Ask Joe Eisner: Is a library board required to permit public participation at its open meetings?

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Please note: The following should not be construed as legal advice, for which the services of counsel should be obtained:


The following should not be construed as legal advice, for which the services of counsel should be obtained.

Q. Is a library board required to permit public participation at its open meetings?

A. Both association and public libraries boards are required by Education Law s260-a to conduct their meetings in accordance with the provisions of the Open Meetings Law (OML). However, “…although the Open Meetings Law provides the public with the right ‘to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy’ (see Open Meetings Law s100), the Law is silent with respect to public participation. Consequently, by means of example, if a public body… does not want to answer questions or permit the public to speak or otherwise participate at its meetings, we do not believe that it would be obliged to do so.  On the other hand, a public body may choose to answer questions and permit public participation, and many do so. When a public body does permit the public to speak, we believe that it should do so based upon reasonable rules that treat the members of the public equally…. [T]he presiding officer has the authority to limit remarks from the public that are ‘repetitive’ and ‘offensive’…. [W]e note federal court decisions indicating that if commentary is permitted within a certain subject area,, negative commentary in the same area cannot be prohibited…. [A]ssuming that the Board of Trustees…  [or] the presiding officer permit those who wish to speak to do so for a particular period of time, each person who wishes to do so must, in our opinion, be given an equal opportunity to do so Similarly, if the Board…  permit[s  positive comments concerning the operation… we believe that they must offer an equal opportunity to enable those in attendance to offer negative or critical comments.  It would not be unreasonable, in our opinion, to limit repetitive comments in support of opinions expressed previously, as well as those that would be offensive to reasonable people  of ordinary sensibilities….” (Op COG OML 5296, June 12, 2015).  “In the context of a meeting of a public body or a public hearing, we believe that a court would determine that a public body may limit the amount of time allotted to person who wishes to speak, so long as the limitation is reasonable” Op COG OML 4141, February 24, 2006).

Q. May a library board require that a members of the public who wish to speak during public participation at an open meeting of the board be limited to residents of the political jurisdiction served by the library?

A. Bearing in mind that the purpose of the Open Meetings Law is to encourage transparency in government,  depending if the meeting is an open meeting of the library board, to impose such a limitation might be politically imprudent as well as ill-advised. In the following Committee on Open Government opinion, counsel distinguished between a “community forum meeting”, a meeting of a public body, stating that both are different from a public hearing:

“From our perspective, a ‘community forum meeting’ is different from a meeting of a public body, and both are different from a public hearing. A meeting is generally a gathering of a quorum of a public body for the purpose of discussion, deliberation, and potentially taking action within the scope of its powers and duties. A hearing is generally held pursuant to law to provide members of the public with an opportunity to express their views concerning a particular subject, such as a proposed budget, a local law or a matter involving land use. It is likely that a ‘community forum meeting’ is similar to a public hearing, due to its purpose, but unlike a public hearing, is not prescribed by law. Public hearings are often required to be preceded by the publication of a legal notice. In contrast, §104(3) of the Open Meetings Law specifies that notice of a meeting must merely be ‘given’ to the news media and posted. We note, too, that a meeting of a public body held in accordance with the Open Meetings Law can only occur with the presence of a quorum. A hearing or a community forum, on the other hand, can be conducted without a quorum present.

The following should not be construed as legal advice, for which the services of counsel should be obtained.

Q. Is a library board required to permit public participation at its open meetings?

A. Both association and public libraries boards are required by Education Law s260-a to conduct their meetings in accordance with the provisions of the Open Meetings Law (OML). However, “…although the Open Meetings Law provides the public with the right ‘to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy’ (see Open Meetings Law s100), the Law is silent with respect to public participation. Consequently, by means of example, if a public body… does not want to answer questions or permit the public to speak or otherwise participate at its meetings, we do not believe that it would be obliged to do so.  On the other hand, a public body may choose to answer questions and permit public participation, and many do so. When a public body does permit the public to speak, we believe that it should do so based upon reasonable rules that treat the members of the public equally…. [T]he presiding officer has the authority to limit remarks from the public that are ‘repetitive’ and ‘offensive’…. [W]e note federal court decisions indicating that if commentary is permitted within a certain subject area,, negative commentary in the same area cannot be prohibited…. [A]ssuming that the Board of Trustees…  [or] the presiding officer permit those who wish to speak to do so for a particular period of time, each person who wishes to do so must, in our opinion, be given an equal opportunity to do so Similarly, if the Board…  permit[s  positive comments concerning the operation… we believe that they must offer an equal opportunity to enable those in attendance to offer negative or critical comments.  It would not be unreasonable, in our opinion, to limit repetitive comments in support of opinions expressed previously, as well as those that would be offensive to reasonable people  of ordinary sensibilities….” (Op COG OML 5296, June 12, 2015).  “In the context of a meeting of a public body or a public hearing, we believe that a court would determine that a public body may limit the amount of time allotted to person who wishes to speak, so long as the limitation is reasonable” Op COG OML 4141, February 24, 2006).

Q. May a library board require that a members of the public who wish to speak during public participation at an open meeting of the board be limited to residents of the political jurisdiction served by the library?

A. Bearing in mind that the purpose of the Open Meetings Law is to encourage transparency in government,  depending if the meeting is an open meeting of the library board, to impose such a limitation might be politically imprudent as well as ill-advised. In the following Committee on Open Government opinion, counsel distinguished between a “community forum meeting”, a meeting of a public body, stating that both are different from a public hearing:

“From our perspective, a ‘community forum meeting’ is different from a meeting of a public body, and both are different from a public hearing. A meeting is generally a gathering of a quorum of a public body for the purpose of discussion, deliberation, and potentially taking action within the scope of its powers and duties. A hearing is generally held pursuant to law to provide members of the public with an opportunity to express their views concerning a particular subject, such as a proposed budget, a local law or a matter involving land use. It is likely that a ‘community forum meeting’ is similar to a public hearing, due to its purpose, but unlike a public hearing, is not prescribed by law. Public hearings are often required to be preceded by the publication of a legal notice. In contrast, §104(3) of the Open Meetings Law specifies that notice of a meeting must merely be ‘given’ to the news media and posted. We note, too, that a meeting of a public body held in accordance with the Open Meetings Law can only occur with the presence of a quorum. A hearing or a community forum, on the other hand, can be conducted without a quorum present.

“While we know of no judicial decisions concerning the ability of those to speak at either meetings or hearings, when a public body does permit the public to speak, we believe that it should do so based upon reasonable rules that treat members of the public equally.

“Legal notices for public hearings normally include the following indication: “at such hearing any person may be heard.” Neither the notice nor the statute requiring that the hearing be held distinguishes among those who might want to express their views. That being so, we do not believe that a public body could validly require that those who attend or seek to attend a hearing identify themselves by name, residence or interest. In short, it is our view that any member of the public has an equal opportunity to partake in a public hearing, and that an effort to distinguish among attendees by residence or any other qualifier would be inconsistent with the law and, therefore, unreasonable.

“Moreover, people other than residents, particularly those who own property or operate businesses in a community, may have a substantial interest in attending and expressing their views at hearings held by school boards and other public bodies. Prohibiting those people from speaking, even though they may have a significant tax burden, while permitting residents to do so, would, in our view, be unjustifiable. Further, it may be that a non-resident serves, in essence, as a resident’s representative, and that precluding the non-resident from speaking would be equivalent to prohibiting a resident from speaking. In short, it is unlikely that a public body could validly prohibit a non-resident from speaking at a public forum based upon residency” (Op COG OML 4141, February 24, 2006).

Thus, prudence would dictate that a library board should seek advice from counsel regarding the appropriate procedure to follow in regard to receiving questions from members of the public who attend library board meetings at which only routine business is discussed, or as in the case of school district public library or an association library which receive voter approved tax support, a meeting held in advance of that vote at which either a quorum of the board will be present to vote on presenting the budget for voter approval, or at which a quorum will not be present.

“Legal notices for public hearings normally include the following indication: “at such hearing any person may be heard.” Neither the notice nor the statute requiring that the hearing be held distinguishes among those who might want to express their views. That being so, we do not believe that a public body could validly require that those who attend or seek to attend a hearing identify themselves by name, residence or interest. In short, it is our view that any member of the public has an equal opportunity to partake in a public hearing, and that an effort to distinguish among attendees by residence or any other qualifier would be inconsistent with the law and, therefore, unreasonable.

“Moreover, people other than residents, particularly those who own property or operate businesses in a community, may have a substantial interest in attending and expressing their views at hearings held by school boards and other public bodies. Prohibiting those people from speaking, even though they may have a significant tax burden, while permitting residents to do so, would, in our view, be unjustifiable. Further, it may be that a non-resident serves, in essence, as a resident’s representative, and that precluding the non-resident from speaking would be equivalent to prohibiting a resident from speaking. In short, it is unlikely that a public body could validly prohibit a non-resident from speaking at a public forum based upon residency” (Op COG OML 4141, February 24, 2006).

Thus, prudence would dictate that a library board should seek advice from counsel regarding the appropriate procedure to follow in regard to receiving questions from members of the public who attend library board meetings at which only routine business is discussed, or as in the case of school district public library or an association library which receive voter approved tax support, a meeting held in advance of that vote at which either a quorum of the board will be present to vote on presenting the budget for voter approval, or at which a quorum will not be present.


Please note: If you have any additional questions about this topic, please contact Joe Eisner at the e-mail/phone above.

 

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