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OML-AO-4573

                                                                                                March 3, 2008

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, unless otherwise indicated.

Dear

            I have received your letter and the news articles relating to it.  You have requested an advisory opinion concerning an incident involving the Monroe County Legislature. 

            By way of background, the matter relates to the process by which the Legislature selected a new public defender following the retirement of an individual who served in that position for approximately thirty years.  Because the propriety of the process became a topic of controversy, your letter and the news articles indicate that approximately two-hundred people sought to attend a meeting of the Legislature on February 12.  You added that a sign indicating the occupancy limit in the Legislature’s chamber “had been changed from 186 to 75.”  Consequently, although the chamber ordinarily would have enabled most of those interested in attending to do so, the reduction of the limit precluded many from attending.  According to a news account of the gathering, before people were permitted to gain entry into the chamber:

“Their belongings were searched for weapons and they were scanned with a metal detector wand.  As the meeting began Gantt was removed after yelling ‘Let our people in now!’  Sister Grace Miller of the Sisters of Mercy was hustled out of the room by deputies.  A man who stood up in her defense was thrown against the wall, handcuffed, and taken out of the room.  Miller and the bystander were charged with disorderly conduct.”

The news article also indicates that, after the meeting began, “deputies hovered over the crowd,” and when people were permitted to address the Legislature, they “were escorted to the podium and to and from the bathroom by armed deputies.”

            Based on the foregoing, I offer the following comments.

            I note at the outset that §103(a) of the Open Meetings Law states in part that "Every meeting of a public body shall be open to the general public..."  Further, the intent of the Open Meetings Law is clearly stated in §100 as follows:

"It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of an able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy.  The people must be able to remain informed if they are to retain control over those who are their public servants.  It is the only climate under which the commonweal will prosper and enable the governmental process to operate for the benefit of those who created it."

As such, the Open Meetings Law confers a right upon the public to attend meetings of public bodies and to observe the performance of public officials who serve on those bodies.

            Although the Open Meetings Law does not directly address matters involving the ability to speak at meetings or the conduct of public bodies or those who attend meetings, it has been advised in a variety of contexts that every law must be implemented in a manner that gives reasonable effect to its intent.  Additionally, as a general matter, a public body has the authority to adopt rules and procedures to govern its own proceedings.  Nevertheless, the courts have found that those rules must be reasonable.  For instance, 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).

            In my view, there are several issues relating to the reasonableness of certain actions relating to the event.

            First, in various locations, those entering buildings in which meetings subject to the Open Meetings Law are being held must pass through a metal detector before attending.  When there is a possibility of violence, it would not be unreasonable in my opinion for a public body to require that people do so prior to attending a meeting.  Whether the use of metal detection devices was reasonable concerning the meeting at issue but not others in my opinion would depend on a likelihood of the possibility of violence or harm.

            Second, the reduction of the number of those who could attend was, in my opinion, unreasonable.  In situations involving different facts but the same principle, it has been advised that  if it is known in advance of a meeting that a larger crowd is likely to attend than the usual meeting location will accommodate, and if a larger facility is available, it would be reasonable and consistent with the intent of the law to hold the meeting in the larger facility.  Conversely, assuming the same facts, I believe that it would be unreasonable to hold a meeting in a facility that would not accommodate those interested in attending.

            The preceding paragraph appeared in an advisory opinion rendered in 1993 and  was relied upon in Crain v. Reynolds (Supreme Court, New York County, NYLJ, August 12, 1998).  In that decision, the Board of Trustees of the City University of New York conducted a meeting in a room that could not accommodate those interested in attending, even though other facilities were available that would have accommodated those persons.  The court in Crain granted the petitioners’ motion for an order precluding the Board of Trustees from implementing a resolution adopted at the meeting at issue until certain conditions were met.

            In this instance, the chamber was large enough to accommodate most of those interested in attending, and I believe that reducing the number of those who could gain entry was unreasonable, particularly if those permitted to attend were required to be subject to search through the use of a metal detecting wand.  While there might have been a possibility of disruption, it would seem that the likelihood of violence or a shooting would have been less than significant.  That being so, as many as the chamber could accommodate should in my opinion have been permitted to attend.  Again, the Open Meetings Law provides any member of the public with the right to attend meetings of public bodies.  Since, according to discussions with members of the news media and others, there were empty seats in the chamber, the failure or refusal of the Legislature to permit the attendance of  as many as possible in the chamber would, in my opinion, constitute a failure to comply with the Open Meetings Law.

            Third, for the reason mentioned earlier, that those authorized to attend were first searched with a metal detecting wand, being escorted to the podium by sheriff’s deputies prior to addressing the Legislature was, in my view, unreasonable.  In short, having law enforcement officers present in the chamber may have been reasonable.  However, a requirement that those desiring to speak be “escorted” to the podium by a law enforcement officer was, based on the facts known to me, unreasonable and unnecessarily intimidating to many.  Having discussed the matter with several people familiar with the incident, some individuals refrained from offering comments due to a sense of intimidation.

            Next, 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 reasonable rules that treat members of the public equally. 

            Although there is a constitutional right to engage in free speech, it is our view that there is no constitutional right to do so at meetings of public bodies.  The right to attend those meetings is conferred by statute, and as you are aware, a public body is permitted to exclude the public from executive sessions held in accordance with §105(1) of the Open Meetings Law.

            When a public body chooses to permit the public to speak at meetings, as suggested earlier, I believe that it should do so through the adoption and implementation of reasonable rules.  As stated in §153(8) of the County Law, “the board of supervisors [the County Legislature in this instance] shall determine the rules of its procedure.”  That provision clearly confers the authority on the Legislature to establish rules concerning the opportunity of those in attendance to speak or otherwise participate at meetings.  Just as clearly in my opinion, the Legislature may adopt rules to prevent verbal interruptions, shouting or other outbursts, as well as slanderous or obscene language; similarly, I believe that it may regulate movement in order to preclude interference with meetings that would otherwise prevent those in attendance from observing or hearing the deliberative process.

            It does not appear however, that any such rules, if such rules exist, were described or announced before or during the event.  This is not intended to suggest that the Legislature could not properly have removed you or others from its meeting if you disrupted its proceedings.  Rather, it is possible that some of the controversy associated with the meeting might have been avoided had rules of procedure or decorum been made known to those who attended or sought to attend the meeting.

            In an effort to enhance understanding of and compliance with applicable law, a copy of this opinion will be sent to the Monroe County Legislature. 

            I hope that I have been of assistance.  Should any further questions arise, please feel free to contact me.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
Executive Director

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cc: County Legislature