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Wednesday, June 22, 2011

New Hartford Public Library Trustee recuses himself...

after confirming that today's [June 22, 2011] Library Trustee meeting was held in violation of the Open Meetings Law.

At the start of the June 22, 2011 New Hartford Public Library Trustee meeting, Trustee Edmund J. Wiatr, Jr. asked Board President Linda Romano whether or not the meeting had been properly noticed to the public.

Prior to the meeting, we checked...The notice on the library website clearly stated that the next board meeting is to be held on June 15, 2011...not today, June 22nd.

There was a meeting scheduled for June 15th; however, the meeting was cancelled at the last minute and board members were notified by email that the meeting would be re-scheduled for today. The change was never noted on the library website and it appears that no notice was sent to the Observer Dispatch.

Board President [Attorney] Linda Romano referred Mr. Wiatr's question to other board members who sat in silence. No one seemed to know whose duty it was to see that meetings are properly noticed...the Library Director? the Board President? the Board Secretary? anyone? No one claimed responsibility...

According to the Open Meetings Law, if a meeting is not properly noticed to the public, the meeting is in violation of the law.

At the conclusion of the discussion when it became apparent that the meeting was in violation of the Open Meetings Law, Mr. Wiatr recused himself and sat in the audience for the remainder of the meeting.

Discussion ensued regarding the June 9th library committee meeting that we videotaped and posted on our blog.

More than once, Ms. DuRoss requested that the blog and video be removed, even threatening a lawsuit against the owner of the blog for slander if it was not removed. Slander for making an unedited videotape of a public meeting available? Now that's interesting. Perhaps Ms. DuRoss should read up on the law before making any more ridiculous statements.

Board President [Attorney] Romano then presented the board with a 1989 court case that she says backs up her contention that committee meetings do not come under the purview of the Open Meetings Law. Unfortunately, Attorney Romano fails to recognize the difference between a committee/working group made up of citizens and a committee/working group made up of 2 or more board members with governing powers.

According to the Committee on Open Government website, the court case provided by Library Board President [Attorney] Linda Romano centers around a committee made up of representatives of City, federal, state and local agencies, not a board or other public body with governing powers:
Poughkeepsie Newspaper v. Mayor's Intergovernmental Task Force on New York City Water Supply Needs, 145 AD2d 65 (1989) --

Task force created by the Mayor of New York City was directed to make recommendations concerning the City's long range water supply needs and consisted of representatives of City, federal, state and local agencies. Court held that it is not a public body, for it has no power or authority, but rather gives advice, and performs no governmental function, i.e., does not "exercise the power of the sovereign."

When members of a governing body make up the core of a committee or sub-committee, work group, task force or whatever name is attached to the group, Robert Freeman has opined many times that:

In view of the amendments to the definition of "public body", we believe that any entity consisting of two or more members of a public body, such as a committee, a subcommittee or "similar body" would fall within the requirements of the Open Meetings Law when such an entity discusses or conducts public business collectively as a body [see Syracuse United Neighbors v. City of Syracuse, 80 AD 2d 984, 437 NYS 2d 466, (4th Dept. 1981), appeal dismissed 55 NY 2d 995, 449 NYS 2d 201 (1982)].
In a July 31, 2008 opinion letter written by Camille S. Jobin-Davis, Assistant Director of the Committee on Open Government written in response to the Board of Trustees of the Guilderland Public Library:

My research reveals that committees of public bodies made up solely of members of the public body are always advisory in nature. Cases that require committees of this type to comply with the Open Meetings Law include Lewis v. O’Connor, Supreme Court, Lewis County, January 21, 1997 (standing committees of the county hospital, made up entirely of members of the hospital’s board of managers, with no power to take final action nor bind the board of managers, are public bodies subject to the OML): “To keep their deliberations and decisions secret from the public would be violative of the letter and spirit of the legislative declaration as stated in the Public Officers Law.” Lewis, pp 4-5.; Bogulski v. Erie County Medical Center, Supreme Court, Erie County, January 13, 1998 (subcommittee of county hospital’s board of managers required to comply with OML); Glens Falls Newspapers, Inc. v. Solid Waste and Recycling Committee of the Warren County Board of Supervisors, 601 NYS2d 29 (3d Dept 1993) (committee of the county board of supervisors required to comply with OML)
In addition to the court case provided by Board President [Attorney] Linda Romano, Trustee and Board Secretary Mary DuRoss provided a copy of a 2004 Opinion Letter from Robert Freeman, Executive Director of the Committee on Open Government. Supposedly, in a phone call today, Camille S. Jobin-Davis, Assistant Director of the Committee on Open Government referred Mary to this particular opinion on their website; Mary was sure that the Opinion Letter supported Attorney Romano's stance on the subject.

Unfortunately, Ms. DuRoss either didn't read the Opinion Letter or did not understand what it says.

According to the Opinion Letter provided by Ms. DuRoss:

In this regard, by way of background, the Open Meetings Law is applicable to meetings of public bodies, and §102(2) defines the phrase "public body" 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."

Based on the foregoing, a public body is, in my view, an entity required to conduct public business by means of a quorum that performs a governmental function and carries out its duties collectively, as a body. The definition refers to committees, subcommittees and similar bodies of a public body, and judicial interpretations indicate that if a committee, for example, consists solely of members of a particular public body, it constitutes a public body [see e.g., Glens Falls Newspapers v. Solid Waste and Recycling Committee of the Warren County Board of Supervisors, 195 AD2d 898 (1993)]. For instance, in the case of a legislative body consisting of seven members, four would constitute a quorum, and a gathering of that number or more for the purpose of conducting public business would be a meeting that falls within the scope of the Law. If that entity designates a committee consisting of three of its members, the committee would itself be a public body; its quorum would be two, and a gathering of two or more, in their capacities as members of that committee, would be a meeting subject to the Open Meetings Law. [emphasis added]
Right on, Mary! We wholeheartedly agree with the opinion you provided in support of our position [albeit accidentally]...we thank you!

The Opinion Letter goes on to say:

Several judicial decisions, however, indicate generally that advisory bodies, other than those consisting of members of a particular governing body [emphasis added], that have no power to take final action fall outside the scope of the Open Meetings Law.
It is fair to say that neither Ms. DuRoss nor Attorney Romano seem to understand that there is a difference in the eyes of the Open Meeting Law. Committee meetings where the members of the committee are not board members/trustees do not come under the Open Meetings Law. That's not to say that those meetings can't be open, just that they are not required to be open if the committee members are not part of a governing body.

On the other hand, ALL committees of the New Hartford Public Library are comprised of at least two board members that are named to the committee by the Board President...that makes them public meetings under the NYS Open Meetings Law.

Without further ado, here is a video of today's Library Trustee meeting:

To be continued. Stay tuned...

1 comment:

John Steinbeck said...

How do you spell A-R-R-O-G-A-N-T ?

These people embody it.