Winter 2016

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Ask Joe Eisner

Winter 2016 issue of Trustee

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(All questions are handled with appropriate discretion. The questions posted in Mr. Eisner’s columns are generalized frequently asked questions.)



May a library board convene a public meeting convened by a quorum which includes members who participate by telephone? 



No. Public and association library and library system boards  are public bodies. In accordance with the requirements of Education Law s260-a, meetings  of boards of public bodies must be conducted in accordance with the provisions of the Open Meetings Law.

In a Committee on Open Government opinion citing Public Officers Law s102(7), which defines the term “meeting” to mean “the official convening of a public body for the purpose of conducting public business, including the use of video conferencing for attendance and participation by the members of the public body”, it was stated that 

“…we believe that a meeting, i.e., the convening of a public body, involves the physical coming together of at least a majority of the total membership…, or a convening that occurs through videoconferencing. We point out, too, that s103(c) of the Open Meetings Law states that ‘A public body  that uses videoconferencing to conduct its meetings shall provide an opportunity to attend, listen and observe at any site at which a member participates’. These provisions clearly indicate that there are only two ways in which a public body may validly conduct a meeting. Any other means of conducting a meeting, i.e., by telephone conference, by mail, or by e-mail, would be inconsistent with law. 

“There is no authority to take action outside a meeting, nor is there any authority to attend a meeting by phone, to be counted for quorum purposes or to cast a vote by phone. In a judicial decision dealing with a vote taken by phone, the court found the vote to be a nullity (Cheevers v. Town of Union [Supreme Court, Broome County, September 3,1998]), and in the only decision rendered after the enactment of the legislation pertaining to videoconferencing, it was determined that a vote cast via telephone was a nullity (Town of Eastchester v. NYS Board of Real Property Services, 23 AD2d 484 [2005])….

“In short, should there be a judicial challenge to action taken during a meeting at which less than a quorum was physically present or in attendance by videoconferencing… we believe a court would find such action to be a nullity and of no effect” (Op COG OML 5396, April 29, 2014).

Public Officers Law s104(4) states: “If videoconferencing is used to conduct a meeting, public notice for the meeting shall inform the public that videoconferencing will be used, identify the locations for the meeting and state that the public has the right to attend the meeting at any of the locations.”

In response to an inquiry as to whether the use of Skype would comply with the requirements of the Open Meetings Law, Op COG OML 5169 (September 12, 2012) is applicable: 

“Although there are no judicial decisions concerning the use of Skype, it is our view that if all the conditions described in the Open  Meetings Law are met, Skype serves as a method of videoconferencing that would be valid to comply with the Open Meetings Law [s104(4)]

The foregoing should not be construed as legal advice, for which an attorney should be consulted.

For more information about Joe Eisner’s experience and background, please click on the “Ask Joe Eisner” tab under “Resources and Links” on LTA’s website.

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