Government of the people, by the people, and for the people. Familiar terms from American History lessons. But does this phrase mean you are required to allow citizens attending municipal public meetings to speak? IT DEPENDS!
There are some types of business transacted by cities and towns that require a public hearing. For example, certain property zoning actions and applications require a public hearing.[i] It is also not unusual for federal grants available to cities and towns, such as the Community Development Block Grant (CDBG), or Homeland Security grants to require public hearings prior to award. The adoption of an annual budget also requires a public hearing.[ii] The citizens attending these types of meetings are entitled to speak.
On the other hand, there is no requirement in the Oklahoma Open Meeting Act (OMA) that citizens be allowed to address the City Council or Town Board on other matters of municipal business at a public meeting.[iii]
Some cities and towns, desiring to make local government more accessible, have instituted a practice of having an “open mic” period where attendees of the meeting can address elected officials directly on any topic not specifically listed on the Agenda.
A public body is not required to allow public comments at its meetings, either under the Act or under the First Amendment.[iv] In fact, many City Attorneys routinely advise against having a public comments agenda item primarily to avoid the risk of an Open Meeting Act violation.
The purpose of the OMA is to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems.[v] All meetings of public bodies shall be preceded by advance public notice specifying the subject matter or matters to be considered at such meeting.[vi]
The OMA requires that governing bodies tell the public not only what will be discussed but also what will be acted on. This requirement is defeated by having an “open mic” without any indication of the topic and with no notice to the rest of the public of the topic.
For those cities and towns that allow for an “open mic” forum there is a risk that Councilmembers or Board Trustees may feel compelled to respond to citizen comments, and thereby discuss and/or act on matters not on the Agenda. Any discussion or action taken by a Council or Board that was not posted 24 hours in advance of a public meeting is contrary to the OMA.
Examples of violations of the OMA with regard to a Public Hearing and a Public Comment are as follows:
Public Hearing: The City has scheduled a public hearing in two weeks for a zoning change for a developer. The developer does not want to be at the public hearing when residents show up and object. Instead, the developer comes two weeks early and under public comments wants to discuss his proposal. Citizens affected by the zoning change have a right to attend a public hearing and defend their position. The proper time and place for the developer’s comments is the public hearing. If the City Council or Town Board hears and/or acts on the zoning change in the public comments section of the meeting, this would be a violation of the OMA.
Public Comments: A citizen complains during public comments about the condition of a neighbor’s property and the Mayor directs the City Manager to look into the issue and deal with it. The person most affected by the Mayor’s directive had no notice that the topic would be discussed publicly. By discussing and taking action without notice to the public, the Mayor may have violated the OMA.
This does not mean that citizens do not get an opportunity to address their elected officials – it just means that cities and towns are not required by law to allow public comments. At the State and Federal level, there is no “open-mic.” If a citizen has a concern at the State and Federal level, they call their legislator and express support, concerns and opinions. This should be the same at the local level.
Councilmembers and Board Trustees should keep in mind that OMA violations could result in criminal liability if it is found that the OMA was “willfully violated.”[vii]
For cities and towns that continue to have “open mic” on the Agenda, the Board or Council should be diligent in making sure no responses from elected officials are allowed and no action is taken by elected officials in response to issues brought up during the “open mic.”
DISCLAIMER: OMAG attorneys have sought to keep updating this webpage with the most up-to-date information possible. OMAG members seeking legal advice should be aware that there may not be clear-cut answers on some of the issues. OMAG offers this guidance to help your municipality make informed decisions about policies and procedures, directly or indirectly until some of the issues can be decided by the Legislature or the Courts. If you have questions or concerns about the information contained in these articles, please email one of the attorneys in the OMAG Legal Department (see https://www.omag.org/legal-services for contact information).
[i] 11 O.S. §§43-104, 106
[ii] 11 O.S. §17-208
[iii] 2002 OK AG 44 and 1998 OK AG 45 and Minn. Bd. for Cmty. Coll. v. Knight, 465 U.S. 271, 284 (1984), (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.)
[iv] 2002 OK AG 44
[v] 25 O.S §302
[vi] 2020 OK AG 44 and “The Act is designed to ‘encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems.’ 25 O.S.2001 §302. Because the Act was enacted for the public's benefit, it is to be construed liberally in favor of the public. I.A.F.F. Local 2479 v. Thorpe, 1981 OK 95, 632 P.2d 408. The Act serves to inform the citizenry of the governmental problems and processes by informing them of the business the government will be conducting. Advance notice to the public, via agendas, must 'be worded in plain language, directly stating the purpose of the meeting ... [and] the language used should be simple, direct and comprehensible to a person of ordinary education and intelligence.’ Andrews v. Independent School District No. 29 of Cleveland County, 1987 OK 40, 737 P.2d 929. Wilson v. City of Tecumseh, 2008 OK CIV APP 84, ¶10
[vii] See Okmulgee County Rural Water Dist. No. 2 v. Beggs Public Works Authority, 2009 OK CIV APP 51, ¶15 That said, "[a]ny action taken in willful violation of [OMA] shall be invalid." 25 O.S. §313. For purposes of §313, "[w]ilfullness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act." Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶14, 701 P.2d 754, 761; In the Matter of Order Declaring Annexation Dated June 28, 1978, 1981 OK CIV APP 57, ¶29, 637 P.2d 1270, 1275. (Emphasis added.) Indeed, "the term 'willful' . . . include[s] 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[,] [and] . . . includes agency action which exceeds the scope of action defined by the notice." Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶10, 637 P.2d 902, 904. So, when a public body takes action without proper OMA notice, the action is invalid. In the Matter of Annexation, 1981 OK CIV APP 57, ¶¶30, 32, 637 P.2d at 1275; Haworth Bd. of Ed., 1981 OK CIV APP 56, ¶14, 637 P.2d at 904.)
