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Monday, October 3, 2016

Public Comment Rules for Meetings

The Chicago Tribune reported over the weekend that the Chicago City Council is considering adopting rules of procedure for public comment at City Council meetings. Regular readers know that the Open Meetings Act was amended a few years ago to require public bodies (including city councils) to provide some opportunity to address public officials. P.A. 96-1473, effective on January 1, 2011, adding a new section 2.06(g) to the OMA, as follows:
(g) Any person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.
The Attorney General (Public Access Counselor office) has taken a broad interpretation of that requirement and opined that all public bodies (including subsidiary bodies) must provide public comment at all meetings that are subject to the Open Meetings Act. We've discussed many of the Attorney General's opinions on public comment, and the types of restrictions that the Attorney General has determined are acceptable (and not acceptable). 

It's been awhile, so we thought it would be helpful to list the types of public comment policies or regulations:

Acceptable Policies for Public Comment (according to the Attorney General):
  1. A public body can restrict the time for public comment per speaker.  For example, a 3 minute per speaker time limit for public comment is acceptable. 2011 PAC 17388
  2. A public body can restrict the total time for public comment at a particular meeting.  For example, a 30 minute time limit for all public comments is acceptable. 2011 PAC 12740
  3. A public body can determine when public comment is allowed at a particular meeting. For example, a public body can schedule public comment at the end of the meeting, after agenda items have been voted on. 2012 PAC 18434; 2011 PAC 13082.
  4. A public body can limit each speaker to one opportunity for public comment. 2011 PAC 17388
  5. A public body can limit comments to topics germane to the agenda at a special meeting. 2012 PAC 20198
  6. A public body can establish and enforce rules on decorum (and remove a person for violating those rules). 2015 PAC 35101.
  7. A public body is not required to respond to questions during public comment. 2011 PAC 12309, 2011 PAC 17388, 2012 PAC 20198
  8. A public body is not obligated to list public comment on the agenda (but must provide an opportunity for public comment if a member of the public requests it). 2011 PAC 17388

Unacceptable Policies for Public Comment (according to the Attorney General):
  1. Public bodies cannot require a speaker to disclose his or her address as a condition to participating in public comment. PAC Op. 14-009.
  2. Public bodies cannot require a speaker to register 5 days in advance as a condition to participating in public comment.  PAC Op. 14-012.
  3. A public body cannot require a speaker to disclose the subject or topic of his or her proposed comments as a condition to participating in public comment. 2015 PAC 37391
  4. A public body cannot adopt or apply a rule that prohibits criticism of public employees. Mnyofu v. Bd of Education of Rich Township H.S. Dist. (N.E. Dist., April 5, 2016).
The important thing for public bodies to remember is that in order to enforce any restriction or limitation on public comment, the public body must have adopted written rules for public comment. Those rules are critical in supporting a public body's right to control public comment at a meeting and is the first thing the Attorney General is going to ask to look at if a citizen files a complaint regarding his or her rights to public comment. Having a longstanding practice in place for public comment will not be sufficient according to the Attorney General, so if you don't have rules in place and you are limiting public comment in any way, you should consider establishing written rules.

Post Authored by Julie Tappendorf


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