This week, Governor Hochul signed legislation aimed at improving transparency of government at all levels.  The amendment to the Open Meetings Law mandates, as much as practicable, to have any resolutions, laws, rules, policies available to the public at least 24 hours in advance of the meeting at which they are discussed.  The new law does not prevent ‘walk on’ items entirely but does try and limit them. 

The new law (found here) amends New York State Open Meetings Law (Public Officers Law § 103).  The OML already requires documents, proposed resolutions, laws, rules, regulations, policies, or amendments, to be posted on the municipality’s web site prior to meetings where such documents or proposals would be discussed.   Critics have argued that the law, in practice, easily allows public entities to simply ‘walk on’ items at the last minute.  It has been said that this restricts the public from seeing and evaluating what their local government is about to act on. 

The change in law, effective as of November 18, 2021 aims to reduce the discretion and limit the so called ‘walk on’ or ‘carry on’ items.  The law mandates public entities post resolutions, policies, documents, etc., “to the extent practicable at least 24 hours prior to the meeting” at which they are discussed.  The law sets a new, more defined baseline notice of 24 hours’ notice of items to be acted on by the public body.  The change in law intends to curtail practices where last minute items were added to agendas with little or no public notice.  

In seeking to curtail that practice, the amendments still permit the ‘walk on’ item but those will be subject to greater scrutiny and thus challenge. Periodically, emergency resolutions or other ‘walk on’ items, are simply not available and cannot be posted 24 hours in advance of a meeting. But they may be necessary to meet legal or other deadlines.  This will still be possible relying on the “to the extent practicable” language. Municipalities should be mindful that questions may now arise when documents or proposed items are presented at a meeting without having been posted online.  By narrowing the timeframe in law, challenges to such action may be more likely. Under the Open Meetings Law, a successful challenge could result in nullifying the action taken and an award of attorney fees – both of which (obviously) should be avoided.

In seeking to comply with new law, public entities should adopt a policy and practice of posting all documents included in packages sent to board members, including the meeting agenda, at least 24 hours prior to the scheduled meeting.  If it is not practicable to do so for a certain item, explanation at the meeting would help to mitigate against any challenges to the walk on/carry-in item.  And, where it is not practicable to comply, documents should be posted as soon thereafter as possible. Also, pursuant to § 103, documents should be kept in hard copy by the municipality and made available for copying upon request. As a final note, the provisions may not apply to municipalities that do not maintain a routinely updated website and utilize a high speed internet connection.     

For questions about the new law or implementing it contact Jared Kasschau or Douglas Gerhardt or the Harris Beach attorney with whom you typically work. 

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.