April 11, 1995
Hon. Ronnie M. Eldridge
The Council of the City of New York
New York, NY 10007
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, unless otherwise indicated.
Dear Council Member Eldridge:
I have received your letter of March 7 in which you requested an advisory opinion concerning the Open Meetings Law. The matter involves what you characterized as the "troubling" process under which the Speaker of the City Council is conducting negotiations and discussions relating to the budget.
The Council consists of 51 members, and you wrote that the Speaker has held meetings regarding the budget with a "team" that includes "all the Chairs of Committees, Sub-Committees and Task Forces." Excluded from those meetings have been 16 Councilmembers including yourself. You added that the meetings are scheduled by the Speaker's staff, which contacts and invites Councilmembers to meetings by phone.
You and several of your colleagues on the Council suggested to the Speaker that the process "is inappropriate and disenfranchises voters." In a letter to the Speaker that you and three other members signed, reference was made to a meeting held on January 30 "to brief members on the Mayor's proposed Budget modification", and you specified that a majority of the Councilmembers were invited and both political parties were present." In response to the letter, you were informed by the Council's General Counsel and Director that the Open Meetings Law only applies when a quorum of a public body is "actually present", that he had been advised that "at no time during the budget briefings held on January 30 for Committee and Subcommittee Chairs was a quorum present", and that, therefore, the Open Meetings Law was inapplicable.
In this regard, I offer the following comments.
The Open Meetings Law is clearly intended to open the deliberative process to the public and provide the right to know how public bodies reach their decisions. As stated in §100 of the Law, its Legislative Declaration:
"It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants. It is the only climate under which the commonweal will prosper and enable the governmental process to operate for the benefit of those who created it."
Moreover, it is emphasized that the Open Meetings Law has been broadly interpreted by the courts. In a landmark decision rendered in 1978, the Court of Appeals found that any gathering of a quorum of a public body for the purpose of conducting public business is a "meeting" that must be convened open to the public, whether or not there is an intent to take action and regardless of the manner in which a gathering may be characterized [see Orange County Publications v. Council of the City of Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947 (1978)].
I point out that the decision rendered by the Court of Appeals was precipitated by contentions made by public bodies that so-called "work sessions" and similar gatherings held for the purpose of discussion, but without an intent to take action, fell outside the scope of the Open Meetings Law. In discussing the issue, the Appellate Division, whose determination was unanimously affirmed by the Court of Appeals, stated that:
"We believe that the Legislature intended to include more than the mere formal act of voting or the formal execution of an official document. Every step of the decision-making process, including the decision itself, is a necessary preliminary to formal action. Formal acts have always been matters of public record and the public has always been made aware of how its officials have voted on an issue. There would be no need for this law if this was all the Legislature intended. Obviously, every thought, as well as every affirmative act of a public official as it relates to and is within the scope of one's official duties is a matter of public concern. It is the entire decision-making process that the Legislature intended to affect by the enactment of this statute" (60 AD 2d 409, 415).
The court also dealt with the characterization of meetings as "informal," stating that:
"The word 'formal' is defined merely as 'following or according with established form, custom, or rule' (Webster's Third New Int. Dictionary). We believe that it was inserted to safeguard the rights of members of a public body to engage in ordinary social transactions, but not to permit the use of this safeguard as a vehicle by which it precludes the application of the law to gatherings which have as their true purpose the discussion of the business of a public body" (id.).
As you are aware, it was held more recently that "a planned informal conference" or a "briefing session" held by a quorum of a public body would constitute a "meeting" subject to the requirements of the Open Meetings Law [see Goodson-Todman v. Kingston, 153 Ad 2d 103, 105 (1990)].
Based upon the terms of the Open Meetings Law and its judicial interpretation, if a majority of Councilmembers gathers at the call of the Speaker to conduct public business, any such gathering would, in my opinion, constitute a "meeting" subject to the Open Meetings Law. Further, when there is an intent to conduct a meeting, the gathering must be preceded by notice given pursuant to §104 of the Open Meetings Law, convened open to the public and conducted in public as required by the Open Meetings Law.
As a general matter, I do not believe that the Open Meetings Law applies unless a quorum is present. Even when a meeting is scheduled and reasonable notice is given to all the members in a manner consistent with the requirements of §41 of the General Construction Law, but less than a majority attends, the gathering would not constitute a "meeting" and the public would have no right to attend. Section 41 of the General Construction Law, entitled "Quorum and majority", states in relevant part that:
"Whenever three of more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of the whole number of such persons or officers, at a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board of body, or at any duly adjourned meeting of such meeting, or at any meeting duly held upon reasonable notice to all of them, shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty."
The issue in the context of your inquiry involves the application of the Open Meetings Law to a situation in which the Speaker (or perhaps a different person or body) invites a majority of Councilmembers to conduct public business and less than a quorum is present, at any given moment, as in the case of the gathering of January 30.
When a majority of members of a public body is invited to convene for the purpose of conducting public business, it can be assumed, in my opinion, that if indeed a majority is present, the gathering is a "meeting" subject to the Open Meetings Law. An exception to that general principle would involve a political caucus that is exempt from the Open Meetings Law pursuant to §108(2) of that statute. The exemption would not apply in this instance because Councilmembers from more than one political party were invited. If a majority of a public body is invited to conduct public business, and the gathering is not a political caucus exempt from the Open Meetings Law, is it reasonable, in view of the overall intent of the Open Meetings Law and §41 of the General Construction Law, not to provide notice the public and the news media or to all the members in a manner consistent with those statutes? When a public body intends to conduct a meeting, to comply with the Open Meetings Law, it would provide notice to the public and the news media, even if, for any number of possible reasons (i.e., weather, illness, traffic), less than a quorum arrives. The point is that if there is an invitation to a majority of members of a public body to convene at a particular time and place to conduct the business of that body, and the gathering is not a political caucus, it should be assumed in my opinion that there is an intent to conduct a meeting. In that circumstance, I believe that it would be unreasonable not to give notice to all the members; further, there may be a failure to comply with law if notice is not given pursuant to §104 of the Open Meetings Law.
Considering the situation from a different perspective, if there is an intent to ensure the presence of less than a quorum at any given time in order to evade the Open Meetings Law, there is a judicial decision that infers that such activity would contravene that statute. As stated in Tri-Village Publishers v. St. Johnsville Board of Education:
"It has been held that, in order for a gathering of members of a public body to constitute a 'meeting' for purposes of the Open Meetings Law, a quorum must be present (Matter of Britt v County of Niagara, 82 AD2d 65, 68-69). In the instant case, there was never a quorum present at any of the private meetings prior to the regular meetings. Thus, none of these constituted a 'meeting' which was required to be conducted in public pursuant to the Open Meetings Law.
"We recognize that a series of less-than-quorum meetings on a particular subject which together involve at least a quorum of the public body could be used by a public body to thwart the purposes of the Open Meetings Law...However, as noted by Special Term, the record in this case contains no evidence to indicate that the members of respondent engaged in any attempt to evade the requirements of the Open Meetings Law" [110 AD 2d 932, 933-934 (1985)].
In Tri-Village, the Court found no evidence indicating an intent to circumvent the Open Meetings Law when a series of meetings were held, each involving less than a quorum of a board of education. However, as I interpret the passage quoted above, when there is an intent to evade the Law by ensuring that less than a quorum is present, such an intent would violate the Open Meetings Law. If there is or has been an intent to circumvent the Open Meetings Law in the context of the situation of your concern, it is likely in my view that it would be found that the Open Meetings Law has been infringed.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Hon. Peter F. Vallone, Speaker
Hon. Sal Albanese
Hon. Joan Griffin McCabe
Hon. Guillermo Linares
Hon. Adam C. Powell