January 19, 1995
Ms. Betty Loriz
156 Castle Hill Road
Parksville, NY 12768
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 Ms. Loriz:
I have received your letters of December 6 and December 11, as well as various related materials. You have raised questions concerning an unscheduled "special" meeting of the Board of Education of the Liberty Central School District.
In this regard, the Open Meetings Law makes no specific reference to "special" meetings. Rather, the notice provisions distinguish meetings scheduled at least a week in advance from those scheduled less than a week in advance. Specifically, §104 of that statute provides 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.
In addition, the judicial interpretation of the Open Meetings Law indicates that the propriety of scheduling a meeting less than a week in advance may be dependent upon the actual need to do so. As stated in Previdi v. Hirsch:
"Whether abbreviated notice is 'practicable' or 'reasonable' in a given case depends on the necessity for same. Here, respondents virtually concede a lack of urgency: They deny petitioner's characterization of the session as an 'emergency' and maintain nothing of substance was transacted at the meeting except to discuss the status of litigation and to authorize, pro forma, their insurance carrier's involvement in negotiations. It is manifest then that the executive session could easily have been scheduled for another date with only minimum delay. In that event respondents could even have provided the more extensive notice required by POL section 104(1). Only respondent's choice in scheduling prevented this result.
"Moreover, given the short notice provided by respondents, it should have been apparent that the posting of a single notice in the School District offices would hardly serve to apprise the public that an executive session was being called...
"In White v. Battaglia, 79 A.D.2d 880, 881, 434 N.Y.S.ed 637, lv. to app. den. 53 N.Y.2d 603, 439 N.Y.S.2d 1027, 421 N.E.2d 854, the Court condemned an almost identical method of notice as the one at bar:
"Fay Powell, then president of the board, began contacting board members at 4:00 p.m. on June 27 to ask them to attend a meeting at 7:30 that evening at the central office, which was not the usual meeting date or place. The only notice given to the public was one typewritten announcement posted on the central office bulletin board...Special Term could find on this record that appellants violated the...Public Officers Law...in that notice was not given 'to the extent practicable to the news media' nor was it 'conspicuously posted in one or more designated public locations' at a reasonable time 'prior thereto' (emphasis added)" [524 NYS 2d 643, 645 (1988)].
Based upon the foregoing, merely posting a single notice would fail to comply with the Open Meetings Law, for the Law requires that notice be given to the news media and posted "conspicuously" in one or more "designated public locations" prior to meetings. Absent an emergency or urgency, the Court in Previdi suggested that it would be unreasonable to conduct meetings on short notice. Conversely, providing notice to the news media but failing to post notice would fail to comply with the Law.
Lastly, although the Open Meetings Law does not specify which news media outlet or outlets should receive notice, that law, like any other, should in my opinion be implemented in a manner that gives reasonable effect to its intent. Notice given to a weekly newspaper might not, due to the time of publication, serve to enable that newspaper to inform the public of a meeting. The newspaper might nonetheless send a reporter to cover a meeting. In some circumstances, it may be appropriate to provide notice to a local radio station which could quickly publicize a meeting to be held on short notice.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Board of Education