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Thursday, October 27, 2016

PAC Says City Violated OMA in Restricting Public Comment to Agenda Items and to City Residents

We have written often on this blog about the Public Access Counselor's (PAC) opinions interpreting Section 2.06(g) of the Open Meetings Act regarding public comment at meetings. Most of these opinions have been advisory opinions, which are unfortunately not readily available for public view or access. One of these advisory opinions recently came to our attention, and although it is not binding on other public bodies, it does provide guidance to public bodies in establishing rules for public comment at meetings.  2015 PAC 38037.

In 2015, an individual filed a request for review with the PAC alleging that a city council violated the OMA by (1) limiting public comment at its meeting to matters on the agenda and (2) prohibiting non-residents from participating in public comment. The PAC reviewed the minutes of the meeting at which the alleged violation occurred, and noted that the Mayor had announced that "comments would be limited to the agenda and would be limited to citizens of the city only."  

With respect to the city council's limitation of public comment to agenda items, the PAC determined that this violated the OMA because (i) the city had not established written rules and (ii) even if it had rules in place, this type of restriction would exceed the scope of permissible rulemaking because a public body can discuss (but not vote on) matters not listed on the agenda. Although not well explained in the opinion, it appears that the PAC is extending the public body's right to discuss non-agenda matters to the public during public comment.  This varies somewhat from a previous PAC opinion that upheld a public body's limitation on public comment to agenda items.  2012 PAC 20198. The distinction may be that the 2012 opinion dealt with a special meeting rather than a regular meeting, and the OMA restricts both discussion and action at special meetings to only those matters listed on the agenda. Oddly, the PAC doesn't make that distinction in the more recent opinion.

On the claim that the city's ban on non-resident public comment, the PAC also found that to violate the OMA because 2.06(g) specifically provides that "any person shall be permitted an opportunity to address public officials." (emphasis added). Although the PAC acknowledged that a public body can adopt reasonable rules to govern public comment, "a person's right to comment at an open meeting is not contingent upon where he or she resides." 

In short, the PAC takes the position that a public body's rules on public comment cannot (1) restrict comments to  agenda items only (except at a special meeting, if the PAC still acknowledges its 2012 opinion cited above) and (2) limit the opportunity for public comment to residents only. 

Although the opinion is non-binding, if a public body were to be the subject of a similar complaint, the PAC would likely take the same position. To avoid that, public bodies should ensure they have adopted written rules for public comment that comply with the various opinions issued by the PAC. Based on this opinion, the rules should not restrict public comment to residents only, nor to agenda items, at least not at regular meetings. To ensure compliance with this opinion, a public body could provide one general public comment period at its meetings that is non-restrictive (i.e., allows comment on agenda and non-agenda items). Alternatively, a public body could provide two public comment periods, one for agenda items and one for non-agenda items. 

Post Authored by Julie Tappendorf


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