Hanneke Continues To Seek Limits On Public Discussion

Report On The Meeting Of The Governance, Organization, And Legislation Committee, March 15, 2023

This meeting was held over Zoom and was recorded. The recording can be viewed here.

Present
Pat DeAngelis (Chair), Mandi Jo Hanneke, (at large), Lynn Griesemer (Council President, District 2), Jennifer Taub (District 4). Absent: Michele Miller (District 1). Taub left the meeting at 10:30 a.m.

Staff: Amy Rusiecki, Assistant Superintendent of Public Works, Athena O’Keeffe, Clerk of Council

17 members of the public attended.

The bulk of the meeting was devoted to discussion of two proposed changes to the Town Council’s Rules of Procedure: a proposal to change rule 5.1 to limit public comment to 30 minutes and to exclude non-residents from public comment; and a proposal to change rule 7.2 to cut off debate among the councilors themselves at 20 minutes, unless the council proactively votes to continue debate. The proposal to limit public comment to 30 minutes and to prohibit non-residents from giving public comment was first taken up and recommended unanimously (4-0) by GOL at their meeting on March 1 (Jennifer Taub, who opposed the changes, was absent) and was then resoundingly objected to by members of the public and several town councilors at their meeting on March 6. The council then voted to send the proposal back to GOL for reconsideration.

GOL also continued to discuss new water and sewer regulations, a revised bylaw for ice and snow removal, and a new proclamation to be issued by the Town Council.

Public Comment
Lynn Griesemer asked that since the primary topic at hand, the proposal to limit public comment, was a referral back to the committee, that the members of the committee speak to the issue before the committee takes public comment.

Jennifer Taub said that she doesn’t support changes to public comment other than Michele Miller’s suggested change to rule 5.1 enabling the chair to reduce the maximum length of comments to 2 minutes when there are many people waiting to speak. She said she opposed referring this issue back to committee, as considerable opposition to the proposal was evident at the March 6 council meeting. She added that she especially opposes closing off public comment to anyone who hasn’t raised their hand at the start of the comment period, noting that some people require a bit of time to build up the courage to speak at a meeting and that some may decide they need to speak in response to something previously said.

Miller, who had a scheduling conflict and was not in attendance, submitted comments via email. She wrote:

“I strongly disagree with limiting public comment at this time, when the charter is in its infancy, and we have not explored other ways to reduce meeting times. Many residents have expressed concern about limiting public comment and doing so now would undermine the trust we are seeking to build with the community. 

“As we approach a charter review, it is critical we ensure the public that our new form of government enables a healthy and robust democratic process. We have other ways to reach the objective of reducing meeting times and I urge us to creatively consider other possibilities before making changes that limit the public’s ability to provide valuable input.”

Pat DeAngelis took exception to Miller’s comments, chiding her for her absence and, inaccurately, for  not notifying the committee in advance. (Miller had in fact notified members of the committee via email the day before). DeAngelis also complained that Miller had supported the proposal to limit public comment at the previous GOL meeting and was now changing her position without being present to explain the change. “I am uncomfortable with her offering these comments at this time,” DeAngelis groused. “I wish she had spoken up more clearly at the last meeting.”

Town Councilor Dorothy Pam (District 3) said, “I have received a large volume of mail from constituents supporting widespread public participation, inclusion, and involvement. That’s what we should be doing. I do not support these proposed changes.” She added that she agrees with reducing the amount of time for each speaker when there are many others waiting to speak. 

During public comment, Janet Keller (District 1) said that she does not support the changes being proposed, and agrees with the assertion that it is not public comment that is causing the workload of the council to be so onerous. “We need to look at why the workload is so heavy and meetings are so long,” she said. “When we [the public] show up in these kinds of numbers, it’s because we feel the need to reassure ourselves that our elected officials understand the importance of the decisions to our lives. We take this seriously, We need to be heard.” 

Birdie Newman (District 3) said that it is essential that the public be heard and that she opposes all of the proposed changes. 

Toni Cunningham (District 1) also expressed opposition to limiting public comment and excluding non-residents’ voices. ”The proposed rule change runs counter to democratic principles. Public comment is not at fault for long meetings.” She suggested that the council do a better job of prioritizing the issues that they take up.

Anita Sarro (District 5) agreed that the council needs to find ways to make meetings less onerous, but the solution should not entail constraints on public comment. “There is a need for people to express their points of view — and there is a need for councilors to hear our voices in order to make good decisions on our behalf,” she said.

Rules of Procedure Review: Section 5.1 Public Comment
Mandi Jo Hanneke, who proposed the constraints, said that a new decision by the Supreme Judicial Court on a case filed against the Southborough, Massachusetts selectboard suggests to her that our town’s guardrails on public comment are insufficient, and reiterated that they must be revised.

“I’m just looking for a way to shorten our meetings.”
Town Councilor Mandi Jo Hanneke (at large)

The Southborough decision found that a resident, Louise Barron, who insulted members of the selectboard at a 2018 meeting had a right to express her sentiments and that the board had acted inappropriately in curtailing her freedom of speech (see also here, here, and here). According to WBUR (March 8, 2023), she  had accused board members of violating the state’s open meeting laws, and spending town funds “like drunken sailors”. That case was about constraints on the content of speech and what kind of speech is protected, with the justices ruling that “civility restraints on the content of speech at a public comment session in a public meeting are forbidden”.

Ruth Bourquin, senior attorney of the American Civil Liberties Union of Massachusetts, called the decision a win for free speech. She said the core issue in the case of Barron v. Kolenda is government officials “setting rules that allow them to silence speech that makes them uncomfortable or that they disagree with because it’s critical of them.”

Hanneke, who trained as a lawyer, interprets this as justification for imposing additional constraints on public comment in Amherst. According to Hanneke, “Given what the Southborough decision said, we could face a situation where we are unable to cut off comment — even if there are 40 or 50 people from out of state waiting to speak or who are not even addressing the issue.” She continued, “Right now, our rules do not allow the chair to end that kind of disruption. Clearly, there are instances where things need to be stopped and our current rules are not specific enough to allow that. As we discuss new rules for public comment we have to consider that kind of scenario.” 

Hanneke argues that in light of the Southborough decision, her desire to limit public comment at Town Council meetings to 30 minutes and exclude non-residents  is “necessary”. The only change she offered in response to the council’s directive to reconsider her proposal was to substitute, in her revised draft, the word “may” for “will” in section 5.1c, so it now states, “Once public comment has reached 30 minutes the council may pause public comment…”  though the revised language does not specify at whose discretion comment may be limited or under what circumstances.  (Note: this proposed change would seem to conflict with Hanneke’s own interpretation of the Southborough decision that rules for restricting speech must be precise and cannot be discretionary).

Prior to the meeting, GOL had requested an opinion on the Southborough decision from the town’s attorney, KP Law. That opinion concluded:

“The Court also analyzed Article 16, which protects the rights of free speech, and applied a strict scrutiny standard in concluding that the Select Board’s ‘civility code’ unconstitutionally regulates protected political speech. The Court held that the public comment policy also appeared viewpoint-based in that the policy appeared to allow praise of public officials but not criticism. While this case did not examine the application of the Open Meeting Law, the Court seemed to premise its conclusions on the fact that the Board invited public comment by including ‘public comment’ on its meeting agenda. Once public comment was included as an item for discussion during the meeting, the Court concluded that constitutional considerations applied to the Board’s efforts to regulate public comments. We encourage municipalities to review the form and practice of their public comment policies, ensuring that there is no attempt to regulate civility, rude or disparaging remarks, or other content-based criticisms of public officials. In our view, public comment policies may continue to regulate, for example, content-neutral time limits for public comments, the duration of the public comment period as a whole, at which part of the meeting the public comment will occur, individual speaking time limits, rules preventing speakers from speaking over others, and acting in a non-peaceable and disorderly manner.

In summary, state law does not require municipalities to provide public comment periods during board and committee meetings. Some charters and special acts do require such public comment periods, however. Each municipality should review its governing documents to determine whether public comment is mandated [it is mandated by the town charter]. To the extent that public comment is permitted, the rights of individuals participating will be protected by Articles 16 and 19 of the Massachusetts Declaration of Rights. For these reasons, following the decision in Southborough, great care should be taken to ensure that any regulation of public comment periods is limited to reasonable time, place, and manner restrictions, rather than mandated civility, or other content-based, restrictions.”

Greisemer, however, did not share Hanneke’s certainty. Rather, she observed  that the Massachusetts Supreme Judicial Court  decision changes the terms of the debate about public comment. She requested that the GOL invite the town attorney to a meeting to discuss how the SJC decision limits its options. “We should not proceed with altering our rules until we understand the implications of the decision.” 

Taub cautioned about over-correcting in response to the very specific SJC decision, which focused on the content of speech.

The issue of proposed changes to rule 5.1 will be taken up again after GOL has the opportunity to discuss the implications of the Southborough decision with the town attorney, who will be invited to attend the next GOL meeting.

Rules of Procedure: Review Rules 7 and 8
Under Rule 7 which governs motions, Hanneke has proposed a new rule, Rule 7.2, that imposes time limits for debate among councilors and specifies which motions are debatable. Under the new rule, debate on every issue would have a 20-minute cap, after which, it could only proceed after a proactive vote of the majority of the council to continue. A second extension of debate after another 20 minutes would require a 2/3 vote of the council. Each extension would require a further vote of the council. 

Limiting debate in this way is diametrically opposed to the rules regulating ending debate under Roberts Rules of Order, which prioritizes continuation of debate without a good reason to stop it and which allows debate to continue unless 2/3 of the voting body choose to end it.

Hanneke asked, “When we debate for 45 minutes to an hour, why does this go so long?” She said that there are times when councilors might not already know how they want to vote, and that “those votes should take a while.” “But,” she added, “there are those votes where everyone knows exactly how they are going to vote, but the debate goes on for another hour. How can we limit those conversations? I’m just looking for a way to shorten our meetings.”

Following Taub’s departure, Griesemer cautioned that the committee should not undertake any decisions at this meeting, even though a quorum was present and voting was permitted.

Griesemer was not convinced that limiting debate within the council would save time.  “This seems to make things even more confusing than they already are — this takes a lot of motions to move things along,” she said. But, she added paradoxically that she could support this change while retaining the “motion for the previous question”.

DeAngelis said that she “gets frustrated” when debates go long and when people start to repeat themselves. “I feel like there is not enough debate and too many statements — too much doing politics. People are using their time to state their political position and that’s not necessarily helpful.”

Hanneke noted that consideration of when to cut off debate has been taken up before by the council recalling a proposal from 2021 to limit town councilors to two minutes and allow for calling the question even before the matter is debated. She said that the motion to call the question should take precedence over any discussion. At that 2021 meeting, some councilors also voiced their desire to limit the public from commenting. At that time, Griesemer supported revisiting the issue of when and how to cut off debate.

The general sense of DeAngelis, Hanneke, and Griesemer  was that too much time at council meetings is devoted to discussing proposals  and that it would be fruitful to explore ways to put  more constraints on discussion.

Athena O’Keeffe, the committee’s unofficial parliamentarian, pointed out that the council doesn’t seem to take advantage of using “point of order” to bring things back into line when councilors start to go astray,  and that would be another way for them to move things along.

Rule 7.5: Motions For Reconsideration
Hanneke said that it was not clear what is to be revised with this rule since no one had offered suggestions. 

O’Keeffe suggested that some councilors had asked for  clarification on what constitutes “new information” when a revote because of “new information” is allowed, as in the recent reconsideration of the council’s vote not to fund an artificial turf field at the high school. According to Hanneke,   the council’s rule on reconsidering a vote is different from what is specified in Robert’s Rules of Order ; Amherst’s charter allows someone from the non-prevailing side to call for reconsideration whereas Robert’s Rules requires that the request come from someone on the prevailing side. 

Hanneke said that if GOL revisits rule 7.9, they will need to clarify whether councilors who were absent from the meeting where the vote was taken have the right to call for reconsideration. DeAngelis said that the question of whether councilors who abstained for a vote should be able to call for its reconsideration. 

GOL will continue its discussion of this section at a future meeting.

Proclamation For Jewish American Heritage Month
Taub reported that the language for the proclamation in support of Jewish American Heritage Month has been updated from last year to address the uptick in hate crimes. She also noted that back in the 1950s, UMass was a national leader in rejecting Jewish quotas for faculty and that might partly account for the vibrant Jewish community in the area today.

There was some discussion as to whether Heritage Month should be celebrated in April or May. The proclamation reading will be on April 18, Holocaust Remembrance Day, and the proclamation will designate May as Jewish American Heritage Month. GOL endorsed the proclamation unanimously (4-0 with Miller absent).

Snow and Ice Removal Bylaw
DeAngelis reported that GOL is still waiting for a response from the tree warden and DPW about the ability of residents to remove trees in order to prevent the sidewalk obstructions covered by the snow and ice removal bylaw. Town Manager Paul Bockelman has responded to queries from the committee about enforcement of the bylaw. He said that parking enforcement officers currently meet with offending residents to work out a resolution to their failure to clear their walks, and if necessary, they issue a citation. 

Hanneke said, “Right now, you go to the police and they send you to DPW and vice versa and the sidewalks don’t get cleared following a complaint, no matter who you call. How do we fix that?”She suggested that the committee ask Bockelman whether parking enforcement is actually issuing citations, and if the sidewalks are not getting cleared following a citation, will DPW do it? Hanneke said that under the  current bylaw, the town manager can direct the DPW to clear sidewalks and then bill the resident for its time. She noted that Bockelman has not addressed why enforcement is not happening. 

Water And Sewer Regulations
Assistant Superintendent of Public Works Amy Rusiecki asked the committee to declare the water and sewer regulation drafts clear, consistent, and actionable so that they can be passed on to the town council for adoption. The committee agreed with a unanimous vote  4-0, with Miller absent

Consent Agenda
DeAngelis concluded the meeting with a complaint that the public does not understand how the consent agenda works and said that their criticism of GOL, for putting the proposal to limit public comment on the last council meeting’s consent agenda, was misplaced.

(Placement on the consent agenda means that the items will likely be approved by unanimous consent and without discussion. Because there is no discussion on items approved via the consent agenda, these changes to limit public comment could easily have passed under the radar, especially since there the relevant  listing made no mention of curtailing public comment; it  simply referred to the adoption of  “changes to rules 3.2, 5.1 and 5.2”. However, a flurry of email comments over the prior weekend alerted Griesemer to the fact that people knew about these items, and that they would probably be removed from the consent agenda at the request of several town councilors, prompting her to schedule a special public comment period expressly on the Hanneke proposal to curtail public comment.) 

DeAngelis said that the public ire over this issue was unnecessary because placement on the consent agenda does not mean that something will automatically be adopted. She faulted the public for their concern and concluded that since the proposal came out of GOL with a unanimous vote, its placement on the consent agenda was justified.

However, during public comment, former Town Councilor Darcy DuMont explained that  “items on the consent agenda … would reasonably be assumed to be unanimously agreed to [by the full council]. Does someone think that this rule change would not be controversial?”

Griesemer concluded that it was simply a matter of efficiency.  “The consent agenda allows us to vote for something efficiently. The public comment item was on the consent agenda because it came out of GOL unanimously.” She further explained, “I have the authority to take it off if I see that there’s a need for more discussion. We can be more sensitive to this. I occasionally hear from a councilor that they intend to take something off the agenda and there are good reasons for doing so, and I appreciate hearing about this in advance.”