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December 15, 1997

Mr. James Parker
437 Otsego Street
Ilion, NY 13357

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear Mr. Parker:

I have received your letter of November 7 in which you sought an advisory opinion.

According to your letter, having attended a public hearing conducted by the Herkimer Town Board, you asked to comment on its preliminary budget. When questioned, you indicated that you were not a resident of the Town, and the Supervisor prohibited you from speaking. In addition, you wrote that a resident of the Town asked you speak, apparently on his behalf.

In this regard, as indicated in the legal notice of the hearing, "at such hearing any person may be heard." Neither the notice nor the statute requiring that the hearing be held distinguishes among those who might want to express their views. That being so, I do not believe that a public body could validly require that those who attend or seek to attend identify themselves by name, residence or interest. In short, it is my view that any member of the public has
an equal opportunity to partake in a public hearing, and that an effort to distinguish among attendees by residence or any other qualifier would be inconsistent with the law and, therefore, unreasonable. Moreover, people other than residents, particularly those who own property or operate businesses in a community, may have a substantial interest in attending and expressing their views at hearings held by town boards and other public bodies. Prohibiting those people from speaking, even though they may have a significant tax burden, while permitting residents to do so, would, in my view, be unjustifiable.

Although public bodies have the right to adopt rules to govern their own proceedings [see e.g., Town Law, §63], the courts have found in a variety of contexts that such rules must be reasonable. For example, although a board of education may "adopt by laws and rules for its government and operations", in a case in which a board's rules prohibited the use of tape
recorders at its meetings, the Appellate Division found that the rule was unreasonable, stating that the authority to adopt rules "is not unbridled" and that "unreasonable rules will not be sanctioned" [see Mitchell v. Garden City Union Free School District, 113 AD 2d 924, 925 (1985)]. Similarly, if by rule, a public body chose to permit certain citizens to address it for ten minutes while permitting others to address it for three, or not at all, such a rule, in my view, would be unreasonable.

Lastly it appears that you served, in essence, as the resident's representative, and that precluding you from speaking would have been equivalent to prohibiting a resident from speaking. In short, I do not believe that the Supervisor could validly have prohibited you or anyone else from speaking at its hearing based upon residency.

In an effort to enhance compliance with and understanding of the matter, copies of this opinion will be forwarded to Town officials.

I hope that I have been of assistance.

Sincerely,


Robert J. Freeman
Executive Director

RJF:tt

cc: Hon. Dr. P. Bennison, Supervisor
Town Board