This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

TOWN BOARD -- Powers and Duties (publication of minutes of meetings); (publication of State Comptroller's report of examination)
TOWN CLERK -- Powers and Duties (required contents of minutes)
TOWN SUPERVISOR -- Powers and Duties (publication of minutes of town board meeting); (publication of State Comptroller's report of examination)

TOWN LAW, §§30, 63, 64(11-b); PUBLIC OFFICERS LAW, §106; GENERAL MUNICIPAL LAW, §35: Although the town clerk is required to record in the minutes of a town board meeting the name of each member of the board who is present, the clerk is under no statutory duty to record the names of other persons attending the meeting. A decision to publish the minutes of a town board meeting must be made by the affirmative vote of a majority of all the members of the town board, and not by the town supervisor acting unilaterally. The town board may also elect to publish at town expense the report of examination prepared by the Office of the State Comptroller.

You ask whether the town clerk is required by law to record the names of all persons present at a town board meeting. You also ask whether the town supervisor may cause the town to publish minutes of meetings of the town board and reports of examinations of the financial affairs of the town performed by the Office of the State Comptroller.

Town Law, §30(1) provides that the town clerk is required to attend all meetings of the town board, act as clerk thereof, and "keep a complete and accurate record of the proceedings of each meeting". Further, Public Officers Law, §106(1) provides that minutes must be taken at all open meetings of a public body, which would include town board meetings, and that these minutes "consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon". There are several other sections of law which require specific information or actions of the town board to be recorded in the minutes (see, e.g. Town Law, §§133, 236, 264, 265; General Municipal Law, §803). Town Law, §63 specifically requires that "[t]he vote upon every question shall be taken by ayes and noes, and the names of the members present and their votes shall be entered in the minutes" (emphasis added). There is, however, no statutory requirement for the town clerk to record in the minutes the names of persons attending the meeting, other than the members of the town board.

With respect to the publication of the minutes of a town board meeting, Town Law, §64(11-b) provides that "[t]he town board of any town may publish the minutes of its proceedings in the official newspaper, or if no official newspaper has been designated, in any newspaper having general circulation in the town" (emphasis added; see also Public Officers Law, §106[3], relative to the availability of the minutes to the public). Although the supervisor is a member of the town board (Town Law, §60[1]), a decision to publish the minutes of the town board would be an act requiring "the affirmative vote of a majority of all the members of the town board" (Town Law, §63) and is not a power vested in the supervisor acting individually.

As to the report of examination performed by this Office, we note that copies of that report must be filed in the office of the town clerk and with the chief fiscal officer of the town (General Municipal Law, §35[1]; see also General Municipal Law, §35(4), relating to reports of an external audit prepared by an independent accountant or any management letter prepared in conjunction with such an external audit). Once filed, the report becomes "a public record open to inspection by any interested person" (id.). Thereafter, the town clerk must publish a notice to the effect that the examination has been performed, that the report has been filed and is available for public inspection, and that the town board may, in its discretion, prepare a written response to the report and file such response in the clerk's office for public inspection (General Municipal Law, §35[2]).

The General Municipal Law makes no provision for publishing the report of examination. Pursuant to Town Law, §116(13), however, "[t]he actual expense incurred in the publication and distribution of a report relative to the fiscal affairs ... of a town" is a proper town charge. It is our opinion that this statutory authority is broad enough to permit publication of the Comptroller's report of examination of the town's financial affairs. Although section 116(13), unlike section 64(11-b), does not expressly provide that the determination to publish is to be made by the town board, it is a general principle that, unless otherwise provided by law, the powers conferred upon a town are vested in and, except where properly delegated, are to be exercised by, the town board (Town Law, §§60[1], 64[23]; Town of Clay v Helsby, 45 AD2d 292, 357 NYS2d 291). Therefore, the town board, and not the supervisor acting unilaterally, would determine whether to publish a report of examination performed by this Office.

December 31, 1990
Gladys Hinman, Town Clerk
Town of Humphrey