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OML-AO-4377

May 14, 2007

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 facts presented in your correspondence.

Dear :

We are in receipt of your request for an advisory opinion concerning application of the Open Meetings Law to certain proceedings of the Ossining Village Board. Soon after receiving your request, we received requests from Ms. Anne Perron, Mr. Stephen Dewey and Ms. Linda Mangano pertaining to the same issue and the same meetings. The following comments are offered in an effort to address all concerns raised by the four separate requests.

You have complained that the Mayor and the Trustees of the Village of Ossining have altered previous practices by limiting public participation at meetings of the Board of Trustees and videotaping only a portion of its meetings.

In this regard, there is no requirement that a public body, such as a village board of trustees, tape record or video record its meetings. Because that is so, we do not believe that the Board is required to record the entirety of its meetings. Nevertheless, we point out that it has been held by the courts that any person who attends an open meeting has the right to tape or video record the proceedings, unless the use of the recording device is disruptive or obtrusive [see e.g., Mitchell v. Board of Education of the Garden City Union Free School District, 113 AD2d 924 (1985); Csorny v. Shoreham-Wading River Central School District, 759 NYS2d 513, 305 AD2d 83 (2003)]. Therefore, even though the Board may not record the entirety of its open meetings, any member of the public may do so, again, unless the use of the recording device interferes with the proceedings.

Mr. Dewey pointed out that the Village Code requires the Board to “‘provide the widest possible diversity of information sources and services to the public.’ Oss. Village Code, Art II, §103-5(C)(4).” Because there is no corresponding generalized requirement in law, and we have no authority to interpret Village Code, it is not known whether this provision of the Village Code could serve as the basis to require the Village to broadcast entire meetings on cable TV.

Next, and based on the submissions we received, the Village Board reduced the time that attendees may speak from seven to three minutes, and now gives attendees only one 4 minute comment period prior to the reading of a resolution.

From our perspective, first, while individuals may have the right to express themselves and to speak, they do not 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.

Reducing the number of minutes a member of the public has to speak at a public meeting from seven to three, in our opinion, is not unreasonable. It is also not unreasonable, in our opinion, to deviate, under certain circumstances, from restrictions on the number of minutes a person is permitted to speak. However, it is our opinion that if time limits are relaxed for one person, if requested, they must be relaxed in the same manner for others.

Similarly, if a person arrives late to a meeting, and the public comment portion of the meeting has already passed, we see no reason to permit the latecomer the ability to speak during the business portion of the meeting. On the other hand, when the latecomer arrives within the public comment portion of a meeting, or prior to that portion of the meeting at which others are invited to speak, in our opinion, we see no reason for prohibiting that person from requesting to speak.

Go to 3295

Go to 4002

In small communities, it is likely that most persons wishing to speak at public meetings are already known to many of those in attendance. In larger settings, perhaps only a portion of those attending are familiar faces. In any event, if a sign-in sheet is contentious, perhaps the municipality could offer consecutively numbered cards at the door. When a person who wishes to speak enters the meeting s/he could pick-up a card, and be called on in the order in which s/he arrived at the meeting, by number or name, if known.

In response to your request that we appeal to the Governor to change the law, and require local municipal boards to permit public comments at certain times during public meetings, and for certain lengths of time, we decline to do so at this time. It has long been our opinion that the reasonableness of a policy or practice must be determined on a case by case basis, and that the flexibility of the law as it exists with respect to this issue is important to preserve. Setting out rigid parameters for public participation, in our opinion, may only create more conflict....

In response to Mr. Dewey’s request, we confirm opinions previously rendered by this office, namely Advisory Opinion Numbers 4002 and 3295, by incorporating portions of those opinions herein, where appropriate.

And finally, while the Committee on Open Government is authorized to issue advisory opinions concerning application of the Open Meetings Law, this office has no authority to enforce the law or compel an entity to comply with the statutory provisions. It is our hope that these opinions are educational and persuasive, and that they serve to resolve problems and promote understanding of and compliance with the law. To that extent, a copy of this advisory opinion will be forwarded to the Mayor and the Trustees of the Village Board.

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

Copy to the Mayor and Trustees