HomeMy WebLinkAboutNYCOM Handbook - Legal Requirements and Best Practices for Taking Minutes.PDFPage 1 of2
From: Beatrice Szekely Ibeatrice@twcny.rr.com]
Sent: Saturday, April 18,2009 12'.48PM
To: Norma Manning, VCiH-Trustees
Cc: Randall B. Marcus; Kristin Gutenberger; Beatrice Szekely
Subject: Re: Minutes
Dear Norma
cc: Jim Gilmore, Trustees, Randy Marcus and Kristin Gutenberger
Thanks very much for talking with me yesterday about your Board meeting minutes; let me begin by re-stating my
respect for your position as Villarge Clerk with responsi6ility for taking them. And thank you lo1 the copy of the
NybOM "Legal Requirements and Best Practices for Taking Minutes" from a September 2007 training school
which I've found very helPful.
Reviewing the NyCOM Handbook for Village Officials (page 9) along with your April 14 comments below, the only
requiremints of minutes, other than the formalities of attendance and call to order, are "a summary of all
motions, proposals, resolutions, and any other matters voted upon, and the actual votes." (bolding is mine) In
otherwords,'you do not need tq includewho said what in any discussion leading to votes, unless "a majority of
the the Board resolves" to have you do so (page 6). I didn't bsk you yesterday if a prior VOCH Board has asked
you by resolution to provide a re'cord of discuslions in the minutes. ls that the case? The checklist on page 18 of
ine ZOOI training school materigl notes that for all votes taken you only need record a sufficient description of the
matter on which a vote is taken.
Such summary minutes are an option that would leave each trustee the opportunity to iake his/her own notes on
wtrat was saidby whom in discussion. Were we to have recordings of the entire proceedings of the meetings for
reference, they could provide the verbatim documentation for'who said what when.'
This seems to me a simple solution to the problem of various members of the Board having different
interpretationsoftheproceedingsand,therefore,ofwhatshouldbeintheminutes. ltismyunderstandingtodate
that maintaining the practice of -your taking full minutes of discussions legally requires us to vote on each
substantive chJnge, which is tirne consuming and, in my opinion, not a good use of Board time'
with appreciation,
Bea
1B April2009
--- Original Message ----
From: Nqme l4autng.
To: VCH-Trustees
Gc: Randall B, Marc,us ; Kristin GutenbeJgel
Sent: TuesdaY, APril 14,20C19 6:02 PM
Subject: Minutes
Dear Trustees - With the start of a new fiscal year for the Village and with new board members
now having attended their first meetings, I have had a number of comments about the 3 sets of
minutes anO ttrint< it would be helpful for me to articulate my feelings about the minutes'
These minutes took a good deal of time for me to write, and are based on my memory and my
0412012009
Page2 of2
written notes. I always strive to put down the content of discussions and the correct wording of
resolutions. My words are not always your words, nor should they be. They are my minutes.
They are not intended, nor are they required to be, word for word documentation of what was
said. Quoting NYCOM,
"Minutes are not required to be and should nol be a-v,-e-rbatiu acc-o-unt d the
meeting. Nor should the minutes include a reference to each comment made during the
meeting. However, the public body may require that an audio or video tape be made of
its meetings to insure accuracy and to resolve any disputes. Furthermore, the public
body may, by a majority vote of its membership, require that a specific statement, text
of a resolution or asreement. etc.. be included verbatim in the minutes.
There is no State stafutory requirement that the municipal clerk record the remarks of an
individual made during an open meeting or an executive session merely because the
speaker so requests. Without a resolution or board directive requiring the clerk to
include more inforrnation in the minutes, a trustee or council member may not cannot
require the clerk to correct or amend the minutes to include any more detailed
information. Boards and councils interested in expanding the scope of what is included
in the minutes should amend their rules of procedure to outline the clerk's additional
responsibilities. ""--*--"...-
I am sure all of you are able to write your own minutes which would sound different from mine,
yet the content would end up being the same.
To that end, I am hoping Vou understand and honor my request that only feedback that entails a
substantive change in content, not in style, be submitted to me.
Many thanks,
Norma
0412012009
Dear Trustees - With the start of a new fiscal year for the Village and with new board
members now having attended their first meetings, I have had a number of comments
about the minutes and think it would be helpful to review the requirements for reporting
on the proceedings at Village Board and Planning Board meetings.
My past practice has been to follow the advice provided to local officials by the New
York State Conference of Mayors and Municipal Offrcials Q'{YCOM) and prepare a
record of the actions taken at a meeting and, where appropriate, to set out the information
necessary to show compliance with legal requirements (publication of notices, etc.).
I spoke with Kristin (iutenberger and she was kind enough to obtain specific information
from NYCOM from their fall training school for local officials, Their advice is generally
based on the requirements of the NYS Village Law and Public Officers Law.
Specifically, NYCOM advises as follows for regular and special meetings:
The State's Open Meetings Law requires minutes to include an accurate
and complete record or summary of all
1) Motions,
2) Proposals,
3) Resolutions, and
4) Any other matter
formally voted upon by the board as well as the actual vote of each
member of the public body. A copy of any resolution or local law acted
on should be appended to the minutes.
While not expressly required by the Open Meetings Law, it is implied that
minutes musf begin by noting the time, date, and location of the meeting
and which members of the public body are present. While the minutes
must reflect which of the public body's members are present, there is no
requirement to identify all of the individuals present'
Minu nd sho bea tm accou
"f th. -*ttEg, Nor should the minutes include a reference to each
comm"nt *ade during the meeting. However, the public body may
require that an audio or video tape be made of its meetings to insure
u..rrru.y anclto resolve any disputes. Furthermore, the public body may,
by a majority vote of its membership, require that a specific statement, text
oiu t"tolntion or agreement, etc., be included verbatim in the minutes'
There is no litate statutory requirement that the municipal clerk record the
remarks of an individual made during an open meeting or an executive
session mererly because the speaker so requests. Without a resolution or
board directive requiring the clerk to include more information in the
minutes, a trustee or council member may not cannot require the clerk to
coffect or amend the minutes to include any more detailed information.
Boards and councils interested in expanding the scope of what is included
in the minutes should amend their rules of procedure to outline the clerk's
additional responsibilities.
There are slightly different rules for Executive Sessions called within meetings. For
those, NYCOM says:
As a general rule, a public body may take action during a properly
convened executive session. Pursuant to Public Officers Law Section
106(2), if action is taken during an executive session, the executive
session minutes must reflect the action, the date, and the vote must be
recorded in m.inutes. If no action is taken, there is no requirement that
minutes of the executive session be prepared.
Executive session minutes must consist of
1) a record or summary of the final determination of the action, and
2) the date and vote thereon.
The summary is not required to include any matter which is not required
to be made public by the Freedom of Information Law'
Note that executive sessions minutes do not need to include information
thatmay be vyithheld under the Freedom of Information Law. When a
public body rnakes a final determination during an executive session, that
determination will, in most instances, be public.
For example, although a discussion to hire or fire a particular employee
could clearly be discussed during an executive session, a determination to
hire or fire that person would be recorded in the executive session minutes
and would be available to the public under the Freedom of Information
Law. On other hand, if a public body votes to initiate a disciplinary
proceeding against a public employee, minutes reflective of its action
would not have to refer to or identify the person that is the subject of the
proceeding because Freedom of Information Law section 87(2Xb)
authorizes an agency to withhold records to the extent that disclosure
would result in an unwarranted personal privacy'
Note that numerous State and federal statutes prohibit municipalities from
disclosing certain information. Clerks should take care to not include in
the minutes any information which may not be disclosed pursuant to State
or federal law.
Finally, there are a number of statutes that have specific requirements for items to be
included in the minutes (for example, Village Law Section 5-508 requires that the
minutes of the board of trustees meeting for adopting the village budget must contain
"statement of the basis for any increase in or addition to any statement of estimated
revenues").
The Mayor and tho Board review the minutes and approve them at each meeting. I hope
that the above information provides you all with some helpful guidelines as to what the
minutes are required to and should include.
Please let me know if you have any questions concerning these matters.
New York State Conference of Mayors and Municipal officials
The Legal Requirements
and
Best Practices for Taking Minutes
NYCOM's 2007 Fall Training School
Wednesday, September 19, 2007
Presented by
Wade Beltramo
NYCOM Counsel
Wade Beltramo
Wade Beltramo is Deputy General Counsel to the New York State Conference of
Mayors and Municipal Officials (NYCOM), a voluntary membership association
which represents villages and cities in the State of New York. As NYCOM Deputy
General Counsel, he is responsible for general municipal legal matters as well as
building code, property maintenance, justice court, parking and traffic regulations,
and economic development issues. He has been with NYCOM since April IOOZ.
Mr. Beltramo joined NYCOM after serving as Assistant Corporation Counsel in the
New York City Law Department, where he litigated both civil and criminal cases on
behalf of the City's Department of Buildings, Department of Health, Taxi and
Limousine Commission, Department of Environmental Protection, and Fire and
Police Departments. Prior to working for New York City's Corporation Counsel, he
was an analyst in the New York City Mayor's Office of Operations.
Mr. Beltramo graduated from Grinnell College, with a Bachelor of Arts degree in
Political Science. He received his Juris Doctorate from Brooklyn Law School. Mr.
Beltramo is a member of the New York State and American Bar Associations and is
admitted to practice in the New York State Courts as well as the Southern and
Eastern Federal District Courts.
I.
Table of Contents
What Are Minutes & Why Are They Important? ................5
Legal Considerations When Taking Minutes ......................5
A. Who is responsible for taking minutes? .......................5
B. When must minutes be taken?................ ......................5
1. Meetings of Public Bodies ..................5
2. Public Hearings .................6
a. Why are Public Hearings Required? ..............6
b. Public Hearings Compared to "Meetings"............ ...........6
c. May Restrictions be Placed on Public Comment? ...........6
d. Must a Quorum of the Public Body be Present at a Public Hearing? ..................6
e. May a Member of the Public Body Who Is Absent from a Public Hearing Nevertheless
Vote on the Matter that was the Subject of the Hearing? ..................7
f. Must Oral Comments Made at a Public Hearing be Recorded?............. .............7
g. Must Members of the Public Body Answer Questions at the Public Hearing? .,...................1
C. Are minutes required to be taken for executive sessions?................ ................7
D. What information is required by law to be included in the minutes?... ,...........8
1. Regular Meetings ..............8
2. Executive Sessions ............8
3. Other Requirements............. ................9
a. Public Hearings on Villages' Proposed Local Laws......... .................9
b. Adoption of the Village Budget ,....................9
c. Dedication of Village Streets .......9
d. Village Zonrnglaws......... ..,........9
e. Meetings on Establishing Water Rents ..........9
f. Village ZBA and Planning Board Procedures .................9
E. Recording votes . .. . .. . .. . ..... ....... 1 0
1. An Overview.............. .....10
2. Tie Votes .......10
3. Examples of Re:cording Votes ...........11
F. Do notes taken to aid in drafting minutes constitute minutes themselves?................ ......I2
G. By when must the rninutes be prepared?................ ......................I2
II.
H. Must minutes be taken at public hearings? .......,..,,.,..12
I. Where should the mimrtes be kept?.. ........13
III. Practical Considerations When Taking Minutes ...............13
A. Use an agenda...... ...,...............13
B. Use standard write-ups and fill in the blanks. ...,........14
c. Get information to board members in advance of meetings. .............. ...........r4
D. Review prior year's meetings... ................14
E. Should the municipality provide a subscription service to receive the minutes?...............................15
IV. Frequently Asked Questions.. ........15
A. Do minutes have to reflect if a member abstains from voting?................ ......15
B. Can the minutes be arnended to include statements that were not made at the meeting but that a
member of the public body wishes to have included?.. ................15
C' Are the public body's zLctions invalidated if the minutes are not prepared on time? ....... 15
D' May atape recorder be used to aid in preparing minutes of the meeting?... ....................15
E. How can minutes be arnended after the meeting? . .. .. .. .. . .... . . .. .. .... 1 5
F. As a quasi-judicial body, must minutes be taken of zBAmeetings?. ............16
G. Should the minutes of )ZBA meetings be verbatim?................ .....16
H. May someone other tharn the clerk take minutes at a public meeting?... ........16
L Do minutes have be taken at work sessions? .............16
J. How should the minutes describe the motion for entering into an executive session when the
purpose of the executive session is to discuss a particular employee? .. .. . .. ... .. . .. .. ... .. ... .. . 1 6
Appendix - Minutes Checklist ..............19
I. Wul.r ARn MrNulns & Wny Ann Tnny Ivrponraxr?
Minutes are the official written record of the proceedings of and actions tat en by a public body. Minutes are
an account of where the meeting was held, who was present, and what happened. New York State law
imposes limited requirements on what must be included in the minutes. nespite these minimal requirements,
there are many reasons to include information above and beyond what is required by law.
For a village board of trustees and a city council, minutes are the official record of the bodies, actions,
including but by no means limited to the adoption of local laws, autho rization to enter into contracts and topay claims, establishment of policies and procedure for the local legislative body and for the municipality as
a whole, and general administration of municipal business. Frequently, the only official documentation of
municipal action or authorization is the minutes. In fact, litigation involving municipal action may require a
certified copy of the minutes to be filed with the court as proof of the municlpal action. Enough information
should be included in the minutes to give readers an understanding of what happened and w!y. However,
minutes should not be a verbatim account of the meeting. Verbatim transcripis are generally difficult to
read and comprehend and thus consequently of very little value for day-to-day use. Minutes should be
concise so that they can be easily read and understood.
II.LncaL CoNSIDERATIoNS WHEN TA NG MINUTES
A. Who is responsible for taking minutes?
The clerk of a board is responsible for recording the minutes of a meeting. In villages, the village clerk is the
clerk of the board of trustees. In addition, the village clerk is also the clerk of every other board of village
officers unless a separate clerk is designated. Even if separate clerks are used for the other village boards,
the village clerk remains responsible for records of those meetings.l Cities must look to their Charters to
determine the clerk for the each of the various city boards.
Under Village Law, the clerk is responsible for keeping records of the proceedings of the village board and
making these records availatrle to the public.' The mayor is the chief executive officer of a village and is
responsible for "exercisfing] supervision over the conduct of the police and other subordinate officers of the
vi11age."3 Moreovet, tne vlitage clerk performs his or her duties "subject to the direction and control of the
mayor."* Thus, the mayor, not the board nor individual trustees, has the power to supervise the day-to-day
activities of the clerk. Accordingly, a village trustee may not direct the village clerk to take, publish, and
make available to the public minutes of the meetings of the board of trustees.5
B. When must minutes be taken?
1. Meetings of Public Bodies
Minutes must be taken at all. open meetings of a public body when that body acts on a motion, proposal,
resolution, or any other matter upon which votes are taken. A public body is
1. any entity for which a quorum is required in order to conduct public business,
2. which consists of two or more members, and
3. which performs a governmental function for
a) the state,
b) a state agency,
c) a state department,
d) acounty,
e) a city,
f) a town,
g) a village,
h) a school district,
i) a district corporation,j) a public benefit corporation, or
k) a committee or subcommittee or other
similar body of a public body.6
The village board of trustees, the planning board, and the zoning board of appeals are all public bodies.
Cities and villages may have other bodies that qualify as "public bodies." Workshops and work sessions of a
bod within ins of ings Law. However, if a public body does
not vote on a motion, proposal, resolution, or any other matter, then minutes do not need to b" pr"puted.t
2. Public Hearings
Many statutes require the holding of a public hearing before a public body may take a specific action.
Perhaps the most well-known public hearing requirement is for enacting local laws.8 Th.re'are, however,many other instances when public hearings must be held including, bui not.tlmited to: during ihe village
bydgPrt ptocess,n establishing reserve furids,r0 granting a v,illage"franchise.ri ,i"p,i"gl^*ilp*nensiveplan,'' changing an official ffiap,l3 reviewing site plans,'o and approving ,p.iiul -ur. p.*oiirlt unjsubdivision proposals.'o Despite the myriad requirements to hold u p"Uti" hearing, there is practically no
statutory guidance and very little case law as to what a public hearing is or how to conduct on". Mor.o,r"r,
while there are many statutory references to public hearings, each reference must be read and interpreted
individually to determine if there are special requirements for noticing and conducting that particular public
hearins.''
a. Why are Public Hearings Required?
When attempting to divine the requirements for conducting public hearings, it is necessary to consider the
two most important reasons for requiring public hearings:
A. To insure that the public body or agency charged with taking action on a particular issue is fully
aware of the public's sentiment about the proposed action andB' To give the public an opportunity to voice their concerns, opposition, or support for the proposed
action and to bolster the public's confidence in the public body's decision.
To that end, public hearing requirements have frequently been interpreted to mean that the public must be
given a "meaningful opportunity" to be heard. It is with these two overriding justifications in mind that
public hearings must be addressed.
b. Public Hearings Compared to "Meetings"
Pursuant to the Public Officers^Law, a meeting is the convening of a quorum of a public body for the
pulpose of conducting business.l8 A public hearing is a meeting oflhe pubiic body, at which the public must
be allowed to comment on the matter that is the subject of the public hearing. This comment requirement
differs from regular meetings of public bodies. Pursuant to the Open Meetings Law, the public must be
allowed to attend "meetings" of public bodies but has no right to speak or comment at such "meetings,"
although the public body may allow the public to speak at its meetings.le
c. Malz Restrictions be Placed on Public Comment?
Anyone who wishes to speak at the public hearing must be given the opportunity to speak. However, there
are several restrictions that the public body may place upon participation at the public hearing. The public
body may, and generally shoulcl, limit comments to the topic of the public hearing. In addition, if a large
number of individuals appear at the public hearing requesting to speak, the public body may impose
reasonable time limits. What constitutes "reasonable" will depend on a variety of circumstances, including
howmany individuals appearto speak and the nature of the matter that is the subject of the hearing. Note
that any restrictions imposed must be applied equitably and may not discriminate based upon residency.
d.m of the Publi Present at a Publi
As a general rule, statutes that require public hearings are silent on the issue of whether a quorum of the
public body must be present at the public hearing. This statutory silence has led to some confusion and
6
divergent case law on this question. However, unless special circumstances apply, a quorum of a public
body must be present at the public hearing for it to be valid.2O
r of the I'ublic Is Absent from a Public Hea ess Vote on the
Matter that was the Subject of the Hearing?
It will frequently occur that one or more members of the public body are unable to attend a public hearing.
Members who are absent from public hearings, may nevefiheless vote on the matter that was the subject of
the hearing. However, the members should review the comments and fully inform themselves about the
subject matter before acting on the matter.
f.M ts MeLde
For "meetings" of public bodies (as opposed to "public hearings"), state law requires only that actions of a
public body be recorded in the minutes of the body's meetings.2l Once again, however, statute and case law
are silent on the issue of whether oral comments made at a public hearing must be recorded.22 Clearly,
public comments, oral or written, are not actions of the pullic body. Mor"ou"r, some public hearing
requirements specifically require the hearing to be recorded.23 Consequently, absent a specific statutory
requirement, comments made at a public hearing are not required to be recorded. Thus, if i member of the
public wishes to have their c<lmment memoriahzed in writing, they should submit it in writing.
Note however, that if a member of the public body is not present at the public hearing but still desires to act
on the matter that was the subject of the hearing, the comments should be recorded so that member may
review the comments. Unless specifically set forth in state law, the form of the recording must be
reasonable. For example, reoording a summary of the comments in the minutes of the public hearing would
be sufficient. Alternately, the public hearing could be recorded, via either audio or video media.
As previously mentioned, there may be specific statutory provisions that impose requirements to record the
comments made at a public hearing. For example, the Eminent Domain Procedure Law $ 203 requires a
record of hearings on proposied condemnations, including comments, to be kept. There is no requirement,
however, to create a verbatinL transcript of the hearing.
Note also that quasi-judicial hearings that are subject to Article 78 review, such as appeals to aZonrngBoard
of Appeals, must be recorded either by a stenographer or using audio or video tape so that, if necessary, a
certified transcript of the healing may be made.2a
f the Public Bod ons at the Public Hearinp?
Unless specifically required by statute, members of a public body do not have to answer questions or give
analysis at a public hearing, although they may do so.
C. Are minutes required to be taken for executive sessions?
An executive session is that portion of an open meeting that is not open to the general public.2s A public
body may only enter into an executive session for one of the purposes listed in Public Officers Law $ 105.
Minutes must be taken for executive sessions only if the public body takes a formal vote when in the
executive session. If the public body does not formally vote on amatter, then minutes are not required to be
taken.
Note that even if no action is taken in an executive session, the minutes of the open meeting from which the
executive session is entered into must reflect the vote on the motion to enter into executive session. The
minutes of the open meeting must include the motion to enter into executive, the particular provision of
ob'
Public Officers Law $^i05 which authorizes entry into executive session, and how each member cast his or
her vote on the matter.'o
D. What information is required by law to be included in the minutes?
1. Regular Meetings
The State's Open Meetings Law requires minutes to include an accurate and complete record or summary of
all
1) Motions,
2) Proposals,
3) Resolutions, and
4) Any other matter
formally voted upon by the board as well as the actual vote of each member of the public body.27 A copy of
any resolution or local law acted on should be appended to the minutes.
While not expressly required by the Open Meetings Law, it is implied that minutes must begin by noting the
time, date, and location of the meeting and which members of the public body are present.2s While the
minutes must reflect which of the public body's members are present, there is no requirement to identify all
of the individuals present."
Minutes are not required to be and should not be a verbatim account of the meeting. Nor should the
minutes include a reference to each comment made during the meeting. However, the public body may
require that an audio or video lape be made of its meetings to insure accuracy and to resolve any disputes.
Furthermore, the public body rnay, by a majority vote of its membership, require that a specific statement,
text of a resolution or agreement, etc., be included verbatim in the minutes.30
There is no State statutory requirement that the municipal clerk record the remarks of an individual made
during an open meeting or an executive session merely because the speaker so requests.3l Without a
resolution or board directive requiring the clerk to include more information in the minutes, a trustee or
council membellffis cannot require the clerk to correct or amend the minutes to include any more
detailed information." Boards and councils interested in expanding the scope of what is included in the
minutes should amend their rules of procedure to outline the clerk's additional responsibilities.
2. Executive Sessions
As a general rule, a public bod'y may take action during a properly convened executive session.33 Pursuant
to Public Officers Law $T06(2), if action is taken during an executive session, the executive session minutes
must reflect the action, the date, and the vote must be recorded in minutes. If no action is taken, there is no
requirement that minutes of the executive session be prepared.
Executive session minutes must consist of
1) a record or summary of the final determination of the action, and
2) the date and vote thereon.
The summary is not required to include any matter which is not required to be made public by the Freedom
of Information Law.3a
Note that executive sessions rrLinutes do not need to include information that may be withheld under the
Freedom of Information Law. When a public body makes a final determination during an executive session,
that determination will, in most instances, be public.
8
For example, altho-ugh a discussion to hire or fire a particular employee could clearly be discussed during an
executive session,3s a deterrnination to hire or fire that person would be recorded in the executive session
minutes and would be available to the public under the Freedom of Information Law. On other hand, if a
public body votes to initiate a disciplinary proceeding against a public employee, minutes reflective of its
action would not have to refi:r to or identify the person that is the subject of the proceeding because Freedom
of Information Law $ 87(2Xb) authorizes^an agency to withhold records to the extent that disclosure would
result in an unwarranted personal privacy.'o
Note that numerous State and federal statutes prohibit municipalities from disclosing certain information.
Clerks should take care to not include in the minutes any information which may not be disclosed pursuanr
to State or federal law.
3. Other Requirements
There are several other statutory provisions that require specific actions and information to be recorded
minutes.
a. Public Hearings on Villaqes' Propglecl Local Laws
Village Law $ 21-2102 requires minutes to be taken at public hearings on villages' proposed local laws.
However, the law is silent as to what information must be recorded in the minutes. The minutes, along with
any written objections to the proposed local law must be with the village clerk within five days of the board
of trustees rendering its decision."
b. Adoption of the Village Iludget
Village Law $ 5-508 requires that the minutes of the board of trustees meeting for adopting the village
budget must contain "a staterment of the basis for any increase in or addition to any statement of estimated
revenues."
c. Dedication of Village Streets
Village Law $ 6-610 requires that "[a]ll offers of dedication must be entered at length in the minutes of the
board of trustees."
d. Village Zoning Laws
Every zoning law and amendment must be entered in the minutes of the village board of trustees. The
minutes must describe and re:fer to any map adopted in connection with a zoning law or amendment.3s
e. Meetings on Establishing, Water Rents
Boards of water commissioners are required to certify to the village clerk the amounts of all unpaid water
rents. The village clerk must present that certification to the board of trustees and enter an abstract of the
certification in the minutes of the board of trustee's meeting.3e
f. Village ZBA and Plannirag Board Procedures
Village and City ZBAs must keep minutes of their proceedings, showing each member's vote on every
question."' Note that this provision is duplicative of the requirement to take minutes of meetings of every
public body as required by the Open Meetings Law. In addition, if the ZBA or Planning Board chairperson
designates an alternate member to substitute for a member who is unable to participate because of a conflict
of interest on an application or matter before the board the designation must be entered into the minutes of
the initial ZBA meeting at rnhich the substitution is made.ar This provision also applies to city planning
boards.a2
E. Recording votes
1. An Overview
The vote of each member of the public body must be individually recorded in the meeting,s minutes. Notethat a member may not be compelled to vote. If a member abstains from voting, their Jbstention must benoted in the minutes' Moreover, a member of a public body is not required to give a reason for abstainingfrom voting. If a member is absent from the vote, their absence must be noted irTfr.-r"""i.;. ^"^
To determine whethgr a matter has Passed. the clerk must count the number of votes in favor of the matter.A majority of the fully constituted body must vote in favor of the -att., f* it to be approved. For example,villages with five member boards of trustees must have three votes in favor of the local law for it to beenacted' Villages with seven member boards must have four votes in favor of the local law for it to beenacted' Finally, if a member is absent from a meeting when a vote is taken, the member may notsubsequently submit his vote on the proposed local law.
2. Tie Votes
The question frequently arises whether abstentions and absences should be counted as ,.no,, votes fbr thepurposes of determining whether a tie vote exists. It must be noted that, although "no" votes must always berecorded in the minutes, the OlrlLY time "no" votes need to be counted is to determine if the trustees havedeadlocked in a tie vote, thereby requiring the mayor to vote and break the tie. For the purpose ofdetermining if a tie vote exists, abstentions and absences may not be counted as "no" votes. For example, iftwo trustees vote for a local law, one trustee votes against the local law, and the fourth trustee abstains, a tie
vote does not exist, and the mayor is not required to vote, although he may do so if he so chooses. Note that
the mayor never gets to vote twice. For example, if the mayor votes "yes," one trustee votes ,oyes,,, two
other trustees vote "no," and ther fourth trustee abstains, even though a tie vote exists, the mayor does not get
to vote again, and the matter does not pass.
10
3. Examples of Recording Votes
Example 1
Vote on Matter # 1
n Abstain
n Abstain n Absent
M Abstain
! Abstain
i Abstention
Matter #1 Fails
Example 2
Vote on Matter # 2
n Abstain
n Abstain n Absent
n Abstain
0 Abstain
Result:Matter # 2 Fails
Example 3
Vote on Matter # 3
[] Abstain
! Abstain
! Abstain
Vote Totals
Matter # 3 Passes
t1
F. Do notes taken to aid in drafting minutes constitute minutes themselves?
Notes of a meeting do not constitute the meeting's minutes but rather serve as a basis for preparing minutes.
Accordingly, the notes are not subject to the Open Meetings Law requirement that they be made available
within two weeks of the meeting. However, because notes constitute "records" as defined by Freedom of
Information Law (Public Officers Law $ 36(4)), they must be made available to the public, except to the
extent that records or portions thereof fall within one or more grounds for denying access as set forth in
Public Officers Law $ 87(2)(a) through (i).
Notes of a public meeting could be characterrzed as intra-agency materials, which are exempted from
FOIL's access requirements except to the extent that the intra-agency materials are
a. statistical or factual tabulations or data;
b. instructions to staff that affect the public; or
c. final agency policy or determinations.
To the extent that notes taken irt a meetin g are a factual rendition of what transpired at the meeting, they
must be made available under FOIL. Portions of the notes that are opinion, advice, recommendation, and the
like could be withheld.43
In addition, the State Comptrolner's Office has opined that, although tape recordings may be used to aid in
compiling minutes, they do not constitute the "official record" of a meeting.** However, like written notes,
tape recordings are subject to FOIL.
Note that pursuant to Records Retention Schedule MU- 1 , recordings of voice conversations, including
1. audio tape,
2. videotape,
3. stenotype,
4. a stenographer's notebook, and
5. verbatim minutes used to produce official minutes and hearing proceedings, repotls, or other records,
which are recordings of a public meeting of a governing body or board, committee, or commission thereof
must be retained lbr four months after the ,."otding is transcri6ed andlor minutes approved.a5
G. By when must the minutes be prepared?
pursuant to the Open Meetings Law, minuteJ of all-open meetings must be made available to the public no
later than two weiks from the <late of the meeting.a6 Minutes of executive sessions must be made available
to the public no later than one vieek from the date of the executive session.aT
there is no minutes ved bv the
@'.quentmeeting.However,pub1icbodiesmayrequirethec1erktosubmitthe
-i""t.r of the pt"".di.rg:o"91i"g to the public body for approval prior to making the minutes part of the
public body,s offrcial record.as If the public body requires minutes to be approved, any draft of the minutes
should be marked "unapprove d," "draft.," or 'onon-final" until they are formally approved by the public body
so that members of the public rvho obtain copies of the draft minutes know that those minutes are subject to
change.ae
H. Must minutes be taken at public hearings?
There are no state statutory requirements or guidance for conducting a public hearing. Howevet, while not
all meetings are public hearings, because^a quorum of the public body must be present to conduct a public
hearing, ai public hearings are meetingr.to Conrequently, minutes of public hearings must comply with the
T2
Open Meetings Law requirements. In addition, each public body's rules of procedure should include
guidance for the clerk with regard to minute-taking during a public hearing.
Moreover, if a public hearing is conducted as a condition precedent to the public body taking official action,
the public body's action may be subject to a legal challenge via an Arlicle 78 proceeding. Consequently, the
public body may be required to provide a certified transcript of the public hearing to the court. Accordingly,
each municipality should consult with its municipal attorney to determine when each of its public bodies
must transcribe its public hearings. Note that the transcript should not be used as the minutes for the
meeting.
I. Where should the minutes be kept?
While there is no express statutory requirement to have a "minute book," as a matter of necessity and proper
record keeping, the minutes of each public body should be kept in a "minute book" for that public body.
Minutes of a public body's open meetings and executive sessions should be kept in the same minutes book in
chronological order based upon the dates the meetings are held. The minute book is the basic record for the
public body and is the legislative record for a village board of trustees or a city council. It is the only
chronological record of the municipality's operation. Because the minute book is a permanent record with
significant historical and lega.l value, it must be legible, complete, and accurate. The minute book should not
be allowed to be taken out o.[ the control and possession of the records management officer. As part of the
municipality's risk management program, a copy of the minute book should be kept off-site and updated
regularly.
III. PR,q.crrcRI. CoxsrpnRArroNs WHBN TA.xrNc MrNurBs
Taking minutes can be a daunting task. However, implementing a few relatively simple internal procedures
can make the process more manageable.
A. Use an agenda
While there is no State statutory requirement that an agenda be prepared or provided to the members of the
public body public, it is a usr:ful tool not only for the clerk, but for the meeting participants. It is important
to note that because the statute requires that executive sessions may only be entered into after an affirmative
vote at an already convened meeting, an executive session can never be placed as an item on a agenda
distributed prior to the meeting.)' To do so presupposes the results of the vote on such a motion. It would
be proper, however, to place on an agenda "a motion to enter into a executive session."
In addition, each public body should use a standard agenda for every meeting. For example:
1) Call to order,
2) Attendance,
3) Reading of minutes,
4) Public hearings,
5) Reports of committee,
6) Old business,
7) New business,
8) Miscellaneous, ancl
9) Adjournment.
Use the same procedure at all meetings.
13
B. Use standard write-ups and fill in the blanks.
Use a blank attendance sheet and check off attendance. Include who, what, when, and where' If a member
of a public bod)' arrives after the meeting is commenced or departs prior to the meeting's conclusion. their
time of arrival or departure must be noted in the minutes.
Example Attendance Sheet
Attendance at the January 5,2006 Meeting of the
Villase of Lake Placid Iloard of Trustees
Mayor E Present E Absent
Trustee A I Present I Absent
Trustee B I Present B Absent
Trustee C E Present E Absent
Trustee D fl Present I Absent
Use preprinted motions, proposals, and resolutions with a
no votes, abstentions, and absences.
Example of a Vote Tally Sheet
list of names to check off for recording yes votes,
Have blank voting sheets for votes on unexpected items.
C. Get information to board members in advance of meetings.
Have a local policy which requires that information that is to be discussed at the board meeting by
distributed to the board members beforehand. For example, if a new building permit fee schedule is
proposed, distribute it to the board 24,48, or 72 hours prior to the meeting.
D. Review prior year's meetings
Look back to prior years' meetings for the same month and note what happened. Many items repeat
themselves annually - accounting, budgets, tax levies, organizational meeting. This can help to prepare for
many upcoming meetings.
I4
Vote on Matter
Mayor A E Yes trNo E Abstain E Absent
Trustee B D Yes trNo [] Abstain E Absent
Trustee C E Yes DNo D Abstain fl Absent
Trustee D E Yes trNo E Abstain E Absent
Trustee E E Yes trNo E Abstain E Absent
E. Should the municipality provide a subscription service to receive the minutes?
If a municipality receives regular FOIL requests for copies of the minutes from the public, it may wish to
consider implement a subscription service, whereby individuals may pay a fee to have the minutes mailed to
them once they are drafted. There are no general laws or Constitutional provisions that would preclude
adopting a local law establishing a subscription service for copies of the minutes of a board meetings.
Furlhermore, the Comptroller's Office has found that there is no indication, express or implied, that the State
Legislature intended to preclude the adoption of local laws in this area. Consequently, the Comptroller's
Office has opined that Municipal Home Rule Law $ 10(lxiixa)(9-a) authorizes municipalities to adopt a
local law imposing a flat fee for an annual subscription to copies of the minutes of its local bodies' meetings.
The amount of the fee must be reasonably related to the municipality's cost of reproducing and mailing the
minutes and cannot be used as a means of generating excess revenues that would be used for general
municipal purposes. Furthermore, providing a subscription service does not obviate the need to continue
responding to individual requests for copies of the minutes submitted pursuant to FOIL.s2
IV. FRneuBNrly Asxnn QunsrroNs
A. Do minutes have to reflect if a member abstains from voting?
Yes. For each vote of a public body, the action of each member of the public body must be recorded in the
minutes. If a member is absent, their absence must be noted. If a member abstains from voting, their
abstention must be noted.
B. Can the minutes be amended to include statements that were not made at the
meeting but that a member of the public body wishes to have included?
No. The minutes are to be an accurate record of what happened during the meeting. To include information
that was not in fact part of rthe meeting would be tantamount to creating a false record. If a member of a
public body approaches the clerk and requests that statements be included in the minutes of a meeting, the
clerk should suggest that the member of the body make the comments at the next meeting so that they may
be properly entered into the minutes.
C. Are the public body's actions invalidated if the minutes are not prepared on time?
No. There is no State statutory provision which invalidates a public body's actions if the minutes of the
meeting during which the actions were tqlen are not prepared and made available to the public within the
time required by the Open Meetings Law."
D. May a tape recorder be used to aid in preparing minutes of the meeting?
Because the clerk is responsible for keeping an accurate written record of the meetings, if he or she needs to
tape meetings to aid in fulfilling his or her minute-taking responsibilities, then it is within his or her
discretion to use a recordin5l device. As long as the taping does not disrupt the meeting, the public body
cannot legally preclude the clerk from taping the meeting. Note, however, that the clerk's tapes of the
meetings constitute public records and are subject to a FOIL request until disposed of pursuant to Records
Retention Schedule-Mul .s4
E. How can minutes be amended after the meeting?
There is no specific statutory process to amending the minutes of meetings. One way to amend minutes to
include some information is to have it added as part of the next meeting's minutes, with a reference back to
the original meeting. Make looard members aware that if they would like something outside the scope of the
Open Meetings Law requirernents in the minutes that they should make you aware of it when they say it.
15
F. As a quasi-judicial bodyo must minutes be taken of ZBA, meetings?
yes. A Zgn is a public body and therefore is subject to the Open Meetings I aw requirement that minutes
be taken. In addition, Village and City ZBAs must keep minutes of their proceedings, showing each
member's vote on every question.ss In viilages, the clerk is responsible for these minutes unless the office of
ZBA clerk has been created locally. Minutes of ZBA meetings must be retained permanently by the
municipality.
G. Should the minutes of ZBA meetings be verbatim?
The Open Meetings Law does not require that a verbatim transcript be made of ZBA meetings or any other
public meetings for that matter. However, a village bo-qd of trustees or a city council may require the ZBA
and/or planning board to tape lecord their meetings.56 If a ZBA determination is the subject of a legal
challenged in court via an Article 78 proceeding, the ZBA must supply to the court a transcript of the ZBA's
public iearing held as a result of the determination. Verbatim transcripts must also be made for any public
hearing.
H. May someone other than the clerk take minutes at a public meeting?
yes. Someone other than the clerk may take minutes at a public meeting. However, it is impodant to
remember that the clerk, and only the clerk, is responsible for the minutes. If the clerk is unable to attend a
meeting and the board has not provided otherwise, the clerk is responsible for making sure that minutes are
prop.rly taken at the meeting. Ihis can be accomplished by having a deputy clerk or other assistant attend
th" m""ting and record the minutes. The clerk must ensure that this person is properly instructed as to the
manner in wtricn the minutes are taken and what information needs to be included.
I. Do minutes have be taken at work sessions?
yes. Minutes must be taken at work sessions in the same manner as they would at an ordinary meeting of
the public body. It has been held that activities such as work sessions, agenda sessions, and informal
conferences are not excluded from the open Meetings Law and must be treated as any other public meeting
if a quorum of the public body is present'
J. IIow should the minutes describe the motion for entering into an executive session
when the purpose of the executive session is to discuss a particular employee?
One method of acJomplishing this without mentioning a specific person's name, yet still managing to
comply with appropriate minurcs requirements, is to state that it is a motion "to enter into executive session
to discuss a persollnel matter related to a specific individual." To merely state that the public body is
entering into executive session 1.o discuss a "personnel matter" is insufficient.
I6
V. Tnn Connvrnrnn ON OpnN GovnnxnnnNr
rneco'''*itt..on@sponsib1eforissuingadvisoryopinionstoagencies,thepub1icand
the news media, issuing regulations and reporting its observations and recommendations regarding the
operation of the Open Meetings Law to the Governor and the Legislature annually.
The Committee provides written and oral advice on questions arising under either the Freedom of
Information Law or the Open Meetings Law. In addition, the Committee mediates controversies in which
rights may be unclear. Municipal officers and employees needing advice regarding either the Freedom of
Information Law or the Open Meetings Law may, in addition to contacting NYCOM, contact the Committee
at:
Committee on Open (iovernment
NYS Department of State
41 State Street, Albany, NY 12231
(sr9) 474-2sr8
Fax (5 18) 474-1927
In addition, the Committee on Open Government maintains a very useful website,
www.dos.state.ny.us/coog/coogwww.html. Most of the Committee's publications are available online,
including Your Rieht to Know, FOIL FAQs, and Open Meetings Law FAQs, as well as the actual statutory
language of the Freedom of Information Law and the Open Meetings Law. Finally, the Committee's
Ad;isory Opinions are also available online, with the opinions listed alphabetically by key phrase' Thus, if
you havl a question about a specific issue, such as are building plans subject to FOIL or may member of the
public body vote by telephone, chances are that an advisory opinion has already been written on the subject
and is available online.
T]
tr
tr
f
tr
n
u
tr
n
Appendix -
Minutes Checklist
Public body's name is included in the minutes title, for example, "Minutes of the
September 22, 2005 Meeting of the Board of Trustees of the Village of Lake
Placid."
Date, Time, and Place of the meeting are included at the beginning of the minutes.
The names and positions of the members of the public body who are present at the
beginning of the meeting.
If a member of the public body arrives after the meeting begins or departs before
the meeting ends, do the minutes reflect the name of the member and the time they
arrived or departed?
If a motion was made, is the moving member identified?
If a second is required, is the member who seconded the motion identified?
If no one seconds the motiono is the motion recorded as failing for lack of a second?
If a vote is made on the motion, are each memberos votes recorded?
a. Is the outcome of the vote noted?
For all the votes that the public body took at the meeting, is matter on which they
were voting sufficiently described and is each member's vote recorded?
b. Should a written copy of the resolution, proposal, or local law be attached to
the minutes?
If the public body entered into executive session, was the motion to enter into
executive session recordedo including the reason given for entering into executive
session.
t] Was the motion closing the meeting recorded in the minutes?
18
Endnotes
' Village Law $$ 4-402(a), (b), & (c).
' Village Law $ 4-402(b) & (e)
' Village Law $ 4-400(l)(e).
o Village Law $ 4-402.
5 2005 N.Y, op. Atty. Gen. No. 1.
6 Public Officers Law $ 102(2).t otut-ao-:ts+.
8 Municipal Home Rule Law $ 20(5).
n Village Law $ 5-508(3;.
r0 General Municipal Law gg 6-d, (i-f, & 6-r.
t'Village Law $ 4-412(6).
t' Village Law g 7-722(6) & General City Law g 28-a.
t' Village Law $ 7-724 & General City Law g 29.
to Village Law $ 7-725-a(8) & General City Law g 27-a.
t' Village Law $ 7-725-b(6) & General City Law S 21-b..
tu Village Law $$ 1-728 & 7-738 & General City Law SS 32 &.37 .
r7 For example, the Eminent Domain Procedure Law $ 203 imposes numerous specific requirements.
tt Public officers Law g lo2.
re See Public Officers Law $ 100, which declares the imporlance of the public being able to "attend and listen" to meetings; see
also Committee on Open Government opinion OML-AO-3405.
20 Del Vecchio v. Lalla, 136 A.D.2d S20 (3d Dept 1988), aZBA's public hearing on an application for a special use permit was
conducting business for which a quorum of the ZBA was required to be present; see also, Orbach v. New York State Urban
Development Corporation, 11 l\4isc.2d 720 (Sup. Ct. New York Co. 1981). Note, however, City of Gloversville v. Town of
Johnstown, 210 A.D.2d760 (3d Dept. 1994), the failure to have a quorum of the City Council present at an annexation hearing
was not defective because General Municipal Law $ 705(3) provides that the failure of an affected local government to
participate in a hearing will not render the hearing invalid and because a verbatim transcript of the hearing was taken Council
had "duly considered * * * the testimony and evidence presented at the public hearing."
2l See Public Officers Law $ 106, which requires minutes of "meetings" to consist "of a record or summary of all motions,
proposals, resolutions and any other matter formally voted upon and the vote thereon."
" Public bodies must accept written comments submitted at or prior to a public hearing. Note that some statutes may provide for a
comment period during which written comments may be submitted.
23 See Eminent Domain Procedure Law $ 203.
'o CPLR $ 780a(e) requires certif,red transcripts of hearings to be filed with the answer filed with cour1.
" Public Officers Law $ 102(3).
2u otrrtL-Ao-t t97.
" Public officers Law g 106(l).
28 See Opns St Comp, 1990 No. 90-52; note that this opinion discusses provisions of the Town Law that are not applicable to
villages. However, the principles expressed therein
'o rd.
30 See OML-AO-3886 & OML-AO-3658.
" oML-Ao-li26.
" "There is, however, no statutory requirement for the town clerk to record in the minutes the names of persons attending the
meeting, other than the members of the town board." Opns St Comp, 1990 No. 90-52.
I9
" See Open Meetings Law $ 105(1).
'o Public Officers Law g 106(2).
35 See Open Meetings Law $ 105(1)(fl.
36 See OML- Ao-3427.
" Village Law $21-2102.
" Village Law g 7-706.
'n Village Law g 1l-11 18.
oo Village Law $ 7-712-a and General City Law g 81-a.
o' Village Law g$ '7-712 &7-718.
a2 General City Law g 27.
o' oML-Ao-2512,
oo lg78 op. Sr. comp. File 280.
a5 See NYCRR Title 8, Appendix H, Records Retention and Disposition Schedule Mu-1 For Use By Cities, Towns, Villages and
Fire Districts. See also OML-AO-2618.
ou Public Officers Law g 106(3).
o' rd.
" Opnr St Comp, 1983 No. 83-54.
on otrrtL-Lo-3284.
to 1988 N.Y. op. Any. Gen. (Inf.) 102.t' Public officers Law $ 102(3).t' Opns St Comp, 1999 No. 99-8
" otrrtl--Ao-2s12.
" Opns St Comp, 1982 No. 82-179.t' Village Law g 7-712-a and General City Law $ 8l-a.
tu 1980 N.Y. Op. Atty. Gen. (Inf.) 145. Note, however, "in regard to those sessions of the boards which are properly conducted
in private in order to insure free discussion, we believe that a town board may not compel such boards to tape record their
private discussions."
20