December 2, 1997
Ms. Jeanne A. Loberg
Town of Mendon
16 West Main Street
Honeoye Falls, NY 14472-1199
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 Loberg:
I have received your letter of October 30 in which you sought an advisory opinion relating to the Open Meetings Law.
Specifically, you raised the following questions concerning the duties of a town clerk:
"1 What is the timeframe in which the Town Clerk must have Town Board minutes
available for public review ?
2 What is the timeframe in which the approved Town Board minutes must be entered into the
record, i.e., the official minutes book held by the Town Clerk ?
3 What are the ramifications should the Town Clerk not adhere to the law governing the
above and what actions, if any must the Town Board initiate should this occur?"
In this regard, first, as you may be aware, §30 of the Town Law provides in part that the town clerk "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." As such, a town clerk has the statutory duty to prepare minutes of meetings of a town board.
Second, the Open Meetings Law includes direction concerning the minimum contents of minutes and the time within which they must be prepared. Specifically, §106 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."
Based upon the foregoing, it is clear that minutes must be prepared and made available within two weeks.
I note, too, that there is nothing in the Open Meetings Law or any other statute of which I am aware that requires that minutes be approved.
Nevertheless, as a matter of practice or policy, many public bodies approve
minutes of their meetings. In the event that minutes have not been approved,
to comply with the Open Meetings Law, it has consistently been advised that
minutes be prepared and made available within two weeks, and that they may
be marked "unapproved", "draft" or "non-final", for example. By so doing
within the requisite time limitations, the public can generally know what
transpired at a meeting; concurrently, the public is effectively notified that the minutes are subject to change.
I know of no law that relates to a "timeframe in which the approved Town Board minutes must be entered into the record." Again, the law merely requires that minutes be prepared within two weeks of the meetings to which they pertain. Approval of minutes may be desirable, but I do not believe that it is mandatory.
Lastly, if a clerk does not prepare minutes in accordance within two weeks as required by law, he or she would have failed to carry out his or her statutory duties. It is suggested that the clerk be informed of legal requirements regarding the timely preparation of minutes. In addition, I believe that the Town Board has the ability to adopt rules and policies to
effectuate legal requirements and that it could do so as a means of highlighting the clerk's responsibilities. A legal remedy would involve the initiation by any person of a proceeding under Article 78 of the Civil Practice Law and Rules to compel the clerk to carry out his or duties in a manner consistent with law.
The most drastic action that might be taken in my view would involve an
effort to remove a public officer pursuant to §36 of the Public Officers Law.
In an effort to enhance compliance with and understanding of applicable law, a copy of this opinion will be forwarded to the Town Clerk.
I hope that I have been of assistance.
Robert J. Freeman