March 25, 1998

Mr. Jay M. Gubernick
240 Skyline Drive
Highland Mills, NY 10930

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 Mr. Gubernick:

I have received your letter of March 10, as well as the materials attached to it. You have sought clarification concerning the status under the Open Meetings Law of a "regular town board meeting, special meeting, work session, special work session, etc." You also raised issues concerning notice of the subject matter to be considered at meetings and requirements relating to following agendas.

From my perspective, the differences in characterization of the gatherings to which you referred are largely semantic in nature, for each is a"meeting" equally subject to the Open Meetings Law. In this regard, I offer the following comments.

First, there are two statutes that relate to notice of special meetings held by town boards. The phrase "special meeting" is found in §62(2) of the Town Law. That provision, from my perspective, deals with unscheduled meetings, rather than meetings that are regularly scheduled, and states in relevant part that:

"The supervisor of any town may, and upon written request of two members of the board
shall within ten days, call a special meeting of the town board by giving at least two days
notice in writing to the members of the board of the time when and place where the meeting
is to be held."

The provision quoted above pertains to notice given to members of a town board, and the requirements imposed by §62 are separate from those contained in the Open Meetings Law.

Section 104 of the Open Meetings Law provides that:

"1. Public notice of the time and place of a meeting scheduled at least one week prior
thereto shall be given to the news media and shall be conspicuously posted in one or more
designated public locations at least seventy-two hours before each meeting.

2. Public notice of the time and place of every other meeting shall be given, to the
extent practicable, to the news media and shall be conspicuously post in one or more
designated public locations at a reasonable time prior thereto.

3. The public notice provided for by this section shall not be construed to require
publication as a legal notice." Both statutes require that notice of the time and place of a meeting be given; neither contains a requirement that notice include an agenda or reference to the subject matter of a meeting.

Second, there is nothing in the Open Meetings Law or any other law of which I am aware that deals specifically with agendas. While many public bodies prepare agendas, the Open Meetings Law does not require that they do so. Similarly, the Open Meetings Law does not require that a prepared agenda be followed. However, a public body on its own initiative may adopt rules or procedures concerning the preparation and use of agendas.

Third, based on the judicial interpretation of the Open Meetings Law, there is no legal distinction between a "work session" and a meeting. By way of background, it is noted that the definition of "meeting" has been broadly interpreted by the courts. In a landmark decision rendered in 1978, the Court of Appeals, the state's highest court, found that any gathering of a quorum of a public body for the purpose of conducting public business is a "meeting" that must be convened open to the public, whether or not there is an intent to take
action and regardless of the manner in which a gathering may be characterized [see Orange County Publications v. Council of the City of Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947 (1978)].

I point out that the decision rendered by the Court of Appeals was precipitated by contentions made by public bodies that so-called "work sessions" and similar gatherings held for the purpose of discussion, but without an intent to take action, fell outside the scope of the Open Meetings Law. In discussing the issue, the Appellate Division, whose determination was unanimously affirmed by the Court of Appeals, stated that:

"We believe that the Legislature intended to include more than the mere formal act of
voting or the formal execution of an official document. Every step of the decision-making
process, including the decision itself, is a necessary preliminary to formal action.
Formal acts have always been matters of public record and the public has always been
made aware of how its officials have voted on an issue. There would be no need for this law if this was all the Legislature intended.

Obviously, every thought, as well as every affirmative act of a public official as it relates
to and is within the scope of one's official duties is a matter of public concern. It is the
entire decision-making process that the Legislature intended to affect by the enactment
of this statute" (60 AD 2d 409, 415).

The court also dealt with the characterization of meetings as"informal," stating that:

"The word 'formal' is defined merely as 'following or according with established form,
custom, or rule' (Webster's Third New Int. Dictionary). We believe that it was inserted to
safeguard the rights of members of a public body to engage in ordinary social transactions,
but not to permit the use of this safeguard as a vehicle by which it precludes the application of the law to gatherings which have as their true purpose the discussion of the business of a
public body" (id.).

Based upon the direction given by the courts, if a majority of a public body gathers to discuss public business, any such gathering, in my opinion, would constitute a "meeting" subject to the Open Meetings Law that must be preceded by notice given in accordance with §104 of the Law. Further, unless the Town Board has adopted a rule to the contrary, nothing would preclude the Board from taking action at a work session. Similarly, the Board is subject to the same requirements pertaining to notice, openness, and the ability to enter into an executive session relative to a work session as a regular meeting.

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

Sincerely,



Robert J. Freeman
Executive Director

RJF:tt

cc: Town Board