August 23, 2005
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 correspondence.
I have received your letter and apologize for the delay in response. You have questioned the extent to which a public body may "restrict members of the public from exercising their right of free speech" during a session held to permit the public to speak. You referred to a rule stating that:
"Speakers must notify DOH at least 48 hrs in advance of their intent to speak at the committee meeting. To get on the agenda, you may call 518-486-3209 or e-mail email@example.com (please reference P&T Committee). Public comments are limited to the items on the agenda and must be brief. Written material may also be submitted to the Committee if received by DOH at least 48 hours in advance of the meeting. Written material should summarize key points and may not exceed two pages in length."
It is your view that the foregoing is "unreasonably restrictive."
In this regard, 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. Those rights are 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, I do not believe that the public would have the right to attend.
In the case of the New York Open Meetings Law, in a statement of general principle and intent, that statute confers upon the public the right to attend meetings of public bodies, to listen to their deliberations and observe the performance of public officials. However, as you are aware, that right is limited, for public bodies in appropriate circumstances may enter into closed or executive sessions. As such, it is reiterated that, in my opinion, there is no constitutional right to attend meetings.
Within the language of the Open Meetings Law, there is nothing that pertains to the right of those in attendance to speak or otherwise participate. Certainly a member of the public may speak or express opinions about meetings or about the conduct of public business before or after meetings to other persons. However, since neither the Open Meetings Law nor any other provision of which I am aware provides the public with the right to speak during meetings, I do not believe that a public body is required to permit the public to do so during meetings. Certainly a public body may in my view permit the public to speak, and if it does so, it has been suggested that rules and procedures be developed that regarding the privilege to speak that are reasonable and that treat members of the public equally. From my perspective, a rule authorizing any person in attendance to speak for a maximum prescribed time on agenda items, and those items only, would be reasonable and valid, so long as it is carried out reasonably and consistently.
I hope that the foregoing serves to clarify your understanding of the matter.
Robert J. Freeman
cc: Medicaid Pharmacy and Therapeutics Committee