AG: Urbana Mayor Diane Wolfe-Marlin Violated The Open Meetings Act, Twice, In Restricting Speech –

URBANA, IL. (ECWd) –

The Illinois Attorney General’s Public Access Counselor has issued an opinion stating that the Urbana City Council, and Mayor Marlin, violated the Open Meetings Act twice when she refused to permit a member of the public to criticize public officials/employees by name during its November 9, and 16, 2020 meetings.

The complaint:

• Nov 9, 2020 – Mayor Diane Marlin used content-based restrictions to limit comments of two speakers because a decision of the Mayor’s was criticized and one speaker mentioned the names of city employees
• Nov 16, 2020 – Mayor Diane Marlin interrupted speaker by telling her she was offering an opinion, not facts, and then cut her microphone off
• The allegation in the requests for review was that the city’s public comment policy improperly imposed content-based restrictions on public comment

In their determination that Urbana violated the Open Meetings Act twice, the AG states:

• . . . such rules [for public comment] must tend to accommodate, rather than unreasonably restrict, the right to address public officials
• Even in a limited public forum like a city council meetings, the First Amendment tightly constrains the government’s power…
• However, our review of the verbatim recording indicates that Ms. Chong’s statement contained her opinions that were critical of the manner in which Ms. Mitten, a public employee, carried out her official duties: This is a matter of public concern protected by the first amendment. This office has repeatedly determined that “[w]hen criticism involves the conduct of present or former public officials in the performance of their public duties, significant latitude must be allowed.” UL Att’y Gen. PAC Req. Rev. Ltr. 39069, issued April 5, 2016, at 3 (restricting comment criticizing a public official by name impermissible); Ill. Att’y Gen. PAC Req. Rev. Ltr. 60824, issued July 10, 2018, at 4-6 (restricting comment criticizing elected officials by name in connection with public matters impermissible); Ill. Att’y Gen. PAC Req. Rev. Ltr. 51665, issued February 5, 2019, at 5-6 (restricting comment referencing a particular public official in connection with public business impermissible). 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. Unlike the plaintiff in Milestone, who obviously created a disturbance at a senior citizen center by having a “heated discussion” and wagging her finger in the face of the center’s director while threatening to sue her, the Council applied its prohibition on “abusive language” to comments that were critical but delivered in an apparently calm manner. These comments did not appear to disrupt the meeting. Although the Milestone case shows that a rule prohibiting abusive comments can be applied permissibly to regulate the manner of speech in a content-neutral way, the available information indicates that here, the Council applied its rule to prohibit Ms. Chong from completing her comment because of the content of that comment.
• Accordingly, this office concludes that the Council violated section 2.06(g) of OMA by restricting Ms. Chong’s statement during its November 16, 2020, meeting.
• This office’s review of the verbatim recording of the November 9, 2020, meeting indicates that in their statements, both Ms. Chong and Mr. Hansen criticized Mayor Marlin’s handling of her public duties. After Ms. Chong had spoken for approximately one minute, Mayor Marlin stated that it was not an appropriate time to discuss a past decision, a former Council member, or her decisions. When Ms. Chong indicated she intended to continue on the same topic, Mayor Marlin muted Ms. Chong and prohibited her from completing her statement. Mr. Hansen spoke next, raising questions about prior and current appointments to the City’s Civilian Police Review Board. Immediately before he was muted, Mr. Hansen alleged that an· individual affiliated with the Civilian Police Review Board may be following a path of dishonesty. In muting and prohibiting Mr. Hansen from completing his statement, Mayor Marlin stated that he was not allowed to talk about former City employees, and must stick to topics or issues on the agenda or general matters. She further stated that Mr. Hansen’s comments were “attacking or bullying against people who work for the City or against former employees.” Mr. Hansen was directed to complete his comments by sending an email.
• Accordingly, for the same reasons as stated above, this office concludes that the Council violated section 2.06(g) of OMA by muting Ms. Chong and Mr. Hansen at its November 9, 2020, meeting
• In accordance with the conclusions of this letter, this office requests that the Council instruct its presiding officers to refrain at its future meetings from applying its public comment rules imposing content-based restrictions to comments that do not disrupt its meetings or impede the Council from conducting orderly meetings.

We understand the Urbana City Council may be voting on an amendment to its public comment policy at its next meeting.

Similar issues are part of an Open Meetings Act lawsuit filed against the City of Urbana (here).

Read this AG determination (here) or below: