Recent Open Meetings Act Related Decisions on Public Comment and Agendas

Two recent decisions, one out of the Fifth Circuit Court of Appeals, and the other issued by the Public Access Counselor for the Illinois Attorney General (“PAC”) address policies concerning decorum at open meetings and the sufficiency of agenda descriptions, two provisions addressed by the Illinois Open Meetings Act (“OMA”). The cases illustrate the breadth of constitutional protections on the public’s right to address the public body, as well as the requirement to ensure the public is sufficiently apprised to know what action is being taken by the body before a meeting. Before our analysis in depth below, we summarize key take-aways from these decisions as follows:

• Merriott v. City of Bossier City: A city council’s policy prohibiting speakers during the public comment portion of the city council meeting from making “personal, impertinent, and slanderous remarks” and limiting speech to topics on the agenda while addressing the council was too broad. Similarly, the city council’s policy prohibiting speakers from being “boisterous” during city council meetings was overbroad in violation of the First Amendment.
• PAC Decision 26-007: Agenda items must sufficiently set forth the general subject matter of the Board’s final action. Here, the agenda listing did not comply with Section 2.02(c) of the OMA. The OMA requires that a meeting agenda set forth the general subject matter of any ordinance or resolution that will be the subject of final action at a meeting. Referring generally in the agenda to approval of the Supervisor’s Report and not the specific action to hire new staff contained within the report was not sufficient.

Merriott v. City of Bossier City

The Fifth Circuit Court of Appeals, which has jurisdiction over federal courts in Texas, Louisiana, and Mississippi, recently held that a city council’s policy violated the First Amendment based on the overly broad nature of its restriction on public comment.

The relevant issues before the court included whether a city council’s policy that was read aloud prior to a city council meeting was facially overbroad under the First Amendment and facially void for vagueness under the Fourteen Amendment. Specifically, the policy provided that:

“Any person making personal, impertinent or slanderous remarks or who shall become boisterous while addressing the Council shall be forthwith, by the President Pro-tem, barred from further audience before the Council unless permission to continue by [sic] granted by a majority vote of the Council”

An online journalist who attended the meeting at which this policy was read participated in the public comment portion of the meeting during which council members interrupted him. The council members instructed the journalist to stay “on topic.” At a subsequent meeting, the journalist again spoke and council members again interrupted him before directing that the journalist be removed from the meeting. As justification for the restriction on the journalist’s speech, the council members stated that the journalist’s statement did not have anything to do with an agenda item and that the policy required him to confine his speech to items on the agenda. The journalist, in response, filed an open meetings complaint with the Louisiana Attorney General and sued the City for allegations under the Constitution and the Louisiana Open Meetings Law (“OML.”)

The Court found that the policy was facially overbroad because (1) it posed a realistic danger that the policy could significantly compromise an individual’s protections under the First Amendment and (2) the reach of the policy was disproportionate to its legitimate sweep, meaning that it exceeded the reasonable scope of the city’s purpose for enacting such a policy. The Court reasoned that the policy, when considering the absence of any limiting provision, effectively allowed the city council to determine which public comments would be permissible “at its whim.” The Court reasoned that the prohibition of “slanderous remarks” could result in violations based wholly upon the listener’s discretion, which is prohibited by the First Amendment to the U.S. Constitution. Likewise, the Court found that the policy was void for vagueness, meaning that the prohibitions of the conduct were not clearly defined. Due to this ill-defined and overbroad limitation on conduct, the policy’s prohibitions, the Court ruled, were unconstitutional. 

While the Fifth Circuit does not have jurisdiction over Illinois, the breadth of its analysis of the rights conferred by the U.S. Constitution and the substantial limits the Amendment pose on governmental limitations on speech must give Illinois public bodies pause, as the same rules and rights apply in the same way as is enforced under Illinois’s Open Meeting Act. Comments raised during public meetings pertaining to matters of public concern are protected by the First Amendment. Policies that infringe upon such protections risk violation of both the U.S. Constitution and the Illinois Open Meetings Act (“OMA”).

PAC Decision 26-007:

The PAC concluded that a township Board of Trustees violated OMA when it took final action to approve the creation of five new employment positions without identifying the general subject matter of this action on the meeting agenda prior to the meeting.

Specifically, at a Board meeting held in April, the Township Supervisor suggested adding five new positions to support Township operations. After introducing each of the proposed positions, the Supervisor asked the Board for a motion to approve the necessary hires that he had identified in his Supervisor Report. A Board Trustee then made a motion to approve the Supervisor’s Report and the actions set forth within that Report. The Board unanimously voted to approve the motion. At issue, however, was the fact that the agenda item for this action did not make mention of the hiring of additional personnel. Instead, the Board agenda contained only the general description of the item “Approval of Supervisor’s Report.”

The PAC found that the Board violated section 2.02(c) of OMA which provides that agendas must set forth the general subject matter of any resolution or ordinance that will be the subject of final action at a board meeting. Because the agenda item “Approval of Supervisor’s Report” did not provide any indication that the Board would be taking any action regarding the creation of employment positions, this did not sufficiently provide notice of final action.

The PAC rejected the Township’s argument that because the positions were not posted until after the vote, no final action occurred. The PAC instead found that this argument misconstrues the requirements and public policy under OMA which requires that public bodies notify the public of actions that will be contemplated prior to board meetings and to disclose sufficient information about those actions to allow the public an opportunity to be present and informed of what will be considered. Further, the PAC determined that because the Board approved the Supervisor’s request to create positions in the Township, this vote constituted a final action for purposes of OMA. Because a final action took place, the Board was required to provide the public with adequate advance notice of this final action.

While the complaint also alleged a violation of Section 2(e) of OMA, which requires that “final action shall be proceeded by a public recital of the matter being considered and other information that will inform the public of the business being conducted,” the PAC concluded that the Board satisfied these requirements. Specifically, the Supervisor described each of the proposed employment positions as well as the justification for each position prior to seeking Board approval. This satisfied the requirement under OMA providing for adequate public recital prior to taking final action. Yet even with adequate discussion, such explanation failed to protect the Township from a finding that it failed to post adequate notice to the public before the meeting on its agenda.

This decision serves as a reminder that Board agendas must sufficiently identify the specific subject matter of a final action to provide adequate advance notice under OMA. If you have any questions regarding this decision or the applicability of OMA generally, please reach out to one of the authors of this post or any Franczek attorney.