Open Meetings Law

For some readers, this might require a bit of background. So, before we dive in, there are two things to know:

First thing: All public libraries (even association libraries) are subject to the “Open Meetings Law” (or the “OML”), so this question applies to all public libraries.

Second thing: “Robert’s Rules” is a common framework for running meetings, but it is not required by law[1] (although it is sometimes in a public library’s bylaws). If a public library board wants to invent a procedure using Discord and Lego to share their board packet and signify how they have voted,[2] and it results in shareable information and documented results, they can do so.

1. Are consent agendas allowed for agencies subject to OML?

A “consent agenda” (or, as defined in Robert’s Rules,[3] a “consent calendar”) is a list of “routine or noncontroversial matters” to be considered for approval all at once without discussion. It is often used by not-for-profit companies, such as libraries, to take action on things like committee reports, etc. with one resolution (“be it so moved to accept and file the reports listed on the consent agenda”).

The potential problem with this is that the OML now[4] requires a public agency to “make available” all documentation to be considered at a public meeting[5] at least twenty-four hours before the meeting, including all the items that might be lumped together in a consent agenda.

Further, there is still some “legacy guidance” out there[6] that suggests the materials related to a consent agenda don’t have to be disclosed (that is wrong). If the items are being voted on as part of the meeting, they need to be available as now required by law, but they can still be acted upon via a “consent agenda.”

2. Should public or association libraries refrain from having their Boards of Trustees accept the financials (motion, second, vote) presented by the library’s treasurer so as not to give the appearance of agreement and assurance that they are accurate and without error?

Hmm... what an interesting question.

It is the duty of a public library board to not only routinely monitor the financial status of the library but to monitor the fiscal activity of the library to ensure it complies with the law and relevant financial policies.

So, while the board should be reviewing and then (if satisfied) accepting the financial report, it is not doing so simply to check it for accuracy, but to:

• Ensure account balances are as expected (based on the budget)
• Assess what to do if balances are not as expected (perhaps due to a budgeting error)
• Make sure deposits and payables are as expected
• Ensure that investments are being managed as required
• Monitor petty cash use as required by law[7]
• Ensure any use of credit is within accepted ranges of authority.

How does a board do this? By phrasing the resolution to match their obligation. So, a resolution should never be simply to “accept the Treasurer’s Report”, but rather, something like:

WHEREAS the board has had an opportunity to review and ask any questions about the Treasurer’s Report;

BE IT RESOLVED that the board notes the Treasurer’s Report was submitted with no further action noted.[8]

On a month where something is out of whack, the resolution could be:

WHEREAS the board as had an opportunity to review and ask any questions about the Treasurer’s Report; and

WHEREAS it was noted that the board had anticipated additional revenue in the form of a grant awarded last March;

BE IT RESOLVED that the board notes that the report was submitted and requests the Finance Committee and Director to develop an alternate plan in the event that the anticipated funds are not received by month-end.

A resolution to acknowledge receiving a report is not the same as acknowledging the board has double-checked the math on every item. However, a board should not review any financial report in isolation, and if things don’t add up, address any concerns via a resolution (as shown above).

3. If there is a board committee that, per the bylaws, is not given the power to act independently o[f] the board, is it permissible for a member of such a committee to make a motion to be followed by discussion and vote without a second?

Ugh. It depends.

If a board is using the current Robert’s Rules (12th Edition) without modification for a body of fewer than 12 members, the answer is no.[9]

If the board has adopted any other standing procedure that bars such action: also no.

On the other hand, if the board is using Robert’s Rules 12th Edition, but with the modification for a body of under 12 people (which requires no seconding): sure!

Whatever rule is selected, it should be applied consistently.

4. From the perspective of OML or others that you know are relevant for the library is it legally acceptable for a board chair to make a motion?

Yes, the board chair can make a motion.

But, for boards that are super into Robert’s Rules—Section 3 sets out how a “member” can “claim the floor,” which is the first part of the intensely detailed method of making a resolution per Robert’s Rules.[10]

The floor is “claimed” when the member is acknowledged as having it by the chair. The chair then guides the process by ensuring there is a second (when required), stating the question, overseeing debate, putting the question, and announcing the result.

So, you probably see the issue: for the chair to “give the floor” to themself and then do all the refereeing for their own motion is… frowned upon.

But again, it is allowed unless the body has adopted rules that disallow it.

I see this question as coming down to common sense and courtesy.

If a motion is of sufficient interest to the board chair that they would like to bring it, it may be better for them to ask the vice chair or another officer to temporarily take over chairing the meeting.

However, if the board chair is putting the motion simply because they are the most comfortable at putting motions,[11] and the process is still being conducted with documented clarity,[12] then it is fine.

The goal—above all other things—is to have a procedure that enables the board to efficiently, clearly, and fairly get business done.

For some people, Robert’s Rules are wonderful; for others, it is just a procedural quagmire. A board should periodically evaluate what process it is using, to make sure it is helping the board be as strong as it can for the library and that the process is being used to unite leadership, not alienate those who don’t know parliamentary procedure.

More important than Robert’s Rules (or any other agreed-upon process), a library board in New York should be trained on both the Open Meetings Law and their duty to monitor fiscal matters, so the materials and mode of conducting meetings complies with the law and protects the library.

Thanks for a great series of questions! See the following page for a “Friendly Cheat Sheet” for Robert’s Rules of Order.

Robert’s Rules FRIENDLY CHEAT SHEET 

When the board needs to take action, it does so by a resolution. Resolutions can be used to request committees to investigate certain matters, to authorize the revision of policy, to exercise any of the board powers listed in the Charter or the Education Law or the Not-for-Profit Corporation Law, and to express the general positions of the board.

Creating and Moving a Resolution

Any trustee with a conflict of interest or potential conflict on a particular item should declare it and recuse themselves from the vote the moment the topic is raised. Any declared conflicts of interest should be noted in the minutes by the Secretary or note-taker.

It is important that the precise wording of the resolution be confirmed prior to the resolution being “moved” forward, seconded (if you’re requiring seconding) and voted upon. To do this, the Secretary or note taker should confirm what the text of the resolution is, and it should be read aloud.

The person chairing the meeting can then say, “does someone so move?” If a member says, “so moved,” the Secretary or note taker should note who moves the resolution.

[Optional] The person chairing the meeting can then say, “does someone second the motion?” If a trustee says “yes,” the secretary or note-taker should note who seconds the resolution.

The person chairing the meeting can say, “any discussion?” Discussion can get a little unstructured, but it is wise for the meeting chair to consider monitoring the time and taking care to ensure each person who wishes to speak gets a chance—in recognized order. Discussion can result in the motion being amended (in which case there needs to be a resolution to amend the pending motion), withdrawn, or it can result in a robust discussion that leads to the final vote.

When discussion is ended (if discussion is particularly contentious and long-ranging, this is where you delve into the big book of Robert’s Rules on making amendments, withdrawing questions, and “calling” questions. However, whenever possible, it is nice to work for harmony as to when discussion is over, rather than use a procedure.) When over, the chair can confirm, “discussion is ended, and the board will now vote.”

Any trustee recusing due to a conflict of interest should make sure their abstention from voting is noted in the minutes.

The votes are noted by the note-taker, are tallied, and if the appropriate number required for it to pass is logged, it should be noted that the motion carried.

As usual, a regional council member knocks it out of the park with an informed and thoughtful combination of questions.

Here are the answers:

Question 1: "Is an electronic signature (a real scanned one) OK for approved board meeting minutes that will go up for the public on the web site?"

Answer:  YES...unless a library's bylaws or policies state otherwise.

Why is that?

Electronic signatures are permissible in New York State per the "NYS Electronic Signatures and Records Act" ("ESRA").

Because of ESRA, in NY, "the use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand." [1]

So... what is an "electronic signature?" ESRA defines it as "an electronic sound, symbol or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record".[2] Of particular importance is the phrase "executed and adopted by a person with the intent to sign the record."

Case law has found that "it is up to the signor to make some representation of that intent".[3]  What can show this "intent?"  Among other things, having a routine practice of using a scanned signature (as the question puts it, "a real one"), and a routine of using that to formally to attest to a finalized copy of the minutes.

All that said, I have to unpack this question a bit, because after describing the routine practice of using a scanned signature with intent to signify an actual signature, the member then goes on to add: "...a paper copy of the minutes that is signed for real will also go into the archives of the library." [emphasis added]

I don't see any true bar to having two versions of a signed copy of the minutes, but at best, this practice it is a waste of time and energy, since by law, the use of the electronic signature has already created a document that is sufficient.  Basically...there is no need to create one with a "real" (or as case law puts it, "wet") signature, because the document has already been signed.

Which brings us to...

Question 2: In our case, a paper copy of the minutes that is signed for real will also go into the archives of the library...which leads to the broader question of when such scanned electronic signatures can be used or not?

Because of what I just said at the end of the answer to Question 1, I would advise against creating and archiving a copy that is different from the posted version.  While the scenario that is described--not altering the substantive content of the minutes at all, but authenticating them with a different form of a valid signature--does not pose any immediate issues, if and when those minutes would ever be needed to be used in litigation, it could at the very least pose a complication, since effectively two different authenticated versions have been created.

This aspect of the member’s question is so important, and I think it is worth taking a look at the actual law regarding minutes, as set out in section 106 of the Open Meetings Law:

§ 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.

2. Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter.

3. Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meeting except that minutes taken pursuant to subdivision two of this section shall be available to the public within one week from the date of the executive session. If the agency in which a public body functions maintains a regularly and routinely updated website and utilizes a high speed internet connection, such minutes shall be posted on the website within two weeks from the date of such meeting except that minutes taken pursuant to subdivision two of this section shall be available to the public within one week from the date of the executive session. For purposes of this subdivision unabridged video recordings or unabridged audio recordings or unabridged written transcripts may be deemed to be meeting minutes. Nothing in this section shall require the creation of minutes if the public body would not otherwise take them.

The use of an electronic signature greatly facilitates the ability to abide by the requirement of subsection 3, which requires the posting of minutes (or for minutes not yet approved, "draft" minutes).

So, in summary: there is no need to create two versions of the minutes if the first version was properly e-signed, and in fact, while not illegal, creating two verified versions risks confusion just at the moment when minutes are most critical: FOIL request, litigation, or other intense scrutiny of the public record.[4]

The recent revisions and temporary modification of the Open Meetings Law (which all chartered libraries must follow, with a few modifications[5]), and the ongoing application of the Freedom of Information Law to certain public library records, are inspiring many nuanced questions like these.  The Education Law and the NY Not-for-Profit Corporation Law,[6] which define the powers of library trustees, also impact this issue...but as you see, sub-section 304(2) of the State Technology Law is the star player[7] today.

Thank you for a thoughtful set of questions! 

 

(my new e-signature symbol)

 

 

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[1] State Technology Law § 304(2).

[2] State Technology Law § 302(3).   And yes, you read that right.  If you want to adopt a signature sound, like a bell chime, or a special symbol (a book emoji?) to signify a Secretary's affirmation of the minutes, have at it!

[3] See CitiBank v. N.A. Navarez, 73 Misc. 3d 709 *; 155 N.Y.S.3d 686 **; 2021 N.Y. Misc. LEXIS 5138 ***; 2021 NY Slip Op 21271 ****; 2021 WL 4736807

[4] Just to highlight an important distinction: There will be times when a board Secretary needs to create "certified" copies of board resolutions or other documents.  The rules for signature on such documents may vary, especially if they need to be notarized.  So don't throw away all your pens just yet!

[5] See NY Education Law 260-a, and "Ask the Lawyer" ‘Posting recorded meetings under Open Meetings Law’, and ‘Trustee Addresses for Open Meetings’.

[6] Both of which I searched to ensure there was no overlay regarding minutes taken by public and association libraries. 

[7] The "Electronic Signatures in Global and National Commerce Act" ("E-Sign Act") also provides a general rule of validity for electronic records and signatures for transactions in or affecting interstate or foreign commerce, but case law in NY cites to the State Technology Law.

To answer these questions, we've created an "Open Meetings Law 2022 Library Board Chart and Checklist" that sets out:

• The Education Law and OML's basic public access requirements for library trustee meetings;
• The OML's recent changes regarding meeting materials;
• The OML's new option for videoconferencing; and
• Old and new requirements for trustee meeting notices.

Below that are the requested sample resolutions and policies.[1]

Open Meetings Law 2022 Library Board Chart and Checklist
What to do (requirements, tips, and hacks)	Why the board is doing it	How to do it	Did you do it?
Requirement: Your board must meet "at least quarterly."	Because Section 260(5) of New York’s Education Law requires it.	Your board must "fix" the "day and hour" of the meeting; if the meeting is known at least 2 weeks in advance, the notice must go out at least one week in advance.
Requirement: Your library's meetings must be "open to the public."	Because Section 260-a of New York’s Education Law requires it.	Follow the requirements of Article 7 of the NY Public Officers Law, aka, the "OML" (more on that in the rows below).
Requirement:  Your library must notify the public and the news media at least one week in advance of the time and place (including virtual place) of a meeting scheduled at least two weeks in advance.	This timing for notice is a bit different from the timing in the OML; that is because Section 260-a of New York's Education Law modifies the notice requirements for meetings (to be a bit kinder to libraries).	The law doesn't require a specific medium, but the notice should be in writing.  The new requirements include posting the means to attend via videoconference (for more on that, and for a sample notice, see below).
Requirement/Hack: If your library is in a city of "one million or more," your committee meetings should also be open and noticed.	Because Section 260-a of New York’s Education Law specifies that library trustee committee meetings be open in cities with that population.	If your board serves a library serving a city with a population of one million or more (in other words, if you are in NYC), treat your committee meetings like board meetings.
Hack: Your board can create an "Executive Committee" to transact business between meetings.	Because Education Law 226(2) allows your library to do this.	Amend the bylaws to create an Executive Committee "...of not less than five, who, in intervals between meetings of the trustees, may transact such business of the corporation as the trustees may authorize, except to...make removals from office."
Requirements: Make available any "proposed resolution, law, rule, regulation, policy or any amendment thereto", that is scheduled to be the subject of discussion by the board at the meeting, at least 24-hours prior to the meeting.	Because Section 103-e of the “Open Meetings Law" requires your library to do this.	Have the board packet available either in hard copy or upon request.    NOTE: If your library regularly uses its website, the law also requires that the materials be posted on the website.
Hack: Adopt rules about the location of equipment and personnel used to photograph, broadcast, webcast, or otherwise record an open meeting.	OML 103(2) allows a library (or a public body that follows the OML) to do this so such broadcast is not disruptive (or a tripping hazard).	If your library adopts such a policy, the law requires that the rules "be conspicuously posted during meetings and written copies shall be provided upon request to those in attendance."   A sample policy is below.  (Before adopting such a policy, consider your library's unique space and needs.)
Option: enable trustees to attend via videoconference, while the meeting has only one physical location.	Your board will do this if they want trustees to be able to attend even if caregiving, disability, health, or other compelling reasons prohibit attending in person.	Per the legislation signed by the Governor on April 9, 2022, the way to exercise this option is to:   1.  Adopt procedures consistent with the new law;   2.  Pass a resolution to authorize meeting via videoconference.

A generic bit of advice: before voting on a resolution to authorize meeting via videoconference, the board of trustees should consider whether the additional technical and notice requirements are both desirable and feasible.

For example: the new law requires that any meeting held via videoconference under this new provision must be archived on the library's website for five years. Does your library have that capacity?

For another example: the new law requires that any meeting held via videoconference and archived in this manner must be "transcribed upon request." Does your library have the capacity to transcribe sometimes lengthy meetings upon request?

And as a final example: the new law requires that if the agenda includes a public comment period, those attending via videoconference must be able to comment and participate just as those physically attending. Does your library have the technical capacity to enable that?

None of these examples is a deterrent to videoconferencing, so long as the library has the budget and technical capability to honor the requirements. Since this could have an impact on budget, assessing that capability is critical before deciding to meet this way.

TEMPLATE resolution

(Regarding rules about the location of equipment and personnel used to photograph, broadcast, webcast, or otherwise record a board meeting)

WHEREAS the board of the ABC library recognizes the requirement of the NY State Open Meetings Law to allow the public to photograph, broadcast, and webcast its open public meetings; and

WHEREAS, Section 103(2) of the Open Meetings Law allows public bodies to adopt rules about the location of equipment and personnel used to photograph broadcast webcast or otherwise record a public meeting;

BE IT RESOLVED that the board of trustees of the ABC library adopts the attached rules per Section 103(2) of the Open Meetings Law; and

BE IT FURTHER RESOLVED that as required by law, such rules shall be posted at the location of each meeting and included in the agenda posted at least 24 hours in advance of the meeting so the public attending can have notice of and abide by such rules.

[SAMPLE RULES]

Consistent with the requirements of the Open Meetings Law, attendees at open public meetings of the board of trustees are allowed to photograph, broadcast, webcast and otherwise record those portions of the meeting not in executive session.

To ensure such authorized activity does not disrupt the smooth and safe operation of a trustee meeting, and consistent with Section 103-a of the Open Meetings Law, the following "Rules" shall be posted at the location of each meeting and included on the posted agenda:

• No extension cords or other potential tripping hazards may be set up;
• No flash photography or additional lighting may be used;
• No recording instrument shall be closer than 3 feet of a meeting participant, without that person's express consent;
• All equipment should be silent enough to not cause a disruption;
• Equipment must not block aisles or exit and may not impede the view of other attendees;
• [INSERT]

The privilege to record in this manner at the library is limited to open meetings of the board.

When enforcing this rule with regards to the manner of recording, the ABC library board of trustees shall ensure that the First Amendment of the United States Constitution, and Article I, Section 8 of the New York constitution are honored.

Sample resolution to authorize videoconferencing and adopt policies

WHEREAS on April 9th, 2022, the governor of the state of New York signed into effect chapter 59 of the laws of 2022, in part amending the Open Meetings Law to enable public bodies to meet, under certain circumstances, via videoconference; and

WHEREAS, the board of the ABC Library has duly considered the benefit of this law to its routine operations, and determined that meeting via videoconferencing per the Open Meetings Law with further the operations and mission of the library;

BE IT RESOLVED that consistent with its bylaws and Charter, the board of trustees hereby authorizes the use of videoconferencing for its meetings; and

BE IT FURTHER RESOLVED that the board of trustees hereby adopts the attached written procedure governing member and public attendance at trustee meetings, and confirms each element of that written procedure in this resolution; and

BE IT FURTHER RESOLVED that members of the board of trustees are required to be physically present at any duly noticed meeting unless such member is unable to be physically present due to extraordinary circumstances (including disability, illness, caregiving responsibilities, or any other significant or unexpected factor or event which precludes the member's physical attendance at such meeting); and

BE IT FURTHER RESOLVED that except in the case of executive sessions conducted pursuant to section one hundred five of the Open Meetings Law, and consistent with the requirements of the Not-for-Profit Corporation  law, the trustees shall ensure that members of the public body can be heard, seen and identified, while the  meeting is being conducted, including  but not limited to any motions, proposals, resolutions, and any other matter formally discussed or voted upon; and

BE IT FURTHER RESOLVED that the minutes of the meetings involving videoconferencing shall include which, if any, members participated remotely and shall be available to the public pursuant to section one hundred six of the Open Meetings Law; and

BE IT FURTHER RESOLVED that if videoconferencing is used to conduct a meeting, the public notice for the meeting shall inform the public that videoconferencing will be used, where the public can view and/or participate in such meeting, where required documents and records will be posted or available, and identify the physical location for the meeting where the public can attend; and

BE IT FURTHER RESOLVED that the board of trustees shall provide that each meeting conducted using videoconferencing shall be recorded and such recordings posted or linked

on the library's website within five business days following the meeting, and shall remain so available for a minimum of five years thereafter, and such recordings shall be transcribed upon request; and

BE IT FURTHER RESOLVED if videoconferencing is used to conduct a meeting, the library shall provide the opportunity for members of the public to view such meeting via video, and to participate in proceedings via videoconference in real time where public comment or participation is authorized and shall ensure that videoconferencing authorizes the same public participation or testimony as in person participation or testimony; and

BE IT FURTHER RESOLVED that for so long as the board of trustees elects to utilize videoconferencing to conduct its meetings, the library will maintain an official website; and

BE IT FURTHER RESOLVED that, consistent with the library’s mission to serve its community, the trustees' use of videoconferencing shall utilize technology to permit access by members of the public with disabilities consistent with the 1990 Americans with Disabilities Act (ADA).

Adopted this ___ day of _____, 2022.

Yay:

Nay:

Abstain:

 

TEMPLATE written procedure

governing member and public attendance at trustee meetings

1.         Members of the board of trustees are required to be physically present at any duly noticed meeting unless such member is unable to be physically present due to extraordinary circumstances (including disability, illness, caregiving responsibilities, or any other significant or unexpected factor or event which precludes the member's physical attendance at such meeting).

2.         Except in the case of executive sessions conducted pursuant to section one hundred five of the Open Meetings Law, and consistent with the requirements of the Not-for-Profit Corporation law, the trustees shall ensure that members of the public body can be heard, seen and identified, while the meeting is being conducted, including but not limited to any motions, proposals, resolutions, and any other matter formally discussed or voted upon.

3.         Minutes of the board meetings involving videoconferencing shall include which, if any, members participated remotely and shall be available to the public pursuant to section one hundred six of the Open Meetings Law.

4.         If videoconferencing is used to conduct a board of trustees meeting, the public notice for the meeting shall inform the public that videoconferencing will be used, where the public can view and/or participate in such meeting, where required documents and records will be posted or available, and identify the physical location for the meeting where the public can attend.

5.         The board of trustees shall provide that each meeting conducted using videoconferencing shall be recorded and such recordings posted or linked on the library's website within five business days following the meeting, and shall remain so available for a minimum of five years thereafter, and such recordings shall be transcribed upon request.

6.         If videoconferencing is used to conduct a meeting, the library shall provide the opportunity for members of the public to view such meeting via video, and to participate in proceedings via videoconference in real time where public comment or participation is authorized and shall ensure that videoconferencing authorizes the same public participation or testimony as in person participation or testimony.

7.         For so long as the board of trustees elects to utilize videoconferencing to conduct its meetings, the library will maintain an official website, which is INSERT ADDRESS.

8.         Consistent with the Library's mission to serve its community, the trustees' use of videoconferencing shall utilize technology to permit access by members of the public with disabilities consistent with the 1990 Americans with Disabilities Act (ADA).

 

SAMPLE notice of meeting to use videoconferencing

The board of trustees of the ABC Library will hold a meeting at

DAY

HOUR

at

[AT LEAST ONE] PHYSICAL LOCATION

Per the policy of the board, videoconferencing will be used to enable attendance of trustees and public access to the open meeting.

The public can view and/or participate in the meeting by [INSERT].

[If public comment or participation is authorized and noted on the agenda] Those attending via videoconference may engage in the same public participation or testimony as in person participation or testimony by INSERT.

Document and records to be reviewed at that meeting will be posted at INSERT and available by request at INSERT.

The meeting shall be recorded, and the recording shall be posted [or linked] on the library's website (INSERT ADDRESS) within five business days following the meeting, and shall remain so available for a minimum of five years thereafter.   The recording shall be transcribed upon request.

Consistent with the Library's mission to serve its community, the trustees' use of videoconferencing shall utilize technology to permit access by members of the public with disabilities consistent with the 1990 Americans with Disabilities Act (ADA).   Questions regarding accommodations can be directed to INSERT and INSERT.[2]

[Insert rules of broadcasting meeting if applicable]

 

 

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[1] As with all things template, whenever possible, review this guidance with your library's attorney.

[2] To enhance accessibility, accommodation requests should be able to be made through at least two different mediums; for example, a number to call and via e-mail.

Thank you very much for your kind words!  And for submitting this question.

For "Ask the Lawyer" readers who don't follow the State's "Open Meetings Law" (the “OML”) with regularity, the new rules that the member is referring to are the revised Section 103(e) of the OML.  The "Ask the Lawyer" that the member refers to is "Availability of Open Meeting Documents".

In that RAQ, we discussed the extent of a library board’s new obligation to ensure that certain materials used during open portions of trustee meetings be made available at least 24 hours in advance...and how, if a library routinely uses its website, those advance copies should be posted on it.

Given the new requirements, Tim's question is a practical one: "Do working documents being shaped and edited at committee meetings need to be posted in advance of the committee meeting?"  In other words, if the document is in flux, and subject to change even during the meeting, must a copy be provided in advance?

In considering the answer, I of course checked the law and the latest commentary from New York's "Committee on Open Government" (the "COOG"), which is the arbiter of all things OML. However, since Tim mentioned checking in with his gut, I also checked in with mine.

To do that, I pictured myself as the attendee at a meeting of my city's[1] common council. I envisioned them discussing a policy on the agenda: the formation of a police advisory committee.[2] I then pictured myself checking the meeting packet that was put on the City's web site 24 hours prior to the public meeting, to see if a copy of the policy is in the packet.

Here are five scenarios of what happens:

Scenario 1: I check the packet: there it is! As the committee members discuss the proposed policy, I am able to meaningfully link their commentary to the written document.

Scenario 2: I check the packet: there it is! But then, the Chair of the meeting says "Before we begin, I would like to add that this morning I received a proposed new version of the policy for us to consider.  The new version adds a paragraph to the version that is in your packet.  That version was emailed to council members this morning." As the committee members begin to discuss the proposed policy, and the new paragraph, I am able to meaningfully link their commentary to the written document--except for the new paragraph.

Scenario 3: I check the packet: there it is! But then, the Chair of the meeting says "Before we begin, I would like to add that this morning I received a proposed new version of the policy for us to consider.  The new version adds a paragraph to the version that is in your packet.  That version was emailed to council members this morning, and I am going to ask the clerk to place a version in the video feed [in a way public attendees can see] as a courtesy." As the committee members begin to discuss the proposed policy, and the new paragraph, I am able to meaningfully link their commentary to the written document--even the new paragraph.

Scenario 4: I check the packet: there it is!  Twice?  Hmmm.  As the agenda item is called, the Chair of the meeting says "Before we begin, I would like to clarify that we have two versions in the meeting packet because two versions have been submitted for review and consideration at this meeting." As the committee members begin to discuss the proposed policy, and the two versions, I am able to meaningfully hear their commentary on the precise wording as they discuss intent, concerns, and possible revisions, although I have to toggle between versions to keep up.

Scenario 5: I check the packet: it's NOT there!  When the committee reaches that agenda item, the Chair of the meeting says "Because this policy is under review in various offices, who may submit changes before our next meeting, and there are a few versions under discussion, we haven't posted any version yet." As the committee members begin to discuss the proposed policy, and the different wording, I am unable to meaningfully connect their commentary to the writing they have based it on.

Checking in with my gut: in either "Scenario 2" or "Scenario 5," I might be irritated to the point where my gut might review the law to see--has the council followed the law?

And when my gut checks with the law, I see this commentary from the COOG[3]:

So with that, I answer the question ""Do working documents being shaped and edited at committee meetings need to be posted in advance of the committee meeting?" as follows:

Even if a policy is in draft form, or if multiple versions are under review, if it is on the agenda of a public meeting for discussion, the version or versions under review should be included in the meeting packet, to allow for meaningful public access to the materials.[4]

That said, recommendations, opinions, or similar materials regarding such policies under development do not have to be shared, and revisions not ready in time for posting (even if discussed at the meeting) do not have to be made available/posted in advance.

Thank you for a subtle and thoughtful question!

 

---

[1] The beautiful, if somewhat bedraggled by an industrial past, Buffalo NY.

[2] This was not a huge stretch, as that topic actually is under consideration by Buffalo as of April 2022.

[3] Full text available at https://opengovernment.ny.gov/system/files/documents/2021/11/disclosure-of-records-scheduled-for-discussion-at-open-meetings-112221.pdf as of April 6, 2022.

[4] Although the law does not require it, when doing so, I strongly advise that the version include a header or some type of other indicia showing that it is a draft copy for review only, and the version date (of course, archivists and clerks?).

Before we dive into the answer, I have to say two things.

First, just a reminder: the reason any chartered library--even an association library--has to follow the State's "Open Meetings Law" and allow public access to trustee meetings, is because Section 260-a of the Education Law requires it.[1]

Second: the timing of this question made it a real pain in the [law].   Here's why:

My first draft answer was written on March 29, 2022.

While the draft was in review, I realized there was a change to the law that I had not factored in.[2]  So I pulled back the draft to revise.

While I was revising, the law was changed again![3]

This required yet another re-write.

So now, as of April 13, 2022--at the risk of Governor Hochul punking me with yet another change to the law--here is the short answer to this question:

103-e does NOT require a library board to record and post their meetings; that is limited to authorities and agencies with at least one member appointed by the governor.[4]

However, under OML 103(c), and per a current temporary add-on to the law,[5] trustee meetings must continue to be broadcast/recorded/transcribed, UNLESS the meeting is ONLY taking place in person, AND the community can physically access each site of the meeting.[6]

That said, a library board is certainly welcome to broadcast and archive its in-person meetings, and (critically) a board cannot bar attendees from streaming or otherwise broadcasting in-person (or streamed) board meetings, either.  Further, if capacity or public health concerns mean setting up to allow remote attendance ensures access to the meeting, there is strong incentive to use the (right now) temporary ability to meet via broadcast/record/transcribe.

So, what does this latest (April 9, 2022) change mean?

Right now,[7] if a board meeting is not being broadcast/recorded/transcribed, any remote location from which a board member is attending the meeting is a de facto additional site of the meeting...so the location must be disclosed in the notice for the meeting and the public must be able to attend the meeting at that remote site.

But it looks like this latest change (April 9, 2022) will somewhat change that. So expect (much) more commentary on this...both from me, and others.[8]

Now, for those of you scratching your heads and saying "Wait a minute, you mentioned all these changes in 2022, I KNOW they changed the law back in November 2021!"  --You're right, they did.  That change amended the OML to require that documents to be viewed by the trustees at the meeting be made available (and if possible, posted on the library's web page) at least 24 hours before that meeting.[9]

Thank you to the member for a thoughtful question.  As to the legislature and the Governor[10]....we see where all of this is going (a more accessible and greener OML), but a little dinner and dancing might be nice before you change the law again!

Most recent OML changes (as of April 13, 2022).

Section 1.  Subdivision (c) of section 103 of the public officers law,

    20  as  added  by  chapter  289  of  the laws of 2000, is amended to read as

    21  follows:

    22    (c) A public body [that uses videoconferencing to  conduct  its  meet-

    23  ings]  shall provide an opportunity for the public to attend, listen and

    24  observe [at any site] meetings in at  least  one  physical  location  at

    25  which a member participates.

    26    §  2. The public officers law is amended by adding a new section 103-a

    27  to read as follows:

    28    § 103-a. Videoconferencing by public bodies.  1.  For the purposes  of

    29  this  section,  "local  public  body" shall mean a public corporation as

    30  defined in section sixty-six of the general construction  law,  a  poli-

    31  tical  subdivision  as  defined  in  section  one hundred of the general

    32  municipal law or a committee or subcommittee or other  similar  body  of

    33  such  entity,  or  any entity for which a quorum is required in order to

    34  conduct public business and which  consists  of  two  or  more  members,

    35  performing  a  governmental  function  for  an  entity  limited  in  the

    36  execution of its official functions to a portion only of the state, or a

    37  political subdivision of the state, or for an agency or department ther-

    38  eof.   For the purposes of this section,  a  public  body  shall  be  as

    39  defined in subdivision two of section one hundred two of this article.

    40    2.  A  public  body  may,  in its discretion, use videoconferencing to

    41  conduct its meetings  pursuant  to  the  requirements  of  this  article

    42  provided  that  a  minimum  number of members are present to fulfill the

    43  public body's quorum  requirement  in  the  same  physical  location  or

    44  locations  where  the  public  can attend and the following criteria are

    45  met:

    46    (a) the governing board of a county, city, town or village has adopted

    47  a local law, or a public body has adopted a resolution,  or  the  senate

    48  and  assembly  have adopted a joint resolution, following a public hear-

    49  ing, authorizing the use of videoconferencing:

    50    (i) for itself and its committees or subcommittees; or,

    51    (ii) specifying that each committee or subcommittee may make  its  own

    52  determination;

    53    (iii)  provided  however,  each community board in a city with a popu-

    54  lation of one million or more shall make its own determination;

        S. 8006--C                         248                        A. 9006--C

 

     1    (b) the public  body  has  established  written  procedures  governing

     2  member  and  public  attendance  consistent  with this section, and such

     3  written procedures shall be conspicuously posted on the  public  website

     4  of the public body;

     5    (c) members of the public body shall be physically present at any such

     6  meeting  unless  such  member  is unable to be physically present at any

     7  such meeting location due to extraordinary circumstances, as  set  forth

     8  in  the resolution and written procedures adopted pursuant to paragraphs

     9  (a) and (b) of this subdivision, including disability, illness, caregiv-

    10  ing responsibilities, or any other significant or unexpected  factor  or

    11  event which precludes the member's physical attendance at such meeting;

    12    (d)  except  in  the  case of executive sessions conducted pursuant to

    13  section one hundred five of this article, the public body  shall  ensure

    14  that members of the public body can be heard, seen and identified, while

    15  the  meeting  is  being  conducted,  including  but  not  limited to any

    16  motions, proposals, resolutions, and any other matter formally discussed

    17  or voted upon;

    18    (e) the minutes of  the  meetings  involving  videoconferencing  shall

    19  include which, if any, members participated remotely and shall be avail-

    20  able to the public pursuant to section one hundred six of this article;

    21    (f) if  videoconferencing  is  used  to  conduct a meeting, the public

    22  notice for the meeting shall inform the  public  that  videoconferencing

    23  will be used, where the public can view and/or participate in such meet-

    24  ing,  where  required documents and records will be posted or available,

    25  and identify the physical location for the meeting where the public  can

    26  attend;

    27    (g)  the  public  body shall provide that each meeting conducted using

    28  videoconferencing shall be recorded and such recordings posted or linked

    29  on the public website of the  public  body  within  five  business  days

    30  following  the  meeting,  and shall remain so available for a minimum of

    31  five  years  thereafter.  Such  recordings  shall  be  transcribed  upon

    32  request;

    33    (h) if videoconferencing is used to conduct a meeting, the public body

    34  shall  provide  the  opportunity  for members of the public to view such

    35  meeting via video, and to participate in proceedings via videoconference

    36  in real time where public comment or  participation  is  authorized  and

    37  shall  ensure  that videoconferencing authorizes the same public partic-

    38  ipation or testimony as in person participation or testimony; and

    39    (i) a local public  body  electing  to  utilize  videoconferencing  to

    40  conduct its meetings must maintain an official website.

    41    3. The in person participation requirements of paragraph (c) of subdi-

    42  vision two of this section shall not apply during a state disaster emer-

    43  gency  declared  by the governor pursuant to section twenty-eight of the

    44  executive law, or a local state of emergency  proclaimed  by  the  chief

    45  executive  of  a county, city, village or town pursuant to section twen-

    46  ty-four of the executive law, if the public  body  determines  that  the

    47  circumstances  necessitating  the  emergency declaration would affect or

    48  impair the ability of the public body to hold an in person meeting.

    49    4. No later than January first, two thousand twenty-four, the  commit-

    50  tee  on  open government, created by paragraph (a) of subdivision one of

    51  section eighty-nine of this chapter, shall issue a report to the  gover-

    52  nor, the temporary president of the senate, the speaker of the assembly,

    53  the  chair  of  the  senate  standing committee on local government, the

    54  chair of the senate standing committee on investigations and  government

    55  operations,  the  chair  of  the  assembly  standing  committee on local

    56  governments, and the chair of the assembly standing committee on govern-

        S. 8006--C                         249                        A. 9006--C

 

     1  mental operations concerning the application and implementation of  such

     2  law and any further recommendations governing the use of videoconferenc-

     3  ing by public bodies to conduct meetings pursuant to this section.

     4    5.  Open  meetings  of  any public body that are broadcast or that use

     5  videoconferencing shall utilize technology to permit access  by  members

     6  of  the public with disabilities consistent with the 1990 Americans with

     7  Disabilities Act (ADA), as amended, and  corresponding  guidelines.  For

     8  the  purposes  of  this  section,  "disability"  shall  have the meaning

     9  defined in section two hundred ninety-two of the executive law.

    10    § 3. Notwithstanding the provisions of article 7 of the  public  offi-

    11  cers  law  to  the  contrary, for sixty days after the effective date of

    12  this act any public body shall be  authorized  to  meet  and  take  such

    13  action  authorized  by law without permitting in public-in-person access

    14  to meetings and authorize such meetings to be held remotely  by  confer-

    15  ence  call  or similar service, provided that the public has the ability

    16  to view or listen to such proceeding and that such meetings are recorded

    17  and later transcribed.

    18    § 4. This act shall take effect immediately and shall  expire  and  be

    19  deemed repealed July 1, 2024.

 

 

---

[1] This requirement comes with one modification: " ...notwithstanding the provisions of subdivision one of section ninety-nine of the public officers law, public notice of the time and place of a meeting scheduled at least two weeks prior thereto shall be given to the public and news media at least one week before such meeting."

[2] It happens.  This is why a multi-step review process is a valuable thing.  Many thanks to Rebecca Darling in Ballston for her input!

[3] This time, on April 9, 2022.   The complete notice I have pasted above is posted at https://opengovernment.ny.gov/system/files/documents/2022/04/oml-videoconferencing-amendments-041122.pdf.

[4] Ironically, all the fuss and changes did not change my original answer...just the context I was including.

[5] Chapter 1 of the Laws of 2022.

[6] The OML, before the pandemic, allowed members to attend via teleconference ONLY if their location became an additional site of the meeting, and the public could attend there.

[7] April 13, 2022.

[8] In fact, I'll be doing a training on this for NYLA on Tuesday May 17th, in Albany.  For more info, see https://www.nyla.org/spring-on-the-hill-an-in-person-nyla-advocacy-event/

[9] For more on this, see "Ask the Lawyer" https://wnylrc.org/raq/availability-open-meeting-documents.

[10] The Governor is from my hometown.  She's a hero to many in Buffalo, so I say this with respectful frustration.

This question comes to "Ask the Lawyer" from a public library.

As quasi-governmental entities, public libraries must follow a precise array of law, regulations, and rules for record-keeping.  We'll delve into that for those factors to answer this question.

What does that mean for association libraries, who can be a bit more free-wheeling in their records management?  This answer doesn't (quite) apply to you, but stick around, we'll make it worth plowing through the next few paragraphs.

Governments and "quasi-governmental"[1] entities, like public libraries, are subject to the requirements of Article 57-A of the New York "Arts and Cultural Affairs Law" ("57-A") which requires officers to "maintain records to adequately document the transaction of public business and the services and programs for which such officer is responsible."

57-A also gives the NY Commissioner of Education the right (and obligation) to set the period of retention for different types of records.  The current collection of these retention periods is the LGS-1, on which "Ask the Lawyer" has written admiringly[2] before.

The LGS-1 does have a specific section for libraries and library systems (rules #590-603, which every public library should be following), but it is silent on the topic of board meeting materials, which means that the more generic section 48, "Meeting files of governing body or board or agency, commission or committee thereof, including agendas, background materials and other records used at meetings" applies.

Rule 48 states that the retention period for "[t]emporary drafts or personal notes that were not circulated, reviewed, or used to make decisions or complete transactions" is ZERO "after no longer needed."

So: as long as the hand-written notes are considered a "temporary draft" or "personal notes" as part of the creation of the actual draft minutes (the retention of which is "PERMANENT" per Rule 47), they may be shredded after the draft minutes are typed up as described by the question.

BUT, I offer caution: if the hand-written draft minutes are used for any purpose other than to create an exact typescript version, including but not limited to interim decision-making before the next board meeting, or to inform the process of passing the official minutes, then they are transformed into something different than personal or temporary notes, and I advise they be retained together with the other permanently retained public library board meeting materials...which also makes them subject to FOIL.

Sounds complicated, right?  Below is a poem to help you remember (association libraries, the last four lines are for you, too...I told you it would be worth sticking around):

A public library's records must stay

At the library per A and C Law 57-A;

The retention of those library records is done

For a period set by the LGS-1;

And the public can demand to see

Those records by asking for a FOIL copy.

Chartered libraries of any kind

The Open Meetings Law must mind

And the docs the board will see

Must be shared with the community.[3]

In all of this, personal notes

turned into minutes per trustee votes

When no longer needed, can be disposed

...so long as notes were all they posed.

Hmm.   Maybe it's just easier to read the law and rules?  Just in case, I have put them below.

Thanks for a great question, and thank you for your service as a conscientious trustee and officer!

The law:

§ 57.25. Records retention and disposition

1. It shall be the responsibility of every local officer to maintain records to adequately document the transaction of public business and the services and programs for which such officer is responsible; to retain and have custody of such records for so long as the records are needed for the conduct of the business of the office; to adequately protect such records; to cooperate with the local government’s records management officer on programs for the orderly and efficient management of records including identification and management of inactive records and identification and preservation of records of enduring value; to dispose of records in accordance with legal requirements; and to pass on to his successor records needed for the continuing conduct of business of the office. In towns, records no longer needed for the conduct of the business of the office shall be transferred to the custody of the town clerk for their safekeeping and ultimate disposal.

2. No local officer shall destroy, sell or otherwise dispose of any public record without the consent of the commissioner of education. The commissioner of education shall, after consultation with other state agencies and with local government officers, determine the minimum length of time that records need to be retained. Such commissioner is authorized to develop, adopt by regulation, issue and distribute to local governments records retention and disposition schedules establishing minimum legal retention periods. The issuance of such schedules shall constitute formal consent by the commissioner of education to the disposition of records that have been maintained in excess of the retention periods set forth in the schedules. Such schedules shall be reviewed and adopted by formal resolution of the governing body of a local government prior to the disposition of any records. If any law specifically provides a retention period longer than that established by the records retention and disposition schedule established herein the retention period established by such law shall govern.

The "Meetings/Hearings"  provisions  from LGS-1

47 CO2 1, MU1 1, ED1 1, MI1

1 Official minutes and hearing transcripts of governing body or board, commission or committee thereof, including all records accepted as part of minutes: RETENTION: PERMANENT

48 CO2 3, MU1 3, ED1 3, MI1

Meeting files of governing body or board or agency, commission or committee thereof, including agendas, background materials and other records used at meetings

NOTE: Appraise these records for continuing administrative or historical value prior to disposition. Agendas may have continuing administrative value and may be useful for accessing information in unindexed minutes and for indexing those minutes. Other records prepared for or used at meetings may have administrative or historical value for documenting issues discussed at the meetings and referenced in the minutes.

See item no. 47, above, for records which are accepted as part of the minutes.

a Records not accepted as part of the minutes, including agendas, background materials and other records used at meetings: RETENTION: 1 year

b Temporary drafts or personal notes that were not circulated, reviewed, or used to make decisions or complete transactions: RETENTION: 0 after no longer needed

 

---

[1] I use "quasi-governmental" because public libraries fall into (and out of) different categories of "government" or "public" law depending on the legal issue.   For instance, public libraries are subject to the Freedom of Information Law ("FOIL"), which is part of the Public Officers Law, but the board of trustees must also abide by the NY Not-For-Profit Corporation Law.  There are good reasons for this, but it can make things complicated.

[2] Some people are fans of opera, or sports teams.  I am a fan of meticulously categorized retention periods.

[3] For more on the application of the Open Meetings Law and the new(ish) requirements regarding board meeting materials, see "Ask the Lawyer" https://wnylrc.org/raq/availability-open-meeting-documents.

With the changes to the open meetings law and more attention on library leadership generally, now is a good time to think about the nuances of public library meeting agendas.

Since agendas have to be posted in advance, it is true that sometimes a board may have to make an 11th-hour change.

The typical ways to address the need to switch up the agenda, once it is set and published in advance as required by law, are:

1.  To use the "new business" section to add anything that wasn't announced in advance;

2.  For items on the agenda that, for whatever reason, must be removed/postponed or changed, to do it by motion, such as:

"RESOLVED: Due to the board still receiving active public comments, the comment period has been extended and the agenda item to review and discuss the comments on [TOPIC] is to be rescheduled to the next regular meeting of the board.

OR

"RESOLVED: Due to the confirmation that insurance will cover the damage, the emergency fundraising discussion is no longer needed."

There is no problem with also including on public notices "As board agendas and meeting notices are generally set one week in advance, the board may announce new business or change posted items, as warranted by circumstances and the best interests of the library."

The thing to avoid (because it can leave you open to criticism, not really a huge legal vulnerability) is "unofficial" changes to the agenda.  By using "new business" for unexpected items, and resolutions to change set items, the minutes will reflect proper adjustments that change the agenda.

 

Short answer

There is no requirement to disclose the location of a remote participant under the past Executive Orders or the current modification.

 

Long answer

I am grateful for this question since it gives me a chance to revisit an earlier answer ("Ask the Lawyer" #120) and clarify something.

The answer in "120" was based on the Executive Order(s) that temporarily modified the Open Meetings Law, allowing proceedings to be entirely virtual in the interests of safety...IF the proceedings could be seen/heard by the public, AND IF they were later transcribed.

This new law--which expires on January 15, 2022--uses legislation to achieve the same (temporary) modification.

So, if it is duplicative, what do I need to clarify?

As the member's question alludes to, before these modifications, any board member who wanted to participate remotely in an OML-governed meeting (which is any library board or committee meeting) had to disclose the address they were calling in from--because, essentially, that location was considered a "satellite" location of the meeting, where members of the public could attend. 

This long-standing approach led to some interesting scenarios over the years.  If the remote link was in an airport, the meeting was being conducted, partially, in an airport.  Or if the remote link was in a person's living room, the meeting was being conducted, partially, in the living room.  And by law and guidance, any person who wanted to physically attend the meeting at the satellite location had the right to do so...which is why the satellite location had to be included in the meeting notice.

But the modifications we are discussing changed that.

While the current guidance and commentary from the New York Committee on Open Government (the "COOG") does not say anything expressly about home addresses,[1] as I read it, neither the Executive Order nor the current legislative modification good through January 2022, require remote participants to disclose the location they are calling/zooming in from.  Further, it certainly doesn't transform the location they are calling from into a "satellite" meeting location....which means, if I choose to attend from my living room, a member of the public can't, by law, demand entry.

So, if the current guidance is silent, why do I believe remote participants' addresses don't need to be provided under the modified law?  While we can debate the competing virtues of physical v. virtual participation,[2] what is clear to me is that the purpose of the modifications--public safety--would be undone if every remote participant became a satellite location and was required to host the public.  And if the public can't demand entry to a remote location, there is no basis to disclose its address.

In my original reply, I didn't drill this point in hard enough[3].  That is why the "short answer" above states my position plainly, and why I am grateful for this chance to clarify.

Thanks for a helpful question.  May all your meetings be safe and fruitful, no matter where they occur.

 

 

---

[1] I am putting a screenshot of this guidance below the reply, and the live link, as of October 14, 2021, is here: https://opengovernment.ny.gov/system/files/documents/2021/09/chapter-417-of-laws-of-2021_0.pdf.

[2] Which I hope the COOG does at its next meeting, on October 19th, which I will be attending as an audience member...virtually.

[3] What I said was "While disclosing the exact location of all meeting participants may not be possible (since they will be on the phone), the notice should strive to include as much information as possible that is most useful to the public, including the location of any physical participants."  That last clause should be "...including the location of the physical meeting, if there is one."  This type of slip is why the profession of "editor" is still a vital job, even though the fields of publishing and journalism are changing so rapidly.

 

Because there are a lot of layers here, let's start with some bedrock fundamentals.

Bedrock #1: All NY-chartered libraries, including association libraries, must abide by the Open Meetings Law (the "OML"), a New York State law which requires certain meetings be accessible in real time to the general public.[1]

Bedrock #2: While all chartered libraries must follow the OML, only public libraries, as quasi-governmental agencies, are subject to its cousin, the Freedom of Information Law ("FOIL").[2]

Bedrock #3: As the members write, the OML has been changed to require the posting of materials to be reviewed at least 24 hours in advance of a meeting.  For libraries, this means that even if the library is not an "agency" subject to FOIL, the documents to be reviewed at the meeting--unless disclosure is barred for an express reason, such as attorney-client privilege[3]--must be posted.

Okay, with three sturdy bedrocks to build on, let's lay the foundation for the answers.

As stated before, the OML was recently changed to require advance posting of materials to be reviewed at a meeting.[4]

According to the Assembly memo that accompanied the bill, here is the basis for the change:

[S]ection 103 of the Open Meetings Law [currently only] requires agencies to make

any documents to be discussed at an upcoming open meeting available to

the public, "to the extent practicable." This vague phrase has created

loopholes and a way for agencies to bypass this requirement. In an anal-

ysis of 41 local governments conducted by the New York Coalition for

Open Government, 15 percent do not post meeting documents.

 

COVID-19 has made it apparent that there is technology readily available

for agencies to use in an effort to be more transparent.  Meetings are

only taking place virtually and individuals are at an immense disadvan-

tage because there is no in-person opportunity to request a hard copy of

any documents at the meeting. Therefore, it is even more important that

agencies utilize the technology available to post documents online where

the public can effectively access them.

The exact wording adopted to address these concerns, found in Section 103 of the New York Public Officers Law, goes into effect November 18th, and reads:

Agency records available to the public pursuant to article six of this chapter, as well as any proposed resolution, law, rule, regulation, policy or any amendment thereto, that is scheduled to be the subject of discussion by a public body during an open meeting shall be made available, upon request therefor, to the extent practicable at least twenty-four hours prior to the meeting during which the records will be discussed. Copies of such records may be made available for a reasonable fee, determined in the same manner as provided therefor in article six of this chapter. If the agency in which a public body functions maintains a regularly and routinely updated website and utilizes a high speed internet connection, such records shall be posted on the website to the extent practicable at least twenty-four hours prior to the meeting. An agency may, but shall not be required to, expend additional moneys to implement the provisions of this subdivision.

And with that "the Assembly hath spoken," and we can answer the questions.

Question 1: Do libraries that furnish the documents upon request also have to post the documents on their websites?

If a library "maintains a regularly and routinely updated website and utilizes a high speed internet connection" the documents must be "posted on the website to the extent practicable." 

I take this to read "If your library website has an event calendar you maintain, you need to get your meeting documents up on it at least 24 hours before the meeting."

Question 2: Does a library have to post the documents on their website 24 hours in advance, if no one requests them?

If a library "maintains a regularly and routinely updated website and utilizes a high speed internet connection" the documents must be "posted on the website to the extent practicable" even if no one has requested them.

What encompasses agency documents that “will be discussed”? I assume it includes agenda, previous meeting minutes, director’s report, treasurer’s report, proposed annual budget, etc.

Small note: Even before this change, the minutes should already be available, since Section 106 of the OML expressly requires availability within two weeks of the meeting.

Answer for public libraries: Every document that will be reviewed at the meeting.

Answer for association libraries: If you don't want to be a test case regarding the interaction of FOIL and the OML, post every document that will be reviewed at the meeting.   If you do want to be a test case, cite the slightly imperfect writing that describes what is to be disclosed ("Agency records available to the public pursuant to article six of this chapter"), and say that since your library is not an “agency” per Article 6 of the Open Meetings Law, and thus not subject to FOIL (see Bedrock #2), you don't need to provide a darn thing.

I am kidding.  Don't do that.  I am writing the Committee on Open Government to request guidance on this issue, and I am fairly confident they will confirm that the intent is that the entire board packet is required to be posted, even when the subject organization is not subject to FOIL; I will post a follow-up when I get some input.

Question 3: What about a new personnel manual that is enormous, or a board member who introduces items under “new business” but does not submit them ahead of time to add to the agenda?

Large documents should be posted; per the new section of the law, if requested in hard copy, the library can charge a "reasonable fee."

Regarding "new business," if the new business raised is only verbal, there is no problem.  If, however, the "new business" is a letter, article, or proposed policy, the board action should be confined to establishing the next steps to be taken once proper posting can be effected.  And if the "new business" must be handled on an emergency or expedited basis, that can be done via a meeting of the Executive Committee,[5] with any action ratified in a later meeting, with the written content shared in advance as required.

How long does a library have to leave the documents up on their website after the meeting takes place?

I am sure there will be more guidance on this in the future, but for now, I read the law as requiring the posting to be "to the extent practicable," meaning for as long as the content can be posted without causing undue expense or burden on the system.

Will this new law remain in effect if the Gov. does not extend the modification to Open Meetings Law after January 15, 2022?

Unlike the current change to the OML regarding remote attendance (which is currently in effect, and sunsets in January of 2022), this modification of the OML Section 103 goes into effect on November 18th and stays with us until it is struck down by a court (not likely) or changed by the Assembly (not likely, except for slight refinements).

Where we'll see some follow-up and guidance about this new law is from the Committee on Open Government.  The COOG, as they call it, posts notice of its meetings here: https://opengovernment.ny.gov/committee-news.  I'll be sending a question about the scope of document disclosure by association libraries, and if you tune into the next meeting (when it is scheduled), you will likely see me in the WebEx as a mute observer. 

Thanks for a thoughtful and timely array of questions.  Stay tuned.

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[1] This is required by Section 260-a of the New York Education Law, which is the law that allows the creation of such libraries.  So public access is baked into a chartered library's DNA.

[2] See the Committee on Open Government advisory opinion at https://docsopengovernment.dos.ny.gov/coog/ftext/f16795.htm, which states: "For purposes of applying the Freedom of Information Law, I do not believe that an association library, a private non-governmental entity, would be subject to that statute; contrarily, a public library, which is established by government and "belongs to the public" [Education Law, §253(2)] would be subject to the Freedom of Information Law." That said, all documentation an association library generates and submits to a governmental agency is subject to a FOIL request to that agency.

[3] My personal favorite disclosure exemption, of course.

[4] This was not the only change; there were also temporary changes regarding remote attendance.  See ATL “Open Meetings Law and end of NYS' Emergency Status - 06/30/2021” for more on that, (we'll also tackle it in one of the questions here).

[5] NOTE: Per the Section 260-a of the Education Law, in cities with a million or more people, even the committee meetings must be open.

This question comes at a very challenging time.[1]

The question is difficult because right now, the World Health Organization is looking at the "Delta Variant" of COVID-19 and telling the world to consider continuing to use masks and social distancing while inside.[2]

New York, of course, after a 6-day scramble, started following the Center for Disease Control's May 13 "surprise" guidelines stating that vaccinated people no longer need to wear masks or social distance indoors.[3]  And as of July 1, 2021, the state announced that almost all COVID-related restrictions were lifted.[4]

Where does this leave us?

Throughout the Pandemic, when asked about how to interpret and follow law, regulations, and Executive Orders governing the state's COVID response, my watchword has been: "Safety first."

After that, I have listed what is required at that point in time, and then referred libraries and cultural institutions to resources about how they can develop a Safety Plan[5] crafted to suit their unique identity (by "unique identity" I mean things like a large library with outdated HVAC and windows that don't open, has different considerations than a small library with assurance of constant fresh air).

With so much uncertainly at this time, my tired playbook is getting tested.  But I'll use it to try and answer each of the member's questions:

Now that Open Meetings Law modifications have been lifted, are we still required to maintain physical distancing for board meetings?

If your (now optional, but if the board keeps it in place, enforceable) Safety Plan still requires physical distancing, then yes.

We have a fifteen member board which makes it difficult to spread our trustees out. I understand that we can ask trustees whether they have been vaccinated: If all are vaccinated, do we have to maintain physical distancing?

If your Safety Plan has opted to continue using the NYS May 19th guidance, and the meeting is not exceeding the occupancy threshold, no, you do not.  HOWEVER, there is nothing to stop the board from deciding that, in the interest of safety and enabling each trustee to take whatever steps they need to feel safe, they are going to allow some trustees to attend from a remote location.[6]

If some of them are not vaccinated, do we required all the trustees to wear masks?

The WHO would (currently[7]) say: yes.

The CDC and the State of NY would (currently[8]) say: no.

For what it's worth, I tend to follow the most cautious reputable source at any given time (so would say: there is ample ground for your Safety Plan to require this, while there is also ample ground for your board to revise the Safety Plan to require only the bare minimum of advised precautions).

Do we provide physical distancing for the ones who are not fully vaccinated?

If that is at all possible, I strongly support that idea.  Being able to show an institution took the time to consider the best way to keep its community safe is good from any angle: mission, legal compliance, and employee/community relations.

I would like to host a staff luncheon (I understand that is now allowable[9]) but some of my staff are not vaccinated. If it is held outside, do we have to maintain physical distancing measures? What about holding the luncheon inside?

It pains me to say it, but sometimes, the law is not the best guide as to what to do!  Legally, if your library is still using the May 19th NYS Guidance, your Safety Plan can allow for this to happen, if you follow the required prescriptions.

However, it makes sense to me to "read the room" and see if such a luncheon would be a team-building exercise, or (because some employees might not feel at ease eating in close proximity to others) risk bad feelings and alienation.  If everyone cannot attend with the same level of comfort, it might be better to come up with an alternate bonding exercise.[10]

Conclusion

I truly wish I could offer more definite guidance.  The truth is, libraries--even with the return to the strict requirements of the Open Meetings Law--have many options for how to proceed.  So as tired as it may sound, put "safety first," and all things will follow from there.

Coda

Since the Powers That Be out there move quickly, here are some snapshots of the current guidance I am referencing in this answer.

Snapshot of the current WHO Guidance:

Snapshot of NY's July 1 announcement:

 

Snapshot of New York's May 19th Guidance (now largely optional):

 

Snapshot of current (June 10) OSHA guidance:

 

 

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[1] Has any date since March of 2020 not been in a "challenging time?"  I have a dim recollection of July of 2020 being semi-okay.

[2] https://www.who.int/emergencies/diseases/novel-coronavirus-2019/covid-19-vaccines/advice

[3] https://www.governor.ny.gov/sites/default/files/2021-05/NYS_CDCGuidance_Summary.pdf

[4] https://www.governor.ny.gov/news/governor-cuomo-announces-covid-19-restrictions-lifted-70-adult-new-yorkers-have-received-first

[5] Whether they were required to have one, or opted to have one.

[6] For more on this, see Open Meetings Law and end of NYS' Emergency Status.

[7] As of July 2, 2021, at 11:30 AM.  Go ahead, WHO, hit me with a change-up, I can take it.

[8] As of July 2, 2021, at 11:30 AM.  Go ahead, CDC and NY Department of Health, hit me with a change-up, I can take it just as well as I could at 11:30!

[9] This answer is complicated enough, I am not going to tackle the fiscal considerations of hosting events for staff!  See 1990 Comptroller Opinion #144 (May 15, 1990)

[10] This part might be a better question for the "Ask the HR Expert" service, since my idea of bonding is listening to Supreme Court Oral argument while providing color commentary (this is why my paralegal plans our events).