April 3, 1998


Mr. J. Michael Mancini
17 Ceperley Avenue
Oneonta, NY 13820

Mr. Barry Wallace
435 West Street
Oneonta, NY 13820

Mr. Michael Murphy
10 Rivercrest Lane
Oneonta, NY 13820

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, unless otherwise indicated.

Dear Messrs. Mancini, Wallace and Murphy:

As you are aware, I have received your letter of March 13, as well as the materials
attached to it.

You have asked for an investigation concerning alleged wrongdoing on the part of the
Town of Oneonta Board of Fire Commissioners and particularly the manner in which the
chairperson of the Board "has handled the election of members held on Dec. 9, 1998 [sic] and
the subsequent course of events."

In this regard, the Committee on Open Government is authorized to provide advice
and opinions relating to the Open Meetings Law. It is not empowered to conduct
investigations or resolve issues arising under the Election Law. Consequently, the ensuing
comments will be limited to matters pertaining to the Open Meetings Law.

Based on the correspondence and a conversation with Mr. Mancini, the Board of Fire
Commissioners consists of five members. Further, as I understand the matter, two of the
members have refused to recognize three new members, even though those new members
have taken oaths of office from an official authorized to administer the oaths. It also appears
that action was taken on behalf of the Board by two of the members.

From my perspective, if the three individuals have taken valid oaths of office and are
indeed members of the Board, they have the ability, by means of a majority vote of the Board
taken at a meeting preceded by notice given to all of the members, to take action, as the
Board, irrespective of whether the other two members "recognize" them.

It is noted that the definition of "meeting" appearing in §102(1) of the Open Meetings
Law had 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" subject to the Open Meetings Law 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, such as
the Board of Fire Commissioners, gathers to discuss public business, any such gathering, in
my opinion, would ordinarily constitute a "meeting" subject to the Open Meetings Law.

Second, a public body is empowered to act only by means of an affirmative vote of a majority of its total membership. Additionally, in order to constitute a valid meeting, I
believe that all of the members of a public body must be given reasonable notice of a meeting. Pertinent is §41 of the General Construction Law, which provides guidance concerning quorum and voting requirements. The cited provision states that:

"Whenever three of more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of the whole number of such persons or officers, at a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board of body,
or at any duly adjourned meeting of such meeting, or at any meeting duly held upon reasonable notice to all of them, shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty. For the purpose of this provision the words 'whole number' shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting."

Based upon the language quoted above, a public body cannot carry out its powers or duties except by means of an affirmative vote of a majority of its total membership taken at a meeting duly held upon reasonable notice to all of the members. Therefore, if, for example, three of five members of a public body meet without informing the other two, even though the three represent a majority, I do not believe that they could vote or act as or on behalf of the body as a whole; unless all of the members of the body are given reasonable notice of a meeting, the body in my opinion is incapable of performing or exercising its power, authority or duty. Further, according to §41, an affirmative vote by two of five members of the Board, whether or not each of the five members validly holds office, would be insufficient to take action; since the Board consists of five, three affirmative votes would be needed to take any action.

In sum, if the Board purportedly took action by means of two affirmative votes, or if
meetings were held without reasonable notice to all the members, no action, in my view,
could validly have been taken. Conversely, if a majority of the Board convenes at a meeting
preceded by reasonable notice to all the members, I believe that the Board can carry out its
duties and take action by means of an affirmative vote of a majority of its total membership.
I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Clayton Utter, Chairperson