Carrollton City Council violated OMA by restricting public comment to residents and agenda items

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Dear and Mr. Harness:

This determination is issued pursuant to section 3. 5( e) of the Open Meetings Act OMA) ( 5 ILCS 120/ 3. 5( e) ( West 2015 Supp.)). For the reasons discussed below, this office concludes that the City Council ( Council) of the City of Carrollton ( City) violated section 2.06( g) of OMA (5 ILCS 120/ 2. 06( g) ( West 2014)) by restricting public comment to City residents and to items listed on the agenda during the Council' s October 13, 2015, meeting.

BACKGROUND

On October 14, 2015, submitted a Request for Review alleging that the Council limited public comment at its October 13, 2015, regular meeting to matters on the agenda and prohibited attendees who were not City residents, including from addressing the Council. On October 20, 2015, the Public Access Bureau sent a copy of the Request for Review to the Mayor Pro Tempore ( Mayor), in his capacity as the head of the Council, and asked for a written response to the allegations therein. This office also requested a copy of any established and recorded Council rules governing public comment during meetings, and copies of the agenda, open session minutes, and any audio or video recordings of the October 13, 2015, meeting. On October 26, 2015, the City Clerk provided this office with a copy ofthe agenda and an audio recording of the meeting. Additionally, on November 9, 2015, this office received the Mayor's written response to the allegations in which he confirmed that he had limited public comment to "subjects on the agenda" and prohibited non-residents ofthe City from addressing the Council " since these have been the people most disrupted [ sic] in conducting a meeting for the past 4 mos."' On November 13, 2015, this office forwarded a copy of the Mayor' s response to On November 16, 2015, she replied by emphasizing that Mayor' s response acknowledged that the conduct she had alleged " did indeed take place. i2 On November 18, 2015, the City Clerk confirmed to the Public Access Bureau via e- mail that on the date of the meeting in question the City did not have established and recorded rules concerning public comment during Council meetings. On December 8, 2015, the City Clerk provided the Public Access Bureau with a copy ofthe minutes ofthe Council' s October 13, 2015, meeting.

With respect to limiting public comment to agenda items, the Mayor stated in the Council' s response that he imposed that restriction because " we must post [the agenda] 48 hrs in section the and once inside 1 agec) does require a is cast in stone for the lbody'spost d agenda to 02( 2. 02( c) of OMA ( 5 ILCS 120/ 2. 02( c) ( West2014)) G the set forth the subject " matter f added), that resolution or sion does not prohibit inance that will discussion of ject of final action at the meeting[ ] ( emphasis matters not on an agenda by the public body, nor does it prohibit members of the public from commenting on matters that do not appear on the agenda during the public comment portion of the meeting. Rice v. Board ofTrustees ofAdams County, Ill., 326 I11. App. 3d 1120, 1123 ( 4th Dist. 2002) ( concluding that a public body may " consider" items not specifically set forth on an agenda by deliberation and discussion, but may not take final action without sufficient advance notice on the agenda). Further, it is undisputed that the Council had not established and recorded any rules limiting public comment to agenda items or excluding non-residents from addressing the Council. Accordingly, this office concludes that the Council violated section 2.06( g) of OMA during its October 13, 2015, meeting by extemporaneously imposing those restrictions.

Moreover, a rule purporting to limit the right to comment to residents of the City would run afoul of section 2.06(g) of OMA. Section 2.06( g) specifically provides that 'Piny person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body." ( Emphasis added.) Although a public body may adopt reasonable rules governing the manner in which members ofthe public provide comments during open meetings, " a person' s right to comment at an open meeting is not contingent upon where he or she resides." Ill. Att'y Gen. Pub. Acc. Op. No. 14-009, issued September 4, 2014, at 7. Accordingly, this office concludes that a rule establishing a blanket prohibition on public comment by non-residents would impermissibly restrict the right to public comment guaranteed by section 2. 06( g) of OMA.

Similarly, a rule limiting participants to speaking only on subjects listed on the agenda would also exceed the scope ofpermissible rulemaking authorized by section 2.06 g).

In accordance with this determination, the Public Access Bureau suggests that the Council consider appropriate action to establish and record reasonable rules to govern public comment at its meetings.

does The Public Access Counselor has determined that resolution of this mattct de not require the issuance of a binding opinion. Ifyou have any questions, please contat 312) 814- 6437. This letter serves to close this matter.

Very truly yours, LEAH BARTELT Assistant Attorney General Public Access Bureau