From: Freeman, Robert J (DOS)
Sent: Tuesday, February 28, 2017 4:15 PM
Subject: RE: clarification
I have received your communication in which you asked that I “reiterate [my] position” expressed at the recent meeting of the Association of Towns. In short, it appears to be the contention of the Town of Wappinger Highway Superintendent and a member of the Town Board that there must be a unanimous vote to amend a Town Board agenda.
From my perspective, which is based on the language of the law, their contention is inaccurate. In this regard, I offer the following comments.
First, although many boards prepare agendas, there is no statute that requires that they do so.
Second and most importantly, §63 of the Town Law entitled “Presiding officer and rules of procedure” indicates that the supervisor, when present, presides at meetings of a town board, that a majority of the board constitutes a quorum, and that “Every act, motion or resolution shall require for its adoption the affirmative vote of a majority of all the members of the town board.” The law does not refer to unanimity in order to take action; rather the law clearly states that action requires “the affirmative vote of a majority of all the members of the town board.”
Section 63 also states that board “may determine rules of its procedure.” However, numerous judicial decisions indicate that any such rules must be reasonable and consistent with law.
Lastly, §41 of the General Construction Law entitled “Quorum and majority”, which was enacted in 1909, is consistent with §63 of the Town Law. Like §63, it refers to action being taken by “not less than a majority of the whole number” of the members of a board or similar body. That being so, if a town board consists of five members, the board may take action by means of an affirmative vote of not less than three of the five. Specifically, the cited provision states in its entirety as follows:
"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."
In my view, requiring that action be taken by unanimous vote would be inconsistent with the statutory provisions quoted above.
I hope that the foregoing serves to clarify the matter and that I have been of assistance. Should any further questions arise, please feel free to contact me.
Robert J. Freeman,
Executive Director Committee on Open Government