The Town Board And The Open Meetings Law

Dear Members of the Clarkstown Town Board: 

Since I do not know how best to contact you individually, I am sending a copy of this message to the Town Clerk Justin Sweet as well so that he can make sure that you receive a copy. I am also supplying a copy to the newspapers that regularly cover meetings of the Town Board, particularly to the reporter from Our Town who observed the meeting in question and who wrote about it. 

This is to follow up on my questions to you at the Board Meeting on February 7, 2012. I became interested in the functioning of the Town Board as the result of issues raised in the local media. I attended the Board Meeting on January 24, 2012 and was quite puzzled at the operation of the meeting, particularly the lack of discussion or deliberation. It appeared that you, as members of the Town Board, had concluded that only the actual voting on resolutions need take place in an open meeting. If your attorney has so advised you then let this be formal notification that she is mistaken.

The New York Open Meeting Law states:

§100. Legislative declaration.
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 and 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.

It was quite clear from my observation in January that I had had no opportunity to listen to your deliberations on the decisions that you made that evening.

This became even clearer when I attended the Board Meeting on February 7, 2012. Even though I had a printed copy of all the resolutions before you at that meeting, I found it necessary for a number of resolutions to ask for clarification because the written copy of the resolution did not clearly lay out the issue on which you were to vote and there was no supporting information. Obviously you as a group already knew what the resolution was about and had sorted out any questions among yourselves before the Board Meeting. That clearly comes under the heading of “deliberations” in the Open Meetings Law. Even if you have been careful in most cases to avoid the technical definition of a meeting, it is quite clear that you were not in compliance with the intent of the Open Meetings Law.

In respect to this is may be useful to mention a passage from an Advisory Opinion from the New York State Committee on Open Government (OML-AO-4505):

It is emphasized that the Open Meetings Law has been broadly interpreted by the courts. In a landmark decision rendered in 1978, the Court of Appeals found that any gathering of a quorum of a public body for the purpose of conducting public business is a "meeting" that must be convened open to the public, whether or not there is an intent to take action and regardless of the manner in which a gathering may be characterized [see Orange County Publications v. Council of the City of Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947 (1978)].

The decision rendered by the Court of Appeals was precipitated by contentions made by public bodies that so-called "work sessions" and similar gatherings held for the purpose of discussion, but without an intent to take action, fell outside the scope of the Open Meetings Law. In discussing the issue, the Appellate Division, whose determination was unanimously affirmed by the Court of Appeals, stated that:

"We believe that the Legislature intended to include more than the mere formal act of voting or the formal execution of an official document. Every step of the decision-making process, including the decision itself, is a necessary preliminary to formal action. Formal acts have always been matters of public record and the public has always been made aware of how its officials have voted on an issue. There would be no need for this law if this was all the Legislature intended. Obviously, every thought, as well as every affirmative act of a public official as it relates to and is within the scope of one's official duties is a matter of public concern. It is the entire decision-making process that the Legislature intended to affect by the enactment of this statute" (60 AD 2d 409, 415).

The court also dealt with the characterization of meetings as "informal," stating that:

"The word 'formal' is defined merely as 'following or according with established form, custom, or rule' (Webster's Third New Int. Dictionary). We believe that it was inserted to safeguard the rights of members of a public body to engage in ordinary social transactions, but not to permit the use of this safeguard as a vehicle by which it precludes the application of the law to gatherings which have as their true purpose the discussion of the business of a public body" (id.).

Further, it was held that "a planned informal conference" or a "briefing session" held by a quorum of a public body would constitute a "meeting" subject to the requirements of the Open Meetings Law [see Goodson Todman v. Kingston, 153 Ad 2d 103, 105 (1990)].

I can now return to my questions to you at the end of the Board Meeting. I chose Resolution No. 38-2012 from the Board Meeting of January 24, 2012 concerning the retention of Mr. Savino for tax certiorari matters because it provides clear evidence that in this instance you as the Town Board did not abide by the Open Meetings Law. The three questions that I posed at the end of the meeting on February 7, 2012 were based upon the written resolution. Here are the questions again. I am sure that you will now understand how they provide clear evidence that deliberations about Town Board business occurred out of the public view in violation of the Open Meetings Law. 

1.  The resolution states, “Whereas, the Town Board, in its continuing effort to reduce costs, has explored whether it would be more cost effective to retain the services of an outside firm to handle tax certiori matters.” The question is: when did the Town Board carry out this deliberation and when did it so decide? There is no mention of this in the minutes.

2.  The resolution states, “Whereas, the Town Attorney has researched and interviewed law firms with experience in such matters and has requested rates  and proposals from said firms.” The first question from this statement is: Since this statement assumes parameters for the interviewing of firms that can only be properly determined by the authority of the Town Board, when did the Town Board act to adopt such parameters? Not only is that not clear, but there is no record of such an action in the minutes of the Town Board.

3.  The second question from the statement is: When did the Town Board authorize the Town Attorney to research and interview firms? Again there is no record of this action in the minutes of the Town Board.

I would recommend that you ask the Town Attorney to advise you concerning remedies for violation of the Open Meetings Law. Perhaps she will give you better advice than heretofore. For your information, since she has not been particularly reliable in this regard, here is the relevant passage from the law:

§107. Enforcement.

 
1.  Any aggrieved person shall have standing to enforce the provisions of this article against a public body by the commencement of a proceeding pursuant to article seventy-eight of the civil practice law and rules, and/or an action for declaratory judgment and injunctive relief. In any such action or proceeding, if a court determines that a public body failed to comply with this article, the court shall have the power, in its discretion, upon good cause shown, to declare that the public body violated this article and/or declare the action taken in relation to such violation void, in whole or in part, without prejudice to reconsideration in compliance with this article. If the court determines that a public body has violated this article, the court may require the members of the public body to participate in a training session concerning the obligations imposed by this article conducted by the staff of the committee on open government. 

In other words, your action with regard to this resolution can be challenged in court and if found in violation of the Open Meetings Law can be declared void by the court. That is why I asked as my last question about whether Mr. Savino had been informed that his retention is in doubt. 

I have brought this to your attention directly because I think that it is fair for each of you to know what you have being doing and to have the opportunity to redress it. I realize that the clearest example I could find is also a politically contentious one – that was not deliberate, but perhaps it will help you understand that the Open Meetings Law has a serious intent to which you should always hold in both the letter and the spirit.

Please note that this issue that I have brought to your attention is business of the Town Board and thus can only be properly deliberated upon in an open meeting. You will understand how naturally your proceedings will be subject to an appropriately higher level of scrutiny in light of these violations. I will look forward to listening to your deliberations on this matter.

Should you have any questions for me, I would will do my best to honor any invitation to appear before you at a Board Meeting. Should individual board members have questions you are welcome to contact me.

Very respectfully,
Tom Nimick
New City