PAC Finds OMA Violation Where Public Comment Impermissibly Limited

In a recent binding opinion, the PAC found a public body in violation of the Open Meetings Act (OMA) for restricting the content of public comment where a member of the public attempted to discuss the District’s hiring policies. Before finishing her public comment, the Board President interrupted the speaker and told her that discussing personnel matters during public comment was prohibited and, instead, she could arrange to address the Board privately.  In support of its position, the Board referenced an annotated agenda that included a statement for the Board to read aloud prior to the public comment portion of the meeting; the statement, in part, requests that personnel matters be communicated to the Board privately.

Upon review, the PAC found that the Board violated the OMA by improperly limiting the requester’s right to address the Board based on a restriction that was neither established nor recorded in the Board’s policies governing public comment. While the annotated agenda did include a statement regarding the confidentiality of personnel matters, the Board did not read this portion of the statement aloud during the meeting in question. Further, the language restricting public comments on personnel matters included in the Board’s annotated agenda was not posted on the District’s website or otherwise made available to the public. Nor was the restriction included in the Board’s published policies on public comment. Section 2.06(g) of the OMA requires that rules governing public comment be both “established” and “recorded” by the public body. Here, the PAC found that the Board did not “establish” or “record” any rule limiting public comment about personnel matters. Accordingly, the PAC concluded that the Board improperly restricted public comment in this instance.

This decision is an important reminder that public entities may only limit public comments in a manner consistent with their established and recorded policies and procedures to ensure compliance with the OMA. Further, while the PAC did not officially determine if a public body could impose a restriction on public comment regarding personnel matters, even if “established and recorded,” it opined that such a restriction could potentially infringe on a speaker’s First Amendment rights. Accordingly, whether or not a public body can restrict a member of the public from discussing personnel matters during open session public comment appears to remain an open question. We advise caution with any such approach and encourage working closely with counsel before imposing such a restriction.

If you have any questions regarding public comment or the OMA generally, please reach out to one of the authors of this post or any Franczek attorney.