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OML-AO-3845

August 2, 2004

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 and the materials attached to it. You have sought my views concerning a proposal by the Town of Patterson regulating the use of signs at meetings and hearings of boards and committees that function within Town government.

Section 1.2 of the proposal states that:

"Signs shall not be carried, held or otherwise displayed by the general public within any room in which a meeting is being held, or about to be held by the Town Board, or other officially designated Board or Committee of the Town of Patterson."

Section 1.4 would, if enacted, provide that:

"For the purpose of these rules of procedure a sign shall be considered as any object with a single surface area larger than seventy (70) square inches, held or carried by one or more individuals which is intended to convey a message. Messages on shirts shall not be considered a sign."

In this regard, there is no state law of which I am aware that focuses on the issue. 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 in accordance with rules adopted by that body. In the context of your correspondence, §63 of the Town Law authorizes the Town Board to adopt such rules.

Although public bodies have the right to adopt rules to govern their own proceedings, the courts have found in a variety of contexts that such rules must be reasonable. In my view, the issue in this instance involves the reasonableness of the rules and the extent to which disruption or distraction may occur when those who attend meetings seek to express their views through the presence of signs. In a decision rendered in 1963 concerning the use of tape recorders, it was found that the presence of a tape recorder, which then was a large and obtrusive device, would detract from the deliberative process and that, therefore, a policy prohibiting its use was reasonable [Davidson v. Common Council, 40 Misc.2d 1053]. However, when changes in technology enabled the public to use portable, hand-held tape recorders, it was found that their use would not detract from the deliberative process, because those devices were unobtrusive. Consequently, it was also found that rules adopted by public bodies prohibiting their use were unreasonable [People v. Ystueta, 99 Misc.2d 1105 (1979); Mitchell v. Board of Education of the Garden City Union Free School District, 113 AD 2d 924 (1985). Specifically, in Mitchell, it was held that: "While Education Law §1709(1) authorizes a board of Education to adopt by laws and rules for its government and operations, this authority is not unbridled. Irrational and unreasonable rules will not be sanctioned." Similarly, it has been held that a general ban on the use of video recording devices is unreasonable, and that the use of those devices must be permitted if such use is not disruptive [see Peloquin v. Arsenault, 616 NYS 2d 716 (1994)].

Based on the foregoing, I believe that the Board could clearly adopt rules pursuant to §63 of the Town Law to prevent verbal interruptions, shouting or other outbursts, as well as slanderous or obscene language; similarly, I believe that the Board could regulate movement in order to preclude interference with meetings that would otherwise prevent those in attendance from observing or hearing the deliberative process.

From my perspective, the primary consideration should involve whether or the extent to which a sign may be obtrusive or disruptive in some manner. If the presence of a sign blocks a person in attendance at a meeting from observing the proceedings, I believe that a rule requiring that the sign be moved or perhaps, due to size, removed. If a sign includes obscene language, I believe that a rule could validly prohibit its presence at a meeting. In this instance, the proposal prohibits the presence of any sign at a meeting that is larger than seventy square inches, irrespective of its content. Messages on shirts are sometimes larger than seventy square inches. Despite their size and the possibility that messages on them may be offensive to some, there is no prohibition applicable to shirts. That being so, while I know of no judicial decision that deals with the issue, as written, it is questionable in my view whether a court would find each aspect of the proposal to be reasonable.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director
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