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OML-AO-4141

February 24, 2006

E-Mail

TO:

FROM: Camille S. Jobin-Davis, Assistant 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 information presented in your correspondence.

Dear

We are in receipt of your January 12, 2006 request for an advisory opinion concerning the application of the Open Meetings Law to a "community forum meeting" held by a board of education. Specifically, you inquire whether anyone can speak at such a gathering or whether the opportunity to do so may be limited to residents of the district.

We are unaware of any provision in the Education Law or the Open Meetings Law pertaining to "community forum meetings", and we speculate that such a meeting is most likely held for the purpose of gathering community input on a particular issue.

From our perspective, a "community forum meeting" is different from a meeting of a public body, and both are different from a public hearing. A meeting is generally a gathering of a quorum of a public body for the purpose of discussion, deliberation, and potentially taking action within the scope of its powers and duties. A hearing is generally held pursuant to law to provide members of the public with an opportunity to express their views concerning a particular subject, such as a proposed budget, a local law or a matter involving land use. It is likely that a "community forum meeting" is similar to a public hearing, due to its purpose, but unlike a public hearing, is not prescribed by law. Public hearings are often required to be preceded by the publication of a legal notice. In contrast, §104(3) of the Open Meetings Law specifies that notice of a meeting must merely be "given" to the news media and posted. We note, too, that a meeting of a public body held in accordance with the Open Meetings Law can only occur with the presence of a quorum. A hearing or a community forum, on the other hand, can be conducted without a quorum present.

While we know of no judicial decisions concerning the ability of those to speak at either meetings or hearings, when a public body does permit the public to speak, we 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 our view, would be unreasonable.

We note that there are federal court decisions indicating that if commentary is permitted within a certain subject area, negative commentary in the same area cannot be prohibited. It has been held by the United States Supreme Court that a school board meeting in which the public may speak is a "limited" public forum, and that limited public forum involve "public property which the State has opened for use by the public as a place for expressive activity" [Perry Education Association v. Perry Local Educators’ Association, 460 US 37, 103. S.Ct. 954 (1939); also see Baca v. Moreno Valley Unified School District, 936 F. Supp. 719 (1996)]. In Baca, a federal court invalidated a bylaw that "allows expression of two points of view (laudatory and neutral) while prohibiting a different point of view (negatively critical) on a particular subject matter (District employees’ conduct or performance)" (id., 730). That prohibition "engenders discussion artificially geared toward praising (and maintaining) the status quo, thereby foreclosing meaningful public dialogue and ultimately, dynamic political change" [Leventhal v. Vista Unified School District, 973 F.Supp. 951, 960 (1997)]. In a decision rendered by the United States District Court, Eastern District of New York (1997 WL588876 E.D.N.Y.), Schuloff, v. Murphy, it was stated that:

"In a traditional public forum, like a street or park, the government may enforce a content-based exclusion only if it is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. Perry Educ. Ass’n., 460 U.S. at 45. A designated or ‘limited’ public forum is public property ‘that the state has opened for use by the public as a place for expressive activity.’ Id. So long as the government retains the facility open for speech, it is bound by the same standards that apply to a traditional public forum. Thus, any content-based prohibition must be narrowly drawn to effectuate a compelling state interest. Id. at 46."

In the context of a meeting of a public body or a public hearing, we believe that a court would determine that a public body may limit the amount of time allotted to person who wishes to speak, so long as the limitation is reasonable.

Legal notices for public hearings normally include the following indication: "at such hearing any person may be heard." Neither the notice nor the statute requiring that the hearing be held distinguishes among those who might want to express their views. That being so, we do not believe that a public body could validly require that those who attend or seek to attend a hearing identify themselves by name, residence or interest. In short, it is our view that any member of the public has an equal opportunity to partake in a public hearing, and that an effort to distinguish among attendees by residence or any other qualifier would be inconsistent with the law and, therefore, unreasonable.
Moreover, people other than residents, particularly those who own property or operate businesses in a community, may have a substantial interest in attending and expressing their views at hearings held by school boards and other public bodies. Prohibiting those people from speaking, even though they may have a significant tax burden, while permitting residents to do so, would, in our view, be unjustifiable. Further, it may be that a non-resident serves, in essence, as a resident’s representative, and that precluding the non-resident from speaking would be equivalent to prohibiting a resident from speaking. In short, it is unlikely that a public body could validly prohibit a non-resident from speaking at a public forum based upon residency.

On behalf of the Committee on Open Government, we hope this is helpful to you.

CSJ:jm