New York State Open Meetings Law & CUNY – A Summary[1]

August 22, 2013

 

NYS Public Officers Law Article 7, otherwise known as “Open Meetings Law,” requires that meetings of public bodies be open to the general public, noting that it is “essential to the maintenance of a democratic society that the 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” (§100)[2]. Exception may be made for specified executive sessions (§105), during which secrecy is absolutely necessary.

 

§102 (2) defines “public body” 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, 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]

 

The application of OML hinges upon the definition of what constitutes a public body. There are two major cases involving the City University of New York (CUNY) and Open Meetings Law (OML) which have had substantial legal ramifications in this area: Smith v. CUNY (1999) and Perez v. CUNY (2005).

 

Smith v. CUNY (1999)

 

Smith v. CUNY (1999)[4] involved the LaGuardia Community College Association, an organization comprised of administrators, faculty, and students, which was “authorized to review proposed budgets, to allocate student activity fees and to authorize disbursements”.[5] The pivotal question in this case was whether the Association was a public body, and thus subject to OML. To determine whether a body is a public one, the court outlined the following major considerations: “the authority under which the entity is created, the power distribution or sharing model under which it exists, the nature of its role, the power it possesses and under which it purports to act, and a realistic appraisal of its functional relationship to affected parties and constituencies”[6].

 

While entities performing merely advisory functions would not necessarily be subject to OML, the court found that the Association “performs substantially more than a mere advisory function with respect to college activities and expenditures and, therefore, exercises a quintessentially governmental  [***913]   [**986]  function”.[7] The opinion further notes that the Association “is invested with decision-making authority to implement its own initiatives and, as a practical matter, operates under protocols and practices where its recommendations and actions are executed unilaterally and finally, or receive merely perfunctory review or approval”.[8] In other words, CUNY, via its bylaws, delegated decision-making power to the Association in the administration of student activity fees, and the Association had more than a mere advisory role – it is “powerfully and substantively autonomous”[9].

 

Perez v. CUNY (2005)

 

In Perez v. CUNY (2005)[10], the Court of Appeals of New York decided that the Hostos Community College Senate and the Senate’s Executive Committee also exercised a “quintessentially government function”. An appraisal of the functions of the Senate found that it “recommended policy on all college matters to the Board,” and “had been charged with a number of the responsibilities delegated by the New York Legislature to the university’s Board of Trustees, and that the Senate functioned as a proxy for the faculty councils authorized by the school’s bylaws.” The Senate “was comprised of the college’s president and deans, full-time faculty members, nonteaching instructional staff, students and classified staff, and was responsible for recommending policy on all college matters, for the formulation of academic policy, and for consultative and advisory functions related to the programs, standards, and goals of the college, was, along with its executive committee, a public body” as per the definition under the Open Meetings Law of New York State:

Key to our conclusion in this case is the record evidence that the College Senate (which includes its Executive Committee) has been charged with a number of the responsibilities delegated by the Legislature to the CUNY Board and that the Senate functions as a proxy for the faculty councils authorized by the CUNY bylaws. The Senate is to recommend policy on all college matters to the Board. The Senate is explicitly imbued with the power to formulate new policy recommendations and review existing policies, forwarding those recommendations to the Board of Trustees in areas as far-reaching as college admissions, degree requirements, curriculum design,  [***464]   [**576]  budget and finance; it is represented on all committees established by the College President or Deans; it is to review proposals for and recommend the creation of new academic units and programs of study; it must be consulted prior to any additions or alterations to the College’s divisions; and it is the only body that can initiate changes to the College Governance Charter.

[*530]  Under CUNY’s comprehensive university governance scheme, the College Senate is the sole legislative body on campus authorized to send proposals to the CUNY Board of Trustees, and although the policy proposals must first be approved and forwarded by the College President, they overwhelmingly are. While the CUNY Board retains the formal power to veto recommendations of the College Senate, that does not in and of itself negate the Senate’s policy-making role or render the Senate purely advisory. Realistically appraising the Senate’s function, we conclude that the Appellate Division erred in holding that the Senate was only an advisory body (contrast Matter of Snyder v Third Dept. Jud. Screening Comm., 18 A.D.3d 1100, 795 N.Y.S.2d 398 [3d Dept 2005] [proceedings of Judicial Screening Committee not subject to the Freedom of Information or Open Meetings laws because its role is limited to providing information to appointing authority]). As Supreme Court held, “the college senate and the executive committee thereof constitute integral components of the governance structure of Hostos Community College. The senate and its executive committee perform functions of both advisory and determinative natures which are essential to the operation and administration of the college” (195 Misc. 2d 16, 33, 753 N.Y.S.2d 641 [Sup Ct, Bronx County 2002]).

 

How does this apply to Doctoral Program Standing Committees?

 

In short, OML may apply to the Executive Committee of each doctoral program, but likely does not apply to the other program standing committees. The bylaws of the CUNY Board of Trustees (most of the content of which is repeated verbatim in the CUNY Graduate School and University Center, or “GC,” governance document) state the following regarding how policy is created at the doctoral level of CUNY:

 

SECTION 9.4. PROGRAM STRUCTURE IN THE GRADUATE SCHOOL AND UNIVERSITY CENTER.

a. The faculty of each doctoral program shall meet at least once each year. A quorum shall consist of 25 people or 50% of the faculty, whichever is smaller. The faculty shall have overall responsibility for establishing policies for the program. It shall make recommendations to the graduate council with respect to curriculum, and to the president with respect to special program requirements for the admission and retention of students and for the granting of doctoral degrees, the awarding of university grants and fellowships, and any other matters affecting the welfare of the program. It shall be responsible for the policies governing the various qualifying examinations for the doctoral degree.

 

 

c. There shall be established in each doctoral program an executive committee to be composed of at least five members. The structure and membership of each executive committee is to be determined by the program’s faculty subject to approval by the president. It shall include at least one faculty member from each senior college substantially participating in the program (“substantially participating” shall be defined as having six members on the faculty of the program).

 

The executive committee shall have the authority for the operation of the program between the stated meetings of the program’s faculty subject to the policies established by the faculty. It shall meet at least once a semester with the students matriculated in the program.

 

The executive officer shall serve as chairperson of the executive committee.

 

d. The students of each doctoral program shall have responsibility through student representatives to the executive committee and the standing committees to make known their views on the policies of the program.[11]

 

The bylaws of the GC outline other program standing committees as follows:

3.6A Faculty Membership: To nominate members of the program’s faculty as provided for in Section 6.1 below with a view toward including in the doctoral program faculty newly appointed at the colleges; to maintain a roster of potential doctoral faculty appointments; to record annually the status of those faculty members currently designated; to review all other actions taken in regard to membership on the doctoral faculty.[12]

 

3.6B Curriculum and Examinations: To review curriculum and to submit curriculum recommendations for action; to recommend procedures and standards for the conduct of examinations.

 

3.6C Admission and Awards: To recommend admission and awards procedures and standards for the program; to administer these procedures in accordance with these standards.

 

3.6D Elections: To conduct all program elections.[13]

 

Though the program standing committees appear mainly advisory in nature, GC bylaws require that student voices and opinions on the policies of the program be heard within these committees:

6.4B The students shall have responsibility through student representatives to the Executive Committee and the Standing Committees of each program to make known their views on the policies of the program.[14]

 

What is NOT merely advisory, however, is the at-least-annual meeting of each program’s faculty that is mandated by the CUNY Board of Trustees. In this gathering, the faculty “have overall responsibility for establishing policies for the program,” and is “responsible for the policies governing the various qualifying examinations for the doctoral degree”[15]. This entity creates the policies of each program – programs which are funded by public monies – and as such, has been delegated responsibilities by the CUNY Board of Trustees that are, in practice, “quintessentially a government function”[16]. Though these policies must be approved by the Graduate Council of GC, they, like those of the Hostos Community College Senate, “overwhelmingly are”[17] approved. Further, in accordance with the definition of a public body under OML, this entity requires a quorum (“25 people or 50% of the faculty, whichever is smaller”[18]) in order to conduct business.

 

While the Board of Trustees bylaws do not specify that the “faculty meeting” which takes place do so within an Executive Committee, in practice, many of the doctoral programs of the GC decide upon policy within the meetings of their Executive Committees. [More research is needed on this point. Collection and summary of governance of programs is necessary.] The Board of Trustees bylaws do not specify that the Executive Committee may not function in this way, nor do they specify that students may not be present during policy decisions. If, in fact, the Executive Committees create policy, it can be argued that they are public bodies under the definition of OML (as interpreted by Smith and Perez) in that they, in practice, serve a government function.

 

There is also some evidence that CUNY recognizes, albeit indirectly, the public nature of the Executive Committee. The bylaws of GC require, for instance, that “[t]he procedures of Graduate School committees, programs, and subprograms shall be governed by the latest edition of ROBERT’S RULES OF ORDER, NEWLY REVISED, in all cases in which they are applicable and not inconsistent with this Governance document and the Graduate Council Bylaws of The Graduate School”.[19] Robert’s Rules of Order, at its most basic, requires that someone run the meeting (e.g. a “Chair”), and that someone record what happened at that meeting (e.g. a “Secretary”), generally in the form of minutes which record, at minimum, matters which have been formally voted upon and the vote record. Minutes are not required to be made public unless the governance of an entity or the legal interpretation of the reporting requirements demands it, as was the case in Perez, in which the Hostos Senate was ultimately required to make public its votes under the New York State Freedom of Information Law (FOIL). OML does not require that votes be made public, but it does require that they be recorded:

§106. Minutes.

1. Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon.[20]

What does require that votes be made public is FOIL, a law applied to the Hostos Senate in Perez. The court made clear that the Senate was, as a public body, subject to both OML and FOIL, the latter of which provides for public access to the records and documents of public “agencies”. An agency, as FOIL defines it, is “any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature”[21] – a definition which clearly has some overlap with the definition of a “public body” under OML.

 

Given that it responds to FOIL requests for minutes of Executive Committee meetings with the requested documents, as was the case when Matthew Schoengood, Graduate Center Vice President for Student Affairs and FOIL Records Access Officer for the GC,[22] provided the Sociology Students Association of GC with the minutes of the Sociology Doctoral Program’s program standing committees, including the Executive Committee, on July 26, 2012,[23] it would seem that CUNY recognizes that FOIL applies to program standing committees. Further, these records from Sociology indicate that their Executive Committee did, in fact, make decisions on the structure and governance of the program: it determined policy on faculty appointments; limited the number of dissertation committees that faculty may chair; determined the official response of the Sociology Program to changes in the CUNY Institutional Review Board policy; determined scheduling, duration, and content for required second exams; and voted to reinstate a previously defunct Curriculum and Examinations Committee and change the role of the Faculty Membership Committee (votes which modified program structure). Also of note, the Sociology Executive Committee recognized in its minutes from March 26, 2010, that it believes itself to be subject to NYS Open Meetings Law, noting that non-representative students were in attendance as per OML. [More examples of this kind would be good. Possible need to file additional FOIL requests to collect evidence that GC has a track record of recognizing the application of FOIL to ECs.]

 

Why does this matter, and what’s next?

 

CUNY is a public university, using public money to educate its students. Members of the public have a right, confirmed by the courts and legislature of New York State, to have made transparent to them the nature of the spending of public funds. Policies on curriculum, exams, and faculty hiring are of public interest, and deliberation regarding these policies should be made in a transparent manner. Currently, in most doctoral programs, they are not. Many CUNY doctoral students are unaware of how policy decisions are made within their own programs of study. In fact, some programs go so far as to prohibit student representatives from consulting with their constituents on all matters of policy, lending a “cloak and dagger” nature to proceedings.

 

OML is rarely voluntarily adhered to by public bodies. In the spring of 2013, the CUNY Doctoral Students’ Council (DSC) asked, in an open letter to the President, Provost, and Assistant Provost of the Graduate Center, that OML be applied to program standing committees[24]. The administration of GC reported that they consulted the legal counsel of CUNY, which stated that all program standing committees are not subject to OML because they are either “P & B,” or Planning and Budgetary, committees, or search committees. The former type of committee is responsible for operations within an organization – the carrying out of day-to-day functions of an entity – rather than the creation of governance or policy. This would be true if, as stated earlier, many Executive Committees did not also create all of the policies, curriculum, and examinations of the programs they operate. Search committees are typically organized to locate viable candidates for open positions within an organization. While this is one of the duties of the Faculty Membership Committee, it is not the sole duty of this committee as per GC bylaws noted above.

 

Essentially, there are three potentially interrelated possibilities in pursuing the application of OML to Executive Committees of GC:

1. Seek assistance of legal counsel in the drafting of a response letter to the administration of GC, rebutting the notion that Executive Committees in particular are not subject to OML and requiring that programs are immediately redirected to their appropriate responsibilities under the laws of New York State.

 

2. Request an advisory opinion from the NYS Committee on Open Government,[25] which may take up to four months, but will provide a detailed and case-specific response to the query of whether CUNY students have legal standing to request that OML (and/or FOIL) be applied to Executive Committees.

 

3. File a lawsuit against CUNY asserting that the rights of the public have been violated in the lack of application of OML to Executive Committees of CUNY Doctoral Programs. To do this, an instance of an Executive Committee refusing entry to someone, preferably a student of the program itself, would likely need to occur. This person would be the plaintiff in a civil suit – a huge responsibility. OML provides for financial relief for plaintiffs’ legal fees should the deciding court award them, but this is not a guarantee[26].

Alternately, if DSC collected data from students of multiple programs indicating refusal of the programs’ Executive Committees to allow students who are not representatives to attend committee meetings, the organization might be able to file a civil suit on behalf of its constituents. The history of DSC’s engagement in such legal activity requires more research. This approach would likely begin with contact with an attorney for additional information on how to proceed.



[1] This memo was drafted by Nicole N. Hanson, 6th year student in the CUNY Doctoral Program in Criminal Justice. Communications may be sent to nhanson@jjay.cuny.edu.

[2] See http://www.dos.ny.gov/coog/openmeetlaw.html

[3] Ibid.

[4] 92 N.Y.2d 707; 708 N.E.2d 983; 685 N.Y.S.2d 910; 1999 N.Y. LEXIS 1. Retrieved from www.lexisnexis.com/hottopics/lnacademic

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] 5 N.Y.3d 522; 840 N.E.2d 572; 806 N.Y.S.2d 460; 2005 N.Y. LEXIS 3211; 2005 NY Slip Op 8765. Retrieved from www.lexisnexis.com/hottopics/lnacademic

[11] See http://policy.cuny.edu/bylaws/article_ix

[12] See http://www.gc.cuny.edu/CUNY_GC/media/CUNY-Graduate-Center/PDF/Provost/Governance%20(Programs)/Graduate_School_Governance_Document_May_2012.pdf?ext=.pdf

[13] Ibid.

[14] Ibid.

[15] Ibid. 11

[16] Ibid. 4

[17] Ibid. 10

[18] Ibid. 11

[19] Ibid. 12, 3.2E

[20] Ibid. 2

[21] See http://www.dos.ny.gov/coog/foil2.html

[22] See http://www.cuny.edu/about/administration/offices/communications-marketing/foil.html

[23] As per email forwarded from the Sociology Students Association to Nicole Hanson on August 21, 2013

[24] See http://cunydsc.org/ [whatever link this ends up as on the new website]

[25] See http://www.dos.ny.gov/coog/contact.html

[26] Ibid. 2, §107