By ANDY GARDNER

MASSENA -- Officials with the New York State Department of State Committee on Open Government say a recent Town Council committee meeting may have violated the Open Meetings Law.

According to councilmen Tom Miller and Steve O’Shaughnessy, they along with village Mayor Tim Currier, DPW Superintendent Hassan Fayad and Steve Dailey from the DPW, met on a morning sometime around Dec. 5 at the Department of Public Works to discuss the town possibly buying an old water treatment plant at the former Reynolds site.

O’Shaughnessy is also the town supervisor-elect. He defeated incumbent Joe Gray in the November election, and will be sworn in to the town’s top office in January.

During the meeting, O’Shaughnessy said he made a phone call to Councilman Samuel Carbone to discuss his recent walkthrough of the facility, which state officials say runs afoul of the Open Meetings Law.

O’Shaughnessy and Miller said they were not aware that the phone call could have broken the law. Carbone did not return phone calls seeking comment.

“I apologize to whoever I should on that. I wasn’t aware of that and I’ll make sure it won’t happen again,” O’Shaughnessy said, and added that he wants to work to gain a better understanding of the Open Meetings Law.

Robert Freeman, executive director of the Committee on Open Government, believes that phone call was a breach of the Open Meetings Law.

“In my opinion with three out of five (town council members discussing public business), the participation on the phone by a third member would represent a circumvention of the Open Meetings Law,” Freeman said. “The notion is that the Open Meetings Law applies when a majority of the public body gets together to conduct public business.”

The Open Meetings Law says if a majority of a public body meets to discuss public business, the date, time and location must be announced in advance and open to the public. Freeman said the Open Meetings Law does allow board members to participate in meetings via videoconference, but not by telephone. And there are strict laws with regard to meetings conducted by videoconference. Along with the date, time and location, it must be announced that a member will participate via video, and both the meeting location and the member’s remote location must be included in the announcement and both open to the public, Freeman said.

“Obviously if a third person, constituting a majority, is participating by phone, the public has no capacity to observe that third person, or hear what someone is whispering in his or her ear,” he said. “I think that if there was a need for a majority to get together, they should have waited and got together in accordance with the Open Meetings Law.”

Councilman Samuel Carbone said after the conversation, he spoke with Freeman and arrived at the same conclusion.

“If somebody takes offense to it, I apologize. If I would have known it was possible violation of Open Meetings Law, I wouldn’t have taken the call or refused to comment,” he said.

He said his initial perception was since board members are not allowed to vote via telephone, that having a discussion on the phone would be within the law.

“My perception is being a non-voter, there wasn’t a quorum to take any action,” he said.

He also said their conversation in an open meeting would have lead to executive session to discuss a contract negotiation, which is allowed under state law.

“If we did have discussions and it was a quorum, and we were talking about a contract, we could have gone into executive session,” Carbone said. “The public wouldn’t have known about it, but they would have known there was a meeting going on.”