I. Quorum And Voting Requirements
Charter Section 2801 states:
a. A majority of the appointed members of any community board shall constitute a quorum of such board.
b. Whenever any act is authorized to he done or any determination or decision made by any community board, the act, determination or decision of the majority of the members present entitled to vote during the presence of a quorum shall be held to be the act, determination or decision of such board.
To comply with this section, Community Boards should abide by the following procedures:
(1) Quorum Requirement: A quorum must be present in order for a Board or committee meeting to convene or for any vote to be official. A quorum consists of a simple majority, i.e., more than half of the appointed members of the Board. If a Board has fifty members, a quorum is twenty-six. If a Board has forty-nine members, a quorum is twenty-five. If a Board has forty or forty-one members, a quorum is twenty-one. Public members and ex-officio members are not counted toward a quorum.
(2) Tabulating Votes: When a vote is taken, all Board members who are present and entitled to vote must either vote or abstain. No member may be marked "present but not voting." In order for a motion to pass a majority (more than half) of the members present who are entitled to vote must vote in the affirmative in order for the motion to pass. There must be more "yes" votes than the combination of "no" votes and abstentions in order for a measure to be carried. So, an abstention by a member who is entitled to vote has the effect of that member "voting "no" for the purpose of determining the outcome of the vote.
Example: Twenty-six members of a fifty-member Board are present, and all are entitled to vote on the matter on the floor. A vote is taken, seven members abstain, nine members vote "no," and ten vote "yes." Even though there are more 'yes" votes than "no" votes, the motion has not been approved, because the ten voting "yes" are not more than half of those present who are entitled to vote. For the motion to have carried, fourteen members would have had to vote "yes." Even a thirteen "yes," one "no," twelve "abstain," vote would fail to pass.
There are clear guidelines (listed in the next section) governing when Board members are not entitled to vote, so members who are entitled to vote should be very judicious about when they abstain.
(3) "Entitled To Vote?" All appointed members are deemed "entitled to vote" on matters before their Board or committee unless specifically excluded by some provision of law, City regulation, etc. As unpaid public servants, all Community Board members are governed by the City's Conflicts of Interest Law (City Charter Chapter 68). There are currently three restrictions on voting by Community Board members, in accordance with the Charter and opinions issued by the Conflicts of Interest Board (COIB):
a. A Community Board member is not entitled to vote on any matter that may result in a personal and direct economic gain to the member or any person or firm with whom the member is "associated." (Charter Section 26O4-b-1-b).
b. A Community Board member who is a City employee is not entitled to vote on any matters pertaining to the member's agency. This pertains to employees of all mayoral agencies and non-mayoral agencies subject to the Conflicts of Interest Law (Board of Education, Community School Boards, School Construction Authority, Health and Hospitals Corporation, NYC Housing Authority). (COIB Advisory Opinion 91-3)
c. A Community Board member who serves on the board of directors of a not-for-profit organization is not entitled to vote on Board resolutions recommending funding by City agencies for that organization; voting would be "taking a direct or indirect part" in the organization's business dealings with the City. (Charter Section 2604-c-6)
(NOTE: The CAU memorandum "Conflicts of Interest: What Every Community Board Member Should Know" contains more details about conflicts of interest restrictions. If you have any questions, you can call Les Taub of CAU at 212-788-8367, or contact the COIB at 212-442-1400.)
If a Board member is not entitled to vote on a matter as a result of complying with the restrictions concerning conflicts of interest, then the number of members entitled to vote on that matter is reduced, and the majority required for passage is reduced accordingly. When a vote is taken, a member not entitled to vote due to a conflict of interest is not counted as abstaining. However, such a member is counted as present for the purpose of maintaining a quorum. It is suggested that such members be marked "present but not entitled to vote" rather than "abstaining for cause," to make sure that votes are properly tabulated.
Example: If a fifty-member Board has a quorum of twenty-six members present and two members are excluded from voting, the number of members entitled to vote on that question drops from twenty-six to twenty-four and the number needed for passage becomes thirteen (a majority of twenty-four) instead of fourteen.
(4) Open Ballots: The Open Meetings Law (OML) requires public bodies to maintain minutes that include all "matters formally voted upon by the public body and the vote thereon," (POL Sec. 106), and the Freedom of Information Law (FOIL) requires public agencies to "maintain a record of the final vote of each member in every agency proceeding in which the member votes" (POL Sec. 87-3-a, emphasis added). Therefore, no Community Board vote, including the election of officers may be conducted by secret ballot. Such elections may be conducted using signed paper ballots, by roll call, or by any other means by which each Board member's vote is recorded and can be made public. Each Board must create a record listing each member's vote and make the record available to the public by its inclusion in the minutes of the meeting.
(5) Chairperson Voting: Community Board chairpersons have the same voting rights as other members. A Board's by-laws may not exclude the chairperson from voting on matters before the Board, or restrict the chairperson to voting only to break a tie. If a chairperson is entitled to vote on a matter, he or she must vote or abstain, and be counted for or against passage of the matter.
(6) "Super-Majority" Votes: Since City Charter Section 2801-b states that any action of a community board shall be authorized by a majority vote of the members present and entitled to vote, the requirement of a two-thirds or other "super-majority" vote authorizing any action is not permitted.
II. Public Hearings And Public Sessions
Charter Section 2800-h states (in part), "Except during the months of July and August, each Community Board shall meet at least once each month within the community district, and conduct at least one public hearing each month... At each public meeting, the board shall set aside time to hear from the public...
(1) Public Hearings: Community Boards may hold public hearings on any matter relating to the welfare of the district. Boards are required to conduct two public hearings during the budget process, and one during their review of the Citywide Statement of Needs. There is no Charter requirement for the presence of a quorum in order for a Community Board to hold these public hearings. There is an exception for Community Board public hearings held as part of City Planning's Uniform Land Use Review Process, which requires the attendance of 20 percent or seven of the Board's appointed members (whichever is greater). Also, any action or vote taken by a Community Board may occur only if a quorum is present.
(2) Public Sessions: The requirement for "hearing from the public" was added to the Charter in 1989, and provides that a so-called "public session" be conducted even if a Community Board has held a public hearing on a specific issue that month. The Charter does not specify how or how much time should be set aside to hear from the public. Some Community Boards hold these sessions before Board business is conducted, while other Boards hold them at the conclusion of their meetings. In either case, the presence of a quorum of Board members is required to conduct this session, as it is during the remainder of the Board meeting. Also, Boards may establish reasonable time limits for the duration of their public sessions.
III. Open Meetings And Public Participation
Meetings of Community Boards and their committees are open to members of the public, who may observe but may not participate without the Board's consent, except during the portions of the meetings set aside for the public to speak, as noted above. During the business portion of the meeting, a member of the public may participate only if granted permission by the Board, or if on the agenda as an invited speaker about the matter under discussion.
IV. Open Meetings Law
The New York State Open Meetings Law permits public bodies to close portions of their meetings to the public ("go into 'executive session'") only when certain specific issues are to be discussed and the correct procedure to close a meeting is followed. This section summarizes the requirements of the Open Meetings Law (Public Officers Law, Sections 100-108, OML) concerning when and how meetings of public bodies may be closed to the public. The law requires all deliberations to be open to the public (with certain exceptions not applicable to Community Boards) unless one of the specific conditions for entering into a closed meeting as listed in section 105 of the OML is met. Subjects that may be discussed in closed meetings include
A. Matters which will imperil the public safety if disclosed;
B. Any matter which may disclose the identity of a law enforcement agent or informer;
C. Information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed;
D. Discussions regarding proposed, pending or future litigation;
E. Medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation;
The OML requires several procedural steps in order to close a meeting for executive session (closed to the public). First, a motion to enter into executive session must be made during an open meeting, and the motion must identify "the general area or areas of the subject or subjects to be discussed." Then, the motion must be carried by a majority vote of the total membership of the public body. This is a more stringent requirement than for other Board actions that require a simple majority vote in the presence of a quorum.