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Public comment should not be risky

Ann Macfarlane, Professional Parliamentarian
Jurassic Parliament

Last year I attended a city council meeting at which a speaker stated that the local police were torturing people in the jails. The mayor, applying the city’s guidelines, told the speaker that he was using offensive language and could not continue. He protested and was escorted from the podium by a policemen. At the next council meeting, citizens paraded in with tape over their mouths to protest this action. Naturally the press had a field day. The resulting publicity was unpleasant, to say the least.

Some years ago, the City of Boulder had to pay $14,000 to a citizen who had dropped his pants at the podium during the public comment period. He claimed that the city had violated his First Amendment rights by the way that they dealt with his protest, and won.

How can you manage public comment in a way that minimizes risk, of all sorts, to your public entity? This article offers a parliamentarian’s point of view. I am not an attorney, and nothing in these suggestions constitutes legal advice. That said, let’s look at the basics.

  1. A city council meeting is not a public meeting; it is a meeting that is held in public. The fundamental purpose of a city council meeting is to conduct the council’s business. The laws of the state of Washington and court decisions have made it clear that the council may establish its own guidelines in order to do this.
  2. The purpose of the public comment period is to inform the council members of the views of citizens and residents. Public comment is not a dialogue between the public and the elected officials. It is informational and it flows in one direction – from members of the public to the council.
  3. The Washington State Constitution gives members of the public the right to attend meetings of governmental bodies. It does not include the right to speak. However, if your body has consistently included a public comment period in its meetings, you have likely established a designated public forum at which the public does have a right to speak.
  4. Your body can and should set time limits for public comment as a whole, and for individual speakers.
  5. Your body can encourage speakers to behave in a civilized manner. But if someone starts to break your guidelines and say obnoxious or offensive things, they probably have the right to do so.
  6. If someone disrupts the meeting, or threatens physical violence, you may order them removed. Be careful, however! The question of what is “disruptive” is not always easy to determine.
  7. If a whole lot of people start disrupting the meeting, you can recess the meeting, and reconvene in a different place from which the disruptive folks are excluded.

In the light of these points, I hope it’s clear how challenging it can be to manage public comment. You want to hear from the public, you need to hear from the public, and the “public comment” period is the right place for this to happen. You want to preserve the legal rights of your citizens and residents, while keeping a firm grip on the experience and ensuring that it doesn’t take over the meeting.

Here are our suggestions:

  1. In all aspects of this topic, consult with your attorney to make sure that you have a good process in place.
  2. Review the fine materials published by the MRSC on the Open Public Meetings Act.
  3. Adopt guidelines and read them with energy at the beginning of each public comment session. It’s also useful to provide them in printed form. These guidelines may encourage civility and politeness. They should state that comments are to be addressed to the presiding officer, not to individual council members or staff people.
  4. Enforce whatever time limits or other process parameters you have set consistently and fairly.
  5. It is important for whoever is running the meeting to project an attitude of openness and warmth to the citizens speaking. This has to do with the personal qualities of the presider. It is not easy to maintain this attitude over the 20 minutes or longer that public comment can go on, but it can be done.
  6. You can refer specific questions to the staff and let citizens know that someone will get back to them later. If you do this, be sure that you DO get back to them!
  7. Engaging in a “back-and-forth” with citizens is always a losing proposition. Don’t do this when running the meeting, and don’t allow individual council members to do this.
  8. Sometimes speakers can get so riled up that it is appropriate for the presider to say something  about the subject at hand. If people are making outrageous accusations or flinging wild claims about, the mayor or council president may want to speak on the subject calmly, firmly and definitely. The statement must not be defensive. Phrase it in the positive and reaffirm the truths that you know about the situation. Then turn briskly to the next item on the agenda.
  9. You may want to consider holding “Town Meetings” or “Open Forums,” a different type of event from a council meeting, that provide an opportunity for dialogue.
  10. If you do this, the elected officials participating will need to make it very clear when they are presenting the city’s positions, and when they are speaking as private individuals. People will still tend to interpret what is said as “the official position,” so you must emphasize the point of view from which you speak.

It can be challenging to invest the time and effort needed to think about process, the way that we run our meetings. Establishing the right structure, however, and maintaining it consistently will pay big dividends.

You can improve the way citizens give input to your elected officials, maintain good relations with your residents, avoid ghastly publicity, and lessen the chances that a judgment will be made against you for big bucks. Take the time now to ensure that public comment will not be risky to your city.

References from MRSC

The Open Public Meetings Act

When public comment is challenging

The First Amendment is not the last word

Balancing the Council's right to manage meetings with expectations of citizens


Contributor

Ann Macfarlane, Professional Parliamentarian
Jurassic Parliament
Ann Macfarlane is the principal in Jurassic Parliament, a company dedicated to helping elected officials and nonprofit leaders run their best possible meetings using Robert’s Rules of Order.

Ann’s career includes time in Pakistan and on the Soviet Desk of the U.S. State Department, and service as President of the American Translators Association. With Andrew Estep she is the author of Mastering Council Meetings: A Guidebook for Elected Officials and Local Governments.

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