Colored drawing by Anthony Jensen

Thursday, December 15, 2011

Item 51: A Primer on Public Input

Item 51 on this week's council agenda has caused some concern, based solely on what one uninformed activist has been publicly saying about it. It's important, as always, to actually analyze the language and to put it in legal and historical context for full comprehension.

Texas law (the Texas Open Meetings Act/"TOMA") allows for governmental entities to provide the public opportunity to give input on items on their meeting agenda. Entities may also grant a citizens communication (or "open forum," "open mic" etc.) portion of their meeting, to allow the public to speak on any issue of concern, apart from what's on the agenda. There are categories of items the entity will define as qualifying for public comment, such as public hearing items, items pulled from the consent agenda for discussion by either councilmembers/legislators OR the public - but not usually for things like presentations given by staff or third parties, or for "consent agenda" items. All these stipulations and processes are spelled out in the entity's policy (as in our City Charter/Code of Ordinances).

To be clear: TOMA doesn't MANDATE that entities give the public opportunity to speak on any matters on their agenda. It ALLOWS for it. "The Act does not entitle the public to choose the items to be discussed or to speak about items on the agenda." (TOMA handbook, pg. 40). Most, if not all, entities do make these allowances; some are more liberal with input than others. The fact that almost all entities do -or to the degree in which they do- is a product of how engaged each particular constituency is. That engagement is key to maintaining a transparent, accountable government. Let's hear it for democracy!!

The "consent agenda" consists of items that are thought by the chair of the meeting to be simple/non-controversial/housekeeping, etc. such that they can get those out of the way, by voting on them favorably in one fell swoop, in order to get to the items that qualify otherwise. Council members/board members/legislators are allowed to "pull" items from the consent agenda to be put on the table, so to speak, for further discussion. They can do this on their own accord (entities decide whether it takes only one member to request it or more than one member) or sometimes they do so in response to a constituent's -or a multitude of constituents- request prior to the meeting such that it avoids being placed on the consent agenda in the first place. The law allows (not 'mandates') entities to devise a process for the public to pull has the City of Austin.

Before Leffingwell was Mayor, it was not standard practice to allow speaking on consent agenda items unless enough people signed up on it to get pulled for discussion. Mayor Wynn did make exceptions if one speaker really wanted to, but not consistently, and Leffingwell picked up on this exception as a matter of habit. Again, this is not something he has to do by law - but is allowed to do in his capacity as the chair of the meeting, so it's considered a "courtesy," not a given.

Despite this gimme towards public input beyond mandates in the law, Leffingwell began curbing citizen input in other respects, most notably by limiting how many times a person can speak on agenda items (his limiting how many meetings a year someone can sign up to speak at citizen communication is concerning, too, but not as legally questionable) and his actions are debatable as to whether they fully comply with our ordinance in place prior to this change, and more symbolically, whether they comply with the "spirit" of the 1st Amendment.

In response to the controversy, Councilmember Morrison (with Councilmember Spelman's assistance)* led the charge to codify some of these questions around citizen input. The Mayor has been somewhat resistant to this effort, as he feels like he gets to run the meeting the way he sees fit; which, frankly, he does as Mayor from a legal standpoint--but it could theoretically cost him politically, if only a smidgeon considering things like F1 and WTP4 will weigh much heavier at the polls.

Item 51 provides for more opportunity for public input during council meetings than we've recently had. The Mayor's changes limited people being able to sign up to speak on more than three items on the consent agenda - and limited speaking on those items to a total of three minutes (instead of three minutes each). To his credit, soon after he became Mayor, he lowered the number of people it took to pull items off the consent agenda for discussion from five to two (five was the standard before his administration). Item 51 improves this slightly to include counting a person who signed up not wishing to speak, but wanting to donate time to another speaker, as the 2nd person which would trigger it getting pulled for discussion.

The ordinance clarifies what the Mayor's practices have been by codifying that a member of the public, along with a second person, cannot participate in pulling more than three items from the consent agenda (those three items pulled would be the first three items that appear numerically on the agenda; i.e., if you sign up on consent items #4, 9, 18 and 42, you will only get to speak to 4, 9 and 18). But where it really improves on the Mayor's changes is that a person is not limited to speaking on items pulled from the agenda otherwise. That can happen by council members pulling items (remember, one can lobby a council member to do that) and by others signing up in pairs to get additional items pulled.

So no longer will the rule apply that you can only speak on three items at a single meeting. Between items pulled otherwise (other than yourself pulling three from consent), and items not on the consent agenda already, the potential to speak on items is essentially back to where it once was before the Mayor imposed his questionable rules. So if you really like hearing yourself talk and want to speak on 25 items at a council meeting, you can again. Is that an effective way to influence policy-makers and make change? Well, that's another blog...

On the items that get pulled from consent, speakers get a full three minutes to relay their concerns on each opposed to items NOT pulled (where you are the only person signed up on a consent item), where you get a combined three minutes to speak on those items. But remember, by law, they don't have to let you speak on these items at all...or anything, for that matter, as strange as that may seem in a free society and since we take for granted we are given the opportunity to do so.

The last piece of this policy attempts to deal with a housekeeping issue: where the City Clerk has been having a hard time administering the speaking list due to a 3rd category in which you can sign up on an item. There's the "Yes, I wish to speak" choice, the "No, I don't wish to speak" (but wish to be on the record as for, against or neutral) and "No, I don't wish to speak unless Council has questions" option. It's made for a little confusion at meetings, so the proposal was to scrap the second "no" option, and Council can simply ask any "no" person to the dais if they feel the need to.

I attribute the confusion to a technical/programming issue - Council doesn't know how to distinguish between the two "no's" while at the dais. I think they simply haven't formatted the system to that level of detail--they're just looking at a compiled spreadsheet of the sign-in system. I spoke with Councilmember Morrison's office about the importance of keeping what seems an innocuous third in my experience as a school board member, I recently called up a teacher to answer a question on an item he had first-hand experience with (he uncomfortably obliged me), and was corrected by another later that his unplanned speaking might have raised some eyebrows by his superiors, putting him in a tenuous position. We as policy-makers should be sensitive to these issues and not put people on the spot like that. Lesson learned.

Since we don't have the the final version yet, I'm not sure what they did exactly, but I think they were set to just get rid of it and have the Clerk find a technical solution to allow for less confusion. It really didn't need to be codified.

I mention that last, mostly unimportant piece mainly because as part of the rich rumor mill this week, it was put out there that this bit allowed the Clerk to go into the meeting's database and change what people actually signed up on. I.E., if you signed up "yes" to speak on an item, she could change you to a "no" (or perhaps the rumor-monger thought she could also change which item you signed up on-it was hard to tell where the conspiracy ended). That's simply not what the language says...and yes, that would be illegal if that were the case, but it's not. It's merely about changing the format of the system people sign up on before the next meeting in January.

And to the last odd issue of thinking that the 1st is impacted by having a rule that people sign up prior to 15 minutes before the meeting starts...huh? How can you run a meeting if you don't have time to organize what is/isn't going to come off consent, since that's done at the top of the meeting? Seems someone's never facilitated a meeting.

The catch in all this is that it is a pilot program, so to speak, an "interim rule." The resolution puts these rules in effect for only two month's worth of Council meetings. The Mayor will decide if it works for him, with Council's input, before considering codifying it "permanently." Even if that happens, the next Mayor/Council can come in and change it all don't get too used to it!

*Click on Item 51 -at 7:20 in- to watch the sponsoring Councilmembers' comments explaining the policy.

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