URBANA – The Illinois Attorney General Public Access Counselor (PAC) has determined that the City of Urbana City Council violated the Open Meetings Act (OMA) at its November 9th and November 16th, 2020 meetings by unlawfully restricting members of the public from addressing the Council. The OMA indicates that violations of the act are considered a Class C misdemeanor.
At a City Council meeting on September 14th, 2020, Mayor Diane Marlin announced that she would be muting members of the public if they made “negative comments” about City staff or elected officials. In that meeting, and in several more meetings that followed, Marlin cutoff and/or muted dozens of Urbana residents for being critical of the Urbana City government. None of the comments made contained violent or profane language.
When the public voiced concerns about the legalities of the speech regulations, City Attorney James Simon argued that the new regulations are legal and supported by several Illinois Attorney General opinions and other court cases. However, upon closer review (article here), none of the examples cited by Simon actually supported the restrictions in the new public input rules. In fact, every PAC opinion cited by Mr. Simon demonstrated an OMA violation by a different public body.
The Urbana City Council proceeded to pass a new ordinance on October 14th which laid out heavy-handed speech regulations and made clear the intent of the Urbana City government to censor citizens at public meetings. The censorship became so extreme that Mayor Marlin even muted a resident for expressing opinions.
Several residents requested that the PAC review the muting incidents during public input at the November 9th and November 16th City Council meetings.
David Wesner, from law firm Evans, Froehlich, Beth and Chamley was hired by Mayor Marlin to respond on behalf of the City to the PAC request for reviews filed by residents. According to Wesner in a response letter to the PAC, Urbana resident Tracy Chong was muted and prevented from speaking because her comments were an “abusive personal attack on Carol Mitten”, the City Administrator, and that the newly passed ordinance gave the Council the authority to restrict her comments. Wesner claimed that Ms. Chong has a long history of abusive, harassing, and defamatory comments directed at specific individuals, including city officials and staff.
From their review, the PAC noted that Ms. Chong’ s statement contained her opinions that were critical of the manner in which City Administrator Mitten, a public employee, carried out her official duties. According to the PAC, this is a matter of public concern protected by the first amendment. The PAC has repeatedly determined that “when criticism involves the conduct of present or former public officials in the performance of their public duties, significant latitude must be allowed.” (I11. Att’y Gen. PAC Req. Rev. Ltr. 39069, issued April 5, 2016)
Attorney Wesner then argued that the new rules and guidelines ensure that the public body can maintain order and decorum during their meetings.
The PAC also determined that Ms. Chong’ s comments did not create a disturbance or otherwise interfere with the efficiency of the Council’s meeting. PAC’s review of the verbatim recording showed 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.” Hence, there was no evidence that it was necessary to mute Ms. Chong or other residents in order to maintain decorum.
The PAC concluded that the Urbana City Council unlawfully prevented Ms. Chong from completing her comment because of the content of that comment. PAC requested 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.