The Riggins Rules: Selected Excerpts of the Do's and Don'ts for the Conduct of Public Hearings
The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.
1. Don’t accept an appointment or nomination to a Board, Commission, or Council unless you expect to attend 99.9999 percent of the regular and special meetings, including inspection trips, briefings and public functions where your presence is expected.
If your participation falls below 85 percent during any 6 month period, you should tender your resignation. You aren’t doing your job. You aren’t keeping well enough informed to make intelligent decisions, and you are making other people do your work for you.
2. Do create a good impression of city government. Remember that this is the first important contact that many of the people in the audience have had with the administration of their municipality and for some, this is the most important matter in which they have ever been involved. Many will never be back again and many will never have another such contact and experience. Your performance will create in their minds the picture, which they will always carry with them of “the way the city/town is run.” Make it as pleasant and comforting a picture as possible.
3. Do be on time. If the hearing is scheduled at 7:30, the gavel should descend at the exact hour, and the hearing begun, if there is a quorum. If you have to wait ten minutes for a quorum and there are 100 people in the room, the straggler has wasted two full working days of someone’s time besides creating a very bad beginning for what is a very important occasion for most of those present.
4. Don’t mingle with friends, acquaintances, unknown applicants or objectors in the audience before the meeting and during a recess period, if it can be politely avoided. You will invariably create the impression with the uninformed that there is something crooked going on, especially when you vote favorably on the case of the applicant you were seen conversing with. When the other fellow’s case comes up and you deny it, he says, “Well, it’s easy enough to see that you’ve gotta know the right people if you ever expect to get anywhere around here.” Save your socializing for some other time and place.
5. Don’t discuss a case privately and as a single member of a body with an applicant or objector prior to the filing and prior to the hearing if it can be politely avoided. In the event that it is not avoidable, and many times it is not, be very non-committal, don’t be too free with advice and by all means explain that you are only one member of the body.
Be certain that the person concerned understands that you cannot commit yourself in any manner, except to assure him that he may expect a fair and impartial hearing. Even if the case looks pretty good to you it is wise to be pessimistic about the chances of securing approval.
6. Do your homework. Spend any amount of time necessary to become thoroughly familiar with each matter which is to come before you. It is grossly unfair to the applicant and to the city for you to act on a matter with which you have no previous knowledge or with which you are only vaguely familiar. And you will make some horrible and disturbing decisions.
7. Don’t indicate by word or action how you intend to vote during the portion of the hearing devoted to presentations by the applicant, presentations by any persons appearing in objection, and comments by members of the staff.
During this period your body is the judge and the jury and it is no more appropriate for you to express an opinion as to the proper decision, prior to hearing all of the testimony, than it would be for a judge or any member to announce his firm conviction in the middle of a court trial regarding the guilt or innocence of the defendant
This is not clearly understood by a majority of persons sitting on hearing bodies. It is not too difficult to phrase one’s questions or comments in a manner that implies that you are seeking information rather than stating an irrefutable fact and that your mind is closed to further argument
8. Don’t fail to disqualify yourself if either directly or indirectly you have any financial interest in the outcome of the hearing, and let your conscience be your guide where it could be said that moral, ethical, political, or other considerations, such as personal animosity, would not permit you to make a fair and impartial decision.
In disqualifying yourself, do not state your reasons inasmuch as the mere statement of your reasons can be construed as exerting influence on your fellow members. To avoid all accusations of undue influence, it is generally wise to leave the room and ask that the record show that you did so and that you did not indicate by word or action whether you were in favor of, or opposed to, the matter under discussion.
9. Do rotate the seating in some regular manner each successive meeting to prevent a “strong” member from gradually dominating a “weak” and indecisive member always seated next to him. This will also prevent the forming of little cliques or a not infrequent grouping of members to the left of the Chair who always oppose those to the right of the Chair, regardless of the merits of the case, to the great detriment of the applicant, the City and other interested parties.
10. Do be attentive. Those appearing before you have probably spent hours and hours rehearsing their arguments. The least you can do is listen and make them think that you are as interested as you should be. Refrain from talking to other members, passing notes and studying unrelated papers.
11. Don’t interrupt a presentation until the question period, except for very short and necessary clarifying remarks or queries. Most applicants have arranged their remarks in a logical sequence and the thing about which you are so concerned will probably be covered if you force yourself to be quiet for a few minutes.
12. Don’t permit a person to directly question or interrogate other persons in the audience. All questions should be addressed to the Chair and to the hearing body. When this person has finished his discussion and stated the questions to which he would like to have answers, then the Chair will permit those who care to make an answer to come forward and do so, but only voluntarily. Do not permit anyone to demand answers to all and sundry questions, especially if it is obviously done for the purpose of harassment.
13. Don’t use first names in addressing anyone at all during the course of the hearing. This includes audience, applicants, members of your particular body, even if the person concerned is your brother or your best friend.
Nothing, repeat nothing creates a more unfavorable impression on the public than this practice. It is poor “hearing manners,” destroys the formality of the occasion, and makes the uninformed certain that some sort of “buddy-buddy deal” is about to be consummated. If you just can’t bring yourself to call someone Mr. or Mrs., use the third person form and call him “the applicant,” or “the person who is objecting,” or “the gentleman (or lady),” who is appearing here in connection with this case.
14. Do show great respect for the Chair, always addressing the Chairman as “Mr. Chairman,” “The Chairman,” or “Chairman Jones,” and always wait to be recognized before continuing. This will set an example for applicants and others wishing to be heard and will contribute a great deal toward the orderliness of the proceedings.
15. Don’t try to make the applicant or any other person appearing before you look like a fool by the nature of your questions or remarks. This is often a temptation, especially when it is apparent that someone is being slightly devious and less than forthright in his testimony. But don’t do it. If you must “expose” someone, do it as gently and kindly as possible.
16. Don’t become involved in altercations. Some persons seem to come to hearings with the express purpose of “telling them guys down there how the cow ate the cabbage.” If you answer their irrelevant rantings, you are immediately involved in a fight.
Don’t answer or try to defend yourself. You are there to hear testimony and make decisions based thereon, not to head up a debating society. Remember, you are the judge and jury. In most cases, it is sufficient to say, “thank you for coming here and giving us the benefit of your thinking. I am sure that the members of this body will give your remarks serious consideration when they are making their individual determinations on the merits of this case. Is there anyone else who wishes to be heard?”
17. Do invite interested parties to come forward where they can see when an applicant is discussing or talking from a diagram, site plan, or exhibit which is not visible to the audience.
18. Do not permit people to leave the podium or the microphone and approach closer to the hearing body except in unusual circumstances, usually to show a small exhibit or to explain some detail. This ordinarily breaks down into a small mumbling session at one end of the dais with one or two members of the hearing body, the others are uncertain about what is going on. The conversation usually does not get recorded, cannot be heard by the audience, and is almost impossible to control from the Chair.
19. Don’t become involved in neighborhood quarrels or wind up as the referee even if you are a veritable Solomon. No matter how fair or impartial you should be, both sides will be mad at you. Stick to the merits of the case and rule out-of-order testimony which is irrelevant, personal hearsay, and not pertinent to the matter being heard.
20. Do not fail to give a reason when making a motion for approval or denial of an applicant’s request. If you fail to do this, the applicant, any objectors, a reviewing body of higher authority, or the courts may well assume that your decision was an arbitrary one not supported by the facts and should be reversed. Always mention the staff recommendation.
21. Do not take staff recommendations lightly. These recommendations are made after much study by professional people with years of experience in their field and are based on pertinent laws, ordinances, regulations, policies, and practices developed by you and your predecessors. The recommendations of a good staff in possession of all the facts will almost always produce a technically correct recommendation.
Your job is to temper this recommendation with information developed during the hearings, which was not available to the staff. It is not unusually for the staff to voluntarily reverse or change the details of its recommendation during the course of a hearing. Always announce the staff recommendations prior to hearing any testimony and always make appropriate mention of it in the final decision.
22. Don’t forget that the staff is there to help you in any way possible. It is composed of very capable professional people with vast experience. Lean on them heavily. They can pull you out of many a bad spot if you give them a chance. Or they may just sit and let you stew, if you do not give them the respect, which is their due. Remember that their usual practice is to remain silent unless they are specifically asked to comment. Most of them consider it presumptuous and unprofessional to inject any unsolicited comments into the hearings. Always ask them to comment prior to the final vote.
23. Don’t try to answer technical questions even if you are sure that you know the answer. You probably don’t and will wind up looking like a fool. Refer these matters to staff. That is one of the things they are there for. They have intimate day-by-day working experience with all the pertinent ordinances and can nearly always give a timely, up-to-the-minute, professional dissertation on any subject in their field.
24. Don’t try to ease your conscience and toss the applicant a bone by granting him something less than he asked for, something he doesn’t want, and something he can’t use. In all cases where it is appropriate, give him what he asked for or deny it. To do otherwise will only encourage applicants to ask for the “moon and the stars” in the hope that they will, at the worst, get the minimum requirements. A reputation for approving or denying applications as filed will result in much more realistic requests and make your job much easier.
25. Do vote by roll call, except for routine administrative matters. This is wonderful character training for each member of the body and emphasizes the “moment of truth” when he must look the applicant in the eye, make his own individual decision, and say “aye” or “nay” in a loud clear voice, all alone, with no one to hide behind. The alternate voting method is difficult for the Secretary to record, doesn’t mean anything on a tape recording, is many times quite confusing and gives cowards an opportunity to change their minds and vote twice when they are caught in the minority.
26. Don’t show any displeasure or elation, by word or action, over the outcome of a vote. This is very bad hearing manners and won’t lead to the maintenance of a friendly cooperative spirit among members of the Body. It will lead to the creation of little cliques whose members vote in a block and become more interested in clobbering each other than in making fair and equitable decisions.
27. Do discourage any post-mortem remarks by applicants, objectors, or members after the final vote and decision are announced, especially those afterthoughts designed to reopen the case. It will invariably result an unpleasant wrangle. Just say, “I’m sorry, but the final decision has been made. If you wish to submit additional testimony, it will be necessary for you to state your reasons by letter and the Body will decide at a subsequent meeting whether or not they wish to reopen the case. The next case on the agenda will be ______________.”
28. Do sit down and have a long soul searching session with yourself if you find you are consistently “out in left field,” that no one seems inclined to second your profound motions, and that you are quite often a minority of one. You might be theoretically right, and probably are, but give some thought to what is practical, and just. Don’t be “stiff-necked” in your opinions. Give a little.
Originally drafted by Fred Riggins, Former Chairman of the Phoenix, Arizona Planning Commission Adapted from the “Planning Commissioners Journal” Number 13/Winter, 1994