May 2022 Knowing the Waters- a column by WPPA Counsel Frank Chmelik of Chmelik Sitkin & Davis, P.S.
The topic for this month is “public comment” at commission meetings. Commissioner Pam Petranek of the Port of Port Townsend and I were talking about this issue, and it is worthy of discussion here.
We start with the Open Public Meetings Act, chapter 42.30 RCW. As we all know, whenever a majority of the commission meets to transact business (called an “action” in the OPMA), it must be done in an open public meeting unless (i) the business fits within an executive session exemption or (ii) if the business involves discussion of union negotiations. While there is no requirement to receive “public comment,” all port commissions receive “public comment” because all recognize that listening to the concerns and observations of the public is part of their job. Since there is no definition of “public comment” the practices at port districts vary widely. Moreover, experience shows that with controversial issues, it is important to carefully manage the “public comment” process.
What is Public Comment? “Public comment” is usually held to be the verbal comments of the public to the commission at a commission meeting on any topic that the speaker wishes to talk about. I note that “public comment” is different than comments made at a public hearing. Public hearings are held to receive comments from the public on a particular topic. For example, before amending a comprehensive scheme of harbor improvements, port commissions are required to hold a public hearing to take comments on the proposed amendment.
Most port commissions accept “written public comment” that is sent to the commission (email or letter) before the meeting. If a port accepts “written public comment,” it should be referenced in the minutes. The port commission may choose to read or summarize the “written public comment.” A distinction should be drawn between a letter or email sent to the commission (or all the commissioners) on a topic and “written public comment.” In other words, not all letters or emails sent to the commission (or all the commissioners) need be treated as a “public comment.” If the sender’s intent is not clear, Port staff can contact the sender and seek clarification. However, it is up to the port commission which could decide if all communications send to the port commission (or all the port commissioners) will be treated as “public comment” at the next commission meeting.
Managing Public Comment. It is up to the port commission to decide when and how it receives “public comment.” Most port commissions receive “public comment” at the beginning of each meeting. Some port commissions receive it at the beginning and again at the end of each meeting. Here are some ideas on managing “public comment.”
· The port commission should maintain a simple sign up sheet so that the commission president can call the speakers up one at a time. At the end of the list the commission president should ask if anyone else would like to speak.
· Before beginning “public comment,” let the public know that each speaker will be limited to a specified time (for example 3 minutes). Some type of audible note on the time is helpful. For example, the port staff person that sits with the commission can keep the time and ring a bell or provide a polite notice when time has expired. This is usually followed by the commission president asking the speaker to come to a conclusion.
· Ask the speaker to state their name before they begin speaking. Some port commissions also ask for an address.
· Generally, commissioners should not engage with a speaker. This is true even when speakers pose a question and demand an answer. Experience shows that the best response is for the commission president to note that the public comment period is a chance to hear from the public and not to engage in a discussion. Once the commissioners engage with a speaker it is difficult to end the discussion and other speakers will seek the same accommodation. An effective response to avoid getting into a discussion with a speaker is for an individual commissioner to offer to meet with the speaker at some future date to discuss the matter in more detail.
· The president should always thank each speaker.
· Commissioners should realize that when a member of the public comes to a meeting (or attends by Zoom) and then speaks, it is an issue important to the speaker and deserves the commissioners’ attention.
Public Comment on Contentious Issues. When the commission knows that there will be “public comment” on a contentious issue plan for the “public comment.” It is really uncomfortable to watch a port commission battered in a public comment period that everyone knew in advance was going to be difficult. Experience shows that with proper planning this can be avoided. First, make sure the meeting room is big enough. Nothing raises the tension in a meeting like a packed room. Consider moving the commission meeting to a bigger venue to accommodate an anticipated large crowd. Second, before “public comment” starts, the president of the commission should address the public and note that the issue is contentious, it is the role of the port commission to listen to all sides, and make a decision. This is particularly important because it informs the public that the commission recognizes that the issue is contentious, but they are charged with making the decision. Third, let the public know when the issue will be decided. For example, will “public comment” be taken just at the present meeting and a decision made at that meeting or will the commission have “public comment” at the present meeting and the next meeting followed by a decision? Experience shows that for very contentious issues it may be better to have several meetings to receive “public comment.” Fourth, invoke a community standard for behavior. For example, the commission president could say “Here in our community of Mudville we tend to treat each other with respect and avoid personal attacks. We are all here to listen and be polite with each other.” Fifth, consider having a short staff presentation on the issue so that everyone in the room has a common set of facts. Sixth, if a speaker starts to drift into personal attacks, the commission president should stop them and remind them of the community standard. Sixth, relax and realize it may be an exceptionally long meeting. The point here is plan for a contentious meeting.
As always, please contact your port counsel with any questions regarding this topic. And, if you have a particular question for a Knowing the Waters please email me at fchmelik@chmelik.com.