February 14, 1996
Mr. George A. Mayes
11 Gold Street
Warrensburg, NY 12885
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. Mayes:
I have received your letter of January 26, in which you sought further consideration in relation to an opinion rendered at your request on December 30.
In that opinion, it was suggested that a Health Advisory Committee established by the Warrensburg Town Board pursuant to an agreement with a group of doctors is not a public body required to comply with the Open Meetings Law. Several judicial decisions were cited, and there is no need, in my view, to reiterate comments offered in that opinion. Your request for reconsideration, however, is based upon the fact that several members of the Warrensburg Town Board are or have served on the Health Advisory Committee. In view of their membership, you have asked whether the Advisory Committee might constitute a public body subject to the Open Meetings Law.
In my opinion, the only circumstance in which the Advisory Committee could be found to be a public body would involve a situation in which a majority of the members of the Town Board serves on the Committee, i.e., at least three out of five. Because the Advisory Committee is designated to advise the Town Board, if a majority of the Town Board serves on the Advisory Committee, the Town Board would essentially be providing advice to itself. Further, a majority of the Board serving on the Committee would have the ability as members of the Town Board to take action. If that is so, I do not believe that the Committee could validly be characterized as "advisory".
This is not to suggest that when the members of a public body serve in some other capacity they would always be required to comply with the Open Meetings Law. If a local bank established a citizens committee to provide the bank with assistance in raising charity, and if that committee included a majority of members of the Town Board, the Open Meetings Law would not apply. In that situation, the members would have been designated to provide advice to the bank. In this situation, the Health Advisory Committee has been designated to provide advice to the Town Board. That being so, if a majority of the Town Board serves on the Health Advisory Committee, arguably, and I believe, logically, the Health Advisory Committee would be subject to the Open Meetings Law. If, however, fewer than three members of the Town Board serve on the Advisory Committee, that Committee in my opinion would continue to remain beyond the coverage of the Open Meetings Law.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Town Board