The Public Access Counselor has determined that the Urbana City Council violated the Open Meetings Act when it muted a citizen during public comment because she criticized a decision made by the Mayor, and when the Council muted another speaker for being critical of city employees by name.   The City Council had previously adopted rules for public comment which included provisions governing public comment regarding “respect for others” and prohibiting “ridicule”, “personal attacks” and “abusive” language.  The rules defined “abusive” to include “derogatory language which would demean the dignity of an individual or which is intended to humiliate, mock, insult or belittle an individual”.  The Public Access Counselor concluded that the actions of the Urbana City Council and Mayor restricting public comment criticizing public officials by name in connection with public matter is a violation of the Open Meetings Act and that when criticism involves the conduct of present or former public officials in the performance of their public duties, significant latitude must be allowed to the speaker. The Public Access Counselor noted that without further, actual evidence of disruption to a meeting, the mere criticism of public officials by name cannot be prohibited by the public rules of a public body.

A full copy of this Decision of the Public Access Counselor is available at:

Public Access Counselor Decision – 2021 Ill. Att’y Gen. PAC Req. Rev, Ltr., 65871, 65961, 66133  (March 16, 2021)

A detailed summary of this Decision is set forth below.

SUMMARY OF PUBLIC ACCESS COUNSELOR DECISION

2021 Ill. Att’y Gen. PAC Req. Rev, Ltr., 65871, 65961, 66133  (March 16, 2021)

BACKGROUND

Two persons (MC and MK) attending public meetings of the Urbana City Council (the “Council”) complained that the Council violated the Open Meetings Act.  MC stated that the Council muted her after one minute of speaking because she criticized a decision made by the Mayor, and that the Council also muted another speaker for mentioning the names of city employees. MK also complained that the Council’s rules for public comment at virtual meetings improperly impose content-based restrictions on public comment. The Council explained that MC was muted after she was told that she was offering opinions rather than facts.  

When MC was muted, she was expressing her opinions about the City Administrator’s questionable oversight of the civilian police review process.  MC spoke for two minutes and 40 seconds when a Council member interrupted her to say MC was “out of order”.  The Council member did not indicate what if any aspect of the Council rules for public comment had been violated.  Before being interrupted, MC asked whether the City Administrator, Carol Mitten, had lied or covered up the actual reason for the cancellation of a police hearing.  At the time of the interruption, the Council told MC to be respectful and allowed her to continue her comments.  MC then changed her focus to a proposed ordinance amendment, expressing her opinion on what MC felt Ms. Mitten’s real purpose was in proposing the amendments. The Council interrupted MC again at that point admonishing her to try to limit her remarks to facts.   When MC responded she was stating facts, and described something as a “terrible move,” the Council interrupted MC to advise MC that those were opinions. Following that interruption, the Council muted MC’s audio, although she had not spoken for 4 minutes at that point.  MC then filed a request to review these actions of the Urbana City Council with the Office of the Illinois Attorney General, Public Access Counselor.

At a subsequent meeting, MC and MK  were interrupted and muted for criticizing and naming city employees and officials in their statements during the public comment session of a Council meeting.  

MC and MK both criticized Mayor Marlin’s handling of her public duties.  MC was cut off after speaking for approximately a minute when the Mayor stated that it was not an appropriate time to discuss a past decision, a former Council member, or her decisions. When MC said she intended to continue, her audio was muted.   MK spoke next, questioning prior and current appointments to the City’s Civilian Police Review Board.  When MK stated that a person affiliated with the Civilian Police Review Board may be dishonest, he was muted, with the Mayor explaining that MK was not allowed to talk about former City employees, and must stick to topics or issues on the agenda or general matters. The Mayor stated that MK’s comments served to improperly attack or bully people who work for the City or were former employees. MK was told he could complete his comments by sending an email. 

The City of Urbana responded to the Public Access Counselor that it determined to interrupt MC and to shut off her audio because her comments were an abusive personal attack on Carol Mitten, the City Administrator.  The Council also contended MC and MK made statements about specific public officials that were abusive, harassing, and defamatory, all prohibited by the Council rules for public comment.   The City noted that its rules for public comment authorized the Council to shut off MC’s audio based on her comments, pointing out that MC was allowed to express her opinions and criticisms, but that she was advised to avoid abusive personal attacks on any person by name.   The City contended MC violated the Council’s public comment rules prohibiting abusive language when she made the following comments:

• “Can we trust the Urbana Police Department under Chief Seraphin’s leadership[?]- * * * Chief Seraphin should immediately issue a formal press release acknowledging the misconduct[.]”
• “Carol Mitten made some rather bold claims about the complaints and appeals costing 42,000 and 122,000. Carol Mitten then proceeded to say, quote, unquote, we do not track the number of  hours that we spend. Gosh, if I were to claim in public, that  something costs $100,000, like what Carol Mitten did, I had better bring my receipts. Regarding Carol Mitten’s CPRB presentation on October 26th, I’m still curious why Mayor Marlin told the public that the scheduled appeal hearing was canceled due to the appellant and CPRB members having scheduling problems. Did Carol Mitten lie to Mayor Marlin about the actual reason? Did Carol. Mitten try to cover up the reason that the hearing was canceled?  Because Mitten herself did not follow procedure.”
• “It’s concerning that Carol Mitten believes she’s exempt from the procedures mandated by CPRB ordinance.”

URBANA CITY COUNCIL RULES FOR PUBLIC COMMENT

The Urbana City Council adopted rules governing public comment at its meetings.  The rules established the following relevant provisions relative to public comment at meetings:

• Any speaker has 4 minutes for their comments.
• Any member of the public will be permitted to provide input on any matter listed on the agenda or on any other matter of public concern.
• All public comments should be addressed to the public body as a whole.
• In order to maintain reasonable decorum at a meeting, the presiding officer of the meeting shall have the authority to provide a verbal warning to a speaker who uses abusive, harassing, threatening, or defamatory language or who engages in disorderly conduct that disrupts, disturbs or otherwise impedes the orderly conduct of a meeting. If the speaker refuses to cease such remarks or conduct after being warned by the presiding officer, the presiding officer shall have the authority to mute the speaker’s microphone and/or video presence at the meeting.  The speaker may send the remainder of their remarks via email to the public body.
• Written comments are allowed per the public notice for each meeting.

The Council Public Input Guidelines for public comment go on to state:

• Protocol for Public Input is one of respect for the process, and respect for others. Ridicule, obscene or profane language, lack of respect for others, and personal attacks are not acceptable behavior.  Public Input shall not be used to air personal grievances.   Speakers should address all comments to the public body as a whole and not to individual members or City staff.
• The presiding officer of the meeting shall have the authority to provide a verbal warning to a speaker who uses abusive, harassing, threatening, or defamatory language, or who engages in disorderly conduct that disrupts, disturbs, or otherwise impedes the orderly conduct of a meeting. If the speaker refuses to cease such remarks or conduct after being warned by the presiding officer, the presiding officer shall have the authority to mute the speaker’s microphone and/or video presence at the meeting.
• “Abusive” is defined as “harsh, violent, profane or derogatory language which would demean the dignity of an individual or which is intended to humiliate, mock, insult or belittle an individual.”

ILLINOIS ATTORNEY GENERAL REVIEW AND DETERMINATION

The PAC accepted MC’s complaint and initiated this investigation to address the question of whether  the Council applied its rules for public comment and its definition of “abusive” to impermissibly restrict MC’s statutory right to address public officials at a public meeting under section 2.06(g) of the Open Meetings Act (“OMA”).

The Open Meetings Act (“OMA”) provides:  “[a]ny person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.”  The Illinois Attorney General, Public Access Counselor (“PAC”) has made it clear under OMA that a public body must establish and record rules and can only restrict public comment pursuant to its rules. (Referencing Ill. Att’y Gen. Pub. Acc. Op. No. 14-009, September 2, 2014).

The PAC confirmed that a public body can promulgate reasonable “time, place and manner” rules to preserve order and decorum at its meetings, noting that such rules must tend to accommodate, rather than to unreasonably restrict, the right to address public officials. In establishing such rules, any content based rules must serve a compelling state interest and be narrowly drawn to achieve that purpose.”). Rules adopted to govern the decorum at meetings can only regulate conduct that is “actually disturbing or impeding a meeting.”   The PAC noted that a speaker could be deemed to improperly disrupt a Council meeting by speaking too long, by being unduly repetitious, or by extended discussion of irrelevancies. The meeting is disrupted because the Council is prevented from accomplishing its business in a reasonably efficient manner and such conduct could interfere with the rights of other speakers.

The PAC emphasized however, that comments during a city council meeting which pertain to matters of public concern are protected by the first amendment to the United States Constitution even if the speaker’s “motive in commenting * * * could be an insensitive, mean spirited, personal attack[.]  That PAC confirmed its established doctrine that OMA does not it would be illogical to construe OMA as permitting a public body to impose does not permit a public body to apply public comment rules that are susceptible to overbroad and arbitrary application to comments that do not actually disrupt a public meeting.  Ill. Att’y Gen. PAC Req. Rev, Ltr. 39069, issued April 5, 2016 (finding public body violated OMA by imposing rule that prohibited “personal attacks against others” or “rude or slanderous remarks”).

As noted above, the Council characterized Ms. Chong’s comment as an “abusive personal attack” on the City Administrator, and provided this office an underlined transcript identifying the allegedly abusive parts of the comment. The Council’s response to this office does not contain any description of the manner in which Ms. Chong delivered her comments, or describe any disruption that occurred at the meeting while Ms. Chong was delivering her comments. Based on this office’s review of the verbatim recording of the November 16, 2020, meeting, Ms. Chong’s comments did not create a disturbance or otherwise interfere with the efficiency of the Council’s meeting. The recording indicates that Ms. Chong read a statement in a calm manner and, even when interrupted by members of the Council, she calmly attempted to continue with her statement. In reviewing the transcript of Ms. Chong’s comments along with the Council’s definition of “abusive,” this office notes that the comments did not contain apparent violent or profane language. Therefore, it appears the Council must have determined Ms. Chong’s comments were abusive because they contained “harsh * * or derogatory language which would demean the dignity of an individual or which is intended to humiliate, mock, insult or belittle an individual.”

The PAC reviewed the recording of the Council meeting and concluded the following:

• MK’s opinions critical of the manner in which Ms. Mitten, a public employee, carried out her official duties expressed during public comment were matters of public concern protected by the first amendment.
• When criticism involves the conduct of present or former public officials in the performance of their public duties, significant latitude must be allowed by the public body.
• Based on the available information, the Council applied its public comment rules to mute Ms. Chong because she criticized, by name, a public employee for the manner in which she carried out her public duties and restricting comment criticizing elected officials by name in connection with public matters is impermissible
• The Council applied its prohibition on “abusive language” to comments that were critical but delivered in a calm manner. The comments did not appear to disrupt the meeting.
• Despite their critical comments, both MC and MK remained calm during the meeting in addressing Mayor Marlin and the Council and neither speaker caused a disturbance.

The PAC concluded that the Council violated OMA by muting MC and MK at its meetings.

2021 Ill. Att’y Gen. PAC Req. Rev, Ltr., 65871, 65961, 66133 issued March 16, 2021

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