From the Hotline

By Teri Henning
Pennsylvania Newspaper Association

Q: Under the Sunshine Act, can an agency restrict public comment to agenda items only?

A: No. A blanket policy that restricts comment in this way is overly restrictive and is inconsistent with the requirements of the Sunshine Act.

The Sunshine Act requires agencies to allow residents and taxpayers a “reasonable opportunity” to comment on “matters of concern, official action or deliberation which are or may be before the board or council.” (emphasis added). Limiting the items on which the public may comment to "agenda items only" would severely limit public comment and is overly restrictive. It also would permit the Board to completely control which items it will receive comment on -- as it could pick and choose among which business items to place on the agenda.

The public's rights under the Sunshine Act go beyond what the Board decides that it wants to hear about on a particular night. The public is expressly entitled to a reasonable opportunity to comment on matters that "may be" before the Board in the future. That being said, the Board is entitled to adopt and enforce reasonable rules on public comment. The Board could stop a member of the public from reading the telephone book, for example. The Board could also stop members of the public from using obscenities or acting in a way that significantly disrupts the meeting. Finally, the Board could place reasonable time limits on how long individuals can speak (e.g., 5 minutes).

By attempting to limit comment to "agenda items", the Board raises additional questions about its agenda practices. How far in advance of the meeting does the Board make the agenda available to the public? If the agenda is not distributed at least a few days in advance of the meeting, or if it changes at the last minute, an interested member of the public would not know whether he or she wants to address the Board or even whether he or she wants to attend the meeting.

If a resident of the community knows or expects that the board is going to be considering a particular issue in the future, that resident has the right to tell the board what he or she thinks about the issue before the board formally considers the issue, and certainly before the board votes (or is ready to vote) on the matter. 

Finally, although an agency may take public comment at the beginning of the meeting, it must also allow public comment on a matter before taking any official action. To the extent that a "new" matter is raised in the course of a meeting, the agency must permit public comment before voting on it.

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