A mayoral candidate has complained that the Morgan Hill City Council’s public hearing policy lacks flexibility. The issue arose when the candidate tried to comment on an agenda item without having
filled out a speaker card. -db
Morgan Hill Times
September 6, 2010
By Michael Moore
The city council’s public hearing policy – which allows citizens to state their piece at the body’s meetings – might comply with state laws guaranteeing openness and a chance for participation, but some residents have complained that the policy lacks common sense.
Complaints first arose with a poorly-timed public speaking request by mayoral candidate Art College at a meeting this summer, which was denied by current Mayor Steve Tate – a denial that College alleged was a violation of the Brown Act, the state’s open meetings law.
City officials and the mayor say the policy which asks potential public participants at council meetings to submit a “speaker card” if they want to comment at the meeting, is intended to keep the meetings organized, punctual and civilized. They note that the city’s policy, which was first drafted in 1997 and last reviewed in 2007, is not much different from other local public agencies’ public hearing guidelines.
“I think Morgan Hill’s policy is very reasonable in terms of giving people the opportunity to hear the staff report and content of the agenda item” they want to comment on, said city attorney Danny Wan, a former Oakland council member.
Furthermore, the Brown Act allows city councils to adopt “reasonable regulations” that “ensure the intent of public open meetings” exists, Wan noted.
“Clearly, the city council and the mayor have the right to adopt reasonable rules about the way the meeting is conducted,” Wan said.
Without such policies and procedures, meetings could devolve into shouting matches, potentially extending the length of meetings inordinately, according to Wan and Tate.
Wan added that Tate did not violate the Brown Act, and said the section of the law that College cited in his complaint, which was issued in the form of a public comment at the July 28 council meeting, forbids public agency boards of directors such as the city council from requiring people to sign in to attend their meetings. Morgan Hill does not ask meeting attendees to sign in.
College’s initial complaint, which has not been issued in writing, said the city’s requirement to fill out a speaker card – a yellow form available in a stack at the entrance of council chambers – is illegal because it asks for the speaker’s name. The Brown Act, he noted, allows meeting attendees to remain anonymous if they choose.
While city officials have clarified that speaker cards and names are not required, the city still should correct a public participation provision that requires speakers to submit the cards before the public hearing begins, College maintains. Each council meeting is divided into individual agenda items. Most items include a report by city staff, followed by a hearing for the public to offer input or ask questions. The hearing usually precedes council discussion and a council vote.
The city’s policy says speaker cards must be submitted before the mayor opens the public hearing in which the participant wants to speak. (Members of the public may also speak at the beginning of each meeting if the topic they want to discuss is not on the agenda.)
When College raised his hand noting his desire to speak at the July 21 meeting, on an agenda item related to the county’s weed abatement program, the mayor did not let him speak. College raised his hand during the open public hearing, after other members of the public had already spoken.
“There’s no requirement (in state law) that I have to let them know (I want to address the council) before the public hearing starts,” College said. “The Brown Act says any individual may speak on any item before them. They must allow input.”
The purpose of the timing requirement is to prevent the meetings from turning into a debate among members of the public, some of whom might use the forum to respond to a public comment rather than to the city’s proposed business, Tate said. Plus, it gives the mayor, who presides over council meetings, an idea how many people will speak and how long the meeting might last.
“The agenda item is held, a staff report is given and based on that you should know if you want to give input or not,” Tate said. “We’re just trying to get input. We’re not up there to facilitate debate.”
But flexibility – or inconsistency – is the unwritten part of the city’s public participation policy. The mayor “has some discretion” on how to enforce the rules, Wan said.
Tate acknowledged that he has been inconsistent in allowing other speakers to submit cards after the public hearing began. He tries to make such spontaneous exceptions based on whether or not the participant intends to debate another citizen or simply add input for the council to consider.
“(But) if you say you have to put a strict policy on that, you lose the flexibility,” Tate said.
He said he wants to talk to another critic of the policy – Frank Manocchio – to discuss potential guidelines that keep the rules consistent.
The city’s policy sounds “reasonable” in its adherence to the Brown Act and support of freedom of speech, but the flexibility to make exceptions to the rules on a case-by-case basis is key, according to Peter Scheer, executive director of the First Amendment Coalition.
“There’s no reason why members of the public can’t use their opportunity to speak to debate with each other,” Scheer said. “But you’ve got to draw a line someplace” – for example, if 10 people jump up at once to speak in the middle of a public hearing.
“It sounds like, overall, the procedures and rules (Morgan Hill has) are fairly open and flexible,” Scheer said.
Other agencies have speaker-card policies that are similar to that of Morgan Hill – including the Morgan Hill Unified School District, the Santa Clara Valley Water District and the Caltrain board of directors.
And these agencies’ directors have been known to make exceptions to the rules on-the-fly during public hearings, allowing people to speak out of turn if they seem unfamiliar with the procedure, or if they insist they have additional unique input.
Since the July 28 meeting, city officials changed the wording of the speaker cards and the policy posted outside council chambers to reflect that filling out a speaker card is not required, but is “helpful” to those who conduct the meeting.
The changes were for clarification, because the literature previously cited the wrong section of the Brown Act – and city officials did not know that until College pointed it out, Wan said.
Plus, while the city ordinance identifying the council’s policies and procedures says potential public speakers are “requested” to fill out speaker cards, the posting outside council chambers says a speaker card is not required. The ordinance, which not posted in its entirety at city hall, says upon addressing the council the speaker “is required” to state his or her name and place of residence.
However, Wan said submitting one’s name in order to offer input at a public hearing is not required at Morgan Hill council meetings, or at least is not heavily enforced.
But prior to the changes, how would one have known this if they had never attended a council meeting before, Manocchio wondered.
Manocchio, who attends most council meetings and frequently addresses the body on a variety of topics, submitted a speaker for all eight agenda items at Wednesday’s council meeting. He did so because at the beginning of the meeting he did not yet know if he wanted to speak on all the items, but once he received new information when city staff’s discussion began he might change his mind. He declined to speak most of the times when his name was called.
He said “it’s not that big a deal” in terms of scheduling to allow a couple more people to speak for three minutes each, and it is important to let someone address the council if they thought of an important point or question at the last minute.
“They pick and choose the rules they want to obey,” Manocchio said. “It’s just a matter of common sense and courtesy.”
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