Town’s “unconstitutional” comment policy yet to be addressed

The Select Board has yet to change, or schedule a discussion of, its comment policy in light of court ruling.

On March 7th, the Southborough Select Board learned that Mass Supreme Judicial Court had found their comment policy to be violating the state constitution by banning “rude, personal or slanderous remarks”. That evening, Town Administrator Mark Purple informed the board that their attorney was reviewing the decision and would get back to them.

The board is scheduled to meet on Monday, April 10th. As of this post, the topic was not on the agenda to be addressed. And the outdated comment guideline is still posted on the Board’s website under policies.

Although the posted policy was adopted by the Select Board in 2017, it was stated and disseminated as applying to all the “Boards, Committees and Commissions” that they appoint. This past summer, the Board decided to update its policy for handling comments (though not in relation to the controversial section). The board has been following its revised policy, but not followed through on an official update.

In addition to opining on the comment policy, the SJC remanded the Barron v. Kolenda lawsuit against the Select Board back to Worcester Superior Court. On March 31st, the plaintiffs’ and defendants’ attorneys filed a joint motion to amend the tracking order for the case. They proposed new deadlines for filings and discovery requests.

Since I last posted about the SJC decision, the story made national headlines (including in the New York Times). More recently, the ACLU of Massachusetts posted an opinion piece on MassLive advocating that officials embrace public comments, rather than retreating behind legally allowed limits to public discourse:

As the Supreme Judicial Court so eloquently explained, public comment periods have a particularly long and important history in Massachusetts — including before and during the Revolutionary war. Now, at a time when our local cities and towns are the front lines for democracy and liberty, Massachusetts municipalities should embrace this new court opinion to ensure public meetings are efficient, orderly, and open.

Freedom of speech does not mean that our town meetings must or should become a free-for-all. . . Governments may continue to require that members of the public only speak when called upon, direct comments to issues that are relevant to the body’s work or relevant agenda items, and keep their comments within generally applicable time limits – often just three to five minutes per person. And members of the public who seek to disrupt other speakers or speak during times of the meeting not dedicated to public comment can be silenced.

Moreover, public bodies can set a tone by requesting that people conduct themselves respectfully and model that behavior themselves — which the chairperson in the Barron case clearly did not. Indeed, it is often the reaction of public officials to criticism that causes disruption in a meeting.

You can read that full column here.

As for how the Town has been reacting to the court’s decision. . .

So far, I haven’t seen any changes that indicate Southborough officials are reducing public comments.

Back in July, the Select Board updated/clarified how they handle public comments. Chair Kathy Cook suggested that the public comment periods should consistently be at the start and end of their regular meetings, but limited to items that aren’t on the agenda. During the board’s discussion of agenda items, they would allow public comment specific to that topic. The board agreed.

Cook followed that they would update the policy to reflect that but also state the policy in meetings until people get used to the change. (The vocal clarifications have been provided but the posted policy hasn’t been updated to reflect it.) That is generally the formula they have employed since, including after the recent ruling.

The only committee whose agenda I have seen the comment policy pop up on since the ruling is the Historical Commission. Chair Kevin Miller told his committee that he intends to still welcome public comments and even suggested adding it to the start of their agenda instead of just at the end. Fellow members agreed, though with suggested time limits.

The Zoning Board of Appeals did hold a hearing on March 22nd to update its policies and procedures. But that was an unrelated, pre-planned hearing on updating application instructions and forms. Chair David Williams stated the purpose was to clarify the way they already operate “to try to make it clear for the applicants and other people who might attend the meetings what we’re actually doing”.

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