December 2, 1997
Ms. Jeanne A. Loberg
Town Supervisor
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.
Sincerely,
Robert J. Freeman
Executive Director
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