by Michael Castaldo, Jr. (Spring 2019)

The importance of established and recorded policies on limits imposed during public comment was reiterated in a recent binding opinion. Opinion 19-002 was issued by the Illinois Attorney General’s Public Access Counselor (PAC) on January 9, 2019, regarding Section 2.06(g) of the Open Meetings Act – the section providing for public comment – and a school district’s 15-minute cap on public comment (5 ILCS 120/2.06 (g)).

On October 22, 2018, the Lyons Elementary School District Board held a meeting after hiring an English teacher who was previously charged with 9 counts of attempted murder after being accused of shooting a person seven times. Approximately 100 members of the public attended the meeting to express concerns; however, the Board announced that it would allow the public to speak only for a total of 15 minutes. Furthermore, each speaker was limited to three minutes of public comment.

Because of the high turnout, not every person who attended the meeting was allowed to comment. Martin Stack filed a request for review with the PAC, complaining that these limits violated the Illinois Open Meetings Act (“OMA”). Mr. Stack also pointed out that the Board’s policy manual only stated that public participation in meetings is limited to three minutes per person and made no mention of a 15-minute cap for public comments.

The superintendent provided both a written response to the PAC on behalf of the Board and copies of the Board’s Policy Manual in November, 2018. Additionally, the superintendent provided copies of a supplementary handout outlining public comment procedures. This handout stated in part that public comments are limited to “a maximum of 15 minutes, per topic, per meeting.” According to the District, the handout was read aloud at every meeting and placed on a table next to the agenda and sign in sheet. The Attorney General addressed both the Board Policy Manual and the Board handout in analyzing the alleged OMA violation.

Under the OMA, public bodies are charged with the responsibility of aiding in the conduct of the people’s business. More specifically, the OMA affords any person the opportunity to “address public officials under the rules established and recorded by the public body.” (5 ILCS 120/2.06(g)). However, the ability to publicly comment is not unlimited and rules “established and recorded” by the public body could limit the scope of public comment at meetings. Thus, the PAC sought to determine whether the Board Policy Manual, Board Handout, or both documents, governed the meeting at issue.

The PAC first looked to the legal definition of “established” and concluded that the term “established” means “to enact permanently.” The PAC determined that the Board Policy was established and recorded by the Board. The Board Policy stated that it was adopted on December 15, 2014 and was also incorporated in the Board’s official policy manual. Therefore, the Board policy limiting comments to three minutes per person was both recorded and established within the meaning of the statute.

However, the Board policy manual was silent regarding the 15-minute cap on public comments. Even though the Board’s handout outlined the practice of limiting comments to 15 minutes per topic per meeting, this policy was never officially incorporated into the Board Policy Manual or adopted by the Board in any way. Thus, the handout provisions were not “established” or “recorded” within the meaning of the statute and did not constitute a valid restriction on public comment. Thus, the Board was in violation of Section 2.06(g) of the OMA at its October 22, 2018, meeting. The PAC instructed the Board to “refrain from applying unestablished and unrecorded rules to restrict public comment at future meetings.”

This opinion stresses the importance of setting Board policy. The Board could have avoided this outcome if the 15-minute cap on public comment was properly “established” and “recorded” in the Board’s Policy Manual. This opinion serves as an important caution to review policies and procedures and ensure that longstanding practices, such as a 15-minute cap on meeting topics, are officially recorded in the Board’s Policy Manual.