©1998 American Institute of Parliamentarians - Republished by permission.

Many school boards and other public bodies are uncertain how to receive comments from the general public concerning their personnel. Under open meetings laws in many states, public bodies generally may not consider anything not on an advance agenda. Many also believe all personnel matters must be discussed in closed sessions. What if a member of the public makes comments before a board critical of personnel? Can a brief response be given? Should they silence the speaker or insist it be discussed in a future closed session?

A member of the public has a right of free speech in an open forum, which a public body creates by inviting public comments. But don't public employees have a right to privacy in personnel affairs? A look around the U.S. shows the issue of public criticism of personnel in open meetings has become a widespread controversy.

George Dunham, Trustee for the Chicago suburb of Schaumberg, says their Board is like most public bodies: "Public comment time is not required, but the people expect it." Their Board also hosts monthly informal coffees entirely devoted to public input. "The whole point," Dunham says, "is to make it easier for people, not harder."

Victoria Baca attempted to criticize a superintendent and principal at a May 1996 Moreno Valley, California School Board meeting. The Hispanic activist, former school board candidate, and parent was warned that she could not mention employees by name except in a closed session. When she continued, she was physically removed from the meeting by a deputy sheriff.

In California, public comment time is required by law. A federal court held that in such a public forum, Baca's constitutionally-protected right of free speech prevailed against a prior restraint on content, and over any privacy or liberty interest of a public employee. The Court ruled that comments may be limited to subject matter under the jurisdiction of the Board, but the Board may not then limit the content of views expressed.

The Court held that as an employer, the District had an interest in protecting employee privacy. But the District had a compelling state interest in its role as a governmental entity required to allow public comment in its meetings. Employees' rights were outweighed by the First Amendment guarantee of uncensored free speech.

In February 1997, San Diego Vista School District residents Margaret O'Neill and Nancy Leventhal were cut off while attempting to question the performance of the District's Superintendent. Board President David Hubbard stopped both women and threatened to close the meeting if public criticism persisted.

When the ACLU filed suit on behalf of O'Neill and Leventhal, the Vista Board paid a settlement and attorney's fees. Plaintiffs' attorney Guylyn Cummins commented, "I found it extremely egregious that the Board would not allow criticism of public employees -- especially high ranking employees like the Superintendent of a public school system -- at public school board meetings by parents and other concerned citizens."

"At one point, the criticism ban was invoked as to elected Board members as well," Cummins explained. "The Board essentially said that concerned citizens could make laudatory or neutral comments, but could not criticize. The Court found it to be a content-based, viewpoint-discriminatory ban on speech which could not survive constitutional scrutiny."

Cummins added, "There is no principle more basic to our constitutional democracy than the right of citizens to confront their elected officials in a public forum and comment on their performance."

Shortly after free speech was ordered by the Court, the Vista Superintendent resigned amidst substantial controversy.

Activist Joan Coe of Simsbury, Connecticut, has been described by the Hartford Courant as a "gadfly."1 But her attorney praises her as a "public-spirited citizen," and one board member calls her "an asset and a tireless investigator who helps keep the concept of an open forum alive."

The former city employee and substitute teacher has already filed two suits against the Simbury School Board -- for open records and free speech in board meetings. Coe says she was once arrested for "reading a public record before a public meeting of a public body." That incident involved reading drunken driving charges filed against a student.

On September 10, 1996, the Simsbury Board abruptly adjourned during Coe's criticism of the Superintendent. (The Board has since shelved a proposal to cut off public comments altogether.) When Coe sued, the Board offered to settle. Coe refused unless the Board agreed to maintain public comments on their agenda.

Far from setting any precedent, the federal judge praised Coe's efforts, and in ruling against Coe's petition simply said she should have tried harder to work things out with the Board before going to court.

"The Board wants a good image before the cameras to help property values in the District," Coe said. "They deter public participation which could actually benefit schools by making them more accountable."

In Fayette County, Georgia, The Citizen newspaper says Georgia's "Sunshine Laws" are in practice "more like suggestions."2 In December 1997, the Fayette County School Board allegedly violated the Open Meeting Law for the third time in one year by meeting in the home of the Board President without public notice.3 In Georgia, advance public notice of a meeting is required, but an agenda is not required until afterward.

Tyrone parent Joy Belyeu and other members of two concerned parents groups have recently clashed with the Fayette Board. After criticizing the Superintendent, Belyeu was required to finish her remarks in a closed session.

Georgia Press Association attorney Jim Ellington says it is a violation of Georgia's Open Meeting Act to silence a statement made in a public hearing, then separate the complaining party in a closed session.4

Schools attorney Sarah Murphy disagrees: "Board deliberations about disciplinary actions or employee evaluations should be considered in private to protect the rights of the employee."5 But does criticism by a member of the public constitute "board deliberation?"

Murphy says most school attorneys disagree with a July 1995 unofficial opinion from Georgia's Attorney General. That ruling stated, "A school board may not close to the public any meeting devoted to the airing of grievances about school personnel by interested members of the public." The ruling went on to say "evidence or argument presented to the board must be held in an open meeting," while "deliberation or discussion by the board" may be in closed session.6

In Pennsylvania, two cases merit attention: When Bob Kircher demanded the resignation of a bankrupt board member, the Brentwood School Board had him removed by police. Meanwhile in Edgewood, the Woodland Hill Citizens for Quality Education complained about a board policy restricting public comment. Both Edgewood and Brentwood repealed their policies restricting public criticism of personnel after the ACLU threatened action. Pittsburg ACLU attorney Vic Walczak remarked, "Both defendants rolled over quite quickly after receiving our letters."

Without question this is a difficult issue. Personnel expect privacy and due process. Media representatives believe they should be able to hear citizen comments to public officials. Board members are reluctant to make any comments concerning items not on their agendas, even in response to criticism.

In many states open meetings laws require advance agenda. Under such requirements, officials responding to public comments may fear straying into illegal consideration of topics not on such agenda. Perhaps such laws could be amended to allow brief responses from officials. Under California's Brown Act, members of body or staff may briefly respond to statements, ask questions for clarification, make brief announcements, or make brief reports on their own activities. They may also refer items to staff or other resources for more information, request staff to report to the body at a subsequent meeting, or direct staff to place matters on future agenda.7

Finally, all involved in such controversies may do well to remember the principle stated succinctly in the Brown Act's public policy statement:

"The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.8