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A Primer on the Open Meetings Law

Public Officers Law, Article 7, §§100 - 111

What is covered?

The Open Meetings Law (“the Law”) pertains to meetings of public bodies, and the phrase “public body” is defined 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.”

For purposes of Executive Order No. 3 (“the Order”), boards, commissions, councils and the like that function within state agencies, as well as the governing bodies of many public authorities, clearly constitute public bodies subject to the Open Meetings Law and, therefore, the Order. In addition, committees consisting of two or members of those entities also fall within the coverage of the Law. Although judicial decisions indicate that ad hoc advisory bodies that do not consist solely of the members of a public body are not subject to the Law, case law also suggests that advisory bodies that are statutory creations fall within its coverage.

What is a “meeting”

A “meeting” is a gathering of a majority, a quorum, of the members of a public body for the purpose of conducting public business, even if there is no intent to take action, and irrespective of the manner in which the gathering is characterized. For example, a “work session” held by a public body solely for the purpose of discussion constitutes a meeting subject to the Law. A meeting may involve either physical convening of a majority of the members or a virtual convening accomplished by videoconferencing. Members of a public body cannot be counted as part of a quorum nor can they vote by phone, proxy or email.

Public Participation

The Law gives the public the right “to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy.” It is silent with respect to the ability of those in attendance to speak or otherwise participate. Therefore, a public body is not required to permit the public to speak at its meetings. Many do so, and in those circumstances, it has been advised that reasonable rules be adopted that treat members of the public equally.

Audio or video recording

There is no statute that either authorizes or prohibits those in attendance at meetings from audio or video recording. However, the courts have consistently held that anyone may record a meeting, so long as the use of the recording device is neither disruptive nor obtrusive.

Notice

Every meeting must be preceded by notice of the time and place given to the news media and by means of posting in one or more designated, conspicuous public locations. When a meeting is scheduled at least a week in advance, notice must be given not less than seventy-two hours prior to the meeting; if a meeting is scheduled less than a week in advance, notice must be given at a reasonable time prior to the meeting.

Closing meetings

The Law is based on a presumption of openness and requires that meetings be conducted open to the public, except in two circumstances. One involves executive sessions, and the Law defines the term “executive session” mean a portion of an open meeting during which the public may be excluded. Before entering into executive session, a motion to do so must be made in public indicating the subject or subjects to be discussed, and it must be carried by a majority of the total membership, notwithstanding absences or vacancies. Perhaps most importantly, the Law specifies and limits the grounds for entry into executive session. A public body may vote during an executive session, unless the vote is to appropriate public money. The other circumstance involves “exemptions”. When a matter is exempt from the Law, its provisions do not apply. For instance, when a public body seeks and obtains legal advice from its attorney, their communications fall within the attorney-client privilege, they are confidential by statute and, therefore, are exempt from the provisions of the Law.

After the meeting - minutes

The Law contains what might be characterized as minimum requirements concerning the contents of minutes. At a minimum, minutes of open meetings must consist of “a record or summary of all motions, proposals, resolutions and any matter formally voted upon and the vote thereon.” As such, minutes need not consist of a detailed or verbatim account of the proceedings. Minutes of executive sessions must consist of a “record or summary of the final determination” of action taken, the date and the vote of members, but they need not include information deniable under the Freedom of Information Law.

Site of a meeting

The Law requires that public bodies make reasonable efforts to hold their meetings in facilities that permit barrier-access to physically handicapped persons.