The opinion
Hon. Howard J. Goodrow Supervisor, Town of Waverly
You request our opinion whether a resolution passed at a special town board meeting is effective. The meeting was called by the supervisor, notice of the meeting was given orally (by telephone) to each town board member three days before the meeting, each member of the town board attended the meeting and participated therein; one of the town board members voted against the resolution and the other town board members voted for it.
Town Law § 62 deals with town board meetings. Subdivision 2 provides in part:
"The supervisor of any town may, and upon written request of two members of the board shall within ten days, call a special meeting of the town board by giving at least two days notice in writing to members of the board of the time when and the place where the meeting is to be held."
The provision has been in the Town Law for many years. In 1950 Op Atty Gen (Inf) 117 we concluded that if all of the members of a town board attend and participate in a special meeting, even though the two days' notice in writing is not given, the requirement of notice is waived. In 1977 Op Atty Gen 226 we again recognized that principle. Copies of both of those opinions are enclosed for your information.
A provision was contained in the former Village Law § 87 substantially similar to the portion of Town Law § 62 subd 2 quoted above. In a like situation to that which you describe, it was held in Brechner v Inc. Village of Lake Success, 25 Misc.2d 920 , affd 14 A.D.2d 567 , as follows: "Since all of the board members were present and voted, the ordinance may not be invalidated simply because oral rather than written notice of the meeting was given. (4 McQuillin, Municipal Corporations [3d ed.], § 13.37; 62 C.J.S., Municipal Corporations, § 297.)"
In our opinion, a resolution passed at a special town board meeting held without two days' written notice is not a violation of the Town Law if all of the town board members have actual notice of the meeting, attend it and participate therein.
Public Officers Law § 99 subd 2 provides:
"2. Public notice of the time and place of every other meeting shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto."
Public Officers Law § 102 subd 1 (last paragraph) provides:
"An unintentional failure to fully comply with the notice provisions required by this article shall not alone be grounds for invalidating any action taken at a meeting of a public body. The provisions of this article shall not affect the validity of the authorization, acquisition, execution or disposition of a bond issue or notes."
We assume that if the required public notice of the special meeting was not given as provided above, the failure was unintentional. However, as you are now aware of the notice requirement, future special meetings will have to be held in conformity with the notice requirements.