From: Freeman, Robert (DOS) on behalf of Freeman, Robert J (DOS)
Sent: Monday, June 09, 2014 4:26 PM
Subject: Community Board No. 8, Bronx, Nominating Committee
I have received your letter in which you indicated that you serve as chair of the ad hoc Nominating
Committee of Community Board No. 8 in the Bronx.
Article V. Section 2 of the Board’s by-laws indicate that “a nominating committee consisting of not less
than three (3) nor more than five (5) Appointed members shall be elected by the Board.” Article V.
Section 1 of the by-laws requires the Nominating Committee to report to the Board, and it has several
options concerning the nature of its report.
You wrote that you “have been under the impression that, in discussing personalities and in theory the
promotion of our colleagues, we have been involved with internal operations, not conducting any public
business and therefore have not been subject to the rules of the OML.” You added, as Chair, that “[w]e
conduct no public business, but simply recommend to the full board names of individuals who, in our
judgment, deserve their consideration for the various positions.”
In my view, first, in consideration of the charge given to the Committee in the by-laws, it conducts public
business on behalf of and at the direction of the Board. There would be no reason for the Committee to
exist or meet to carry out its functions but for the responsibilities that it must perform for and as a
governmental entity. That being so, I believe that when a quorum of the Committee gathers to carry
out those functions, any such gathering would constitute a “meeting” as that term is defined in §102(1)
of the OML and construed judicially [see e.g., Orange County Publications v. Council of the City of
Newburgh, 60 AD2d 409, aff’d 45 NY2d 947 (1978)].
Second, a review of judicial precedent indicates that committees of public bodies made up solely of
members of the public body are always advisory in nature. Decisions that confirm that committees of
that nature must comply with the Open Meetings Law include Lewis v. O’Connor, Supreme Court, Lewis
County, January 21, 1997 (standing committees of the county hospital, made up entirely of members of
the hospital’s board of managers, with no power to take final action nor bind the board of managers, are
public bodies subject to the OML): “To keep their deliberations and decisions secret from the public
would be violative of the letter and spirit of the legislative declaration as stated in the Public Officers
Law.” Lewis, pp 4-5.; Bogulski v. Erie County Medical Center, Supreme Court, Erie County, January 13,
1998 (subcommittee of county hospital’s board of managers required to comply with OML); Glens Falls
Newspapers, Inc. v. Solid Waste and Recycling Committee of the Warren County Board of Supervisors,
601 NYS2d 29 (3d Dept 1993) (committee of the county board of supervisors required to comply with
In support of this opinion and by way of background, when the Open Meetings Law went into effect in
1977, questions consistently arose with respect to the status of committees, subcommittees and similar
bodies that had no capacity to take final action, but rather merely the authority to advise. Those
questions arose due to the definition of "public body" as it appeared in the Open Meetings Law as it was
originally enacted. Perhaps the leading case on the subject also involved a situation in which a governing
body, a school board, designated committees consisting of less than a majority of the total membership
of the board. In Daily Gazette Co., Inc. v. North Colonie Board of Education [67 AD2d 803 (1978)], it was
held that those advisory committees, which had no capacity to take final action, fell outside the scope of
the definition of "public body".
Nevertheless, prior to its passage, the bill that became the Open Meetings Law was debated on the floor
of the Assembly. During that debate, questions were raised regarding the status of "committees,
subcommittees and other subgroups." In response to those questions, the sponsor stated that it was his
intent that such entities be included within the scope of the definition of "public body" (see Transcript of
Assembly proceedings, May 20, 1976, pp. 6268-6270).
Due to the determination rendered in Daily Gazette, supra, which was in apparent conflict with the
stated intent of the sponsor of the legislation, a series of amendments to the Open Meetings Law was
enacted in 1979 and became effective on October 1 of that year. Among the changes was a redefinition
of the term "public body". "Public body" as amended more than thirty years ago is defined in §102(2) to
"...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."
Although the original definition made reference to entities that "transact" public business, the amended
definition makes reference to entities that "conduct" public business. Moreover, the definition makes
specific reference to "committees, subcommittees and similar bodies" of a public body.
In view of the amendments to the definition of "public body", we believe that any entity
consisting of two or more members of a public body, such as a committee, a subcommittee or "similar
body" consisting of 3 members of the Board of Trustees, would fall within the requirements of the OML
when such an entity discusses or conducts public business collectively as a body [see Syracuse United
Neighbors v. City of Syracuse, 80 AD2d 984, 437 NYS2d 466, (4th Dept. 1981), appeal dismissed 55 NY2d
995, 449 NYS2d 201 (1982)].
Additionally, with respect to the general intent of the OML, the first sentence of its legislative
declaration, §100, states 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 listing
to the deliberations and decisions that go into the making of public policy."
In an early decision that focused largely on the intent of the OML that was unanimously affirmed by the
Court of Appeals, it was asserted 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" [Orange County
Publications v. Council of the City of Newburgh, 60 AD2d 409, 415, affirmed 45 NY2d
In my opinion, it is clear that committees of the Board consisting solely of members of the Board are
"public bodies" required to comply with the OML. Again, the amendments to the definition of "public
body" suggest a clear intention on the part of the State Legislature to ensure that entities consisting of
two or more members of a governing body (committees, subcommittees or similar bodies) are
themselves public bodies falling with the coverage of the Law. Assuming the accuracy of the foregoing,
a committee has the same obligations in terms of notice and openness, as well as the same capacity to
enter into executive session, as a governing body.
Lastly, as you know, the OML is based on a presumption of openness. Meetings of public bodies must
be conducted open to the public, unless there is a basis for entry into executive session. From my
perspective, the only ground for entry into executive session pertinent to the duties of the Committee is
§105(1)(f), which permits a public body to do so to discuss:
“…the medical, financial, credit or employment history of a particular person or
corporation, or matters leading to the appointment, employment, promotion,
demotion, discipline, suspension, dismissal or removal of a particular person or
Consideration of members of a Community Board to serve in a leadership position would not, in my
opinion involve a matter leading to appointment, employment or promotion, for example. The member
would not be appointed, but rather elected, and he or she would not be an employee eligible for
promotion. However, depending on the nature of the discussion, it is possible that a discussion of a
particular person might, for example, involve his/her employment history in relation to that person’s
suitability for a leadership role, or in some instances, that person’s medical history relative to the
physical ability to carry out the duties inherent in the office. In those kinds of situations, an executive
session might properly be held.
I hope that I have been of assistance and that you will excuse the absence of formality of this response.
Robert J. Freeman
Committee on Open Government
Department of State
One Commerce Plaza
99 Washington Avenue
Albany, NY 12231