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Saturday, November 26, 2005

New York Court of Appeals Rules Community College Senate, Senate Executive Committee Subject to Open Meetings and Open Records Laws

In Perez v. City University of New York, the New York Court of Appeals has ruled that a Community College Senate and its Executive Committee are subject to the state's open meetings and open records law. In this case, student Perez had tried to enter an Executive Committee meeting and to give an Executive Committee member a petition, which the member had refused to accept. As the court pointed out, the committee was not at that time in Executive Session. Perez was the second student denied entrance to a non-executive session within a matter of a few months.

Said the court, "Petitioners initiated an article 78 proceeding, arguing that the College Senate and the Executive Committee were subject to the Open Meetings Law and the Freedom of Information Law. Supreme Court granted the petition, but the Appellate Division reversed, concluding that the Senate was only an advisory body and thus outside the purview of the Open Meetings Law and the Freedom of Information Law. We agree with Supreme Court and now reverse the Appellate Division order and reinstate the judgment of Supreme Court."

The court discussed at length whether the Senate and its committees were "public bodies" for purposes of the law and found that they were. "Here, we are persuaded that the College Senate and its Executive Committee...are exercising a quintessentially governmental function. The College Senate’s organizational structure is set forth in the Governance Charter, which mandates that the Senate conduct business only if a quorum is present and that the Senate and its committees conduct meetings pursuant to Robert’s Rules of Order Newly Revised. The members of the Senate elect representatives to the Committee on Committees, which has sole, non-reviewable authority to select members to the College Senate’s other standing committees, some of which exercise non-reviewable power regarding disciplinary findings and punishments, academic disputes and scholarship awards. The Executive Committee schedules regular and special Senate meetings, determines what is appropriate Senate business, sets the agenda for the Senate meetings and conducts all business between Senate sessions. Key to our conclusion in this case is the record evidence that the College Senate (which includes its Executive Committee) has been charged with a number of the responsibilities delegated by the Legislature to the CUNY Board and that the Senate functions as a proxy for the faculty councils authorized by the CUNY bylaws. The Senate is to recommend policy on all college matters to the Board. The Senate is explicitly imbued with the power to formulate new policy recommendations and review existing policies, forwarding those recommendations to the Board of Trustees in areas as far-reaching as college admissions, degree requirements, curriculum design, budget and finance; it is represented on all committees established by the College President; it is to review proposals for and recommend the creation of new academic units and programs of study; it must be consulted prior to any additions or alterations to the College’s divisions; and it is the only body that can initiate changes to the College Governance Charter. Under CUNY’s comprehensive university governance scheme, the College Senate is the sole legislative body on campus authorized to send proposals to the CUNY Board of Trustees, and although the policy proposals must first be approved and forwarded by the College President, they overwhelmingly are. While the CUNY Board retains the formal power to veto recommendations of the College Senate, that does not in and of itself negate the Senate’s policy-making role or render the Senate purely advisory. Realistically appraising the Senate’s function, we conclude that the Appellate Division erred in holding that the Senate was only an advisory body (contrast Snyder v Third Department Judicial Screening Committee, 18 AD3d 1100 [3d Dept 2005] [proceedings of Judicial Screening Committee not subject to the Freedom of Information or Open Meetings laws because its role is limited to providing information to appointing authority]). As Supreme Court held, "the college senate and the executive committee thereof constitute integral components of the governance structure of Hostos Community College. The senate and its executive committee perform functions of both advisory and determinative natures which are essential to the operation and administration of the college" (195 Misc 2d 16, 33 [Sup Ct, Bronx Cty 2002])."

Read the entire opinion here.

http://lawprofessors.typepad.com/media_law_prof_blog/2005/11/new_york_court_.html

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