Running a Smooth Public Hearing

New Hampshire Town and City, April 2011

By C. Christine Fillmore

Municipal boards and commissions are often required to hold public hearings. Some involve decisions affecting people's property or rights ("quasi-judicial" hearings), such as planning board hearings on land use applications. Others are legislative and held to gather input, such as budget committee hearings on proposed budgets or hearings on changing the size of the selectboard. In either case, when the issue is one about which people disagree and have strong feelings, things can get heated. It can be difficult to balance the rights of the public to be heard against the need to conduct a fair, orderly and efficient hearing. Throughout the process, it is important to consider the rights of the parties involved, the logistics of the situation and the practical need to keep the business of the municipality moving forward.

Public Hearings
There is one important difference between a public meeting and a public hearing. At a public meeting, the board holding the meeting is there to conduct its own business and usually is not required to accept public comment. On the other hand, the purpose of holding a public hearing is for the government to obtain public testimony or comment on a particular matter. This article focuses on hearings.

In some cases, a statute grants specific parties a right to be heard. For example, when someone applies to the planning board for approval of a subdivision, "any applicant, abutter, holder of conservation, preservation or agricultural preservation restriction, or any person with a direct interest in the matter" must be allowed to speak at the public hearing. RSA 676:4, I(e). If any of those "parties in interest" are represented by an attorney, the attorney may speak for them during the hearing. The same principle usually applies in any quasi-judicial matter where the government is making a decision that will affect someone's property or specific rights.

In other cases, where there are no direct parties in interest, the purpose of the hearing is for the board to obtain testimony from anyone who wishes to provide it. For instance, a conservation commission might hold a public hearing regarding a proposal to purchase conservation land. RSA 36-A:5. The purpose of this sort of hearing is to gather comments from the public in general on that specific issue to help the board make a decision, so any member of the public should be allowed to speak or submit written testimony.

With those general principles in mind, there are a variety of ways a board can respect the rights of the public and still conduct a smooth public hearing.

Ground Rules
One of the best ways to prevent disorder is to use basic ground rules balancing the public's right to be heard with the need to move things along. Announce the rules clearly at the beginning of the hearing so that everyone understands the procedure from the start. This may be done in writing and/or verbally, but verbally is often more effective. It may be necessary to repeat the ground rules periodically during the hearing if they are not being followed or there appears to be confusion. It is critical that, once rules are announced, they are enforced consistently and fairly.

Ground rules for speaking at a public hearing must also respect the rights of the public to free speech in a public forum or designated public forum, such as a public hearing under the First Amendment to the U.S. Constitution. This means the restrictions should apply only to "time, place and manner" of the speech, and not the content of the speech. See Spaulding v. Newport, et al., CV-94-316-SD (1/31/96).

Common ground rules for public hearings (also useful for public comment portions of public meetings) include:

• Time limits for each person's remarks (discussed more below);
• Prohibition on excessive repetition and irrelevant remarks. White v. Norwalk, 900 F.2d 1421 (9th Cir. 1990);
• Limiting testimony or remarks to a particular subject matter or topic. Jones v. Heyman, 888 F.2d 1328 (11th Cir. 1989). Thus, if the hearing involved the potential purchase by the town of conservation land, it would be proper to limit comments to that subject, but both positive and negative comments on that subject matter must be permitted. See, e.g., Madison Joint School District No. 8 v. Wisconsin Employment Relations Commission, 429 U.S. 167 (1976) (U.S. Supreme Court found violation of First Amendment when public board prohibited negative comments); Leventhal v. Vista Unified School District, 973 F.Supp. 951 (S.D. Cal. 1997) (prohibition on criticism of school employees by public was unconstitutional);
• Prohibiting obscenity and similar conduct, although it may be difficult to draw the line in any particular place on this issue. Courts have gone both ways on prohibitions on personal attacks, rude or possibly slanderous remarks, etc., so it is unclear how strict a guideline may be and still comply with the First Amendment. See Bach v. School Board of the City of Virginia Beach, 139 F.Supp. 2d 736 (E.D. Va. 2001) (prohibition on "personal attacks" was unconstitutional); compare with Scroggins v. Topeka, 2 F.Supp. 2d. 1362 (D.Kan. 1998) (prohibition on rude, personal or slanderous remarks was legal).

Sign-Up Sheets
This is a commonly-accepted practice and is very helpful for controlling hearings at which numerous people wish to speak. The best process is to place a sign-up sheet in a central place where it is accessible both to the board and to the public. The public should be informed multiple times, both before and during the hearing, that if they wish to speak, they should sign up to do so. If a person is physically unable to get to the sign-up sheet or needs assistance, the board should provide whatever assistance is required promptly.

If a sign-up sheet is used, testimony should be taken in the order in which people have signed in. This maintains fairness and avoids having a long line of people jostling to reach the microphone to speak. It is generally acceptable to provide that people who wish to speak more than once must wait until everyone who wishes to speak has had a chance to do so once. But, again, if this is the procedure, the board should enforce it consistently.

Opening Remarks and Legislative Hearings
For a legislative hearing (such as a hearing on the proposed budget), it is a common practice for the board holding the hearing to provide information at the start of the hearing about the subject at issue so that testimony can be obtained in response to the presentation. Ordinarily, the presentation occurs before the hearing is officially opened to public comment, and time limits and other restrictions do not apply to that presentation. The purpose of the presentation is for the board or its designee, such as a consultant working with the municipality, to present the proposed project fully to the public. This allows the public to have the same knowledge about the project as the board does, and permits them to make meaningful comments and give relevant testimony. (When the hearing is quasi-judicial, opening remarks do not occur; the board simply opens the hearing and begins accepting testimony from the parties.)

A related issue is whether the public should be permitted to ask questions of the board. This is not required. The purpose of a hearing is to give the public the opportunity to speak and be heard. If a board wants to allow questions and answers, it may; however, as with other rules of procedure, it should be made clear to the public from the beginning (and again along the way, if necessary) what the ground rules are about questions. If questions are not permitted, it may be best for the board to refrain from asking any, either, as this would give the appearance of unfairness on the part of the board. It is also possible that if questions are allowed, it may become more difficult to maintain order.

Time Limits and Repetitive Comments
Reasonable time limits on each person's comments might be imposed, but they should be different depending upon the type of meeting or hearing involved. In the context of public comment periods at public meetings, time limits of three to five minutes on each person's testimony have been found acceptable within the framework of the First Amendment's protection of free speech. See, e.g., Wright v. Anthony, 733 F.2d 575 (8th Cir. 1984). However, when there are specific parties in interest at a public hearing (such as a land use applicant), time limits should be used sparingly and should be considerably longer. A party in interest is one whose property rights are at issue, and limitations on that party's ability to speak should be imposed only if necessary. It may be acceptable to place a limit of three to five minutes on testimony by those who are not parties in interest. In any case, time limits and how they will be applied should be announced at the beginning of the hearing, and should be enforced consistently to maintain fairness.

It is a closer question whether the number of times a person may speak can be limited. It is inadvisable to limit people to speaking only once. A limit of twice may be acceptable, although there are no clear answers from the court. What is reasonable may depend upon how complex the subject is and whether or not the person simply repeats the same comments over and over. If a person insists on making excessive repetitive remarks that are preventing the hearing from continuing, then the person may be asked to stop or to leave the room, as discussed below.

Disorderly People
One of the most challenging aspects of a hearing on a contentious issue is dealing with people who become unruly or refuse to cede the floor. No one has the right to disrupt a public proceeding and prevent it from continuing. At the same time, however, the rights of the public to speak must be respected.

The New Hampshire Supreme Court has found that a person disrupting a public meeting may be asked to stop and, if he or she refuses, may be removed from the meeting. State v. Dominic, 117 N.H. 573 (1977). A public hearing is a type of public meeting at which the government's business is being conducted, so it is logical to conclude that this rule may be applied to any public proceeding so that anyone who prevents the business of the meeting or hearing from continuing may be asked to stop and, if they refuse, may be removed from the room.

The Dominic case, involving a selectboard meeting, is very instructive. The defendant, a selectman himself, was found guilty of disorderly conduct after he continually interrupted the person who had the floor and was trying to speak. The chairman of the board repeatedly asked the defendant to stop interrupting, but he would not, and the chairman had him removed from the meeting by a police officer.

The Court was asked whether the chairman could legally order the defendant to be removed from the meeting, and found that the chairman could do so. Of particular interest is the Court's agreement with the trial court's findings that "the disorder at the Selectmen's meeting … became so great that the Board ceased to be a deliberative body and could not at that time perform its proper function of consideration of the affairs of the Town." Id. at 575. The officer presiding over a public proceeding has the responsibility of conducting it in an orderly manner. Id. If a person refuses to come to order and disrupts the proceeding, the presiding officer has the authority to order that person from the room, and to have him or her removed if they do not comply.

The Court was also asked whether removing the defendant from the proceedings violated his right to free speech under the First Amendment. As the Court found, a reasonable regulation of the manner in which a person may speak does not violate any right to freedom of expression. In the case of a public proceeding, when a person's conduct prevents the governmental body from continuing to conduct the proceeding, the governmental body may act to maintain order and to protect the rights of others to speak in an orderly manner. Id. at 576.

Some general guidelines may be drawn from this reasoning and applied to public hearings: set simple ground rules about time limits, use a sign-up sheet and confine testimony to the subject at hand. The chair should be clear with anyone who interrupts, refuses to cede the floor, or insists on making excessively repetitive or irrelevant remarks, and explain that they should come to order. If a person is asked to stop this behavior repeatedly and refuses, he or she may be asked to leave the room. If they refuse, the chair may ask a police officer to remove that person.

Recesses and Continuances
It may be necessary to call a recess if the board needs to consult with its attorney, or to maintain order, or to allow the public to stretch their legs. A short recess may be called at any time. The board should be clear about the length of the recess and should not reconvene the hearing any earlier than the announced time.

A public hearing may also go on for a very long time. It is not advisable to place an absolute time limit on a hearing because this could frustrate the purpose of the hearing (to allow the public to speak). However, it is acceptable to establish a time limit at which a continuance will be called if necessary. In this case, the board should announce the time, date and place for the continued session of the hearing before suspending the hearing for the evening. So long as this step is taken, the board does not have to provide additional notice in the press or post additional notice for the continued session. See, e.g., RSA 676:4, I(d); Nottingham v. Harvey, 120 N.H. 889 (1980) (recess of hearing without posting of additional notice did not violate RSA Chapter 91-A where time, date and place of continued session was announced at first session of hearing). Of course, the board may provide additional notice as it feels is appropriate under the circumstances. It is always acceptable (and often a good idea) to provide more notice than the minimum required by law.

Christine Fillmore is a staff attorney with the New Hampshire Local Government Center's Legal Services and Government Affairs Department. Local officials in New Hampshire Municipal Association-member municipalities may contact LGC's legal services attorneys for more information on this and other topics of interest Monday through Friday, from 8:30 a.m. to 4:30 p.m., by calling 800.852.3358, ext. 384. School officials should contact the New Hampshire School Boards Association attorney at 800.272.0653.