May 27, 2009
FROM: Camille S. Jobin-Davis, Assistant Director
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, unless otherwise indicated.
We are in receipt of your request for an advisory opinion clarifying a previous opinion issued to Mr. Goetschius concerning the status of a “retreat” held to discuss “the development of a process of setting goals for the school district.” Based on our telephone conversation and the additional information that you submitted, and in an effort to provide guidance with respect to these issues, we offer the following comments.
As previously advised, the Open Meetings Law applies to meetings of public bodies, and a board of education clearly constitutes a public body required to comply with that statute. Section 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 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)].
Inherent in the definition and its judicial interpretation is the notion of intent. If there is an intent that a majority of a public body will convene for the purpose of conducting public business, such a gathering would, in our opinion, constitute a meeting subject to the requirements of the Open Meetings Law.
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.).
Based upon the direction given by the courts, when a majority of a public body gathers to discuss public business, in their capacities as members of the body, any such gathering, in our opinion, would constitute a "meeting" subject to the Open Meetings Law.
On the other hand, if there is no intent that a majority of public body will gather for the purpose of conducting public business, but rather for the purpose of gaining education, training, to develop or improve team building or communication skills, or to consider interpersonal relations, we do not believe that the Open Meetings Law would be applicable. In that event, if the gathering is to be held solely for those purposes, and not to conduct or discuss matters of public business, and if the members in fact do not conduct public business collectively as a body, the activities occurring during that event would not in our view constitute a meeting of a public body subject to the Open Meetings Law.
In this instance, you indicated that the retreat was held:
“for board development in the process of setting goals .... A consultant was hired, who provided a presentation in the development of a School District vision, mission and goals. The training focused on the distinction between a vision and mission and the process to address the development of these statements. At no time were a vision, a mission or board goals established. This was training that would help guide the School Board in approaching these tasks.”
Based on this information, in our opinion, if the discussion was limited to the process by which a board would set goals, or the difference between vision and mission statements, it is likely that it was not a discussion of public business, and, therefore, not a “meeting” subject to the Open Meetings Law.
In sum, pursuant to case law referenced above, when a quorum of a school board gathers to receive training and/or education, and when the purpose of the gathering is limited to general training and education concerning the process by which goals are adopted, in our opinion, such gathering would not constitute a “meeting” subject to the Open Meetings Law. Conversely, when the discussion pertains to the specific goals of the board, or when the discussion focuses on the language of a vision or mission statement, in our opinion, the board would be discussing public business, such a gathering would constitute a “meeting” subject to the Open Meetings Law.
Thank you for the opportunity to clarify our opinion. On behalf of the Committee on Open Government, we hope that this is helpful to you.
cc: John Goetschius