January 6, 1997




Mr. Anthone R. Damianakis
Attorney at Law
200 Old Country Road
Suite 190
Mineola, NY 11501

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. Damianakis:

I have received your letter, which reached this office on December 17. You have requested an advisory opinion concerning the Open Meetings Law.

Specifically, you wrote as follows:

"Supposing two current school board members met with two candidates for the school board who just won an election. These new school members 'elect' had not yet been sworn into office, nor had they attended any formal meeting of the Board of Education. Does such a scenario violate any provision of the Open Meetings Law, or any other law in the State of New York?"

In this regard, as you may be aware, the Committee on Open Government is authorized by §109 of the Public Officers Law to "issue advisory opinions...as...may be required to inform public bodies and persons of the interpretations of the provisions of the open meetings law." As such, the ensuing commentary should be viewed as advisory in nature.

From my perspective, assuming that the board of education consists of more than three members, the Open Meetings Law would not have applied.

By way of background, the Open Meetings Law pertains of meetings of public bodies. Section 102(2) of that statute defines the phrase "public body" to mean:

"...any entity for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body."

The term "meeting" is defined to mean "the official convening of a public body for the purpose of conducting public business." Further, pursuant to §41 of the General Construction Law, a quorum is a majority of the total membership of a public body, notwithstanding absences, vacancies or disqualifications.

Based on the foregoing, a "meeting" is a gathering of a majority of a public body for the purpose of conducting public business. Conversely, a gathering of less than a majority of a public body would not constitute a meeting, and the Open Meetings Law would be inapplicable.

In the context of your inquiry, persons who have been elected but who have not been sworn into office would not yet be members of the board of education and would not be considered or counted as a members of a public body for the purposes of the Open Meetings Law. Therefore, if two current members of a board of education constitute less than a majority of the board and meet with two members elect who have not yet taken office, or with any other persons who are not currently members of the board, I do not believe that such a gathering would constitute a violation of the Open Meetings Law. Again, absent a majority of the current board, that statute simply would not apply. Moreover, I know of no other statute that would render the gathering that you described contrary to the laws of New York in any way.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director