October 9, 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 correspondence.
I have received your letter in which you wrote that:
"The Village Board of Trustees, in its capacity as the Board of Police Commissioners under N.Y. Unconsol. §5711-q, is holding a disciplinary hearing of a police officer. The Board has allowed the hearing to be broadcast and televised. After two witnesses testified, the Village Chief of Police filed an Article 78 petition seeking to enjoin the broadcasting and televising of the disciplinary hearing pursuant to Civil Rights Law §52."
You have sought an advisory opinion concerning "[w]hether the Open Meetings Law is
applicable to the disciplinary hearing" and [w]hether the Open Meetings Law is consistent with Civil Rights Law 52."
Section 5711-q(9) of the Unconsolidated Laws provides in part that "[t]he board of trustees or municipal board shall have power and is authorized to adopt and make rules and regulations for the examination, hearing, investigation and determination of charges made or preferred against any member or members of [a] police force..." That statute also refers to a police officer's "right to a public hearing and trial" and to witnesses giving testimony "under oath." Section 52 of the Civil Rights Law states that no person or entity "shall televise, broadcast, take motion pictures of or arrange for" so doing in proceedings "in which the testimony of witnesses by subpoena or other compulsory process is or may be taken , conducted by a court, commission, committee, administrative agency or other tribunal in this state...."
A village board of trustees acting as such or in its capacity as a board of police commissioners in my view clearly constitutes a "public body" as that phrase is defined in §102(2)
of the Open Meetings Law. Public bodies are generally required to conduct public business in
public, and it has been held that open meetings of public bodies may be audio or video recorded,
unless the use of the recording equipment is obtrusive or disruptive [see Mitchell v. Board of
Education of the Garden City Union Free School District, 113 AD2d 924 (1985), Peloquin v.
Arsenault, 616 NYS2d 716 (1994), and most recently, Csorny v. Shoreham-Wading River Central
School District, Appellate Division, Second Department, NYLJ, May 20, 2003]. Nevertheless, I
believe that the proceeding in question is exempt from the coverage of the Open Meetings Law. In this regard, it is noted that there are two vehicles that may authorize a public body to
discuss public business in private. One involves entry into an executive session. Section 102(3) of
the Open Meetings Law defines the phrase "executive session" to mean a portion of an open meeting during which the public may be excluded, and the Law requires that a procedure be accomplished, during an open meeting, before a public body may enter into an executive session. Specifically, §105(1) states in relevant part that:
"Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only..."
As such, a motion to conduct an executive session must include reference to the subject or subjects to be discussed and the motion must be carried by majority vote of a public body's membership before such a session may validly be held. The ensuing provisions of §105(1) specify and limit the subjects that may appropriately be considered during an executive session. Therefore, a public body may not conduct an executive session to discuss the subject of its choice.
The other vehicle for excluding the public from a meeting involves "exemptions." Section
108 of the Open Meetings Law contains three exemptions. When an exemption applies, the Open Meetings Law does not, and the requirements that would operate with respect to executive sessions are not in effect. Stated differently, to discuss a matter exempted from the Open Meetings Law, a public body need not follow the procedure imposed by §105(1) that relates to entry into an executive session. Further, although executive sessions may be held only for particular purposes, there is no such limitation that relates to matters that are exempt from the coverage of the Open Meetings Law.
Relevant to the matter is §108(1) of the Open Meetings Law, which exempts from the
coverage of that statute "judicial or quasi-judicial proceedings..." From my perspective, it is often difficult to determine exactly when public bodies are involved in a quasi-judicial proceeding, or where a line of demarcation may be drawn between what may be characterized as quasi-judicial, quasi-legislative or administrative functions. Similarly, often provisions require that public hearings be held; others permit discretion to hold a public hearing. Further, the holding of public hearings and providing an opportunity to be heard does not in my opinion render a proceeding quasi-judicial in every instance. Those requirements may be present in a variety of contexts, many of which precede legislative action.
I believe that one of the elements of a quasi-judicial proceeding is the authority to take final action. While I am unaware of any judicial decision that specifically so states, there are various decisions that infer that a quasi-judicial proceeding must result in a final determination reviewable only by a court. For instance, in a decision rendered under the Open Meetings Law, it was found that:
"The test may be stated to be that action is judicial or quasi-judicial,
when and only when, the body or officer is authorized and required
to take evidence and all the parties interested are entitled to notice and
a hearing, and, thus, the act of an administrative or ministerial officer
becomes judicial and subject to review by certiorari only when there
is an opportunity to be heard, evidence presented, and a decision had thereon" [Johnson Newspaper Corporation v. Howland, Sup. Ct., Jefferson Cty., July 27, 1982; see also City of Albany v. McMorran, 34 Misc. 2d 316 (1962)].
Another decision that described a particular body indicated that "[T]he Board is a quasi-judicial agency with authority to make decisions reviewable only in the Courts" [New York State Labor Relations Board v. Holland Laundry, 42 NYS 2d 183, 188 (1943)]. Further, in a discussion of quasi-judicial bodies and decisions pertaining to them, it was found that "[A]lthough these cases deal with differing statutes and rules and varying fact patterns they clearly recognize the need for finality in determinations of quasi-judicial bodies..." [200 West 79th St. Co. v. Galvin, 335 NYS 2d 715, 718 (1970)].
It is my opinion that the final determination of a controversy is a condition precedent that
must be present before one can reach a finding that a proceeding is quasi-judicial. Reliance upon this notion is based in part upon the definition of "quasi-judicial" appearing in Black's Law Dictionary (revised fourth edition). Black's defines "quasi-judicial" as:
"A term applied to the action, discretion, etc., of public administrative officials, who are required to investigate facts, or ascertain the existence of facts, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature."
In the situation that you described, I believe that the proceeding could be characterized as quasi-judicial and, therefore, would be exempt from the coverage of the Open Meetings Law.
With respect to your second question, whether the Open Meetings Law is inconsistent with §52 of the Civil Rights Law, I am not certain of the meaning of the question. In short, since §52 pertains to judicial or quasi-judicial proceedings, and since §108(1) of the Open Meetings Law exempts those proceeding from the coverage of that statute, the two statutes in my opinion ordinarily would not directly relate to or be construed in connection with one another.
I hope that I have been of assistance.
Robert J. Freeman