OML AO 5598                                                           November 6, 2018



FROM:            Robert Freeman, Executive Director

CC:                  University of Buffalo Council

RE:                  Advisory Opinion

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.

I have received your email concerning “the UB Council barring more than 50 people from attending an open meeting…and refusing to move to another room”.  In this regard, I offer the following comments.

First, the Open Meetings Law is applicable to meetings of public bodies, and §102(2) of that statute defines the phrase "public body" to mean:

"...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."

Based on the foregoing, a public body is, in my opinion, an entity required to conduct public business by means of a quorum that performs a governmental function and carries out its duties collectively, as a body.

If an entity consisting of two or members that functions as a body has the authority to take action, i.e., through the power to allocate public monies or make determinations, the Court of Appeals, the state’s highest court, has held that the entity would constitute a public body subject to the Open Meetings Law. In a case dealing with a student government body at a public educational institution (“the Association, Inc.”), the Court provided guidance concerning the application of the Open Meetings Law, stating that:

“In determining whether an entity is a public body, various criteria and benchmarks are material. They include the authority under which the entity was created, the power distribution or sharing model under which it exists, the nature of its role, the power it possesses and under which it purports to act, and a realistic appraisal of its functional relationship to affected parties and constituencies.

“This Court has noted that the powers and functions of an entity should be derived from State law in order to be deemed a public body for Open Meetings Law purposes (see, Matter of American Socy. for Prevention of Cruelty to Animals v Board of Trustees of State Univ. of N.Y., 79 NY2d 927, 929). In the instant case, the parties do not dispute the CUNY derives its powers from State law and it surely is essentially a public body subject to the Open Meetings Law for almost any imaginable purpose. The Association, Inc. contends, on the other hand, that is a separate, distinct, subsidiary entity, and does not perform any governmental function that would render it also a public body.

“It may be that an entity exercising only an advisory function would not qualify as a public body within the purview of the Open Meetings Law...More pertinently here, however, a formally chartered entity with officially delegated duties and organizational attributes of a substantive nature, as this Association, Inc. enjoys, should be deemed a public body that is performing a governmental function (compare, Matter of Syracuse United Neighbors v. City of Syracuse, 80 AD2d 984, 985, appeal dismissed 55 NY2d 995). It is invested with decision-making authority to implement its own initiatives and, as a practical matter, operates under protocols and practices where its recommendations and actions are executed unilaterally and finally, or receive merely perfunctory review or approval...This Association, Inc. possessed and exercised real and effective decision-making power. CUNY, through its by-laws, delegated to the Association, Inc. its statutory power to administer student activity fees (see, Education Law §6206[7][a]). The Association, Inc. holds the purse strings and the responsibility of supervising and reviewing the student activity fee budget. (CUNY By-Laws §16.5[a]). CUNY’s by-laws also provide that the Association, Inc. ‘shall disapprove any allocation or expenditure it finds does not so conform, or is inappropriate, improper, or inequitable,’ thus reposing in the Association, Inc. a final decision-making authority...” [Smith v. CUNY, 92 NY2d 707; 713-714 (1999)].

Second, §103(a) of the Open Meetings Law states in part that "Every meeting of a public body shall be open to the general public..." Further, the intent of the Open Meetings Law is clearly stated in §100 as follows:

"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 an able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants. It is the only climate under which the commonweal will prosper and enable the governmental process to operate for the benefit of those who created it."

As such, the Open Meetings Law confers a right upon the public to attend meetings of public bodies and to observe the performance of public officials who serve on those bodies.

Next, the prohibition concerning the number of those who could attend was, in my opinion, unreasonable. In situations involving different facts but the same principle, it has been advised that if it is known that a larger crowd is seeks to or is likely to attend than the usual meeting location will accommodate, and if a larger facility is available, it would be reasonable and consistent with the intent of the law to hold the meeting in the larger facility. Conversely, assuming the same facts, I believe that it would be unreasonable to hold a meeting in a facility that would not accommodate those interested in attending.

The essence of the preceding paragraph appeared in an advisory opinion rendered in 1993 and was relied upon in Crain v. Reynolds (Supreme Court, New York County, NYLJ, August 12, 1998). In that decision, the Board of Trustees of the City University of New York conducted a meeting in a room that could not accommodate those interested in attending, even though other facilities were available that would have accommodated those persons. The court in Crain granted the petitioners’ motion for an order precluding the Board of Trustees from implementing a resolution adopted at the meeting at issue until certain conditions were met.

Perhaps more importantly, following the Crain decision, the Open Meetings Law was amended. Section 103(d) of that statute directs that:

“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.”

In the context of the situation that described, I believe that the Council should have made an effort to move its meeting to a location that would have permitted the attendance of those who sought to do so. Further, in consideration of the nature of the institution, the State University at Buffalo, I believe that locating “an appropriate facility” could have been readily accomplished and that the meeting should have been moved to that facility.

I hope that I have been of assistance.