Thursday, August 23, 2012

Primer on Open Meetings Law to Plymouth Town Board

This is a very excellent bit of research done by Peter Hudiburg on Open Meetings Law which he sent to the Plymouth town board, after they were acting to limit public participation. -- BH

Easy to remember short URL: / NYFOILPrimer / NYOMLPrimer1

Also, for full documentation, please see the website of the NY Committee on Open Government:

Supervisor Jerry Kreiner
Councilman Drew Piaschyk
Councilman Gary Simpson
Councilman Robert I. Brown
Councilman Lewis Somers

Plymouth Town Board
Town Hall
South Plymouth, NY 13844

Dear Supervisor Kreiner and Plymouth Town Board:

This is research I have done into the Open Meetings Law in reference to the problems that have popped up only since moving to the new Town Hall.

Inadequate space for the meeting

There was a problem of inadequate space for the meeting in May. This could have been resolved by adjourning to the larger Fire Hall just next door for that meeting or any meeting in the future where there are people left standing in the back of the room. I know of people who left early probably because they had no seat.

People cannot see or hear
The public should have the right to hear and see all proceedings of a public meeting which would include the ability to both hear and see the Councilmen free from any impediments such as an overly high dais. This problem might be resolved by supplying high chairs for the Council or by adding height to the platform behind the dais.

The public should also have the ability to both hear and see any speaker to the board. This problem could be resolved by moving the podium to the side of the room and swiveling it 90 degrees, as Dr. Katherine Beinkafner suggested at the May meeting, so that both the Council and the public can hear and see the speaker. If our Clerk, Marie, needs to get good sound of the speakers the recorder could be placed on top of the dais close to the podium or pointed toward the podium. Many towns have the clerk on the dais with them, sometimes next to the Supervisor, so that there are fewer problems with her hearing all proceedings.

As an aside, I’ve seen many meeting halls without any dais in towns far more prosperous than Plymouth. I wonder if the public was given an opportunity to review the plans for this Town Hall before it was built. I think if I had seen the plans I would have objected to having a dais at all.

Unreasonable restrictions on the press

Public's right to make audio, video, or photographic
recordings of the meetings
Placement of a camera on a tripod has been a problem for the Town Board only in the new Town Hall. Camera people were allowed to set up on the side, even toward the front as well as in the back with no problem in the Fire Hall. I don’t see that this room should require any different camera placement policy. When both Vera Scroggins and Bill Huston tried to set up on the side of this new Town Hall neither was in anybody’s way or obstructing anyone’s view. If space becomes a problem because of too many people in the room and not enough chairs and no aisles then the meeting needs to be adjourned to the larger Fire Hall next door. Placement of cameras on tripods may be up to the discretion of the Supervisor but the requirements should not be unreasonable. With the present placement of the podium the restriction to the back of the room is unreasonable. Why when there was no problem in the Fire Hall is there suddenly a problem in the Town Hall?
In addition prohibiting recorder placement on the podium is unreasonable since the recorder was in no way obstructive to anyone’s view. We have become used to seeing microphones in front of speakers all over the world for many decades now. There is no reason why Plymouth should require a microphone or recorder free podium. The Committee on Open Government has reiterated Court findings that not allowing tape recorders in a meeting is unreasonable. Camera people should have access to good sound just as Marie and just as the public should have it.

Restrictions of Public Comment
Time Allotted
Residency Requirement
Requirement to give name or adddress

Limiting public comment sessions to 30 minutes and giving precedence to local residents and taxpayers and allowing outsiders to speak only if time allows is also not in compliance with the Open Meetings Law. Even differentiating between locals and outsiders or requiring speakers or attendees to state their addresses is also not in compliance. I have found nothing on the Committee on Open Meetings website that would require an outsider to get a written proxy from a resident, as Councilman Piaschyk said or gain permission from the Board beforehand in order to speak as Supervisor Kreiner suggested. The closest thing to their interpretations is the following: it may be that a non-resident serves, in essence, as a resident’s representative, and that precluding the non-resident from speaking would be equivalent to prohibiting a resident from speaking. “in essence” does not mean literally written permission, it just means “the most significant property of a thing” according to Webster’s Dictionary or “with regard to fundamentals but not concerning details.” A synonym would be “in principle” according to

Relevant excerpts of Advisory Opinions of the Committee on Open Government based on the New York State Open Meetings Law are quoted below.

Section 103(d): Adequate space for expected numbers of attendees: Section 103(d) of the NYS Open Meetings Law was added to the Law in April of 2010: “’(d) Public bodies shall make or cause to be made all reasonable efforts to ensure that meetings are held in an appropriate facility which can adequately accommodate members of the public who wish to attend such meetings.’”
“The intent of the amendment, as expressed in the accompanying legislative memorandum, is for public bodies to hold meetings in rooms that can reasonably accommodate the number of people that can reasonably be expected to attend. For example, if a typical board meeting attracts 20 attendees, and meetings are held in a meeting room which accommodates approximately 30 people, there is adequate room for all to attend, listen and observe. But in the event that there is a contentious issue on the agenda and there are indications of substantial public interest, numerous letters to the editor, phone calls or emails regarding the topic, or perhaps a petition asking officials to take action, the new provision would require the public body to consider the number of people who might attend the meeting and take appropriate action to hold the meeting at a location that would accommodate those interested in attending, such as a school facility, a fire hall or other site, larger than the usual meeting location.

“Accordingly, if the public body can reasonably expect one or two hundred people to attend the meeting, as in your example, based on information from various media outlets and communications with the public, it would have a responsibility to take reasonable efforts to hold the meeting in a location that could reasonably accommodate the attendees.”
Ability to speak should not be limited by place of residence: “When a public body permits the public to speak, we believe that it should do so based upon reasonable rules that treat members of the public equally.

“we do not believe that a public body could validly require that those who attend or seek to attend a hearing identify themselves by name, residence or interest. In short, it is our view that any member of the public has an equal opportunity to partake in a public hearing, and that an effort to distinguish among attendees by residence or any other qualifier would be inconsistent with the law and, therefore, unreasonable.
“Moreover, people other than residents, particularly those who own property or operate businesses in a community, may have a substantial interest in attending and expressing their views at hearings held by town boards and other public bodies. Prohibiting those people from speaking, or scheduling their comments for the end of the meeting after the residents have been given an opportunity to speak, even though they may have a significant tax burden, would, in our view, be unjustifiable. Further, it may be that a non-resident serves, in essence, as a resident’s representative, and that precluding the non-resident from speaking would be equivalent to prohibiting a resident from speaking. In short, it is unlikely that a public body could validly prohibit a non-resident from speaking at a public forum based upon residency.”

#2696 ( ): “I note that §103 of the Open Meetings Law provides that meetings of public bodies are open to the ‘general public.’ As such, any member of the public, whether a resident of the District or of another jurisdiction, would have the same right to attend. That being so, I do not believe that a member of the public can be required to identify himself or herself by name or by residence in order to attend a meeting of a public body. Further, since any person can attend, I do not believe that a public body could by rule limit the ability to speak to residents only.”

Ability to hear all proceedings (including speakers to the board): Provision 100 of the Open Meetings Law: "It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants. It is the only climate under which the commonweal will prosper and enable the governmental process to operate for the benefit of those who created it."

“Based upon the foregoing, it is clear in my view that public bodies must conduct meetings in a manner that guarantees the public the ability to ‘be fully aware of’ and ‘listen to’ the deliberative process. Further, I believe that every statute, including the Open Meetings Law, must be implemented in a manner that gives effect to its intent. In this instance, the Board must in my view situate itself and conduct its meetings in a manner in which those in attendance can observe and hear the proceedings. To do otherwise would in my opinion be unreasonable and fail to comply with a basic requirement of the Open Meetings Law.”

#4292 ( ) “Although public bodies have the right to adopt rules to govern their own proceedings (see e.g., Town Law, §63 and Education Law, §1709), the courts have found in a variety of contexts that such rules must be reasonable. For example, although a board of education may ‘adopt by laws and rules for its government and operations’, in a case in which a board's rule prohibited the use of tape recorders at its meetings, the Appellate Division found that the rule was unreasonable, stating that the authority to adopt rules ‘is not unbridled’ and that ‘unreasonable rules will not be sanctioned’ [see Mitchell v. Garden City Union Free School District, 113 AD 2d 924, 925 (1985)].”

Thank you for your time and consideration in allowing all of the public equal access to both hearing and seeing all proceedings of public Town Board Meetings exclusive of Executive Sessions.

Sincerely yours,
Peter Hudiburg
Plymouth Friends of Clean Water
South Plymouth, NY 13844

Content-based prohibitions

There are federal court decisions indicating that if commentary is permitted within a certain subject area, negative commentary in the same area cannot be prohibited. It has been held by the United States Supreme Court that a school board meeting in which the public may speak is a “limited” public forum, and that limited public fora involve “public property which the State has opened for use by the public as a place for expressive activity” [Perry Education Association v. Perry Local Educators’ Association, 460 US 37, 103. S.Ct. 954 (1939); also see Baca v. Moreno Valley Unified School District, 936 F. Supp. 719 (1996)]. In Baca, a federal court invalidated a bylaw that “allows expression of two points of view (laudatory and neutral) while prohibiting a different point of view (negatively critical) on a particular subject matter (District employees’ conduct or performance)” (id., 730). That prohibition “engenders discussion artificially geared toward praising (and maintaining) the status quo, thereby foreclosing meaningful public dialogue and ultimately, dynamic political change” [Leventhal v. Vista Unified School District, 973 F.Supp. 951, 960 (1997)]. In a decision rendered by the United States District Court, Eastern District of New York (1997 WL588876 E.D.N.Y.), Schuloff, v. Murphy, it was stated that:
“In a traditional public forum, like a street or park, the government may enforce a content-based exclusion only if it is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. Perry Educ. Ass’n., 460 U.S. at 45. A designated or ‘limited’ public forum is public property ‘that the state has opened for use by the public as a place for expressive activity.’ Id. So long as the government retains the facility open for speech, it is bound by the same standards that apply to a traditional public forum. Thus, any content-based prohibition must be narrowly drawn to effectuate a compelling state interest. Id. at 46.”
In the context of the specific issues that you raised, we believe that a court would determine that the Town Board may limit the amount of time allotted to person who wishes to speak at a meeting, so long as the limitation is reasonable. Similarly, it is our view that the Town Board may limit comments to matters involving Town business or the operation of Town government and require a brief written summary of the subject intended to be discussed by a person wishing to address the Board. Requiring that a person anticipate and articulate all questions exactly, prior to the meeting, in our opinion seems excessive.
However, from our perspective, while the Supervisor presides over Town Board meetings, it is questionable whether he may validly determine unilaterally whether the subject matter of comment proposed by a person desiring to speak involves Town business. He is but one member of the Town Board and we believe that the Town Board, if necessary, should determine by means of a majority vote of its total members if there is a question or disagreement regarding whether a subject relates to Town business. We believe that the Town Board in that circumstance should determine whether the subject may be raised, rather than the Supervisor reaching a determination alone. It is also noted that §63 of the Town Law states in part that “Every act, motion or resolution shall require for its adoption the affirmative vote of all the members of the town board.”

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