September 18, 1997
Ms. Betsy Whitefield
Saranac Lake Free Library
100 Main Street
Saranac Lake, NY 12983
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. Whitefield:
I have received your letter of August 14 concerning the conduct of the Board of Trustees of the Clinton Essex Franklin Library System, which you serve as Member Librarian.
According to your letter, at a meeting of the Board held in February during which a quorum was present, Ms. Mary Brown was appointed, with a probationary period of six months, to the position of permanent director. However, you wrote that "a move to fire Ms. Brown...has culminated in a secret mailed ballot that was sent to all the trustees asking for their vote on whether to keep Ms. Brown or not." It is your view that the procedure violated the Library System's constitution and by-laws, as well as the Public Officers Law. You have sought an opinion "on the standing of the vote."
From my perspective, the Board can validly take action only at a meeting in which a quorum is present. Further, I do not believe that a vote can validly be taken by secret ballot. In this regard, I offer the following comments.
First, I believe that the Board of Trustees is required by comply with the Open Meetings Law. Section 260-a of the Education Law states that:
"Every meeting, including a special district meeting, of a board of trustees of a public library system, cooperative library system, public library or free association library, including every committee meeting and subcommittee meeting of any such board of trustees in cities having a population of one million or more, shall be open to the general public. Such meetings shall be held in conformity with and in pursuance to the provisions of article seven of the public officers law. Provided, however, and notwithstanding the provisions of subdivision one of section ninety-nine of the public officers law, public notice of the time and place of a meeting scheduled at least two weeks prior thereto shall be given to the public and news media at least one week prior to such meeting."
Again, since Article 7 of the Public Officers Law is the Open Meetings Law, meetings of boards of trustees of various libraries, including library systems, must be conducted in accordance with that statute.
Second, in order to take action, I believe that a quorum, a majority of the Board's total membership, must convene. Relevant in my view is §41 of the General Construction Law which provides guidance concerning quorum and voting requirements. 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, an entity subject to the Open Meetings Law 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 during which a majority of the Board is physically present. Moreover, if challenged, action purportedly taken outside of a meeting attended by a quorum could be found to be a nullity, and that no action was validly or effectively taken.
Lastly, although the Open Meetings Law does not refer specifically to the manner in which votes are taken or recorded, I note that in an Appellate Division decision, it was found that "The use of a secret ballot for voting purposes was improper." In so holding, the Court stated that: "When action is taken by formal vote at open or executive sessions, the Freedom of Information Law and the Open Meetings Law both require open voting and a record of the manner in which each member voted [Public Officers Law §87[a]; §106, " Smithson v. Ilion Housing Authority, 130 AD 2d 965, 967 (1987)]. Section 87(3)(a) of the Freedom of Information Law requires that agencies maintain a record indicating the vote of each member in every agency proceeding in which the member votes.
In short, I do not believe that the members of an entity subject to the Open Meetings Law may cast votes or otherwise take action by means of a secret ballot.
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Trustees