March 4, 2003
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 February 7 in which you requested an advisory opinion relating to the Open Meetings Law. You wrote that:
"In Dutchess County, the Legislature is solidly controlled by
Republicans, 28 - 6 (one vacancy). A recent vacancy was filled by a
registered Democrat, Christopher Baiano. Mr. Baiano has stated
publicly that he has re-registered at the Dutchess County Board of
Elections as a Republican. However, the new registration does not become effective until after the general election in November 2003.
In fact, Mr. Baiano's registration form will remain sealed at the Board of Elections.
"Republicans at the Legislature continually hold caucuses with Mr.
Baiano present, in spite of my objections. It is my belief that their
closed caucuses with one registered Democrat present constitutes a
legal meeting of the Dutchess County Legislature and those meetings
should be open to the public. These meetings or 'party caucus' as the Republicans call them, are closed to the public, the press, and to other Democrats."
In this regard, by way of 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 majority 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 (1978)].
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 the County Legislature is present to discuss County business, such a gathering, in my opinion, would ordinarily constitute a "meeting" subject to the Open Meetings Law, unless the meeting or a portion thereof is exempt from the Law.
With respect to the ability to exclude the public, 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.
With regard to the situation that you described, if the republican members who serve in the
Legislature constituting a majority of the Legislature's membership gather to discuss public business with a democrat member, because there would be members of two political parties, I do not believe that the gathering could be characterized as a political caucus that is exempt from the Open Meetings Law; on the contrary, that kind of gathering would in my view constitute a "meeting" subject to the Open Meetings Law. A political caucus by definition is in my opinion restricted to members or adherents of a single political party. Webster's New Collegiate Dictionary defines caucus as:
"a closed meeting of a group of persons belonging to the same political party or faction usu. to select candidates or to decide on policy."
If the gatherings described in your letter are attended by legislators who are members of two political parties, I do not believe that a democrat legislator could be characterized as a "guest" or that they can be described as political caucuses exempt from the Open Meetings Law. Again, they would appear to be "meetings" that fall within the coverage of that statute.
As you suggested in your letter, the member who intends to change his party registration is
not yet a member of the majority. Subdivision (3) of §5-304 of the Election Law states that:
"A change of enrollment received by the board of elections not later
than the twenty-fifth day before the general election shall be
deposited in a sealed enrollment box, which shall not be opened until
the first Tuesday following such general election. Such change shall
be then removed and entered as provided in this article."
When a similar issue arose, since I am not an expert with respect to the Election Law, I contacted an attorney for the State Board of Elections, and it was confirmed that person who seeks to change his or her registration is not deemed to be a member of the political party in which that person desires to enroll until the Tuesday after the next general election. Stated differently, the democrat member who seeks to change his enrollment will not be deemed to be a registered republican until after the next general election in November; for purposes of political party registration, he will remain a democrat until that date.
In a variety of decisions, the courts have determined that provisions authorizing the exclusion of the public from meetings of public bodies should be construed narrowly. Notable in the context of the situation described is Buffalo News v. Buffalo Common Council [585 NYS 2d 275 (1992), which involved the interpretation of the exemption regarding political caucuses, the court concentrated on the expressed legislative 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).
I believe that the thrust of the decision indicates that, in consideration of the intent of the
Open Meetings Law, the exemption concerning political caucuses should be narrowly construed. 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, again, it is my view that the gathering is no longer a political caucus, but rather a "meeting." The decision 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" (id., 277).
Lastly, one of the articles attached to your letter suggests that "if it were up to Bob Freeman, if you were on the phone in the bathroom, he would want the door open." In this regard, it is emphasized that every opinion offered by this office is based on the law and its judicial interpretation and that our only goal is to provide accurate legal advice, irrespective of the source of the question. Thousands of opinions rendered by this office are accessible online, and I believe that a review of the opinions will confirm that they are impartial and consistent with law and the direction provided by the courts.
I hope that I have been of assistance.
Robert J. Freeman