January 10, 2000
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
I have received your letter of December 7 in which you sought guidance concerning the Open Meetings Law.
You wrote that the majority caucus of the Rensselaer County Legislature consists of
thirteen members, and that another legislator, "a person registered to another political party,
has expressed an interest in joining [your] caucus." You added that the majority caucus
meets monthly "to discuss proposed resolutions and local laws that will be considered at
[y]our monthly meeting", and that it is your belief that those gatherings may be closed. If the
fourteenth member joins the caucus, you asked whether the gatherings of the majority caucus will be required to be open.
I agree that a gathering of the thirteen members of the majority caucus may be held in
private. However, if the fourteenth or any other member attends, and if the discussion
involves matters of public business, the gathering would, in my opinion, constitute a
"meeting" that must be conducted in public in accordance with the provisions of the Open
Meetings Law. In this regard, I offer the following comments.
First, as you are likely aware, the Open Meetings Law is applicable to meetings of
public bodies, such as the County Legislature. By way of historical 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
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 a public body gathers to
discuss public 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.
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.
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 do not apply.
Questions concerning the scope of the so-called "political caucus" exemption have continually arisen, and until 1985, judicial decisions indicated that the exemption pertained
only to discussions of political party business. Concurrently, in those decisions, it was held
that when a majority of a legislative body met to discuss public business, such a gathering
constituted a meeting subject to the Open Meetings Law, even if those in attendance
represented a single political party [see e.g., Sciolino v. Ryan, 81 AD 2d 475 (1981)].
Those decisions, however, were essentially reversed by the enactment of an amendment to the Open Meetings Law in 1985. Section 108(2)(a) of the Law now 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
Based on the foregoing, 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.
I note that there have been recent developments in case law regarding political caucuses that indicate that the exemption concerning political caucuses has in some instances been asserted improperly as a means of excluding the public from gatherings that have little or no relationship to political party activities or partisan political issues.
One of the decisions, Humphrey v. Posluszny [175 AD 2d 587 (1991)], involved a private meeting held by members of a village board of trustees with representatives of the village police benevolent association. Although the board characterized the gathering as a political caucus outside the scope of the Open Meetings Law, the Appellate Division, Fourth Department, held to the contrary. In a brief discussion of the caucus exemption and its intent, the decision states that:
"The Legislature found that the public interest was promoted by 'private, candid exchange of ideas and points of view among members of each political party concerning the public business to come before legislative bodies' (Legislative Intent of L.1985,ch.136,§1). Nonetheless, what occurred at the meeting at issue went beyond a candid discussion, permissible at an exempt caucus, and amounted to the conduct of public business, in violation of Public Officers Law §103(a) (see, Public Officers Law §100. Accordingly, we declare that the aforesaid meeting was held in violation of the Open Meetings Law" (id., 588).
The Court did not expand upon when or how a line might be drawn between a "candid
discussion" among political party members and "the conduct of public business." Although
the decision was appealed, the appeal was withdrawn, because the membership on the board changed.
Perhaps most pertinent to the situation to which you referred is the case of Buffalo News v. Buffalo Common Council [585 NYS 2d 275 (1992), which involved a political caucus held by a public body consisting solely of members of one political party. As in Humphrey, 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 view of the overall importance of Article 7, any exemption must be narrowly construed so that it will not render Section 100 meaningless" (id., 278).
Although the County Legislature in the instant situation does not consist wholly of members of a single political party, I believe that the thrust of the decision indicates that, in view of the intent of the Open Meetings Law, exceptions to the right to attend meetings should be construed narrowly. Based on its intent, if a member registered to a political party different from that of the majority joins the majority to discuss public business, I believe that the gathering is no longer a political caucus, but rather a "meeting" that falls within the coverage of the Open Meetings Law.
I note that the decision in Buffalo News continually referred to the term "meeting" and the deliberative process, and 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, I believe that consideration of the matter must focus on the
overall thrust of the decision, coupled with the expressed legislative intent of the Open
Meetings Law. To reiterate a statement in the Buffalo News decision: "any exemption must
be narrowly construed so that it will not render Section 100 meaningless" (id., 278).
It is possible that the fourteenth member may have a philosophy or inclination similar
to that of the majority. Nevertheless, by virtue of that person's political party registration, it
appears that he has affirmatively chosen to distinguish himself from the majority party.
Similarly, there may be upstate democrats in the State Senate who are more conservative than their downstate counterparts and whose positions may in many instances be more closely aligned with the republican majority. In my view, despite what may be a similarity in their stances, if those democrats joined the republican majority during its caucus, I do not believe that the exemption regarding political caucuses would apply; on the contrary, I believe that the gathering would constitute a meeting subject to the Open Meetings Law.
In my view, the same conclusion should be reached in the situation that you
I hope that I have been of assistance.
Robert J. Freeman