April 10, 1995
Ms. Faleasha Salvatore
R.D. Box 186
Middleburgh, NY 12122
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. Salvatore:
I have received your letter of March 2, which reached this office on March 9.
According to your letter, as part of a school assignment, you were supposed to attend a meeting of a board of education scheduled to start at 8 p.m. However, upon arriving at 7:55, you learned that the meeting began twenty minutes early and was already over.
You have asked whether it is "legal to start a Board of Education meeting early" and what is the "legal status of the business they conducted."
In this regard, I offer the following comments.
From my perspective, if notice was given indicating that the meeting would begin at 8 p.m., the Board should have waited until that time to begin conducting its business. Alternatively, if there was a need to convene earlier than the time specified in the original notice, I believe that the Board should have made additional notices to the news media and at the location where notice is posted to reflect the actual time when the meeting would begin. If no notice was given of the actual time that the meeting convened, it would appear that the meeting was held, in effect, in private. When action is taken in private in violation of the Open Meetings Law, a court is authorized to invalidate such action.
Section 104 of the Open Meetings Law pertains to notice of meetings and requires that every meeting be preceded by notice given to the news media and posted. That provision states 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.
Lastly, with respect to the enforcement of the Open Meetings Law, §107(1) of the Law states in part that:
"Any aggrieved person shall have standing to enforce the provisions of this article against a public body by the commencement of a proceeding pursuant to article seventy-eight of the civil practice law and rules, and/or an action for declaratory judgment and injunctive relief. In any such action or proceeding, the court shall have the power, in its discretion, upon good cause shown, to declare any action or part thereof taken in violation of this article void in whole or in part."
However, the same provision states further that:
"An unintentional failure to fully comply with the notice provisions required by this article shall not alone be grounds for invalidating any action taken at a meeting of a public body."
As such, when a legal challenge is initiated relating to a failure to provide notice, a key issue is whether a failure to comply with the notice requirements imposed by the Open Meetings Law was "unintentional".
I hope that I have been of some assistance.
Robert J. Freeman
cc: Board of Education