Our City Council has not adopted rules regarding public comments. We are a statutory Council- Manager city. Usually, we have a general public comment on regular meeting agendas; of course, allow comments in public hearings; and we take comments on ordinances.

With no requirement to take public comment on ordinances, do you see any legal problem (1st Amendment or otherwise) if the Mayor were to decline to take public comment on an ordinance due to the pandemic (wanting to keep the in person meeting brief)? Could it be considered content discrimination (they are considering the extension of our mask ordinance)? What if another Councilor really wants to allow comment? Thoughts? Thanks!

Teresa Nowlin | City Attorney
211 North Elm | P.O Box 2007 | Jenks, OK 74037
918-299-5883 Office

I dont see any first amendment issues with not allowing public comment.
Below is an attorney general opinion reaching the same conclusion.  A problem would arise when you allowed some comments and not others since this could be challenged as content-based interference with free speech.  See Reed v. Town of Gilbert, 576 U.S. 155 (2015) for discussion of content based restrictions on free speech
The cities I represent have a public comments item on the agenda near the end of meeting that reads like this:
Citizens’ opportunity to address the Council on general topics related to City business or services (3-minute limit - no action may be taken on matters under this item).

Question Submitted by: The Honorable Elmer Maddux , State Representative, District 58
2002 OK AG 26
Decided: 07/09/2002
Oklahoma Attorney General Opinions

Cite as: 2002 OK AG 26, __ __

¶0 This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following question:
Does an agenda of a public body which lists as an agenda item "visitors' comments" or "public comments" comply with the Oklahoma Open Meeting Act, 25 O.S. 2001, §§ 301 - 314?

I.

Introduction

¶1 The Oklahoma Open Meeting Act, 25 O.S. 2001, §§ 301 - 314, ("Act") requires that all meetings of public bodies "shall be held at specified times and places which are convenient to the public and shall be open to the public." Id. § 303. The Act broadly defines "meeting" as "the conduct[ing] of business of a public body by a majority of its members being personally together." Id. § 304(2). "Business" is not defined in the Act, but we noted in A.G. Opin. 82-212 that the term "business" should be given a construction in accordance with the purposes of the Act and defined "business" as "includ[ing] the entire decision-making process including deliberation, decision or formal action." Id. at 354.

¶2 The Act requires advance notice of the subject matters to be considered at public meetings, providing at 25 O.S. 2001, § 303, that "[a]ll meetings . . . shall be preceded by advance public notice specifying the time and place of each such meeting to be convened as well as the subject matter or matters to be considered at such meeting." Id. The Act also requires the posting of an agenda to be considered by the public body at its open meeting. This agenda "shall identify all items of business to be transacted by a public body at a meeting." Id. § 311(B)(1).

¶3 You ask whether an item on the agenda of a public body which reads "visitors' comments" or "public comments" complies with the Oklahoma Open Meeting Act. The gist of your question is whether the use of terms such as "visitors' comments" and "public comments" is sufficient to meet the notice requirements of the Act.

II.

The General Public Does Not Have A Right To Express Views
On Issues Being Heard By Public Bodies At Public Meetings.

¶4 Before addressing your question it is important to recognize that public bodies are not required to provide an opportunity for citizens to express their views on issues being considered by a public body. We concluded in A.G. Opin. 98-45 that neither the Act nor the First Amendment to the United States Constitution grants members of the general public a right to be heard by public bodies making public policy decisions. Id. at 913-14. A review of the Act itself shows there is no provision guaranteeing citizens a right to participate in the governmental decisions being made at an open meeting. The recognition that the United States Constitution does not grant such a right is based on the United States Supreme Court's holding in Minnesota Board for Community Colleges v. Knight, 465 U.S. 271, 284 (1984) where the Court stated:

Policymaking organs in our system of government have never operated under a constitutional constraint requiring them to afford every interested member of the public an opportunity to present testimony before any policy is adopted. . . . Public officials at all levels of government daily make policy decisions based only on the advice they decide they need and choose to hear. To recognize a constitutional right to participate directly in government policy-making would work a revolution in existing government practices.

Id. (emphasis added).

¶5 If a public body provides a forum for public comment, however, that body must comply with constitutional provisions. The United States Supreme Court recognized in Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 45 (1983) that the Constitution forbids a state "to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place." Thus, "[r]easonable time, place, and manner regulations are permissible." Any "content-based prohibition must be narrowly drawn to effectuate a compelling state interest." Id. at 46.

III.

The Use Of The Terms "Visitors' Comments" Or "Public Comments" In
Agendas Of Public Bodies Provides Sufficient Notice Under The Oklahoma
Open Meeting Act That Public Comment Will Be Allowed At The Meeting.

¶6 While public bodies are not required to allow an opportunity for the public to speak at open meetings, it is common for public bodies to voluntarily provide a forum for members of the public to make comments at public meetings. Some public bodies permit citizens to speak as long as they desire; others limit the amount of time allocated to each speaker. Some public bodies limit public comment to the subject matter of items on the agenda, while others allow open comment. It is in light of these practices that we address your inquiry.

¶7 You ask whether an agenda of a public body may include, as an agenda item, such terms as "visitors' comments" or "public comments." The stated purpose of the Act is "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." 25 O.S. 2001, § 302. The Act was enacted for the benefit of the public and must be construed liberally in favor of the public. Int'l Ass'n of Firefighters, Local 2479 v. Thorpe, 632 P.2d 408, 411 (Okla. 1981). Thus, the Act must be given a construction which will effectuate the intention of the Legislature in facilitating an informed citizenry's right to understanding of government, yet maintaining a process where a public body does not take action on matters for which there has been no specific notice.

¶8 To accomplish the purposes for which it was enacted the Act sets forth the requirements for advance notice in two separate statutory provisions. At 25 O.S. 2001, § 303 the Act requires that all meeting of public bodies "shall be preceded by advance public notice specifying the time and place of each such meeting to be convened as well as the subject matter or matters to be considered." The Act also specifically states that all agendas required pursuant to the Act "shall identify all items of business to be transacted by a public body at a meeting." Id.§ 311(B)(1).

¶9 A public body generally knows in advance the subject matter of business to come before the body, and is able to decide in advance the particular matter or matters to be considered. In such instances, there is no difficulty in providing notice through the posting of an agenda setting forth the subject matter of items to be considered by the body. The nature of public comment, however, is such that a public body generally has no way of knowing what the subject matter of citizens' concerns may be. This poses difficulty in predicting the subject matters of citizens' concerns and typically prevents the preparation of an agenda setting forth the particular subject matters of the comments.

¶10 If a public body chooses to allow for public comment at its meetings, it may limit such comment to items on the agenda. In that situation, the Act would require that the agenda provide that public comment is limited to items on the agenda. If no limits are placed on the subject matter of public comment, an agenda item stating "visitors' comments" or "public comments" is sufficient to fulfill the purpose of notifying the public that members of the public will be allowed to comment. We therefore conclude that the terms "visitors' comments" or "public comments" provide sufficient notice to fulfill the purpose of the Oklahoma Open Meeting Act.1https://www.oscn.net/applications/oscn/deliverdocument.asp?id=406359&hits=1490+1489+1377+1376+1226+1225+1207+1206+1180+1179+1119+1118+786+785+711+710+595+594+#marker1fn1

V.

Conclusion

¶11 The purpose of the Act is "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." 25 O.S. 2001, § 302. A public body is not required to allow for citizen participation in public meetings, but may voluntarily choose to do so. If a public body chooses to allow for comments by the public, it may limit the comment to items on the agenda and specifically state on the agenda that comment is limited to particular agenda items. A public body may also allow for open public comment. In such situations, the use of terms such as "visitors' comments" or "public comments" in public meeting agendas does not violate the notice provision of the Open Meeting Act.

¶12 It is, therefore, the official Opinion of the Attorney General that:

1. A public body is not required under either the Oklahoma Open Meeting Act, 25 O.S. 2001, § 311(B)(1), or the First Amendment to the United States Constitution to provide an opportunity for citizens to express their view on issues being considered by a public body, but a public body may voluntarily choose to allow for such comments.
2. A public body which voluntarily chooses to allow for public comment may limit comment to items on the agenda and provide on the agenda that comments are limited. A public body may also allow for open comment.
3. Pursuant to 25 O.S. 2001, § 311(B)(1), an agenda of a public body, which lists as an agenda item general terms such as "visitors' comments" or "public comments," is sufficient to meet the notice requirement of the Oklahoma Open Meeting Act, because it advises that members of the public will be allowed an opportunity to comment.

W.A. DREW EDMONDSON
Attorney General of Oklahoma
SANDRA D. HOWARD
Senior Assistant Attorney General

FOOTNOTES

1https://www.oscn.net/applications/oscn/deliverdocument.asp?id=406359&hits=1490+1489+1377+1376+1226+1225+1207+1206+1180+1179+1119+1118+786+785+711+710+595+594+#marker0fn1We recognize the possibility that the use of terms such as "visitors' comments" or "public comments" in agendas may create a danger that a public body could conceal the true nature of the meeting. Agendas "which are deceptively vague and likely to mislead constitute a wilful violation" of the Act. Rogers v. Excise Bd., 701 P.2d 754, 761 (Okla. 1984). The Act states that "[a]ny action taken in willful violation of this act shall be invalid." 25 O.S. 2001, § 313 (footnote omitted). "[W]illful" is defined "to include any act or omission which has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting. This also includes agency action which exceeds the scope of action defined by the notice." Haworth Bd. of Educ. v. Havens, 637 P.2d 902, 904 (Okla. Ct. App. 1981). Whether a particular agenda item has the effect of deceiving or misleading the public is a question of fact outside the realm of an Attorney General Opinion. 74 O.S. 2001, § 18b(A)(5).

Citationizer© Summary of Documents Citing This Document

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CONFIDENTIALITY NOTE:  This transmission is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521 and intended to be delivered only to the named addressee(s) This e-mail message is intended only for the personal use of the recipient(s) named above. This message is or may be an attorney-client communication and as such privileged and confidential. If you are not an intended recipient, you may not review, copy or distribute this message. If you have received this communication in error, please notify us immediately by e-mail and delete the original message.

s/ David A. Davis
LAW OFFICE OF DAVID A. DAVIS
4312 N. Classen Blvd.
OKLAHOMA CITY, OK 73118
405 840-6353
405 557-0777 (FAX)
ddavislaw@live.commailto:ddavislaw@live.com

From: Oama oama-bounces@lists.imla.org on behalf of Teresa Nowlin tnowlin@jenksok.org
Sent: Tuesday, January 26, 2021 9:48 AM
To: oama@lists.imla.org oama@lists.imla.org
Subject: [Oama] Public comment on ordinance passage

Our City Council has not adopted rules regarding public comments. We are a statutory Council- Manager city. Usually, we have a general public comment on regular meeting agendas; of course, allow comments in public hearings; and we take comments on ordinances.

With no requirement to take public comment on ordinances, do you see any legal problem (1st Amendment or otherwise) if the Mayor were to decline to take public comment on an ordinance due to the pandemic (wanting to keep the in person meeting brief)? Could it be considered content discrimination (they are considering the extension of our mask ordinance)? What if another Councilor really wants to allow comment? Thoughts? Thanks!

Teresa Nowlin | City Attorney

211 North Elm | P.O Box 2007 | Jenks, OK 74037

918-299-5883 Office

If you allow public comment by rule or ordinance, that provision would have to be followed in the pandemic or regardless of the subject, unless the body or person who is able to amend or suspend the rule does so for all comments on all issues at that particular type of meeting, or you are going to get challenges on first amendment violations.  If your mayor sets the meeting rules, the mayor can suspend all public comment due to public safety protocols, but wouldn't be able to suspend a public hearing requirement under state or local law.

We didn't allow a spot for open public comment for many years due to the melee that can result but the current mayor wants the comment so we limit to 3 minutes, no action taken and they have to sign up before the meeting.  They will also limit the number of speakers and let them decide who speaks if an issue is a hot button and several people showed up (this was a neighborhood objection to a zoning issue).

There is no new information about the mask wearing issue.  The council members are not going to be swayed or informed by any statements that would be presented through public comment.

From: Oama [mailto:oama-bounces@lists.imla.org] On Behalf Of david davis
Sent: Tuesday, January 26, 2021 11:30 AM
To: Teresa Nowlin tnowlin@jenksok.org; oama@lists.imla.org
Subject: Re: [Oama] Public comment on ordinance passage

I dont see any first amendment issues with not allowing public comment.
Below is an attorney general opinion reaching the same conclusion.  A problem would arise when you allowed some comments and not others since this could be challenged as content-based interference with free speech.  See Reed v. Town of Gilbert, 576 U.S. 155 (2015) for discussion of content based restrictions on free speech
The cities I represent have a public comments item on the agenda near the end of meeting that reads like this:
Citizens' opportunity to address the Council on general topics related to City business or services (3-minute limit - no action may be taken on matters under this item).

Question Submitted by: The Honorable Elmer Maddux , State Representative, District 58
2002 OK AG 26
Decided: 07/09/2002
Oklahoma Attorney General Opinions

Cite as: 2002 OK AG 26, __ __

¶0 This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following question:
Does an agenda of a public body which lists as an agenda item "visitors' comments" or "public comments" comply with the Oklahoma Open Meeting Act, 25 O.S. 2001, §§ 301 - 314?

I.

Introduction

¶1 The Oklahoma Open Meeting Act, 25 O.S. 2001, §§ 301 - 314, ("Act") requires that all meetings of public bodies "shall be held at specified times and places which are convenient to the public and shall be open to the public." Id. § 303. The Act broadly defines "meeting" as "the conduct[ing] of business of a public body by a majority of its members being personally together." Id. § 304(2). "Business" is not defined in the Act, but we noted in A.G. Opin. 82-212 that the term "business" should be given a construction in accordance with the purposes of the Act and defined "business" as "includ[ing] the entire decision-making process including deliberation, decision or formal action." Id. at 354.

¶2 The Act requires advance notice of the subject matters to be considered at public meetings, providing at 25 O.S. 2001, § 303, that "[a]ll meetings . . . shall be preceded by advance public notice specifying the time and place of each such meeting to be convened as well as the subject matter or matters to be considered at such meeting." Id. The Act also requires the posting of an agenda to be considered by the public body at its open meeting. This agenda "shall identify all items of business to be transacted by a public body at a meeting." Id. § 311(B)(1).

¶3 You ask whether an item on the agenda of a public body which reads "visitors' comments" or "public comments" complies with the Oklahoma Open Meeting Act. The gist of your question is whether the use of terms such as "visitors' comments" and "public comments" is sufficient to meet the notice requirements of the Act.

II.

The General Public Does Not Have A Right To Express Views
On Issues Being Heard By Public Bodies At Public Meetings.

¶4 Before addressing your question it is important to recognize that public bodies are not required to provide an opportunity for citizens to express their views on issues being considered by a public body. We concluded in A.G. Opin. 98-45 that neither the Act nor the First Amendment to the United States Constitution grants members of the general public a right to be heard by public bodies making public policy decisions. Id. at 913-14. A review of the Act itself shows there is no provision guaranteeing citizens a right to participate in the governmental decisions being made at an open meeting. The recognition that the United States Constitution does not grant such a right is based on the United States Supreme Court's holding in Minnesota Board for Community Colleges v. Knight, 465 U.S. 271, 284 (1984) where the Court stated:

Policymaking organs in our system of government have never operated under a constitutional constraint requiring them to afford every interested member of the public an opportunity to present testimony before any policy is adopted. . . . Public officials at all levels of government daily make policy decisions based only on the advice they decide they need and choose to hear. To recognize a constitutional right to participate directly in government policy-making would work a revolution in existing government practices.

Id. (emphasis added).

¶5 If a public body provides a forum for public comment, however, that body must comply with constitutional provisions. The United States Supreme Court recognized in Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 45 (1983) that the Constitution forbids a state "to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place." Thus, "[r]easonable time, place, and manner regulations are permissible." Any "content-based prohibition must be narrowly drawn to effectuate a compelling state interest." Id. at 46.

III.

The Use Of The Terms "Visitors' Comments" Or "Public Comments" In
Agendas Of Public Bodies Provides Sufficient Notice Under The Oklahoma
Open Meeting Act That Public Comment Will Be Allowed At The Meeting.

¶6 While public bodies are not required to allow an opportunity for the public to speak at open meetings, it is common for public bodies to voluntarily provide a forum for members of the public to make comments at public meetings. Some public bodies permit citizens to speak as long as they desire; others limit the amount of time allocated to each speaker. Some public bodies limit public comment to the subject matter of items on the agenda, while others allow open comment. It is in light of these practices that we address your inquiry.

¶7 You ask whether an agenda of a public body may include, as an agenda item, such terms as "visitors' comments" or "public comments." The stated purpose of the Act is "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." 25 O.S. 2001, § 302. The Act was enacted for the benefit of the public and must be construed liberally in favor of the public. Int'l Ass'n of Firefighters, Local 2479 v. Thorpe, 632 P.2d 408, 411 (Okla. 1981). Thus, the Act must be given a construction which will effectuate the intention of the Legislature in facilitating an informed citizenry's right to understanding of government, yet maintaining a process where a public body does not take action on matters for which there has been no specific notice.

¶8 To accomplish the purposes for which it was enacted the Act sets forth the requirements for advance notice in two separate statutory provisions. At 25 O.S. 2001, § 303 the Act requires that all meeting of public bodies "shall be preceded by advance public notice specifying the time and place of each such meeting to be convened as well as the subject matter or matters to be considered." The Act also specifically states that all agendas required pursuant to the Act "shall identify all items of business to be transacted by a public body at a meeting." Id.§ 311(B)(1).

¶9 A public body generally knows in advance the subject matter of business to come before the body, and is able to decide in advance the particular matter or matters to be considered. In such instances, there is no difficulty in providing notice through the posting of an agenda setting forth the subject matter of items to be considered by the body. The nature of public comment, however, is such that a public body generally has no way of knowing what the subject matter of citizens' concerns may be. This poses difficulty in predicting the subject matters of citizens' concerns and typically prevents the preparation of an agenda setting forth the particular subject matters of the comments.

¶10 If a public body chooses to allow for public comment at its meetings, it may limit such comment to items on the agenda. In that situation, the Act would require that the agenda provide that public comment is limited to items on the agenda. If no limits are placed on the subject matter of public comment, an agenda item stating "visitors' comments" or "public comments" is sufficient to fulfill the purpose of notifying the public that members of the public will be allowed to comment. We therefore conclude that the terms "visitors' comments" or "public comments" provide sufficient notice to fulfill the purpose of the Oklahoma Open Meeting Act.1https://www.oscn.net/applications/oscn/deliverdocument.asp?id=406359&hits=1490+1489+1377+1376+1226+1225+1207+1206+1180+1179+1119+1118+786+785+711+710+595+594+#marker1fn1

V.

Conclusion

¶11 The purpose of the Act is "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." 25 O.S. 2001, § 302. A public body is not required to allow for citizen participation in public meetings, but may voluntarily choose to do so. If a public body chooses to allow for comments by the public, it may limit the comment to items on the agenda and specifically state on the agenda that comment is limited to particular agenda items. A public body may also allow for open public comment. In such situations, the use of terms such as "visitors' comments" or "public comments" in public meeting agendas does not violate the notice provision of the Open Meeting Act.

¶12 It is, therefore, the official Opinion of the Attorney General that:

1. A public body is not required under either the Oklahoma Open Meeting Act, 25 O.S. 2001, § 311(B)(1), or the First Amendment to the United States Constitution to provide an opportunity for citizens to express their view on issues being considered by a public body, but a public body may voluntarily choose to allow for such comments.
2. A public body which voluntarily chooses to allow for public comment may limit comment to items on the agenda and provide on the agenda that comments are limited. A public body may also allow for open comment.
3. Pursuant to 25 O.S. 2001, § 311(B)(1), an agenda of a public body, which lists as an agenda item general terms such as "visitors' comments" or "public comments," is sufficient to meet the notice requirement of the Oklahoma Open Meeting Act, because it advises that members of the public will be allowed an opportunity to comment.

W.A. DREW EDMONDSON
Attorney General of Oklahoma
SANDRA D. HOWARD
Senior Assistant Attorney General

FOOTNOTES

1https://www.oscn.net/applications/oscn/deliverdocument.asp?id=406359&hits=1490+1489+1377+1376+1226+1225+1207+1206+1180+1179+1119+1118+786+785+711+710+595+594+#marker0fn1We recognize the possibility that the use of terms such as "visitors' comments" or "public comments" in agendas may create a danger that a public body could conceal the true nature of the meeting. Agendas "which are deceptively vague and likely to mislead constitute a wilful violation" of the Act. Rogers v. Excise Bd., 701 P.2d 754, 761 (Okla. 1984). The Act states that "[a]ny action taken in willful violation of this act shall be invalid." 25 O.S. 2001, § 313 (footnote omitted). "[W]illful" is defined "to include any act or omission which has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting. This also includes agency action which exceeds the scope of action defined by the notice." Haworth Bd. of Educ. v. Havens, 637 P.2d 902, 904 (Okla. Ct. App. 1981). Whether a particular agenda item has the effect of deceiving or misleading the public is a question of fact outside the realm of an Attorney General Opinion. 74 O.S. 2001, § 18b(A)(5).
Citationizer© Summary of Documents Citing This Document

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Citationizer: Table of Authority

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CONFIDENTIALITY NOTE:  This transmission is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521 and intended to be delivered only to the named addressee(s) This e-mail message is intended only for the personal use of the recipient(s) named above. This message is or may be an attorney-client communication and as such privileged and confidential. If you are not an intended recipient, you may not review, copy or distribute this message. If you have received this communication in error, please notify us immediately by e-mail and delete the original message.

s/ David A. Davis
LAW OFFICE OF DAVID A. DAVIS
4312 N. Classen Blvd.
OKLAHOMA CITY, OK 73118
405 840-6353
405 557-0777 (FAX)
ddavislaw@live.commailto:ddavislaw@live.com

From: Oama <oama-bounces@lists.imla.orgmailto:oama-bounces@lists.imla.org> on behalf of Teresa Nowlin <tnowlin@jenksok.orgmailto:tnowlin@jenksok.org>
Sent: Tuesday, January 26, 2021 9:48 AM
To: oama@lists.imla.orgmailto:oama@lists.imla.org <oama@lists.imla.orgmailto:oama@lists.imla.org>
Subject: [Oama] Public comment on ordinance passage

Our City Council has not adopted rules regarding public comments. We are a statutory Council- Manager city. Usually, we have a general public comment on regular meeting agendas; of course, allow comments in public hearings; and we take comments on ordinances.

With no requirement to take public comment on ordinances, do you see any legal problem (1st Amendment or otherwise) if the Mayor were to decline to take public comment on an ordinance due to the pandemic (wanting to keep the in person meeting brief)? Could it be considered content discrimination (they are considering the extension of our mask ordinance)? What if another Councilor really wants to allow comment? Thoughts? Thanks!

Teresa Nowlin | City Attorney

211 North Elm | P.O Box 2007 | Jenks, OK 74037

918-299-5883 Office

Great input. Thank you.  There is also a short article on the OAMA website at the link below that discussed this issue of public comments.
https://okmunicipalattorneys.org/tip-of-the-month-1/are-public-comments-required-at-public-meetings

OMAG's COVID-19 Info Page: https://www.omag.org/covid19-faq

Jeff H Bryant
Director of Legal Services
Associate General Counsel
jbryant@omag.orgmailto:jbryant@omag.org

[OMAG Small Logo Smooth]
3650 S. Boulevard
Edmond, Oklahoma  73013
Phone: 405-657-1419
Fax: 405-657-1401
www.omag.orghttps://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.omag.org%2F&data=02%7C01%7Cksesock%40omag.org%7C7b0af7708d2145459d0008d5d005912d%7Cb13aadd514d84b918cf485be9d556ad7%7C1%7C0%7C636643644718063768&sdata=O5U4CEM0kJLxSbEQIcdB%2BtRnRqcj9gWhJquY26D8F1o%3D&reserved=0

From: Oama oama-bounces@lists.imla.org On Behalf Of Lou Ann Moudy
Sent: Tuesday, January 26, 2021 12:04 PM
To: david davis ddavislaw@live.com; Teresa Nowlin tnowlin@jenksok.org; oama@lists.imla.org
Subject: Re: [Oama] Public comment on ordinance passage

If you allow public comment by rule or ordinance, that provision would have to be followed in the pandemic or regardless of the subject, unless the body or person who is able to amend or suspend the rule does so for all comments on all issues at that particular type of meeting, or you are going to get challenges on first amendment violations.  If your mayor sets the meeting rules, the mayor can suspend all public comment due to public safety protocols, but wouldn't be able to suspend a public hearing requirement under state or local law.

We didn't allow a spot for open public comment for many years due to the melee that can result but the current mayor wants the comment so we limit to 3 minutes, no action taken and they have to sign up before the meeting.  They will also limit the number of speakers and let them decide who speaks if an issue is a hot button and several people showed up (this was a neighborhood objection to a zoning issue).

There is no new information about the mask wearing issue.  The council members are not going to be swayed or informed by any statements that would be presented through public comment.

From: Oama [mailto:oama-bounces@lists.imla.org] On Behalf Of david davis
Sent: Tuesday, January 26, 2021 11:30 AM
To: Teresa Nowlin <tnowlin@jenksok.orgmailto:tnowlin@jenksok.org>; oama@lists.imla.orgmailto:oama@lists.imla.org
Subject: Re: [Oama] Public comment on ordinance passage

I dont see any first amendment issues with not allowing public comment.
Below is an attorney general opinion reaching the same conclusion.  A problem would arise when you allowed some comments and not others since this could be challenged as content-based interference with free speech.  See Reed v. Town of Gilbert, 576 U.S. 155 (2015) for discussion of content based restrictions on free speech
The cities I represent have a public comments item on the agenda near the end of meeting that reads like this:
Citizens' opportunity to address the Council on general topics related to City business or services (3-minute limit - no action may be taken on matters under this item).

Question Submitted by: The Honorable Elmer Maddux , State Representative, District 58
2002 OK AG 26
Decided: 07/09/2002
Oklahoma Attorney General Opinions

Cite as: 2002 OK AG 26, __ __

¶0 This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following question:
Does an agenda of a public body which lists as an agenda item "visitors' comments" or "public comments" comply with the Oklahoma Open Meeting Act, 25 O.S. 2001, §§ 301 - 314?

I.

Introduction

¶1 The Oklahoma Open Meeting Act, 25 O.S. 2001, §§ 301 - 314, ("Act") requires that all meetings of public bodies "shall be held at specified times and places which are convenient to the public and shall be open to the public." Id. § 303. The Act broadly defines "meeting" as "the conduct[ing] of business of a public body by a majority of its members being personally together." Id. § 304(2). "Business" is not defined in the Act, but we noted in A.G. Opin. 82-212 that the term "business" should be given a construction in accordance with the purposes of the Act and defined "business" as "includ[ing] the entire decision-making process including deliberation, decision or formal action." Id. at 354.

¶2 The Act requires advance notice of the subject matters to be considered at public meetings, providing at 25 O.S. 2001, § 303, that "[a]ll meetings . . . shall be preceded by advance public notice specifying the time and place of each such meeting to be convened as well as the subject matter or matters to be considered at such meeting." Id. The Act also requires the posting of an agenda to be considered by the public body at its open meeting. This agenda "shall identify all items of business to be transacted by a public body at a meeting." Id. § 311(B)(1).

¶3 You ask whether an item on the agenda of a public body which reads "visitors' comments" or "public comments" complies with the Oklahoma Open Meeting Act. The gist of your question is whether the use of terms such as "visitors' comments" and "public comments" is sufficient to meet the notice requirements of the Act.

II.

The General Public Does Not Have A Right To Express Views
On Issues Being Heard By Public Bodies At Public Meetings.

¶4 Before addressing your question it is important to recognize that public bodies are not required to provide an opportunity for citizens to express their views on issues being considered by a public body. We concluded in A.G. Opin. 98-45 that neither the Act nor the First Amendment to the United States Constitution grants members of the general public a right to be heard by public bodies making public policy decisions. Id. at 913-14. A review of the Act itself shows there is no provision guaranteeing citizens a right to participate in the governmental decisions being made at an open meeting. The recognition that the United States Constitution does not grant such a right is based on the United States Supreme Court's holding in Minnesota Board for Community Colleges v. Knight, 465 U.S. 271, 284 (1984) where the Court stated:

Policymaking organs in our system of government have never operated under a constitutional constraint requiring them to afford every interested member of the public an opportunity to present testimony before any policy is adopted. . . . Public officials at all levels of government daily make policy decisions based only on the advice they decide they need and choose to hear. To recognize a constitutional right to participate directly in government policy-making would work a revolution in existing government practices.

Id. (emphasis added).

¶5 If a public body provides a forum for public comment, however, that body must comply with constitutional provisions. The United States Supreme Court recognized in Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 45 (1983) that the Constitution forbids a state "to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place." Thus, "[r]easonable time, place, and manner regulations are permissible." Any "content-based prohibition must be narrowly drawn to effectuate a compelling state interest." Id. at 46.

III.

The Use Of The Terms "Visitors' Comments" Or "Public Comments" In
Agendas Of Public Bodies Provides Sufficient Notice Under The Oklahoma
Open Meeting Act That Public Comment Will Be Allowed At The Meeting.

¶6 While public bodies are not required to allow an opportunity for the public to speak at open meetings, it is common for public bodies to voluntarily provide a forum for members of the public to make comments at public meetings. Some public bodies permit citizens to speak as long as they desire; others limit the amount of time allocated to each speaker. Some public bodies limit public comment to the subject matter of items on the agenda, while others allow open comment. It is in light of these practices that we address your inquiry.

¶7 You ask whether an agenda of a public body may include, as an agenda item, such terms as "visitors' comments" or "public comments." The stated purpose of the Act is "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." 25 O.S. 2001, § 302. The Act was enacted for the benefit of the public and must be construed liberally in favor of the public. Int'l Ass'n of Firefighters, Local 2479 v. Thorpe, 632 P.2d 408, 411 (Okla. 1981). Thus, the Act must be given a construction which will effectuate the intention of the Legislature in facilitating an informed citizenry's right to understanding of government, yet maintaining a process where a public body does not take action on matters for which there has been no specific notice.

¶8 To accomplish the purposes for which it was enacted the Act sets forth the requirements for advance notice in two separate statutory provisions. At 25 O.S. 2001, § 303 the Act requires that all meeting of public bodies "shall be preceded by advance public notice specifying the time and place of each such meeting to be convened as well as the subject matter or matters to be considered." The Act also specifically states that all agendas required pursuant to the Act "shall identify all items of business to be transacted by a public body at a meeting." Id.§ 311(B)(1).

¶9 A public body generally knows in advance the subject matter of business to come before the body, and is able to decide in advance the particular matter or matters to be considered. In such instances, there is no difficulty in providing notice through the posting of an agenda setting forth the subject matter of items to be considered by the body. The nature of public comment, however, is such that a public body generally has no way of knowing what the subject matter of citizens' concerns may be. This poses difficulty in predicting the subject matters of citizens' concerns and typically prevents the preparation of an agenda setting forth the particular subject matters of the comments.

¶10 If a public body chooses to allow for public comment at its meetings, it may limit such comment to items on the agenda. In that situation, the Act would require that the agenda provide that public comment is limited to items on the agenda. If no limits are placed on the subject matter of public comment, an agenda item stating "visitors' comments" or "public comments" is sufficient to fulfill the purpose of notifying the public that members of the public will be allowed to comment. We therefore conclude that the terms "visitors' comments" or "public comments" provide sufficient notice to fulfill the purpose of the Oklahoma Open Meeting Act.1https://nam12.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.oscn.net%2Fapplications%2Foscn%2Fdeliverdocument.asp%3Fid%3D406359%26hits%3D1490%2B1489%2B1377%2B1376%2B1226%2B1225%2B1207%2B1206%2B1180%2B1179%2B1119%2B1118%2B786%2B785%2B711%2B710%2B595%2B594%2B%23marker1fn1&data=04%7C01%7Cjbryant%40omag.org%7C9f2649e35a1940263ef008d8c224f658%7Cb13aadd514d84b918cf485be9d556ad7%7C1%7C0%7C637472811312937462%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=SoPV%2Bb9zRXJecIpQgqqw6WqOWjsTh2Xwa%2FN%2BYB6rXHg%3D&reserved=0

V.

Conclusion

¶11 The purpose of the Act is "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." 25 O.S. 2001, § 302. A public body is not required to allow for citizen participation in public meetings, but may voluntarily choose to do so. If a public body chooses to allow for comments by the public, it may limit the comment to items on the agenda and specifically state on the agenda that comment is limited to particular agenda items. A public body may also allow for open public comment. In such situations, the use of terms such as "visitors' comments" or "public comments" in public meeting agendas does not violate the notice provision of the Open Meeting Act.

¶12 It is, therefore, the official Opinion of the Attorney General that:

1. A public body is not required under either the Oklahoma Open Meeting Act, 25 O.S. 2001, § 311(B)(1), or the First Amendment to the United States Constitution to provide an opportunity for citizens to express their view on issues being considered by a public body, but a public body may voluntarily choose to allow for such comments.
2. A public body which voluntarily chooses to allow for public comment may limit comment to items on the agenda and provide on the agenda that comments are limited. A public body may also allow for open comment.
3. Pursuant to 25 O.S. 2001, § 311(B)(1), an agenda of a public body, which lists as an agenda item general terms such as "visitors' comments" or "public comments," is sufficient to meet the notice requirement of the Oklahoma Open Meeting Act, because it advises that members of the public will be allowed an opportunity to comment.

W.A. DREW EDMONDSON
Attorney General of Oklahoma
SANDRA D. HOWARD
Senior Assistant Attorney General

FOOTNOTES

1https://nam12.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.oscn.net%2Fapplications%2Foscn%2Fdeliverdocument.asp%3Fid%3D406359%26hits%3D1490%2B1489%2B1377%2B1376%2B1226%2B1225%2B1207%2B1206%2B1180%2B1179%2B1119%2B1118%2B786%2B785%2B711%2B710%2B595%2B594%2B%23marker0fn1&data=04%7C01%7Cjbryant%40omag.org%7C9f2649e35a1940263ef008d8c224f658%7Cb13aadd514d84b918cf485be9d556ad7%7C1%7C0%7C637472811312947457%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=ux6%2Ft%2FxCv9T36WiepxGbTdBB2g16rYw8JVrxKQAaYas%3D&reserved=0We recognize the possibility that the use of terms such as "visitors' comments" or "public comments" in agendas may create a danger that a public body could conceal the true nature of the meeting. Agendas "which are deceptively vague and likely to mislead constitute a wilful violation" of the Act. Rogers v. Excise Bd., 701 P.2d 754, 761 (Okla. 1984). The Act states that "[a]ny action taken in willful violation of this act shall be invalid." 25 O.S. 2001, § 313 (footnote omitted). "[W]illful" is defined "to include any act or omission which has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting. This also includes agency action which exceeds the scope of action defined by the notice." Haworth Bd. of Educ. v. Havens, 637 P.2d 902, 904 (Okla. Ct. App. 1981). Whether a particular agenda item has the effect of deceiving or misleading the public is a question of fact outside the realm of an Attorney General Opinion. 74 O.S. 2001, § 18b(A)(5).
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s/ David A. Davis
LAW OFFICE OF DAVID A. DAVIS
4312 N. Classen Blvd.
OKLAHOMA CITY, OK 73118
405 840-6353
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ddavislaw@live.commailto:ddavislaw@live.com

From: Oama <oama-bounces@lists.imla.orgmailto:oama-bounces@lists.imla.org> on behalf of Teresa Nowlin <tnowlin@jenksok.orgmailto:tnowlin@jenksok.org>
Sent: Tuesday, January 26, 2021 9:48 AM
To: oama@lists.imla.orgmailto:oama@lists.imla.org <oama@lists.imla.orgmailto:oama@lists.imla.org>
Subject: [Oama] Public comment on ordinance passage

Our City Council has not adopted rules regarding public comments. We are a statutory Council- Manager city. Usually, we have a general public comment on regular meeting agendas; of course, allow comments in public hearings; and we take comments on ordinances.

With no requirement to take public comment on ordinances, do you see any legal problem (1st Amendment or otherwise) if the Mayor were to decline to take public comment on an ordinance due to the pandemic (wanting to keep the in person meeting brief)? Could it be considered content discrimination (they are considering the extension of our mask ordinance)? What if another Councilor really wants to allow comment? Thoughts? Thanks!

Teresa Nowlin | City Attorney

211 North Elm | P.O Box 2007 | Jenks, OK 74037

918-299-5883 Office