OPEN MEETING LAW



 On February 17, 2005 in response to the letter below, the District Manager of Community Board #1 sent the following information:

"In response to your inquiry to Albert, we feel that the marked section of the City Charter governing Community Boards allows us to conduct private hearings/meetings provided the Board takes no action at such meetings."

The section of the Charter that they quoted was Chapter 70, Section 2800 d. (3). "Each Community Board shall: (3) At its discretion hold public or private hearings or investigations with respect to any matter relating to the welfare of the district and its residents, but the board shall take action only at a meeting open to the public".
The following letter was sent by the Executive Director of the Committee on Open Government regarding whether Community Board #1 has to follow the Open Meeting Law when it has its subcommittee meetings or so-called "Friends of CB#1 meetings" that are really just private Board subcommittee meetings.

January 20, 2005
TO: Richard Landman

FROM: Robert J. Freeman, Executive Director

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear Mr. Landman:

As you are aware, I have received your correspondence concerning the status of an entity created by the Chair of Community Board # 1, upon which you serve as a member. The entity consists of five members of the Board and has apparently been referenced by means of several titles, such as the Subcommittee of the Tribeca Committee, the Tribeca Rezoning Subcommittee, the Tribeca Rezoning Committee, the Tribeca Zoning Task Force, and the Tribeca Rezoning Working Group.

From my perspective, since the entity consists of members of the Community Board and was designated by the Chair, it falls within the coverage of the Open Meetings Law. In this regard, I offer the following comments.

First, judicial decisions indicate generally that advisory bodies having no authority to take binding action and which typically include persons other than members of a governing body fall outside the scope of the Open Meetings Law. As stated in those decisions: "it has long been held that the mere giving of advice, even about governmental matters is not itself a governmental function" [Goodson-Todman Enterprises, Ltd. v. Town Board of Milan, 542 NYS 2d 373, 374, 151 AD 2d 642 (1989); Poughkeepsie Newspapers v. Mayor's Intergovernmental Task Force, 145 AD 2d 65, 67 (1989); see also New York Public Interest Research Group v. Governor's Advisory Commission, 507 NYS 2d 798, aff'd with no opinion, 135 AD 2d 1149, motion for leave to appeal denied, 71 NY 2d 964 (1988)]. Therefore, an advisory body, such as a citizens' advisory committee, would not in my opinion be subject to the Open Meetings Law, even if a member of a governing body or the staff of an agency participates.

Second, however, when a committee consists solely of members of a public body, such as a community board, I believe that the Open Meetings Law is applicable.

By way of background, when the Open Meetings Law went into effect in 1977, questions consistently arose with respect to the status of committees, subcommittees and similar bodies that had no capacity to take final action, but rather merely the authority to advise. Those questions arose due to the definition of "public body" as it appeared in the Open Meetings Law as it was originally enacted. Perhaps the leading case on the subject also involved a situation in which a governing body, a school board, designated committees consisting of less than a majority of the total membership of the board. In Daily Gazette Co., Inc. v. North Colonie Board of Education [67 AD 2d 803 (1978)], it was held that those advisory committees, which had no capacity to take final action, fell outside the scope of the definition of "public body".

Nevertheless, prior to its passage, the bill that became the Open Meetings Law was debated on the floor of the Assembly. During that debate, questions were raised regarding the status of "committees, subcommittees and other subgroups." In response to those questions, the sponsor stated that it was his intent that such entities be included within the scope of the definition of "public body" (see Transcript of Assembly proceedings, May 20, 1976, pp. 6268-6270).

Due to the determination rendered in Daily Gazette, supra, which was in apparent conflict with the stated intent of the sponsor of the legislation, a series of amendments to the Open Meetings Law was enacted in 1979 and became effective on October 1 of that year. Among the changes was a redefinition of the term "public body". "Public body" is now defined in §102(2) to include:

"...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."

Although the original definition made reference to entities that "transact" public business, the current definition makes reference to entities that "conduct" public business. Moreover, the definition makes specific reference to "committees, subcommittees and similar bodies" of a public body.

In view of the amendments to the definition of "public body", I believe that any entity consisting of two or more members of a public body, such as a committee, a subcommittee or “similar body” consisting of members of the Community Board, 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 (1981)]. A quorum of a public body is a majority of its total membership (see General Construction Law, §41). Therefore, in a body consisting of fifty-one, a quorum would be twenty-six. If that body designates a committee of five, a quorum of the committee would be three.

I hope that I have been of assistance.

RJF:tt
 The following emails were sent to me to either describe the goals of the Tribeca Zoning Subcommittee or invite me to attend the private meetings. I declined to attend these day time non-publicized meetings. I was also asked not to inform the public media about them either. 


Date: Tue, 02 Dec 2003 15:50:55 -0500 (EST) 
From: Judith8507@aol.com 
Subject: Next meeting of Tribeca rezoning subcommittee 
To: albear@att.net, mconnolly@mcsw.com, Judith8507@aol.com, carole@sinvin.com, 
 timlannan@earthlink.net, rick.landman@nyu.edu 
X-Mailer: 9.0 for Windows sub 5003 
X-Spam-Level: XX 
Original-recipient: rfc822;rml1@mail.nyu.edu 
This is to confirm that the next meeting of the Tribeca rezoning subcommittee will be on December 15, 8:30am at the Tribakery on Franklin Street.  See you there!
 
Judy Duffy, Assistant District Manager
Community Board #1-M
49 Chambers Street, Room 715
NY NY 10007
212-442-5050




Date: Fri, 19 Dec 2003 10:20:26 -0500 (EST) 
From: Judith8507@aol.com 
Subject: Meeting  with CPC Rep. 
To: albear@att.net, mconnolly@mcsw.com, Judith8507@aol.com, carole@sinvin.com, 
 timlannan@earthlink.net, rick.landman@nyu.edu 
X-Mailer: 9.0 for Windows sub 5003 
Original-recipient: rfc822;rml1@mail.nyu.edu 
I spoke to Maurice regarding meeting at Le Zinc, and he can meet with us any morning the week of January 12th.  Please get back to me as soon as possible with what works best for you. He also brought me some the the CPC reports on Tribeca, which provide some interesting background.  I will mail all of you copies today.  Happy Holidays!
 
Judy Duffy, Assistant District Manager
Community Board #1-M
49 Chambers Street, Room 715
NY NY 10007
212-442-5050




Date: Wed, 07 Jan 2004 18:33:09 -0500 
From: Tim Lannan  
Subject: RE: Next meeting 
To: Judith8507@aol.com, albear@att.net, mconnolly@mcsw.com, carole@sinvin.com, 
 rick.landman@nyu.edu, 'George Olsen'  
Reply-to: tlannan@nyc.rr.com 
X-Mailer: Microsoft Outlook, Build 10.0.4510 
Importance: Normal 
Original-recipient: rfc822;rml1@mail.nyu.edu 
Following are some questions I would like to ask.
 
„«      How does CPC think the rezoning has actually met the ˇ§general goalsˇ¨ of the rezoning of the ˇ§Special Lower Manhattan Mixed-Use District,ˇ¨ which were stated as:
a.       To retain adequate wage, job producing, stable industries within Lower Manhattan; 
b.      To protect light manufacturing and to encourage stability and growth in Lower Manhattan
c.       To provide a limited new housing opportunity of a type and at a density appropriate to this mixed use zone;
d.      To insure the provision of safe and sanitary housing units in converted buildings; and
e.       To promote the most desirable use of land and building development in accordance with the Plan for Lower Manhattan as adopted by the City Planning Commission
 
„«      What does CPC think has worked well?  
„«      What does CPC think hasnˇ¦t worked or could work better?
 
„«      What is CPCˇ¦s forecast for growth, new and emerging uses, etc. in Tribeca and environs?
 
„«      Does CPC have a simple summary of what is and isnˇ¦t allowed in each group in each part of the Special Lower Manhattan Mixed-use district?
 
„«      What variances were granted, by BSA and CPC?  What were the criteria for granting these variances?
 
 
 
tim
212-233-7065
tim@timlannan.com
 



Date: Wed, 07 Jan 2004 18:38:36 -0500 
From: Tim Lannan  
Subject: draft goals for Tribeca Rezoning Committee 
To: Judith8507@aol.com, albear@att.net, mconnolly@mcsw.com, carole@sinvin.com, 
 rick.landman@nyu.edu, 'George Olsen'  
Reply-to: tlannan@nyc.rr.com 
X-Mailer: Microsoft Outlook, Build 10.0.4510 
Importance: Normal 
Original-recipient: rfc822;rml1@mail.nyu.edu 
At the last meeting, I was asked to take a first stab at goals for our group and our review of the current zoning for the Special Lower Manhattan Mixed-Use District.  Attached is my initial attempt to do this.  Please treat it as a first draft.  I look forward to your feedback.  Best,
 
 
tim
tim lannan consulting
Organization Development and Governance Design
55 Hudson Street, Suite 6-D
New York, NY  10013-3388
212-233-7065
212-233-7056 (f)
917-957-0133 (m)
tim@timlannan.com
 
 
 

 Goals for Tribeca rezoning committee - draft 010704.doc 

GOALS OF THE TRIBECA REZONING COMMITTEE

1)	Preserve and safeguard the historic character and fabric of Tribeca.

2)	Ensure that zoning is appropriate for the evolving needs of Tribeca, downtown, and New York City.
a)	Review appropriateness of bulk, height, density
i)	Maintain a low-density neighborhood
b)	Ensure that allowable uses are appropriate; support a mixed-use, diverse community; and ensure a desirable quality of life
i)	Maintain and strengthen restrictions on department and mega-stores, toxic uses, discos and noisy clubs, undesirable community facilities, and high-traffic uses
ii)	Maintain and support an appropriate balance of uses that are an intrinsic and historic part of the areaˇ¦s character (business, artisan, light manufacturing, and residential uses and supporting services)
iii)	Ensure that approved uses complement and exist in harmony with each other

3)	Promote stability and livability of the neighborhood.
a)	Encourage retail stores and service establishments that meet the needs of those who live and work in the community (not destination shopping)
b)	Promote arts-related uses
c)	Retain adequate wage, job producing, stable industries
d)	Provide a diverse mix of housing, including units that moderate income individuals and families and those who work in the community can afford




Date: Fri, 16 Jul 2004 13:27:24 -0400 (EDT) 
From: Judith8507@aol.com 
Subject: North Tribeca Zoning group meeting 
To: albear@att.net, mconnolly@mcsw.com, Judith8507@aol.com, Golsenesq@aol.com, 
 carole@sinvin.com, timlannan@earthlink.net, rick.landman@nyu.edu, 
 mja@bigmagic.com, eanderson@argentventures.com, Noelfilm@aol.com, 
 Madwils1@aol.com 
X-Mailer: 9.0 for Windows sub 5032 
Original-recipient: rfc822;rml1@mail.nyu.edu 
Albert has asked me to contact you to find out if you are available to have a strategy meeting to start discussing the pending zoning amendment for North Tribeca.  He has suggested a morning meeting at 8:30 or 9:00 AM on either the 21st, 23rd or the 30th.
Please let me know if any of these dates work for you.  Thank you.
 
Judy Duffy
Assistant District Manager
Community Board #1
49 Chambers Street Rm 715
New York, New York 10007
212 442-5050




Date: Tue, 20 Jul 2004 14:12:16 -0400 (EDT) 
From: Judith8507@aol.com 
Subject: Tribeca Zoning meeting 
To: albear@att.net, mconnolly@mcsw.com, Judith8507@aol.com, Golsenesq@aol.com, 
 carole@sinvin.com, timlannan@earthlink.net, rick.landman@nyu.edu, 
 mwils@tribecafilminstitute.org, mja@bigmagic.com, 
 eanderson@argentventures.com, Noelfilm@aol.com 
X-Mailer: 9.0 for Windows sub 5032 
Original-recipient: rfc822;rml1@mail.nyu.edu 
Friday, July 30th at 9 AM at the CB1 office will be the first meeting of the Tribeca Zoning Subcommittee to discuss the proposed zoning change for North Tribeca.  
 
Judy Duffy
Assistant District Manager
Community Board #1
49 Chambers Street Rm 715
New York, New York 10007
212 442-5050




Date: Thu, 30 Sep 2004 10:53:17 -0400 (EDT) 
From: Judith8507@aol.com 
Subject: Tribeca Zoning Task Force 
To: albear@att.net, mconnolly@mcsw.com, Judith8507@aol.com, Golsenesq@aol.com, 
 carole@sinvin.com, timlannan@earthlink.net, rick.landman@nyu.edu, 
 mwils@tribecafilminstitute.org, mja@bigmagic.com, 
 eanderson@argentventures.com, Noelfilm@aol.com 
X-Mailer: 9.0 for Windows sub 5032 
Original-recipient: rfc822;rml1@mail.nyu.edu 
 
The next meeting of the Tribeca Zoning Task Force will be Thursday, October 21st at 10:30 AM at the Board Office at 49 Chambers Street.  
 
 
Judy Duffy
Assistant District Manager
Community Board #1
49 Chambers Street Rm 715
New York, New York 10007
212 442-5050




Date: Tue, 19 Oct 2004 14:20:19 -0400 (EDT) 
From: Judith8507@aol.com 
Subject: Tribeca rezoning working group 
To: albear@att.net, mconnolly@mcsw.com, Judith8507@aol.com, Golsenesq@aol.com, 
 desaram50@earthlink.net, timlannan@earthlink.net, rick.landman@nyu.edu, 
 mwils@tribecafilminstitute.org, mja@bigmagic.com, 
 eanderson@argentventures.com, Noelfilm@aol.com 
X-Mailer: 9.0 for Windows sub 5035 
Original-recipient: rfc822;rml1@mail.nyu.edu 
Just to remind you that the working group will be meeting Thursday, Oct. 21 at 10:30 AM at the Board office.
 
Judy Duffy
Assistant District Manager
Community Board #1
49 Chambers Street Rm 715
New York, New York 10007
212 442-5050




Date: Tue, 26 Oct 2004 15:52:24 -0400 (EDT) 
From: Judith8507@aol.com 
Subject: Next meeting of the rezoning working group 
To: albear@att.net, mconnolly@mcsw.com, Judith8507@aol.com, Golsenesq@aol.com, 
 desaram50@earthlink.net, timlannan@earthlink.net, rick.landman@nyu.edu, 
 mwils@tribecafilminstitute.org, mja@bigmagic.com, 
 eanderson@argentventures.com, Noelfilm@aol.com 
X-Mailer: 9.0 for Windows sub 5035 
Original-recipient: rfc822;rml1@mail.nyu.edu 
The next meeting of the Tribeca rezoning working group will be on Wednesday, Nov. 17th at 8:30 AM.  
 
Judy Duffy
Assistant District Manager
Community Board #1
49 Chambers Street Rm 715
New York, New York 10007
212 442-5050