McLean County Board Executive Committee violated OMA with 24-hour sign-up rule for public comment

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Via electronic mail The Honorable Catherine Metsker Chair, Executive Committee McLean County Board 115 East Washington Street Bloomington, Illinois 61701 catherine. metsker@mcleancountyil. gov RE: OMA Request for Review — 2023 PAC 78964 Dear and Ms. Metsker:

This determination is issued pursuant to section 3. 5( e) ofthe Open Meetings Act OMA) ( 5 ILCS 120/ 3. 5( e) ( West 2022)). For the reasons that follow, the Public Access Bureau concludes that the Executive Committee (Committee) of the McLean County Board (Board) violated the requirements of section 2. 06( g) of OMA' in connection with its November 13, 2023, meeting.

BACKGROUND

On November 13, 2023, submitted a Request for Review to the Public Access Bureau alleging that the Committee improperly restricted the public's right to address its members at its November 13, 2023, meeting by requiring members of the public to 15 ILCS 120/2.06(g) (West 2022).

committee meeting and on this form, it states: " Must be Received 24 Hours Prior to Meeting Time." 2 1. stated she completed the online form the morning of the meeting and indicated that she wished to speak on certain items in the agenda. She asserted: " I received my Submission Receipt which stated that 'If eligible for public comment, you will be contacted with further information about how to participate in the meeting.' I was never contacted regarding this submission, meaning I was being denied for public comment. i3 On November 20, 2023, this office forwarded a copy of the Request for Review to the Committee and asked it to provide this office with copies of is November 13, 2023, meeting agenda, minutes, and any rules or policies governing public comment, together with a written response te OMA allegations. On December 1, 2023, this office received the requested materials from the McLean County State' s Attorney's Office on behalf of the Committee. On December 4, 2023, this office forwarded a copy of the Committee' s response to she replied that same day.

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." This provision " requires that all public bodies subject to the Act provide an opportunity for members of the public to address public officials at open meetings." Ill. Att'y Gen. Pub. Acc. Op. No. 14- 012, issued September 30, 2014, at 5. A public body may restrict public comment only pursuant to its established and recorded rules, which must tend to accommodate, rather than unreasonably restrict, the right to address public officials. Ill. Att'y Gen. Pub. Acc. Op. No. 14- 012, at 6.

An advance sign up rule that is enforced to prevent a member of the public from addressing a public body violates OMA if it is not reasonably necessary to promote a significant governmental interest. Compare I11. Att'y Gen. Pub. Acc. Op. No. 14- 012, at 6 ( rule requiring members of the public to sign up to comment five days in advance of meetings, before the board was required to post its agenda, imposed an unreasonable restriction on public comment) and I11. Att'y Gen. PAC Req. Rev. Ltr. 54487, issued November 10, 2021, at 2 ( rule requiring members ofthe public to sign up to comment 53 hours in advance of meetings unreasonably restricted the right to public comment where the public body did not demonstrate that imposing its advance sign up requirement was reasonably necessary to maintain order or to conduct an efficient In its response to this office, the Committee acknowledged that it did enforce a 24-hour registration requirement with regard to - request," but denied that it failed to provide an opportunity for to speak at the November 13, 2023, meeting.4 The Committee referred this office to section 20- 13G of the McLean County Code, 5 which provides, in relevant part:

G. Appearance by non- members. With the acknowledgement that the most appropriate forum for the general public to address County Board members is the committee charged with overseeing the subject matter of the address, those wishing to address the Board shall adhere to the following:

1) Subject to provisions of Subsection G( 3), any member may request that a County officer or employee, or other persons, be permitted to appear before the County Board on matters directly related to a topic on the agenda for a County Board meeting, and such request shall be granted by the Chair unless there is objection by any member, in which event Board action, by general vote as provided in Subsection A( 2) above, will be required to overrule the Chair. The provisions of Subsection G(2) shall not apply to requests made by members pursuant to this Subsection G( 1).

2) The County Board shallpermit non-members to appear before and address members of the County Board during County Board meetings in accordance with thefollowing b) All requests by non-members for appearance before the Board shall be made prior to the meeting at which the non- member wishes to appear within the time periods set forth in Subsection G( 2)( c). Such requests shall be submitted to the County Administrator, in writing or by e-mail identifying the subject matter or agenda item to be addressed.

c) Requests to appear that are directly related to an item on an agendafor a County Board meeting shall be submitted not less than 24 hours prior to the published start time ofthe Board meeting at which the non- member wishes to appear. Requests to appear that are not directly related to an item on an agenda for the County Board meeting shall be submitted not less than two business days prior to the published start time of the Board meeting at which the non- member wishes to In this matter, it is undisputed that the Committee enforced a 24- hour registration requirement on completed online form to speak at the November 13, 2023, meeting, which was submitted the morning ofthe meeting. The Committee did not explain how this rule was necessary to maintain order and decorum and to conduct an efficient meeting, and no such justification is apparent. Although it may be convenient for the Committee to have advance notice of who intends to participate in public comment, the enforcement of the rule unreasonably restricted - statutory right to address the Committee.

The Committee' s claim that did not exhaust her options for requesting to speak requires a strained interpretation of the Board's rules goveming public comment. As the Committee highlighted, section 20- 13G( 1) of the McLean County Code ( Code) provides that any member may request that a County officer or employee, or other persons, be permitted to appear before the County Board[.]" Thus, section 20- 13G( 1) governs requests made by Board members concerning the appearance of non- members. Under this provision, a Board member may select a county employee or other individual to appear before the Board and speak on an issue directly related to an agenda item, so long as there are no objections and votes to overrule the Chair's granting of the appearance. Given its express applicability to requests made by members, it is not obvious that the general public can solicit members, either before or at a meeting, to make requests on its behalf.

In contrast, section 20- 13G(2) of the Code specifically provides that the Board shall permit non-members to appear before and address members of the County Board during County Board meetings in accordance with the following rules" and enumerates them. Among those rules, the Code states that "[ r]equests to appear that are directly related to an item on an agenda for a County Board meeting shall be submitted not less than 24 hours prior to the published start time of the Board meeting at which the non- member wishes to appear." Reading the two provisions together, a member of the public could have reasonably understood section 20- 13G( 2) of the Code, rather than both provisions, to apply to requests made by the general public to speak at a meeting because that provision directly concerns requests made by non- members. Even if the Committee routinely allows non-members to speak pursuant to section 20- Finally, section 2. 06( g) of OMA more broadly guarantees members of the public the opportunity to address public bodies, without arbitrary restrictions. If the ability to address a public body was contingent on a member of the public body making such a request on behalf of the speaker, and could be thwarted by the public body voting against the speaker's appearance, the right to public comment under section 2. 06( g) of OMA would be no right at all. Under these circumstances, the Public Access Bureau concludes that the Committee improperly restricted right to address the Committee at its August 13, 2023, meeting in violation of section 2.06(g) of OMA when it enforced a 24- hour registration rule to deny the request she submitted online to speak at the meeting.

This office requests that the Board and its committees review and consider revising its current ordinance regulating public comment to ensure that any advanced sign up requirement is reasonably necessary to maintain order and to conduct an efficient meeting. To the extent that members of the public may attend a meeting and request in person to speak, the Board may wish to update the public comment information on the County website, including the online submission form.

The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. This letter shall serve to close this matter. If you have any questions, please contact me at the Chicago address listed on the first page of this letter.

Very truly yours,