Public Meeting Comment Periods: Separating Fact from Fiction
Public Meeting Comment Periods: Separating Fact from Fiction
by Ross M. Williamson
It likely comes as no surprise to readers of this newsletter that I can confirm an uptick in contentious public meetings over recent years. These days, even small local governments are forced to deal with public meetings that become argumentative or worse. A central area of tension is the public comment period when members of the public are invited to speak their minds to the governing body.
In this article, I will explore suggestions I have heard to help contain conflicts and reinforce respect. Some of the ideas are unwise or unlawful and should be avoided. Some of the ideas are available for incorporation into your own procedures.
Idea: The governing body should allow audience comment throughout its meetings.
Response: Unwise! While it is legal to have a constant conversation with the public during a public meeting, doing so is very unwise. Chairpersons, with the support of their colleagues on the governing body, should limit audience participation to agenda items that call for public participation. To allow public comment on every agenda item throughout a meeting is a recipe for long meetings and public official dissatisfaction.
Idea: Governing bodies are required to allow public comment on every agenda item.
Response: Fiction. Not every agenda item requires public comment. For sure, certain agenda topics do require public input in the form of a public hearing or similar opportunity for public input (e.g., land use decisions, budget hearings, and fee increases). Outside of the limited number of agenda topics that require public comment, there is no requirement for audience participation.
Idea: The public must be allowed to provide public comment at both the start and the end of each meeting.
Response: Not so. Some governing bodies have a tradition of opening and closing meetings with public comment. While this may be a tradition rooted in welcoming public input and community feedback, the tradition is not rooted in a legal requirement. A better practice is to regularly schedule a single public comment period at a consistent place on each regular meeting agenda – whether that be towards the beginning or towards the end of the agenda.
Idea: The public must be allowed to provide public comment at all public meetings.
Response: Untrue. Many governing bodies hold multiple meetings each month – one regular or general meeting and one or more special or work session meetings. Special meetings and work session meetings are usually scheduled so that the governing body can work through special subjects or spend time debating a particular issue. If the monthly regular meeting allows for public comment, there is no requirement that other special meetings also allow for public comment. It is entirely appropriate for the audience to attend and watch the governing body do its work at a work session, but there is no requirement that the audience participate in the meeting.
Idea: A local government can implement time limits for each speaker and the total public comment period.
Response: Yes! A public meeting is a “limited public forum” under our free speech legal standards. This means that a public body can create and implement reasonable content-neutral regulations for the public’s participation. Such a content-neutral regulation is enforcing time limits on each speaker and setting a total allotment of time for the public comment period. For example, if created via policy and enforced even-handedly, a governing body can allot each speaker 3 minutes to speak and allocate 25 minutes for all speakers.
Idea: A governing body can restrict the subjects discussed during public comment periods.
Response: Super-duper dangerous! While it is generally appropriate to guide speakers to relevant topics in a public hearing, for general public comment periods, a speaker should be allowed to speak their mind on any topic. In recent years I have seen examples of governing bodies prohibiting public comment on topics such as personnel matters and subjects that the chairperson may feel are irrelevant. However, such limits are likely content-based limitations that are unlawful under Oregon free speech standards.
Idea: A governing body can require speaker registration prior to each meeting.
Response: It’s a fact. Within an adopted public meeting policy, a governing body can require reasonable pre-registration to participate in a public comment period. While the governing body should not require each speaker to provide their full name and address, the governing body can require persons to sign-up for a speaking slot prior to the start of a meeting.
Idea: A local government can require speakers to be at meetings in-person (no virtual comments).
Response: False. If a governing body allows the public to attend a public meeting virtually (see ORS 192.670 for more on this obligation), then the governing body should also take public comments from those attending virtually. As noted above, pre-registration is appropriate for both in-person and virtual public comments, but the governing body should not forbid public comments from those attending virtually.
Idea: The governing body chairperson can forbid audience members from causing disruptions.
Response: True, within reason. Audience members are allowed to observe public meetings and are allowed to speak during public comment periods. But an audience member does not have the right to cause an actual disruption to a public meeting. Keep in mind that chairpersons should be trained on using this authority so they can properly identify the nuances in lawfully enforcing this standard. For example, certain audience conduct may be rude, uncivil, or even vulgar, but not rise to the level of an “actual disruption.” Only an audience member that causes an actual disruption to the public meeting can be removed from the meeting.
