March 24, 1997
Hon. Nancy Beadnell
Town of Thurman
Athol, NY 12810
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. Beadnell:
I have received your letter of March 3. You have sought advice concerning your role as Thurman Town Clerk in conjunction with several scenarios.
The first pertains to "extra meetings" of the Town Board, and you asked whether you are:
"required to attend these extra meetings of the Board when there is no action taken, correspondence of the Town received by the Supervisor is read and discussed, and there is no form of motion and second to these agreements by the Board and is left to be carried over to the Regular Board Meeting? For example, at these Committee Meetings, the Supervisor reads his correspondence he has received, and when the Board discuss issues they make no form of motion, but just agree on an issue. Is this a form of action? In some cases, the Board does not rediscuss these issues at the Regular Board Meeting."
In this regard, first, it is noted at the outset that the definition of "meeting" [see Open Meetings Law, §102(1)] has been broadly interpreted by the courts. In a landmark decision rendered in 1978, the Court of Appeals, the state's highest court, found that any gathering of a quorum of a public body for the purpose of conducting public business is a "meeting" that must be convened open to the public, whether or not there is an intent to take action and regardless of the manner in which a gathering may be characterized [see Orange County Publications v. Council of the City of Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947 (1978)]. I point out that the decision rendered by the Court of Appeals was precipitated by contentions made by public bodies that so-called "work sessions", "agenda sessions" and similar gatherings held for the purpose of discussion, but without an intent to take action, fell outside the scope of the Open Meetings Law. As such, in my opinion, an "extra meeting" during which a quorum of the Town Board is present for the purpose of discussing or conducting public business is a meeting subject to the Open Meetings Law in all respects.
Second, §30(1) of the Town Law states in relevant part that the town clerk:
"Shall have the custody of all the records, books and papers of the town. He 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..."
Although the Town Law requires that the clerk be present at each meeting of the town board for the purpose of taking minutes, it might not be reasonable to construe §30(1) to require the presence of a clerk at a meeting during which there are no motions, proposals, resolutions or votes taken. Section 30 of the Town Law was enacted long before the Open Meetings Law went into effect. Consequently, the drafters of §30 could not likely have envisioned the existence of an extensive Open Meetings Law analogous to the statute now in effect. I believe that §30 was likely intended to require the presence of a clerk to take minutes in situations in which motions and resolutions are introduced and in which action is taken. If those actions clearly will not occur during a meeting, it is in my view unnecessary that a town clerk be present to take minutes.
Third, if the Board "agrees on an issue", it may be taking action, even if no motion is made, by means of "consensus." In a decision that dealt with the notion of a consensus reached at a meeting of a public body, Previdi v. Hirsch [524 NYS 2d 643 (1988)], which involved a board of education, the issue involved access to records, i.e., minutes of executive sessions held under the Open Meetings Law. Although it was assumed by the court that the executive sessions were properly held, it was found that "this was no basis for respondents to avoid publication of minutes pertaining to the 'final determination' of any action, and 'the date and vote thereon'" (id., 646). The court stated that:
"The fact that respondents characterize the vote as taken by 'consensus' does not exclude the recording of same as a 'formal vote'. To hold otherwise would invite circumvention of the statute.
"Moreover, respondents' interpretation of what constitutes the 'final determination of such action' is overly restrictive. The reasonable intendment of the statute is that 'final action' refers to the matter voted upon, not final determination of, as in this case, the litigation discussed or finality in terms of exhaustion or remedies" (id. 646).
In the context of the situation that you described, if the Board reaches a "consensus" that is reflective of its final determination of an issue, I believe that minutes must be prepared that indicate the manner in which each member voted. If indeed a consensus represents action upon which the Board relies in carrying out its duties, or when the Board, in effect, reaches agreement on a particular subject, I believe that the minutes should reflect the actual votes of the members.
In contrast, the Board's agreements might be analogous to a "straw vote", which is not binding and does not represent members' action that could be construed as final. If a "straw vote" does not represent a final action or final determination of the Board, I do not believe that minutes including the votes of the members would be required to be prepared.
If action is taken, I believe that minutes must be prepared in accordance with §106 of the Open Meetings Law. That provision states that:
"1. 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.
2. Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter.
3. Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meetings except that minutes taken pursuant to subdivision two hereof shall be available to the public within one week from the date of the executive session."
You also asked what your role should be in a situation in which the Board might want to take action during an executive session. As you may be aware, §105(2) of the Open Meetings Law permits the Board to enable you to be present during an executive session. However, you have no right to attend, because you are not a member of the Board.
To give effect to both the Open Meetings Law and §30 of the Town Law, which imposes certain responsibilities upon a town clerk, it is suggested that there may be three options. First, the Town Board could permit the clerk to attend an executive session in its entirety. Second, the Town Board could deliberate during an executive session without the clerk's presence. However, prior to any vote, the clerk could be called into the executive session for the purpose of taking minutes in conjunction with the duties imposed by the Town Law. And third, the Town Board could deliberate toward a decision during an executive session, but return to an open meeting for the purpose of taking action.
Lastly, if a member of the Town Board wants to make an alteration in the minutes and another Town Board member disagrees, "to avoid conflict", you asked whether a full Board vote regarding the correction should be requested. As suggested earlier, I believe that you, in your position as clerk, have the responsibility and the authority to prepare minutes and to ensure their accuracy. In the situation that you described, I believe that a vote by the Board would be needed to alter the minutes. However, any such alteration must in my opinion accurately represent what transpired at the meeting.
I hope that I have been of assistance.
Robert J. Freeman