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Tuesday, February 2, 2016

PAC Dives into First Amendment Again in Public Comment Opinion

A reader contacted me recently about an advisory opinion from the Public Access Counselor regarding public comment at meetings. Although not binding, the opinion does offer public bodies additional guidance on how the PAC interprets the public comment provision of the OMA.

In 2015 PAC 37391, a member of the public filed a complaint with the PAC alleging that the Cahokia Village Board violated the OMA when the Mayor refused to allow a member of the public to speak because she had not submitted her request 7 hours in advance of the meeting as required by the Board's ordinance. The complaint also alleged that the individual was improperly removed from the meeting.

First, the PAC rejected the Board's argument that the individual filing the complaint had no standing since she was not the individual removed from the meeting. The PAC noted that anyone who believes a public body has violated the OMA can file a complaint against a public body.

The PAC then reviewed the Board's public comment rules that require an individual to fill out a form and submit it by noon the day of the meeting in order to speak at the meeting. The form required the person to identify themselves and their address and phone number, as well as the subject or list of questions. Although the PAC acknowledged other courts that had upheld advance sign up rules, it struck down Cahokia's practice because it "may create a chilling effect on speech at public meetings." The PAC seemed most concerned about the requirement that speakers identify the subject of their comments in advance and provide their addresses and telephone numbers, finding these requirements to be unreasonable restrictions under 2.06(g) of the OMA.

Finally, the PAC determined that removal of the individual from the meeting was an "unreasonable rule to infringe on the woman's statutory right to address the Board," in violation of the OMA.  The PAC did acknowledge a public body's right to curtail public comment "if a speaker acts in an insulting or unruly manner that disrupts the order and decorum of a meeting." That right does not, however, allow a public body to curtail the public's right to express criticism according to the PAC.

The PAC again acknowledged that the OMA does not require a public body to conduct question and answer sessions or answer any questions for that matter since 2.06(g) of the OMA only deals with public comment. Because of that, the PAC did not have an issue with the requirement that questions be submitted in advance of a meeting. 

The opinion, while only advisory, offers some additional insight into how the PAC interprets the public comment provision of the OMA.  
  • Requiring an individual to sign a form in advance of a meeting in order to speak during public comment will likely not be tolerated. 
  • Requiring an individual to provide personal information as a condition to speak at a meeting is also not allowed. 
  • Requiring an individual to disclose the content of their comments cannot be a prerequisite to speaking to a public body. 
  • 2.06(g) does not require a public body to answer questions, so a requirement that questions be submitted in advance does not violate the OMA.
  • The PAC will continue to weigh in on constitutional matters even though the PAC's authority under state statute does not include the authority to decide violations of the First Amendment or any other constitutional provision. 
Post Authored by Julie Tappendorf


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