October 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 September 11 in which you questioned the legality of private discussions of Village business during political caucuses held by members of a particular party who serve on the Board of Trustees. You indicated that those persons "claim to have [my] blessing."
In this regard, it appears that the gatherings are exempt from the Open Meetings Law.
By way of background, 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 deliberations..."
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.
Many local legislative bodies, recognizing the potential effects of the 1985 amendment, have taken action to reject their authority to hold closed caucuses and to continue to conduct their business open to the public as they had prior to the amendment. Since several of those bodies are located in Westchester County, it is suggested that you ascertain whether the Village of Elmsford took such action, perhaps late in 1985 or soon thereafter.
With respect to members to whom you referred having "my blessing" concerning the
closed caucuses, it is emphasized that this office attempts to offer responses that are based on and consistent with the law, irrespective of our views regarding the propriety of the law. In the context of your inquiry, while I believe that the gatherings in question fall outside the
coverage of the Open Meetings, it is noted that the Committee has for years recommended
legislation to amend the exemption pertaining to political caucuses in an effort to ensure that
public business is discussed in public.
Lastly, the only provision of which I am aware that requires that caucuses be held in
public is subdivision (28) of §1-104 of the Election Law, which states that:
"The term ‘caucus' shall mean an open meeting held in a political subdivision to nominate the candidates of a political party for public office to be elected in such subdivision at which all the enrolled voters of such party residing in such subdivision are eligible to vote."
The foregoing would not, in my view, be equivalent to the political caucuses conducted by
the members of Board of Trustees.
I hope that the foregoing serves to enhance your understanding of the matter and that I have been of assistance.
Robert J. Freeman