COMMITTEE ON OPEN GOVERNMENT Commirree Meusens STATE OF NEW YORK ROANN M, DesTiTo DEPARTMENT OF STATE PETER D. Grine ONE CONWERGE PLAZA M, Jean HILL 99 WASHINGTON AVENUE ary HooHUL tsa, NY 12231-0001 HADLEY HORRIGAN ‘TELEPHONE: (518) 474-2518 ROBERT Musica, JR. Fax: (518) 474-1927 Rossana ROSADO www DOs..GovicooG! Davio A. ScHUL2 ‘STEPHEN B, WATERS chairperson FRANKLIN H. STONE Execunive Director ROBERT J. FREEMAN October 31, 2016 ‘The Coalition of District 3 Parents Donotmovea52@gmail.com ‘The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory ‘pinion is based solely upon the information presented in your correspondence, except as otherwise indicated Dear Coalition Members: We are in receipt of your request for an advisory opinion regarding the application of the Open Meetings Law (OML) by the New York City Community Education Council District 3. (On October 18, 2016, Community Education Council District 3 submitted a proposed rezoning plan to the New York City Department of Education. In your request for an advisory opinion, you ask whether the decision to submit this proposal constituted an action requiring a vote by the Council and whether the lack of discussion on the proposal and a vote regarding the proposal in a public forum (or in executive session) was a violation of the OML. First, it is emphasized at the outset that neither the Committee on Open Government nor its staff is empowered to find an ‘entity “in violation” of law. From my perspective, only a court can render such a determination, The Committee and its staff are, however, authorized to provide advice and opinions, and the ensuing remarks should be considered in that light. NYC Community Education Councils are created pursuant to Article 52-A of New York State Education Law and are the governing bodies of the corresponding NYC community education district. The Open Meetings Law governs the conduct of meetings of public bodies and the term “public body" is defined to mean “any entity, for which a quorum is required in order to condust 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.” (§102(2) of the OML) We point out that the definition of the phrase "public body" in §102(2) refers to entities that are required to conduct public business by means of a quorum. The term "quorum is defined in §41 of the General Construction Law: "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 or as a board or similar body, @ majority of the Whole number of such persons or officers, gathered together in the presence of each other or through the use of videoconferencing, at a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board of body, or at any duly adjourned meeting of such meeting, or at any meeting duly held upon reasonable notice to all of them, shall constitute a quorum and not less than a majority of the whole number may perform and exercise ‘such power, authority or duty. For the purpose of this provision the words 'whole number’ shall be construed to ‘mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting, NEWYORK | Department anStow. | of StateEach Community Education Council is required to consist of 11 voting members (Education Law §2590-C(1)) and has been given the authority via statute to conduct public business on behalf of the NYC Department of Education. As such, each Council constitutes @ public body subject to the requirements of the OML. Based on the requirements of the Open Meetings Law and General Construction Law, a valid meeting may occur only when a majorty of the total membership of a public body, a quorum, has "gathered together in the presence of each other or through the use of videoconferencing.” Moreover, only when a quorum has convened in the manner described in §41 of the General Construction Law would a public body have the authority to carry out its powers and duties. Consequently, it is our opinion that a public body may not take action or vote through the use of a telephone or via e-mail, for example, oF by means of the members signing a letter at different tes, ‘As you point out in your e-mail, on page five (6) of the Council's October 18, 2016 letter to Chancellor Farina, under the heading "CEC3 2017 Zoning Plan,” the Council stated, “For these reasons, an overwhelming majority of the Councit supports this plan.” In my opinion, the decision to approve the submission of the proposal to the Chancellor was an action that required the Council to vote during an open meeting subject to the requirements of the OML. hope that | have been of assistance. Sincerely, Fang Kaistn ONei Assistant Director