City of Urbana City Council violated OMA by muting public comment

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Dear Ms. Marlin, Mr. Simon and Mr. Wesner:

BACKGROUND

2020 PAC 65871 and 2020 PAC 66133 On November 30, 2020, and December 17, 2020, the Public Access Bureau received separate Requests for Review from members of the public ( and who alleged that the Council violated OMA at its November 16, 2020, meeting, which was held using video conferencing. Both Requests for Review allege that the Council interrupted as she commented, told her that she was offering opinions rather than facts, and ultimately muted her. In her Request for Review, also alleged that the Council' s rules for public comment at virtual meetings improperly impose content -based restrictions on public comment. This office construed both Requests for Review as alleging a violation of section 2.06( g) of OMA (5 ILCS 120/ 2. 06( g) ( West 2018)).

On December 2, 2020, this office sent a copy Request for Review to the Council and asked it to respond to her allegations. In particular, this office asked the Council to address whether it objected to expression of opinions and subsequently muted her to prevent her from completing her public comment. This office also asked the Council to provide copies of its Public Input Guidelines, the agenda, meeting minutes ( draft from, if necessary) and the verbatim recording of the November 16, 2020, meeting. The Council responded on December 7, 2020.

This office forwarded Request for Review to the Council on December 22, 2020, and asked it to respond to her similar allegations. To the extent the issues raised and the records requested in these two Requests for Review were identical or overlapped, this office permitted the Council in its response to Request for Review to incorporate by reference to its response to Request for Review. On December 28, 2020, the Council responded by incorporating by reference its earlier response and providing On December 16, 2020, this office sent a copy of the Request for Review to the Council and asked it to respond to allegations and to provide copies of the Council' s Public Input Guidelines, the agenda, meeting minutes ( draft from, if necessary) and the verbatim recording of the November 9, 2020, meeting. To the extent the issues and/ or records were identical or overlapped, this office provided the Council with an opportunity to incorporate by reference to its previous response to 2020 PAC 65871.

On December 23, 2020, the Council provided a written response. On December 31, 2020, this office forwarded a copy of the Council' s response to she did not reply. With this office' s agreement, the Council furnished the requested meeting materials on January 20, 2021.

Because these three Requests for Review raise similar allegations regarding the same public body and public comment rules, this office has consolidated them for determination.'

DETERMINATION

Section 2.06( g) of OMA provides that "[ a] ny person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body." Under the plain language of section 2. 06( g), a public body must establish and record rules and may restrict public comment only pursuant to those rules. See Ill. Att'y Gen. Pub. Acc. Op. No. 14- 009, issued September 2, 2014, at 7.

The Council' s rules governing public comment provide, in pertinent part:

Sec. 2- 5. — Electronic Virtual public meetings.

b) Any member of the public who seeks to address the members of a public body at any public meeting conducted on a video and/or audio electronic platform will be permitted to provide input on any matter listed on the agenda or on any other matter of public concern, subject to the following provisions:

c. Public comment shall be limited to no more than four 4) minutes per person. The public input portion of the meeting shall total no more than one ( 1) hour unless otherwise shortened or extended by majority vote of the public body members present. The presiding officer, the city clerk, or their designee, shall monitor each speaker' s use of time and shall notify the speaker when the allotted time has expired. Since public comment is the time when the public body members listen to the public, all public comments should be addressed to the public body as a whole. * * * d. In order to maintain reasonable decorum at a meeting, the presiding officer of the meeting shall have the authority to provide a verbal warning to a speaker who uses abusive, harassing, threatening, or defamatory language, or who engages in disorderly conduct that disrupts, disturbs, or otherwise impedes the orderly conduct of a meeting. If the speaker refuses to cease such remarks or conduct after being warned by the presiding officer, the presiding officer shall have the authority to mute the speaker' s microphone and/ or video presence at the meeting. The speaker may send the remainder of their remarks via email to the public body.

2) Written public comments b. Specific instructions for verbal or written public comments shall be posted with the public notice for each meeting. 121 The Council also provided a copy of its Public Input Guidelines, which was posted with the agenda for both the November 9, 2020, and November 16, 2020, meetings. Those guidelines contain definitions of "abusive," " harassing," " threatening" and " defamatory" language, and reiterate the rules governing public comment in the City Code. The Public Input Guidelines in relevant part, states:

Verbal Input Protocol for Public Input is one of respect for the process, and respect for others. Ridicule, obscene or profane language, lack of respect for others, and personal attacks are not acceptable behavior. Public Input shall not be used to air personal grievances.

Speakers should address all comments to the public body as a whole and not to individual members or City staff.

The presiding officer of the meeting shall have the authority to provide a verbal warning to a speaker who uses abusive, harassing, threatening, or defamatory language, or who engages in disorderly conduct that disrupts, disturbs, or otherwise impedes the orderly conduct of a meeting. If the speaker refuses to cease such remarks or conduct after being warned by the presiding officer, the presiding officer shall have the authority to mute the speaker' s microphone and/ or video presence at the meeting.

November 16, 2020, Meeting Both and allege that was improperly muted and not allowed to finish her public comment because she was voicing her opinions regarding the City Administrator' s handling of the civilian police review process. This office has reviewed the verbatim recording of the November 16, 2020, meeting, which shows that spoke for two minutes and 40 seconds before a Council member interrupted her to suggest she was " out of order" without specifying which part of the public comment rule had violated. 3 Prior to the interruption, had asked, rhetorically, whether Ms. Carol Mitten, the City Administrator, had lied or tried to cover up the real reason a hearing had been cancelled. The Council advised to be more respectful, and allowed her to continue. then discussed a proposal to amend an ordinance, and commented on Ms. Mitten' s " main goal" in suggesting the amendments. The Council then interrupted her again and directed her to try to stick to facts." When responded that she was stating facts, and then described something as a " terrible move," another Council member interrupted her to assert that those were opinions. 4 After. that interruption, the Council muted even though her time had not yet expired.

In its response to this office, the Council argued that it interrupted and ultimately muted her microphone because her comments were an " abusive personal attack on Carol Mitten," the City Administrator, and that § 2- 05( b)( 1) d of the City' s Code gave the Council the authority to restrict comments. 5 The Council further asserted that " was allowed to raise her concerns and criticisms about how the Council has handled a number of matters so long as she refrained from abusive personal attacks on individuals by name. i6 The Council furnished for this office' s review a transcript of comments and underlined for emphasis the particular parts of the comment that it determined were an abusive personal attack. According to the Council' s response, violated the Council' s prohibition on abusive language when she stated:

Can we trust the Urbana Police Department under Chief Seraphin' s leadership[?] • * * * Chief Seraphin should immediately issue a formal press release acknowledging the misconduct[.] * * * Carol Mitten made some rather bold claims about the complaints and appeals costing 42, 000 and 122, 000. Carol Mitten then proceeded to say, quote, unquote, we do not track the number of hours that we spend. Gosh, if I were to claim in public, that something costs $ 100, 000, like what Carol Mitten did, I had better bring my receipts. Regarding Carol Mitten' s CPRB presentation on October 26th, I' m still curious why Mayor Marlin told the public that the scheduled appeal hearing was canceled due to the appellant and CPRB members having scheduling problems. Did Carol Mitten lie to Mayor Marlin about the actual reason? Did Carol Mitten try to cover up the reason that the hearing was canceled?

Because Mitten herself did not follow procedures.

It' s concerning that Carol Mitten believes she' s exempt from the procedures mandated by CPRB ordinance. f1 As the Council deemed comment as " abusive" and its rules prohibit abusive" comments, this Request for Review presents the question of whether the Council applied section 2- 05( b)( 1) d of the City' s Code and the definition of "abusive" in the Public Input Guidelines to impermissibly restrict statutory right to address public officials under section 2. 06( g) of OMA. A public body has inherent authority to conduct a meeting in an efficient and orderly manner. See Ill. Att'y Pub. Acc. Op. No. 19- 002, issued January 9, 2019, at 6- 7. Although OMA does not specify the nature of rules a public body may permissibly adopt, a board may adopt rules to maintain order and decorum at public meetings to ensure that meetings are conducted efficiently. See Timmon v. Wood, 633 F. Supp. 2d 453, 465 ( W.D. Mich. 2008);

see also I11. Att' y Gen. Pub. Acc. Op. No. 14- 012, at 5 ( a public body may promulgate reasonable time, place and manner" rules aimed at preserving order and decorum). However, such rules must tend to accommodate, rather than to unreasonably restrict, the right to address public officials. See IA Rana Enterprises, Inc. v. City ofAurora, 630 F. Supp. 2d 912, at 923- 25 ( N. D. Ill. 2009).

Although a public body may enforce rules regarding decorum, content -based restrictions must be narrowly construed. See IA Rana Enterprises, Inc. v. City ofAurora, 630 F. Supp. 2d 912, 922- 23 ( N.D. 111. 2009) (" Any content -based restrictions, promulgated with reference to the content of the speech being restricted, are subject to strict scrutiny, and must government' s power; speakers may be removed only if they are actually disruptive."). That is not to suggest, however, that a public body must wait for a speaker' s comments to cause an actual outburst before restricting them:

T] he nature of a Council meeting means that a speaker can become " disruptive" in ways that would not meet the test of actual breach of the peace, [ citation], or of "fighting words" likely to provoke immediate combat. [ Citation.) A speaker may disrupt a Council meeting by speaking too long, by being unduly repetitious, or by extended discussion of irrelevancies. The meeting is disrupted because the Council is prevented from accomplishing its business in a reasonably efficient manner. Indeed, such conduct may interfere with the rights of other speakers. White v. City of Norwalk, 900 F. 2d 1421, 1425 ( 9th Cir. 1990).

At the same time, comments during a city council meeting which pertain to matters of public concern are protected by the first amendment to the United States Constitution even if the speaker' s " motive in commenting * * * could be an insensitive, mean spirited, personal attack[.]"

Gault v. City of Battle Creek, 73 F. Supp. 2d 811, 815 ( W. D. Mich. 1999). Because it would be illogical to construe OMA as permitting a public body to impose unconstitutional restrictions on members of the public addressing public officials, the Public Access Bureau has previously determined that section 2. 06( g) of OMA does not permit a public body to apply public comment rules that are susceptible to overbroad and arbitrary application to comments that do not actually disrupt public meetings. See Ill. Att' y Gen. PAC Req. Rev, Ltr. 39069, issued April 5, 2016, at 3- 4 ( finding public body violated OMA by imposing rule that prohibited " personal attacks against others" or " rude or slanderous remarks").

The Council's Public Input Guidelines define " abusive" as " harsh, violent, profane, or derogatory language which would demean the dignity of an individual or which is intended to humiliate, mock, insult or belittle an individual." The Council has argued that its rule prohibiting abusive language and this definition are " lawful restrictions on ' manner' of speech" rather than the content of speech, relying on Milestone v. City of Monroe, Wisconsin, 665 F. 3d 774 ( 7th Cir. 2011). 8 In Milestone, the director of a city' s senior center enforced its Code of Conduct, which prohibited, among other things, " abusive, vulgar or demeaning language," to ban Ms. Milestone from the center. Ms. Milestone had a history of disturbances at the senior center; during the last incident before her expulsion, she loudly complained about a card game to which she was a party, engaged in a " heated discussion" with the center' s director, and then wagged her finger in the director' s face and threatened to sue her. Milestone, 665 F. 3d at 779. After the center notified her that she had violated the center' s Code of Conduct for, among other things, using abusive language, she brought suit, alleging that the code was facially unconstitutional because it placed viewpoint -based regulations on her speech in violation of the First Amendment to the United States Constitution. The court found the portion of the Code of Conduct that prohibited " abusive, vulgar or demeaning language" was content neutral to the extent that it was used to serve a purpose unrelated to the content of the regulated speech:

The Code' s mission statement and objectives make it clear that the purpose of the Code is completely unrelated to the content of any speaker' s message. Rather than focusing on what the Center' s patrons say, the Code focuses on the manner in which they say it. Nothing in the Code provides a basis for punishing patrons for disagreeing with other visitors or the Center staff (emphasis in original). Milestone, 665 F. 3d at 783.

For those reasons, the court rejected Ms. Milestone's " facial challenge" to the Code of Conduct, upholding it as a " content -neutral and reasonable time, place, or manner regulation," and affirmed the holding that the city had not violated Ms. Milestone' s First Amendment rights. Milestone, 665 F. 3d at 784.

Here, it is not necessary for this office to find that the Council' s public comment rules are invalid on their face to determine that the Council violated section 2. 06( g) of OMA when it applied those rules to mute on November 16, 2020. Regardless of whether the Council' s prohibition on abusive language during public comment could be permissible in some circumstances, this office must determine whether the Council improperly applied that rule to the comments at issue in this matter.

As noted above, the Council characterized comment as an " abusive personal attack" on the City Administrator, and provided this office an underlined transcript identifying the allegedly abusive parts of the comment. The Council' s response to this office does not contain any description of the manner in which delivered her comments, or describe any disruption that occurred at the meeting while was delivering her comments. Based on this office' s review of the verbatim recording of the November 16, 2020, meeting, comments did not create a disturbance or otherwise interfere with the efficiency of the Council' s meeting. The recording indicates that read a statement in a calm manner and, even when interrupted by members of the Council, she calmly attempted to continue with her statement. In reviewing the transcript of comments along with the Council's definition of "abusive," this office notes that the comments did not contain apparent violent or profane language. Therefore, it appears the Council must have determined comments were abusive because they contained " harsh * * * or derogatory language which would demean the dignity of an individual or which is intended to humiliate, mock, insult or belittle an individual."

However, our review of the verbatim recording indicates that statement contained her opinions that were critical of the manner in which Ms. Mitten, a public employee, carried out her official duties. This is a matter of public concern protected by the first amendment. This office has repeatedly determined that "[ w] hen criticism involves the conduct of present or former public officials in the performance of their public duties, significant latitude must be allowed." I11. Att'y Gen. PAC Req. Rev. Ltr. 39069, issued April 5, 2016, at 3 restricting comment criticizing a public official by name impermissible); I11. Att'y Gen. PAC Req. Rev. Ltr. 60824, issued July 10, 2018, at 4- 6 ( restricting comment criticizing elected officials by name in connection with public matters impermissible); Ill. Att' y Gen. PAC Req. Rev. Ltr. 51665, issued February 5, 2019, at 5- 6 ( restricting comment referencing a particular public official in connection with public business impermissible). Based on the available information, the Council applied its public comment rules to mute because she criticized, by name, a public employee for the manner in which she carried out her public duties. Unlike the plaintiff in Milestone, who obviously created a disturbance at a senior citizen center by having a " heated discussion" and wagging her finger in the face of the center's director while threatening to sue her, the Council applied its prohibition on " abusive language" to comments that were critical but delivered in an apparently calm manner. These comments did not appear to disrupt the meeting. 9 Although the Milestone case shows that a rule prohibiting abusive comments can be applied permissibly to regulate the manner of speech in a content - neutral way, the available information indicates that here, the Council applied its rule to prohibit from completing her comment because of the content of that comment.

Accordingly, this office concludes that the Council violated section 2. 06( g) of OMA by restricting statement during its November 16, 2020, meeting.

November 9, 2020, Meeting In 2020 PAC 65961, alleged that she and another speaker, were interrupted and muted for criticizing and naming city employees and officials in their statements during the public comment session of the Council' s November 9, 2020, meeting. In its response, the Council defended its established and recorded rules for public comment as being " lawful and reasonable government regulations as to the time, place and manner of public comment. i10 The Council contended that it properly followed its regulations to call out of order and mute both and It claimed that comments were directed at specific persons and were abusive, harassing, and defamatory, as those terms are defined in the Public Input Guidelines," and that comments " were also directed at specific persons and were abusive, harassing, and defamatory, as those terms are defined in the Public Input Guidelines. ill The Council did not provide a transcript specifically identifying the parts of those comments that the City determined were abusive, harassing, and defamatory.' 2 This office' s review of the verbatim recording of the November 9, 2020, meeting indicates that in their statements, both and criticized Mayor Marlin' s handling of her public duties. After had spoken for approximately one minute, Mayor Marlin stated that it was not an appropriate time to discuss a past decision, a former Council member, or her decisions. When indicated she intended to continue on the same topic, Mayor Marlin muted and prohibited her from completing her statement. spoke next, raising questions about prior and current appointments to the City' s Civilian Police Review Board. Immediately before he was muted, alleged that an individual affiliated with the Civilian Police Review Board may be following a path of dishonesty. In muting and prohibiting from completing his statement, Mayor Marlin stated that he was not allowed to talk about former City employees, and must stick to topics or issues on the agenda or general matters. She further stated that comments were calm in addressing Mayor Marlin and the Council and neither speaker caused a disturbance. Unlike the circumstances described in Milestone, there is no evidence that it was necessary to mute or in order to maintain decorum. Accordingly, for the same reasons as stated above, this office concludes that the Council violated section 2. 06( g) of OMA by muting and at its November 9, 2020, meeting.

In accordance with the conclusions of this letter, this office requests that the Council instruct its presiding officers to refrain at its future meetings from applying its public comment rules imposing content -based restrictions to comments that do not disrupt its meetings or impede the Council from conducting orderly meetings.

The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. This file is closed. Please contact me at ( 312) 814- 4467 or the Chicago address listed on the first page if you have any questions.

Very truly yours,

GRACE ANGELOS

Assistant Attorney General Public Access Bureau