August 10, 1995
Ms. Sylvia B. Rozzelle
Town of Olive
Town Office Bldg.
PO Box 596
West Shokan, NY 12494
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. Rozzelle:
I have received your letter of August 3 and appreciate your kind comments. As Town Clerk of the Town of Olive, you have raised the following questions:
"After Minutes have been prepared by the Town Clerk and presented to Town Board Members, what requirement is there that Town Boards approve Minutes? What authority does the Town Board have to change Town Board Minutes as submitted by the Town Clerk? Additionally, can a Town Board or an individual Town Board member compel the Town Clerk to alter Minutes?"
In this regard, I believe that four provisions are relevant. First, §30(1) of the Town Law states in relevant part that the town clerk "shall attend all meetings of the town board, act as clerk thereof, and keep a complete and accurate records of the proceedings of each meeting..." Second, the Open Meetings Law in §106 provides that:
"1. Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon.
2. Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter.
3. Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meetings except that minutes taken pursuant to subdivision two hereof shall be available to the public within one week from the date of the executive session."
Based on the foregoing, minutes need not consist of a verbatim account of everything that was said; on the contrary, so long as the minutes include the kinds of information described in §106, I believe that they would be appropriate and meet legal requirements. Third, subdivision (11) of §30 of the Town Law provides that the clerk "shall have such additional powers and perform such additional duties as are or hereafter may be conferred or imposed upon him by law, and such further duties as the town board may determine, not inconsistent with law". And fourth, §63 of the Town Law states in part that a town board "may determine the rules of its procedure".
In my opinion, inherent in each of the provisions cited is an intent that they be carried out reasonably, fairly, with consistency, and that minutes be accurate.
With respect to the approval of minutes, although as a matter of practice, policy or tradition, many public bodies approve minutes of their meetings, there is nothing in the Open Meetings Law or any other statute of which I am aware that requires that minutes be approved. I point out that in an opinion of the State Comptroller issued some fifty years ago, it was found that there is no statutory requirement that a town board approve minutes of a meeting, but that it was "advisable" that a motion to approve minutes be made after the members have had an opportunity to review the minutes (1954 Ops.St.Compt. File #6609). While it may be "advisable" if not proper for a board to review minutes, due to the clear authority conferred upon town clerks under §30 of the Town Law, I do not believe that a town board can require that minutes be approved prior to their disclosure, for example.
With regard to the amendment of minutes, in a different opinion issued by the State Comptroller, it was advised that when a member of a board requests that his statement be entered into the minutes, the board must determine, under its rules of procedure, whether the clerk should record the statement in writing, which would then be entered as part of the minutes (1980 Op.St.Comp. File #82-181). As such, I do not believe that an individual can independently change minutes or compel the town clerk to do so. Further, despite the opinion of the Comptroller cited above, I believe that the ability of a town board to require that minutes be altered must be based upon the reasonableness of its intended action. Certainly an attempt to amend minutes would be reasonable when an error is found or greater clarity can be accomplished. Nevertheless, situations have arisen in which public bodies and their members have sought to amend minutes in a way in which their contents would be unbalanced or would not reflect what actually occurred. In those kinds of cases, I believe that deference should be given to the town clerk, for the clerk is the person designated by statute to prepare the minutes.
I hope that I have been of assistance. Should any further questions arise, please feel free to contact me.
As you requested, a copy of this opinion will be forwarded to the Town Supervisor.
Robert J. Freeman
cc: Hon. Berndt Leifeld, Supervisor