March 2, 1998

Ms. Ralene R. Adler
43 South Drive
Great Neck, NY 11021

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. Adler:

I have received your letter of January 31, as well as the materials attached to it.

In your capacity as a Trustee of the Great Neck Library (hereafter "the Library"), you wrote that it is "an incorporated free association library, functioning pursuant to provisions of the Education Law, and is [a] type B Corporation under the Not-for-Profit [Corporation] Law." You have
questioned the status of the Library's Nominating Committee, which is a creation of the Library's by-laws. According to Article VIII of the by-laws, the Nominating Committee consists of "seven members of the Association, five of whom shall be elected by the membership at the annual meeting, and two of whom shall be appointed by the Board of Trustees." Four members
of the Nominating Committee constitute a quorum.

In my view, the Nominating Committee is not subject to the Open Meetings Law. As you may be aware, that statute is applicable to meetings of public bodies, and §102(2) defines the phrase "public body" to mean:

"...any entity for which a quorum is required in order to conduct public business and which
consists of two or more members, performing a governmental function for the state or for an
agency or department thereof, or for a public corporation as defined in section sixty-six of
the general construction law, or committee or subcommittee or other similar body of such
public body."

Based on the foregoing, as a general matter, the Open Meetings Law pertains to governmental bodies.

While it is clear that the Board of Trustees is required to comply with the Open Meetings Law, its duty to do so is not because it is a governmental entity; in my view, it is not a governmental entity. Rather, the requirement to do so is due to the direction provided by §260-a of the Education Law. Based on §253 of the Education Law and the judicial interpretation concerning that and related provisions, I believe that a distinction may be made between a public library and an association or free association library. The former is a governmental entity; the latter typically is not. Subdivision (2) of §253 states that:

"The term 'public' library as used in this chapter shall be construed to mean a library,
other than professional, technical or public school library, established for free purposes by
official action of a municipality or district or the legislature, where the whole interests
belong to the public; the term 'association' library shall be construed to mean a library
established and controlled, in whole or in part, by a group of private individuals operating as
an association, close corporation or as trustees under the provisions of a will or deed of trust;
and the term 'free' as applied to a library shall be construed to mean a library maintained for
the benefit and free use on equal terms of all the people of the community in which the
library is located."

The leading decision concerning the status of an association library was rendered by the Appellate Division, Second Department, which includes Great Neck within its jurisdiction. Specifically, in French v. Board of Education, the Court stated that:

"In view of the definition of a free association library contained in section 253 of the
Education Law, it is clear that although such a library performs a valuable public service, it is
nevertheless a private organization, and not a public corporation. (See 6 Opns St Comp,
1950, p 253.) Nor can it be described as a 'subordinate governmental agency' or a
'political subdivision'. (see 1 Opns St Comp, 1945, p 487.) It is a private corporation,
chartered by the Board of Regents. (See 1961 Opns Atty Gen 105.) As such, it is not within
the purview of section 101 of the General Municipal Law and we hold that under the
circumstances it was proper to seek unitary bids for construction of the project as a whole.
Cases and authorities cited by petitioner are inapposite, as they plainly refer to public,
rather than free association libraries, and hence, in actuality, amplify the clear distinction
between the two types of library organizations" [see attached, 72 AD 2d 196,
198-199 (1980); emphasis added by the court].

In my opinion, the language offered by the court clearly provides a basis for distinguishing between an association or free association library as opposed to a public library.

The Open Meetings Law, which is codified as Article 7 of the Public Officers Law, is applicable to boards of trustees of public and association libraries pursuant to §260-a of the Education Law, which 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 association libraries, must be conducted in accordance with that statute.

From my perspective, boards of trustees of libraries that are governmental entities, such as school district public libraries, as well as committees consisting of members of those boards, would constitute "public bodies" subject to the Open Meetings Law even if §260-a of the Education
Law had not been enacted. Association libraries, however, are typically not-for-profit corporations which, as indicated in the judicial decision cited above, are "private organizations" separate from government. As such, absent the enactment of §260-a of the Education Law, I do not believe that they would be required to comply with the Open Meetings Law.

As §260-a refers to committees and subcommittees of boards of trustees, the only coverage by the Open Meetings Law pertains to those committee and subcommittee meetings "of any such board of trustees in cities have a population of a million or more." Since Great Neck is not such a city, the Open Meetings Law, in my opinion, would not apply to the Nominating Committee.

The foregoing is not intended to suggest that the Nominating Committee cannot conduct meetings in public; on the contrary, I believe that the Board of Trustees would have the authority, as the governing body, to direct the Committee to carry out its duties in public and follow the Open
Meetings Law as a guide for the performance of its duties.

I hope that the foregoing serves to enhance your understanding of the matter and that I have been of assistance.


Robert J. Freeman
Executive Director