OML AO 5607


From:         Freeman, Robert J (DOS)
Sent:          Friday, February 22, 2019 4:16 PM
Cc:              Diana Abadie; Dave Walker; Neva E. Wartell; Mary Finneran_2
Subject:     RE: Greene County Legislature Rules of order concerns re: public speaking at open meetings


I have received your correspondence concerning the ability of the public to speak at meetings of the Greene County Legislature.

To put the issue in perspective, the Open Meetings Law gives the public the right to attend, listen and observe the performance of public officials during meetings of public bodies. That statute, however, is silent with respect to public participation. If a public body does not want the public to speak during its meetings, a policy or rule to that effect would be valid. Many public bodies, however, permit limited public participation, and when they do so, this office has advised that rules should be adopted and that any such rules must be reasonable and treat members of the public equally. You have questioned whether two of the Legislature's rules are reasonable.

Reference was made to Rule 11, entitled "Time for Presentation of Offerings for a Meeting". The Rule provides in relevant part that "All petitions, resolutions, offers or communications of any nature shall be in writing and signed and shall be submitted to the Clerk of the Legislature before the close of business on the Friday prior to the regular meeting of each month…" So long as members of the public are treated equally concerning the time of submission of communications sought to be considered at an upcoming meeting, it is likely in our view, that that element of the rule would be valid. However, it has been advised that a person cannot be required to identify her/himself as a condition precedent to attending a meeting, speaking during a meeting, or otherwise communicating in relation to a meeting.

Section 103(a) of the Open Meetings Law states that "Every meeting of a public body shall be open to the general public…" Based on that provision, the public may attend meetings of public bodies irrespective of their identities or residence. A resident of the County or Timbuktu has the same right to attend meetings of the County Legislature. That being so, it has been advised that a public body may request that a person provide his or her name or other identifier, but that a person may not be required to do so in order to attend, speak or otherwise participate relative to a meeting of a public body. Identifying oneself should, in my view, be optional.

Several reasons are offered for that advice. First, in general, significance of a comment or point of view involves its content, not the identity of the individual who may have spoken or written. Second, over the years, this office has been contacted by women who are victims of batterers. They have wanted to offer a point of view or information, but in order to avoid harm, there has been reluctance to disclose their names or addresses. In a different context, situations involving school board meetings have been described in which a parent offers a comment, and there is retribution directed later at his or her child.

Issues associated with Rule 14 may, in my view, be considered unreasonable concerning various aspects of its content. The first sentence of the Rule states that "No person shall be entitled to the privilege of the floor…unless a request therefor has been submitted…to a duly elected member of this body who represents the district in which the person making such request is a bona fide resident." Again, residence, in my opinion, should not be a criterion for entitlement to privilege of the floor. Further, I would conjecture that many residents are unaware of the name of their representative. The Rule provides that a non-resident must seek approval of the Chairman of the Board or of the Standing Committee having jurisdiction regarding the matter, and that person alone has the discretionary authority to permit that person to speak or to reject that person's request to do so. Either chairperson may have an aversion to the topic suggested or dislike for the person who wants to speak and reject the request without a valid reason for so doing. Either chairperson may have a point of view in opposition to that sought to be expressed, and it has been held that if positive comments are offered on a given subject, critical comments must also be accepted.

Finally, if a chairperson seeks to prohibit a person from speaking, but another member of the Legislature disagrees, that member could in my view introduce a motion or resolution to permit speaking, and if the motion or resolution is carried by a majority of the total membership of the Legislature, I believe that the chairperson's stance could be overridden.

I hope that I have been of assistance.