Keeping the “public” in public business gets complicated

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The Amarillo City Council once tried to ban clapping at its meetings, then decided to start meeting at 7 a.m., a move some local critics claimed was done to reduce public input. Finally, last year, the council moved all public comments to a work session an hour before the regular meeting.

In South Texas, Hidalgo County commissioners and the city councils of Pharr, Mercedes and Donna elected to completely halt public comment at meetings.

So did the City of McAllen, where council members claimed that someone could get sued over remarks made by citizens.

Such actions paved the way for the Texas Legislature this year to pass a law requiring that all local governments allow public comment before votes are taken on agenda items.

The problem, though, is not quite fixed. Some public officials trying to implement the new law are finding it isn’t easy.

The Texas Municipal League has issued an updated, four-page interpretation of the law, as its initial one-page memo did not answer enough questions from its membership.

The Texas Association of School Boards sent a memo letting its members know of the new requirements. The group is working to make sure school trustees and staffers grasp the details.

“We think the intention is to put the comments before the decision is made … which makes sense,” said Joy Baskin, director of legal services at TASB. But she said the term “consideration’ of an item,” used in the new law, is not defined in the Texas Open Meetings Act.

“If this speaking allowance pertains only to action items, we’d like to know that for sure,” Baskin said.

The association is advising that time limits be set for public comments only when major, divisive issues are being considered, and that, in those cases, individuals be allowed at least one minute to speak.

Then there are Williamson County commissioners, who concluded that the law’s requirements would be met by limiting the total time of public comments to ten minutes for items not on the agenda and 30 minutes per item for issues that are on the agenda, regardless of how many people want to speak. Individuals speaking on the latter would be limited to three minutes.

The move turns a law aimed at increasing public input into a clock-watching exercise that puts the burden on the people it was supposed to help. Previously in Williamson, just north of Austin, residents and others were allowed three minutes each to air their gripes whether they pertained to an agenda item or not.

Still confused? So are many of the 9,000-plus state and local government bodies affected by the law, which took effect Sept. 1. HB2840  requires all local school boards, cities, counties and other municipalities to allow a public speaking session related to agenda items that will be voted on.

Further, the law requires those bodies allow that input before taking a vote on any item.

Governmental bodies that allow public comments before an agenda item is discussed, including comments on items that will be voted on, are probably safe.

The public comments can also address the consent agenda, which is usually reserved for routine items like repeated payments but can also be used to sneak through controversial items.

The law, while forcing agencies to permit comments, does not prescribe how that is done or how long an individual should be allowed to speak. 

If the new law makes meetings unduly long, government bodies are allowed to impose time limits on speakers. But providing some time for members of the public to speak is now mandatory.

Governmental bodies in Texas were previously not required to allow public comment and there are a few that still do not.

Some government agencies were putting the public comment section of the agenda to the end of the meeting, said Curtis Smith, chief of staff for the bill’s author, state Rep. Terry Canales, D-Edinburg, which means action would already have been taken by the time public input was heard.

The law doesn’t apply to state agencies or to boards or committees that are merely advisory, such as a planning commission. It does apply to the governing bodies of special districts and to nonprofits that spend public money. 

In Denton County, where commissioners have battled with locals over the specifics on a Confederate monument for over a year, Commissioner Hugh Coleman offered a comment that has also been made by several other elected officials.

“I don’t think [the bill] was for us, but I am sure there are entities where it’s needed,” he said. “We’ve always had an item for public comment but we regulate time and manner. They can’t make us allow the people to talk on and on.”

The Freedom of Information Foundation of Texas gets more questions on open meetings than public records, likely because the meetings are the first and easiest point of engagement between the government and the public. Executive Director Kelley Shannon said she’s received a couple calls on HB2840, including one from a resident who said his city council was going to move the public comment period from the city council meeting itself to an advisory committee meeting in order to provide time for all the speakers.

The caller was told that such a move “was not in the spirit of the bill,” Shannon said.

Although the law went into effect Sept. 1, governmental bodies are still working on their policies to implement it, Smith, the Canales office chief said, and it may require further legislative tweaks.

But it is already serving its purpose. In September, without addressing the new bill that would have prohibited the practice, the city council in Amarillo adopted a format under which the comments will be heard at the beginning of meetings.

Amarillo City Manager Jared Miller did not respond to a request for comment.

Steve Miller can be reached at [email protected].

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