June 13, 2008

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.


            I have received your letter and apologize for the delay in response.  You have questioned the propriety of a practice of the Richmondville Town Board that permits people to speak at meetings, so long as they “not quote any source or expert unless [they] have that expert physically present at the meeting (emphasis yours).

            In this regard, 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 the adoption of reasonable rules.

            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)].

            In this instance, in consideration of the infinite number of sources or experts that may exist, as well as the ability to demonstrate and determine individuals’ status as experts or the names of publications through the use of written materials, I believe that a court would find the requirement to which you referred to be unreasonable and, therefore, invalid.

            I hope that I have been of assistance.



                                                                                                Robert J. Freeman
                                                                                                Executive Director


cc: Town Board