The Open Meetings Law (and how to get around it)
During the first meeting of the Putnam Legislature in 2021, its nine members received assignments as liaisons to county groups such as Fish & Wildlife Management, Veterans Affairs and Capital Projects.
Nancy Montgomery, the sole Democrat, who represents Philipstown and part of Putnam Valley, asked the chair, Toni Addonizio of Kent, how the list had been prepared.
“Was this discussed outside of this meeting?” she said.
“That’s not an appropriate question,” Addonizio responded.
Montgomery said she simply wanted to know if the appointments had been discussed ahead of time, to which Addonizio replied: “I’m not answering that.”
Addonizio didn’t answer because she didn’t have to. And therein lies a tale.
In 1976, the state Senate and Assembly passed a law designed to prevent elected officials from holding secret meetings.
Known as the Open Meetings Law, it set standards for what local and state panels must do, such as allow the public to attend, announce meetings at least a week in advance and keep minutes.
This was necessary, the Legislature said, because “it is essential to the maintenance of a democratic society” that citizens are “able to observe the performance of public officials and attend and listen to the deliberations and decisions.”
The law outlines a few situations where elected officials can meet behind closed doors, such as discussions of criminal investigations, collective bargaining negotiations, personnel matters and property transactions. But they must vote to retreat into “executive session,” and they must keep minutes.
Another exemption allows meetings of “political committees, conferences and caucuses” to be held in secret. Neither public notice nor minutes are required.
The potential pitfalls of this latter exemption were immediately apparent. In a journal article in 1977, two law professors called for state courts to narrow the definition of what could be discussed secretly at caucuses to include only party business. Otherwise, they noted, the majority party could effectively run a local government behind closed doors.
Nothing changed, however, and 45 years later, the practical effect could be seen last month when Montgomery observed at the public meeting held after the secret meeting that she was no longer a member of the Legislature’s Personnel Committee. She said she suspects most decisions are made this way — in party caucus, excluding her — because the Republican presentations are “always so well-orchestrated” and “there is never any discussion.”
Before the pandemic shutdown, Montgomery noted the caucus meetings “took place right before the [monthly] full Legislature meeting” in a back room at the Historic Courthouse in Carmel. “Everything is decided back there.”
In 2019, before her eight Republican colleagues voted to approve a toothless resolution condemning a state law called the Reproductive Health Act, Montgomery says she watched the legislative attorney and the legislative clerk disappear into the caucus meeting — making it even more closely resemble an official meeting.
“I asked the attorney why he was in there,” since he is paid to advise the Legislature, not the Republican caucus, Montgomery recalled. “He said they can have anyone they want,” which is true.
I emailed Addonizio to ask if the Republican caucus has been meeting during the pandemic shutdown, whether in person or by video or with the same scratchy audioconference the county offers voters.
She responded: “In my experience, the Legislature’s Republican members have always carefully adhered to the requirements of this law when holding discussions in caucus. All members of the Legislature receive capable guidance from counsel if they have any questions regarding application or interpretation of the Open Meetings Law. Because caucus discussions are by their nature private, further comment on them is not appropriate.”
How can this be?
The state Open Meetings Law survived for five years before the Law of Unexpected Consequences caught up with it.
In 1980, Anthony Sciolino, the sole Republican member of the Rochester City Council, found himself shut out of weekly meetings between the Democrats and the mayor. He sued, and two courts said the meetings violated the law. (In response, the Democrats split their meetings into two to avoid a quorum.)
The Sciolino decision simmered on the back burner until 1985, when The New York Post asked the Committee on Open Government — an agency within the Department of State — whether caucuses were open meetings if the participants discussed anything but party particulars. The committee said yes, citing Sciolino.
Man, that did not go over well in Albany. The members of the state Legislature, then and now, love to meet in caucus, which they call “conferences.” So the Republicans, who controlled the Senate, and the Democrats, who controlled the Assembly, joined hands and, within six weeks, passed a law that exempts caucus meetings from the Open Meetings Law no matter what is discussed or who attends.
Upgrading the Open Meetings Law
Here is a selection of bills introduced this year in the state Legislature to amend the Open Meetings Law.
- Require local governments to livestream meetings and public hearings and post the video online within five days and keep it available for at least five years.
- Require that minutes be posted online, and within two weeks.
- Give the Committee on Open Government the power to levy fines for violations.
- Require open meetings of “any entity created or appointed to perform a necessary function in the decision-making process.”
- Require local governments to allow people to comment in real time during public-comment periods during virtual meetings.
- Clarify that members of the public don’t have a right to attend a virtual public meeting from inside the home of an elected official.
Proponents of the change argued that caucus meetings must be secret so that elected officials can have “candid” discussions. But aren’t those discussions the best part of democracy?
The practical effect of this 1985 amendment seems most egregious when one party dominates, such as in Putnam. In 1992 in Buffalo, a state judge ruled that if every member of a legislative body is a member of the same party, meeting in caucus clearly violates the Open Meetings Law. With a divided legislature, however, because not every legislator can attend (even if only one in nine), the court said it seems “fair to assume” the meeting is a caucus.
Notably, when Sam Oliverio, a Democrat who is now the Putnam Valley supervisor, left the Legislature in 2014, it became all Republican and, if the 1992 ruling was honored, meant the legislators could no longer meet in secret. Montgomery’s election in 2018 allowed them to resume.
“Before Nancy was elected, the [Republican] legislators did go into caucus with all nine members,” Oliverio said this week. “Although I was no longer on the board, I complained to the Board of Elections. I was told it was legal, but no one could show me where this was stated or the rule that allowed it.”
What can be done?
In 1993, the year she joined the Assembly, Sandy Galef introduced a bill to remove the caucus exemption. In fact, she introduced it every session until 2007.
The Democrat, whose district includes Philiptown, said she was inspired to do so because, when she arrived in Albany, she had been told by party leaders not to say anything at committee meetings but instead “vote with the chair.” As she would learn, the decisions had already been made in conference.
In a report to the governor in 1986, the Committee on Open Government suggested a simple fix to the caucus problem: The Open Meetings Law should apply to any gathering of at least two-thirds of the members of a legislative body unless they are discussing party business.
The committee and at least one state judge also have called on municipalities and counties to “do the right thing” and pass local laws that forbid the discussion of public business at caucus meetings. Ithaca adopted this policy in 1985, followed by Clarence, in Erie County, in 2005. Did I miss anybody?
New York may need to look to Montana for guidance. Last week the news media there sued a state legislator because he allegedly held a secret caucus meeting to discuss legislation. In Montana, a meeting is a meeting is a meeting.