May 6, 1997


Mr. Alan H. Foster
Associate Director
Permanent Citizens Advisory Committee to the MTA
347 Madison Avenue
New York, NY 10017

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. Foster:

I have received your letter of April 14 and appreciate the information that you provided concerning the Permanent Citizens Advisory Committee to the MTA (the PCAC).

You indicated that the PCAC was created in 1977 by a former Chairman of the MTA and serves as the "umbrella organization" for the Long Island Railroad Commuter's Council, the Metro-North Rail Commuter Council and the New York City Transit Authority Advisory Council. While each of the three councils is advisory in nature, each was created by statute. You have asked whether, in my view, those entities are subject to the Open Meetings Law.

Having reviewed the opinion that precipitated the preparation of your correspondence, I believe that there is little that I can add to it. There is no judicial decision of which I am aware that focuses on the kind of body that is the subject of your inquiry. Nevertheless, in my opinion, a court would likely find that the entities in question are "public bodies" subject to the Open Meetings Law.

Other than the decision dealing with an advisory body created by statute [MFY Legal Services, Inc. v. Toia, 402 NYS 2d 510 (1977)], the cases cited in the response to Ms. Thompson on April 3 all involved ad hoc bodies created to deal with a particular issue or problem for a limited duration, i.e., until the submission of a report or recommendations, or until the issue under study or consideration was resolved in some manner. In contrast, the Councils continue to exist until the legislation that created them is repealed or amended. Moreover, while the Councils are clearly advisory in nature in that they have no authority to take action, the statutes that created them confer upon them certain powers and duties. Each of those statutes, §§1204-a, 1266-d and 1266-e of the Public Authorities Law directs that the Councils "shall" perform specific duties. Not only does each have the ability to advise and "study", each has the duty to "investigate", "monitor...performance and recommend changes to improve the efficiency of the operation" of the respective authorities. From my perspective, the ongoing statutory responsibilities of the Councils reflect more than merely the ability to recommend or advise; they represent a recognition on the part of the State Legislature that there is a continuing need for oversight that is sufficiently significant to warrant the enactment of statutes ensuring oversight.

In short, because they are statutory creations having statutory obligations, I believe that the Councils in question constitute public bodies required to comply with the Open Meetings Law.

I hope that I have been of assistance. If you would like to discuss the matter, please feel free to contact me.



Robert J. Freeman
Executive Director