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A state committee that monitors transparency among New York’s government agencies recently published an opinion about how the state’s cannabis regulators have strayed from the law that governs public meetings and comments.
The NY Committee on Open Government published an advisory opinion on Jan. 20, after medical marijuana patient Tim Mitchell inquired about the legality of certain Office of Cannabis Management and Dormitory Authority of the State of New York public meeting practices.
“I got a good response,” Mitchell said. The committee “acknowledged that some things didn’t happen the way they probably should have.”
The committee’s four-page opinion examined Mitchell’s complaints that OCM may have erred in posting Cannabis Control Board meeting agendas online less than 24 hours before the scheduled event, along with his concerns over inconsistent limitations of public comment and other possible violations of the Open Meetings Law.
While the law doesn’t specifically require public boards to post meeting agendas ahead of time, the opinion says that officials should anyway.
“Agendas, if they are used, should be posted at least twenty-four hours prior to the meeting,” the opinion said.
Additionally, the panel noted that the CCB held at least two meetings for which they gave only 24 hours notice, including one on Sept. 13 held to consider a partnership agreement regarding the social equity cannabis investment fund, “which was a time-sensitive matter.” As a reminder, this is the $200 million public/private fund that is meant to finances the CAURD program.
According to the open government committee, DASNY – which oversees the fund – had posted that it had until Dec. 30 to finalize the partnership.
“This reporting deadline suggests that OCM and DASNY still had approximately two months to procure and select the partner,” the opinion said. “However, if there were additional factors creating urgency about which OCM failed to make the Committee aware, the time frame could have been reasonable.”
The open government committee also criticized how OCM handles comments from the public.
OCM requires members of the public who wish to speak before the CCB to register at least 24 hours before the meeting, and all their comments must be related to agenda items. However, OCM posted its last meeting agenda less than ten minutes before the cut-off time, which meant most people didn’t know what was on the agenda when they signed up to speak.
“Such a practice results in a chilling effect on public participation,” the committee wrote.
Additionally, the committee said the CCB may have incorrectly gone into executive session during a September meeting. Public boards are allowed to move a meeting into executive session to discuss certain matters in private – typically things like lawsuits and personnel issues.
However, according to the committee, when the CCB moved their Sept. 13 meeting into executive session, they failed to identify a reason for doing so, which is required by law.
Michael Higgins, an attorney at law firm Osborn, Reed & Burke, told NY Cannabis Insider that OCM’s possible violations aren’t a departure from how closely other state boards follow the Open Meetings Law.
“Agencies routinely violate the letter and the spirit of the Open Meetings Law in the way that is described in the advisory opinion … it is no excuse that these violations are common because open meeting law violations thwart democratic participation,” Higgins said.
Other than suing the agency for violating public meetings law, members of the public have little recourse, but public pressure can help change behavior.
“Simply paying attention and demanding compliance can sometimes change agency behavior,” Higgins said, adding that showing up, reporting violations and organizing “can be effective tools to improve access.”