertainment of truth at trial and the prompt disposition of actions (Allen v. Crowell-Collier Pub. Co., 21 NY 2d 403, 407), discovery is at the outset limited to that which is 'material and necessary in the prosecution or defense of an action'" [see Farbman, supra, at 80].

Based upon the foregoing, the pendency of litigation does not affect either the rights of the public or a litigant under the Freedom of Information Law. In the context of your inquiry, the imposition of disciplinary action against you as an employee is in my view irrelevant to your right as a member of the public to attend meetings that are open to the "general public."

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Sandra G. Mallah, Superintendent of Schools