March 1, 1996
Ms. Patti Kelly
369 Hommelville Road
Saugerties, NY 12477
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. Kelly:
I have received your letter of February 13 in which you complained that the Ulster County Resource Recovery Agency ("the Agency") prevented you from participating in a tour of the Agency's Ulster landfill.
By way of background, the Chairman of the Ulster County Legislature appointed a committee consisting of citizens to review documentation presented to the Legislature by the Agency. The chairman of that committee indicated that its meetings would be open to the public, with certain exceptions, none of which are relevant to the matter, and the committee has in fact conducted a series of open meetings. When it was determined that a "site tour" should be part of the committee's review, the chair of the committee said that the tour would be open to the public. Nevertheless, when the tour was about to begin, you were told by the Agency's executive director that you could not be present. You added that a reporter was permitted to attend, and that you, the only member of the public present, were the only person prohibited from joining the tour.
In this regard, I offer the following comments.
First, it is questionable in my view whether the committee would have been required to comply with the Open Meetings Law. It is noted that judicial decisions indicate generally that ad hoc entities consisting of persons other than members of public bodies having no power to take final action fall outside the scope of the Open Meetings Law. As stated in those decisions: "it has long been held that the mere giving of advice, even about governmental matters is not itself a governmental function" [Goodson-Todman Enterprises, LTD. v. Town Board of Milan, 542 NYS 2d 373, 374, 151 AD 2d 642 (1989); Poughkeepsie Newspapers v. Mayor's Intergovernmental Task Force, 145 AD 2d 65, 67 (1989); see also New York Public Interest Research Group v. Governor's Advisory Commission, 507 NYS 2d 798, aff'd with no opinion, 135 AD 2d 1149, motion for leave to appeal denied, 71 NY 2d 964 (1988)]. Therefore, an advisory body such as a citizens' advisory committee would not ordinarily be subject to the Open Meetings Law.
If, for example, the County Legislature determined that the committee, by means of a local law or perhaps a resolution, must comply with the Open Meetings Law, I believe that the committee would be legally obliged to do so. Absent that kind of direction, in my opinion, the committee would not constitute a public body required to comply with the Open Meetings Law. This is not to suggest that it cannot conduct open meetings; on the contrary, many advisory bodies, particularly citizens committees, hold open meetings and seek public input and participation.
Second, although the term "meeting" [see Open Meetings Law, §102(1)] has been construed expansively by the courts to encompass any gathering of a majority of a public body for the purpose of conducting public business [see Orange County Publications v. Council of the City of Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947 (1978)], in the only decision of which I am aware dealing with a site visit, the members of a public body were in a van, and it was held that "the Open Meetings Law was not violated" [City of New Rochelle v. Public Service Commission, 450 AD 2d 441 (1989)]. In that case, members of the Public Service Commission toured the proposed route of a power line in order to acquire a greater understanding of evidence previously presented. Based upon that decision, a site visit or tour by a public body, particularly on private property, would apparently not constitute a meeting. It has been advised, however, that site visits or tours by public bodies should be conducted solely for the purpose of observation and acquiring information, and that any discussions or deliberations regarding such observations should occur in public during meetings conducted in accordance with the Open Meetings Law.
It is suggested that you bring the issue to the attention of the Chairman of the County Legislature. Perhaps he and the Agency can review the matter for the purpose of avoiding the kind of problem that you encountered in the future.
I regret that I cannot be of greater assistance.
Robert J. Freeman
cc: Chairman, Ulster County Legislature
Louis M. Klein