One of the most legally perilous jobs of a school board is to preside over the public participation portion of a meeting. The key for a board is to balance its need to run efficient and orderly meetings with the ability of citizens to exercise their first amendment right to speak. Boards must achieve this balance by adopting reasonable rules to govern the time and manner in which pubic participants can speak during board meetings. Many school boards limit the duration of individual comments to three or four minutes and restrict comments to the business of the school district. These rules are permissible under the Illinois School Code and the Illinois Open Meetings Act (OMA), which require that school boards provide an opportunity for public comment, but allow the board to establish and enforce reasonable rules to govern public participation.
In August, the Public Access Counselor (PAC) of the Illinois Attorney General issued an advisory opinion in which it determined that a city council had violated the OMA by both limiting public comments to matters listed on the agenda and by prohibiting non-residents from participating in public comment. The PAC noted that the city council had not established or adopted any rules restricting public participation in this manner. Even if such rules had been in effect, however, the PAC held that they would have run afoul of the OMA. With respect to limiting comments to matters on the agenda, the PAC found that restricting members of the public in such a manner, when the public body itself could discuss matters that were not on the agenda, would “impermissibly restrict the right to public comment.” And, in finding that the city council had violated Section 2.06(g) of the OMA when it limited comment to residents, the PAC reaffirmed the requirement in the statute that “any person” must be allowed an opportunity to address public officials, including non-residents.
In sum, the PAC has taken the position that a public body’s rules cannot restrict comments to items listed on the agenda and cannot limit the opportunity for public comment to residents only. The PACs decision does not come as a surprise. Recent PAC opinions have held that requiring a participant to provide an address on a public comment sign in sheet and requiring an individual to make a request to speak days in advance of the meeting are restrictions that violate the OMA.
This latest PAC opinion is advisory and, therefore, not binding, but a school board would be prudent to follow the guidance of the opinion. A school board should confirm that its policy on public participation is clear and contains only reasonable restrictions and that the policy is uniformly applied to all public participants.