In-person quorum mandate disrupts Town committees

A State-mandated policy requiring members of advisory boards and committees to have in-person quorums is bringing some Town functions to a standstill. The reason for the logjam is that a great deal of work is performed not by professional department workers, but volunteers.

All Town committees — except the Town Board, Planning Board and Zoning Board of Appeals — are advisory, and can’t make final decisions.

That raises the question among many on the advisory committees and boards whether members can be held to the same requirement for in-person quorums.

Much work is being delayed because volunteer members who once were able to participate virtually have been barred from being counted as part of a quorum.

Since the State law took effect requiring in-person attendance to be counted as part of a quorum, Town Attorney Stephen Kiely has advised that even if there are no votes at an advisory meeting, discussing subjects could eventually lead to jeopardizing Town Board decisions.

Mr. Kiely, therefore, said no meeting could be held without an in-person quorum. Appeals to the town attorney have not changed his advice.

The public can still witness meetings virtually and are generally given opportunities to comment.

The Town’s Comprehensive Plan Task Force and Advisory Committee were due to resume meetings Jan. 23, but rescheduled to Jan. 30, and canceled again for lack of a quorum. The next meeting isn’t currently planned until late this month.

Members of the Community Preservation Fund have objected to the requirement that could delay their work. Green Options Committee Chairman Tim Purtell has said the quorum requirement is affecting his ability to hold monthly meetings.

And the Waterways Management Advisory Council (WMAC) has expressed concern about the quorum requirement and decided to take action.

An email from WMAC member James Eklund to Assemblyman Fred Thiele Jr. (D-Sag Harbor) sought an answer to whether advisory committees and boards had to be held to the same standards as elected and paid governmental officials.

Mr. Eklund pointed out that he has been a WMAC member for about 15 years; a member of the Water Quality Improvement Advisory Board for several years and chairman for four years; and a member of the Fresh Pond Remediation Committee for the past few years.

Mr. Eklund applauded the implementation of virtual meetings during the pandemic to keep people safe. But ending the ability of committee members to meet without an in-person quorum causes “a serious problem,” he said.

Virtual meetings allowed work to proceed. The requirement to have an in-person quorum in a Town that lacks many departments to carry on work between committee meetings has brought some important functions to a standstill.

In addition,  a committee member who misses more than 20% of meetings can be removed, Mr. Eklund said.

“For a place like Shelter Island, this is a large issue,” he said in his email to Mr. Thiele.

The WMAC, which relies on members with hands-on experience could potentially lose many participants, he said. “I would ask you to please try and convince the powers-that-be in Albany to reconsider their position on this,” Mr. Eklund wrote. “New York is a large state made up of a myriad of small towns that have varying needs based on their population and location,” he said. “I ask that there be some flexibility allowed in how local committees are administered.”

Prior to the pandemic, a member unable to attend a meeting in person would have to advertise his or her location and arrange for both video and sound to be transmitted to the meeting room.

The law stipulated that a provision be provided for anyone in the area where the member was participating virtually to join that person.

In actuality, the fact that a member was participating virtually was generally not advertised in advance, but usually  the member was able to be seen and heard in the meeting room in order to be counted as part of the quorum and eligible to cast a vote.

Mr. Thiele wrote back saying the query took considerable research, mostly because of a lack of court decisions on the subject. “First, the most relevant issue is whether an advisory committee is a ‘public body’ to which the provisions of the Open Meetings Law apply,” Mr. Thiele said. “Judicial decisions have indicated generally that advisory bodies, having no power to take final action, fall outside the scope of the Open Meetings Law, other than committees consisting solely of members of other public bodies.”

That would affect the Capital Plan/Grants Committee, chaired by Councilman Jim Colligan and members who are all paid town employees: Deputy Supervisor Amber Brach-Williams, Police Chief Jim Read, Town Engineer Joe Finora and Highway Superintendent and Public Works Commissioner Brian Sherman.

Based on one court decision and State Committee on Open Government, the State Legislature amended the definition of what constitutes a public body, Mr. Thiele said.

The Open Meetings Law now provides that a quorum is required if two or more members are appointed to perform a necessary function in the decision-making process that doesn’t require further action by the town, the legislator said.

But he noted that it would be “inappropriate for me to offer an opinion about a particular advisory committee,” adding that the State Committee on Open Government would be helpful in evaluating the law as it currently stands.