In the past few weeks, there has been talk about restrictions placed on citizen participation on local meetings of government bodies (Town Council, School Committee, etc.). This provides a good opportunity to review the rights and rules surrounding participation in public meetings.
The School Committee values public participation and input from the community on issues related to the education of our children. Our policy on public participation in meetings can be viewed by clicking here. In addition, we have a policy directed to community involvement in decisionmaking which can be viewed by clicking here. Finally, we have a policy on public complaints which can be viewed by clicking here.
Aside from School Committee policy, the Massachusetts Open Meeting Law states that all meetings of a governmental body shall be open to the public and any person shall be permitted to attend any meeting except as otherwise provided by this section. However, the law further states that “[n]o person shall address a public meeting of a governmental body without permission of the presiding officer at such meeting, and all persons shall, at the request of such presiding officer, be silent.” G.L. c. 39, § 23C. In other words, the Open Meeting Law provides no general right for a member of the public to address a governmental body.
A recent case from the United States Appeals Court for the First Circuit in Boston — known as Curnin v. Town of Egremont — considered the issue of a citizen’s right to speak at a meeting of a government body. In that case, the plaintiffs sued defendants, the town, its town meeting moderator, and the town’s selectmen, contending that their First Amendment rights had been violated because they were not allowed to speak at the town meetings called per G.L. c. 39, § 9. The Curnins first argued that Egremont’s town meeting qualifies as a designated public forum for two reasons. First, they argue that Egremont’s town meetings must be public forums because they are open to the public, take place on government property, and involve important matters of public interest. Second, they argue by analogy that other courts have held that municipal-level public meetings are designated public forums and therefore town meetings are as well. They further argue that even if the town meeting is not considered a designated public forum but only a limited public forum, Egremont’s policy cannot satisfy the corresponding level of scrutiny.
The Curnins made a second and separate series of First Amendment arguments under the rubric of viewpoint-related discrimination. They asserted that the categorical preclusion of those who are not town meeting members from the right to speak is a form of viewpoint discrimination. They also argued that Egremont’s policy of letting non-voters speak only at the discretion of the moderator is unconstitutional. They further argued that this discretion raises the prospect of possible viewpoint discrimination by the moderator in his decision to recognize certain people and not others.
In ruling against the plaintiffs, the court ruled that the First Amendment did not give non-legislators the right to speak at meetings of deliberating legislative bodies, regardless of whether they owned property or paid taxes. Moreover, the court of appeals rejected the plaintiffs’ argument that the town engaged in viewpoint discrimination and that the First Amendment was violated by the discretion vested in the town meeting moderator to recognize speakers, including individuals who were not members of the town meeting.
In so ruling, the court cited language from the United States Supreme Court that noted:
The Constitution does not grant to members of the public generally a right to be heard by public bodies making decisions of policy. . . . 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 policymaking would work a revolution in existing government practices.
Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271, 283-84, 104 S. Ct. 1058, 79 L. Ed. 2d 299 (1984). In Knight, the Court rejected First Amendment claims by plaintiffs that they had a right to force officers of the state, acting in an official capacity, to listen to them in a particular formal setting. Id. at 283.
The Franklin School Committee often invites public comment on issues on agenda items, and if not on the agenda, during citizen’s comments. The basic structure of our meetings is described here. However, those comments are subject to some legal constraints which are addressed in the discretion of the Chairman in the role of the moderator. The moderator is charged with facilitating an efficient and orderly meeting. As the Massachusetts Supreme Judicial Court put it: “A moderator must make judgments on the spot. He must deal with disputants without the protective formality of a judicial proceeding, and he must contend with voters who are not necessarily experienced in the law or conversant with town meeting procedures.” MacKeen v. Town of Canton, 379 Mass. 514, 399 N.E.2d 22, 24 (Mass. 1980).
Most importantly, comments at meetings must not address matters that interfere with employee rights, or which are matters for executive session. Personnel matters related to reputation, discipline, character, or complaints against an employee are normally closed, although the employee may insist they be open. G.L. c. 39, § 23B(2). Dismissal proceedings are also normally closed, although the employee may insist they be open. G.L. c. 3 9, § 23B(2). Bartell v. Wellesley Housing Authority, 28 Mass. App. Ct. 306, 550 N.E.2d 883 (1990).
If citizens wish to comment on matters related to reputation, discipline, character, or complaints against an employee(s), those are normally closed to the public, and the speaker would be found out of order and asked to remain silent.
That, in a nutshell, covers the rights and responsibilities surrounding citizen participation in government meetings. Please share any comments you may have by posting below. I have included some links to other cases from around the country on this topic that may be of interest to you:
- Piscottano v. Town of Somers, 396 F. Supp. 2d 187, 193-94 (D. Conn. 2005) (resident concerned about town official’s behavior prevented from speaking during public comment portion of Board of Selectmen meeting);
- Mesa v. White, 197 F.3d 1041, 1043 (10th Cir. 1999) (former county commissioner prevented from speaking during public comment period of county commission meeting);
- Scroggins v. City of Topeka, 2 F. Supp. 2d 1362, 1365-66 (D. Kan. 1998) (resident cut off while attempting to criticize mayoral appointment during public comment portion of city council meeting).
