March 11, 1996



Ms. Ellen L. Kilbourn
52 Messinger Street
Salamanca, NY 14779

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. Kilbourn:

I have received your letter of February 17 and the news article attached to it.

You have questioned the propriety of a procedure used by the City of Salamanca Board of Education. Specifically, the article states in relevant part that:

"Under a new practice the school board takes one consensus vote to approve all items under Roman numeral three of the board's agenda. Specific items may be removed from the consensus vote and debated or voted on separately with a boardmember's request."

The article indicates that the new procedure was adopted "as a way to shorten lengthy board meetings."

In this regard, I know of no provision of law that pertains directly to the issue or that would prohibit the Board from continuing to implement its new procedure. However, I believe that the Board must comply with provisions within the Open Meetings and Freedom of Information Laws designed to guarantee the public's right to know of governmental decisions and ensure accountability.

For instance, §106(1) of the Open Meetings Law provides direction concerning the contents of minutes of meetings and states that:

"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."

Based on the foregoing, if, for instance, a consensus motion includes the appointment of a number of people, I believe that the minutes would be required to identify each person appointed and the position to which he or she was appointed. In a decision that may be pertinent to the matter, Mitzner v. Goshen Central School District Board of Education [Supreme Court, Orange County, April 15, 1993], the case involved a series of complaints that were reviewed by the School Board president, and the minutes of the Board meeting merely stated that "the Board hereby ratifies the action of the President in signing and issuing eight Determinations in regard to complaints received from Mr. Bernard Mitzner." The court held that "these bare-bones resolutions do not qualify as a record or summary of the final determination as required" by §106 of the Open Meetings Law. As such, the court found that the failure to indicate the nature of the determination of the complaints was inadequate. In the context of your question, I believe that, in order to comply with the Open Meetings Law and to be consistent with the thrust of the holding in Mitzner, minutes must indicate in some manner the precise nature of the Board's action.

In addition, §87(3)(a) of the Freedom of Information Law states that: "Each agency", which includes a board of education, "shall maintain...a record of the final vote of each member in every agency proceeding in which the member votes." Therefore, when the Board takes action, a record must be prepared that indicates the manner in which each member cast his or her vote. Typically, that record is included as part of the minutes.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Board of Education