April 29, 2014
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 facts presented in your correspondence.
This is in response to your request for an advisory opinion regarding application of the Open Meetings Law to certain gatherings of the Community District Education Council 30. Specifically, you asked whether Community Education Councils are subject to the Open Meetings Law, and whether, in accordance with that law, members are permitted to attend meetings and vote by phone.
This will confirm our opinion that Community Education Councils are subject to the Open Meetings Law. That statute is applicable to meetings of public bodies, and §102(2) defines the phrase “public body” to mean:
“...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.”
From our perspective, each of the conditions necessary to conclude that a Council constitutes a public body can be met. There are eleven members who conduct public business collectively (Education Law §2590-C). By so doing and carrying out their powers and duties pursuant to Education Law Article 52-A, the members perform a governmental function. While there may be no specific reference to a quorum requirement in the law, a separate statute, §41 of the General Construction Law, requires that “Whenever three or more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly as a board or similar body”, they may carry out their duties only through the presence of a quorum and action taken by majority of the vote the total membership of such entity.
Assuming the accuracy of the foregoing and that a Council constitutes a public body required to comply with the Open Meetings Law, every meeting of the Council is subject to the Open Meetings Law.
In our view, voting and action by a public body may be carried out only at a meeting during which a quorum has physically convened, or during a meeting held by videoconference.
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, including the use of videoconferencing for attendance and participation by the members of the public body.” Based upon an ordinary dictionary definition of “convene”, that term means:
“1. to summon before a tribunal;
2. to cause to assemble syn see ‘SUMMON’“ (Webster’s Seventh New Collegiate Dictionary, Copyright 1965).
In view of that definition and others, we believe that a meeting, i.e., the “convening” of a public body, involves the physical coming together of at least a majority of the total membership of such a body, i.e., the Council, or a convening that occurs through videoconferencing. We point out, too, that §103(c) of the Open Meetings Law states that “A public body that uses videoconferencing to conduct its meetings shall provide an opportunity to attend, listen and observe at any site at which a member participates.” These provisions clearly indicate that there are only two ways in which a public body may validly conduct a meeting. Any other means of conducting a meeting, i.e., by telephone conference, by mail, or by e-mail, would be inconsistent with law.
There is no authority to take action outside of a meeting, nor is there any authority to attend a meeting by phone, to be counted for quorum purposes or to cast a vote by phone. In a judicial decision dealing with a vote taken by phone, the court found the vote to be a nullity (Cheevers v. Town of Union [Supreme Court, Broome County, September 3, 1998]), and in the only decision rendered after the enactment of the legislation pertaining to videoconferencing, it was determined that a vote cast via use of a telephone was a nullity (Town of Eastchester v. NYS Board of Real Property Services, 23 AD2d 484 .)
We note that minutes from the December 19, 2013 meeting indicated that three of the seven Council members were “present” by phone. In our opinion, to the extent that the members were not physically present or were not present by video-conference, their votes could be invalidated.
We direct your attention to the legislative declaration of the Open Meetings Law, §100, which states in part that:
“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.”
Based on the foregoing, the Open Meetings Law is intended to provide the public with the right to observe the performance of public officials in their deliberations. That intent cannot be realized if members of a public body conduct public business by phone.
In short, should there be a judicial challenge to action taken during a meeting at which less than a quorum was physically present or in attendance by videoconferencing as described earlier, we believe that a court would find such action to be a nullity and of no effect.
We hope that this is helpful.