June 8, 1998

Mr. James J. McLoughlin
Counsel
City of Buffalo Charter Revision Commission
City Hall, Room 221
Buffalo, NY 14202

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. McLoughlin:

I have received your letter of May 11 in which you sought advice in relation to the Open Meetings Law.

You wrote that the Mayor of the City of Buffalo recently created a City Charter Commission pursuant to §36 of the Municipal Home Rule Law. Paragraph (f) of subdivision (6) of that statute provides that:

"The commission shall conduct public hearings. It shall conduct such public hearings at such times and at such places within the city as it shall deem necessary. The commission
shall also have power to conduct private hearings, take testimony, subpoena witnesses and require the production of books, papers and records."

In conjunction with the foregoing, you raised the following questions:

"(1) What impact, if any, does §105 of the Public Officers Law (conduct of executive sessions) have on the Commission's authority to conduct private hearings?

(2) What are the limitations, if any, upon the Commission's authority to conduct private hearings? The Commission is concerned that city officers and employees may be reluctant to express themselves freely before it on governmental operations in a public hearing.

(3) Is there any legislative history or experience of other Charter Revision Commissions which may throw light on the way in which the Municipal Home Rule Law provision should
be interpreted?"

In this regard, I know of no judicial decisions or other interpretations that are directly
pertinent to the issues that you raised. However, from my perspective, most relevant is the
distinction between a meeting and a hearing. As you may be aware, a meeting, according to
§102(1) of the Open Meetings Law, involves a gathering of a majority of a public body for
the purpose of conducting public business. Further, the statement of intent appearing in §100 and judicial decisions indicate that the statute is intended to open the deliberative process of public bodies [see e.g., Orange County Publications v. City of Newburgh, 60 AD2d 409, affirmed 45 NY2d 947 (1978)]. In short, meetings typically involve discussion and deliberation by members of public bodies and often the taking of action.

In contrast, hearings generally involve either providing members of the public with an
opportunity to speak with respect to a given issue or enabling a person or body, such as the
Commission, to elicit testimony, opinions or information from individuals, particularly those
with certain knowledge or expertise.

From my perspective, the functions of meetings and hearings differ, and the difference
between the two determines whether the gathering is a meeting subject to the requirements
of the Open Meetings Law, or a hearing held in accordance with §36 of the Municipal Home Rule Law.

When the Commission gathers to discuss and deliberate collectively, as a body, the
gathering in my view would constitute a "meeting". As you are likely aware, meetings of
public bodies are presumptively open to the public and must be conducted in public, except
to the extent that a discussion may be held during an executive session. Section 102(3) of the Open Meetings Law states that an executive session is a portion of an open meeting during which the public may be excluded, and paragraphs (a) through (h) of §105(1) specify and limit the subjects that may properly be discussed during an executive session. In my view, in consideration of the kind of function performed by a charter revision commission, it is unlikely that the grounds for entry into executive would be pertinent or applicable.

However, when the Commission determines to authorize the public to express its
opinions or, perhaps more importantly, when it seeks to elicit the testimony or views of
individuals due to their special knowledge or expertise, I believe that §36 would apply. In
those circumstances, the events would be "hearings", and the Commission, in my view, would have the authority to conduct them in public or in private. Insofar as private hearings are held for the purposes described above, §36, a statute conferring specific authority, would, in my opinion, supersede the Open Meetings Law [see Open Meetings Law, §110].

I hope that I have been of assistance. If you would like to discuss the matter, please
feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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