WHETHER YOUR STATE
calls it the “sunshine law” or the “open meetings law,” the public is entitled to attend meetings of public bodies because democracy depends on openness and transparency. But the law does not guarantee a person’s right to speak at a board meeting. Your board policy does. What happens when board policies are not enough to properly structure public comments?
In one case, an entire school board regularly violated board policies by refusing to hear public comments, holding more than 60 percent of its meetings in executive session and delaying the public comment section until 10 or 11 o’clock at night.
Not only were the board members rude and dismissive to residents who wanted to be heard, the school attorneys got in on the act, publicly attacking residents during their public comment period, even following the residents into the parking lot to continue tirades. The state education department had to get involved.
At a different school district’s meeting, the superintendent was verbally attacked by a former board member from a prior district. When the board president tried to prevent him from speaking because he was not a resident of the community, the board erupted in a shouting match. Some members were shouting “you’re violating the law” and others tried to make motions that “the Open Meetings Law be approved,” while others called for an executive session just to stop the public comments.
The commentator refused to leave and was led away in handcuffs. He sued the superintendent, who counter-sued the commentator and a sitting board member. The superintendent lost his case and the former board member prevailed on a freedom of speech argument.
In a neighboring state, a superintendent lost control and joined a shouting match with a resident during the public comment session. He didn’t stop until a board member pulled him off the stage.
Once you allow public comments at board meetings through board policy, you must balance the board’s right to set rules versus the public’s right to free speech. Public comments cannot be limited in a manner that is viewpoint-restrictive or discriminatory. You should not limit a speaker’s opinion, but you can limit the speaker’s topic to the business before the board. Courts have struck down policies with prohibitions on “personal, rude or slanderous remarks” as excessive, finding that a reasonable person would be unable to anticipate which comments the board might find too personal, rude or slanderous.
Other board policies that courts have found unconstitutionally restrictive include prohibitions on “improper conduct or remarks” and “personal attacks.” Turning off the microphone during a public tirade against a school administrator also was found unconstitutional as an act of viewpoint discrimination.
The legal consequences in these cases included an order to the district to strike the overly broad language. The cost of restricting public comments in another case exceeded $77,000 when a court awarded legal fees and costs to the lawsuit’s prevailing party.
Not all courts are willing to impose a penalty on elected officials for breaking the open meetings law, but the cost to defend a constitutional challenge to board policies should be enough incentive to ensure your district manages the public comment portion of board meetings fairly and legally.
Fair limitations on public comments should be neutral, such as time and topic limits, sign-in requirements, prohibitions against vulgarities or threats, and authorization for the board president to stop commentators who violate the policy.
Train your board members. Ensure your board members understand what your board policy requires. If you are supposed to have a sign-in sheet, be prepared. Don’t rip a page of paper out of your notebook and proclaim it to be the sign-in sheet for the meeting when you see an unwanted commentator approaching the microphone.
Your school attorney or state membership association should be consulted for more on structuring public comments.
is general counsel of Albany-Schoharie-Schenectady-Saratoga BOCES in Albany, N.Y.