Robert Phillips, David Rose, Neil Czerniak, Douglas Becker, Angela Carpenter, Patricia Chapman, Bonnie Watson, Charilla Sandstrom Conner, Karen Arthmann, and Beverly Fisher, Plaintiffs/, Petitioners,
County of Monroe, Monroe County Legislature of the County of Monroe, Wayne E. Zyra, as President of the Monroe County Legislature, David J. Barry, Jr., as the Clerk of the Monroe County Legislature and Maggie Brooks, in her capacity as the County Executive of the County of Monroe, Defendants/, Respondents.
This case is not published in a printed volume and its disposition appears in a table in the reporter.
Kenneth R. Fisher, J.
In this combined Article 78 proceeding and action for a declaratory judgment, defendants/respondents move to dismiss the Amended petition/complaint. The State of New York appeared by letter dated December 5, 2007, indicating that it would not be submitting papers. By stipulation of the parties, and contrary to the prior OTSC pertaining to the same, the parties ask the court to convert the motion to dismiss into a motion for summary judgment "pursuant to CPLR 3211(c) on due notice to all parties." Stipulation and Order, dated November 28-29, 2007, and endorsed as an order of the court on December 3, 2007. That request is granted.
The County defendants/respondents contend that plaintiff/petitioners lack standing to bring the proceeding. To the extent the challenge is to the constitutionality of the intercept program, as implemented by the County Legislature resolution, it appears that plaintiffs/petitioners indeed do lack standing. Havranek v. Mathews, 160 A.D.2d 1207, 1208 (3d Dept. 1990); Forward v. Webster Cent. School Dist., 136 A.D.2d 277, 280 (4th Dept. 1988). Even if standing was present, however, plaintiffs/petitioners cannot succeed on the merits of their claims.
CLAIMED VIOLATION OF COUNTY LAW 150-a(2) and 152(2)
Relying on Plumley v. County of Oneida, 57 A.D. 1062 (4th Dept. 1977) and McGovern v. Tatten, 213 A.D.2d 778 (3d Dept. 1995), plaintiffs/petitioners contend that the special meeting should be declared a nullity by virtue of the failure to comply with the two day notice requirement of County Law 150-a(2) and 152(2). The County defendants/respondents contend that the County Charter provisions relating to notice trump the County Law in this regard by virtue of County Law 2, and that a declaration of nullity is inappropriate given the attendance of all members of the legislature and their active participation in the meeting.
In Plumley, not all members attended the meeting, and the court held that the remaining members at the meeting could not cure the defect. Here all members attended, and so that case is distinguishable. "Moreover, if all members of a town board are present at a special meeting and participate therein, business may properly be transacted even though the two days' notice in writing was not given to all members." 25 NY Jur.2d Counties, Towns and Municipal Corporations 141, at 252-53 (2001). The Attorney General has consistently opined that, if all members are present and participate in the meeting, the defect is waived. 1980 Op. (Inf.) Att'y Gen. 129 (April 14, 1980); 1977 Op. Att'y Gen. 226; 1950 Op. Att'y Gen. 117. The Comptroller has opined to the same effect. 18 Op. St. Compt. 442, 443 (# 62-977
December 5, 1962)("presence of all members of a town board at a special meeting and their participation therein would satisfy that requirement"). See also, Brechner v. Village of Lake Success, 25 Misc.2d 920 (Sup.Ct. Nassau Co. 1960)(Meyer, J.) ("Since all of the Board members were present and voted, the ordinance may not be invalidated simply because oral rather than written notice of the meeting was given. 4 McQuillen, Municipal Corporations (3d Ed.) 13.37; 62 C.J.S. Municipal Corporations 297d, p. 756."), aff'd, 14 A.D.2d 567 (2d Dept. 1961), cited with approval, Alscot Investing Corp. v. Laibach, 65 N.Y.2d 1042, 1044 (1985). Accordingly, the County Law two day notice claim is without merit and a declaratory judgment to that effect may be submitted for signature.
OPEN MEETINGS LAW CHALLENGE
Plaintiffs/petitioners contend that the special session of the legislature was called to order in violation of Public Officers Law 104. The county defendants/respondents respond that they made extraordinary efforts to alert the public, through the news media and via internet and other channels, of the meeting and to ensure widespread public access. Moreover, it is undisputed that the public attended the meeting and plaintiff/petitioners acknowledged that at least two members of the public made comment during the meeting. There was also a motion to adjourn which was defeated by a majority vote. The court finds that the procedure used, while truncated, was designed to ensure that the goals of the open meetings law would be met by throughly public deliberation and vote, and thus was reasonable within the meaning of the statute. Even if there was a violation of the statute effected exclusively by the truncated nature of the public notice (and I find that there was not, see below), invalidation is not an appropriate sanction. Only if good cause is established, is it discretionary with a court to nullify an action taken by a public body in violation of the Open Meetings Law. Public Officers Law 107; Matter of New York Univ. v. Whalen, 46 N.Y.2d 734; McGovern v. Tatten, 213 A.D.2d 778. It is the challenger's burden to show good cause warranting voiding the public action. Gernatt Asphalt v. Sardinia, 87 N.Y.2d 668, 686 (1996).
The purpose of the Open Meetings Law is to prevent municipal governments from debating and deciding in private what they are required to debate and decide in public (see, Matter of Gordon v. Village of Monticello, 87 N.Y.2d 124, 126-127; Matter of Sciolino v. Ryan, 81 A.D.2d 475, 440 N.Y.S.2d 795). Courts are empowered, "in their discretion and upon good cause shown, to declare void any action taken by a public body in violation of the mandate of this legislation" (Matter of New York Univ. v. Whalen, 46 N.Y.2d 734, 735 [emphasis in original]; see, Public Officers Law 107 ). It is the challenger's burden to show good cause warranting judicial relief (Matter of New York Univ. v. Whalen, 46 NY2d, at 735, supra ).
Gernatt Asphalt Products, Inc. v. Town of Sardinia,
87 N.Y.2d 668, 686 (1996). As in Mobil Oil Corp. v. City of Syracuse Indus. Development Agency, 224 A.D.2d 15 (4th Dept. 1996), "Petitioners have not met their burden of establishing that the . . . [County Legislature] carried out public business in private." Id., 224 A.D.2d at 29-30. The resolution was adopted at a special session "open to the public," and by all accounts well attended. Griswald v. Village of Penn Yan, 244 A.D.2d 950, 951 (4th Dept. 1997).
See also, Schweichler v. Village of Caledonia A.D.3d, 2007 WL 3318068 (4th Dept. November 29, 2007); Carrier v. Town of Palmyra Zoning Bd. of Appeals, 30 A.D.3d 1036, 1038 (4th Dept. 2006), and esp. Monroe-Livingston Sanitary Landfill, Inc. v. Bickford, 107 A.D.2d 1062 (4th Dept. 1985)(involving same day public notice of special session deemed reasonable under ...