May 28, 1996
Mr. James E. Nelson
Van DeWater and Van DeWater
P.O. Box 112
Poughkeepsie, NY 12602
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. Nelson:
I have received your recent letter in which you sought an advisory opinion on behalf of the Poughkeepsie Journal.
You wrote that the Journal will be sponsoring a "mediation session between four of the nine members of the Wappingers Central School District Board and several members of the public." The session will be conducted by a professional mediator and "will be noticed as a public meeting even though less than a quorum will be participating." Other than the mediator, the four Board members and the selected members of the public, approximately 30 additional members of the public "will be permitted to attend but not participate." Because it is anticipated that more than 30 will want to attend, those authorized to attend will be determined in advance "by drawing lots from those requesting admission." You added that "[i]t is possible that some of the five board members who were not asked to participate in the mediation will ask to be included in the drawing for the thirty seats, and if their names are drawn, attend as non-participants." At the request of the Journal, you have asked for "confirmation that this procedure complies with the Open Meeting Law provisions of the Public Officers Law."
From my perspective, as you have described the event, the Open Meetings Law would not apply.
That statute pertains to meetings of public bodies, and its application is not triggered until a quorum of a public body convenes for the purpose of conducting public business collectively as a body [see definition of "meeting", §102(1)]. In this instance, four Board members will be convening, arguably to engage in conducting some aspect of public business. Since four members of a nine person board constitute less than a quorum, the session, in my view, would not constitute a convening of a public body, and, therefore, the Open Meetings Law would be inapplicable.
The presence of one or more additional Board members at the site would not in my opinion result in a finding that the session has been transformed into a "meeting" of a public body. Any additional member or members would not be acting as participants; they would not be joining the discussion of the four Board members, the mediator and the designated public member participants. On the contrary, any additional members would merely be observers within an audience that does not have the privilege of speaking or participating.
I note that variations of the Journal's question have arisen on several occasions. For instance, when I have made public presentations before large groups, members of public bodies have asked whether a majority of their membership in attendance constitutes a meeting. My response has been that the members are not present for the purpose of conducting public business collectively as a body, but rather for the purpose of being educated as part of an audience. Similarly, often members of public bodies are also members of or attendees at gatherings of chambers of commerce or Rotary Clubs. When members of public bodies are interspersed among other attendees at those gatherings, again, they would not be present for the purpose of functioning collectively as a body, and the Open Meetings Law would not apply.
In short, the mere presence of a majority of the total membership of a public body at a particular facility or site would not necessarily lead to the conclusion that the members are conducting a meeting that falls within the coverage of the Open Meetings Law. Only when a majority of the total membership of a public body convenes for the purpose of conducting public business, as a body, would that statute be applicable.
I hope that I have been of assistance.
Robert J. Freeman