According to a 2019 report, the Metropolitan Transit Authority’s (“MTA”) Traffic Mobility Review Board (“TMRB”) will meet behind closed doors to consider how best to institute “congestion pricing.”¹ According to the MTA, the TMRB — which is tasked with recommending toll prices for drivers entering Manhattan’s central business district — is not subject to New York State’s Open Meetings Law.

A spokeswoman for the MTA argued that TMRB’s meetings do not need to be open to the public because the TMRB won’t be performing “governmental action subject to the Open Meetings law.” The MTA’s position that the TMRB may conduct business behind closed doors, coupled with the fact that the TMRB’s recommendation won’t be released until after the 2020 state legislative elections, have led to criticism that the TMRB’s recommendation and process will lack transparency. It also highlights an interesting issue regarding what entities are subject to New York’s Open Meetings Law.

With limited exceptions for “executive sessions,” the Open Meetings Law provides that “every meeting of a public body shall be open to the general public.”² Accordingly, the question of whether the TMRB is subject to the Open Meetings Law turns, at least in part, on whether the TMRB qualifies as a “public body.” If the TMRB is not a “public body,” or if its gatherings do not constitute “meetings,” then it is not subject to the Open Meetings Law.

Under the Open Meetings Law, a public body is defined as “any entity, for which a quorum is required in order to conduct business and which consists of two or more members, performing a government function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body.”³

Using this standard, courts have held that an entity that exercises only an advisory function does not qualify as a public body under the Open Meetings Law.⁴ Therefore, in considering whether an entity is subject to the Open Meetings Law, Courts look at whether the entity has power on its own to implement its recommendations.⁵

On the other hand, even where an entity purports to be merely advisory and does not wield the powers of other municipal departments, Courts have held that such entities are nonetheless “public bodies” for purposes of the Open Meetings Law where “it is clear that their recommendations have been adopted and carried out without exception.”⁶

Accordingly, the question of whether the TMRB is subject to the open meetings law may turn not only on its formal authority, but also on whether its recommendations are rubberstamped, modified, or investigated further by the decision-making entity.

The lesson from this is clear: an entity that is technically only advisory may nonetheless become subject to the Open Meetings Law if its decision end up getting rubberstamped. In other words, if a Court finds that an advisory body’s recommendations are being adopted and carried out without exception (i.e., if the Court finds that the advisory entity is the one that is really calling the shots), then it may determine that the advisory entity is performing a governmental function, that it constitutes a “public body” under the Open Meetings Law, and therefore that its meetings must be open to the public.

Accordingly, the MTA should be very careful about how it handles the TMRB’s recommendations. As explained above, a decision to rubberstamp the TMRB’s recommendations, without public hearings and debate, may inadvertently strengthen the position of those arguing that the decision to allow the TMRB to meet behind closed doors violates the Open Meetings Law. If that happens, the TMRB could be found guilty of Open Meetings Law violations, have a decision on its recommended “congestion pricing” annulled, and/or be ordered to pay the prevailing party’s attorneys’ fees under Section 107 of the Public Officers Law. These factors both incentivize government actors to err on the side of complying with the Open Meetings Law and provide those excluded from such public meetings with a viable path to vindicating any violations thereof.

If you have questions about whether an entity or board in your area is subject to the Open Meetings Law, and whether you have the right to attend such meetings, an experienced attorney may be able to help. If you are a member of such a board, it’s important to err on the side of transparency and public access so that you don’t wind up getting sued for violating the Open Meetings Law.

For inquiries related to the Freedom Of Information Law, the Freedom of Information Act, the Open Meetings Law, and other Municipal Law issues, please contact Jacob H. Zoghlin, Esq. or Mindy L. Zoghlin, Esq. at The Zoghlin Group, PLLC.

• 1

  See “Congestion Charge To Be Decided Behind Closed Doors: Report,” By Brendan Krisel, Patch.com, November 18, 2019, available at https://patch.com/new-york/midtown-nyc/amp/28417691/congestion-charge-to-be-decided-behind-closed-doors-report.

• 2

  Public Officers Law § 103(a) (emphasis added).

• 3

  Public Officers Law § 102(2).

• 4

  Goodson Todman Enterprises, Ltd. v. Town Bd. Of Milan, 151 A.D.2d 642, 643 (2d Dept. 1989) (“Goodson”); Smith v. City University of New York, 92 N.Y.2d 707, 713-714 (1999) (“Smith”).

• 5

  Poughkeepsie Newspaper Div. of Gannett Satellite Information Network v. Mayor’s Intergovernmental Task Force On New York City Water Supply Needs, 145 A.D.2d 65, 67 (2d Dept. 1989) (“Poughkeepsie”).

• 6

  Syracuse United Neighbors v. City of Syracuse, 80 A.D.2d 984, 985 (4th Dept. 1981) (“Syracuse United Neighbors”)

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