This post is Part 5 of a multi-part series. (See Part 1 here, Part 2 here, Part 3 here, and Part 4 here). For a more detailed explanation and legal analysis of the issues discussed in this blog post series (including citations to cases referenced in the post), please see Local Government Law Bulletin # 146: Reference Guide for Local Government Public Comment Periods.
Public feedback is a vital part of governance. It allows local governments to understand the public’s concerns and perspectives, while affording the public an opportunity to impact local government decision-making. In facilitating a public comment period, local governments must comply not only with the appropriate statutory requirements but with the U.S. Constitution as well. Understanding the statutory and constitutional frameworks surrounding public comment periods is an essential first step, but applying the law can be challenging in practice. This post provides guidance for drafting and applying enforceable public comment period policies.
Considerations for Policies
Statutory Authority
Enforceable policies are those that are both statutorily authorized and constitutional. Any restriction in a public comment period policy must be tied to statutory authority. That means it must be (1) a time limit, (2) a provision for spokespeople or delegates, (3) a provision for order and decorum, or (4) another “reasonable rule governing the conduct” of the public comment period. If the restriction is not clearly a time limit, related to spokespeople or delegates, or related to order and decorum, the policy should articulate how it connects to those categories or otherwise falls within the broader statutory authority to manage the conduct of the public comment period in a reasonable manner.
Constitutionality
Statutory authority is an important piece of the puzzle, but even a statutorily authorized policy will fail if it does not comply with the First Amendment. Public comment period policies should clearly define the forum the government seeks to create. If the government intends to create a limited public forum, it should clearly communicate any content or speaker limitations. The policy should explicitly identify the legitimate government interest that its restrictions serve and explain how those restrictions serve that interest. Finally, the policy should be internally consistent, clearly articulated, capable of consistent application, and it should not identify any particular viewpoints or perspectives for differential treatment.
Special Considerations
Limits on profanity, personal attacks, and insults must be carefully crafted. After Barthel, a blanket ban on personal attacks without further nuance or justification could be suspect. Defining what constitutes a personal attack and distinguishing it from criticism of a public official’s or a staff member’s job performance may strengthen the policy. When prohibiting profanity, it may be useful to define what constitutes profanity and whether there are special considerations that justify limiting or banning it. Any bans on profanity, personal attacks, and/or insults should be supported by a clearly articulated connection to a legitimate government objective.
Considerations for Practice
A local government’s policies are only as good as its practices. In other words, having an enforceable, constitutional policy will not protect a governmental body from liability if it does not apply its policy lawfully. The considerations below aim to help governments do just that.
Training
It is essential for a local government’s board members to know and understand its public comment period policy. This is particularly true for the mayor, chair, or other presiding officer, who is responsible for running meetings and deciding whether to invoke G.S. 143-318.17 to remove a disruptive member of the public. Members should understand both what the policy limits or prohibits and why. That means providing training on both the statutory authority and constitutional concerns underlying the policy, including reminding members that it is critical to apply the policy in a viewpoint-neutral manner. Government attorneys, managers, and clerks should also be trained on the policy to help support the board and presiding officers during public comment periods.
Policy and Legal Citations
If a commenter violates the policy, the presiding officer should be able to identify the portion of the policy that the commenter is violating, clearly and accurately articulate the provision to the commenter, and explain why the commenter is in violation. Any enforcement action should be directly connected to clearly identified and cited prohibitions or restrictions in the policy. If a local government wants to invoke G.S. 143-318.17, it should do so because an individual is materially interfering with the government proceeding, perhaps even above and beyond that individual’s speech alone. When directing the individual to desist or leave, the presiding officer should explain that they are being removed because of a meeting disturbance, not merely because of disfavored speech.
Notice
There is no legal requirement to provide the public with prior notice of public comment period policies. However, doing so may be useful in managing public expectations regarding permissible commentary. Local governments might consider making their policy available online, posting it in the meeting room, and/or having the presiding officer review the policy aloud before the public comment period begins.
Non-Arbitrary Enforcement
A local government exposes itself to liability when it treats similarly situated individuals differently in applying its policy. As a result, local governments should be careful to enforce their public comment policies in an even-handed and consistent manner. Limitations on content should be applied in a viewpoint-neutral manner to preserve the local government’s desired forum classification. For viewpoint-neutrality purposes, if profanity is prohibited, local governments must restrict it equally when used in effusive praise and in vehement criticism. If there is a general ban on signs, all signs must be restricted, no matter who bears them or what they say.
Conclusion
This post concludes this series. As this series has discussed, the statutory framework and constitutional protections applicable to public comment periods aim to balance orderly, productive government proceedings and the public’s fundamental right to express its thoughts and concerns to the government. When this balance is achieved, local governments reap a significant reward in the form of productive meetings and positive public relations.
