By Dan Hust
MONTICELLO — The Democrat has obtained a confidential memo recently sent to legislators from the county attorney in response to Legislator Cindy Gieger’s proposed resolution to open up the caucusing system.
Legislators have been debating the merits of making the private caucuses public, as any public business can legally be discussed in those caucuses – behind closed doors – so long as no formal votes are held.
Some legislators, like Jonathan Rouis, Scott Samuelson and Kathy LaBuda, believe the County Legislature already operates in an open and transparent manner.
Others, like Gieger and minority-party legislators Alan Sorensen and Kitty Vetter, feel closed caucuses simply allow the majority party to conduct the public’s business in secret.
Legislators have so far taken no action, and the county attorney’s opinion is that they should not.
However, Gieger – who was not the Democrat’s source for the confidential memo – told the paper she has not given up on the idea.
“There will be a public forum scheduled, date to be announced,” she promised of a plan to hold a Q&A with legislators and gain public input on the matter.
Following is the main text of County Attorney Sam Yasgur’s July 17 response to Gieger and colleagues:
“Issue Presented:
You have requested an opinion concerning a proposed resolution to ‘… open closed caucuses in the interest of better government.’ I also have a copy of the resolution you propose submitting to a committee of the County Legislature which is entitled: ‘Resolution Introduced by Cindy Kurpil Gieger to Promote Open Government by Opening Closed Caucus to the Public.’
Opinion:
While I understand your purpose, I must opine, for the reasons set forth below, that the proposed resolution would exceed the authority of the County Legislature and would, in fact, be contrary to specific provisions of New York’s Public Officers Law.
A caucus is a political party gathering. It is not a meeting of a public body. Accordingly, it need not be open. Every political party has the right to set its own rules for the conduct of its own caucus. The Open Meetings Law specifically provides that public business may be discussed in a caucus.
Discussion:
New York enacted its so-called Open Meetings Law (Public Officers Law, Article 7) to assure that, to the extent generally feasible, public bodies conduct public business in open forums. However, the Open Meetings Law specifically provides that a caucus, i.e. a gathering of members of a political party, which is not a public body or a public meeting as defined in the law, is not subject to the Open Meetings Law.
Public Officers Law, Section 102, states:
Section 102. Definitions. As used in this article:
1. “Meeting” means 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.
2. “Public body” means 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.
3. “Executive session” means that portion of a meeting not open to the general public.
If the law had gone no further, the mere definitions of “meeting” and “public body” would, by their own terms, have excluded a political caucus from coverage by the law. However, the Public Officers Law did go further and specifically exempted a caucus from the coverage of the Law. Public Officers Law, Section 108 reads as follows:
Section 108. Exemptions.
Nothing contained in this article shall be construed as extending the provisions hereof to:
1. judicial or quasi-judicial proceedings, except proceedings of the public service commission and zoning boards of appeals;
2. a. deliberations of political committees, conferences and caucuses.
b. for purposes of this section, the deliberations of political committees, conferences and caucuses means a private meeting of members of the Senate or Assembly of the State of New York, or of the legislative body of a county, city, town or village, who are members or adherents of the same political party, without regard to (i) the subject matter under discussion, including discussions of public business, (ii) the majority or minority status of such political committees, conferences and caucuses or (iii) whether such political committees, conferences and caucuses invite staff or guests to participate in their deliberations; and
3. any matter made confidential by federal or state law.
Section 108(2)(b) specifically provides that public business may be discussed in a closed political caucus. Section 108(2)(b) was added to the Public Officers Law in 1985. The history of its inclusion makes it clear that the State Legislature intended that members of a political party could hold a caucus in private and could discuss government business in private at a caucus.
[Yasgur added a footnote: ‘In that sense, a meeting of a caucus is comparable to a private meeting between a legislator and his or her constituents. Such meetings can be held in a kitchen, a diner, a field or anyplace. They do not have to be announced in advance, and they are not open to the public unless the participants so elect. The same is true with a caucus.’]
In 1981, the Appellate Division, Fourth Department, held that when the eight-member majority of a nine-member city council regularly met with the mayor, other city officials and consultants to discuss city business, such meetings should be viewed as public meetings subject to the Open Meetings Law. The court said that considering such meetings to be political caucuses would be too expansive. (Sciolino v. Ryan, 81 A.D. 2d 475, 440 N.Y.S.2d 795 {A.D. 4th 1981]).
In 1985, in response to Sciolino and similar cases, the Legislature added Section 108(2)(b) to the Public Officers Law to make it clear that the discussion of public business during a private political caucus meeting is exempt from the Open Meetings Law. In enacting Section 108(2)(b) the Legislature said:
“Legislative Declaration; The Legislature hereby reaffirms that the public business of public bodies of the State of New York should generally be conducted at open and public meetings. Nonetheless, as recognized by the court of appeals of the State of New York in Matter of Orange County Publications v. Council of the City of Newburgh, 45 N.Y. 2d 947, 949 ‘neither public nor private meetings of governmental bodies are inherently desirable or undesirable. Whichever kind of meeting is permitted or required there are… offsetting losses or gains.’ When enacting the open meetings law, the legislature intended and provided that the ‘deliberations of political committees, conferences and caucuses’ should be exempt from the coverage of such law. Such exemption was enacted in furtherance of the legislature’s recognition that the public interest is well served by the political party system in legislative bodies because such parties serve as mediating institutions between disparate interest groups and government and promote continuity, stability and orderliness in government. The performance of this function requires private, candid exchange of ideas and points of view among members of each political party concerning the public business to come before legislative bodies. Recent judicial decisions have, however, eroded this exemption by holding that it applied only to discussions of political business. Accordingly, the legislature hereby declares its adherence to the original intent of the legislature, that the provisions of the open meetings law are not applicable to the deliberations of political committees, conferences and caucuses of legislative bodies regardless of (i) the subject matter under discussion, including discussions of public business, (ii) the majority or minority status of such political committees, conferences and caucuses or (iii) whether such political committees, conferences and caucuses invite staff or guests to participate in their deliberations.” (Session Laws, 1985, Chapter 136)
Given the above-quoted language, it is manifest that, in enacting Section 108(2)(b) the State Legislature believed that the “… private, candid exchange of ideas and points of view among members of each political party concerning the public business to come before legislative bodies…” was desirable.
In sum:
1. An Executive Session is a closed “meeting” of a “public body” which is governed by specific provisions of the Open Meetings Law.
2. A Caucus is not an Executive Session since: (a) a Caucus is not a “meeting” of a “public body,” (b) a Caucus is a political meeting and (c) a Caucus is exempt from the coverage of the Open Meetings Law.
3. Any political party can determine for itself how to conduct a Caucus.
4. At a Caucus the persons present have the right under state law to discuss public business.
5. A Caucus of County Legislators can invite guests, including county staff, to attend the Caucus so long as they do not invite a legislator of the other political party.
6. An attempt by the County Legislature to direct that a political party conduct its Caucus as an open meeting would be contrary to the mandate of the New York State Legislature and state law.
Accordingly, I must advise you that, under present state law, the proposed resolution would exceed the authority of the Legislature and would, as ironic as that might seem, be contrary to the Open Meetings Law.”