By Justin Sondel
Niagara Gazette — For many years in the city of Niagara Falls, a majority of city council members have gathered in between scheduled, publicly announced bi-monthly meetings for dinners at local restaurants.
In what has evolved into something of a tradition, the cost for the meals has been covered by taxpayer dollars.
When asked for his opinion on the legality of the meetings by the Niagara Gazette, the state’s leading expert on open government rules — Robert J. Freeman — questioned the practice, especially when it involves a group of city lawmakers representing the council majority and when the cost of their meals are being covered with city funds.
“We generally assume that when the majority of a council has gathered that the open meeting law applies,” said Freeman, the executive director of the state’s Committee on Open Government.
Any gathering of a public body where a majority of elected or appointed members are present forms a quorum — the minimum number of members required to conduct public business. Under state law, such gatherings are to be announced to the press one week in advance and be posted in a public space at least 72 hours ahead of time.
Freeman said that since city taxpayers are picking up the tab for the council meals, the conclusion can be made that lawmakers must be conducting city business while eating out together.
If during the course of their taxpayer-funded dinners council members discuss anything related to city business and it is not protected by attorney client privilege, then Freeman believes those in attendance are in violation of the law.
“They can’t have it both ways,” Freeman said. “If the city is paying for the meals, one can only assume that the members of the council and other city officials would be there in the performance of their duties.”
Council members say, as they understand it, there is no violation of the public meetings law.
They’re getting their advice from another city official who frequently joins them for between-meeting dinners — Corporation Counsel Craig Johnson who said he doesn’t see any issue with the dinners because they are being conducted in public places, namely local restaurants.
“They’re not meeting privately,” he explains. “It’s a social event more than anything.
“It’s not unusual for citizens in the restaurant to come over and chat with those at the table and vice versa. There’s certainly nothing secret or private that’s discussed and there’s certainly no transacting of city business.”
When asked by the Gazette how residents could be assured no city business was being discussed or transacted without a record of the gatherings or members of the press or the public directly involved, Johnson said he and his fellow city attorneys were there to make sure.
“That’s true, there are no records because it’s not a meeting,” he said. “If (council members) would tend to stray in that direction, then Mr. (assistant corporation counsel Tom) O’Donnell or I would reel them in but, so far, that hasn’t taken place.”
Johnson acknowledged that city business is sometimes discussed and that council members do, at times, ask for legal advice regarding issues, the content of which, he argues, is protected by client-attorney privilege.
“There are issues of common interest that are discussed,” Johnson said, “but no action is taken during these meetings, nor are there any votes.”
Johnson also maintains that when similar questions were raised about the informal council session years ago, Freeman’s office provided the city with a written ruling suggesting the gatherings were allowed under the law.
Johnson provided the Gazette with a copy of the Committee on Open Government’s advisory opinion on social gatherings as they relate to the open meetings law dated Feb. 9, 2000. In it, Freeman noted that, at the outset, the law pertains to meetings of public bodies, and that the courts have construed the term “meeting” expansively.
In his letter, Freeman referenced a 1978 state Court of Appeals’ decision that determined that any gathering of a quorum of a public body for the purpose of conducting public business constitutes a “meeting subject to open meetings law, “whether or not there is an intent to take action, and regardless of the manner in which a gathering may be characterized.”
In Freeman’s opinion, “inherent in the definition of ‘meeting’ is the notion of intent.” He wrote that if a majority of a public body gathers in order to conduct public business collectively, “as a body,” he believes such a gathering would constitute a ‘meeting’ subject to the law. Freeman noted that in the Appellate Division decision so-called “work sessions” and similar gatherings in which there was “merely an intent to discuss, but no intent to take formal action,” still constituted public meetings.
In his letter, Freeman reasoned that he did not believe open meetings law applied when members of a public body met “by chance or at a social gathering,” because there would be no “intent to conduct public business, collectively, as a body.” However, he noted, if, “by design,” the members of a public body sought to meet to socialize or to discuss public business formally or otherwise, “I believe that a gathering of a majority would trigger the application of open meetings law.”
Johnson pointed to the final paragraph of Freeman’s letter as being supportive of the city law office’s stance on the issue.
The paragraph reads: “If indeed the sole purpose of a gathering is social in nature, the open meetings law, in my view, would not apply. However, if during the social gatherings, a majority of the members of a public body begin to discuss the business of that body, collectively as a group, I believe that they should recognize that they are conducting public business without notice to the public and immediately cease their discussion of public business. Moreover, in that situation, I would conjecture that a court would determine that the public body would have acted in a manner inconsistent with law.”
In addition to Fruscione and Johnson, the dinner sessions have been attended on a regular basis since April by Council Chairman Glenn Choolokian and council members Charles Walker and Robert Anderson Jr. as well as Assistant Corporation Counsel Tom O’Donnell. Councilwoman Kristen Grandinetti stopped attending the dinners after the discretionary freeze was imposed in April.
The city council has been meeting for meals between sessions for decades, according to Fruscione.
“I think that the public knows,” he said. “It’s been going on for at least 50 years in city hall.”
Fruscione agreed with Johnson’s position that city attorneys are invited to the meetings to ensure that the council is acting appropriately.
Anderson, who has been on the city council for almost a decade, said he has always gone to the meals and has always thought them to be within the limits of open meetings laws, being that city attorneys attend as well.
“The bottom line is I’ve just been following suit,” Anderson said. “It’s been going on forever.”
The open meetings law has not been discussed in regard to the council’s dinners during the four years that Johnson has been the city attorney and he has not been made aware of any problems with prior councils meeting for meals between sessions, he said.
“As far as I know, it has never been an issue,” Johnson said.
Spending series This is the final story in the Gazette's four-part look at the spending habits of top city officials. View the entire series on our website, www.niagara-gazette.com.