January 15, 1999
Legislator James McMahon
Oswego County Legislator
3276 Fulton Avenue
Central Square, NY 13036
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 Legislator McMahon:
I have received your letter of December 28. In your capacity as a member of the Oswego
County Legislature, you questioned "the legality of phone polls conducted by many of the committees of the...Legislature..."
In this regard, there is nothing in the Open Meetings Law that would preclude members of
a public body from conferring individually, by telephone or via mail. However, a series of
communications between individual members or telephone calls among the members which results in a collective decision, a meeting held by means of a telephone conference, or a vote taken by mail would in my opinion be inconsistent with law. From my perspective, voting and action by a public body may only be carried out at a meeting during which a quorum has physically convened. It is noted that the Open Meetings Law pertains to public bodies, and §102(2) 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."
The last clause of the definition refers to any "committee or subcommittee or similar body of
[a] public body." Based on that language and judicial decisions, when a public body, such as a county legislature, creates or designates its own members to serve as a committee or subcommittee, the committee or subcommittee would constitute a public body subject to the requirements of the Open Meetings Law. Therefore, committees of the County Legislature consisting solely of its own members would have the same obligations regarding notice and openness, for example, as well as the same authority to conduct executive sessions as the governing body [see Glens Falls Newspapers, Inc. v. Solid Waste and Recycling Committee of the Warren County Board of Supervisors, 195 AD2d 898 (1993)].
As you may be aware, §102(1) of the Open Meetings Law defines the term "meeting" to mean "the official convening of a public body for the purpose of conducting public business." Based upon an ordinary dictionary definition of "convene", that term means:
"1. to summon before a tribunal;
2. to cause to assemble syn see 'SUMMON'" (Webster's Seventh New Collegiate Dictionary, Copyright 1965).
In view of that definition and others, I believe that a meeting, i.e., the "convening" of a public body, involves the physical coming together of at least a majority of the total membership of the Commission. While nothing in the Open Meetings Law refers to the capacity of a member to participate or vote at a remote location by telephone or mail, it has consistently been advised that a member of a public body cannot cast a vote unless he or she is physically present at a meeting of the body.
It is noted, too, that the definition of "public body" refers to entities that are required to
conduct public business by means of a quorum. The term "quorum" is defined in §41 of the General Construction Law, which has been in effect since 1909. The cited provision 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 duty. 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 none of the persons or officers disqualified from
Based upon the language quoted above, a public body cannot carry out its powers or duties except by means of an affirmative vote of a majority of its total membership taken at a meeting duly held upon reasonably notice to all of the members. As such, it is my view that a public body has the capacity to carry out its duties only at meetings during which a quorum has convened. A quorum of a committee would be a majority of its total membership.
I also direct your attention to the legislative declaration of the Open Meetings Law, §100,
which states in part that:
"It is essential to the maintenance of a democratic society that the
public business be performed in an open and public manner and that
the citizens of this state be fully aware of and able to observe the
performance of public officials and attend and listen to the
deliberations and decisions that go into the making of public policy.
Based on the foregoing, the Open Meetings Law is intended to provide the public with the right to observe the performance of public officials in their deliberations. That intent cannot be realized if members of a public body conduct public business as a body or vote by phone or by mail.
Last but perhaps most importantly, a recent judicial decision, the first dealing with the issue,
reached the same conclusion as offered here and cited an opinion rendered by this office. In Cheevers v. Town of Union (Supreme Court, Broome County, September 3, 1998), the court stated that:
"...there is a question as to whether the series of telephone calls
among the individual members constitutes a meeting which would be
subject to the Open Meetings Law. A meeting is defined as ‘the
official convening of a public body for the purpose of conducting
public business' (Public Officers Law §102). Although ‘not every assembling of the members of a public body was intended to fall within the scope of the Open Meetings Law [such as casual encounters by members], ***informal conferences, agenda sessions
and work sessions to invoke the provisions of the statute when a quorum is present and when the topics for discussion and decision are such as would otherwise arise at a regular meeting' (Matter of Goodson Todman Enter. v. City of Kingston Common Council, 153
AD2d 103, 105). Peripheral discussions concerning an item of public business are subject to the provisions of the statute in the same manner was formal votes (see, Matter of Orange County Publs. v. Council of City of Newburgh, 60 AD2d 309, 415 Affd 45 NY2d 947).
"The issue was the Town's policy concerning tax assessment
reductions, clearly a matter of public business. There was no physical
gathering, but four members of the five member board discussed the
issue in a series of telephone calls. As a result, a quorum of members
of the Board were ‘present' and determined to publish the Dear Resident article. The failure to actually meet in person or have a telephone conference in order to avoid a ‘meeting' circumvents the intent of the Open Meetings Law (see e.g., 1998 Advisory Opns
Committee on Open Government 2877). This court finds that telephonic conferences among the individual members constituted a meeting in violation of the Open Meetings Law..."
In sum, I do not believe that a public body may validly conduct a meeting or take action by
means of a conference call or a series of calls among the members.
I hope that I have been of assistance.
Robert J. Freeman
cc: Oswego County Attorney