Monday, June 15, 2009

The "Right" to Participate at Public Meetings


After being asked to leave a public meeting of the Board of Education last week for speaking "out of order", I decided to do a bit of research to determine the legal requirements of municipal boards and committees to allow the public to speak.

In Middletown, our record and practice is quite good, though not perfect.

The Common Council is required, by charter to allow the public to speak at every regular meeting. Members of the public are allowed to speak about agenda matters early in the meeting, and on non-agenda matters at the end of the meeting (actually, and absurdly, after the meeting has adjourned).

Some other commissions, like the Planning and Zoning Commission and the Zoning Board of Appeals are required to conduct public hearings on specific matters being considered by the boards. Other boards, committees, commissions and agencies are not required by charter to conduct public comment sessions, but most do, and these public sessions are written into bylaws.

Some committees are lenient about the timing of public comments. In these meetings, public comment is allowed after expert testimony on a topic is presented by interested parties. For example, if an historic building is being slated for demolition to allow for the construction of a new business, some committees will allow public comment after the new business developers, and designated preservationists speak. Other committees demand that public comment be delivered at the beginning of the meeting.

The Common Council places public comments (public hearing) early in the meeting agenda, before expert testimony is presented. This is often to the disadvantage of the public who wish to comment because they have not seen documents to be presented in expert testimony, or heard the testimony.

The Board of Education is required by state statute to conduct public meetings, but not required by statute, charter or bylaw to guarantee public comments.

However in its bylaws the BOE states: "The Board of Education welcomes participation of interested organizations and individuals. (Section 1120 - Board of Education Meetings). The bylaws (Section 9325.2 - Order of Business) also indicate that meeting agendas will be transacted in the following order: I. Call to order; II. Salute to the Flag; III. Adoption of the Agenda; IV. District Highlights; V. Public Session, etc. But the bylaws (Section 9321 - Time, Place and Notification of Meetings, under "Special Meetings") also state that "No other business shall be considered by the Board" at a "Special Meeting." And finally the bylaws state (Section 9325(a) - Meeting Conduct) that, "All Board meetings shall commence at the stated time and shall be guided by an agenda which has been prepared and delivered in advance to all Board members and other designated persons," and "The Chair will recognize members of the public who wish to address the Board during the 'Public Session' portion of the agenda" and finally that "No boisterous conduct shall be permitted at any board of education meeting. Persistance in boisterous conduct shall be grounds for summary termination, by the chair, of that person's privilege of address."

In the case of the special meeting held last week to vote on the superintendent's budget that I attended, and was ejected from, the Board of Education followed an agenda which included a call to order, saluting the flag and approving the agenda. However, at least one Board member objected to the absence of a public session. The agenda was voted through without the addition of a public session. This lack of public session seemed, to me, in clear conflict with bylaws which state that the board "welcomes participation of interested organizations and individuals" and "the Chair will recognize members of the public who wish to address the Board during the 'Public Session' portion of the meeting."

So I spoke up, perhaps boisterously, and chided the Board for their lack of public input at the meeting, and I was asked to leave. And the Board was within its legal rights to ask me to leave.

Unfortunately, this lack of public comment added to an impression that the board wanted to push the new budget through without appropriate scrutiny or public comment. This version of the budget was only made available to the public minutes before the meeting. The meeting was scheduled, uncharacteristically, in a room with no broadcast capability. And when some members suggested that the budget consideration should continue through at least the next meeting, the majority (all Democrats) voted to pass the budget after some dissent from individual board members.

Members of all boards and commission earn my respect and admiration for volunteering to serve the community on these boards for little, or no pay. They sit for hours and consider the major and minor issues that make ours a vital community. They are often the targets of deserved or imagined criticism by members of the public, and are just as often the victims of rambling, aimless rants. Sometimes, as is now the case with the Common Council, they are sued because some member of the public is challenging his or her right to freedom of expression.

A well-functioning democracy should welcome the input of the public, and for the most part, our municipal government does so. When it fails to recognize the good such public commentary can provide, it does the community, and itself, a disservice.

With the good comes the bad, but few would fault a city board or commission for limiting the time a member of the public is allowed to speak.

After hours of sitting through municipal meetings, here are my suggestions for public comment at public meetings:

- Every municipal meeting should be scheduled with the opportunity for public input. When a topic is discussed at a meeting where the public cannot comment (a workshop, for example), public input should be allowed at the next scheduled meeting

- Public comments should be limited by time. And that time should be strictly adhered to, unless there is an exceptional situation in which a limited time would not provide the opportunity for a complete explanation

- Chairpersons should be encouraged to keep public comment on topic

- Debate by board, committee and council members should also be limited by time (when board members must adhere to limits, members of the public are less likely to complain at limitations placed on them)

- Where possible, limits should be placed on length of meetings

- Board, commission and council members should be discouraged from expressing redundant support or opposition to an issue, and encouraged to use their vote to show their position on a topic

- If "public hearing for items not on the agenda" at the Common Council is to be considered legitimate, it should be included on the agenda prior to adjournment (currently, these comments are accepted after adjournment, after many Council members depart, and after the public broadcast of the meeting is ended, marginalizing the comments, and the commenters). The Council should also strictly limit the time for these comments. Otherwise the "public hearing for items not on the agenda," should be removed from the agenda.

A clear and open democracy should encourage participation by member of the public, because it represents the voice of the community for board, commission and council members who frequently declare that they are making decisions for the good of that community.


Anonymous said...

I may be wrong but if they failed to post the meeting properly all items transacted at the meeting could be voided if a complaint is filed with the FOI commission.

Anonymous said...

Makes you wonder; remove curves at one end of Westfield Street (Country Club Road) and add curves at the other end of Westfield Street and on High Street. I used to do that in my sand box and it didn't cost that much.

Jennifer Saines said...

Ed, I appreciate your commentary on this issue. I agree that generally the City of Middletown has a very good record regarding public comment. However there is room for improvement, as your recent experience at the “back-room” BOE meeting demonstrates.

As other Eye commenters have noted, the BOE should be more responsive to the public, and perhaps a way to do this is to separate its budget from the city’s. This step would force the members of the BOE to proceed with greater transparency, since they could then be held accountable for monies spent. That the BOE allowed for no public comment in its recent budget meeting is an outrage, especially in this challenging year.

As a matter of fact, the process for the approval of the city budget by the council was also questionable. Whereas the mayor’s budget was released well in advance of the council budget meeting, allowing ample time for citizen groups to respond, the Democratic caucus released its budget just minutes before the budget meeting. Public comment was thus effectively disallowed. (The argument that caucus members were working up until the last minute on the budget strikes me as disingenuous, but if it is true, then public comment should have been solicited after the proposed budget was presented and discussed.)

Many thanks again for taking the time to research this topic and making suggestions that can be easily implemented. I would suggest that you also include some recommendation for public comment after expert testimony or presentations

Anonymous said...

I have a question. I just reviewed the Board's 6/16 agenda and it lists "Executive Session". I thought under FOIA you had to cite what section of the law you were holding the session under. Secondly, if the issue pertains to an employment issue having to do with a specific "person or employee" doesn't the law require that the person be notified? I just think they play fast and loose with the rules and will probably continue until fined by the State.

NOBO said...

To Anon. 3:59- Per Robert's Rules of Order,you do not have to cite any reason, nor do you have to notify any employee, regarding the purpose for the Executive Session.

James Streeto said...

Hello All--

Happy Birthday Ed! For both you and the Eye--you're doing a marvelous job....

Limiting comment times...seems every time the council has tried to do that, it's gotten us sued. In the end, the tried and true method works best: let the people talk. I'll admit its distressing to me to look out into an audience on an issue I know is going to pass (or fail) and see 20 people holding speeches in favor (or opposition) but...they spent time and effort on those speeches. The least we can do is listen.

It is rarely possible to be simultaneously efficient, fair and open. If we've got to give something up, I'd suggest efficiency is the first thing which should go.

Jim Streeto

Eye Spy (Anthony R. Lancia, Jr.) said...

To further clarify Roberts Rules of Order - page 93 Public Session:
This type of meeting is the opposite of an executive session. Many public and semipublic bodies are governed by sunshine laws- that is, they must be open to the public. Normally, such laws have no application to private, non-governmental bodies.
In meetings of many public bodies such as school boards, the public may attend. Similarly, in some private orginazations such as church councils,parishioners may be permitted to attend.These attendees are not members of the meeting body and ordinarily have no right to participate. Some bodies, especially public ones, may invite non-members to express their views, but this is done under the control of the presiding officer subject to any relevant rules adopted by the body and subject to appeal by a member.
Often,by rule or practice, time limits are placed on speakers and relevance is closely monitored.

So in the grand scheme of things if you want a voice of reason and power one must run for office to affect any change, you must step up to the plate and not look in from the outside even if we do pay the tab.
Sad but true the rules and laws do not look to our best interest they assure a smooth and expiditous meeting for those who have an agenda. GET IT!!!!!!!