PAC Finds Time Limits for Public Comment Must be Formal Board Policy

In a recent decision, the Illinois Attorney General’s Public Access Counselor (PAC), which enforces the Illinois Open Meetings Act (OMA), found that a school district violated the OMA when it limited the public comment period of a school board meeting to 15 minutes. The time limit itself was not necessarily a problem. Rather, the PAC found the restriction was unsupported by formal board policy and, thus, violated the OMA. The PAC’s opinion reminds public entities of the importance of codifying limits on public comment in a formal, written policy. Moreover, although not at issue in the case, certain comments by the PAC in the decision call into question whether an inflexible limitation on the length of public comment could, at least in some circumstances, violate the OMA.

In PAC Decision No. 19—002, a school board held a meeting with approximately 100 community members in attendance. The board announced at the meeting that individuals would only be permitted to speak for three minutes and that the board would allow only a total of 15 minutes of public comment. In other words, if each of the first five public commentators used their whole allotment of three minutes, no additional community members would be permitted to speak. The board had implemented similar restrictions at prior board meetings. The board had also notified community members of this limitation in a “Welcome Handout” provided to the public at every meeting. After the meeting, a community member filed a complaint with the PAC alleging that the board’s practice violated the OMA.

In reviewing the complaint, the PAC looked to Section 2.06(g) of the OMA, which permits a public entity to adopt rules for public comment. The PAC noted that Section 2.06(g) requires a public body to “establish” and “record” rules for the rules to be valid. Although the board’s Welcome Handout referred to the fifteen-minute limit, the restriction was not in the board’s formally adopted policies. The PAC reasoned that “[n]othing in the OMA suggests that past practices which have not been formally incorporated into a public body’s rules are established and recorded by the public body within the meaning of [the OMA].” As such, because the practice had not been formally adopted, the board violated the OMA by imposing the 15-minute cap.

It is unclear what the PAC would have decided if the board’s time restriction had been contained in board policy. Although the OMA does not specifically address the nature of rules that a public body may enforce during public comment, the PAC commented that such restrictions must be “reasonable time, place, and manner restrictions.” The PAC opined that there may be circumstances in which application of such a time restriction could unreasonably restrict the right of public comment and violate the OMA.

School boards and other public entities should review their policies and procedures on the duration of public comment to ensure compliance with Section 2.06(g) of the OMA. Moreover, public bodies should bear in mind that, in certain situations—such as when highly controversial topics are on the agenda—time limitations may need to be extended to allow for adequate public comment.