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September 10, 2001

OML-AO-3364

Dear

Assemblyman Marc Butler has forwarded your letter of August 21 to this office for response. The Committee on Open Government, a unit of the Department of State, is authorized to provide advice and opinions relating to the Open Meetings Law.

You wrote that a certain individual is, in your view, "completely wrong when he asserts that he or anyone else can speak at any meeting of any elected board." That individual's contention, according your letter, is that since a municipality, such as the Village of Herkimer, receives federal, state and county monies, "this ‘co-mingling' of taxes means that anyone can demand to be placed on any agenda, or speak at any governmental body meeting." You expressed the concern that if such a contention is accurate, a public body "could easily have several hundred non-residents speaking at every meeting" and that "[t]his would effectively destroy the ability of any government to function." In consideration of the foregoing, you raised the following question: "Can any person, from anywhere in the U.S., demand to speak or be placed on the agenda of any governmental body in New York State?"

From my perspective, the issue does not hinge upon the residence of the person who demands to speak; rather, I believe that it pertains to the mistaken assumption that the public has the right to speak at meetings of government bodies. In this regard, I offer the following comments.

First, while individuals may have the right to express themselves and to speak, I do not
believe that they necessarily have the right to do so at meetings of public bodies. It is noted that there is no constitutional right to attend meetings of public bodies. That right is conferred by statute, i.e., by legislative action, in laws enacted in each of the fifty states. In the absence of a statutory grant of authority to attend such meetings, the public would not have the right to attend.

Second, 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, that statute is silent with respect to the issue of public participation. Consequently, 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. Nevertheless, 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, it has been advised that it should do so based upon 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., County Law, §153; Town Law, §63; Village Law, §4-412; 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.

Lastly, 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 municipality in which a public body functions 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 short, I do not believe that a public body may validly prohibit a member of the
public from speaking at its meeting based solely upon residency.

In sum, in my view, the public does not have the right to speak at meetings of public bodies. Nevertheless, a public body may choose to permit the public to participate in conjunction with reasonable rules that treat members of the public equally and without regard to residency.

I hope that the foregoing serves to clarify your understanding of the matter and that I have
been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Marc Butler