Are Public Comments Required at Public Meetings?

Government of the people, by the people, and for the people.  Familiar terms from American History lessons.  But does this phrase mean you are required to allow citizens attending municipal public meetings to speak?  IT DEPENDS! 

There are some types of business transacted by cities and towns that require a public hearing.  For example, certain property zoning actions and applications require a public hearing.[i]  It is also not unusual for federal grants available to cities and towns, such as the Community Development Block Grant (CDBG), or Homeland Security grants to require public hearings prior to award.  The adoption of an annual budget also requires a public hearing.[ii]  The citizens attending these types of meetings are entitled to speak. 

On the other hand, there is no requirement in the Oklahoma Open Meeting Act (OMA) that citizens be allowed to address the City Council or Town Board on other matters of municipal business at a public meeting.[iii]

 Some cities and towns, desiring to make local government more accessible, have instituted a practice of having an “open mic” period where attendees of the meeting can address elected officials directly on any topic not specifically listed on the Agenda. 

A public body is not required to allow public comments at its meetings, either under the Act or under the First Amendment.[iv] In fact, many City Attorneys routinely advise against having a public comments agenda item primarily to avoid the risk of an Open Meeting Act violation.

The purpose of the OMA is to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems.[v] All meetings of public bodies shall be preceded by advance public notice specifying the subject matter or matters to be considered at such meeting.[vi]

The OMA requires that governing bodies tell the public not only what will be discussed but also what will be acted on. This requirement is defeated by having an “open mic” without any indication of the topic and with no notice to the rest of the public of the topic. 

For those cities and towns that allow for an “open mic” forum there is a risk that Councilmembers or Board Trustees may feel compelled to respond to citizen comments, and thereby discuss and/or act on matters not on the Agenda.  Any discussion or action taken by a Council or Board that was not posted 24 hours in advance of a public meeting is contrary to the OMA. 

Examples of violations of the OMA with regard to a Public Hearing and a Public Comment are as follows:

Public Hearing:  The City has scheduled a public hearing in two weeks for a zoning change for a developer. The developer does not want to be at the public hearing when residents show up and object.  Instead, the developer comes two weeks early and under public comments wants to discuss his proposal. Citizens affected by the zoning change have a right to attend a public hearing and defend their position. The proper time and place for the developer’s comments is the public hearing.  If the City Council or Town Board hears and/or acts on the zoning change in the public comments section of the meeting, this would be a violation of the OMA. 

Public Comments:  A citizen complains during public comments about the condition of a neighbor’s property and the Mayor directs the City Manager to look into the issue and deal with it. The person most affected by the Mayor’s directive had no notice that the topic would be discussed publicly. By discussing and taking action without notice to the public, the Mayor may have violated the OMA.

This does not mean that citizens do not get an opportunity to address their elected officials – it just means that cities and towns are not required by law to allow public comments.  At the State and Federal level, there is no “open-mic.”  If a citizen has a concern at the State and Federal level, they call their legislator and express support, concerns and opinions.  This should be the same at the local level. 

Councilmembers and Board Trustees should keep in mind that OMA violations could result in criminal liability if it is found that the OMA was “willfully violated.”[vii] 

For cities and towns that continue to have “open mic” on the Agenda, the Board or Council should be diligent in making sure no responses from elected officials are allowed and no action is taken by elected officials in response to issues brought up during the “open mic.”

DISCLAIMER:  OMAG attorneys have sought to keep updating this webpage with the most up-to-date information possible. OMAG members seeking legal advice should be aware that there may not be clear-cut answers on some of the issues. OMAG offers this guidance to help your municipality make informed decisions about policies and procedures, directly or indirectly until some of the issues can be decided by the Legislature or the Courts. If you have questions or concerns about the information contained in these articles, please email one of the attorneys in the OMAG Legal Department (see https://www.omag.org/legal-services for contact information).                                                                       

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[i] 11 O.S. §§43-104, 106

[ii] 11 O.S. §17-208

[iii] 2002 OK AG 44 and 1998 OK AG 45 and Minn. Bd. for Cmty. Coll. v. Knight, 465 U.S. 271, 284 (1984), (Policymaking organs in our system of government have never operated under a constitutional constraint requiring them to afford every interested member of the public an opportunity to present testimony before any policy is adopted.)

[iv] 2002 OK AG 44

[v] 25 O.S §302

[vi] 2020 OK AG 44 and “The Act is designed to ‘encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems.’ 25 O.S.2001 §302. Because the Act was enacted for the public's benefit, it is to be construed liberally in favor of the public. I.A.F.F. Local 2479 v. Thorpe, 1981 OK 95, 632 P.2d 408. The Act serves to inform the citizenry of the governmental problems and processes by informing them of the business the government will be conducting. Advance notice to the public, via agendas, must 'be worded in plain language, directly stating the purpose of the meeting ... [and] the language used should be simple, direct and comprehensible to a person of ordinary education and intelligence.’ Andrews v. Independent School District No. 29 of Cleveland County, 1987 OK 40, 737 P.2d 929. Wilson v. City of Tecumseh, 2008 OK CIV APP 84, ¶10

[vii] See Okmulgee County Rural Water Dist. No. 2 v. Beggs Public Works Authority, 2009 OK CIV APP 51, ¶15 That said, "[a]ny action taken in willful violation of [OMA] shall be invalid." 25 O.S. §313. For purposes of §313, "[w]ilfullness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act." Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶14, 701 P.2d 754, 761; In the Matter of Order Declaring Annexation Dated June 28, 1978, 1981 OK CIV APP 57, ¶29, 637 P.2d 1270, 1275. (Emphasis added.) Indeed, "the term 'willful' . . . include[s] any act or omission which has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting[,] [and] . . . includes agency action which exceeds the scope of action defined by the notice." Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶10, 637 P.2d 902, 904. So, when a public body takes action without proper OMA notice, the action is invalid. In the Matter of Annexation, 1981 OK CIV APP 57, ¶¶30, 32, 637 P.2d at 1275; Haworth Bd. of Ed., 1981 OK CIV APP 56, ¶14, 637 P.2d at 904.) 

Medical Marijuana - Regulatory Update - January 6, 2020

The regulatory framework within which medical marijuana is allowed in Oklahoma has taken shape in the 2019 legislative session after the voters of the state passed State Question 788 (SQ788) in the summer of 2018.  In August 2018, OMAG provided information on its website based on the regulatory efforts of the State Department of Health and others.  These attempts, through regulation, to add details to SQ788 were met with much opposition resulting in some of the earlier efforts being withdrawn.  Then a working group of state legislators and others began meeting in the fall of 2018 to discuss the parameters of legislation that could be sponsored and supported to fill in some of the unknown gaps in the regulatory framework for medical marijuana in the State of Oklahoma. 

The 2019 legislative session resulted in the passage of House Bill 2612, the Oklahoma Medical Marijuana and Patient Protection Act, more commonly called the “Unity Bill”, Senate Bill 1030, Senate Bill 31, Senate Bill 162, and House Bill 2601 that provided additional clarity.  The provisions for these bills are codified in the Oklahoma Medical Marijuana Act - 63 Okla. Stat. §420 through §427; and the Oklahoma Medical Marijuana and Patient Protection Act - 63 Okla. Stat. §427.1 through §427.23.   Those provisions, collectively, contain the following parameters:

• State issued patient or caregiver license only.  Municipal and county governing bodies may not enact medical marijuana guidelines which restrict or interfere with the rights of a licensed patient or caregiver to possess, purchase, cultivate or transport medical marijuana within the legal limits set forth in Oklahoma Medical Marijuana Act. 63 Okla. Stat. §420.  Counties, Cities, or towns may not require patients or caregivers to obtain permits or licenses in addition to the state-required licenses provided herein.

• Requires licensed physician recommendation. Only licensed Oklahoma allopathic, osteopathic and podiatric physicians may provide a medical marijuana recommendation for a medical marijuana patient license.  A physician signing an application is not required to be Board Certified.

• No imprisonment – cite and release.  Persons eligible to be in possession of up to 1.5 ounces of marijuana but are not in possession of a state-issued medical marijuana license shall be punishable by a fine of not more than $400, but not subject to imprisonment for the offense.  Officers are authorized to cite offenders and then release them upon their own recognizance to appear later in court in certain circumstances.

• Caregiver must hold patient license to use.  A marijuana caregiver has the same rights of a medical marijuana patient license holder to possess marijuana, except for use, unless the caregiver also has a medical marijuana patient license.

• Patient or caregiver license holder not subject to prosecution. A medical marijuana patient or caregiver in actual possession of a medical marijuana license shall not be subject to arrest, prosecution or penalty in any manner or denied any right, privilege or public assistance, under state law or municipal or county ordinance or resolution including without limitation a civil penalty or disciplinary action by a business, occupational or professional licensing board or bureau, for the medical use of marijuana in accordance with this act.

• Municipal regulatory authority recognized. For issuance of a license or permit from the State, all relevant local licenses and permits must be issued by the municipality, including but not limited to, an occupancy permit or certificate of compliance.

  • A licensed medical marijuana business premises shall be subject to and responsible for compliance with applicable provisions for medical marijuana business facilities as described in the most recent versions of the Oklahoma Uniform Building Code, the International Building Code and the International Fire Code, unless granted an exemption by the Authority or municipality.

• Municipal Planning and Zoning.   Municipalities may follow their standard planning and zoning procedures to determine if certain zones or districts would be appropriate for locating marijuana-licensed premises, medical marijuana businesses or other premises where marijuana or its by-products are cultivated, grown, processed, stored or manufactured.

• Zoning may not ban retail dispensaries.  No city or local municipality may unduly change or restrict zoning laws to prevent the opening within its boundaries as a matter of law of a retail marijuana establishment licensed by the State Department of Health as a medical marijuana dispensary.

• The location of any retail marijuana establishment is specifically prohibited within one thousand (1,000) feet from any public or private school entrance.

• Rights to firearms protected. A medical marijuana patient or caregiver licensee shall not be denied the right to own, purchase or possess a firearm, ammunition, or firearm accessory based solely on his or her status as a medical marijuana patient or caregiver licensee. No state or local agency, municipal or county governing authority shall restrict, revoke, suspend or otherwise infringe upon the right of a person to own, purchase or possess a firearm, ammunition, or firearm accessory or any related firearms license or certification based solely on their status as a medical marijuana patient or caregiver licensee.

• Reimbursement as medical expense not required.  A government medical assistance program shall not be required to reimburse a person for costs associated with the medical use of marijuana unless federal law requires reimbursement.

• Statutes do not require an employer, a government medical assistance program, private health insurer, worker's compensation carrier or self-insured employer providing worker's compensation benefits to reimburse a person for costs associated with the use of medical marijuana. 

• Medical marijuana licensee job protections.  No employer may refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of such applicant's or employee's status as a medical marijuana licensee; and

• No employer may refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of a positive test for marijuana components or metabolites, unless: a. the applicant or employee is not in possession of a valid medical marijuana license, b. the licensee possesses, consumes or is under the influence of medical marijuana or medical marijuana product while at the place of employment or during the fulfillment of employment obligations, or c. the position is one involving safety-sensitive job duties.

• Employers are not required to permit or accommodate the use of medical marijuana on the property or premises of any place of employment or during hours of employment;

• Statute does not prevent an employer from having written policies regarding drug testing and impairment in accordance with the Oklahoma Standards for Workplace Drug and Alcohol Testing Act, Section 551 et seq. of Title 40 of the Oklahoma Statutes.

• An applicant or employee aggrieved by a willful violation of this section shall have, as his or her exclusive remedy, the same remedies as provided for in the Oklahoma Standards for Workplace Drug and Alcohol Testing Act set forth in Section 563 of Title 40 of the Oklahoma Statutes.

• "Safety-sensitive" means any job that includes tasks or duties that the employer reasonably believes could affect the safety and health of the employee performing the task or others including, but not limited to, any of the following:

  • the handling, packaging, processing, storage, disposal or transport of hazardous materials,

  • the operation of a motor vehicle, other vehicle, equipment, machinery or power tools,

  • repairing, maintaining or monitoring the performance or operation of any equipment, machinery or

    manufacturing process, the malfunction or disruption of which could result in injury or property

    damage,

  • performing firefighting duties,

  • the operation, maintenance or oversight of critical services and infrastructure including, but not

    limited to, electric, gas, and water utilities, power generation or distribution,

  • the extraction, compression, processing, manufacturing, handling, packaging, storage, disposal,

    treatment or transport of potentially volatile, flammable, combustible materials, elements, chemicals

    or any other highly regulated component,

  • dispensing pharmaceuticals,

  • carrying a firearm, or

  • direct patient care or direct child care; and

• A "positive test for marijuana components or metabolites" means a result that is at or above the cutoff concentration level established by the United States Department of Transportation or Oklahoma law regarding being under the influence, whichever is lower.

• Smoking in Public Places and Indoor Workplaces. All smokable, vaporized, vapable and e-cigarette medical marijuana product inhaled through vaporization or smoked by a medical marijuana licensee are subject to the same restrictions for tobacco under Section 1-1521 of Title 63 of the Oklahoma Statutes, commonly referred to as the "Smoking in Public Places and Indoor Workplaces Act".

• Potential Federal impacts may be considered.  A school, or landlord, or employer can consider the status of one holding a marijuana license in relation to admission, leasing, or workplace rules based on potential impacts to the school, landlord, or employer under federal law or regulations.

There may still be additional tweaking to the Oklahoma Regulatory Framework in during the 2020 session.  Updates will be provided accordingly.

Contracts for Services Other Than Public Construction

Is a Competitive Bidding process required for purchases other that Public Construction Contracts?  The Oklahoma Competitive Bidding Act (61 O.S. 101 et seq) applies to public construction contracts and public improvements to public buildings.  Those definitions are as follows:

6. "Public construction contract" or "contract" means any contract, exceeding Fifty Thousand Dollars ($50,000.00) in amount, awarded by any public agency for the purpose of making any public improvements or constructing any public building or making repairs to or performing maintenance on the same . . . .;

7. "Public improvement" means any beneficial or valuable change or addition, betterment, enhancement or amelioration of or upon any real property, or interest therein, belonging to a public agency, intended to enhance its value, beauty or utility or to adapt it to new or further purposes. The term does not include the direct purchase of materials, equipment or supplies by a public agency, or any personal property, . . .;

Application the State Competitive bidding act to Oklahoma statutory cities and towns is specific to public construction contracts or public improvements.  Charter cities may establish their own competitive bidding processes that relate to public construction contracts or public improvements as a matter of local concern.[i] 

For all other contracts for expenditure of public monies, other legal authority should be consulted.  For example, many cities and towns have enacted local ordinances to govern the purchase of supplies, materials, professional services, and other contract services such as Codification, publication of Ordinances, purchase of insurance, hiring of consultants, architects, engineers, or attorneys.  Some cities require competitive bidding for supplies and materials.  Some cities allow the purchase of such items from vendors who are successful bidders on state purchasing contracts. 

For professional services, request for qualification processes are often used, or request for proposal processes are used.  Some specialized areas such as insurance services, bond counsel, economic development advisors, employee training consultants, etc . . . do not often lend themselves to competitive bidding processes and are more suited toward a staff negotiation and recommendation process in order to be able to match the individual city’s service needs to what can be offered by a particular consultant or service provider. 

. . .  where some other building might not; and where professional and personal services of a specialized nature are required, the municipality may better safeguard the public interest by negotiation rather than competitive bidding, because the low bidder might cause the municipality untold damage and loss. The problem is to contract with individuals who are best qualified to and who give promise of, best serving the interest of the municipality and the public.[ii]

 For city purchases, other than those specifically covered by the Oklahoma Competitive Bidding Act, each city should refer to their local ordinances and consult with their City Attorney to establish the appropriate purchasing process.

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[i] U.S. Elevator v. City of Tulsa, 1980 OK 69, 610 P.2d 791 (Okla. 1980)

[ii] Emerald Enterprises LTD v. City of Oklahoma City, 1997 OK 19, 939 P. 2d 27 (Okla. Civ. App. 1997)