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Friday, October 28, 2016

Guidelines used to determine if an entity is a “public body that is performing a governmental function” for the purposes of the Open Meetings Law

Guidelines used to determine if an entity is a “public body that is performing a governmental function” for the purposes of the Open Meetings Law
Thomas, et al. v New York City Dept. of Educ., 2016 NY Slip Op 06989, Appellate Division, First Department

The New York City Department of Education [DOE] appealed an order and judgment handed down by Supreme Court, New York County, granting a petition filed by Michael P. Thomas [Thomas] seeking a determination that DOE violated the Open Meetings Law by denying the general public, including Thomas, access to meetings of a New York City public schools School Leadership Team [SLT].

The State’s Education Law requires each New York City public school to have a “school-based management team” [SBMT]. DOE implemented this mandate by establishing SLTs in every school. SLTs have from 10 and 17 members, made up of school parents, teachers, staff, and administrators, and may also include “representatives of Community Based Organizations.” SLTs must meet at least once a month “at a time that is convenient for the parent representatives” and notice of the meeting must be provided in a manner “consistent with the open meetings law.” Its basic mission is to help formulate “school-based educational policies” and ensure that “resources are aligned to implement those policies.”

Thomas, a retired DOE mathematics teacher, asked for permission to attend a meeting of the SLT. Ultimately his request was denied on the ground that although the SLT Bylaws permits “school community members to attend its meetings,” Thomas was “not a member of the school community.” Thomas, wishing to “challenge that policy in court” decided that he needed to be “denied entrance onsite” in order to “have standing.” He attempted to gain entrance to a meeting of a SLT and on presenting himself to security at a DOE school for this purpose, was denied admittance to the SLT meeting.

Thomas contended that the SLT was a “public body” and its refusal to permit him to attend the meeting violated the Open Meetings Law. Supreme Court granted the petition finding that “SLT meetings entail a public body performing governmental functions,” and are thus “subject to the Open Meetings Law.” DOE appealed.

The Appellate Division agreed with Supreme Court’s ruling and sustained its granting Thomas’ petition. The court held that DOE violated the Open Meetings Law by denying the general public, i.e., Thomas, access to a meeting of a New York City public school's SLT. Citing Perez v City Univ. of N.Y., 5 NY3d 522, the Appellate Division said that in enacting the State’s Open Meetings Law, “the Legislature sought to ensure that public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy.”

In the words of the Appellate Division, the Open Meetings Law provides that “[e]very meeting of a public body shall be open to the general public.” As to the meaning of the term “public body” it is defined in the law as “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.” In addition, the term “meeting” is defined or described as “the official convening of a public body for the purpose of conducting public business.”

In Smith v The City University of New York, 92 NY2d 707, the court said “… a formally chartered entity with officially delegated duties and organizational attributes of a substantive nature . . . should be deemed a public body that is performing a governmental function.” In contrast, in Jae v Board of Education of Pelham Union Free School District, 22 AD3d 581 [leave to appeal denied, 6 NY3d 714 ] the court held that an entity which is “advisory in nature” and “d[oes] not perform governmental functions” will not be deemed to be a “public body” for purposes of the Open Meetings Law.

The Appellate Division rejected DOE’s argument that the SLTs do not perform “governmental functions” characteristic of public bodies under the Open Meetings Law, but rather merely “serve a collaborative, advisory function.” The court explained that “[i]t cannot be disputed that SLTs are established pursuant to state law and are a part of DOE's “governance structure.” The court further opined that it cannot be disputed that SLTs have decision making authority to set educational and academic goals for a school through the CEP, and indicated that “[t]he notion that SLTs merely serve an advisory role is not supported by the regulatory history.”

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