July 15, 2004
I have received your letters and apologize for the delay in responding. You have requested an advisory opinion relating to the conduct of certain public hearings. In brief, certain persons were permitted to speak for lengthy periods, while others were limited to three minutes in one instance and two in the other. Moreover, by the time several speakers were authorized to express their views, "most of the spectators" and members of the committee conducting the hearing had departed.
First, from my perspective, a meeting is different from a hearing. A meeting is generally a gathering of 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 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. 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 posed. Further, there is no requirement that a newspaper, for example, publish a notice given regarding a meeting to be held under the Open Meetings Law. I 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, on the other hand, can be conducted without a quorum present.
While I know of no judicial decisions concerning the ability of those to speak at either meetings or hearings, I believe that the principles pertinent to that issue would be the same. In short, I believe that an entity has the authority to adopt rules or procedures to govern its own proceedings. Those rules or procedures, however, must in my opinion be reasonable. In my opinion, it would be unreasonable, for example, to authorize those with one point of view to speak for ten minutes or perhaps without limitation, while permitting those with a different view to speak for three minutes or not at all.
If it is contended that a hearing was not conducted reasonably, the potential remedies, if they can be characterized as such, would involve offering complaints to those who conducted the hearing or the initiation of a judicial proceeding with Article 78 of the Civil Practice Law and Rules. In an Article 78 proceeding, a petitioner (a member of the public) must demonstrate that a public officer or governmental entity acted unreasonably, or that such person or entity failed to give effect to a legal requirement. If, for instance, a provision of law requires that a public hearing be held and that members of the public be given an opportunity to be heard, and if that opportunity is not reasonably granted, a court could find that a public officer or governmental entity failed to comply with law. In that event, I believe that court could issue an order designed to guarantee compliance with law and/or reasonableness.
As you requested, copies of this response will be forwarded to the officials that you identified.
I hope that I have been of assistance.
Robert J. Freeman
cc: Hon. Amanda Burden
Hon. Gifford Miller
Hon. James Sanders