April 21, 1998
Mr. Richard J. Klein
79 South Street
Cuba, NY 14727
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. Klein:
I have received your letters of April 3 and April 13 and the news
articles attached to them. You have raised a series of questions in relation to
both articles.
According to the first article, the Allegany County Administrator sent
a letter to members of the Allegany County Legislature directing them to vote
on a certain resolution by mail. The second article indicates that: "With an 8-6 tally from a confidential survey - the same number who voted against in
February, - Allegany County lawmakers once again rejected the $14 a ton
offer made in October..."
In this regard, first, there is nothing in the Open Meetings Law that
would preclude members of a public body from conferring individually, by
telephone or via mail. However, a series of communications between
individual members or telephone calls among the members which results in a
collective decision, a meeting held by means of a telephone conference, or a
vote taken by mail would in my opinion be inconsistent with law. From my
perspective, voting and action by a public body may only be only be carried
out at a meeting during which a quorum has physically convened.
As you may be aware, §102(1) of the Open Meetings Law defines the
term "meeting" to mean "the official convening of a public body for the
purpose of conducting public business". Based upon an ordinary dictionary
definition of "convene", that term means:
"1. to summon before a tribunal;
2. to cause to assemble syn see 'SUMMON'"
(Webster's Seventh New Collegiate
Dictionary, Copyright 1965).
In view of that definition and others, I believe that a meeting, i.e., the"convening" of a public body, involves the physical coming together of at least
a majority of the total membership of the Commission. While nothing in the
Open Meetings Law refers to the capacity of a member to participate or vote
at a remote location by telephone or mail, it has consistently been advised that
a member of a public body cannot cast a vote unless he or she is physically
present at a meeting of the body.
It is noted, too, that the definition of "public body" [see Open
Meetings Law, §102(2)] refers to entities that are required to conduct public
business by means of a quorum. In this regard, the term "quorum" is defined
in §41 of the General Construction Law, which has been in effect since 1909.
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 reasonably notice to all
of the members. As such, it is my view that a public body has the capacity to
carry out its duties only at meetings during which a majority of the total
membership has convened.
I also direct your attention to the legislative declaration of the Open
Meetings Law, §100, which states in part 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."
Based on the foregoing, the Open Meetings Law is intended to provide the
public with the right to observe the performance of public officials in their
deliberations. That intent cannot be realized if members of a public body
conduct public business as a body or vote by phone or by mail.
Second, the letter sent to the members of the Legislature by the County Administrator would constitute "intra-agency material" that falls
within the scope of §87(2)(g) of the Freedom of Information Law. That
provision permits an agency to withhold records that:
"are inter-agency or intra-agency materials
which are not:
i. statistical or factual tabulations or data;
ii. instructions to staff that affect the public;
iii. final agency policy or determinations; or
iv. external audits, including but not limited to
audits performed by the comptroller and the
federal government..."
It is noted that the language quoted above contains what in effect is a double
negative. While inter-agency or intra-agency materials may be withheld,
portions of such materials consisting of statistical or factual information,
instructions to staff that affect the public, final agency policy or
determinations or external audits must be made available, unless a different
ground for denial could appropriately be asserted. Concurrently, those
portions of inter-agency or intra-agency materials that are reflective of
opinion, advice, recommendation and the like could in my view be withheld.
As described in the newspaper, while I do not believe that members of the
Legislature could be characterized as "staff", it would appear that portions of
the letter analogous to "instructions to staff that affect the public" should
likely be disclosed.
Third, with respect to the "tally from a confidential survey", when
action is taken by a public body, it must be memorialized in minutes, for §106
of the Open Meetings Law provides 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 meetings 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."
In view of the foregoing, it is clear in my opinion that minutes must include
reference to action taken by a public body.
Further, if a public body reaches a consensus upon which it relies, I
believe that minutes reflective of decisions reached must be prepared and
made available. In Previdi v. Hirsch [524 NYS 2d 643 (1988)], the issue
involved access to records, i.e., minutes of executive sessions held under the
Open Meetings Law. Although it was assumed by the court that the executive
sessions were properly held, it was found that "this was no basis for
respondents to avoid publication of minutes pertaining to the 'final
determination' of any action, and 'the date and vote thereon'" (id., 646). The
court stated that:
"The fact that respondents characterize the
vote as taken by 'consensus' does not exclude
the recording of same as a 'formal vote'. To
hold otherwise would invite circumvention of
the statute.
"Moreover, respondents' interpretation of what
constitutes the 'final determination of such
action' is overly restrictive. The reasonable
intendment of the statute is that 'final action'
refers to the matter voted upon, not final
determination of, as in this case, the litigation
discussed or finality in terms of exhaustion or
remedies" (id. 646).
Therefore, if the Legislature reached a "consensus" that is reflective
of its final determination of an issue, I believe that minutes must be prepared
that indicate its action, as well as the manner in which each member voted.
I note that §87(3)(a) of the Freedom of Information Law states that: "Each
agency shall maintain...a record of the final vote of each member in every
agency proceeding in which the member votes." As such, members of public
bodies cannot take action by secret ballot.
In an effort to enhance compliance with and understanding of the open
government laws,
copies of this opinion will be sent to County officials.
I hope that I have been of assistance.
Sincerely,
Robert J. Freeman
Executive Director
RJF:tt
cc: County Legislature
John Margeson, County Administrator
2877