April 26, 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 March 12 in which you expressed concerns relative to
meetings and hearings conducted by governmental bodies in the Town of Rosendale.
In this regard, the Committee on Open Government is authorized to offer advice and
opinions pertaining to the Open Meetings and Freedom of Information Laws. The
Committee is not empowered to compel an entity to comply with those statutes or conduct
audits. Nevertheless, in an effort to provide guidance, I offer the following comments.
First, you wrote that minutes of meetings of the Zoning Board of Appeals and the Planning Board are "missing...and incomplete." Section 106 of the Open Meetings Law provides direction concerning the contents of minutes and the time within which they must be prepared and disclosed. Specifically, that provision states that:
"1. Minutes shall be taken at all open meetings of a public
body which shall consist of a record or summary of all
motions, proposals, resolutions and any other matter formally
voted upon and the vote thereon.
2. Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter.
3. Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meetings except that minutes taken pursuant to subdivision two hereof shall be available to the public within one week from the date of the executive session."
Based upon the foregoing, minutes must be prepared and made available within two weeks of meetings.
It is noted that there is nothing in the Open Meetings Law or any other statute of
which I am aware that requires that minutes be approved. Nevertheless, as a matter of
practice or policy, many public bodies approve minutes of their meetings. In the event that
minutes have not been approved, to comply with the Open Meetings Law, it has consistently
been advised that minutes be prepared and made available within two weeks, and that they
may be marked "unapproved", "draft" or "non-final", for example. By so doing within the
requisite time limitations, the public can generally know what transpired at a meeting;
concurrently, the public is effectively notified that the minutes are subject to change.
You also wrote that the minutes do not include reference to those who voted "and
what individual voted for or against." Here I point out that since its enactment in 1974, the
Freedom of Information Law has included an "open vote" requirement. Section 87(3)(a)
states that "[e]ach agency shall maintain a record of the final vote of each member in every
agency proceeding in which the member votes." Therefore, in each instance in which a
public body, such as the Zoning Board of Appeals or Planning Board, takes action, a record must be prepared specifying the manner in which each member cast his or her vote.
Typically, the record of votes appears in minutes of meetings.
The remaining issues described in your letter pertain to notice of meetings and
hearings. By way of background, a "meeting" is generally a gathering of quorum of a public
body for the purpose of discussion, deliberation, and potentially taking action within the
scope of its powers and duties. A "hearing" is generally held to provide members of the
public with an opportunity to express their views concerning a particular subject, such as a
proposed budget, a local law or a matter involving land use. Hearings are usually required to
be preceded by the publication of a legal notice in the official newspaper designated by a
public body. In contrast, §104(3) of the Open Meetings Law specifies that notice of a
meeting must merely be "given" to the news media and posted. Further, there is no requirement that a newspaper, for example, publish a notice given regarding a meeting to be
held under the Open Meetings Law, or that the notice given under that statute must be given
to the official newspaper.
Specifically, the provisions in the Open Meetings Law pertaining to notice appear in §104 and state 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."
There is no general provision that relates to legal notice that must be given prior to hearings. Those requirements are usually found in the sections of law dealing with the subject or activity at issue. For example, while towns, villages and school districts all must hold public hearings on their proposed budgets, there are separate provisions in the Town Law, the Village Law and the Education Law dealing with each. In short, notice requirements may differ, depending on the nature of the hearing.
In an effort to enhance compliance with and understanding of the law, copies of this opinion will be forwarded to the Zoning Board of Appeals and the Planning Board, as well as the Town Board.
I hope that I have been of assistance.
Robert J. Freeman
cc: Town Board
Zoning Board of Appeals