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April 16, 2001

OML-AO-3295

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

Dear

I have received your letter of March 6 and the materials attached to it. You referred to a letter of March 1 addressed to the Bergen Village Board of Trustees in which Patricia and Thomas Pawlaczyk criticized the Board relating to their ability to speak at meetings of the Board.

In this regard, by way of background, 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). However, the Law is silent with respect to the issue of 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.

From my perspective, any such rules could serve as a basis for preventing verbal interruptions, shouting or other outbursts, as well as slanderous or obscene language or signs; similarly, I believe that the Board could regulate movement on the part of those carrying signs or posters so as not to interfere with meetings or prevent those in attendance from observing or hearing the deliberative process.

A public body's rules pertaining to public participation typically indicate when, during a
meeting (i.e., at the beginning or end of a meeting, for a limited period of time before or after an agenda item or other matter is discussed by a public body, etc.). Most rules also limit the amount of time during which a member of the body may speak (i.e., no more than three minutes).

If you choose to adopt the kinds of rules described above, it is suggested that they be read
or distributed to those in attendance at meeting. If the rules are not heeded, it is suggested that you contact a local law enforcement agency. Often the presence or possibility of the presence of an officer will encourage decorum. If a person continues to interrupt, I believe that you could ask the officer to remove the person or persons from the meeting.

Second, while public bodies have the right to adopt rules to govern their own proceedings
[see e.g., Education Law, §1709(1)], 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.

I note that §103 of the Open Meetings Law provides that meetings of public bodies are open to the "general public." As such, any member of the public, whether a resident of the District or of another jurisdiction, would have the same right to attend. That being so, I do not believe that a member of the public can be required to identify himself or herself by name or by residence in order to attend a meeting of a public body. Further, since any person can attend, I do not believe that a public body could by rule limit the ability to speak to residents only. There are many instances in which people other than residents, such as those who may own commercial property or conduct business and who pay taxes within a given community, attend meetings and have a significant interest in the operation of a municipality or school district.

In sum, based on the foregoing, I believe that the Board may establish rules concerning the
conduct of those who attend its meetings, including the privilege of those in attendance to speak or participate to certain times, topics and duration.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Patricia and Thomas Pawlaczyk