January 29, 1996
Mr. Thomas Lahey
16 Maiden Lane
Port Jervis, NY 12771
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. Lahey:
I have received your letter of January 17. In your capacity as a member of Port Jervis City School District Board of Education, you have sought an advisory opinion concerning the Open Meetings Law.
You wrote that the Board recently held a "building planning workshop", without notice to the public, in a restaurant at the Best Western in Matamoras, Pennsylvania. A memorandum distributed prior to the meeting sought menu preferences of those who would attend.
In this regard, I offer the following comments.
First, although the Open Meetings Law does not specify where meetings must be held, §103(a) of the Law states in part that "Every meeting of a public body shall be open to the general public..." Further, the intent of the Open Meetings Law is clearly stated in §100 as follows:
"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 an 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."
As such, the Open Meetings Law confers a right upon the public to attend and listen to the deliberations of public bodies and to observe the performance of public officials who serve on such bodies.
From my perspective, every provision of law, including the Open Meetings Law, should be implemented in a manner that gives reasonable effect to its intent. While Matamoras may be near to Port Jervis, I believe that it would be inappropriate and inconsistent with the Open Meetings Law to hold a meeting in a restaurant where those who attend are expected to make a purchase. Any member of the public has the right to attend meetings of public bodies. In my view, the location of the meeting in this instance represented an impediment to free access by the public.
Second, it is emphasized that the definition of "meeting" [see Open Meetings Law, §102(1)] has been broadly interpreted by the courts. In a landmark decision rendered in 1978, the Court of Appeals, the state's highest court, 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, Second Department, which includes Westchester County and 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.).
Based upon the direction given by the courts, when a majority of a public body gathers to discuss public business, in their capacities as members of the body, any such gathering, in my opinion, would constitute a "meeting" subject to the Open Meetings Law. It is noted, too, that in a relatively recent decision, it was held that a gathering of a quorum of a city council for the purpose of holding a "planned informal conference" involving a matter of public business constituted a meeting that fell within the scope of the Open Meetings Law, even though the council was asked to attend by a person who was not a member [Goodson-Todman v. Kingston Common Council, 153 AD 2d 103 (1990)].
In short, I believe that a meeting of a municipal body must be held at a location where members of the public who might want to attend could reasonably do so. Again, since a majority of the Board was present, a "meeting" would have occurred; nevertheless, residents of the City, despite their possible interest in the matters under consideration, would have been unable to attend.
Lastly, §104 of the Open Meetings Law requires that notice be given prior to every meeting to the news media and to the public by means of posting.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Board of Education
Patrick J. Hamill, Superintendent