May 29, 1998
Ms. Judy Wessler
Commission of the Public's Health
System in New York City
215 W. 125th St., Rm. 400
New York, NY 10027-4426
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 Ms. Wessler:
I have received your letter of May 5 in which you sought an advisory opinion
concerning "the conduct and authority of actions taken at a public meeting held by the Health and Hospitals Corporation of New York City on February 26, 1998."
At that meeting, members of the public, as well as members of the State Legislature
and New York City Council, attended and sought to express their views concerning possible closings of clinic facilities. Some were provided an opportunity to speak; others "were abruptly cut off." Prior to adjournment, the Chairperson, Rosa Gil, announced that she had "developed criteria for managing the process", specifically, in your words, "the process of who speaks on what issues at Board meetings." She indicated that at future meetings, members of the public would "only be permitted to speak on the Agenda's Action Items being voted on that day." She added that:
"The Community Relations Committee of the Board, whose purpose is to address the ongoing concerns of the community, will now begin to permit a reasonable number of members of the public to testify formally before the Committee, whenever the Agenda permits, and at the discretion of the Chairperson of the Board and the Chairperson of the Committee."
You indicated that:
"The new criteria described by Dr. Gil at the February
meeting, require that anyone wishing to speak at open Board
meetings give two weeks advance notice and indicate the
agenda item to which they will direct their comments.
Agendas for these meetings have normally been released only two days before the meeting itself, making the described criterion impossible to meeting."
You have questioned the propriety of the new rules and questioned whether:
"promulgating new rules for the conduct of Board meetings
can be used as the legitimate basis for closing an open Board
meeting and going into executive session? Is it not rather
required that rules changes be voted on in a Board meeting with a full quorum? Is establishing new rules even a legitimate basis for calling an executive session of the Board?"
In this regard, I offer the following comments.
First, the Open Meetings Law clearly provides the public with the right "to observe
the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy" (see Open Meetings Law, §100). However, the Law is silent with respect to the issue of public participation. Consequently, by means of example, if a public body does not want to answer questions or permit the public to speak or otherwise participate at its meetings, I do not believe that it would be obliged to do so. On the other hand, a public body may choose to answer questions and permit public participation, and many do so. When a public body does permit the public to speak or otherwise authorize public participation, I believe that it should do so based upon reasonable rules that treat members of the public equally.
While public bodies have the right to adopt rules to govern their own proceedings,
the courts have found in a variety of contexts that such rules must be reasonable. By means
of example, in a decision rendered in 1963 concerning the use of tape recorders, it was found that the presence of a tape recorder, which then was a large and obtrusive device, would detract from the deliberative process and that, therefore, a policy prohibiting its use was reasonable [Davidson v. Common Council, 40 Misc.2d 1053]. However, when changes in technology enabled the public to use portable, hand-held tape recorders, it was found that their use would not detract from the deliberative process, because those devices were unobtrusive. Consequently, it was also determined that rules adopted by public bodies
prohibiting their use were unreasonable [People v. Ystueta, 99 Misc.2d 1105 (1979); Mitchell v. Board of Education of the Garden City Union Free School District, 113 AD 2d 924 (1985).
Specifically, in Mitchell, it was held that: "While Education Law §1709(1) authorizes a board of Education to adopt by laws and rules for its government and operations, this authority is not unbridled. Irrational and unreasonable rules will not be sanctioned."
In the context of the facts that you presented, if indeed members of the public can only
speak regarding agenda items by providing two weeks advance notice, but agendas are
generally available only two days prior to a meeting, the rule creates an impossibility. In that
circumstance, I believe that the rules would be unreasonable and invalid. Further, if the rule
enables the Chairperson to authorize some to speak while prohibiting others from doing so,
or enables the Chairperson to permit one to speak for ten minutes and another for two
minutes or not at all, again, I believe that the rule would be unreasonable.
Considering the matter from a different vantage point, it is unlikely that the Chairperson has the authority to adopt policy or rules unilaterally. Pertinent to the matter are requirements involving a quorum and the ability to take action. Specifically, §41 of the General Construction Law states that:
"Whenever three or more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed on 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 or body, or at any duly adjourned meeting of such meeting, or at a 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 one of the persons or officers disqualified from acting."
Based upon the foregoing, in order to carry a motion or take action, there must be an
affirmative vote of a majority of the total membership of a public body. In addition, when the Open Meetings Law is read in conjunction with §41 of the General Construction Law, I
believe that action may be taken only at a meeting during which a majority of the total membership of a public body is present.
In my view, unless there is some statutory basis to do so, the chairperson has no authority to render a decision or make policy unilaterally. Policy can be made by the Board of the Health and Hospitals Corporation only by means of a majority vote of its total membership taken at a meeting conducted in accordance with the Open Meetings Law.
Third, from my perspective, the promulgation of new rules concerning the conduct
of meetings would not represent a valid topic for entry into executive session. Section 105(1)
of the Open Meetings Law specifies and limits the subjects that may properly be considered during an executive session. A discussion of the kind of policy or rules that are the subject of your inquiry in my opinion would not fall within any of the grounds for entry into executive session.
Lastly, since you mentioned that it "has taken some time to obtain the minutes of the
meeting", I point out that §106(3) of the Open Meetings Law requires that minutes of open
meetings be prepared and made available within two weeks.
In an effort to enhance compliance with and understanding of applicable law, copies
of this opinion will be forwarded to Chairperson Gil and General Counsel to the Corporation, Elizabeth St. Clair.
I hope that I have been of assistance.
Robert J. Freeman
cc: Dr. Rosa Gil, Chairperson
Elizabeth St. Clair