OML AO 5575
March 6, 2018
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence, except as otherwise indicated.
This is in response to your request for an advisory opinion regarding the application of the Open Meetings Law (OML) by the Port Chester Village Board of Trustees.
You raise three questions regarding the use of a “Telephone Conference” for the purpose of attendance and participation in a meeting subject to the OML by a member of a public body. In our opinion, voting and action by a public body may be carried out only at a meeting during which a quorum has physically convened, or during a meeting held by videoconference. In our view, a member of a public body may not attend a meeting by telephone, be counted for quorum purposes, or cast a vote by telephone.
Section 102(1) of the Open Meetings Law defines the term “meeting” 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 Village Board of Trustees, or a convening that occurs through videoconferencing. We point out, too, that §103(c) of the Open Meetings Law states that “A public body that uses videoconferencing to conduct its meetings shall provide an opportunity to attend, listen and observe at any site at which a member participates.” These provisions 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, or by e-mail, would be inconsistent with law.
There is no authority to take action outside of a meeting, nor is there any authority to attend a meeting by phone, to be counted for quorum purposes or to cast a vote by phone. In a judicial decision dealing with a vote taken by phone, the court found the vote to be a nullity (Cheevers v. Town of Union, Supreme Court, Broome County, September 3, 1998), and in the only decision rendered after the enactment of the legislation pertaining to videoconferencing, it was determined that a vote cast via use of a telephone was a nullity (Town of Eastchester v. NYS Board of Real Property Services, 23 AD2d 484 .)
You also raise a number of questions regarding the use of videoconferencing. Your first question is whether the Board may preclude a member from participating in a videoconference. In our opinion, assuming the Village has the technical capability to conduct a meeting via videoconferencing, a blanket prohibition on the use of attendance and participation via that method would be inconsistent with the OML.
With regard to the remainder of your questions regarding the use of videoconferencing, I believe a distinction must be made between public bodies that are governing bodies of local municipalities, such as town boards and village boards, and public bodies that cover a larger geographic area. An example of the latter is the Committee on Open Government. The Committee has statewide jurisdiction and its members are physically located across the state. When the Committee meets, it does so from three locations: Albany, Buffalo, and New York City. The meetings are held at three different state office buildings and, in our view, each location must comply with the requirements set forth in the OML regarding meeting locations:
“Public bodies shall make or cause to be made all reasonable efforts to ensure that meetings are held in facilities that permit barrier-free physical access to the physically handicapped, as defined in subdivision five of section fifty of the public buildings law.” (§103(b) of the OML)
“Public bodies shall make or cause to be made all reasonable efforts to ensure that meetings are held in an appropriate facility which can adequately accommodate members of the public who wish to attend such meetings.” (§103(d) of the OML)
On the other hand, a public body such as the Port Chester Village Board of Trustees, has a primary meeting site located within the village (Village Hall). In our opinion, the primary meeting location where the meetings “are held” must comply with the requirements set forth above. While §103(c) of the OML states that “a public body that uses videoconferencing to conduct its meetings shall provide an opportunity to attend, listen and observe at any site at which a member participates,” in my view, this does not require that each site at which a member participates must comply with §§103(b) and 103(d) of the OML.
You raise questions regarding notice of the meetings. Section 104 of the OML sets forth the requirements regarding notice of meetings of public bodies:
“§104. Public notice.
1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given or electronically transmitted 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 or electronically transmitted, 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. If a meeting will be streamed live over the internet, the public notice for the meeting shall inform the public of the internet address of the website streaming such meeting.
6. 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.”
There is nothing in the law that would require that signage be posted at each meeting location, but rather that the notice be “posted in one or more designated public locations.” The public notice requirements state that the time of the meeting (which would include the videoconference) must be provided. As all meetings subject to the New York State Open Meetings Law would take place at either Eastern Standard Time or Eastern Daylight Time, depending on the time of year, that is the time that should be provided in the notice.
With regard to your question regarding “videoconferencing from places such as a hotel room or lobby or restaurant,” please see enclosed copy of OML Advisory Opinion 5535.
You ask whether the Board can require that the member who is participating via videoconference “disclose who is present at the location of the videoconference.” Such a requirement would necessitate that attendees identify themselves. Please see enclosed OML Advisory Opinion 5349 regarding the use of sign-in sheets.
In our opinion, a Board could require that members disclose the number of attendees that attend from the location at which a member participates and could require an acknowledgement and affidavit from the member that no one was present with the member during an executive session.
You ask whether the Board may restrict the number of members who can videoconference at any one time at a meeting. Again, this may depend on the Village’s technological capabilities. In my view, if the Village has the ability to videoconference with more than one member at a time, it should permit the members to do so.
Your last question is whether the Board may “restrict the number of times a member can videoconference in any given time-period.” Any restrictions on the right to attend and participate via videoconferencing must be reasonable. If for example, a Trustee plans to spend winter months in a warmer locale, in my view that Trustee should be permitted to participate via videoconference for those months. If, on the other hand, a Trustee has moved out of the area and plans to participate in every meeting for the remainder of his or her term via videoconferencing, a limitation may be determined to be reasonable.
I hope this information proves useful.
cc: Village Board of Trustees
Enclosures: OML AO 5535
OML AO 5349