July 20, 1998

Mr. Anthony M. Cerreto
Village Attorney
Village of Port Chester
10 Pearl Street
Port Chester, NY 10573

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. Cerreto:

I have received your letter of July 6 in which you requested a "ruling" concerning a matter relating to the Open Meetings Law.

You wrote that the Village of Port Chester "is subject to a special state statute that provides that a police officer subject to disciplinary action in Westchester County has the right to a public hearing and trial before the Board of Trustees." Specifically, §18 of Chapter 306 of the Unconsolidated Law states in part that a village board of trustees or other municipal
board "acting as police commissioners" have the authority to adopt "rules and regulations for the examination, hearing, investigation and determination of charges, made or preferred
against any member or members of such police force..." The same provision provides a board of trustees with the authority to render a determination on the charges.

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

"1) may the officer waive the right to such public hearing since the statute is for his benefit?

2) whether the Open Meeting Law would require such a public hearing?"

In this regard, it is emphasized at the outset that the Committee on Open Government is authorized to offer advice and opinions concerning the statutes within its jurisdiction; the
Committee is not empowered to issue a ruling that it is binding on an entity of government.

The first question is unrelated to the Open Meetings Law, and I cannot offer any comment of substance. It is suggested that if an officer is subject to a collective bargaining agreement, there may be reference to the ability to waive the right to a hearing in the agreement.

With respect to the second, the Open Meetings Law, in my view, would not apply to the hearing. Relevant to the matter is §108(1) of the Open Meetings Law, which exempts from the coverage of that statute "judicial or quasi-judicial proceedings..." From my perspective, it is often difficult to determine exactly when public bodies are involved in a quasi-judicial proceeding, or where a line of demarcation may be drawn between what may be characterized as quasi-judicial, quasi-legislative or administrative functions. Similarly,
often provisions require that public hearings be held; others permit discretion to hold a public hearing. Further, the holding of hearings and providing an opportunity to be heard does not in my opinion render a proceeding quasi-judicial in every instance. Those requirements may be present in a variety of contexts, many of which precede legislative action.

I believe that one of the elements of a quasi-judicial proceeding is the authority to take
final action. While I am unaware of any judicial decision that specifically so states, there are
various decisions that infer that a quasi-judicial proceeding must result in a final determination reviewable only by a court. For instance, in a decision rendered under the Open Meetings Law, it was found that:

"The test may be stated to be that action is judicial or quasi-judicial, when and only when, the body or officer is authorized and required to take evidence and all the parties interested are entitled to notice and a hearing, and, thus, the act of an administrative or ministerial officer becomes judicial and subject to review by certiorari only when there is an
opportunity to be heard, evidence presented, and a decision had thereon" [Johnson Newspaper Corporation v. Howland, Sup. Ct., Jefferson Cty., July 27, 1982; see also City of Albany v. McMorran, 34 Misc. 2d 316 (1962)].

Another decision that described a particular body indicated that "[T]he Board is a quasi-judicial agency with authority to make decisions reviewable only in the Courts" [New York
State Labor Relations Board v. Holland Laundry, 42 NYS 2d 183, 188 (1943)]. Further, in a discussion of quasi-judicial bodies and decisions pertaining to them, it was found that
"[A]lthough these cases deal with differing statutes and rules and varying fact patterns they
clearly recognize the need for finality in determinations of quasi-judicial bodies..." [200 West 79th St. Co. v. Galvin, 335 NYS 2d 715, 718 (1970)].

It is my opinion that the final determination of a controversy is a condition precedent
that must be present before one can reach a finding that a proceeding is quasi-judicial.
Reliance upon this notion is based in part upon the definition of "quasi-judicial" appearing in
Black's Law Dictionary (revised fourth edition). Black's defines "quasi-judicial" as:

"A term applied to the action, discretion, etc., of public administrative officials, who are required to investigate facts, or ascertain the existence of facts, and draw conclusions from
them, as a basis for their official action, and to exercise discretion of a judicial nature."

In the situation at issue, it appears that the proceeding could be characterized as quasi-judicial and that, therefore, the hearing may be conducted outside the coverage of the Open
Meetings Law.
It is emphasized that even when a hearing conducted by a public body is outside the
coverage of the Open Meetings Law, its vote and other matters would not be exempt. As
stated in Orange County Publications v. City of Newburgh:

"there is a distinction between that portion of a meeting...wherein the members collectively weigh evidence taken during a public hearing, apply the law and reach a conclusion and that part of its proceedings in which its decision is announced, the vote of its members taken and all of its other regular business is conducted. The latter is clearly non-judicial and must be open to the public, while the former is indeed judicial in nature, as it affects the rights and liabilities of individuals" [60 AD 2d 409,418 (1978)].

Based upon the decision cited above, the act of voting or taking action must in my view occur during a meeting held in accordance with the Open Meetings Law.

Lastly, I note that there is a decision rendered by the Court of Appeals in which it was
held that certain quasi-judicial proceedings were presumptively open to the news media and, therefore, by implication, to the public [see Herald Company, Inc. v. Weisenberg, 59 NY2d 378 (1983)]. Whether the principles expressed in that decision would be applicable to disciplinary hearings is conjectural.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director