July 14, 1998



Ms. Shirley Dunkle
574 Lake Road
King Ferry, NY 13081

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. Dunkle:

I have received your undated letter, which reached this office on June 30.

You referred to recent action taken by the Genoa Supervisor and the Town Board
concerning the "Rules of Order." When you asked that Robert's Rules of Order be adopted,
the Supervisor, according to a news article, rejected the suggestion. Instead, the Board
adopted rules governing public participation at meetings. You added that the new procedure
"had been adopted and passed before the meeting even was called to order." You have
sought my views on the matter.

First, Robert's Rules is not law, and I know of no one who fully understands Robert's
Rules. It may provide guidance concerning the procedures followed by a public body.
However, there is no requirement that a public body adopt or follow Robert's Rules. Further,
to the extent that Robert's Rules may conflict with a law, or perhaps with a rule adopted by
a public body, Robert's Rules would, in my opinion, be of no effect.

Second, although 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), the Law
is silent with respect to the issue of public participation. Consequently, 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. Nevertheless, 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, I believe that it should do so based upon 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. For example,
although a town board may "determine the rules of its procedure" (see Town Law, §63), in
a case in which a school board's rules prohibited the use of tape recorders at its meetings, the
Appellate Division found that the rule was unreasonable, stating that the authority to adopt
rules "is not unbridled" and that "unreasonable rules will not be sanctioned" [see Mitchell v.
Garden City Union Free School District, 113 AD 2d 924, 925 (1985)]. Similarly, if by rule,
a public body chose to permit certain citizens to address it for ten minutes while permitting
others to address it for three, or not at all, such a rule, in my view, would be unreasonable.

Third, if the Board adopted the rules in private, prior to or outside of an open
meeting, I believe that it would have failed to have complied with the Open Meetings Law.
From my perspective, a public body can take action only at a meeting held in accordance with
that statute. It is emphasized that the Open Meetings Law has been broadly interpreted by
the courts. In a landmark decision rendered in 1978, the Court of Appeals found that any
gathering of a quorum of a public body for the purpose of conducting public business is a
"meeting" that must be convened open to the public, whether or not there is an intent to take
action and regardless of the manner in which a gathering may be characterized [see Orange
County Publications v. Council of the City of Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947

I point out that the decision rendered by the Court of Appeals was precipitated by
contentions made by public bodies that so-called "work sessions" and similar gatherings held
for the purpose of discussion, but without an intent to take action, fell outside the scope of
the Open Meetings Law. In discussing the issue, the Appellate Division, whose determination
was unanimously affirmed by the Court of Appeals, stated that:

"We believe that the Legislature intended to include more than
the mere formal act of voting or the formal execution of an
official document. Every step of the decision-making process,
including the decision itself, is a necessary preliminary to
formal action. Formal acts have always been matters of public
record and the public has always been made aware of how its
officials have voted on an issue. There would be no need for
this law if this was all the Legislature intended. Obviously,
every thought, as well as every affirmative act of a public
official as it relates to and is within the scope of one's official
duties is a matter of public concern. It is the entire
decision-making process that the Legislature intended to affect
by the enactment of this statute" (60 AD 2d 409, 415).

The court also dealt with the characterization of meetings as "informal," stating that:

"The word 'formal' is defined merely as 'following or
according with established form, custom, or rule' (Webster's
Third New Int. Dictionary). We believe that it was inserted to
safeguard the rights of members of a public body to engage in
ordinary social transactions, but not to permit the use of this
safeguard as a vehicle by which it precludes the application of
the law to gatherings which have as their true purpose the
discussion of the business of a public body" (id.).

I note that it has also been that "a planned informal conference" or a "briefing session" held
by a quorum of a public body would constitute a "meeting" subject to the requirements of the
Open Meetings Law [see Goodson-Todman v. Kingston, 153 Ad 2d 103, 105 (1990)].

Based upon the terms of the Open Meetings Law and its judicial interpretation, if a
majority of the Board gathers to conduct public business, any such gathering would, in my
opinion, constitute a "meeting" subject to the Open Meetings Law. Further, when there is an
intent to conduct a meeting, the gathering must be preceded by notice given pursuant to §104
of the Open Meetings Law, convened open to the public and conducted in public as required
by the Open Meetings Law.

As a general matter, the Open Meetings Law is based upon a presumption of
openness. Stated differently, meetings of public bodies must be conducted open to the public,
unless there is a basis for entry into executive session. Moreover, the Law requires that a
procedure be accomplished, during an open meeting, before a public body may enter into an
executive session. Specifically, §105(1) states in relevant part that:

"Upon a majority vote of its total membership, taken in an
open meeting pursuant to a motion identifying the general area
or areas of the subject or subjects to be considered, a public
body may conduct an executive session for the below
enumerated purposes only..."

As such, a motion to conduct an executive session must include reference to the subject or
subjects to be discussed, and the motion must be carried by majority vote of a public body's
total membership before such a session may validly be held. The ensuing provisions of
§105(1) specify and limit the subjects that may appropriately be considered during an
executive session. In my view, there would have been no basis for discussing policy or the
adoption of rules regarding public participation in private.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Hon. Hans Pecher, Supervisor
Town Board