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Tuesday, August 26, 2014

The PAC Says...Interpreting the Public Comment Requirement of the OMA

Check out Julie Tappendorf's new article called "The PAC Says: Guidelines on the OMA's Public Comment Requirement" in the September edition of the Illinois Municipal League's monthly magazine, the Review Magazine.  You can read the online version here.  

Here is a sneak preview of the article:

On January 1, 2011, P.A. 96-1473 became effective, amending the Open Meetings Act to add a new section 2.06(g), as follows:
(g) Any person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.
Only 21 words, yet this law has created quite a flurry of activity in the Public Access Counselor’s office of the Attorney General since it was enacted.  35 PAC opinions, all non-binding, cite to this section of the OMA.  Although advisory only, these opinions do give public bodies a view into how the PAC broadly and expansively interprets and applies this law. 

I read all 35 opinions and categorized them into 10 PAC "words of wisdom":

1.   The PAC says…public comment must be provided at all meetings

Although language in an earlier version of the draft legislation that expressly required public comment at meetings was eliminated in the final version of the bill, in the PAC's view, every meeting must provide public comment.  That would seem to encompass regular, special, and even committee meetings if they fall under the OMA.

2.   The PAC says…the public comment requirement applies to subsidiary bodies

According to the PAC, every public body, including subsidiary bodies like the finance committee of the city council, must provide public comment at every meeting.

3.   The PAC says…each public body (including subsidiary bodies) must establish rules 

Every public body, including subsidiary bodies, must formally adopt rules for public comment.  According to the PAC, relying on "past practices" is not enough to comply with 2.06(g).

4.   The PAC says…a public body can establish time limits for public comment

Time limits on individual public comment and the total time allowed for public comment are acceptable, so long as they are adopted formally in established rules.

5.   The PAC says…a public body can limit comments to topics germane to the agenda

The PAC issued an opinion that public bodies can restrict the content of public comment to matters listed on the agenda of a special meeting.  It's not clear whether the PAC would extend this to regular meetings.

6.   The PAC says…a public body can establish and enforce rules on decorum 

According to the PAC, public bodies can interrupt and even remove members of the public who are violating the public body's rules.

7.   The PAC says…public comment can be provided at any point in the meeting

The PAC does not care when public comment is provided (beginning or end of the meeting) so long as it is provided at every meeting.

8.   The PAC says…public officials are not obligated to respond to comments

The PAC stated in a number of opinions that 2.06(g) is intended to allow the public to address members of a public body and does not require the public body members to answer questions or engage in debate.

9.   The PAC says…section 2.06(g) does not address members of a public body

2.06(g) protects members of the public, not members of the public body who may be silenced by the chair of the public body.

10.  The PAC says…there is no violation if there is no request to speak

A member of the public cannot claim a violation of 2.06(g) unless he or she has been prevented from speaking at a meeting.  So, failing to list public comment on an agenda is not a violation.  

There are two key pieces of advice that all public bodies should take from these opinions, which although advisory do provide some guidance. 

First, the PAC’s position is clear that every meeting of every public body (including subsidiary bodies) must include an opportunity for public comment. Allowing public comment at regular but not special meetings, or excluding public comment at committee meetings, would constitute a violation of section 2.06(g) in the PAC’s opinion.

Second, the PAC interprets section 2.06(g) to impose an affirmative obligation on every public body (including subsidiary bodies) to establish written rules for public comment at meetings. Having a long-standing policy on public comment is not enough to meet this obligation, at least not for the PAC.  A municipality would be well-advised to consult with its municipal attorney to ensure that its governing board and all subsidiary bodies and committees have established written rules to govern public comment at their meetings. 


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