April 30, 1997




Hon. John F. Carney
Town of Pelham
Town Hall
34 Fifth Avenue
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 April 8 as well as the correspondence attached to it.

By way of background, you wrote that the Town Board consists of four Republicans and you, the lone Democrat. As I understand the matter, it is your contention that the four majority Board members gather to take action or act by means of a series of phone calls. You have asked whether action by the Board may be taken outside of a meeting held in accordance with the Open Meetings Law.

In this regard, I offer the following comments.

First, by way of background, since the Open Meetings Law became effective in 1977, it has contained an exemption concerning political committees, conferences and caucuses. When a matter is exempted from the Open Meetings Law, the provisions of that statute do not apply. Until 1985, judicial decisions indicated that the exemption pertained only to discussions of political party business. Concurrently, in those decisions, it was held that when a majority of a legislative body met to discuss public business, such a gathering constituted a meeting subject to the Open Meetings Law, even if those in attendance represented a single political party [see e.g., Sciolino v. Ryan, 81 AD 2d 475 (1981)].

Those decisions, however, were essentially reversed by the enactment of an amendment to the Open Meetings Law in 1985. Section 108(2)(a) of the Law now states that exempted from its provisions are: "deliberations of political committees, conferences and caucuses." Further, §108(2)(b) states that:

"for purposes of this section, the deliberations of political committees, conferences and caucuses means a private meeting of members of the senate or assembly of the state of New York, or the legislative body of a county, city, town or village, who are members or adherents of the same political party, without regard to (i) the subject matter under discussion, including discussions of public business, (ii) the majority or minority status of such political committees, conferences and caucuses or (iii) whether such political committees, conferences and caucuses invite staff or guests to participate in their deliberations..."

Therefore, in general, either the majority or minority party members of a legislative body may conduct closed political caucuses, either during or separate from meetings of the public body.

In the context of your inquiry, I believe that the four Republican members of the Town Board may meet in private to discuss, in essence, the subjects of their choice. Similarly, I know of no law that would prohibit them from discussing Town business by means of a series of telephone calls.

Second, however, it is my view that the members of the Town Board have the ability to take action as the Town Board only at meetings held in a manner consistent with the Open Meetings Law.

Relevant to the matter in my view is §41 of the General Construction Law which provides guidance concerning quorum and voting requirements. Specifically, the cited provision states that:

"Whenever three of more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of the whole number of such persons or officers, at a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board of body, or at any duly adjourned meeting of such meeting, or at any meeting duly held upon reasonable notice to all of them, shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty. For the purpose of this provision the words 'whole number' shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting."

Based upon the language quoted above, a town board cannot carry out its powers or duties except by means of an affirmative vote of a majority of its total membership taken at a meeting duly held upon reasonable notice to all of the members.

In sum, while the four majority of the Town Board may in my view meet and/or discuss matters of public business in private on the ground that their gatherings or discussions constitute political caucuses, I believe that action can be taken by the Board only at a meeting held in accordance with the Open Meetings Law that is preceded by reasonable notice given to all the members, including yourself.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Town Board