May 11, 1995
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 March 28 in which you requested an advisory opinion concerning the Open Meetings Law.
As indicated in prior correspondence, certain members of Greenburgh Eleven Federation of Teachers who were suspended have been "prohibited from entering its [District] grounds", even to attend meetings of the Board of Education. You wrote that a meeting was scheduled to be held on March 20 at 7:30 a.m. and indicated that:
"The notice of the meeting was posted on Friday March 17, 1995 within the school building in a single isolated area within the superintendents outer office. The building was inaccessible during the weekend to the general public and not accessible at any time to suspended staff members who had previously indicated a desire to attend all Board meetings and who had been denied admittance to the cancelled March 10 meeting.
"The Board reportedly went into executive session five minutes after convening at approximately 7:30. The Board did not reconvene until approximately 8:40 and remained in public session for about 10 minutes. From the reports following the meeting, it appears the superintendent's contract was extended at this meeting."
You have sought my views on the matter.
In my opinion, the fact that you and others might have been prohibited from entering school grounds is ancillary to the matter. If indeed a single notice was posted in an "isolated area" on a Friday concerning a meeting to be held on Monday, and if the building was closed to the public during the weekend, I believe that the Board failed to comply with the Open Meetings Law.
The Open Meetings Law requires that notice be given to the news media and posted prior to every meeting. 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. Although the Open Meetings Law does not make specific reference to special or emergency meetings, 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.
It is emphasized that notice must be "conspicuously posted in one or more designated public locations." Consequently, I believe that a public body must designate, presumably by resolution, the location or locations where it will routinely post notice of meetings. To meet the requirement that notice be "conspicuously posted", notice must in my view be placed at a location that is visible to the public. As I understand the situation, notice was not posted conspicuously in a location visible to the public.
Moreover, the judicial interpretation of the Open Meetings Law suggests that the propriety of scheduling a meeting less than a week in advance is 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 §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 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. Further, absent an emergency or urgency, the Court in Previdi suggested that it would be unreasonable to conduct meetings on short notice, unless there is some necessity to do so.
In an effort to provide guidance and enhance compliance with the Open Meetings Law, a copy of this opinion will be forwarded to the District.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Board of Education