September 14, 1999



TO: "Joe" <>

FROM: Robert J. Freeman, Executive Director

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 "Joe":

As you are aware, I have received your letter of July 24. In all honesty, it was misplaced, and I hope that you will accept my apologies for the delay in response.

You referred to the Town Board of the Town of Rotterdam and indicated that it has
developed a "yearly schedule" of meetings, which in the Board's view "satisfies the 72 hour
rule" concerning notice given under the Open Meetings Law. You wrote that the notice is
posted and asked whether the Board's practice is consistent with the Open Meetings Law.

In this regard, the Open Meetings Law requires that notice be given to the news media
and posted prior to every meeting. Specifically, §104 of that statute provides that:

"1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more
designated public locations at least seventy-two hours before each meeting.

2. Public notice of the time and place of every other meeting shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.

3. The public notice provided for by this section shall not be construed to require publication as a legal notice."
Stated differently, if a meeting is scheduled at least a week in advance, notice of the time and place must be given to the news media and to the public by means of posting in one or more designated public locations, not less than seventy-two hours prior to the meeting. If a
meeting is scheduled less than a week an advance, again, notice of the time and place must
be given to the news media and posted in the same manner as described above, "to the extent practicable", at a reasonable time prior to the meeting. Therefore, if, for example, there is a need to convene quickly, the notice requirements can generally be met by telephoning the local news media and by posting notice in one or more designated locations.

In the context of your inquiry, if a series of meetings have been scheduled in advance to be held at particular times, the posting of a notice of a schedule of those meetings in a conspicuous public locations and transmittal of that notice to the news media would in my
view satisfy §104 of the Open Meetings Law regarding those meetings. The only instances
in which additional notice would be required would involve unscheduled meetings that are not referenced in the notice.

You also wrote that the Board "never notif[ies] the public at all of ‘caucus meetings', which are held a few days prior to the board meeting." If the Town Board consists of members of more than one political party, the caucuses would be outside the coverage of the Open Meetings Law; if, however, the Board consists entirely of members of one political party, the Open Meetings Law would apply when the Board meets to discuss public business.

By way of background, the definition of "meeting" [see Open Meetings Law, §102(1) 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 conducted open to the public, whether or not there is an intent to have 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 (1978)].

The decision rendered by the Court of Appeals was precipitated by contentions made by public bodies that so-called "work sessions" and similar gatherings, such as "agenda sessions," 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.).

Based upon the direction given by the courts, when a majority of the Board is present to
discuss the Town business, any such gathering, in my opinion, would constitute a "meeting"
subject to the Open Meetings Law, unless the meeting or a portion thereof is exempt from
the Law.

As you may be aware, the Open Meetings Law provides two vehicles under which a
public body may meet in private. One is the executive session, a portion of an open meeting
that may be closed to the public in accordance with §105 of the Open Meetings Law. The
other arises under §108 of the Open Meetings Law, which contains three exemptions from
the Law. When a discussion falls within the scope of an exemption, the provisions of the
Open Meetings Law do not apply.

With regard to political caucuses, since the Open Meetings Law became effective in
1977, it has contained an exemption concerning political committees, conferences and
caucuses. Again, when a matter is exempted from the Open Meetings Law, the provisions
of that statute, including the notice requirements, do not apply.

Section 108(2)(a) of the Law states that exempted from its provisions are:

"deliberations of political committees, conferences and caucuses." Further, §108(2)(b) states that:

"for purposes of this section, the deliberations of political committees, conferences and caucuses means a private meeting of members of the senate or assembly of the state of
New York, or the legislative body of a county, city, town or village, who are members or adherents of the same political party, without regard to (i) the subject matter under
discussion, including discussions of public business, (ii) the majority or minority status of such political committees, conferences and caucuses or (iii) whether such political
committees, conferences and caucuses invite staff or guests to participate in their deliberations..."

Therefore, in general, either the majority or minority party members of a legislative body may conduct closed political caucuses, either during or separate from meetings of the
public body.

However, it has been held that a legislative body consisting of members of a single political party may conduct closed caucuses only to discuss political party business; if they seek to discuss public business, the gathering would not be exempt from the Open Meetings
Law, but rather would constitute a "meeting " covered by the Open Meetings Law [see
Buffalo News v. City of Buffalo Common Council, 585 NYS2d 275 (1992)]. Buffalo News involved a political caucus held by a public body consisting solely of members of one political party, and the court concentrated on the expressed legislative intent regarding the exemption for political caucuses, as well as the statement of intent appearing in §100 of the Open Meetings Law, stating that:

"In a divided legislature where a meeting is restricted to the attendance of members of one political party, regardless of quorum and majority status, perhaps by that very restriction it
would be fair to assume the meeting constitutes a political caucus. However, such a conclusion cannot be drawn if the entire legislature is of one party and the stated purpose is to adopt a proposed plan to address the deficit before going public. In view of the overall importance of Article 7, any exemption must be narrowly construed so that it will not render Section 100 meaningless. Therefore, the meeting of February 8, 1992 was in violation of Article 7 of the Open Meetings Law...

"When dealing with a Legislature comprised of only one political party, it must be left to the sound discretion of honorable legislators to clearly announce the intent and purpose of future meetings and open the same accordingly consistent with the overall intent of Public Officers Law Article 7" (id., 278).

The court, however, continually referred to the term "meeting" and the deliberative process, not merely the act of "adopting" or taking action. In fact, the language of the decision in many ways is analogous to that of the Appellate Division in Orange County Publications, supra. Specifically, it was stated in Buffalo News that:

"The Court of Appeals in Orange County (supra) also declared: 'The purpose and intention of the State Legislature in the present context are interpreted as expressed in the language of the statute and its preamble.' The legislative intent, therefore, expressed in Section 108, must be read in conjunction with the Declaration of Legislative Policy of Article 7 as set forth in its preamble, Section 100.

"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. The people must be
able to remain informed if they are to retain control over those who are their public
servants. It is the only climate under which the commonwealth will prosper and enable the
governmental process to operate for the benefit of those who created it.

"A literal reading of Section 108, as urged by Respondent, could effectively preclude the public from any participation whatsoever in a government which is entirely controlled by
one political party. Every public meeting dealing with sensitive or controversial issues could be preceded by a 'political caucus' which would have no public input, and the public meetings decisions on such issues would be a mere formality. Such interpretation would negate the Legislature's declaration in Section 100. The Legislature could not have
contemplated such a result by amending Section 108 and at the same time preserving Section 100" (id., 277).

Based on the foregoing, if the Board consists of members of a single political party, to the extent that the caucuses are held to discuss public business, I believe that the Open Meetings Law would apply and that the Board would be required to provide notice in
accordance with §104 of the Law.

I hope that I have been of assistance.


cc: Town Board