March 31, 1998

Ms. Shirley Heller
Central Square Central School District
642 South Main Street
Central Square, NY 13036

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. Heller:

I have received your letter of March 18, as well as copies of materials related to it. In your capacity as a member of the Central Square School District Board of Education, you wrote that Mrs. Kim Clark, President of the Board, asked you seek an advisory opinion on her behalf concerning the Open Meetings Law.

According to your letter, the District has eight buildings that are accessible to the physically handicapped where meetings can be held, and"every attempt" has been made to hold meetings in those buildings. The only meetings that have been held in the District Office, which is not handicapped accessible, "have been closed meetings for just Executive Session to discuss negotiations, student hearings or personnel." You wrote that "[t]hese meetings have been special and not a regular board meeting."

One of the items sent with your letter is the following "disclaimer" that appears on an "agenda, invitation, etc." relating to meetings held in the District Office: "Anyone with a handicapping condition requiring access to this meeting should contact the Superintendent's office forty-eight hours before the meeting..." Also included is a letter addressed to the
Superintendent on February 3 of this year in which the writer complained that people in attendance at a Board meeting could not hear the Board, and that the same issues were raised by a group known as Citizens for Quality Education in 1995 and 1996. In fact, I prepared an advisory opinion at the request of that writer on February 27, 1996. Several of the points made in that response will be reiterated in the ensuing comments.

First, the Open Meetings Law pertains to meetings of public bodies. In brief, any gathering of a majority of the Board of Education or other public body subject to the requirements of that statute (I.e., the shared decision making committee or the site based committees created pursuant to regulations promulgated by the Commissioner of Education) for the purpose of conducting public business constitutes a "meeting" falling within the scope
of that statute. It is emphasized that the characterization of a gathering, as a work session, for example, or the absence of an intent to take action, are irrelevant. If a majority of a public body convenes to discuss public business, such a convening is meeting subject to the Open Meetings Law. A gathering of staff or administrators, or a meeting between the President of the Board and Department heads would not fall within the coverage of the Open Meetings Law, for such a convening would not involve a majority of the membership of a public body, such as the Board of Education.

Second, every meeting of a public body must be convened open to the public. I note that §102(3) of the Open Meetings Law defines the phrase"executive session" to mean a portion of an open meeting during which the public may be excluded. Further, as you are aware, §105(1) requires that a public body accomplish certain procedural steps in public before it may enter into an executive session.

Third, §103(b) of the Open Meetings Law states that:

"Public bodies shall make or cause to be made all reasonable efforts to ensure that meetings
are held in facilities that permit barrier-free physical access to the physically handicapped,
as defined in subdivision five of section fifty or the public buildings law."

The same direction appears in §74-a of the Public Officers Law regarding public hearings. Based upon those provisions, there is no obligation upon a public body to construct a new facility or to renovate an existing facility to permit barrier-free access to physically handicapped persons. However, I believe that the law does impose a responsibility upon a public body to make
"all reasonable efforts" to ensure that meetings and hearings are held in facilities that permit barrier-free access to physically handicapped persons. Therefore, if, for example, the Board has the capacity to hold its meetings in a facility that is accessible to handicapped persons, I believe that the meetings should be held in the location that is most likely to accommodate the needs of those persons.

From my perspective, while the disclaimer referenced earlier may be well-intended, if it relates to a meeting subject to the Open Meetings Law, I believe that it would be inadequate to comply with that statute. There may be any number of reasons why a person may be precluded from notifying the Superintendent of his or her intent to attend a meeting forty-eight hours in advance of a meeting. For instance, an individual may not be aware of a
meeting until less than forty-eight hours prior to the meeting; a person may not know so far in advance that he or she would want to attend; a handicapped person may not know if transportation can be arranged, etc. In short, to fully comply with the Open Meetings Law, I believe that every meeting subject to that statute should be convened and held in one of the District's barrier-free accessible facilities, even if the Board intends to enter into an executive session immediately after convening.

With respect to the other element of the complaint, the inability of the public to hear the Board's discussions at meetings, as I did in the opinion prepared in 1996, I direct your attention to §100 of the Open Meetings Law, its legislative declaration. That provision states that:

"It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of
and able to observe the performance of public officials and attend and listen to the
deliberations and decisions that go into the making of public policy. The people must be
able to remain informed if they are to retain control over those who are their public
servants. It is the only climate under which the commonweal will prosper and enable the
governmental process to operate for the benefit of those who created it."

Based upon the foregoing, it is clear in my view that public bodies must conduct meetings in a manner that guarantees the public the ability to "be fully aware of" and "listen to" the deliberative process. Further, I believe that every statute, including the Open Meetings Law, must be implemented in a manner that gives effect to its intent, and that the Board must situate itself and conduct its meetings in a manner in which those in attendance can observe and hear the proceedings. To do otherwise would in my opinion be unreasonable
and fail to comply with a basic requirement of the Open Meetings Law.

As you requested, copies of this opinion will be sent to the President of the Board and the Superintendent.

I hope that I have been of assistance. Should any further questions arise, please feel free to contact me.


Robert J. Freeman
Executive Director


cc: Kim Clark
Walter Doherty