Oswego Library Board violated OMA by restricting unrecorded public comment

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Dear and Mr. Ritzman:

This determination is issued pursuant to section 3.5(e) of the Open Meetings Act OMA) (5 ILCS 120/3.5(e) ( West 2022)). For the reasons that follow, the Public Access Bureau concludes that the Oswego Public Library District ( District) Board of Trustees ( Board) improperly restricted public comment at its October 25, 2023, meeting.

On December 18, 2023, submitted the above- referenced Request for Review alleging that the Board violated section 2.06(g) of OMA (5 ILCS 120/2.06(g) (West 2022)) by improperly restricting public comments at its October 25, 2023, meeting. Specifically, alleged that a member of the public was prevented from providing public comment beyond three minutes at a time when the Board did not have established and recorded rules governing public comment. enclosed a copy of a response from the District to a Freedom of Information Act (FOIA) request he submitted, in which the District stated that it had no public comment policy.

In addition, the Board provided this office with a copy of the meeting minutes from an April 22, 1998, Board meeting 4 and Public Comment Policy5 adopted by the Board after its receipt of Request for Review on November 15, 2023. On January 12, 2024, this office forwarded a copy of the Board's written response to counsel for submitted a written reply on February 7, 2024. 6

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. The plain language of section 2.06(g) requires that the rules governing public comment not only be " established" but also " recorded" by the public body. " Nothing in OMA suggests that past practices which have not been formally incorporated into a public body's rules are established and recorded by the public body within the meaning of section 2.06(g), and may be enforced to limit public comment." Ill. Att'y Gen. Pub. Acc. Op. No. 19-002, issued January 9, 2019, at 6 (policy restricting public comments to three minutes per person was established and recorded because it was formally adopted and incorporated into board's formal policy manual, but policy restricting the total public comment time to 15 minutes in "Welcome Handout" set out When construing the meaning of a statutory provision, the primary objective is to ascertain the intent of legislature. DeLuna v. Burciaga, 223 Ill. 2d. 49, 59 (2006). " The plain language of the statute is the best indication of that intent, and if that language is clear an unambiguous, it must be given effect." People v. Rinehart, 2012 IL 111719, ¶ 24. Because OMA does not define either " established" or "recorded," the terms must be given their ordinary and popularly understood meaning. See Skaperdas v. Country Casualty Insurance Co., 2015 IL 117021, ¶ 15. The dictionary can be used as a resource to ascertain the ordinary and popular meaning of words. Banco Popular North America v. Gizynski, 2015 IL App (1st) 142871, ¶ 47. Black's Law Dictionary defines " establish" as: " To settle, make, or fix firmly; to enact permanently." Black's Law Dictionary 688 (11th ed. 2019). " Enact" is defined as "[ t]o make into law by authoritative act; to pass." Black's Law Dictionary 666 (11th ed. 2019). To "record" is defined as "[ t]o deposit ( an original or authentic official copy of a document) with an authority." Black's Law Dictionary 1527 ( 11th ed. 2019).

In its response to this office, the Board argued that it had established and recorded rules governing public comment at the time of its October 25, 2023, meeting. Referencing the April 22, 1998, meeting minutes provided to this office, the Board stated:

The Board reviewed a draft of rules for public comment at its April 22, 1998, Board meeting. The Board approved those rules by a voice vote of 7-0, thereby establishing the rules for public comment. The Board then recorded those rules for public comment in its approved minutes for the April 22, 1998 meeting.

The Board included these rules for public comment in its published agendas over the course of the next twenty- five (25) years as part of its regular custom and practice and held public comment under said rules largely without incident. However, at some point in 2023 the Board " waffled" between a three ( 3) minute and five (5) minute time limit for each speaker in its published Board agendas with no formal action taken to effectuate any change. [ Citation.][ 7]

In reply, legal counsel explained that Request for Review stemmed from his impression from previous meetings that the Board had departed from its regular practice of allowing five minutes per speaker based on the contents of the remarks being made by the public:

The District has now responded to you claiming it passed a motion in 1998 to print a public comment policy on each of its agendas. That policy, (which was not, in fact, printed on all agendas since 1998), indicated that public comment would be limited to three minutes. While the District admits that it "waffled at some point in 2023" in the enforcement of the three- minute limit, in fact the Board routinely permitted comments for five minutes on all meeting agendas since January 2019 through August 2023, as well as for several meetings in 2017 and 2018. See attached agendas.

Normally, a public body that permits speakers to address it for longer periods of time during public comment is commendable and promotes the OMA's intent of allowing interested members of the public to express their opinions and concerns. If the District were applying the longer limit uniformly without regard to the content of the speakers, the practice could perhaps be defensible, even if it violates its own time limit, as well as the OMA's requirement that a Board permit public comment in accordance with its rules. [ Citation.] Now, however, the District has suddenly and selectively elected to strictly restrict speakers to three minutes This office has reviewed the video recording of the public comment portion of the Board' s October 25, 2023, meeting, 9 the Board's April 22, 1998, meeting minutes, the Board's agendas from 2023, and the public comment statement on the Board's October 25, 2023, agenda. The minutes of the April 22, 1998 meeting show the Board approved a "' public comment' statement for inclusion on the agendas each month", which limited public comment to three minutes per speaker. 10 This office's review of the video recording confirmed that a total of six members of the public spoke during the public comment period. Four members of the public exceeded the three minute time limit and the Board President did not admonish these speakers, in contrast to the member of the public at issue in Request for Review who was admonished by the Board President that his time was up at three minutes. 11 Although the Board may have " established" a public comment policy at its April 22, 1998, meeting by voting to adopt the policy under consideration at the meeting, the Board did not demonstrate that it recorded" the policy within the meaning of section 2.06(g). The Board argued that it recorded the policy by documenting the vote to adopt the policy in meeting minutes, but the Board notably did not claim that it ever incorporated the text of the policy itself into its bylaws or formal policy manual, or post it on its website or make it available as a standalone document or within a collection of rules. A rule that is established and recorded in such a formal rulebook or made readily accessible on a public body's website or at its office provides certainty and clarity to the public by allowing the public to consult the collected rules for a definitive answer as to what they require. In contrast, the Board's answer to this office indicates that a member of the public wishing to ascertain whether the Board had established and recorded public comment rules at the time of its October 25, 2023, meeting would have had to review more than 25 years of minutes working backwards before arriving at the April 22, 1998, minutes reflecting the vote on the public comment policy. Such an effort should not be necessary to identify a public body's public comment rules, given the requirement that the rules be established and recorded. Furthermore, the Board' s acknowledgment that it "waffled" between three and five minutes per speaker at various meetings prior to the October 25, 2023, meeting suggests a lack of clarity on behalf of the Board with respect to what if any rules were actually in place. No such ambiguity would have existed if the rules were recorded.

this office concludes that no further corrective action is required. 13 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 matthew. goodman@ilag. gov.

Very truly yours, MATT GOODMAN Assistant Attorney General Public Access Bureau 79396 o 206g pub comment improper lib