October 1, 1996
Hon. John F. Carney, Supervisor
Town of Pelham
Pelham, NY 10803
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 Supervisor Carney:
I have received your letter of September 19 and the materials relating to it.
You referred to an advisory opinion of May 15 addressed to the Pelham Town Clerk concerning minutes of meetings of the Town Board and wrote that:
"Our board has passed a resolution that the minutes of the Town Board do not become official minutes until approved by the Board. Our Town Clerk has consistently failed to comply with Public Officers Law Section 106 which requires inter alia that the minutes be made available in draft form within two weeks of the meeting.
"The minutes as drafted by our Town Clerk are routinely circulated by her when she gets around to producing them. [You] and other members of the Town Board prepare written corrections and make them available to the Town Board for their approval at an ensuing Board meeting. The Town Board has available to them the Town Clerk's poorly drafted, ungrammatical, erroneous draft and the corrected copy. The Town Board may then choose between the Town Clerk's draft and the changes which [you] or any other Board member suggests. The vote and any discussion with regard to corrections takes place at the Town Board meeting with all presented including the Town Clerk."
It is your view that the procedure that you described is "proper and legal" and you asked whether I disagree the opinion of the Town Attorney, who relied on a several opinions of the State Comptroller.
In this regard, I offer the following comments.
First, since the Open Meetings Law requires that minutes of open meetings be prepared and made available within two weeks of meetings, I believe that we agree that the Town Clerk is required to prepare minutes within that period, irrespective of whether the minutes are characterized as unofficial or draft, for example.
Second, I cannot strenuously disagree with the views expressed by the Town Attorney or the Comptroller. However, in many instances, the issue involves the reasonableness of the means by which a public body implements its rules, procedures or policies.
As I view the matter, four provisions are relevant. First, §106 of the Open Meetings Law deals with minutes and was quoted in full in the opinion addressed to Ms. Bianca. Under that statute, it is clear that minutes need not consist of a verbatim account of what is said. Rather, at a minimum, minutes must consist of a record or summary of motions, proposals, resolutions, action taken and the vote of each member. Second, subdivision (1) of §30 of the Town Law states in relevant part that the town clerk "shall attend all meetings of the town board, act as clerk thereof, and keep a complete and accurate record of the proceedings of each meeting". Third, subdivision (1) of §30 of the Town Law provides that the clerk "shall have such additional powers and perform such additional duties as are or hereafter may be conferred or imposed upon him by law, and such further duties as the town board may determine, not inconsistent with law". And fourth, §63 of the Town Law states in part that a town board "may determine the rules of its procedure".
In my opinion, inherent in each of the provisions cited is an intent that they be carried out reasonably, fairly, with consistency, and that minutes be accurate. While the Town Board's procedure may be intended to ensure that appropriate minutes are prepared, there is no guarantee of the result. Similarly, although the opinions of the Comptroller that may serve in part as the basis for the procedure ostensibly appear to be reasonable, they could be implemented in ways that are unreasonable. For purposes of illustration, I offer the following scenarios involving potential problems or pitfalls. To be sure, I am not inferring that any relate to the Town of Pelham, but rather that policies or procedures, although apparently reasonable, may be carried out in a manner inconsistent with their intent.
What if the Board has a lop-sided majority of political party membership, or, irrespective of party membership, it includes a maverick with whom the other members disagree, and the Board by a vote 4 to 1 chooses to exclude the questions or statements of the minority party member or maverick? While there may be no intent to do so, the Board's discretionary authority could lead to unfair or inconsistent results.
In the same hypothetical situation as posited in relation to the first, a majority of the Town Board could require that a question or statement by a member of the public or the Board be included in the minutes verbatim or in summary form. While the intent may be to be reasonable, the Board could, on the basis of partisan politics, or perhaps favor or disfavor with a person or board member, pick and choose which statements should be recorded. I am not suggesting that the Pelham Town Board would necessarily act in a partisan or personal manner; nevertheless, having dealt with the Open Meetings Law since its enactment, I can report that other boards have done so.
By requiring that minutes be submitted to the Board for correction of errors and omissions and approval, the intent is obvious -- to ensure that minutes be accurate. Nevertheless, numerous situations have arisen in which public bodies and their members have sought to amend minutes in a way in which their contents would be unbalanced or would not reflect what actually occurred. Again, I am not inferring that the Board would do so; however, even a rule or procedure that is most reasonable on its face may be subject to interpretation or abuse in ways that may be unintended by those who adopted it.
I am not sure that perfect rules could be drafted to deal with minutes and the relationship between a town board and a town clerk. Even rules that appear to be most reasonable may be subject to a variety of interpretations or to methods of implementation inconsistent with their original intent. The Board's rules and procedures regarding minutes may be appropriate if they are carried out in a manner consistent with law and their apparent intent; on the other hand, if that does not occur, the Board might be considered to be carrying out its duties unreasonably. I believe that the suggestion offered earlier should serve as the general guide for both the Board and the Clerk, that the minutes be prepared and reviewed in a manner that is reasonable, fair, consistent and accurate.
I recognize that the foregoing may not provide a solution to the matter. It is my hope, however, that my comments will be considered to be helpful and constructive.
Robert J. Freeman
cc: Gloria Bianca, Town Clerk