June 5, 1995
Hon. Betty A. Fasulo
70 Jackson Street
Fishkill, NY 12524
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 Trustee Fasulo:
I have received your letter of May 4, as well as the materials attached to it.
In your capacity as a member of the Board of Trustees of the Village of Fishkill, you complained that recent meetings have been held on an unscheduled basis on short notice, and that you and another member have been unable to attend. It is your view that there has essentially been a "purposeful exclusion of two trustees" by holding such "irregularly scheduled" meetings, and you contend that there was "no imperative reason" for conducting the meetings at the times they were held. In a letter to the Mayor and the Board of Trustees, you wrote that:
"As the May 1 minutes will reflect, when it became apparent that the full Board could not be present for the Friday night meeting, that the Mayor was determined to have the meeting as long as a quorum was available, and that the protest to this action would be ignored, it became apparent that this meeting was pre-arranged and designed to exclude two trustees. It is pertinent to note here that contained in the minutes of the April 26, 1995 meeting the Mayor states:
'The Board doesn't run the Village. The Mayor is the chief fiscal officer in the municipality. Remember that, don't forget that.'
"Arranging a meeting to preclude two (minority) voices from being heard on issues of such great consequence for this Village violates the spirit and intent of democracy. Under these circumstances, I am preempted from representing my constituents; I am excluded from the process of government and from fulfilling my responsibilities as trustee."
In this regard, I offer the following comments.
First, while the Mayor may have a variety of duties, §4-412 of the Village Law indicates that a board of trustees has general authority with respect to the conduct of governmental affairs. Subdivision (1) of that provision states that:
"In addition to any other powers conferred upon villages, the board of trustees of a village shall have management of village property and finances, may take all measures and do all acts, by local law, not inconsistent with the provisions of the constitution, and not inconsistent with a general law except as authorized by the municipal home rule law, which shall be deemed expedient or desirable for the good government of the village, its management and business, the protection of its property, the safety, health, comfort, and general welfare of its inhabitants, the protection of their property, the preservation of peace and good order, the suppression of vice, the benefit of trade, and the preservation and protection of public works. The board of trustees may create or abolish by resolution offices, boards, agencies and commissions and delegate to said offices, boards agencies and commissions so much of its powers, duties and functions as it shall deem necessary for effectuating or administering the board of trustees duties and functions."
Further, although subdivision (2) of §4-412 authorizes a mayor to preside at meetings of a board of trustees, it also provides that "[t]he board may determine the rules of its procedure." If you believe that it would be appropriate to do so, you might propose rules concerning the scheduling of meetings or perhaps the assent of a certain number of members relative to holding unscheduled meetings.
Second, while it is not necessarily inappropriate to do so, conducting unscheduled meetings may diminish the effectiveness of the Open Meetings Law. When unscheduled meetings are held, members of the public who might otherwise have an interest in attending may be unable to do so.
By way of background, the Open Meetings Law requires that notice be given to the news media and posted prior to every meeting. Specifically, section 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 reference to "unscheduled", "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.
However, 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 understanding of the Open Meetings Law, copies of this opinion will be forwarded to the Mayor and the Board of Trustees. I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.
Robert J. Freeman
cc: Hon. George Carter, Mayor
Board of Trustees