Decision No. 12,549

(July 18, 1991)

SOBOL, Commissioner.--Petitioner appeals from action taken by respondent board at its meeting on August 29, 1990, and from determinations made at two subsequent meetings. The appeal must be dismissed.

At the time of the August 29, 1990 regular meeting, respondent board consisted of nine members including petitioner. On August 29, 1990 only four board members were present at 8:00 p.m. when the meeting was scheduled to convene. Petitioner and four other members were absent. Nevertheless, the board president convened the meeting at 8:15 p.m. In the absence of a quorum, a plaque was presented to a retiring employee, the superintendent gave a status report, and a committee chairman gave a status report on certain construction projects underway in the district. At that point the floor was opened to members of the public to bring matters before the board.

At approximately 9:05 p.m., before any resolution was offered or voted on, a fifth board member arrived. Shortly thereafter, a resolution was offered to confirm the minutes of the previous meeting and was approved 5-0. Thereafter, by votes of 5-0 the board approved approximately twenty more resolutions dealing with a variety of topics including contracts, personnel resignations and terminations, athletic coaching assignments, and instructional appointments.

At the next board meeting conducted on September 5, 1990, at which eight of the nine board members were present, petitioner stated that he felt that the previous meeting was not legal because of the lack of a quorum and that anything that occurred at that meeting should be "expunged" and another meeting held. The board does not appear to have taken any action with respect to this matter.

On October 3, 1990 when eight of nine members were present, petitioner opposed the approval of the minutes of the August 29 meeting on the ground that the meeting violated board policy #2202, governing the quorum requirement and the order of business to be followed at a regular board meeting. By a vote of 7-1, the board approved the minutes of the August 29 meeting.

Petitioner contends that for a period of approximately 50 minutes at the beginning of the August 29 meeting, the board met illegally because it did not have a quorum of five members as required by board policy #2202, and in violation of Public Officers Law '102. He further claims that the board conducted business not in the order prescribed by policy #2202. He asks that I declare the August 29 meeting null and void, that the approved minutes of that meeting be "expunged," that the four board members who began that meeting be censured, and that the other eight board members be admonished for approving the minutes of the August 29 meeting at the October 3 meeting (although I note that one of those members was actually absent from the October 3 meeting because of illness and clearly took no part).

Respondent contends that the appeal is untimely since it seeks to nullify board actions taken on August 29, 1990, but was not served upon respondent until October 17, 1990. Respondent does not deny that a quorum was lacking for approximately 50 minutes on August 29, but points out that no resolutions were moved or voted upon and that all formal votes taken at the meeting were done when five members were present and actually voted. Respondent further claims that no violation of the Open Meetings Law occurred and that in any event the Commissioner is without jurisdiction to enforce that law.

To the extent that petitioner seeks to annul the actions taken at the August 29 meeting, I find that this appeal is untimely since it was not commenced until 49 days after the meeting. The minutes of the September 5 meeting indicate that petitioner knew of the claimed irregularities at the August 29 meeting no more than a week after they occurred, yet he took no action until two weeks after the October 3 meeting confirmed the minutes over his opposition.

I would dismiss the appeal even if it were not untimely. Board policy #2202 states that five board members constitute a quorum, and further that if a quorum is not present "within twenty minutes after the time set for a meeting, the members then in attendance may adjourn to any date prior to the next scheduled meeting." Petitioner contends that under the circumstances of the August 29 meeting, the board's only option was to schedule, or not schedule, a "replacement meeting" prior to the next scheduled meeting. Because of the permissive language used in the policy, I would disagree. I believe the board members present could have waited more than twenty minutes to see if a quorum could be assembled. They did so and a quorum was achieved at 9:05 p.m.

Petitioner's reliance on Public Officers Law '102 is misplaced. Alleged violations of the Open Meetings Law cannot be pursued in an appeal to the Commissioner (Appeal of Como, 30 Ed Dept Rep 214; Appeal of Weaver, 28 id. 183; Matter of Bd. of Ed., Cornwall CSD, 25 id. 250). In any event, the minutes of the August 29 meeting clearly indicate that members of the public were present both before and after a quorum was formed.

If the August 29 meeting violated any law, one must look to General Construction Law '41. Under that provision, respondent board needed a quorum of five members present on August 29 to "perform and exercise such power, authority or duty." A review of the case law indicates that it is the voting and exercising of power by a "majority of the whole number" that is the critical determination the courts have been called upon to make (See, e.g., Board of Education of the City of New York v. Alonso, 60 Misc. 2d 709). I conclude that, although the meeting was commenced without a quorum, no duty was performed or authority exercised without a quorum and I see no basis for setting aside the votes taken on August 29.

To the extent that petitioner challenges the actions taken on October 3, his appeal is timely. However, there is no indication that the minutes of the August 29 meeting, as approved on October 3, do not accurately reflect what actually transpired at that time. As a result, petitioner's real objection is that the board did not act to rescind its prior actions not that it approved the prior minutes. As such, the petition fails to state a cause of action.

I have considered petitioner's other claims and find them to be without merit.

Although I dismiss this appeal, I caution the board that if, in the future, a quorum is not present after twenty minutes and those members present wish to wait longer, a meeting of the board should not be convened until a quorum is actually present.

THE APPEAL MUST BE DISMISSED.

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