Is a Committee of Two Subject to the NYS Open Meetings Law?

I've recently become interested in New York State's powerful open government laws, which provide the public with comprehensive rights of access to government records — the Freedom of Information Law (FOIL) — as well as rights of attendance at government meetings — the Open Meetings Law. The nuances of these laws are often unclear to both the public and public officials. For this reason, the NYS Committee on Open Government has published thousands of “advisory opinions” on its website. Even with all this attention to open government laws, I have found that the law is still sometimes ambiguous, and that public officials are not always aware of their responsibilities under these laws. The following post is my first venture into the world of open government. This post happens to come during Sunshine Week, which the Poughkeepsie Journal acknowledged yesterday in an unsigned editorial.

Local government “public bodies” such as boards of fire commissioners, town councils, village boards, school boards, city councils, etc. are subject to New York State's open meetings law. This means that these bodies must allow the public to attend their meetings, and must provide various accommodations to make public attendance practical and meaningful. (For example, advance notice of meeting, advance copies of records to be discussed, recording of meeting by public, accessibility by disabled persons, and timely availability of minutes of meeting.)

What is less well known is that, as a general rule, committees of public bodies are also public bodies, and are therefore subject to all the requirements of the open meetings law. What I mean by “as a general rule” is that a committee comprising three or more members of a public body is a public body, and is therefore subject to the open meetings law. But what about a committee of just two members of a public body? This case is ambiguous at best. Most likely, a committee of two members of a public body is not a public body, and therefore is not subject to the open meetings law. But this conclusion is not dead certain.

Why does it matter?

It is common for local government public bodies to form various committees for various purposes. For example, the Board of Fairview Fire Commissioners has separate committees for budget, personnel, apparatus, check audit, computer, safety, policy, record retention, and others. These committees typically comprise two commissioners, or two commissioners and the fire chief. In practice, these committees have met in private — not in public. Do these meetings violate the Open Meetings Law?

What does the law say?

Section 102.2 of the Open Meetings Law defines a public body 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 a public corporation as defined in section sixty-six of the general construction law, ... or committee ... of such public body. [Elided phrases believed irrelevant to this discussion.]

The term “public corporation” in this context simply means a municipality such as a fire district. A committee comprising two fire commissioners certainly is an entity of two or more members performing a governmental function for a fire district. So it would appear that such a committee is a public body, and therefore subject to the open meetings law. At least, this was my understanding of a phone conversation with Committee on Open Government Executive Director Robert Freeman on February 16. So case closed, right?

Not so fast

Wait a minute. What about the “quorum” part? The above definition says that a public body is an entity for which a quorum is required. Does a committee of two commissioners even have a quorum? Freeman assured me that it does, and he cited Section 41 of the General Construction Law to prove it. After my conversation with Freeman, I found Section 41 to say the following:

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 ..., a majority of the whole number of such persons or officers ..., shall constitute a quorum .... [Elided phrases believed irrelevant to this discussion.]

The crucial part of Section 41 is that the law does not define a quorum for two persons, only for three or more. But a public body is an entity for which a quorum is required. Therefore, two persons cannot be a public body. And only public bodies are subject to the open meetings law. Conclusion: A committee of two is not subject to the open meetings law. My understanding of a subsequent conversation with Freeman on March 13 is that he agreed with this new conclusion.

What if this conclusion is wrong?

The fact that the definition of public body mentions two or more rather than three or more adds a certain degree of ambiguity — or some might say contradiction — in the law. Thus there is still a little bit of doubt as to whether a committee of two is subject to the open meetings law. In my view, it would be unduly burdensome for a committee of two to be subject to the open meetings law. For example, the Fairview board of five fire commissioners has about a dozen committees. If each committee comprised two commissioners, then it's quite likely that every commissioner is paired with every other commissioner on some committee. So no commissioner could speak in private with any other commissioner, unless they were careful to avoid talking about the business of the particular committee(s) they comprise. As a practical matter, two commissioners could very easily slip into violating the open meetings law if they spoke with each other at all. If no commissioner can talk in private with any other commissioner, the work of government would be greatly impeded.

Protecting a committee from the open meetings law

I am a strong supporter of open government, and I would normally look askance at any attempts to circumvent its intent. On the other hand, it would frustrate the workings of government if the open meetings law applied to a committee of two. It turns out that a board of fire commissioners can “protect” itself from any possible applicability of the open meetings law to committees of two by the simple device of adding another official such as the fire chief or District Treasurer to each committee. That's because advisory opinions and legal decisions have held that the definition of a committee as a public body requires every member of the committee to be a member of the public body. Since the fire chief and treasurer cannot be commissioners, their membership on a committee automatically insulates a committee from the open meetings law. It turns out that in Fairview, many committees already include the fire chief or treasurer. My understanding of my conversation with Freeman on March 13 is that this way of circumventing the open meetings law for a committee of two is safe and effective, and does not significantly violate the spirit of the open meetings law.