July 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.
We have received your correspondence in which you seek an advisory opinion pertaining to the subpoena power of the Troy City Council under §C56-B of Ordinance 30, and whether it is inconsistent with the Open Meetings Law. The provision at issue states that:
“The Troy City Council authorizes legislative subpoenas to be issued to officers and employees of the City of Troy, and members of the public, through the legislative assistant or other qualified individual and Legislative Counsel, upon authorization by the Council, pursuant to a subsequent ordinance or a written document signed by at least five council members; specifically identifying and approving the individual or entity to be subpoenaed and directing the appearance at subsequent public hearings to provide testimony and documents related to the questions and activities referenced in this Ordinance” (emphasis added).
The City derives its subpoena power from §C-23 of the City of Troy’s Charter as well as the General City Law, which provides that a city has the general power to “investigate and inquire into all matters of concern to the city or its inhabitants, and to require and enforce by subpoena the attendance of witnesses at such investigations” N.Y. Gen. City Law §20(21). Second Class City Law §40 also confers subpoena authority upon the City Council.
From our perspective, the meetings held for the purpose of issuing a subpoena fall within the coverage of the Open Meetings Law. In this regard, we offer the following comments.
First, it is emphasized that the definition of "meeting" [see Open Meetings Law, §102(1)] has been broadly interpreted by the courts. In a landmark decision rendered in 1978, the Court of Appeals, the state's highest court, 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)]. The term "meeting" is defined 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 City Council, or a convening that occurs through videoconferencing.
The provisions in the Open Meetings Law concerning videoconferencing are newly enacted (Chapter 289 of the Laws of 2000), and in our view, those amendments 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, by e-mail, or by signing a letter in serial fashion at different times, would be inconsistent with law.
Second, we point out that the definition of the phrase "public body" in §102(2) refers to entities that are required to conduct public business by means of a quorum. The term "quorum" is defined in §41 of the General Construction Law, which has been in effect since 1909. The cited provision, which was also amended to include language concerning videoconferencing, states 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 or as a board or similar body, a majority of the whole number of such persons or officers, gathered together in the presence of each other or through the use of videoconferencing, at a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board of body, or at any duly adjourned meeting of such meeting, or at any meeting duly held upon reasonable notice to all of them, shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty. For the purpose of this provision the words 'whole number' shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting."
Based on the foregoing, again, a valid meeting may occur only when a majority of the total membership of a public body, a quorum, has "gathered together in the presence of each other or through the use of videoconferencing." Moreover, only when a quorum has convened in the manner described in §41 of the General Construction Law would a public body have the authority to carry out its powers and duties. Consequently, it is our opinion that a public body may not take action or vote through the use of a telephone or via e-mail, for example, or by means of the members signing a letter at different times.
Next, §110 of the Open Meetings Law entitled "Construction with other laws" provides in subdivision (1) that any local enactment that is "more restrictive with respect to public access...shall be deemed superseded" by the Open Meetings Law to the extent that it grants lesser access than that statute.
Language that you highlighted refers to the authority to take action “upon authorization by the Council, pursuant to a subsequent ordinance or a written document signed by at least five council members.” The Troy City Council consists of nine members, and if five of its members are present to sign the document at a meeting held upon notice to all the members, its action would be consistent with the Open Meetings Law. However, if five members of the Council are unable to sign the document or otherwise act outside the confines of a proper meeting, due to the requirements imposed by §41 of the General Construction Law and the Open Meetings Law, we believe that any such purported action would be invalid.
We hope to have been of assistance.
Robert J. Freeman
By: Lucya Pak