April 29, 2014
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 Board of the City of Lockport Housing Authority. Specifically, you questioned the Board’s practice of holding the meeting in a locked room, requiring persons to identify themselves before being told of the time and place of an upcoming meeting, and notice of Board meetings generally. You included a photograph of a notice stating “City of Lockport Housing Authority Board Meeting Scheduled for 3:00 p.m.”.
In a January 29, 2014 response to a related FOIL request, the Executive Director of the Authority indicated as follows: “…we have always posted the meeting day and time on the day of the meeting, at our administration building located at 301 Michigan Street. Otherwise there have been no measures taken to publicize meetings of the Board of Commissioners of the City of Lockport Housing Authority during 2013.”
By correspondence to this office dated February 21, 2014 (copy attached), and subsequent to our notification to the Authority of your request for an advisory opinion, the Executive Director indicated that the Authority is taking measures to comply with Open Meetings Law, including posting meeting notices on bulletin boards, in future newsletters, and sending notice to the local newspaper one week prior to each meeting.
Later in February, you attended a Board meeting, although you were not permitted to enter the locked room until after the meeting was underway, and you were made to leave the room after the Chairman of the Board indicated “We have employee-negotiations to discuss. We are going into Executive Session.” You were then told that you could not have access to meeting minutes for at least a month because “they have to be approved at the next meeting”.
In this regard and as we discussed, it is our opinion that the Board has not acted in compliance with the Open Meetings Law.
First, with respect to the requirements for posting notice of meetings of the Board, we point out §104 of the Open Meetings Law which states that:
“1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before such meeting.
2. Public notice of the time and place of every other meeting shall be given to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.
3. The public notice provided for by this section shall not be construed to require publication as a legal notice.
4. If videoconferencing is used to conduct a meeting, the public notice for the meeting shall inform the public that videoconferencing will be used, identify the locations for the meeting, and state that the public has the right to attend the meeting at any of the locations.
5. When a public body has the ability to do so, notice of the time and place of a meeting given in accordance with subdivision one or two of this section, shall also be conspicuously posted on the public body’s internet website.”
Section 104 thereby imposes a three-fold requirement: one, that notice must be posted in one or more conspicuous, public locations; two, that notice must be given to the news media; and three, that notice must be conspicuously posted on the body’s website, when there is an ability to do so. The requirement that notice of a meeting be "posted" in one or more "designated" locations, in our opinion, mandates that a public body, by resolution or through the adoption of policy or a directive, select one or more specific locations where notice of meetings will consistently and regularly be posted. If, for instance, a bulletin board located at the entrance of a town hall has been designated as a location for posting notices of meetings, the public has the ability to know where to ascertain whether and when meetings of a town board will be held. Similarly, every public body with the ability to do so should post notice of the time and place of every meeting online.
Accordingly, the photograph of the notice that you included is insufficient to comply with law for it does not indicate the location or the date of the meeting. As the Executive Director indicated, notice must be posted in locations designated for such purposes, sent to the news media, and posted online in advance of all meetings of the Board.
With respect to executive sessions, and the conversation that you relayed, it is emphasized that one member of a board, or the chairman of a board cannot unilaterally conduct an executive session, nor can a public body such as the Board prohibit the public from attending an open meeting by locking the door. Every meeting must be convened as an open meeting, for §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. That being so, it is clear that an executive session is not separate and distinct from an open meeting, but rather, it is a part of an open meeting. Moreover, the Open Meetings 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...”
Based on the foregoing, a motion to conduct an executive session must include reference to the subject or subjects to be discussed and it 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.
Finally, with respect to meeting minutes, there is no provision of law of which we are aware that requires that minutes of meetings of public bodies be approved or accepted.
Section 106 of the Open Meetings Law pertains to minutes of meetings and states 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.”
In view of the foregoing, it is clear that minutes of open meetings must be prepared and made available “within two weeks of the date of such meeting,” and that executive session minutes must be prepared within one week.
Although as a matter of practice or policy, many public bodies approve minutes of their meetings, there is nothing in the Open Meetings Law or other law known of which we are aware that requires that minutes be approved. In the event that minutes have not been approved, to comply with the Open Meetings Law, it has consistently been advised that minutes be prepared and made available within two weeks, and that if the minutes have not been approved, they may be marked “unapproved”, “draft” or “non-final”, for example. By so doing within the requisite time limitations, the public can generally know what transpired at a meeting; concurrently, the public is effectively notified that the minutes are subject to change. If minutes have been prepared within less than two weeks, we believe that those unapproved minutes would be available as soon as they exist, and that they may be marked in the manner described above.
In an effort to enhance compliance with and understanding of the Open Meetings Law, a copy of this response will be sent to the Board, along with copies of our pamphlet “Your Right to Know” which includes the grounds for entry into executive session on pages 15-16.
We hope this is helpful.
Camille S. Jobin-Davis