Wednesday, July 2nd, 2014

Pending Lawsuit Raises Issue Whether Public Comments Must Be Allowed in All Public Meetings under OMA

Commissioners of the Clark County Park District were recently named as defendants in a lawsuit for allegedly failing to allow a public comment during a special meeting.  The special meeting was called exclusively to discuss the performance evaluation of the district’s executive director. The discussion was done in closed session.  When a member of the public was refused an opportunity to speak after the meeting was reopened, the would-be speaker declared the commissioners to be under citizen’s arrest, and the lawsuit was filed shortly thereafter.

At specific issue is whether a public body must allow public comments during all meetings, or if public comments can be excluded from special meetings, particularly if all agenda items are discussed only in closed session. The Open Meetings Act does not explicitly distinguish how the right to speak may vary in different meeting contexts.  The statutory section invoked by the plaintiff states:  “Any person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.”  5 ILCS 120/2.06(g).

The statute, which became effective in 2011, has been recognized to mean that local governments must have a procedure to allow the public to address public officials.  Whether public comment must be allowed at every meeting, however, or whether a local government need only provide an ample opportunity for the public to address public officials, is not clearly described in the statute.  Another variable therein is whether public comment must be allowed at a meeting whose agenda contains only closed session topics.

Our reading of the statute is that it was drafted to allow some latitude for local governments to create procedures that do not necessarily require public comments at every public meeting, for example at meetings with only closed-session agenda items, or else the statute would have simply stated that public comments must be allowed at all public meetings.  Regardless, Public Access Counselor opinions and court cases regarding OMA have trended recently towards the public and away from government units, so a court could find that local governments must allow for public comments at any public meeting.  Furthermore, giving an opportunity to speak to members of the public, who take the time to attend public meetings, is generally a good policy.  To the extent that a government unit is concerned about long-winded or argumentative speakers, procedures may be utilized that limit the length of time any person speaks, and elected officials are not required to engage a speaker in public debate.  Contact an attorney if you have any questions about your local government’s policies pertaining to members of the public speaking at meetings.

Practice Point:  Until more clarity is given through court interpretation of the Open Meetings Act, local governments are advised to provide some procedure allowing for public comments at all public meetings.  While we do not believe the statute should be interpreted to require public comments at every special meeting and committee meeting, the trend of Public Access Counselor opinions and court cases has favored public participation in recent years, so it is possible that a court would find that local governments must allow for public comments at any public meeting.


Brad Stewart

Author: Brad Stewart