The Basics and the Intricacies of the Open Meeting Law

I began this blog post in March 2021 after attending a webinar entitled "The Basics and the Intricacies of the Open Meeting Law," which was focused on open meeting law in New York State.  Even though that event was months ago, I'm going to summarize information from from the event, because it is still relevant.  I've kept some of the COVID-related information, because it might be interesting or useful.

Background

Since I became ta member of my public library system's board of trustees,  I have been learning about Open Meeting Law in New York State. Public institutions in NYS must comply with Open Meeting Law. The text of the law is on the NYS Committee on Open Government (COOG) website. What is the Committee on Open Government? The site says:

The Committee on Open Government oversees and advises the government, public, and news media on Freedom of Information, Open Meetings, and Personal Privacy Protection Laws. The Committee offers guidance in response to phone inquiries, prepares written legal advisory opinions, and provides training to government and other interested groups.

Text of the law is on the website and it is not long; however, it can cause an organization to raise many questions, which you can see in the opinions rendered. The basic idea of Open Meeting Law is that the governing bodies of public institutions should be transparent in what they are doing and thus their meetings should be open, Open Meeting Law states what that means and provides rules to follow. Following the law can be both easy and hard.

Notes

• Open Meeting Law is codified in NYS Public Officer Law, Article 7, which was updated in 2021. The COOG website includes those updates.
  
• The COOG website contains advisory opinions index alphabetically by key phrase. When looking at the opinions, it can be helpful to look at several since they may provide different information.
• Public business be held in an open and public manner.
  
• Citizens have the right to attend and listen to deliberations.
• With a public body, the whole public body (e.g., all of the trustees) are together one type of committee that is subject to open meeting law. In addition, a subcommittee, which is entirely comprised of members of the larger body is also subject to open meeting law. The fact that it is less that the quorum of the entire body is irrelevant.
• For example, a 15-member city council, with a 3-member subcommittee. That subcommittee is its own public body. (More than 2 members.)
• Are you having a meeting?
• Is there a quorum present? Quorum is 50% of the entire board/counsel.  If the board has 11 members (even if some positions are vacant), the quorum is 6.
  
• Will you be discussing public business?
• If yes, you are having a meeting regardless of the intent to take action. 
• There is no legal distinctions between workshops, meetings, agenda setting sessions, informal gathering, if you are discussing or conducting public business.
• What might be outside the scope of a public meeting?
• Site visits - no discussion or deliberation. Only for gathering information.
  
• Retreat or educational seminar. Team building. Not there to discuss their own public interest.
  
• Attendance at committee meeting as a member of the public
  
• Social, e.g., holiday gatherings
• During the COVID pandemic, how a meeting was defined changed due to the Governor's Executive Orders and actions taken by the State Legislature. Given what we experienced during the pandemic, the question is whether some of those changes may become permanent.
• You cannot conduct a meeting by teleconference (phone) or email. Sharing information through email is appropriate. There should not be substantial deliberations via email.
• Notice of Every Meeting
• Time and place of the meeting
• Prior to every meeting
• To the media - local media must have notice that the meeting will occur
  
• Must be posted on a designated physical location
• On the website
• Must be given 72 hours for meetings schedule more than 1 week in advance
• For meeting on short notice, notice must be given to extend practicable.
• Do you need to meet quickly? What would the harm be if delayed?
• Minutes
• Must include motions, resolutions, votes
• Does not need to be a verbatim account of the meeting
• Does not need to include a summary of deliberations or public comments 
• Must be available within two weeks for open sessions, and within one week for executive sessions (if action taken).
• Does not matter whether minutes are unapproved or in draft form
• Nothing in the law states that minutes must be approved
• They must be made available upon request
• Recording
• Any meeting that is open to the public can be photographed, recorded, or broadcast
• Agency is not obligated to record
• Agency may establish reasonable rules to limit disruption
• Executive Session
• It is part of an open meeting
• Cannot be held prior to an open meeting
• It cannot be a separate session 
• Most have a motion
• Upon majority vote
• Specificity of the motion, signal proper purpose
• Discuss items that would be harmful if disclosed
• Cannot just say that you are entering an Executive Session for "personnel" matters. The wording needs to be more specific. (See the law)
• Public Participation
• Not required
• Can establish reasonable rules, e.g., time limits, limited to agenda items
  
• Implement fairly and consistently
• Hearings are not the same as meetings. There are other statutes that govern public hearings.
• Matters/Records Scheduled to be Discussed
• There is no obligation to prepare or follow an agenda
• Proposed resolutions, etc., shall be made available by required, prior to the meeting, or at the meeting
• Section 108 Exemptions for Meeting Behind Closed Doors
• Judicial or quasi-judicial proceedings
  
• Deliberations of political committees, conferences or caucuses - discussion must be limited to political business
  
• Any matter made confidential by federal or state law, e.g., meetings with agency attorney covered by attorney client privilege.
• Non-Compliance and Enforcement
• Enforcement is through the initiation of a CPLR Article 78 proceeding in State Supreme Court. The Court has authority to:
  
• Award costs and attorney's fees
• Invalidate action - likely if the violation is substantial
  
• Require training 

Questions

Some of these questions were specific to meetings being held during the pandemic.

• Must members of the public identify themselves when attending a meeting? No.
• Must members of the board/committee have cameras on at all times? In non-COVID times, yes.
• If a meeting is recorded in non-COVID times, the recording needs to be kept for 4 months. There is no obligation that a transcript be prepared.
• We note on our meeting minutes who from the public attended (which could be staff). Do we need to do that? This is not needed. Members of the public may not want to be listed.
• Under the Governor's Executive Order (during COVID), the transcripts created by Zoom, etc., are sufficient.
• Do attendees need to identify themselves? No. Attending a meeting cannot be conditional of identify yourself. 
• During COVID, you may collect this information for contract tracing.
• If the building has security procedures which require identification, that is different than open meeting law.
• Definition of committees:
• If the committee is comprised of only members of the larger body, it is subject to the Open Meeting Law.
• Advisory committees with mostly non-board members are not likely subject to Open Meeting Law.
• Committees subject to NYS statute are subject to Open Meeting Law.
• During COVID and the Governor's Executive Order, a committee can meet in person and give the public a remote option for attending. 
• The in-person gathering, under COVID, must be able to accommodate social distancing.
• Telephone meetings - less than a quorum - are allowed.
• If action is taken in Executive Session, your clerk should be present to record the action.
• If a virtual meeting is live-streamed (during COVID), the public can watch. They do not need to be able to make comments.

Final Thoughts

This was not my first training on open meeting law and likely will not be my last. (See NYLA2018 post, elective session script) While the law seems simple and it is easy to implement, it is hard because it means being very transparent and that can be awkward if people feel that they are discussing something sensitive like the budget. We need to keep in mind that being transparent is good for our communities.

The idea that a agenda does not need to be followed is liberating for me, but I also have learned that having a standard agenda is helpful for everyone involved. Personally I think the agenda should help the organization focus and be able to change when needed.

Personally, I appreciate minutes which capture some of the discussion. Why? Because I think it is important to know what was discussed.  I've been in groups where someone will say, "check the minutes" and then see that the minutes don't provide any clues about what was said.  I think minutes should be helpful and provide a historical record. But that's me and I know that it is more than what is needed. (Yes, I recognize that people can keep their own notes, but that doesn't help when everyone who was around when 'that thing happened' is gone.)

I've learned that even committees can have executive sessions. Useful and good to know.

In another training, I've learned that anyone can attend an open meeting, whether or not they live in that area.  In other words, there is no residency requirement. You might want to exclude someone, but you can't. 

Also interesting that you do not need to capture the name of everyone in attendance.  If it is your practice to capture everyone's name, a person can ask to be unnamed.

The meeting is for the board/committee that is meeting and it should be useful for them. Hearing from others - e.g., a time for receiving comments - is not needed. If a board decided to receive comments, it should do so in a consistent manor and only receive the comments and not get into a discussion.

BTW checking the advisory opinions, I see that adhering to Robert's Rules of Order is not in the law, although a body may adopt to use Robert's Rules or adopt another set of rules.

Finally, having gone through open meeting law training, I think the more people trained in it for a public body (e.g., board), the better.  That will help the public body consider and implement open meeting law well, even when being transparent is uncomfortable. Honestly, I keep learning new things about open meeting law and how to implement it, which means that there is much to consider in how it is applied.