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.
Public boards and bodies can sometimes find themselves in a situation where they are struggling to manage public comments. Whether it is the result of a particularly contentious issue, comment periods running too long and extending meetings to an unreasonable length, or simply a lack of organization, sometimes public comment can become a burden on a public body's ability to conduct business. Knowing the tools you have at your disposal, and when public comment is necessary versus optional can help public boards and bodies manage this issue.
Q. Is public comment required at all gatherings of a public board or body?
A. No. Some may find this surprising, but public comment is only legally required during public hearings, not public meetings (with a few possible exceptions). However, for the most part, the biggest distinction between a public meeting and a public hearing is the public’s right to comment. And even during a public hearing, in many instances, only certain individuals have a legal right to be heard. This is not to say that boards or bodies can’t allow the public to be heard at meetings. In many instances it can be a good idea to allow some level of public comment. But knowing the legal limits and requirements is your first tool in understanding your options if things start to get out of hand. Under RSA 91-A, the public has a legal right to attend public meetings. They have a right to watch, listen, take notes or record. But they do not have a right to provide written or verbal comment unless you choose to give it to them. If a public board is going to choose to allow public comment, it is vital that you first establish clear and written rules of procedure outlining the public comment rules as explained below.
Q. How do I know if public comment is required versus optional?
A. The first, and most important, authority for determining the answer to this question is the New Hampshire RSAs, or statutes. Whenever a board or body seeks to accomplish something, it is important to check the RSAs to see what type of action is needed. For example, if the library trustees wanted to accept unanticipated money from the state, federal or other governmental unit or a private source they would need to refer to RSA 202-A:4-c. Under this statute, if the amount is less than $5,000, the statute says that the trustees may accept this money in public session of any regular library trustees meeting. However, if the funds are in the amount of $5,000 or more, the library trustees must hold a prior public hearing. So, what is the difference? The answer is public comment. While the library trustees could choose to allow public comment during a meeting to accept less than $5,000, they are not legally required to do so. However, for $5,000 or more, the law requires the trustees to hold a hearing and inherent in that requirement is the public’s right to speak and be heard.
The second consideration for determining the answer to this question outside of the strict statutory requirements is personal preference, or perhaps putting it another way, common sense. What I mean by this is that there are certain powers vested in public boards or bodies that do not require a public hearing, and thus do not require public comment. However, if such a decision would have a significant impact on the residents of a municipality, it may make good sense to open the meeting up to public comment, essentially turning it into a public hearing, so that the public feels that their input was considered on such an impactful decision. For example, the select board is granted broad authority under RSA 41:11 to regulate the use of town highways. These regulations can legally be implemented at a regular meeting of the select board, no hearing is required. However, many select boards choose to host a public hearing anyway before changing the rules of a town road that will affect everyone in town.
Q. How can a board or body best manage public comment?
A. Rules of procedure! Having clear, written, rules of procedure governing public comment is the single best tool available to public boards and bodies. These rules will apply to comments during public hearings, where the public must be heard, as well as public meetings should you choose to allow a public comment period. Whenever public comment is allowed, or required, there are 1st amendment concerns to be aware of, but there are still many time, place, and manner restrictions which can be implemented. Boards can implement specific sign up procedures for those who wish to speak, time limits on how long one person can speak, limiting comments to a specific topic that is being discussed, restricting duplicative comments, allowing everyone who signed up to speak to get a turn before anyone gets a second turn, and limiting public comment periods at meetings to a specific length of time. The restrictions that you want to avoid, based on the 1st amendment, are rules that restrict the content of what people are saying. It would be improper, for example, to implement rules like positive comments only, no swearing or obscenity, preventing a specific person or group from speaking, or preventing a specific viewpoint from being discussed. These types of restrictions would potentially run afoul of the 1st amendment. It is also important to remember that while public boards and bodies may be required, or choose, to allow public comment there is a difference between public comment and public interrogation. The board may be required to hear the public’s comments, but they are not required to respond. It should be made clear in your rules of procedure that board members will not be expected to answer questions or engage in back and forth discussions during public comment periods unless required as part of a public hearing process.
Q. How can public comment rules of procedure be enforced?
A. The first step in being able to enforce public comment rules of procedure is to, 1. Establish the rules, 2. Write them down, and 3. Make them available and known to any member of the public who may wish to speak. It is a good idea to have a copy of your rules available on your website, posted on the wall somewhere in your regular meeting place, and to have printed copies available to hand out during meetings or hearings. It would be functionally impossible to enforce your rules if they were not clearly written and made known to the public before an issue arose. If someone is not adhering to your rules, you need to start by reminding them of the rules and giving them multiple opportunities to comply. While not a hard and fast rule, it is commonly suggested to use at least a three strikes approach when enforcing your rules of procedure. What this means is that you should give someone at least three chances to follow the rules before you consider having them removed from the meeting or cutting off their right to speak.