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
As you are aware, I have received your letter of May 12 in which you asked that certain action taken by the Board of Education of the Ellenville Central School District "be annulled."
The issue involved the revision of a Board policy allowing persons present at Board
meetings "one opportunity to address the Board for three minutes, only in regard to the
resolutions to be discussed and voted upon that evening." For reasons that are not expressed, the Board considered revision of its policy to represent an "emergency" and waived its policy of waiting four weeks "between policy readings." Although the matter had apparently been scheduled to be discussed at a meeting on January 25, that meeting was cancelled due to weather conditions and held two days later in the Superintendent's office. You wrote that "[t]o the best of [your] knowledge, there wasn't enough time to publicize the special meeting." Further, it is your view that the Board "met in a location intended to avoid the public and the news media."
In this regard, it is noted at the outset that the Committee on Open Government is
authorized to offer advisory opinions concerning the Open Meetings Law. The Committee is not empowered to compel a public body to comply with that statute or "annul" action taken by a public body. As such, the following remarks should be considered advisory in nature.
First, while the Open Meetings Law clearly provides the public with the right "to
observe the performance of public officials and attend and listen to the deliberations and
decisions that go into the making of public policy" (see Open Meetings Law, §100), the Law
is silent with respect to public participation. Consequently, by means of example, if a public
body does not want to answer questions or permit the public to speak or otherwise participate
at its meetings, I do not believe that it would be obliged to do so. On the other hand, a public body may choose to answer questions and permit public participation, and many do so. When a public body does permit the public to speak, I believe that it should do so based upon reasonable rules that treat members of the public equally.
Although public bodies have the right to adopt rules to govern their own proceedings
(see e.g., Education Law, §1709), 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 rule 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.
I note that there are federal court decisions indicating that if commentary is permitted
within a certain subject area, negative commentary in the same area cannot be prohibited. It
has been held by the United States Supreme Court that a school board meeting in which the
public may speak is a "limited" public forum, and that limited public fora involve "public
property which the State has opened for use by the public as a place for expressive activity"
[Perry Education Association v. Perry Local Educators' Association, 460 US 37, 103. S.Ct. 954 (1939); also see Baca v. Moreno Valley Unified School District, 936 F. Supp. 719 (1996)]. In Baca, a federal court invalidated a bylaw that "allows expression of two points of view (laudatory and neutral) while prohibiting a different point of view (negatively critical) on a particular subject matter (District employees' conduct or performance)" (id., 730). That prohibition "engenders discussion artificially geared toward praising (and maintaining) the status quo, thereby foreclosing meaningful public dialogue and ultimately, dynamic political change" [Leventhal v. Vista Unified School District, 973 F.Supp. 951, 960 (1997)]. In a decision rendered by the United States District Court, Eastern District of New York (1997 WL588876 E.D.N.Y.), Schuloff, v. Murphy, it was stated that:
"In a traditional public forum, like a street or park, the
government may enforce a content-based exclusion only if it is
necessary to serve a compelling state interest and is narrowly
drawn to achieve that end. Perry Educ. Ass'n., 460 U.S. at 45. A designated or ‘limited' public forum is public property ‘that the state has opened for use by the public as a place for expressive activity.' Id. So long as the government retains the facility open for speech, it is bound by the same standards that apply to a traditional public forum. Thus, any content-based prohibition must be narrowly drawn to effectuate a compelling state interest. Id. at 46." The court in Schuloff determined that a "compelling state interest" involved the ability to protect students' privacy in an effort to comply with the Family Educational Rights Privacy Act, and that expressions of opinions concerning "the shortcomings" of a law school professor could not be restrained.
In short, I do not believe that the Board is required to permit the public to speak at its
meetings. However, if it chooses to do so, it must do so, in my opinion, in a manner that is
reasonable and generally consistent with the preceding commentary.
Second, there is nothing in the Open Meetings Law pertaining to "special" or "emergency" meetings. Nevertheless, that statute requires that notice be given to the news media and posted prior to every meeting. Specifically, §104 of that statute provides that:
"1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before each meeting.
2. Public notice of the time and place of every other meeting shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or moredesignated public locations at a reasonable time prior thereto.
3. The public notice provided for by this section shall not be construed to require publication as a legal notice."
Stated differently, if a meeting is scheduled at least a week in advance, notice of the time and
place must be given to the news media and to the public by means of posting in one or more
designated public locations, not less than seventy-two hours prior to the meeting. If a
meeting is scheduled less than a week an advance, again, notice of the time and place must be given to the news media and posted in the same manner as described above, "to the extent practicable", at a reasonable time prior to the meeting. Therefore, if, for example, there is a need to convene quickly, the notice requirements can generally be met by telephoning the local news media and by posting notice in one or more designated locations.
Third, I am unfamiliar with the location of the Superintendent's office. However, I believe that every law, including the Open Meetings Law, should be implemented in a manner that gives reasonable effect to its intent. If the Superintendent's office is accessible to the public and if, in terms of its size, it accommodated those interested in attending, it does not appear that holding a meeting at that site would have been unreasonable. On the other hand, if it could be anticipated that a greater number of persons would want to attend than the office could accommodate, and if an alternative location was available, the site of the meeting in my view would have been unreasonable and inconsistent with the intent of the law.
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Education