HomeMy WebLinkAboutOpen Meetings Law and Ethical Issues
BOARD MEMBERS Town Hall Annex, Capital One Building
54375 Route 25 at Youngs Road
Leslie Kanes Weisman, Chairperson y~aa P.O. Box 1179
James Dinizio Jr. si Southold, New York 11971-0959
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Gerard P. Goehrin Telephone (631) 765-1809
ger Fax (631) 765-9064
George Homing
http://southoldtown.northfork.net
Ken Schneider ' uQ(~',+,;7>
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ZONING BOARD OF APPEALS
GUIDELINES TO OPEN MEETINGS LAW AND ETHICAL ISSUES
1. What is an Open Meeting?
A meeting that is subject to the Open Meetings Law is "the official convening of
a public body for the purpose of conducting public business." See, Public
Officers Law § 102(1). A "public body" is "any public 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"
The Open Meetings Law applies to all official meetings of the Zoning Board of
Appeals unless the meeting qualifies as an executive session. Anytime the ZBA
gathers for the purpose of conducting public business, the meeting must be
convened open to the public, regardless of whether the ZBA takes action. The
Open Meetings Law does not apply to social gatherings or chance meetings, even
where some item of public business may be mentioned in passing. It also does
not apply whenever less than a quorum of the members of the ZBA get together,
since no substantive public business may be done under those circumstances.
2. Who May Participate?
An open meeting simply requires that notice be given to the general public
and media so that they can attend, observe and listen as the public body
conducts public business. Thus, at the ZBA's special meetings and work
sessions, the public is not required to be given the opportunity to participate.
However, when the ZBA is conducting a public hearing, it must permit the public
the opportunity to speak on the particular application that is before the Board.
3. Executive Session
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An executive session is a portion of an open meeting where the public is
excluded. Executive session is permitted in very limited circumstances set forth
in the Open Meetings Law § 105, if the matters to be discussed are as follows:
• Will imperil public safety if disclosed;
• May disclose the identity of a law enforcement agent or informer;
• Relate to current or future investigation or prosecution of a criminal offense
which would imperil effective law enforcement if disclosed;
• Regard proposed, pending or current litigation;
• Regard collective negotiations pursuant to Article 14 of the Civil Service
Law;
• Involve medical, financial, credit or employment history of a particular person
or corporation, or matters leading to the appointment, employment,
promotion, demotion, discipline, suspension, dismissal, or removal of a
particular person or corporation;
• Pertain to the preparation, grading or administration of examination; and
• Relate to the proposed acquisition, sale, or release of real property, or the
proposed acquisition, sale or exchange of securities held by a public body, but
only when publicity would substantially affect the value thereof.
Additionally, it is well settled that the Board is permitted to convene an executive
session for the purpose of obtaining legal advice from counsel. See, Shiblev v.
Miller, 212 A.D.2d 799, 623 N.Y.S.2d 283 (2d Dept. 1995). Procedurally, a
motion must be made to go into executive session for a specific purpose and a
majority vote of the membership present at the meeting must vote in favor of
convening in executive session. Should the ZBA take official action during an
executive session, it must record or summarize the action and the date and vote
therein in its minutes. If no official action is taken, no minutes are required.
4. Ethical issues involved with and/or violations of the Open Meetings Law
To avoid the "appearance of impropriety" and violations of the Open Meetings
Law, the following guidelines should be followed:
• The merits and substance of applications should not be discussed
(including email communications) between board members when a
quorum (three members) or more of the members are participating.
• Board members should not communicate, in any manner, with an
applicant, an applicant's agent, consultants, neighbors, opponents, other
officials and/or any other member of the public regarding the merits and
substance of an application. If any of the above do communicate with a
board member, the board member should recommend that the person write
a letter to the ZBA and/or appear at the public hearing.
• If Board members are attending site inspections together, any
conversations/discussions should be limited to information gathering and
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there should be no discussion of the merits and substance of the particular
application. If more than three members are attending a site inspection at
the same time, a quorum will be present and the inspection will have to be
noticed as a meeting and the rules of the Open Meetings Law will apply.
Given the difficulties involved with having a public meeting on private
property, this practice is highly discouraged.
5. Recusal
If a Zoning Board member intends to recuse him or herself from consideration of
any matter before the Board, either to prevent any perceptions of impropriety or to
avoid a conflict of interest based upon a financial and/or personal relationship
with any individual appearing before or applying to the Board, he or she should
not discuss the merits of the matter with any other Board member.
This policy was duly adopted by unanimous vote of the Zoning Board ofAppeals of the
Town of Southold on March 25, 2010 and re-adopted with no changes in January 2011,
2012 and 2013
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