OML AO 5633


October 9, 2020

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 am writing in response to your request for an advisory opinion regarding the application of Open Meetings Law (OML) § 110 and General Construction Law (GCL) § 41 to a board of trustees for an association library.  Specifically, you ask whether a board charter defining “quorum” differently than GCL § 41 would be valid under the OML.

The OML governs meetings of “public bodies” and defines that term in § 102(2) as:

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.

In the case of an association library board of trustees, Education Law § 260-a brings them within the coverage of the OML. Section 260a states in part that meetings of board of trustees “shall be held in conformity with and in pursuance to the provisions” of the OML.  

The OML requires that a quorum is required for a public body to conduct public business. In our view, § 110 of the OML, entitled “Construction with Other Laws,” is not applicable. Section 110 of the OML provides, inter alia, that “[a]ny provision of a charter . . . affecting a public body which is more restrictive with respect to public access than this article shall be deemed superseded hereby to the extent that such provision is more restrictive than this article.”  In our view, therefore, § 110 of the OML would only apply if the charter requirement addressed “public access,” and we do not believe that the definition of a quorum in the charter does this. Rather, the statute that governs your inquiry is General Construction Law § 41 which establishes quorum requirements of meetings of public bodies. It reads:

Quorum and majority. 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 or 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.

General Construction Law § 110 states:

This chapter is applicable to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter.

Given the language above, it is our opinion that absent clear statutory language permitting a public body to exercise its power with less than a majority of its whole number present, a library charter authorizing such is inconsistent with both General Construction Law and the Open Meetings Law.

I hope this information proves useful.




Kristin O’Neill

Assistant Director