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Public Access Opinion 19-002

Unestablished and Unrecorded Rules for Public Comment

Administrator Contracts
Case: Public Access Opinion 19-002
Date: Wednesday, January 9, 2019

A school board (Board) violated Section 2.06(g) of OMA during its October 22, 2018 board meeting by enforcing an unestablished and unrecorded rule limiting the public comment portion of the meeting to 15 minutes. Petitioner asserted that over 100 parents and community members attended this particular board meeting, intending to comment on a recent hiring decision, but the Board announced that “in accordance with board rules they ‘had used before,’” members of the public would be permitted to speak for three minutes each for a total of 15 minutes for all speakers. Due to this 15 minute cap, many attendees were unable to make public comment. Petitioner further noted that even though the Board’s policy manual limited comments to three minutes per person, it did not mention a 15 minute cap.

The Board did not dispute that it capped the public comment to 15 minutes, but it pointed to its Welcome Handout, which describes the Board’s general order of business at board meetings and states “members of the public shall be permitted to make comments at each meeting subject to the following time limitations: 3 minutes per speaker, with a maximum of 15 minutes, per topic, per meeting.” When asked about the discrepancy between Board policy and the Board Welcome Handout, the Board explained that even though the 15 minute cap is not in Board policy, it has been the Board’s practice for at least the last 10 years. The PAC found that “[n]othing 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 [OMA] section 2.06(g), and may be enforced to limit public comment.” Though a public body has inherent authority to conduct its meetings in an efficient manner and need not allow public comment to continue indefinitely, the PAC held that there was no evidence that capping public comment to 15 minutes was necessary to maintain decorum or that extending the comment period would have unduly interfered with the orderly transaction of public business. As a result, the PAC ordered the Board to refrain from applying unestablished and unrecorded rules to restrict public comment at future meetings.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.