If Webster’s Dictionary had identified a “Word of the Year” for Chemung County in 2018, it undoubtedly would have been “transparency.” With contested races for county executive and nearly all legislative seats, many candidates sought to distinguish themselves by talking about how “transparent” they would be if elected.
Live-streaming of meetings? All for it, they said.
Increased public participation on county matters? Absolutely!
Open, fair dialogue between county government and the public? We wouldn’t want it any other way.
Throughout the first ten months after getting elected, I felt these campaign themes were being honored, albeit imperfectly. I have provided live-streaming of all of our meetings with limited push back from elected officials, and there has been some movement toward greater inclusion of members of the public in both activities and discussions.
However, my perspective has changed markedly over the past month.
The Chemung County Legislature’s Republican Caucus, comprised of 12 out of 15 sitting Legislators, has held six “political caucuses”, each lasting approximately one hour and held before and/or after meetings of the Legislature. During these gatherings numerous topics – including the 2020 Chemung County Budget, Elmira’s First Arena, and Chemung County’s relationship with the Library District – have been discussed at length. To the best of my knowledge the “caucuses” were held before the meetings on November 12th, November 13th, November 18th, before and after the meeting on November 25th, and after the meeting on December 2nd.
In other words, 12 of 15 Legislators have spent no less than six hours over the past month addressing public business behind closed doors where even elected members of the Legislature, including me, are unable to attend or even know what is being discussed.
Nothing could be less transparent.
Political Caucuses in New York State
Political caucuses have a storied history in New York. Prior to 1985 it was unclear what, if anything, could be discussed in private when a quorum (majority) of an elected body is present.
Ordinarily when a quorum of a political body is present, New York’s Open Meetings Law requires that certain measures are taken to protect the public’s right to know, including (1) adequate notice of the meeting’s time, location and agenda; (2) open access for the public to attend; and (3) Minutes of what actions were taken at the meeting that are made available to the public.
Several appellate court cases eroded this protection, holding it is improper for a majority of an elected body to do things like develop policy and debate matters that will come before it without allowing the public to observe. (The notion that representatives of a party can meet in private to discuss purely political matters is met with little controversy and is not the subject of this post.)
In response to these cases, New York’s Legislature passed a sweeping measure in 1985 that allows political caucuses to be held even when quorum is present. Specifically, Section 108(2)(b) of the Open Meetings Law exempts “deliberations of political committees, conferences and caucuses …where all members or adherents (belong) to the same political party.” This means that private meetings involving a quorum of a political body can be held so long as all attendees who are elected to that body belong to the same political party, and they may discuss any matter they choose, even if it involves public business. The full text of New York’s Open Meetings Law is found here.
Restraints on political caucuses
Despite the Open Meetings Law 1985 amendment, the public’s right of access to meetings where quorum is present has not been extinguished.
Most notably, many municipalities passed Local Laws after the political caucus exception was passed to insure no secret meetings would be held.
For example, the Town of Harrison, located in Westchester County, passed a Local Law that states:
Although, by enacting § 108, Subdivision 2b, of the New York Public Officers Law, the Legislature and the Governor of the State of New York have authorized members of the Town Board of the Town of Harrison who are adherents of the same political party to conduct private meetings at which public business may be discussed, the Town Board has determined that the interests of the town are best served if deliberations on public business are done in a public forum where interested members of the community can participate in the discussion and hear the views expressed by the Supervisor and the Councilmen.
Notwithstanding § 108, Subdivision 2b, of the New York Public Officers Law, the Village Board, pursuant to the power given to it by the New York Public Officers Law § 110, Subdivision 3, and Article 3 of the New York Municipal Home Rule Law, hereby decrees that members thereof who are adherents of the same political party shall not discuss public business at a private meeting where a quorum of Town Board members are present.
Shortly after the Harrison laws were passed, New York’s Committee on Open Government – an entity charged with protecting the public’s “Right to Know” or “Sunshine Laws” – issued an Advisory Opinion in which it opined the laws were appropriate despite the 1985 Open Meetings Law amendment.
A full copy of the opinion is embedded below and can be found here.
In explaining the rationale for its opinion, Committee on Open Government stated:
Due to the amendment, if used to an extreme, majority members of legislative bodies may conduct closed political caucuses to discuss the subjects of their choice, including matters of public business.
In reaction to the change in the Open Meetings Law, many local legislative bodies enacted local laws or adopted policies or rules to ensure that public business is discussed in public, regardless of the political party affiliation of their members. Via the local laws enacted by the legislative bodies of the Town and the Village clearly in response to the change in the Open Meetings Law, I believe that the Town Board and the Village Board of Trustees, must discuss public business in public, again, irrespective of the political party membership or adherence of their members…
… [A] local law may permit greater public access than required by the Open Meetings Law, and that is so with respect to the local laws considered here, for they are “less restrictive with respect to public access” than the Open Meetings Law.
The Brooklyn Law Review published an article in 1995, embedded below, that provides a good overview the interplay between Open Meetings Law and local government, wherein it states:
Section 110 also accords local governments a certain measure of autonomy in providing for greater public exposure to the political process. Section 110, subdivision 2, explicitly permits local governments to maintain pre-existing laws or regulations and adopt new such provisions so long as they facilitate greater public access than the Open Meetings Law provides.
In other words, local governments are expressly delegated the authority to spread more “sunshine” on their political processes. This local authority can be exercised without limitation even to specifically limit the political caucus exemption as determined by the local governmental body.
Where to go from here
For the past few weeks I have expressed my grave misgivings about these private meetings to members of the Legislature, but held back from speaking publicly in the hope that the private meetings on public matters would stop. However, I am extremely concerned this is quickly becoming the Legislature’s normal practice at a time when most people in our community are demanding greater openness from government.
It appears there are three options:
Engage in head-to-head party politics
One member of the Legislature recently answered my concern by stating that “elections have consequences.” Said another way, Republicans won, Democrats lost and the winners now get to set the rules.
The logical response would be for members of the Legislature’s minority and I to recruit Democrats to run next time and try to put that party in control so it can call the shots.
This, in my opinion, is government at its very worst and the reason so many people are turned off by politics altogether. Until now I have stated with pride that partisanship is not a factor in the Chemung County Legislature. However, that does not appear to be true at the moment. If we cannot find a way to fight against party gamesmanship here, at the local level, I am not sure what hope we have for true bipartisanship elsewhere.
File a legal action
There have been several appellate court cases since 1985 that limit what happens in caucuses, particularly in elected bodies where all members belong to the same political party. The rationale is that when the members of a caucus can do all of its business behind closed doors aside from vote, the public’s right to know is unlawfully curtailed.
In a 1992 case called Buffalo News, a Div. of Berkshire Hathaway Inc. v. City of Buffalo Common Council, the Erie County Supreme Court held a caucus that was held to discuss the budget in private was unlawful where all members of the Common Council belonged to one party:
In a divided Legislature where a meeting is restricted to the attendance of members of one political party, regardless of quorum and majority status, perhaps by that very restriction it would be fair to assume the meeting constitutes a political caucus.
However, such a conclusion cannot be drawn if the entire Legislature is of one party and the stated purpose is to adopt a proposed plan to address the deficit before going public. In view of the over-all importance of article 7, any exemption must be narrowly construed so that it will not render section 100 meaningless. Therefore, the meeting of February 8, 1992 was in violation of article 7 of the Public Officers Law.
The case is embedded below and found here.
To the best of my knowledge the question of whether this rationale applies to situations where an elected body is controlled by a super majority has never been litigated. It would be reasonable for a court to find that a body controlled by a super majority, like a body where all members belong to the same political party, can do all of the public’s business behind closed doors aside from vote and therefore characterize the recent “caucuses” in Chemung County unlawful because the requirements of New York’s Open Meetings Law were not met.
Even though I could do the legal work on a petition to avoid some cost, there is no question that some taxpayer money would be required, rending this an option highly undesirable, if not an outright nonstarter. No one wants litigation, particularly if there is an easy remedy as set forth below.
Pass a Local Law
In my opinion, passing a Local Law to prevent public issues from being addressed behind closed doors is the clear solution. Like the Town and Village of Harrison, the residents of Chemung County are best served if deliberations on public business are done in a public forum where interested members of the community can participate in the discussion and hear the views expressed by members of the Legislature.
If you agree, let your legislator know. A list of the Legislators and their contact information can be found here.