Solicitor upholds open forum rulings for town council meetings
Town Solicitor Lauriston Parks has re-affirmed previous local and state advisories against comments by public officials in response to residents' comments during the open forums of public meetings. He also affirmed the correctness of town staff members in giving reports that might not be listed specifically as agenda items, but that could not be discussed without such notice by members of a public body.
Parks renewed his previous rulings in an opinion dated March 31 after repeated challenges by the public at local Town Council meetings. Parks' rulings are based on advisories by the office of State Attorney General Patrick Lynch. Linked mainly to a major 2005 interpretation, the state advisories continue to be disputed in many communities.
Parks' latest statements, and the continued position of the attorney general, are that public officials are not to make comments about statements or answer questions posed at open forums at which citizens are allowed to talk on any subject they wish.
The rulings generally provide that the officials may choose to respond by placing the item on the agenda of a future meeting or otherwise provide for answers, such as by referring it to a staff member for a follow up. No ruling provides that any official must respond on a topic raised by the public.
One town in the state has tried to meet the law by requiring its residents to give seven days notice for topics to be brought up during the open forum portion of public meeting, so that the topics can be placed on the agenda and comments and answers can be provided.
The rulings also provide that the agenda could be amended immediately, but advise that doing so is against the intent of the state's Open Meetings Act. Parks quoted that intent as "that the citizens be advised of and aware of the performance of public officials and the deliberations and discussions that go into the making of public policy."
Parks' written re-affirmation on the conduct of open forums specifies it applies to public nonstaff officials, meaning elected council members and appointed commission or committee members. In a telephone interview Monday, Parks said town employees have no restrictions on the reports they can provide at public meetings, even when the report's topic is not on the meeting's agenda. He said that in cases where staff members give reports on items not on the agenda, the members of the council, or other public body, are allowed to ask questions about the substance of the report, but they are not allowed to make comments or take action.
The issue arose when some residents challenged the legality of reports given by Town Administrator Bruce Keiser that were not on the agenda for the April 10 Town Council meeting. The residents were upset that the councilors were told not to comment on their concerns at previous meetings, but that the administrator was allowed to comment and report on topics not on the agenda at that meeting.
Interpretations of the open forum portion of public meetings continue to be a hot point for challenges and criticisms in many communities in the state. So far this year, the attorney general's staff has fielded 26 challenges, compared to nine the previous year and 20 during all of 2004. The latest advisory deals with a councilman in Lincoln using an open forum to deliver a statement on a non-agenda item.
When the controversial state advisory was first announced in late 2005, Town Solicitor J. William W. Harsch criticized Lynch and his staff, calling the attorney general's ruling "judicial overkill" and "a gag order." Harsch said then that the law needs to provide clearly for an exchange of comments, while preserving the need for notification before any action is taken. He recommended following the ruling while working to clarify the law. Harsch recently stepped aside from some of his town solicitor's duties as he begins to campaign against Lynch for the attorney general's seat in the November elections.
Parks reaffirmed the ruling he gave in mid-2005 when Lynch's office faulted the procedures of the East Greenwich council in making commission appointments, with notice of interviews for the appointments but not notice that the appointments would be made at the same session. The citation was upheld by the state Supreme Court as a violation of the state's Open meetings Act.
Parks said the law provides that the council could amend its agenda to add items "for informational purposes only or to refer the matter," but the council could not for action. He nonetheless added, "In my opinion, a public body should not add items to its agenda during the meeting for the purpose of engaging in discussion with members of the public during an open forum section of a meeting."
Existing open forum rules in Jamestown are that any person who registers to speak is allowed five minutes. Those who ask to speak without advance registration are allowed three minutes each to state their position. Councilors had allowed rather free-flowing, somewhat unstructured forums in the past, sometimes becoming involved in the discussions or asking questions. Their response at most meetings in the past year has been limited to "Thank you for your comments."