Clarity needed on rules for public participation


If you thought you had a constitutional right to speak at public meetings held by your local government, unfortunately you’d be wrong. While New York State law requires public hearings when local laws or ordinances are being considered, and most city, county, and school district governments have traditionally allowed public comments at regular meetings, the rules governing those comment sessions are almost entirely up to the governing body to determine.

In regards to public participation at regular meetings, the New York State Committee on Open Government only advises that if a public body decides to allow public participation, any rules they make must “treat all persons in a like manner.”

New York State offers some guidance on how to conduct public hearings, but also gives wide latitude to local governments as to how they are organized and conducted.

I’ve been listening to people speak at city council meetings for nearly seven years now. Most of the time, the sessions go fine, but I’ve been noticing a few things that I believe are creating an increasingly contentious atmosphere which may be dissuading people from participating.

The switch to online meetings this past year has brought out a few new issues as well. I believe the problems are easily fixable, and should be looked at before the upcoming public hearing on the Police Reform and Reinvention Plan coming up on March 16.

The question as to whether a commenter has to state their full name and address in order for them to proceed with their comment has been a somewhat selectively enforced rule in past years when hearings were in-person.  The issue has come up recently in virtual meetings as well.

Many times, commenters state their name and address without even being asked. Other times, commenters have stated neither without any objection from the council.

Every time a commenter has been asked for an address, they have always given it, except for in one case that I can remember.

During public participation at a meeting held over a year ago, back when meetings were in-person, a regular commenter, who had always given his full name during previous sessions, was asked by Alderman Jim Martuscello to also provide his address. This particular commenter pushed back, stating he didn’t need to state his address. Martuscello didn’t press the issue any further.

The only official guidelines I can find in the city code that apply to public participation are in section 15-2 F(8):

a) The public participation portion of the meeting shall be before the old and new business.

b) In the public participation period, any person may speak on any topic whatsoever, within the bounds of propriety, as determined by the Chairperson.

c) The person shall speak no longer than five minutes.

d) Any response by a person recognized by the Chairperson shall not exceed three minutes.

I don’t find anything in the city’s charter or code that pertains to rules for public hearings.

Looking at New York States guidelines for public hearings, we can read

The clerk should record the names of those persons wishing to testify at the hearing. Participants should be invited to sign in as they enter the hearing room. This is especially useful where a record is desired of individuals and groups who are interested in testifying. Witnesses should be arranged to testify according to a pre-determined order. It is recommended that expert witnesses and public officials testify first, then persons representing organizations, followed by individuals. (An alternative system would follow a first-come, first-served order, using a sign-in roster.)

So it seems to me we have guidance that government bodies should ask for full names, but it hardly reads as an iron-clad requirement, and I see no guidance to ask for addresses.

Either way, at the end of the day, the council can still make whatever rules it wants, as long as they are reasonable, consistent, and allow everyone equal access. The chairperson of a meeting, usually the mayor, can also use discretion to keep the conversation under control. Again – as long as the rules are applied consistently.

During a public hearing, held online on February 16, where the subject of the controversial sale of the city’s municipal golf course clubhouse was discussed, the issue of names and addresses came up once again.

After several comments posted to the city’s Facebook page were read by the city clerk, one was read without stating the name first.

Corporation Counsel Anthony Casale first tried to interrupt, and then stated, “let’s make sure that any comments – we need to be able to have the full name of the person.”

Pointing out that some Facebook accounts use “monikers” instead of the account holder’s full name, he added “we need to know who’s making the comments.”

Alderman Martuscello asked, “Is there an address?”

No address from any previous commenter had been requested.

When the commenter’s screen name was read – “Lily Ann” – Casale said, “There’s no last name given either? That’s not a legitimate public comment for this public hearing. Let’s move on to the next one please.”

Several minutes later, a comment from someone with the first name listed as “Skip”, a popular nickname, but less popular legal name, was not challenged or judged “illegitimate” by the corporation counsel.

Eventually, Alderman Pat Russo pointed out that “Lily Ann” had since posted her full name and address and then were her comments were read aloud.

No doubt, city officials were already feeling stressed as nearly all the comments were critical of the sale of the clubhouse. However the rather conspicuous singling out of one commenter, as well as Casale’s repeated statements reminding the council that “we don’t have an obligation to debate” all lent to an overall tense and defensive atmosphere.

So while the council is well within its rights to set reasonable rules for public participation, Mayor Michael Cinquanti, who is the chairperson of the council, really should make the rules clear from the beginning instead of deferring the job to the corporation counsel to testily bring them up in the middle of the session. Furthermore, as the chairperson, it is also Cinquanti’s job to make sure those rules are applied consistently.

Instead of approaching a public hearing as if it were a courtroom battle, public officials would do well to look at these sessions as opportunities to build trust with the public by being fair and open about answering questions, even if they contentious. I don’t think that happened at the February hearing. But the upcoming hearing on the police reform plan is another opportunity to do better.

Tim Becker

Tim Becker is the owner of Anthem Websites Inc. which publishes The Compass. He serves as both editor and a writer.