The Select Board is working on a new draft public comment policy to replace the version the Mass Supreme Judicial Court called unconstitutional.
Rather than revising the old policy, the Board decided to revise a new version provided by Town Counsel. According to Chair Kathy Cook, the draft was created for all of the law firm’s municipal clients based on the SJC’s headline making ruling against Southborough’s policy.
The policy wouldn’t allow the board to prohibit rude remarks, but would specify what they can prohibit under their new understanding of the law:
Public comments on matters outside the public body’s jurisdiction will not be permitted. Because they are not Constitutionally protected, the following comments shall likewise not be permitted: true threats, incitement to imminent lawless conduct, statements that were found by a court of law to be defamatory, and sexually explicit statements made to appeal to prurient interests.
The board revised other sections of the draft on Tuesday night. Before voting to approve it, they plan to seek feedback from Town Counsel about their changes.
One revision made on Tuesday night is requiring that attorneys (or other representatives) specify who they are representing if they wish to make a public comment. The suggestion was made by Member Andrew Dennington based on his experience as a former Zoning Board of Appeals Chair.
Dennington referred to a lawyer who repeatedly made long comments but refused to disclose who he represented. He suggested that just as residents have to identify themselves, attorneys should disclose the information for transparency. Member Sam Stivers agreed that it makes sense so that others have better context for the comments.
As drafted by Town Counsel, the policy would have devoted a public comment period during all meeting for all town boards and committees (unless it interfered with their duties)*. The Select Board’s revisions would alter that.
Members noted that other elected boards have the authority to adopt their own policies. The board plans to clarify that their policy will only apply to its board and the boards/committees that it appoints.
In addition, they are leaving it to each Chair’s discretion whether or not to allow any public comment.* Members discussed not wanting to dictate to other board chairs whether or not they need to take comments.
One section that wasn’t discussed (but which surprised me) was the draft’s inclusion of Chair discretion over “which individuals and/or entities are permitted to speak”.
For those that are allowed to speak, the draft policy states:
the Chair shall, to the best of his/her ability, ensure that each individual and/or entity who is permitted to speak is allotted an equal amount of time in which to do so.
Outgoing Vice Chair Chelsea Malinowski recommended that if they plan to enforce it, they should purchase a timer. The idea for a countdown clock visible to commenters was supported by other members.
Earlier in the discussion, outgoing member Lisa Braccio asked if it made more sense to abolish the current policy than replace it. She noted that Town Counsel had already explained the Chair’s discretion. She wondered if comments should just be ruled by Chairs’ common sense.
Stivers argued that a policy gives the public a framework for expectations and the board something to point to as defense of decisions. Dennington highlighted that it could be useful guidance for the boards that they appoint. He also suggested laminating a copy to hang at the back of the hearing room so the public can read it when they show up at a meeting.
Braccio also wondered if the time limit for comments should be standardized for consistency and included in the policy. Others opined that the length for comments might vary by the meeting – based on the length of agenda or how much information the board wanted to learn from the public on an issue.
The new policy addresses ADA compliance issues that aren’t covered by the current policy. It provides guidance for handling accessibility issues to allow comments by/on behalf of someone with a disability.
The Select Board’s current practice for their own handling of comments in their regular bi-monthly meetings is to allow the public to speak for 3 minutes each about items not on the agenda at the start and end. In addition, they invite the public to comment on agenda items during the time the Board is dedicating to the item. (The board doesn’t generally invite comments during special meetings, though they sometimes will take comments on specific agenda items.)
Cook said that she’d like the Select Board to vote each year on their practice (or changes to it) when the board is reorganized following the Town election. This year, that should be their May 26th meeting.
But the Chair didn’t plan to wait until then to adopt the new overarching policy. She hoped to have that ready for a vote at their meeting this coming Tuesday night, May 2nd.
*The board agreed to revise the following section in the draft to replace “shall” with “may”:
The chair or his/her designee shall devote a period at each meeting to public comment (the “public comment period”) to the extent that doing so does not interfere with the public body’s ability to perform its duties in an orderly, efficient, and timely manner.