June 11, 2010

The staff of the Committee on Open Government is authorized to issue advisory opinions.  The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.


             We are in receipt of your letter requesting an advisory opinion regarding recent amendments made to the Niagara County Legislature Rules of Order.  Resolution IL-121-09, and corresponding Rules of Order, specifically, Rule 7, submitted with your request, indicate as follows:

“The Order of Business of each regular session shall be: …

5.  Public comments ‘Agenda Items’ (regular meetings); …

13. Adjournment

14.  Public comments “general Welfare of the County’ (regular meetings).”

             Public comments during a regular meeting are limited to 3 minutes per person, while public comments after adjournment are not limited.  Further, you indicated  that any guest of a legislator may speak without condition, but if different member of the public wishes to speak, that person must sign in before the meeting commences.

             In this regard, first, while the Open Meetings Law clearly provides the public with the right "to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy" (see Open Meetings Law, §100), the Law is silent with respect to public participation.

             Within the language of the Open Meetings Law, there is nothing that pertains to the right of those in attendance to speak or otherwise participate. Certainly a member of the public may speak or express opinions about meetings or about the conduct of public business before or after meetings to other persons. However, since neither the Open Meetings Law nor any other statute of which we are aware, provides the public with the right to speak during meetings, we do not believe that a public body is required to permit the public to do so during meetings. Certainly a public body may permit the public to speak, and if it does so, it has been suggested that rules and procedures be developed that regarding the privilege to speak that are reasonable and that treat members of the public equally. From our perspective, a rule that allows certain members of the public to speak while prohibiting others from speaking at all would be unreasonable and subject to invalidation.  

           The actions taken by the Legislature, in our opinion, appear to be reasonable, for Section 14 of the amended Rules of Order allows the public with a forum, and without any time restraints to discuss issues concerning public matters.

            We note that the term "meeting" [see Open Meetings Law §102(1)] has been construed expansively by the courts. In a decision rendered more than thirty years ago, it was held that any gathering of a majority of a public body for the purpose of conducting public business constitutes a "meeting", even if there is no intent to take action, and regardless of its characterization as "informal" or as a "workshop" or "work session" [see Orange County Publications v. Council of the City of Newburgh 60 AD 2d 409, affm’d, 45 NY2d 947 (1978)].

           Accordingly if , a majority of the Legislature remains after the official “adjournment” of the meeting and public comment concerning County matters continues, in our opinion, the meeting would not be adjourned, and the proceedings would continue to be subject to the Open Meetings Law.
Finally, with regard to comments made by members of the public during a public meeting, the Open Meetings Law contains what might be characterized as minimum requirements concerning the contents of minutes. Specifically, §106 of the Open Meetings Law provides that:

"1. Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon.
2. Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter.
3. Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meetings except that minutes taken pursuant to subdivision two hereof shall be available to the public within one week from the date of the executive session."

            Based on the foregoing, minutes need not consist of a verbatim account of everything that was said; on the contrary, so long as the minutes include the kinds of information described in §106, I believe that they would be appropriate and meet legal requirements. Most importantly, I believe that minutes must be accurate. There is no requirement under the Open Meetings Law requiring that comments made by members of the public be included in the minutes of a meeting of a public body.

             We hope that we have been of assistance.


                                                                                    ROBERT J. FREEMAN
                                                                                    Executive Director


                                                                                    BY:    James B. Gross
                                                                                             Legal Intern

cc: Niagara County Legislature