Attorney General Delivers Unfavorable Decision for Public Bodies Concerning Public Comment Rules

September 22, 2014

By James A. Petrungaro

 The Illinois Attorney General (“AG”) has determined that under the Open Meetings Act (“OMA”), public bodies may not condition public participation during board meeting on the speaker publicly identifying her home address.

Many public bodies in Illinois require members of the public to provide basic information as part of participating in the pub lic comment portion of board meetings. Some require the individual to fill out a sign-in sheet or notecard or to otherwise “register” prior to speaking publicly at the meeting. Other public bodies, like the Village of Lemont – which was subject to the OMA challenge, require the individual to identify her name and address at the beginning of her comments. In a recent “binding decision,” the Attorney General determined that requiring a member of the public to publicly identify her address as part of public participation is a violation of the OMA.

Specifically at issue in the dispute was whether the Village’s unofficial “practice” of requiring the member of the public to identify her address was a violation of the OMA. The AG declared the practice to be a violation for two reasons.

First, while the AG acknowledged that public bodies may promulgate reasonable “time, place and manner” restrictions that are necessary to further a significant governmental interest, under the OMA those restrictions must be pursuant to official policy or ordinance of the public body. Because the address requirement was part of only an unofficial, albeit longstanding, practice, and was absent from the Village’s pertinent ordinance, the practice was unlawful.

Secondly, the AG determined that even if the requirement was part of official Village policy, the rule would nonetheless be overreaching. Particularly, the AG noted that the reasonable rules that a public body may have must be related to ensuring th at order and decorum are maintained at the meeting. In so determining, the AG rejected the arguments of the Village that the address requirement was necessary and appropriate to ensure accurate minute-taking, to determine whether the individual was a resident of the Village, and to allow an opportunity for the board to respond to the individual separate from the meetin g. Notably, however, the AG did recognize that a public body may permit a member of the public to disclose her address.

It is unclear whether the AG’s decision would be different if the address requirement was restricted to written registration and lacked public disclosure. That practice is less invasive and thus more narrowly tailored to achieve the board’s interests of identif ying the speaker. In any event, it appears that the AG is poised to strike down any public comment rules that are not specifically authorized by official board policy. If this recent ruling affects your District’s policy or practice concerning the public comment portion of board meetings, do not hesitate to contact us for assistance.