Can a city council, school board, or other Arizona public body adopt a rule that prevents individual board members from responding to comments made during a 'call to the public'?

Plain-English summary

Arizona's Open Meeting Law (OML) lets a public body hold a "call to the public" at any open meeting, where members of the public can address the body about anything within its jurisdiction. After the call wraps up, A.R.S. § 38-431.01(H) gives "individual members of the public body" three permissible responses: (1) responding to criticism, (2) asking staff to review a matter, or (3) asking that a matter be added to a future agenda. The statute is also clear about what members cannot do, namely, discuss or take legal action on the matter unless it is properly noticed for the agenda.

Representative John Kavanagh asked whether a public body can adopt a rule or practice that strips individual members of those response options entirely.

The AG said no. The statute uses "may" for the call to the public itself (the body decides whether to hold one) and "may" again for the response options (individual members decide whether and how to respond), but uses "shall not" for the discussion-and-legal-action prohibition. The AG read those word choices as deliberate: the body has discretion whether to schedule a call to the public, but once it does, the discretion to respond afterward belongs to each individual member, not to the body collectively.

A public body that has enacted a rule prohibiting members from using one or more of the three responses must rescind or modify the rule. The opinion does note one limit: a body can probably impose content- and viewpoint-neutral rules of decorum on member responses.

What this means for you

If you serve on an Arizona public body (city council, school board, fire district board, special district board, etc.)

Your individual right to respond, within the three statutory categories, comes from the OML, not from your body's bylaws. If your governing body's rules forbid you from responding to criticism, asking staff to review an issue raised in public comment, or requesting a future agenda item, those rules are inconsistent with state law per this opinion. Raise the issue with your board's attorney and ask for the rule to be revised.

When you exercise your three response options, the safe practice is:
- Address the chair or the body, not back-and-forth with the speaker (avoid creating a discussion).
- Limit yourself to (a) a direct response to criticism, (b) a request that staff look at the matter, or (c) a request to add it to a future agenda. Anything beyond those three risks crossing into prohibited "discussion or legal action."
- Do not commit the body to anything. Asking staff to review or asking for an agenda item is fine; saying "the board agrees" is not.

If you are a public body attorney drafting board rules

Audit your existing rules for any provision that bars individual members from the three permitted responses. The AG's view is that those provisions are unenforceable. You can preserve order through content- and viewpoint-neutral decorum rules (e.g., time limits on member responses, requirement to be recognized by the chair), but you cannot prospectively forbid members from responding at all.

A useful rewrite pattern: "After a call to the public concludes, individual members may, in their discretion, respond to criticism, request staff review of a matter, or request that a matter be placed on a future agenda. Members shall not discuss or take legal action on matters not properly noticed."

If you are a member of the public attending a meeting

After you finish addressing the body during the call to the public, watch the dais. Under § 38-431.01(H), individual members may respond, ask staff to investigate, or move to put the matter on a future agenda, even if no formal action can be taken at the current meeting. If you want a future agenda item, the practical move is to ask one or more members directly during your comment period to request it.

If you are a journalist or open-government advocate

The opinion is a useful citation when reporting on a public body that "doesn't respond to public comment" by policy. The AG's reading of § 38-431.01(H) is that responding (within the three statutory limits) is a choice for each elected member to make, not a choice the body can take away from them.

Common questions

Q: What's a "call to the public"?
A: It's the part of an open meeting set aside for members of the public to speak directly to the body. The OML calls it an "open call to the public during a public meeting, subject to reasonable time, place and manner restrictions, to allow individuals to address the public body on any issue within the jurisdiction of the public body." The body can decide whether to hold one and how long it lasts, but cannot restrict the topics by content or viewpoint within the body's jurisdiction.

Q: Can a public body decide not to have any call to the public?
A: Yes. The "Call to the Public Provision" in § 38-431.01(H) uses "may": discretionary. A body can choose not to hold a call to the public at all. What a body cannot do is hold one and then forbid its own members from making the three permitted responses afterward.

Q: What are the three permitted responses, again?
A: After the call to the public concludes, individual members may (1) respond to criticism made by speakers, (2) ask staff to review a matter raised, or (3) ask that a matter be put on a future agenda. The members cannot discuss or take legal action on the matter unless it is on the agenda already.

Q: Why doesn't responding violate the OML's noticing requirements?
A: Because § 38-431.01(H) explicitly authorizes those three responses and explicitly prohibits discussion and legal action without proper notice. The legislature carved out a narrow space for response that does not require pre-meeting notice. Step outside that space, and the OML's noticing requirements take over.

Q: Can the body stop a member who is going on too long, or being abusive?
A: Probably yes. Footnote 2 says it is "likely that a public body could require individual members to follow content- and viewpoint-neutral rules of decorum when responding to public comments." Time limits, requirement to be recognized, and prohibitions on personal attacks would generally be permissible. What would not be permissible is a rule banning all responses or banning responses on certain topics.

Q: What if the body's rule says no responses during the call to the public?
A: That part is consistent with the OML. The statute says responses come "[a]t the conclusion of an open call to the public," not during it. A body can require members to wait until the speakers are done before exercising any of the three responses. What the body cannot do is forbid responses entirely.

Q: What's the remedy if a body has an inconsistent rule on the books?
A: The opinion says the body should "rescind or modify" the rule. The OML's enforcement framework (A.R.S. §§ 38-431 et seq.) generally allows for civil suits and AG enforcement against OML violations; the AG's office may treat a body's continuing refusal to comply with this opinion as a violation.

Background and statutory framework

Arizona enacted its Open Meeting Law in 1962. The current text of § 38-431.01(H) was added by the 2000 comprehensive amendments. It contains three operative parts:

1. Call to the Public Provision: "A public body may make an open call to the public during a public meeting, subject to reasonable time, place and manner restrictions, to allow individuals to address the public body on any issue within the jurisdiction of the public body."

2. Response Provision: "At the conclusion of an open call to the public, individual members of the public body may respond to criticism made by those who have addressed the public body, may ask staff to review a matter or may ask that a matter be put on a future agenda."

3. Agenda Provision: "However, members of the public body shall not discuss or take legal action on matters raised during an open call to the public unless the matters are properly noticed for discussion and legal action."

The AG's interpretive moves:

• "May" in the Call to the Public Provision is permissive (body chooses whether to hold one). "May" in the Response Provision is also permissive, but the discretion belongs to individual members, not the body collectively.
• "Shall not" in the Agenda Provision is mandatory. HCZ Const., Inc. v. First Franklin Fin. Corp., 199 Ariz. 361 (App. 2001), instructs courts to give "may" and "shall" their ordinary meanings when used in the same paragraph. State v. McDermott, 208 Ariz. 332 (App. 2004), avoids reading statutory provisions to be redundant or contradictory.
• The OML's interpretive instruction in § 38-431.09(A) requires construing the law "in favor of open and public meetings", which cuts against rules that would suppress member-to-public dialogue.

The AG also points to § 38-431.03(A), which lists nine permissive grounds for executive session. Reading "may" as mandatory there would force public bodies to hold an executive session every time one of the grounds was triggered, which would be absurd. That parallel use of "may" supports the permissive reading in § 38-431.01(H).

Citations and references

Statutes:
- A.R.S. §§ 38-431 et seq., Arizona Open Meeting Law
- A.R.S. § 38-431.01(H), call to the public; response and agenda provisions
- A.R.S. § 38-431.02(G), (H), agenda requirements
- A.R.S. § 38-431.03(A), executive session permissive grounds
- A.R.S. § 38-431.09(A): construe OML in favor of openness

Cases:
- SolarCity Corp. v. Ariz. Dept. of Revenue, 243 Ariz. 477 (2018)
- Woyton v. Ward, 247 Ariz. 529 (App. 2019)
- Glazer v. State, 244 Ariz. 612 (2018)
- State v. Cid, 181 Ariz. 496 (App. 1995)
- Walter v. Wilkinson, 198 Ariz. 431 (App. 2000)
- HCZ Const., Inc. v. First Franklin Fin. Corp., 199 Ariz. 361 (App. 2001)
- City of Chandler v. Ariz. Dep't of Transp., 216 Ariz. 435 (App. 2007)
- State v. McDermott, 208 Ariz. 332 (App. 2004)
- Qasimyar v. Maricopa County, 250 Ariz. 580 (App. 2021)

Source

• Landing page: https://www.azag.gov/opinions/i22-003-r20-002
• Original PDF: https://www.azag.gov/sites/default/files/2025-06/I22-003.pdf

Original opinion text

To:

John Kavanagh, Representative

Arizona House of Representatives

Question Presented

Do rules or practices of a public body that do not allow individual members of the public body to respond to criticism made during a call to the public, ask staff to review a matter raised during a call to the public, or put a matter raised during a call to the public on a future agenda violate A.R.S. § 38-431.01(H)?

Summary Answer

Yes, if a public body were to enact a rule or practice prohibiting individual members of the public body from (1) responding to criticism made by those who have addressed the public body during a call to the public, (2) asking staff to review a matter raised during a call to the public, or (3) putting a matter raised during a call to the public on a future agenda, such rule or practice would violate A.R.S. § 38-431.01(H). Thus, a public body that has enacted such a rule or practice should rescind or modify it to make it consistent with Arizona law.

Background

Arizona enacted its Open Meeting Law ("OML") in 1962 to ensure that Arizona public bodies conduct their business in open, public meetings and to eliminate secret decision-making. See 1962 Ariz. Sess. Laws ch. 138, § 1 (2d Reg. Sess.) ("It is the public policy of this state that proceedings in meetings of governing bodies of the state and political subdivisions thereof exist to aid in the conduct of the people's business. It is the intent of this act that their official deliberations and proceedings be conducted openly."). The Legislature has since amended the OML several times. See, e.g., Ariz. Att'y Gen. Op. 75-007 (detailed discussion of the early history of the OML through 1975); 2000 Ariz. Sess. Laws, ch. 358, § 1 (2d Reg. Sess.) (comprehensive amendments).

Relevant here is A.R.S. § 38-431.01(H), the text of which was added by the 2000 amendments and which provides the following:

A public body may make an open call to the public during a public meeting, subject to reasonable time, place and manner restrictions, to allow individuals to address the public body on any issue within the jurisdiction of the public body. At the conclusion of an open call to the public, individual members of the public body may respond to criticism made by those who have addressed the public body, may ask staff to review a matter or may ask that a matter be put on a future agenda. However, members of the public body shall not discuss or take legal action on matters raised during an open call to the public unless the matters are properly noticed for discussion and legal action.

This subsection is comprised of three operative parts. First, "[a] public body may" decide whether or not to hold a call to the public at a duly noticed public meeting (the "Call to the Public Provision"). A.R.S. § 38-431.01(H). Second, after a call to the public has concluded, "individual members of the public body may" respond to a member of the public in one of three ways (the "Response Provision"). Id. Finally, when a member of the public brings up a matter that is not listed on the agenda, "members of the public body shall not" discuss or take legal action on that matter unless the matter is listed on the agenda (the "Agenda Provision"). Id. At issue here is the Response Provision and whether a public body is permitted to prohibit individual members of the public body from responding after a call to the public in one of the three ways specified in the statute.

Analysis

Statutory interpretation seeks "to effectuate the legislature's intent," SolarCity Corp. v. Ariz. Dept. of Revenue, 243 Ariz. 477, 480 ¶ 8 (2018), and the plain language of a statute is always the starting point, see id. ("The best indicator of [legislative] intent is the statute's plain language."); Woyton v. Ward, 247 Ariz. 529, 532 ¶ 8 (App. 2019) ("When interpreting a statute, we begin with its plain language."). In construing a specific provision, the words of a statute should be read in context with the statute as a whole to determine their meaning. See Glazer v. State, 244 Ariz. 612, 614 ¶ 10 (2018). Any interpretation should also avoid rendering "any clause, sentence or word 'superfluous, void, contradictory or insignificant.'" State v. Cid, 181 Ariz. 496, 499-500 (App. 1995) (citations omitted). Further, the OML instructs that "any person or entity charged with the interpretations of [Arizona's OML, A.R.S. § 38-431, et seq.,] shall construe [the OML] in favor of open and public meetings." A.R.S. § 38-431.09(A).

Both the Call to the Public Provision and the Response Provision use the term "may," while the Agenda Provision uses the term "shall not." See A.R.S. § 38-431.01(H). Arizona courts have generally interpreted the word "may" as permissive and "shall" as mandatory. See Walter v. Wilkinson, 198 Ariz. 431, 432 ¶ 7 (App. 2000) (The "use of the word 'may' generally indicates permissive intent . . . while 'shall' generally indicates a mandatory provision."); but see HCZ Const., Inc. v. First Franklin Financial Corp., 199 Ariz. 361, 364 ¶ 11 (App. 2001) (explaining that while the "ordinary meaning of 'shall' in a statute is to impose a mandatory provision . . . it may be deemed directory when the legislative purpose can best be carried out by such construction."). When both "may" and "shall" are used "in the same paragraph of a statute, [courts] infer that the Legislature acknowledged the difference and intended each word to carry its ordinary meaning." HCZ Const., Inc., 199 Ariz. at 365 ¶ 15; see also City of Chandler v. Ariz. Dep't of Transp., 216 Ariz. 435, 438–39 ¶ 10 (App. 2007) (presuming "that the Legislature was aware of the difference between [‘may’ and ‘shall’] and meant each to carry its ordinary meaning").

In the context of A.R.S. § 38-431.01(H), nothing indicates that the Legislature intended to give the terms "may" and "shall" anything other than their ordinary meanings. For example, interpreting "shall not" in the Agenda Provision as mandatory rather than discretionary is consistent with other provisions of the OML. Compare § A.R.S. 38-431.01(H) ("[M]embers of the public body shall not discuss or take legal action on matters raised during an open call to the public unless the matters are properly noticed for discussion and legal action.") with A.R.S. § 38-431.02(G), (H) (specific matters must be listed on agendas before a public body can discuss or take legal action). And interpreting the Call to the Public Provision to be discretionary rather than mandatory is not only consistent with the ordinary use of "may" in statutory interpretation, but it is also consistent with long-term guidance from the Attorney General's Office issued before the Call to the Public Provision was codified. See Ariz. Att'y Gen. Op. I99-006 ("[F]or more than 17 years, the Attorney General's Office has recognized that a 'call to the public' may be used if the members of the public body properly limit their responses to any item raised."). Thus, where the Response Provision states that "individual members of the public body may" react in one of three ways, the statute is best read as giving individual members of the public body discretion to respond.[1]

But that conclusion does not fully answer the inquiry here. If the public body has discretion whether or not to hold a call to the public in the first place, does the public body similarly have discretion to prohibit members from responding? The answer is also found in the statutory language itself.

The Call to the Public Provision grants discretion to hold a call to the public to a "public body," while the Response Provision grants discretion to respond to "individual members of the public body." A.R.S. § 38-431.01(H). We presume that the Legislature fully recognized the difference between a "public body" and its "individual members" and purposefully differentiated between the two when enacting this statute. See State v. McDermott, 208 Ariz. 332, 334–35 (App. 2004) ("[W]e . . . presume that the legislature does not include statutory 'provisions which are redundant, void, inert, trivial, superfluous, or contradictory.'").

Therefore, the statutory language in the Response Provision permits individual members to make the decision whether they will react to public comments in one of the three specified manners. A public body cannot override the Legislature's purposeful decision to grant each individual member of a public body with discretion to decide whether and how to respond—within the statutory constraints—to a public comment made during a call to the public. Allowing a public body to do so would effectively nullify the statutory language granting discretion to individual members and instead allow a public body to make the decision whether to respond to public comment, including by prospectively prohibiting a response in any circumstance. Thus, a public body that has enacted a rule or practice prohibiting individual members from responding in a manner described in A.R.S. § 38-431.01(H) must rescind or modify the rule or practice to make it consistent with Arizona law.

Notwithstanding this conclusion, an individual member's ability to respond to public comment is not unlimited. The Legislature provided individual members the discretion to do so only at the conclusion of a call to the public and not after each individual speaker. A.R.S. § 38-431.01(H). Moreover, the ability to respond is limited only to (1) responding to criticism, (2) asking staff to review a matter, and (3) asking for a matter to be added to a future agenda. Id. And the Response Provision does not allow the public body to engage in a discussion or take legal action unless the matter is specifically listed on the agenda.[2] Id. Ultimately, however, individual members of a public body must have the opportunity to determine for themselves whether or not they provide a limited response to comments made by members of the public at the conclusion of the call to the public.

Conclusion

Because the Legislature expressly provided that individual members of a public body have the discretion to provide a limited response at the conclusion of a call to the public, a rule or practice prohibiting individual members of the public body from providing a limited response would violate A.R.S. § 38-431.01(H). Thus, a public body that has enacted such a rule or practice would need to rescind or modify it to render it consistent with Arizona law.

Mark Brnovich

Attorney General

[1] This interpretation is also supported by the Legislature's use of the term "may" in other provisions of the OML. See Qasimyar v. Maricopa County, 250 Ariz. 580, 587 ¶ 19 (App. 2021) ("[A] word or phrase used in related statutes should be construed to bear the same meaning throughout."). For example, A.R.S. § 38-431.03(A) states that a public body "may hold an executive session" under nine enumerated circumstances. Reading "may" as mandatory in that provision would create the absurd result of requiring public bodies to hold an executive session any time any matter falls within one of the nine enumerated circumstances, rather than allowing public bodies discretion to utilize an executive session. This would result in public bodies discussing matters outside of public view far more often, which would contravene the purpose of the OML.

[2] It is also likely that a public body could require individual members to follow content- and viewpoint-neutral rules of decorum when responding to public comments.