Opn. No. ( 1977 )

CARL P. GOLDSTEIN, ESQ. Town Attorney, Lumberland

We acknowledge receipt of your letter requesting an opinion of the Attorney General with respect to the following:

"1. May a tape recorder be obtained by the Town Board to record the minutes of the Town Board meetings and, if so, who is in charge or responsible for maintaining the tapes?

"2. May the tapes be maintained by an official other than the Town Clerk and, if so, what official is charged with such responsibility?

"3. May the tapes of a meeting, if authorized, be sealed and opened only at Town Board meetings?

"4. Does the Town Board have the authority to direct the use and custody of the tape recorder and the tapes or is this a matter under the jurisdiction of the Supervisor of the Town?

Town Law § 30 subd. 1 provides, in part:

"§ 30. Powers and duties of town clerk

"The town clerk of each town:

"1. Shall have the custody of all the records, books and papers of the town. He shall attend all meetings of the town board, act as clerk thereof, and keep a complete and accurate record of the proceedings of each meeting, and of all propositions adopted pursuant to this chapter. Immediately after adoption he shall enter into a book to be known as the `ordinance book' a copy of every ordinance adopted by the town board, specifying the date of adoption thereof. In addition, he shall act as secretary of the board of commissioners of any improvement district when so designated by such board of commissioners. He shall keep a complete and accurate record in his office as town clerk of all proceedings of every board of commissioners of improvement districts in said town."

A town clerk is an independent public officer. This independence is so important that it is contrary to public policy to allow custody of the minutes of town board meetings to be in the possession and control of any town board member whose positions and votes on matters coming before the town board are reflected by those minutes. This is demonstrated by Town Law § 30 subd. 10 which provides, in part, as follows:

"10. The town clerk of each town may appoint not more than three deputies. * * * In the event that the town clerk is absent or unable to act and there is no duly appointed and qualified deputy town clerk present and able to act, the town board may appoint as deputy town clerk any person other than a member of the town board, provided, however, that such person be qualified as provided in section three of the public officers law and section twenty-three of this chapter. * * *" (Emphasis supplied.)

There is no provision of law requiring that the minutes taken by a town clerk at a meeting shall be a verbatim transcript of all that is said: quite to the contrary; Public Officers Law § 96 subd. 1 states:

"§ 96. Minutes

"1. Minutes shall be taken at all open meetings of a public body which shall consist of a record of summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon." (Emphasis supplied.)

A town board may obtain a tape recorder for use by the clerk if the clerk wishes to use it but tapes of proceedings at meetings constitute part of the records of the town clerk to the same extent as shorthand notes or longhand memoranda and these tapes remain in the custody of the clerk. There is no authority for a town board to permit or require the town clerk to keep such tapes under seal, to be opened only at town board meetings; as a matter of fact, this would constitute violations of the Freedom of Officers Law §§ 85-101. The town board would have authority to authorize the use of the tape recorder by other town officers and direct how and where the recorder is to be kept but custody of tapes of meetings made by the town clerk is not a matter which is under the jurisdiction of the town board. If a tape recorder is provided for the use of the clerk and the clerk wishes to use it, the custody of the same may be assigned to someone else but if so, the clerk can not be made responsible for its maintenance and condition.

In our opinion, in specific response to your four requests:

1. A tape recorder may be obtained by the town board to be used by the town clerk to record the proceedings at the town board meetings so that minutes may be prepared therefrom but if a recorder is obtained the town clerk would be responsible for maintaining the tapes.

2. The tapes may not be maintained by any official other than the town clerk or his deputy.

3. It would be improper for the tapes to be sealed and to be opened only at town board meetings.

4. The town board may authorize other town officers to use the tape recorder and may direct who will have custody of the instrument.

Of interest in connection with the town clerk's functions and duties are two informal opinions of the Attorney General, one reported in 1970 Attorney General 104 and the other in 1972 Attorney General 149. We enclose copies herewith for your convenience.