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Wednesday, January 16, 2019

15 Minute Limit on Public Comment Violated OMA

The Public Access Counselor (PAC) Office of the Illinois Attorney General has been busy this January, already issuing 2 binding opinions just this week. We'll report on one of those opinions today, and another tomorrow.

In PAC 19-002, the PAC found a school district in violation of the Open Meetings Act when it restricted the public comment period at a school board meeting to 15 minutes without having an established and recorded public comment rule to that effect.

The school board conducted a meeting October 22, 2018, at which approximately 100 members of the public attended. At the meeting, the school board announced that members of the public would be permitted to speak for 3 minutes each, for a total of 15 minutes for all speakers. The board noted that these limits were in accordance with board rules that had been used before. A member of the public filed a complaint with the PAC after the meeting arguing that the board violated the OMA by imposing the 15 minute limit.

The PAC reviewed the District's "Board Policy Manual" which did include a limit on public comment at meetings of 3 minutes per person. However, the PAC noted in its opinion that the school board's manual did not include a reference to a 15 minute total cap on public comment. The school board argued that it also had adopted a "Board's Welcome Handout" that specifically included a reference to time limits for public comment as follows:  "3 minutes per speaker, with a maximum of 15 minutes, per topic, per speaker." The board noted that the Welcome Handout is placed on a table next to the agendas and sign in sheet at every board meeting, and had been the past practice of the board for at least 10 years.

The PAC reviewed section 2.06(g) of the OMA which allows a public body to adopt rules for public comment. The PAC noted that those rules must be "established," which the PAC interpreted to mean adopted by the board and "recorded" by the public body. The PAC accepted the "Board Policy Manual" as an established and recorded policy on public comment within the meaning of the OMA. However, since the school board had not taken any action to formally adopt the Welcome Handout, the board could not rely on the 15 minute cap on public comment in an "unestablished and unrecorded rule." As a result, the PAC found the board in violation of the OMA for imposing the 15 minute cap on public comment. 

Although the PAC found the 15 minute cap to be a violation of OMA because the board had not formally adopted that rule in an established and recorded policy, it did not opine that a cap on the total time for public comment would be unreasonable. In fact, the PAC acknowledged that a public body does have the inherent authority to conduct its meeting in an efficient manner, and that section 2.06(g) does not require public comment to be allowed to continue indefinitely. However, in a footnote, the PAC noted that there may be circumstances where the application of such a cap might unreasonably restrict the right to address public officials, particularly at a meeting with only one, highly controversial subject on the agenda. The PAC has, in a previous opinion, upheld a 30 minute cap on public comment that was in a formally adopted and recorded policy.

This opinion is another reminder to public bodies of the importance of ensuring that any limitations on public comment, whether they be time limits, rules on decorum , or any other rules on public comment, must be formally adopted by the public body. A public body cannot simply rely on "past practices" or on language in a handout or on an agenda. 


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