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OML-AO-3589

February 19, 2003

TO:

FROM: Robert J. Freeman, Executive Director

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 in which you raised questions concerning certain procedures of
the Board of Education of the Rockville Centre School District.

The initial issue pertains to the "practice of the ...Board to adjourn for executive session and return to public session later on in a room other than where they started the public session." You added that "By coincidence they wait until the public has left and then resume the meeting in their board room without the public having an opportunity to know that they are having a public meeting in a different location."

From my perspective, a basic requirement of the Open Meetings Law is that the public has the right to know when and where a public body is or will be conducting a meeting. In the circumstance that you described, I believe that Board would be required to provide a notice, presumably by means of posting, indicating where the Board will continue its meeting following an executive session or recess.

The other issue involves limitations on the public's ability to speak at meetings.

In this regard, 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.

In my view, the Board may limit members of the public to "one turn at the microphone", so
long as its practice is implemented equally and reasonably.

I hope that I have been of assistance.

RJF:tt

cc: Board of Education