We have written several articles over the years about the Texas Open Meetings Act (Texas Government Code section 551.001, et seq.), but we continue to see problems arising from the section of the meeting called “open forum” or “public comment,” or whatever nomenclature is selected by the local districts for giving the public the opportunity to speak during a board meeting.  This article focuses on what is required and what is prohibited during public comment parts of board meetings.

To begin with, there is no requirement under Texas law that mandates school boards to include a public comment section during board meetings.  Most districts choose to include such a section for political reasons, and it is easy to see that it is good public relations to give the public a perceived opportunity to speak to the school board on a regular basis.  However, there is also a mandatory grievance process available to the public, which is discussed below.

Once a board has determined it desires a public comment section at their meetings, the next decision is whether or not the board wants public comment at every meeting. Unless the board has adopted a policy requiring public comment at all meetings, the board may choose to limit public comment to regularly scheduled meetings if it chooses, or any other variation. When a board meets for a single purpose, such as to view architect designs, evaluate the superintendent, or hold a nonrenewal hearing, the board may choose not to include public comment.  If the board were to permit comment at all meetings, it might choose to limit comment at special meetings to those subjects that are posted for that meeting.

Districts vary with when they entertain public comment during meetings almost as much as they vary what they call it on the agenda. Some boards prefer all public comment at the beginning of the meeting.  Others place it at the end, after the board has completed its business.  Still others look at the topic about which the person intends to speak; if it is an agenda item, the person  speaks when the agenda item comes during the meeting and, if not, the person speaks with other commenters either at the beginning or end of the meeting.  There is no wrong answer here; it is the preference of the board.

The length for public comments is another decision for the board.  Five minutes per presentation? Fifteen minutes per topic?  Thirty minutes maximum for public comment?  That is all left to the decision of the board.  However, the board cannot limit the duration for one comment based upon the content of the speech (in other words, 5 minutes for negative comments while 45 minutes for positive comments).

Boards also find themselves between a rock and a hard place when the public commenter wants to attack an employee or other person publicly.  Boards cannot simply say the commenter cannot name names for negative statements, while permitting personalized accolades.  The board president may remind commenters that there is an established process for bringing complaints about school employees and that the public comment portion of the meeting is not a substitute for that process.  The president’s opening statement before public comment should also inform persons that disruptive comments will be ruled out of order by the chair and may result in the person’s removal from the meeting.

The public comment portion of the meeting is not an opportunity to get matters resolved; that is called the grievance process.  Boards want employees and members of the public to use the grievance process and let the administration have the first opportunity to fix matters. The last thing the board wants is a perception that people should come directly to them with all their concerns, as opposed to following the chain of command.

It is the non-agenda items that often place boards in a pickle.  Boards often forget that if the topic is not already on the agenda, it cannot be discussed by the board.  Regardless of how important the topic may be, boards cannot discuss the topic, and thus the matter should be left to the administration to address or include on a future board agenda.  Public comment should never be brought into closed session if it is a non-agenda topic.

The Texas Attorney General has opined on public comments, too.  The AG issued an opinion on January 31, 2007, in which he held that a board cannot attempt to have a general public comment session during a closed meeting when only a limited few members of the public are invited to participate to the exclusion of others.[1]  Further, although the AG does not believe that governmental bodies may admit into a closed meeting anyone they wish regardless of whether that person is likely to contribute to the discussion[2], it is well-established that a school board has discretion with regard to who may attend closed meetings[3], provided that certain requirements are met.  Parents, students, or patrons of a school district may still participate in a closed meeting if that person’s presence is authorized by law.[4] 

Board meetings are necessary for conducting the business of the school district.  Political expediency may necessitate public comment, but boards should be cautious not to let the tail wag the dog. 

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