September 18, 1997




Ms. Mary Mendola
Town of Rochester Democratic Committee
126 Lawrence Hill Road
Accord, NY 12404

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 Ms. Mendola:

I have received your letter of August 6 in which you sought an opinion concerning the propriety of rules adopted by resolution by the Rochester Town Board.

You wrote that the resolution:

"has become known as the ‘handclapping' law. While some see it as totally inane, others are concerned about violations of our First Amendment rights and Freedom of Speech. The resolution totally bans handclapping and the distribution of materials; it also gives the Supervisor and the Town Board the right to refuse to answer questions and prohibits the Town Board from responding to the public without the Supervisor's permission."

In this regard, it is noted at the outset that the ability to attend meetings is based on statutory rather than constitutional rights. 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). However, the Law is silent with respect to the issue of public participation, the distribution of literature at a meeting, or the use of placards, posters, banners and the like. Consequently, by means of example, if a public body 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 or otherwise authorize public participation, I believe that it should do so based upon reasonable rules that treat members of the public equally.

While public bodies have the right to adopt rules to govern their own proceedings, the courts have found in a variety of contexts that such rules must be reasonable. In my view, the issue in this instance involves the reasonableness of the rules and the extent to which disruption or distraction may occur when those who attend meetings seek to express their views. In a decision rendered in 1963 concerning the use of tape recorders, it was found that the presence of a tape recorder, which then was a large and obtrusive device, would detract from the deliberative process and that, therefore, a policy prohibiting its use was reasonable [Davidson v. Common Council, 40 Misc.2d 1053]. However, when changes in technology enabled the public to use portable, hand-held tape recorders, it was found that their use would not detract from the deliberative process, because those devices were unobtrusive. Consequently, it was also found that rules adopted by public bodies prohibiting their use were unreasonable [People v. Ystueta, 99 Misc.2d 1105 (1979); Mitchell v. Board of Education of the Garden City Union Free School District, 113 AD 2d 924 (1985). Specifically, in Mitchell, it was held that: "While Education Law §1709(1) authorizes a board of Education to adopt by laws and rules for its government and operations, this authority is not unbridled. Irrational and unreasonable rules will not be sanctioned." Similarly, it has been held that a general ban on the use of video recording devices is unreasonable, and that the use of those devices must be permitted if such use is not disruptive [see Peloquin v. Arsenault, 616 NYS 2d 716 (1994)].

Based on the foregoing, I believe that the Board could clearly adopt rules pursuant to §63 of the Town Law to prevent verbal interruptions, shouting or other outbursts, as well as slanderous or obscene language or signs; similarly, I believe that the Board could regulate movement so as not to interfere with meetings or prevent those in attendance from observing or hearing the deliberative process.

It is likely in my view that the resolution represents a permissible exercise of the authority by the Town Board. Nevertheless, due to the absence of statutory guidance, and since the issue involves the reasonableness of the policy, it appears that a clear and final determination of the matter could be gained only by means of judicial review.

I regret that I cannot be of greater assistance.



Robert J. Freeman
Executive Director


cc: Town Board