August 26, 1998


Mr. Peter Henner
Attorney and Counselor At Law
P.O. Box 326
Clarksville, NY 12041-0326

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. Henner:

I have received your letter of August 24. In your capacity as attorney for Mary Ann
Smith, a member of the City of Amsterdam Common Council, you have requested an advisory opinion under the Open Meetings Law concerning the "appropriateness and legality of the procedure by which the city of Amsterdam recently adopted a resolution."

According to your letter and news articles attached to it, a resolution was presented
at a recent meeting of the Common Council to provide the City's Community and Economic
Development Department with permission to ask the United States Department of Housing
and Urban Development to consider an application for money for a local business. Three
members of the Common Council, which consists of five members in its entirety, "voted, by
a two-to-one margin, to grant such permission." Although two affirmative votes did not
represent a majority of the five member Council, you wrote that:

"Mayor John M. Duchessi deemed the resolution to have passed, and signed it. Mayor Duchessi was quoted in the Amsterdam Recorder as stating that he believed the resolution
had passed, because it had received the vote of a majority of the City Council members who were present. According to Mayor Duchessi, the Amsterdam City Charter authorized a resolution to be passed by the affirmative vote of a majority of the aldermen present, rather than by the affirmative vote of a majority of the aldermen on the Council."

It is your view that the Mayor's position is incorrect as a matter of law. I agree with your
contention. In this regard, I offer the following comments.

First, as you are aware, the Open Meetings Law applies to meetings of the 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."

It is clear that the Common Council constitutes a public body required to comply with the
Open Meetings Law. A key element in the implementation of that statute involves its relationship to §41 of the General Construction Law, which is entitled "Quorum and majority." That statute states that:

"Whenever three of more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or 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 of body, or at any duly adjourned meeting of such meeting, or at 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 body. 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, a quorum is a majority of the total membership of a public body, notwithstanding absences or vacancies, for example. Further, 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. Therefore, if a public body consists of five members, three affirmative votes
would be needed to approve a motion, even if only three members are present.

In construing §41 of the General Construction Law, it has consistently been found that action may be taken only by means of an affirmative vote of the majority of the total membership of a public body [see e.g., Rockland Woods, Inc. v. Suffern, 40 AD 2d 385
(1973); Walt Whitman Game Room, Inc. v. Zoning Board of Appeals, 54 AD 2d 764 (1975); Guiliano v. Entress, 4 Misc. 2d 546 (1957); and Downing v. Gaynor, 47 Misc. 2d 535 (1965); also Ops Atty Gen 88-87 (informal)].

In the context of the situation described, since the Council consists of five members, an affirmative vote of three would be needed to take any action. In the decisions cited above,
a vote of less than three would be characterized as "nonaction."

In a case in which an action was purportedly taken by a vote of three to two by an entity consisting of nine members, again, it was found that no action was validly taken. In that decision, it was also determined that rules inconsistent with §41 of the General Construction Law were invalid [see Reiff v. New York City Council and Conciliation Appeals Board, 491 NYS 2d 565 (1985)]. Further, in Rockland Woods, supra, it was stated that "the
purpose of that statute is to ensure that before official action is taken by a public body, there must be clear and expressed approval by a majority of its members (id.). From my
perspective, insofar as a charter provision is inconsistent with §41 of the General Construction Law, it would be of no effect.

I note that §23 of the General City Law pertaining to the powers granted to and exercised by common councils states in subdivision (2) that:

"In the absence of any provision of law or ordinance determining by whom or in what manner or subject to what conditions any power granted by this act shall be exercised,
the common council or board of aldermen or corresponding legislative body of the city shall, subject to the provisions of this section, have power by ordinance to determine by whom and in what manner and subject to what conditions said power shall be exercised."

Stated differently, if no provision of law determines the manner in which the authority of a
common council is exercised, that entity has the authority to adopt provisions that would
govern the manner by which it carries out its authority. Nevertheless, in this circumstance,
there is a provision of law, notably §41 of the General Construction Law, that specifies that
action can be taken only by means of an affirmative vote of the total membership.
Consequently, if indeed the City of Amsterdam has adopted a provision inconsistent with a
state statute, §41 of the General Construction Law, I believe that it would be invalid to the
extent of any inconsistency.

Lastly, you asked whether a person seeking to invalidate the action taken by the Common Council could seek to recover attorney's fees pursuant to the Open Meetings Law.
There appears to be no issue involving action taken in private or an improper use of an
executive session. However, the Common Council, according to the Mayor, purportedly
took action at a meeting that fell within the scope of the Open Meetings Law. Under §107
of that statute, there are several potential vehicles available to ensure compliance, one of
which involves an action for declaratory judgment. While I know of no judicial decision
dealing with similar facts, it is possible that an action for declaratory judgment under the Open Meetings Law could be sought in an effort to declare that the Council's purported action constitutes what has been characterized by the courts as nonaction.

As you are aware, §107(2) provides a court with discretionary authority to award
reasonable attorney's fees to the successful party. While the likelihood of an award of
attorney's fees is conjectural, I note that the Court of Appeals found that an award of
attorney's fees should have been made in a situation in which a public body acted "in such a
manner as to circumvent the Open Meetings Law quorum requirement", and that "it is very
often the possibility of recovering costs and attorneys' fees that gives private citizens like
plaintiffs the impetus they need to bring meritorious lawsuits to enforce the Open Meetings
Law..." [Matter of Gordon v. Village of Monticello, 87 NY2d 124, 128 (1995)].

Copies of this opinion will be forwarded to officials of the City of Amsterdam.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Hon. John J. Duchessi, Mayor
Common Council
Philip Cortese, Esq.