Can a New York city pay back a council member's court filing fees for a personal Open Meetings Law lawsuit against the city that was dismissed?

Plain-English summary

A Batavia City Council member, dissatisfied with the council's executive session discussion of a proposed water plant land acquisition, filed an Article 78 proceeding alleging an Open Meetings Law violation. The case was dismissed without prejudice for incorrect filing and service, and was never refiled. The member then asked the city to reimburse her filing fees (about $245). The city attorney asked the AG whether the reimbursement was permissible.

The AG concluded no. The analysis turned on two structural rules.

First, the New York Constitution's gift-or-loan clause (Art. VIII § 1) bars municipalities from making payments to individuals that lack legal authorization. Corning v. Village of Laurel Hollow (1979) extended that rule to litigation expenses incurred by public officials: such payments require either statutory or appropriate legislative authority, or special "extraordinary circumstances."

Second, the implied-authority doctrine from Cahn v. Town of Huntington (1972) allows a municipal officer to retain counsel (and recover fees) when acting in good faith "in the public interest, and in conjunction with [the officer's] official duties." Both express and implied authority therefore turn on whether the activity is within "official duties."

The AG concluded that bringing an Open Meetings Law suit was not within a city council member's official duties. The Open Meetings Law (Public Officers Law §§ 100-111) gives standing to "any aggrieved person" (§ 107(1)) and authorizes a court in its discretion to award costs and reasonable attorney's fees to "the successful party" (§ 107(2)). A council member who sues to enforce the OML acts in the same capacity as any other private citizen, a "private attorney general" (Sanna v. Lindenhurst Bd. of Educ.). Public officials are subject to the Open Meetings Law and obliged to comply with it; the law does not assign them a special role in judicial enforcement.

Cahn was distinguishable because the dispute there involved which town body controlled the planning staff. Litigation authority was implied to allow the Planning Board to perform its statutorily-created functions. Here, the City Council's ability to function did not depend on a single member's OML lawsuit.

The AG also addressed Ruotolo v. State (1954), which permits retroactive payment that rests on an "adequate moral obligation." The AG noted that the moral-obligation test requires "some higher obligation of honor, fairness or broad public responsibility," tantamount to ensuring a "travesty of justice" does not occur. A dismissed-without-prejudice suit voluntarily abandoned by the petitioner did not meet that bar.

A footnote addressed the related concept of legislator "capacity" from Silver v. Pataki (Speaker had capacity to challenge line-item veto because protecting integrity of his vote was within his "functional responsibility"). The AG observed that under the capacity analysis, a legislator's "functional responsibility" includes obeying the Open Meetings Law, but does not include suing to enforce it. The capacity test reaches the same result.

Finally, the AG observed that the section 107(2) fee shifting mechanism is the legislature's chosen way to handle OML litigation costs: a successful litigant can recover; an unsuccessful one bears the cost. Allowing municipal reimbursement outside that mechanism would invite collusion between officers and their attorneys, a concern the Court of Appeals flagged in Cahn.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What if the lawsuit had succeeded?

Public Officers Law § 107(2) gives the court discretion to award costs and reasonable attorney's fees to the successful party. A successful OML suit by a council member could yield a fee award; the council member would recover under § 107(2), not from the municipality through reimbursement.

Does this mean the city attorney can never represent a council member in a personal suit?

The opinion addresses reimbursement of personal litigation expenses, not direct representation by counsel. The general rule remains that municipal funds can support an officer's litigation only when the suit is within official duties, or extraordinary circumstances apply, or there is express statutory authority.

What if the council member's suit was on behalf of the entire council (not personal)?

The AG's analysis would change. A suit brought by the council as a body, with authority delegated by the council, would sit within the council's collective official duties. The Batavia situation involved a single member acting alone.

What's the gift-or-loan clause about?

N.Y. Const. Art. VIII § 1 forbids counties, cities, towns, villages, and school districts from giving or lending money or property to individuals. The provision is structural: it forces municipal payments to flow only through legal authorizations (statute, contract, judgment, etc.).

Could the City Charter solve this?

The Batavia City Charter said "Council members may be reimbursed for actual expenses incurred in the performance of their official duties." That tracks the official-duties test. The AG concluded the OML suit was not within official duties, so the Charter did not authorize reimbursement.

Background and statutory framework

N.Y. Const. Art. VIII § 1 is the gift-or-loan clause: "No county, city, town, village or school district shall give or loan any money or property to or in aid of any individual."

The Open Meetings Law, Public Officers Law §§ 100-111, declares its purpose in § 100 (citizens "must be able to remain informed if they are to retain control over those who are their public servants"). § 103(b) requires meetings of public bodies to be open to the general public. § 107(1) gives "any aggrieved person" standing to enforce the law. § 107(2) gives the court discretion to award fees and costs to the "successful party."

Corning v. Village of Laurel Hollow (1979) establishes the standard for reimbursement of officer litigation expenses: requires statutory authorization, appropriate resolution by the governing body, or extraordinary circumstances.

Cahn v. Town of Huntington (1972) supplies the implied-authority framework: municipal boards or officers may employ counsel "in the good faith prosecution or defense of an action undertaken in the public interest, and in conjunction with its or his official duties" where the municipal attorney refuses, is incapable, or is disqualified.

Ruotolo v. State (1954) recognizes a narrow "moral obligation" exception: retroactive compensation may not offend Art. VIII § 1 if grounded in some higher obligation of honor, fairness, or broad public responsibility (essentially, failing to pay would condone a travesty of justice).

Silver v. Pataki (2001) discusses the related concept of legislative capacity (a legislator has capacity to sue when she has "functional responsibility within the zone of interest to be protected"). The AG used Silver mainly to confirm that the capacity test yields the same outcome here.

Citations

• N.Y. Const. Art. VIII § 1 (gift-or-loan clause).
• Batavia City Charter § 3.4 (council member expense reimbursement).
• Public Officers Law §§ 100-111 (Open Meetings Law).
• Public Officers Law § 100 (legislative declaration of purpose).
• Public Officers Law § 103(b) (meetings open to the public).
• Public Officers Law § 107(1) (standing for any aggrieved person).
• Public Officers Law § 107(2) (court may award fees and costs to the successful party).
• Corning v. Village of Laurel Hollow, 48 N.Y.2d 348 (1979) (reimbursement of officer litigation expenses requires statutory or resolution authority or extraordinary circumstances).
• Cahn v. Town of Huntington, 29 N.Y.2d 451 (1972) (implied authority to employ counsel in conjunction with official duties).
• Moffatt v. Christ, 74 A.D.2d 635 (2d Dep't 1980), aff'd 51 N.Y.2d 806 (Appellate Division reasoning adopted).
• Ruotolo v. State, 83 N.Y.2d 248 (1954) (moral obligation exception to gift-or-loan clause).
• United States v. Hoffer, 869 F.2d 123 (2d Cir. 1989) ("official duties" defined as core responsibilities).
• Silver v. Pataki, 96 N.Y.2d 532 (2001) (legislator capacity within zone of interest).
• Sanna v. Lindenhurst Bd. of Educ., 85 A.D.2d 157 (2d Dep't 1982) (OML litigant is "private attorney general").
• Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87 N.Y.2d 668 (1996) (OML purpose: prevent secret deliberation).
• Gordon v. Village of Monticello, 87 N.Y.2d 124 (1995) (OML purpose: keep New Yorkers informed).
• 1975 Op Atty Gen (Inf) 268 (village may not change residency by local law).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2002-4_pw.pdf

Original opinion text

N.Y. CONST., ART. VIII, § 1; BATAVIA CITY CHARTER § 3.4.
A governmental subdivision may not, consistent with the
"gift or loan" prohibition (N.Y. Const., Art. VIII, § 1),
reimburse an individual member of a legislative body for
litigation expenses incurred in an unsuccessful lawsuit initiated
by that member under the Open Meetings Law, when commencement of
such a suit is not part of the member's official duties.
February 19, 2002
Kevin D. Fennell, Esq.
City Attorney
City of Batavia
432 East Main Street
Batavia, New York 14020

Informal Opinion
No. 2002-4

Dear Mr. Fennell:
Your office inquired whether the City of Batavia ("city")
may reimburse a member of its city council for filing fees
incurred in unsuccessful litigation brought against the city
pursuant to the State Open Meetings Law (Public Officers Law
§§ 100 - 111). We conclude that the city may not, consistent
with the "gift or loan" prohibition of the State Constitution
(N.Y. Const., Art. VIII, § 1), reimburse such filing fees.
Because there is neither express nor implied authority for an
individual member of the Batavia City Council to commence such a
suit against the city as part of his or her official duties, the
city may not reimburse the expenditure in question.
You recite that the controversy arose out of an executive
session of Batavia's City Council at which the acquisition of
certain real property for a proposed water plant was discussed.
This meeting occurred after the city had entered a contract by
which the County of Genesee would supply water to city residents
through a source to be determined. You advise that a "straw
poll" of the council was taken at this meeting, authorizing the
city manager to explore the county's possible interest in
purchasing certain realty as a suitable site for a water plant.
A member of the City Council, asserting that the executive
session had violated the Open Meetings Law, commenced a CPLR
article 78 proceeding to obtain a court ruling to that effect.
That proceeding was dismissed without prejudice because it was
incorrectly filed and served, and was never recommenced. The
member then sought reimbursement from the city for the filing
fees (approximately $245.00) in that unsuccessful suit.
For such reimbursement to be proper, there must be express
or implied authorization for that payment. The unauthorized
expenditure of municipal funds is an unconstitutional gift. The
State Constitution provides that "[n]o county, city, town,
village or school district shall give or loan any money or
property to or in aid of any individual . . . ." N.Y. Const.,
Art. VIII, § 1. This prohibition extends to legal fees, costs
and disbursements incurred in litigation by municipal officials
unless such expenditures either are "authorized by statute or
appropriate resolution of the governing body" or certain
"extraordinary circumstances" otherwise obtain. Corning v.
Village of Laurel Hollow, 48 N.Y.2d 348, 351 (1979).
In cases involving a public official's entitlement to
reimbursement for the retention of counsel, the Court of Appeals
has explained what these circumstances are:
Notwithstanding lack of specific statutory
authority, a municipal board or officers
possess implied authority to employ counsel
in the good faith prosecution or defense of
an action undertaken in the public interest,
and in conjunction with its or his official
duties where the municipal attorney refused
to act, or was incapable of, or was
disqualified from, acting.
Cahn v. Town of Huntington, 29 N.Y.2d 451, 455 (1972); see also
Moffatt v. Christ, 74 A.D.2d 635 (2d Dep't), aff'd for reasons
stated by Appellate Division, 51 N.Y.2d 806 (1980).
In the present circumstances, both the issue of express
authority for reimbursement of litigation expenses and that of
implied authority can be addressed by answering the question of
whether commencement of an Open Meetings Law suit lay within the
council member's official duties. As to express authority, no
State statute entitles the council member to reimbursement. The
Batavia city charter provides that "Council members may be
reimbursed for actual expenses incurred in the performance of
their official duties," but does not define these official
duties. As noted above, the implied right to reimbursement for
legal expenses similarly arises only when they are undertaken in
conjunction with an officer's official duties.
In our view, commencement and prosecution of a proceeding
under the Open Meetings Law were not among the council member's
official duties. The scope of a public officer's "official
duties" cannot be defined with a simple formula. As the Second
Circuit has observed, "[t]here is no bright-line test to define"
official duties. United States v. Hoffer, 869 F.2d 123, 125
(2d Cir. 1989) (interpreting 18 U.S.C. § 111, which penalizes
assault on federal officers engaged in performance of their
"official duties"). Rather, the question is whether the officer
is "'acting within the scope of what [he or she] is employed to
do.'" Id. at 126 (quoting United States v. Heliczer, 373 F.2d
241, 245 (2d Cir.), cert. denied, 388 U.S. 917 (1967)). A task
that is within an officer's "official duties" is one that is
connected with the core responsibilities of the job that he or
she is performing.
Prosecution of a suit to enforce the Open Meetings Law is
not, in our opinion, among a city legislator's core
responsibilities. The Open Meetings Law is, obviously, an
important means of assuring the accountability of government.
Our opinions have often commented on the significance of the law
and the requirement that officials take it seriously and abide by
it. See, e.g., Op. Atty. Gen. (Inf.) No. 94-78; 1980 Op. Atty.
Gen. (Inf.) 145; 1978 Op. Atty. Gen. 24. Nonetheless, although
public officials whose meetings are subject to the Open Meetings
Law must conduct those meetings in accordance with that law, the
Open Meetings Law establishes no unique role for municipal
officials in policing alleged violations. Rather, officials who
commence or want to commence Open Meetings Law suits have the
same rights, responsibilities and status as all other citizens.
An examination of the Open Meetings Law makes plain that it
vindicates interests of the general public, not only or even
especially those of public officials. The statute provides, with
certain exceptions, that "[e]very meeting of a public body shall
be open to the general public." Public Officers Law § 103(b).
"The purpose of the Open Meetings Law," the Court of Appeals has
said, "is to prevent municipal governments from debating and
deciding in private what they are required to debate and decide
in public." Gernatt Asphalt Products, Inc. v. Town of Sardinia,
87 N.Y.2d 668, 686 (1996). The "legislative declaration" of the
statute's purpose likewise makes this clear:
It is essential . . . that the citizens of
this state be fully aware of and able to
observe the performance of public officials
. . . . The people must be able to remain
informed if they are to retain control over
those who are their public servants.
Public Officers Law § 100; see also Gordon v. Village of
Monticello, 87 N.Y.2d 124, 128 (1995) ("statutory policy" of Open
Meetings Law is "keeping New Yorkers better apprised of the
actions of their elected officials").
Thus, while public officials are obliged to observe the Open
Meetings Law, the general public is empowered to enforce it.
"Any aggrieved person shall have standing to enforce the
provisions of [the Open Meetings Law] against a public body by
the commencement of" an article 78 proceeding or a declaratory
judgment action. Id. § 107(1) (emphasis added). Moreover,
anyone with standing to commence such a proceeding is eligible to
recover costs and attorney's fees incurred in a successful suit:
In any proceeding brought pursuant to this
section, costs and reasonable attorney fees
may be awarded by the court, in its
discretion, to the successful party.
Id. § 107(2).
Public officials thus have no unique role in the judicial
enforcement of the Open Meetings Law. Rather, a public official
who commences such a suit has the same status as any other
individual who does so: "[T]hat of a private attorney general
seeking vindication of the public's right to observe." Sanna v.
Lindenhurst Bd. of Educ., 85 A.D.2d 157, 160-161 (2d Dep't 1982).
A public official, like any other citizen, may recover costs and
attorney's fees under section 107(2) when his or her suit
succeeds, but not unless it does and not because of his or her
status as an officer. The opportunities for collusion among
public officers and their attorneys if such suits were among an
officer's official duties further indicate that this is the
correct view of the law. See Cahn, 29 N.Y.2d at 455 (rule that
"the power to employ counsel by a municipal board or officer is
not deemed to be incidental to such board or officer" is
"designed as a safeguard against extravagance or corruption of
municipal officials, as well as against their collusion with
attorneys"). Accordingly, commencement of a suit under the Open
Meetings Law is not part of a municipal officer's official
duties, and a Batavia City Council member may not recover from
the city his or her filing fees incurred in an unsuccessful Open
Meetings Law suit against the city.
The Attorney General renders formal opinions only to
officers and departments of the state government. This perforce
is an informal and unofficial expression of the views of this
office.
Very truly yours,
JAMES D. COLE
Assistant Solicitor General
In Charge of Opinions
By: ____
DANIEL SMIRLOCK
Deputy Solicitor General