July 13, 1998
Hon. Lee J. Konkle
Town of Kinderhook
P.O. Box P
Niverville, NY 12130
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 Supervisor Konkle:
I have received your letter of June 23 and appreciate your interest in compliance with
the Open Meetings Law. You referred to a variety of commissions and committees within
the Town of Kinderhook, none of which includes a majority of the Town Board. You added that the entities in question have "no authority to make final decisions as to town government on behalf of the citizens."
From my perspective, several of the entities to which you referred would not be
subject to the Open Meetings Law; however, I believe that it is likely that two, the Water
District Commission and the Recreation Commission, are required to comply with the Open
Meetings Law. In this regard, I offer the following comments.
As you are aware, the Open Meetings Law is applicable to meetings of public bodies,
and §102(2) of that statute defines the phrase "public body" to mean:
"...any entity for which a quorum is required in order to
conduct public business and which consists of two or more
members, performing a governmental function for the state or
for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body."
Judicial decisions indicate generally that advisory bodies having no power to take final
action, other than committees consisting solely of members of public bodies, fall outside the
scope of the Open Meetings Law. As stated in those decisions: "it has long been held that
the mere giving of advice, even about governmental matters is not itself a governmental
function" [Goodson-Todman Enterprises, Ltd. v. Town Board of Milan, 542 NYS 2d 373,
374, 151 AD 2d 642 (1989); Poughkeepsie Newspapers v. Mayor's Intergovernmental Task Force, 145 AD 2d 65, 67 (1989); see also New York Public Interest Research Group v. Governor's Advisory Commission, 507 NYS 2d 798, aff'd with no opinion, 135 AD 2d 1149, motion for leave to appeal denied, 71 NY 2d 964 (1988)].
In the context of your inquiry, the Code Committee and the Town Park Feasibility
Committee, both of which are likely temporary and consist of citizens, or perhaps a
combination of citizens and Town officials, would appear to fall outside the scope of the
Open Meetings Law.
If the Water District Commission is essentially the governing body for the Water
District, which is itself a public corporation created in conjunction with law, that body would
constitute a "public body" subject to the Open Meetings Law. Similarly, if the Recreation
Commission was created pursuant to §243 of the General Municipal Law, as a creation of the Town Board pursuant to statute, it, too, would constitute a "public body." Subdivision (1) of §243 states that:
"If the board of estimate and apportionment, or if there be no
such board, the common council, board of alderman, or
corresponding legislative body, or the governing board of such
county, town or village shall determine that the power to
equip, operate and maintain playgrounds and recreation
centers shall be exercised by a recreation commission, they
may, by resolution, establish in such municipality a recreation commission, which shall possess all the powers and be subject to all the responsibilities of local authorities under this article."
If indeed the Town's Recreation Commission was created to carry out "all the powers" and
"all the responsibilities" of a local authority, it would be not either temporary or solely
advisory in nature, and it would, in my opinion, constitute a public body required to comply
with the Open Meetings Law.
I hope that the foregoing serves to provide clarification. If you have questions on the
matter, please feel free to contact me.
I hope that I have been of assistance.
Robert J. Freeman