September 29, 2008
FROM: Robert J. Freeman, Executive 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 Mr. Davis:
I have received your letter and hope that you will accept my apologies for the delay in response. You have questioned the authority of the Mayor of the Village of Croton-on-Hudson to allow “speakers who agree with him to speak longer than speakers who disagree with him”, to interrupt “critical speakers” or to bar persons from speaking due to their participation on a blog.
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, such as a village board of trustees, 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 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., Village Law, §4-412; 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 five minutes while permitting others to address it for three, or not at all, such a rule, in my view, would be unreasonable.
I 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 fora 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.”
The court in Schuloff determined that a “compelling state interest” involved the ability to protect students’ privacy in an effort to comply with the Family Educational Rights Privacy Act, but that expressions of opinions concerning “the shortcomings” of a law school professor could not be restrained.
In the context of your inquiry, assuming that the Board of Trustees and/or the Mayor as presiding officer permit those who wish to speak to do so for a particular period of time, each person who wishes to do so must, in my opinion, be given an equal opportunity to do so. Similarly, if the Board and/or Mayor permit positive comments concerning the operation of Village government, I believe that they must offer an equal opportunity to enable those in attendance to offer negative or critical comments.
I hope that I have been of assistance.
cc: Board of Trustees