October 3, 2007

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 sought an advisory opinion concerning propriety of “private meetings of a new board impaneled by the state...”

            You wrote that the “new board is guiding the joint governance of Erie County Medical Center and Kaleida Health, two hospital systems that have been mandated to merge by the state Berger Commission”, and that it has met twice, “both times behind closed doors.” Statements by the State Department of Health and President of State University at Buffalo, an ex officio member of the board, indicated that board meetings are not required to be held open to the public pursuant to the Open Meetings Law.

            Those statements appear to conflict with a news release issued by the Department on September 12 and a letter sent by Commissioner Daines to Michael A. Young, Chief Executive Officer of the Erie County Medical Center Corporation, on the same day. The release states that:

“A new board of trustees has been named to govern the future, combined Erie County Medical Center (ECMC) and Kaleida Health Systems, State Commissioner Richard F. Daines announced today... 

“Under the legislation authorizing the Commission on Health Care Facilities in the 21st Century, the commissioner is empowered to take ‘all steps necessary’ to implement the Commission’s mandates, including naming a single board with representatives of Kaleida, ECMC, the University of Buffalo School of Medicine and community leaders. 

“‘The board has a challenging task: to bring about a single unified joint governance for these two systems,’ Dr. Daines said, noting that the deadline for implementing the Commission mandate is December 31, 2007. ‘My staff and I will continue to advise and discuss on the matter, and look forward to the board’s proposals to come.’”

Dr. Daines’ letter to Mr. Young reiterated the primary points included in the news release and specified that he “selected 14 voting members consisting of three members each representing ECMC, Kaleida, UB and five community leaders” and that the “15th voting member of the board will be the CEO of the new board selected by a vote of the board.” He added that: 

“...the board should meet no later than September 21, 2007, to continue the process of implementing the requirements of the Commission, including reaching out to ECMC and Kaleida to determine the precise nature of the relationship between the parties. At its first meeting, the President of UB shall serve as chair, a quorum shall consist of eight members, and a majority vote of the members shall suffice for any matter to pass. The chair shall be responsible to notify board members of the initial meeting, although in the case of facility representatives, it may do so by notice to the facility CEO.”

            Based on the news release and Dr. Daines letter to Mr. Young, I believe that the board of trustees designated to “bring about a single unified joint governance” for two health care institutions is required to comply with the Open Meetings Law.

            That statute is applicable to meetings of public bodies, and §102(2) defines the phrase “public body” to include: 

"...any entity for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body."

            The documents referenced above indicate that the members of the new board have been designated by the Commissioner based on the authority to do so conferred upon him by statute, that the board must create a unified joint governance as required by state, that the board will “govern” the combined institutions and serve as “the trustees of the unified governance structure”, that a quorum will consist of eight of the board’s fifteen members, and that action can be taken by a vote of a majority of the members. In short, I believe that each of the ingredients necessary to find that the board constitutes a “public body” is present.

            It is emphasized, too, that the Open Meetings Law has been broadly interpreted by the courts. In a landmark decision rendered in 1978, the Court of Appeals 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)].

            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 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.).

            I hope that I have been of assistance.


                                                                                                Robert J. Freeman
                                                                                                Executive Director


cc: Richard F. Daines, M.D., Commissioner
      John B. Simpson, Chair and President, University at Buffalo