May 24, 2000

OML-AO-3162

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

I have received your letter of April 25. You indicated that you received a call from a
resident who indicated that "some big meeting" was being held that night. When you arrived
at the site of the meeting, you were approached by another member of the Town Board, who told that you that you should not be there because your presence created a quorum of the Town Board. You indicated that you did not know the purpose of the gathering and asked why you could not be there as a citizen.

You have asked whether you are precluded from attending similar gatherings because
you are an elected official and whether it is "true that just because three (majority) members
of our Town Board happen to be in the same place unintentional[ly] that makes a quorum."

In this regard, §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". It is
emphasized that the definition of "meeting" has been broadly interpreted by the courts. In a
landmark decision rendered in 1978, the Court of Appeals, the state's highest court, found
that any gathering of a quorum of a public body for the purpose of conducting public business is a "meeting" that must be convened open to the public, whether or not there is an
intent to take 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)].

I point out that the decision rendered by the Court of Appeals was precipitated by contentions made by public bodies that so-called "work sessions" and similar gatherings 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, 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, if a majority of the Board gathers to discuss Town business, in their capacities as Board members, any such gathering, in my opinion, would constitute a "meeting" subject to the Open Meetings Law.

With respect to chance meetings, it was found that:

"We agree that not every assembling of the members of a public body was intended to be included within the definition.

Clearly casual encounters by members do not fall within the open meetings statutes. But an informal 'conference' or 'agenda session' does, for it permits 'the crystallization of secret
decisions to point just short of ceremonial acceptance'" (id. at 416).

In view of the foregoing, if members of a public body meet by chance or at a social
gathering, for example, I do not believe that the Open Meetings Law would apply, for there
would be no intent to conduct public business, collectively, as a body. Further, if less than a
quorum is present, the Open Meetings Law would not, in my opinion, be applicable.

I point out that questions similar to yours have arisen at workshops and seminars during which I have spoken and which were attended by many, including perhaps a majority of the membership of several public bodies. Some of those persons have asked whether their presence at those gatherings fell within the scope of the Open Meetings Law. In brief, I have responded that, since the members of those entities did not attend for the purpose of
conducting public business as a body, the Open Meetings Law, in my opinion, did not apply. It would appear that the same conclusion could be reached with respect to the matter that you described.

In sum, I believe that, in your capacity as a citizen, you have the right to attend the kind of gathering to which you referred. Further, if a majority of the Board, by chance, happens to be at the same gathering, I do not believe that the Open Meetings Law would apply.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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