A popular topic on this blog is standing in the context of a challenge to a municipal determination, primarily under the State Environmental Quality Review Act. A recent case issued by the Appellate Division, Second Department, entitled Matter of McCrory v Village of Mamaroneck Board of Trustees, involves standing in the context of a challenge to a municipal action under the Open Meetings Law (Article 7 of the Public Officers Law).
Here are the pertinent facts , based on the appellate court decision and news reports about the case.
Petitioners/Plaintiffs, (‘Petitioners”), Suzanne McCrory and Stuart Tiekert, reside in the Village of Mamaroneck and are self-appointed watchdogs of the Village’s municipal boards. In March 2017, they receive an email notice about a general meeting of the Village Board of Trustees (“Village Board”) to be held the following morning. Petitioner McCrory attends the meeting, which starts with a motion to go into executive session for the purported reason to discuss contract negotiations and to confer with the Village Attorney. After the executive session concludes, the public meeting reopens and the Village Board indicates that while in executive session, they discussed hiring a new Village manager. In listening to the ensuing discussion, McCrory apparently concludes that the executive session included several other matters that should have been discussed in the public session but were not.
Petitioners bring a hybrid Article 78 proceeding/declaratory judgment action (“hybrid proceeding”) against the Village Board, complaining that the Village Board improperly went into a closed “executive session.” Petitioners also contend that the Village Board has a pattern of holding improper executive sessions, fails to provide adequate notice and fails to accurately record minutes for these closed sessions.
The Village Board moved to dismiss the hybrid proceeding based on lack of standing, which motion was granted by the trial court. The appellate court unanimously reversed and reinstated the hybrid proceeding, finding that Petitioners have standing and remanding the matter back to the trial court for a decision on the merits.
The Appellate Division Decision
As noted in the decison, the purpose of the Open Meetings Law is to ensure that “public business be performed in an open and public manner” so that “citizens of this state [are] fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants. It is only in this climate under which the commonweal will prosper and enable the governmental process to operate for the benefit of those who created.” The appellate court noted that the provisions of the Open Meetings Law “are to be given broad and liberal construction. . .to achieve the purpose for which it was enacted.”
The appellate court further explained that Section 103 of the law requires “every meeting of a public body shall be open to the general public.” The statute permits a public body to go into closed executive session but only for specified reasons. Sections 104 and 106 of the law require public notice of the time and place of a meeting and that minutes of an open meeting shall be taken and must be made available to the general public.
The appellate court noted that Section 107(1) of the law sets forth the criteria of who can bring a challenge for a violation of the Open Meetings Law. That section provides that “[a]ny aggrieved person shall have standing to enforce the provisions of this article against a public body by commencement of [an Article 78] proceeding or an action for declaratory judgment and injunctive relief.”
The appellate court then explained who is an “aggrieved person” in order to bring an Open Meetings Law challenge to municipal action. It first noted that the general rule for establishing standing to challenge governmental actions is that a petitioner must show it suffered an injury in fact and that the injury “falls within the zone of interests sought to be promoted or protected by the statutory provision under which the government has acted.” As to the “injury in fact” criteria, the appellate court noted the challenging party has to have “an actual legal stake in the matter being adjudicated and has suffered a cognizable harm.” Thus, tenuous or conjectural harms are not sufficient to establish standing. Rather, the harm needs to be “sufficiently concrete and particularized to warrant judicial intervention.”
The appellate court then looked at other types of cases to explain “aggrievement.” In the context of a tax certiorari proceeding, ” a person is aggrieved when an assessment has a direct adverse affect on the challenger’s pecuniary interests.” In the context of an appeal, “an appellant may only seek review upon a showing that he or she is ‘aggrieved’ by a judgment or order,” which requires that the appellant show it asked for relief that was denied in whole or in part, or opposed relief sought against it, which relief was granted in whole or in part.
The appellate court then turned its attention to “aggrievement” in the context of a violation of the Open Meetings Law, noting that the case law is “sparse.” In Matter of Sanna v Lindenhurst Bd. of Educ., 85 AD2d 157 [2d Dept. 1982], a dismissed probationary teacher brought a claim under the Open Meetings Law seeking to overturn the decision to fire her, which decision was made in an executive session followed by an open public meeting. The Court found she had standing under the Open Meetings Law due to her “membership in the class aggrieved by the board’s unintentional lapse in its decision-making process (i.e., the citizenry), and not from her status as the subject of those deliberations whose private employment interests are affected by the resulting determination.” In Matter of Friends of the Pine Bush v Planning Bd. of the City of Albany, 71 AD2d 780 [3rd Dept. 1979], approval of two subdivision plats was challenged by an unincorporated association and five individual members, who reside in Albany, for failing to comply with the Open Meetings Law. The trial court’s dismissal of the proceeding on lack of standing grounds was reversed by the Appellate Division, Third Department, which determined that the individual petitioners were aggrieved and had standing. The appellate court also discussed Matter of Zehner v Board of Educ. of the Jordan-Elbridge Cent. School Dist., 29 Misc 3d 1206(A) [Sup. Ct. Onondaga County 2010]. In that case, petitioner, a member of the general public, a taxpayer in the district and an employee of the school district, was found to have standing because “he was in ‘the zone of interest’ that the Open Meeting Law was designed to protect.” He also had attended the board meeting at which the public was excluded and “was a member of the citizenry aggrieved by the alleged violation.”
The appellate court then focused on the trial court’s decision. The lower court denied standing to petitioners McCrory and Tiekert and dismissed their hybrid proceeding, using the reasoning from land use cases that a petitioner “must show that it would suffer direct harm (i.e., injury in fact) that is in some way different from that of the public at large.” In reversing that ruling, the appellate court noted that the matter involves a question of statutory interpretation. The appellate court also noted that the harm or injury addressed by the Open Meetings Law is the “unlawful exclusion of the public from a municipal meeting” and that the Open Meetings Law “confers upon the public the right to attend certain meetings of public bodies.” Thus, standing to challenge a violation of the Open Meetings Law requires that petitioner only establish it was excluded from a meeting that should have been open to the public. The trial court’s use of a second criteria to establish standing, that a petitioner must also suffer a personal harm or property injury in order to assert a claim for violations of the Open Meetings Law, was contrary to the Legislature’s intent in enacting the statute.
As a result, the trial court must now decide the matter on the merits.