May 22, 1998
Mr. Hans Luebbert
112 Stewart Ave., Apt. 26
Newburgh, NY 12550
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
Dear Mr. Luebbert:
I have received your letter of May 1. You have requested an advisory opinion
concerning the use of the phrase "executive privilege" as it appears in the context a news
article that you enclosed. In addition, you sought my views relating to a local law adopted
by the Town of Newburgh Town Board that enables the Supervisor to "call meetings of the
board on an hour's notice."
In this regard, I offer the following comments.
First, I am unfamiliar with the use of the phrase "executive privilege" in relation to the
duties of a municipal board or one of its members. As I interpret the article, it appears that,
historically, supervisors in the Town of Newburgh took action without the consent of other
members of the Town Board, who later essentially ratified the action.
Assuming that the actions could have been taken only by the Town Board, I do not
believe that a supervisor could validly have taken action outside of a meeting held by the
Board. Most relevant to the issue in my view is §41 of the General Construction Law which
provides guidance concerning quorum and voting requirements. The cited provision states
"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, such as a town board, 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.
In sum, if a matter involves action that only the Town Board may take, I believe that
the Supervisor is incapable of taking the action unilaterally. It is also noted that §63 of the
Town Law states in part that "Every act, motion or resolution shall require for its adoption
the affirmative vote of a majority of all the members of the town board."
With respect to the second issue, several provisions of law may be pertinent to an
analysis of the matter. As you may be aware, two statutes involve notice. Section 62 of the
Town Law deals with notice of special meetings to members of a town board 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 the place where the meeting is to be held."
Section 104 of the Open Meetings Law deals with notice of meetings that must be
given to the news media and to the public by means of posting. Specifically, §104 of that
statute 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 posted 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."
Stated differently, if a meeting is scheduled at least a week in advance, notice of the time and
place must be given to the news media and to the public by means of posting in one or more
designated public locations, not less than seventy-two hours prior to the meeting. If a
meeting is scheduled less than a week an advance, again, notice of the time and place must
be given to the news media and posted in the same manner as described above, "to the extent practicable", at a reasonable time prior to the meeting. Although the Open Meetings Law does not make reference to "special" or "emergency" meetings, if, for example, there is a need to convene quickly, the notice requirements can generally be met by telephoning or faxing notice of the time and place of a meeting to the local news media and by posting notice in one or more designated locations.
The judicial interpretation of the Open Meetings Law indicates that the propriety of
scheduling a meeting less than a week in advance is dependent upon the actual need to do so.
As stated in Previdi v. Hirsch:
"Whether abbreviated notice is 'practicable' or 'reasonable' in
a given case depends on the necessity for same. Here,
respondents virtually concede a lack of urgency: They deny
petitioner's characterization of the session as an 'emergency' and maintain nothing of substance was transacted at the meeting except to discuss the status of litigation and to
authorize, pro forma, their insurance carrier's involvement in negotiations. It is manifest then that the executive session could easily have been scheduled for another date with only
minimum delay. In that event respondents could even have provided the more extensive notice required by POL §104(1).
Only respondent's choice in scheduling prevented this result.
"Moreover, given the short notice provided by respondents, it should have been apparent that the posting of a single notice in the School District offices would hardly serve to apprise the public that an executive session was being called...
"In White v. Battaglia, 79 A.D. 2d 880, 881, 434 N.Y.S.ed 637, lv. to app. den. 53 N.Y.2d 603, 439 N.Y.S.2d 1027, 421 N.E.2d 854, the Court condemned an almost identical method of notice as one at bar:
"Fay Powell, then president of the board, began contacting
board members at 4:00 p.m. on June 27 to ask them to attend
a meeting at 7:30 that evening at the central office, which was
not the usual meeting date or place. The only notice given to the public was one typewritten announcement posted on the central office bulletin board...Special Term could find on this
record that appellants violated the...Public Officers Law...in that notice was not given 'to the extent practicable, to the news media' nor was it 'conspicuously posted in one or more
designated public locations' at a reasonable time 'prior thereto' (emphasis added)" [524 NYS 2d 643, 645 (1988)].
Based upon the foregoing, absent an emergency or urgency, the Court in Previdi suggested
that it would be unreasonable to conduct meetings on short notice, unless there is some clear necessity to do so.
From my perspective, unless there is a true emergency or need that would justify
convening a meeting within an hour's time, members of the public would be effectively
precluded from asserting their statutory right to attend a meeting of a public body. I am
mindful of the Town Board's general authority under §10 of the Municipal Home Rule Law
to enact local laws that may differ from the direction provided in state statutes. However, in
view of the clear statement of legislative intent that appears in §100 of the Open Meetings
Law, it is possible that the local enactment in question may involve a matter of state concern
that limits the Town's ability to diminish the public's right to attend meetings of the Board.
I hope that I have been of assistance.
Robert J. Freeman
cc: Town Board
Richard Drake, Town Attorney