March 9, 1998

Ms. Joanne A. Leddy
10 Franklin Street
Delhi, NY 13753

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. Leddy:

I have received your letter of February 9 and appreciate your kind comments concerning my presentation in Delhi a few months ago. Enclosed, as you requested, is a supply of "Your Right to Know", which may be distributed as you see fit.

You have asked that I support your contentions relating to access to minutes of meetings of the Village of Delhi Board of Trustees, which are not disclosed until they are approved, and to the status of meetings of committees of Delaware County Board of Supervisors. According to your letter, officials have disagreed with you based on statements from their attorneys, and you
were informed that I am not an attorney.

In this regard, while I am an attorney, that factor is not especially relevant. What is relevant is that the Committee on Open Government is the agency specifically designated by statute (see Public Officers Law §109) to provide advice and opinions concerning the Open Meetings Law. Perhaps
most pertinent, however, is the language of the law, its history and its judicial interpretation.

Section 106 of the Open Meetings Law pertains to minutes of meetings of public bodies and 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 meeting 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."

Subdivision (3) deals specifically with the time within which minutes must be prepared and made available, a period of two weeks with respect to minutes of open meetings, and one week when action is taken during executive sessions.

It is emphasized 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 if the minutes have not been approved, 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. If minutes have been prepared within less than two weeks, I believe that those unapproved minutes would be available as soon as they exist, and that they
may be marked in the manner described above.

With respect to meetings of meetings of committees of the Board of Supervisors, when a committee consists solely of members of a public body, such as a county legislature , I believe that the Open Meetings Law is applicable.

By way of background, when the Open Meetings Law went into effect in 1977, questions consistently arose with respect to the status of committees, subcommittees and similar bodies that had no capacity to take final action, but rather merely the authority to advise. Those questions arose due to the definition of "public body" as it appeared in the Open Meetings Law as it was
originally enacted. Perhaps the leading case on the subject also involved a situation in which a governing body, a school board, designated committees consisting of less than a majority of the total membership of the board. In Daily Gazette Co., Inc. v. North Colonie Board of Education [67 AD 2d 803 (1978)], it was held that those advisory committees, which had no capacity to
take final action, fell outside the scope of the definition of "public body".

Nevertheless, prior to its passage, the bill that became the Open Meetings Law was debated on the floor of the Assembly. During that debate, questions were raised regarding the status of "committees, subcommittees and other subgroups." In response to those questions, the sponsor stated that it
was his intent that such entities be included within the scope of the definition of "public body" (see Transcript of Assembly proceedings, May 20, 1976, pp. 6268-6270).

Due to the determination rendered in Daily Gazette, supra, which was in apparent conflict with the stated intent of the sponsor of the legislation, a series of amendments to the Open Meetings Law was enacted in 1979 and became effective on October 1 of that year. Among the changes was a redefinition of the term "public body". "Public body" is now defined in§102(2) to include:

"...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."

Although the original definition made reference to entities that "transact" public business, the current definition makes reference to entities that"conduct" public business. Moreover, the definition makes specific reference to "committees, subcommittees and similar bodies" of a public body.

In view of the amendments to the definition of "public body", I believe that any entity consisting of two or more members of a public body, such as a committee or subcommittee consisting of members of a county legislature would fall within the requirements of the Open Meetings Law, assuming that a committee discusses or conducts public business collectively as a body [see
Syracuse United Neighbors v. City of Syracuse, 80 AD 2d 984 (1981)]. Further, as a general matter, I believe that a quorum consists of a majority of the total membership of a body (see e.g., General Construction Law, §41). Therefore, if, for example, the Board consists of fifteen, its quorum would be eight; in the case of a committee consisting of three, a quorum would be two.

When a committee is subject to the Open Meetings Law, I believe that it has the same obligations regarding notice and openness, for example, as well as the same authority to conduct executive sessions, as a governing body [see Glens Falls Newspapers, Inc. v. Solid Waste and Recycling Committee of the Warren County Board of Supervisors, 195 AD 2d 898 (1993), which
dealt with a committee of a county board of supervisors].

In an effort to enhance compliance with and understanding of the Open Meetings Law, copies of this opinion will be sent to officials of the Village and the County.

I hope that I have been of assistance.


Robert J. Freeman
Executive Director


cc: Board of Trustees
Village Attorney
Board of Supervisors
County Attorney