Chicago Board of Education violated OMA by enforcing unrecorded public comment rules

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Dear and Ms. Bowden:

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 that the City of Chicago Board of Education (Board) violated OMA in connection with its September 26, 2024, regular meeting by denying s request to address the Board based on rules that were not established and recorded in accordance with section 2.06(g) of OMA ( 5 ILCS 120/ 2.06(g) (West 2022)).

On November 25, 2024, submitted a Request for Review alleging that the Board violated OMA in connection with its September 26, 2024, meeting by denying his request to address the Board based on guidelines that require a lottery process and that do not allow a member of the public to address the Board if that individual had participated in the public comment period at any Board meeting or committee meeting within the last month. Subsequently, this office forwarded a copy of s Request for Review to the Board and asked it to provide a written response to the allegations, along with copies of the agenda and On December 23, 2024, the Board' s attorney provided this office with a written response, on behalf of the Board, as well as several exhibits, including copies of its agenda and a transcript of its September 26, 2024, meeting, and its rules and guidelines for public comment. On December 24, 2024, the Public Access Bureau forwarded a copy of the Board's written response to he replied on January 7, 2025.

DETERMINATION

Section 2.06(g) of OMA provides: " Any person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body." When construing the meaning of a statutory provision, the primary objective is to ascertain the intent of the 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 and unambiguous, it must be given effect." People v. Rinehart, 2012 IL 111719, ¶ 24.

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. See Ill. Att'y Gen. Pub. Acc. Op. No. 14-012, issued September 30, 2014, at 6 (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). 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).

Based upon the plain language of section 2.06(g), the Attorney General has issued several binding opinions concluding that section 2.06(g) generally precludes a public body from imposing restrictions on public comment that are not set out in its established and recorded rules. See, e.g., Ill. Att'y Gen. Pub. Acc. Op. No. 23-013, issued September 13, 2023, at 7-8 (board improperly enforced annotated agenda restricting public comment on personnel matters because it was contrary to the plain language of section 2.06(g), which expressly requires a public body to establish and record its public comment rules); Ill. Att'y Gen. Pub. Acc. Op. No. 19-002, The Public Access Bureau has reviewed the materials provided by and the Board. Section 2-4.1 of the Board' s Rules provides:

At each regular and special meeting which is open to the public, members of the public and employees of the district shall be afforded time, subject to reasonable constraints, to comment to or ask questions of the Board. The Board President shall establish and publish guidelines that will govern the public participation portion of each meeting.1 alleges that the Board violated OMA in connection with its September 26, 2024, meeting by denying his request to address the Board based on new guidelines that require a lottery process and do not allow members of the public to address the Board if that individual had participated in the public comment period at any Board meeting, special meeting, or committee meeting within the last month or at a previous meeting.2 Although this office asked the Board to provide a detailed written response to the allegations raised by in his Request for Review, the Board did not specifically address whether the implementation of its September 2024 guidelines violated OMA. However, in its response, the Board stated that based upon Rule 2-4.1, the Board President issued new guidelines on September 18, 2024, which set forth a randomized lottery process for thirty speaking slots for members of the public who had registered to speak at a meeting. The Board also explained that the guidelines restrict a person from speaking at more than one meeting per month and at back- to-back meetings. The Board' s response explained that was At the time of the September 26, 2024, meeting, section 2-4.1 of the Board' s Rules give the chair of the Board broad discretion to impose unspecified limitations on public comment which were are not " established and recorded by the public body[ ]" as required by section 2.06(g) of OMA. The Board labels as "guidelines" the Board President's public comment requirements that were put into effect in September 2024. Section 2.06(g) of OMA does not permit the head of a public body to unilaterally issue "guidelines" that restrict public comment or authorize a public body to delegate its statutory duty to establish and record rules to the head of the public body. Such guidelines are tantamount to ad hoc rules which were neither voted on by the Board nor set forth in its recorded rules. Accordingly, this office concludes that the Board violated section 2.06(g) of OMA in connection with its September 26, 2024, meeting by denying s right to speak based upon rules that were neither established nor recorded.

Although OMA does not specifically address the types of public comment rules that a public body may adopt, those rules must tend to accommodate, rather than unreasonably restrict, the right to address public officials. Ill. Att'y Gen. Pub. Acc. Op. No. 14-012, issued September 30, 2014, at 6; see also I.A. Rana Enterprises, Inc. v. City of Aurora, 630 F. Supp. 2d 912, 922 ( N.D. Ill. 2009) ( public bodies may promulgate reasonable " time, place, and manner" restrictions that are narrowly tailored to serve significant governmental interests). If the Board wishes to consider requiring a registration and lottery process, or to give preference to those who did not speak at a meeting within the past month, the Board should assess the necessity for such rules and the extent to which they would limit the statutory right to address public officials before voting on whether to establish and record them.3 The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. This file is closed. If you have any questions, Very truly yours, EDIE STEINBERG Senior Assistant Attorney General Public Access Bureau 84055 o 206g pub comment improper sd