004
GERALD A. VERGILIS*
KENNETH M. STENGER
ALBERT P. ROBERTS
THOMAS R. DAVIS
STEPHEN E. DIAMOND****
JOAN F. GARRETT**
VERGILIS, STENGER, ROBERTS, DAVIS & DIAMOND, LLP
ATTORNEYS AND COUNSELORS AT LAW
1136 ROUTE 9
WAPPINGERS FALLS, NEW YORK 12590
(845) 298-2000
FAX (845) 298-2842
www.vsrp.com
e-mail: info@vsrp.com
OF COUNSEL:
KAREN MacNISH
LEGAL ASSISTANTS:
AMY E. DECARLO
SANDRA A. OAKLEY
SARAH SALISBURY
CLOSING COORDINATOR:
MARIA L. JONES
KEVIN T. McDERMOTT
ANGEL I. FALCON
ANTHONY M. DEF AZIO***
JAMES P. HORAN***
LISA M. COBB
M. ELLEN O'SULLIVAN
MARINA O'NEILL
POUGHKEEPSIE OFFICE
276 MAIN STREET
POUGHKEEPSIE, NY 12601
(845)452-1046
. ALSO ADMITIED IN FLA.
"ALSO ADMITIED IN CONN.
... ALSO ADMITIED IN NJ
....ALSO ADMITIED IN FL & MA
November 18, 2010
Hon. Christopher J. Colsey, Supervisor
Town of Wappinger
20 Middlebush Road
Wappingers Falls, New York 12590
Re: Amendments to Open Meetings Law
Dear Chris:
Enclosed please find an article regarding recent amendments to the Open Meetings Law
which I believe are self explanatory. Please advise if you have any questions.
Very truly yours,
VERGILIS, STENGER, ROBERTS, DAVIS & DIAMOND, LLP
~b1J ~ L -+ \=? LC!J b~. cCA / oze
ALBERT P. ROBERTS
APR!so
Enclosure
cc: Hon. John C. Masterson, Town Clerk
(Ri~(G~~Vl~\Q)
NOV 1 9 zo':o
TOWN OF WAPPINGER
TOWN CLERK
Recent Amendments to the Open Meetings Law
By Camille Jobin-Davis
)
There were what ap-
peared to be "administra-
tive" changes to the Free-
dom of Information Law in
2005 (defining time limits
for responding to requests),
in 2006 (requiring agencies
to respond to requests via
email), and in 2008 (fees for
preparing bulk electronic
records, providing records
on requested mediums,
renewing contracts and
designing electronic information systems with public
access in mind). These changes, however, coupled with
a 2006 amendment regarding attorney's fees, have
strengthened the provisions of FOIL, and transformed
it into a more modern statute.
The Legislature amended the Open Meetings
Law ("OML") to allow for videoconferencing in 2000,
another reasonable nod to the advances in technology,
and, since 2009, has made four changes to the Open
Meetings Law, starting with a new provision regarding
notice of public meetings.
)
First, in May of 2009, the Legislature added a sub-
division (5) to S 104 of the OML pertaining to notice,
set forth as follows:
When a public body has the ability to
do so, notice of the time and place of
a meeting given in accordance with
subdivision one or two of this section,
shall also be conspicuously posted on
the public body's internet website.
Section 104 now imposes a three-fold requirement:
one, that notice must be posted in one or more con-
spicuous, designated public locations; two, that notice
must be given to the news media; and three, that notice
must be conspicuously posted on the body's website,
when there is an ability to do so. The requirement that
notice of a meeting be "posted" in one or more "des-
ignated" locations, in our opinion, mandates that a
public body, by resolution or through the adoption of
policy or a directive, select one or more specific loca-
tions where notice of meetings will consistently and
regularly be posted. If, for instance, a bulletin board
located at the entrance of a town hall has been des-
ignated as a location for posting notices of meetings,
the public has the ability to know where to ascertain
whether and' when meetings of a town board will be
held. Similarly, every public body with the ability to
v
do so should post notice of the time and place of every
meeting online.
The second amendment, OML S 103[d), effective
as of April 14, 2010, requires that public bodies make
reasonable efforts to hold meetings in rooms that can
"adequately accommodate" members of the public
who wish to attend. The .intent of the amendment, as
expressed in the accompanying legislative memoran-
dum, is for public bodies to hold meetings in facili-
ties that can reasonably accommodate the number of
people that are reasonably expected to attend. For ex-
ample, if a typical board meeting attracts 20 attendees,
and meetings are held in a meeting room which accom-
modates approximately 30 people, there is adequate
room for all to attend/listen and observe. But in the
event that there is a contentious issue on the agenda
and there are indications of substantial public interest,
for example, numerous letters to the editor, phone calls
or emails regarding the topic, or perhaps a petition
asking officials to take action, the new provision would
require the public body to consider the number of peo-
ple who might attend the meeting and take appropri-
ate action to hold the meeting at a location that would
accommodate those interested in attending, such as a
school auditorium, a fire hall or other site. Please note
that changing the location of a meeting may require
providing notice of the new location, which would be
required to comply with the Open ~eetings Law.
The third amendment (which creates an additional
S 103[ d]), although effective in April 1, 2011, codifies
.. '-'----existing case1i:l.w c6ncerriirig the photographing and
recording of open meetings of public bodies. In short,
the courts have determin.ed that anyone may record
open meetings, so long as use of a recording device
is not disruptive or obtrusive. All public bodies will
be statutorily required to allow meetings to be pho-
tographed, broadcast, webcast or otherwise recorded
and/ or transmitted by audio or video means. The new
provision also states that public bodies may adopt
reasonable rules governing the use of cameras and
recording devices during open meetings, in which case
such rules must be written, conspicuously posted, and
provided to those in attendance upon request.
The Committee on Open Government will adopt
model rules regarding this amendment in the near
future and prior to April, 2011.
Finally, and perhaps most importantly, the provi-
sion regarding a court's authority to enforce the GML
was amended, effective June 14, 2010.
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Pursuant to OML 9 107, courts have long had
the authority to invalidate action taken in private in
violation of the Open Meetings Law. Before invali-
dating any action taken by a public body, and upon
good cause shown, a court must find that there was a
violation of the OML. This provision was amended to
permit a court to declare either that the public body
violated the Open Meetings Law and/ or declare the
action taken void. Further, if the court determines
that a public body has violated the law, in addition
to awarding attorney's fees, the court has the au-
thority to require the members of the public body
to receive training given by the Committee on Open
Government.
While these recent changes may appear to be "ad-
ministrative" at first glance, they are evidence of the
Legislature's efforts to modernize and strengthen the
Open Meetings Law.
Ms. Jobin-Davis is the Assistant Director of the
New York State Committee on Open Government in
the New York State Department of State.
Each year in communities across New York State, indigent people face literally millions of civil legal
matters without assistance. Women seek protection from an abusive spouse. Children are denied
public benefits. Families lose their homes. All without benefit of legal counsel.
They need your help.
If every attorney volunteered at least 20 hours a year and made a financial
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Please give your time and share your talent.
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to learn about pro bono opportunities.
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