18138_Authority_Feb

municipalauthorities.org | 41 Solicitor’s Corner continued from page 23. Coleman determined that § 712.1 includes only three exceptions that an agency can act on even if not listed on the agenda: (1) business relating to a real or potential emergency involving a clear and present danger to life or property; (2) business arising within 24 hours before the meeting and that is de minimis in nature and does not involve the expenditure of funds or entering into a contract or agreement; and (3) business arising during the meeting that is brought to the agency’s attention by a resident or taxpayer, which may be acted on if de minimis in nature and does not involve the expenditure of funds or entering into a contract or agreement. The school district had argued that the Act contained a fourth exception, such that an agency could amend its agenda by majority vote for any reason, unless one of those three exceptions applied. But the court disagreed and ruled in favor of the challenger. Note, this case is presently on appeal at the Pennsylvania Supreme Court, and that court recently heard oral argument from the parties on November 20, 2024. When must an agency allow public comment during a meeting? Generally, the board must provide a reasonable opportunity at each meeting for residents and taxpayers to comment on matters of concern, official action, or deliberation prior to taking official action. The board has the option to accept all public comment at the beginning of the meeting. How should we handle unruly public comment at meetings? Generally, municipal authority board meetings are considered “limited public forums,” meaning that the government can place some time, place, and manner restrictions on the public’s speech at meetings. Unfortunately, guidance from the courts is not clear. Federal courts are presently split on the question of whether a member of the public can be banned from a public meeting due to disruptive behavior. In our federal circuit, the court has held that if a court determines that the constitutional rights of a member of the public have been violated, individual elected officials, as part of the council imposing a categorical ban on a member of the public may be protected by qualified immunity in a lawsuit, but the municipality itself will not. Barna v. Bd. of Sch. Dir. of Panther Valley Sch. Dist. , 877 F.3d 136 (3d Cir. 2017). A federal court in Kansas followed the 3rd Circuit’s analysis in Hirt v. Unified Sch. Dist. No. 287 , 2019 WL 1866321 (D. Kan. April 24, 2019). Can a member of the public be ejected from a meeting? Yes, but tread carefully. Members of the public can be ejected under certain circumstances. For example, in one case the municipality was justified in ejecting an individual who was repetitive, truculent, and repeatedly interrupted the chairman. The court held that “restricting such behavior is the sort of time, place, and manner regulation that passes muster under the most stringent scrutiny for a public forum. Indeed, for the presiding officer of a public meeting to allow a speaker to try to hijack the proceedings, or to filibuster them, would impinge on the First Amendment rights of other would-be participants. We have no difficulty sustaining the decision to remove [the resident] on that basis.” Eichenlaub v. Twp. of Indiana , 385 F.3d 274 (3d Cir. 2004). But, in a more recent case, the United States Supreme Court found that a municipality improperly removed a resident from a public meeting when he was arrested after speaking against the council, finding that his arrest violated the First Amendment because it was ordered in retaliation for his earlier protected speech. Lozman v. Riviera Beach , 585 U.S. 87 (2018). The resident in that case was arrested while giving comment at a public meeting and was removed when he refused to stop speaking at the insistence of a council member. The city had argued that the arrest was due to his violation of council’s rules of procedure, but the resident proved that he was in fact arrested in retaliation for his speech.