Before a special meeting on Dec. 29, 2012, Yorktown town officials voted themselves a waiver of notice on the state open meeting law for that special meeting which discussed the town's new insurance coverage as of Jan. 1, 2013.
Experts have cited two different sides when interpreting the law.
Robert Freeman, executive director of the New York State Committee on Open Government, said local officials can't grant themselves waivers from state laws and there was nothing in the law that refers to or authorizes a waiver of notice.
On the other hand, he noted, the Attorney General and the Comptroller have said a meeting can be held on less than two days written notice of the members of a town board as long as "all of the members had actual notice, attended and participated. If that is so, the members may waive the two day written notice requirement."
Yorktown Councilman Nick Bianco said all of the board members unanimously agreed to waive the notice and they had consented to attend the meeting and were present.
"I didn't see a problem," he said.
According to Freeman:
I believe that a town board must in all instances comply with the notice requirements found in the Open Meetings Law, for those requirements are separate and distinct from that found in the Town Law. Further, because there is no reference to the ability to waive notice included in §62 of the Town Law, with due respect to the Attorney General and the Comptroller, it is questionable in my view whether a court would reach the same conclusion as they did in consideration of the clear and unequivocal language that statute.
Freeman said if a meeting is scheduled less than a week in advance, notice of the time and place must be given to the news media and posted prior to the meeting.
According to the Town Law, Section 62, the town supervisor can call for a special meeting by giving at least two days notice in writing to members of the board of the time when and the place where the meeting would be held.
Public notice of this meeting was given 15 minutes before the meeting convened. The supervisor's office sent out an email at about 12:15 p.m. to Patch and other members of the press about the Dec. 29, 2012 special meeting to be held at Town Hall at 12:30 p.m.
The reasons for the meeting, according to the notice, were to "address certain matters that have to be taken up by year’s end including but not limited to insurance coverage, vacation carry-overs and deputy town comptroller stipend." The town's insurance coverage expired on Dec. 31, 2012.
According to Section 104 of the Open Meetings Law:
1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before such meeting.
2. Public notice of the time and place of every other meeting shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.
3. The public notice provided for by this section shall not be construed to require publication as a legal notice.
4. If videoconferencing is used to conduct a meeting, the 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.
5. 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.
(Read more about the Dec. 29, 2012 meeting in former Supervisor Susan Siegel's blog post on Patch here.)
"Although the Open Meetings Law does not make reference to 'special' or 'emergency' meetings, if, for example, there is a need to convene quickly, the notice requirements can generally be met by telephoning or faxing notice of the time and place of a meeting to the local news media and by posting notice in one or more designated locations," Freeman wrote to Patch.
"In my opinion, the requirements imposed by the Open Meetings Law, which involve notice to the news media and to the public by means of posting, can never be waived," he said.