March 17, 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

Dear Councilwoman Christian:

I have received your letter of January 30 in which you contend that the City Council
of the City of Batavia engaged in "a violation of the State's Open Government Laws." In
brief, you referred to a vote taken during an executive session on October 12 and that "City
officials claimed that no legally binding vote but, only a straw poll was taken in the executive
session and therefore it was not illegal." You contend that "[i]t was illegal because it never
came back to the floor until January."

If my understanding of the matter is accurate, there is but one decision that deals with
the "consensus" or "straw poll." In Previdi v. Hirsch [524 NYS 2d 643 (1988)], the issue
pertained to access to records, i.e., minutes of executive sessions held under the Open
Meetings Law. Although it was assumed by the court that the executive sessions were
properly held, it was found that "this was no basis for respondents to avoid publication of
minutes pertaining to the 'final determination' of any action, and 'the date and vote thereon'"
(id., 646). The court stated that:

"The fact that respondents characterize the vote as taken by 'consensus' does not exclude the recording of same as a 'formal vote'. To hold otherwise would invite circumvention of the statute.

"Moreover, respondents' interpretation of what constitutes the 'final determination of such action' is overly restrictive. The reasonable intendment of the statute is that 'final action' refers to the matter voted upon, not final determination of, as in this case, the litigation discussed or finality in terms of exhaustion or remedies" (id. 646).

In the context of the situation to which you referred, when the Council reached a "consensus" reflective of its final determination of an issue, I believe that minutes should
have been prepared indicating the nature of the action taken and the manner in which each
member voted.

In contrast, a "straw poll", or something like it, that is not binding and does not represent members' action that could be construed as final, could in my view be taken in executive session when it represents a means of ascertaining whether additional discussion is warranted or necessary. If a "straw poll" does not represent a final action or final determination of the Council, I do not believe that minutes including the votes of the members would be required to be prepared.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: City Council