Sent: Thursday, January 19, 2017 9:19 AM


Subject: RE: Request for Assistance re Open Mtg Law 05416.docx

Ms. :

Although I am in general agreement with your contention, I believe that the Open Meetings Law is tangential to the matter. Key in my view is §41 of the General Construction Law, entitled “Quorum and majority.” That statute has existed since 1909 and states that a quorum is a majority of the total membership of a public body, notwithstanding absences or vacancies. It also states that to have a quorum, reasonable notice must be given to all the members, and that a public body may assert its authority only by means of an affirmative vote of a majority of its total
membership. Attached is an advisory opinion that deals with several issues but which focuses on §41 and its significance.

There are two judicial decisions that bear directly on the issue. In Re D.E.P. Resources, Inc. [131 AD2d 719 (1987)] involved an Appellate Division holding that in the case of a five member board, at least three must concur in order for there to be a valid exercise of the board’s powers, notwithstanding an abstention.  In Okeyibi v. Cortines [641 NYS 2d 781 (1996); appeal dismissed, 239 AD2d 429 (1997)], a school district administrator “conferred” with certain board members and terminated an employee, and the court determined that the board could not delegate its authority to the administrator and directed the board to convene a meeting for the purpose of taking action. In short, the decisions indicate that action may be validly taken only at a meeting during which a quorum is present, and that the ability to take action requires an affirmative vote of a majority of a public body’s total membership.

I note that both decisions emanated from the Appellate Division, Second Department, which includes Westchester County.

I hope that I have been of assistance.