September 12, 2000
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
I have received your letter of August 3, as well as related correspondence, all of which deals with procedures followed by the Board of Trustees of the Village of Elmira Heights at its meetings. Having reviewed the materials, I offer the following comments.
First, Robert's Rules is not law, and there is no obligation on the part of a public body to follow Robert's Rules. On the contrary, I believe that those rules are unnecessarily complex and confusing and that they may, in some instances, be contrary to law. Pursuant to subdivision (2) of §4-412 of the Village Law, the Board of Trustees "may determine the rules of its procedure." Section 4-400 states that it is the Mayor's responsibility to "preside at meetings of the board of trustees." As such, the Mayor has the ability to ensure that rules of procedure relating to the conduct of the meeting are followed.
Second, 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. 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, 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. 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
ten minutes while permitting others to address it for three, or not at all, such a rule, in my
view, would be unreasonable.
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Trustees