Wednesday, February 12, 2014

Open Mikes at Open Meetings?

February 12, 2014, 6:30 a.m.

Note: This blog essay was the source of the material in the following Iowa City Press-Citizen op ed column:

Public Comments About Public Comments Guidelines
Nicholas Johnson
Iowa City Press-Citizen
February 15, 2014

The Iowa City Community School Board, commendably, endeavors to govern through enunciated policies. But sparks flew at Tuesday’s meeting during the public’s comments about public comments guidelines from the board.

Let’s put the issues in context.

• 1: “Open Meetings” don’t require “open mikes.” The law requires the school board to permit the public to attend its meetings (subject to specific exceptions). It does not require the board to permit the public to speak at those meetings.

• 2: Board members are volunteers. They have limited time to tend to the board business the law requires they address in open board meetings. Doing that business is the meetings’ primary purpose.

• 3: The board needs stakeholder input. There are many reasons why. (a) It is of the essence of a self-governing democracy that students, parents, teachers and others be heard. (b) Elected officials are responsible to constituents. (c) Board members’ decisions should be informed (though not dictated) by public comments — especially when an agenda item has limited prior opportunity for public input.

• 4: We need “public citizens.” Journalists can’t do it all. The public would be better off if all school boards, city councils, county boards and legislative committees had a few people following their work like our school board does. You don’t have to approve all of their tactics to know that the board and public would be worse off without our public citizens’ research and tenacity. In fact, think about picking your own agency to track.

• 5: Alternative opportunities. Input’s not limited to meetings. Consider talking to board members, sending them email or letters. The board might have a website to display public comments and interactive listening sessions. If board members’ responses reflect occasional modifications of prior positions, these alternatives can reduce (though not eliminate) the need and desire for discussion during board meetings.

• 6: The guidelines. There were two categories of public objection to the guidelines: some involved specific language, others a “slippery slope” concern of greater restrictions to come.

• a: School boards, like legislative committees and judges, have the inherent right, and responsibility, to maintain decorum in their workplace. Judges don’t need detailed regulations; an ignored warning risks contempt of court. School boards can’t fine or jail for disruptive behavior, but they can apply common sense — and even remove individuals if necessary.

• b: Guidelines’ language should be sufficiently precise to be clear without excessive detail. Even Iowa’s first speed limits were simply “reasonable and proper.”

• c: Allowing public comment at the beginning, rather than the end of meetings, is just plain thoughtful. As for time, the board could declare that time for comments, in total and for each speaker, will vary depending on the number of people who want to speak, how often that speaker has spoken, the public interest in a topic, and the amount of board business.

• d: Having speakers “sign in,” speak one at a time, and from the podium, can promote order and improve television coverage.

• e: Avoid vague standards regarding the content of speakers’ statements. Saying comments must involve “matters of public concern,” expressed with “respect and decorum” is both too narrow and overly broad. The same can be said for the guidelines’ specificity regarding punishments for violations. Certainly speakers should not be prohibited from criticizing the board and administration, or for using occasionally colorful language. Some content-based restrictions could even run afoul of the First Amendment.

This challenge can be met. In the end, it is a matter of balance and common sense — something for which Iowans are noted. ._______________ Nicholas Johnson who served on the Iowa City school board, 1998-2001, maintains and the blog

The original blog essay follows:

A Discussion About Discussion

As occasionally happens at Iowa City Community School District School Board meetings, all hell broke loose last night. Gregg Hennigan, "I.C. School Board Meeting Gets Heated; Proposed Public Comment Guidelines Draw Several Rebukes; No Vote Taken," The Gazette, Feb. 12, 2014, p. A11 ("Discussion got fiery last night as the Iowa City school board debated the first reading of new guidelines on public comment at meetings."); Holly Hines, "Speaking Policy Sparks ICCSB Debate," Iowas City Press-Citizen, Feb. 12, 2014, p. A1. [Photo: ICCSD School Board members in meeting. Not the current Board.]

In brief, the Board, which endeavors to govern through enunciated policies, struggled with how to handle public comments at its meetings and came up with proposed "guidelines" (set forth in full at the bottom of this blog essay). The guidelines got their "first reading" at last evening's meeting, whereupon the spontaneous public comments about the guidelines for public comments got a little raucous.

Here's how Hennigan described the Board's dilemma in balancing (1) the opportunity for public input at Board meetings, on the one hand, against (2) a felt need to maintain a tone of civility, a sense of order, and avoidance of a few dominating the discussion time:
[S]ome board members and school officials have indicated it's a couple of people in particular that they consider problems [naming them]. Both have run for but failed to get elected to school board, with [one] narrowly losing the last two elections. Both attend almost every board meeting and speak several times each on various agenda items. And both typically are harshly critical of board or administrative decisions and sometimes get personal with their comments. At a December meeting . . . one person submitted speaking forms for six items, and another, 11."
As dramatic as last evening's Board meeting apparently was, and as juicy as the news coverage it can provide may be, there are serious issues here that require a little context and reflection. This is a brief attempt. [Photo: public attending ICCSD Board hearing; not last evening.]

(1) "Open Meetings" don't require "Open Mikes." The law requires the school board permit the public to attend its meetings (subject to specific exceptions). It does not require that the board permit members of the public to speak at those meetings.

(2) The primary purpose of board meetings is board business. Because the board has work that it must do, as a board (both as a matter of law, and of good governance), and because board members are volunteers who have limited time to give to board business, the primary function of board meetings is to provide an opportunity for board members to be able to do board business.

(3) The board needs public input. There are many reasons why it is desirable for board members to hear from, and interact with, the school district’s stakeholders – students, parents, teachers, other employees, officials from other public bodies, and taxpayers. (a) It is of the essence of a self-governing democracy. (b) Elected officials have a responsibility to their constituents. (c) Board members’ positions and decisions should be informed (though not dictated) by public opinion. (d) Politically, listening to one’s constituents may be a necessary prerequisite to reelection. These considerations are especially weighty when the public comments relate to board agenda items for which there has been limited, or no, prior opportunity for significant public comment.

In fact, I believe we would all be better off if every school board, zoning board, city council, county board of supervisors, legislative committee, and other public body and agency had two people following their work like the two Hennigan mentions are following the ICCSD school board. Based on what I know, each takes this self-imposed duty seriously, devotes time, does research, speaks out, follows up with tenacity, and is often pursuing matters that almost anyone would agree need a little more attention. I would encourage anyone with the slightest interest in doing so to pick their own public body and agency and perform this role of "public citizen."

Obviously, this does not mean that I agree with every subject these two have prioritized and followed, or with all of the tactics they have apparently believed were constructive and effective in pursuing their view of "the public interest." But I do believe we would all be the worse off if the school board were to somehow remove them from the process entirely.

(4) Alternative opportunities for input. Of course, this interaction can take a variety of forms in addition to public comments at board meetings: personal conversations, email or letters, a Web page open to public comments, listening-interactive sessions held at convenient locations (such as schools around the district) solely for the purpose of dialogue with members of the public. Increasing such alternative opportunities for public input -- especially if board members' responses reflect their impact on changes in board members' positions -- can reduce both the need and desire, for board members and public alike, of lengthy public discussion during board meetings.

(5) The guidelines' standards. Some of the heat last evening was a response to the specific language in the guidelines (set forth below, in full). (Although some was also driven by a "slippery slope" concern that any restriction on public speech during board meetings might lead to shutting out the public entirely.)

(a) School boards, like legislative committees, executive branch agencies, and judges in their courtrooms, have the responsibility, as well as the right, to maintain decorum with regard to the public speech and behavior in their places of work (with some exceptions). A judge need not set forth detailed regulations regarding the specifics of the behavior that he or she will treat as deserving of punishment for "contempt." School boards should be similarly able to control public comments during their board meetings.

(b) It is probably desirable for the school board to announce in advance some guidelines. But it should not be necessary for them to specify in advance a detailed description of each and every act that it will, and will not, permit. Language should be sufficiently precise as to be clear, and yet not so detailed as to turn a matter of informal common sense into something more resembling the intricacies of the Internal Revenue Code. Recall that even Iowa's early highway speed limits were no more specific than "reasonable and proper."

(c) For example, allowing public comment at the beginning, rather than at the end, of meetings is simply thoughtful. That is a specific that could be stated as policy. On the other hand, the board might make clear that the amount of time devoted to comments, both in total and for each speaker, will reasonably vary from one meeting to another, depending upon the number of people who wish to speak, the number of times an individual has spoken, the intensity of public interest in a topic, and the amount of board business on the meeting agenda.

(d) It probably makes sense to have people “sign in” with name, address, phone, and email address, so as to have a record for the board minutes. And requiring speakers to speak one at a time, and from the podium, not only promotes order, and the possibility of being heard, but also better television coverage of the meetings.

(e) It is best to avoid vague standards regarding the content of attendees' speech -– if for no other reason than that the board is “Congress” for purposes of the First Amendment, and content-based restrictions on speech might very well be a constitutional violation. Certainly speakers should not be punished for criticism of the board or administration, or for using the occasionally colorful language that has been a part of America's ongoing political conversation for hundreds of years.

Requiring that comments must involve “matters of public concern” expressed with “respect and decorum” are both too narrow and overly broad. (They are too narrow because they omit many other considerations; they are too broad because they are vague.) Terms like this lie at the side of the road to civil discourse like IEDs in Afghanistan -– providing just one more subject about which arguments can flare. ("You're out of order. That's not 'a matter of public conern.'" "Oh yes it is." "No, it's not.") The same can be said for specifying the sanctions to be applied when “the rules” are violated.

In sum, it is probably better for a school board to exercise the discretion of a judge in getting on with the business at hand, and maintaining decorum, in his or her courtroom -– where the public also has a right to be present, but does not have a right to speak.

Full Text of Proposed Guidelines

ICCSD Public Comment Guidelines

The Iowa City Community School District Board of Directors is committed to maintaining an environment of dignity and respect in all district schools and buildings and at all District activities, events, and meetings. The Board of Directors has promulgated policies of the ICCSD, which mandate a safe and civil atmosphere at district events (Board Policy Code No. 104). Specifically, the Board is committed to a policy of Equal Educational Opportunity, and within this policy the right of all “students and staff to be treated with respect and to be protected from intimidation, discrimination, physical harm and harassment” (Code No. 102).

Beyond the Policies of the Board of Directors, the Superintendent and administration are also committed to maintaining environments free of harassment and discrimination. Superintendent Directive Positive Stakeholder Relations mandates that the Superintendent shall “ensure that conditions, procedures, or decisions are safe, dignified, and that provide appropriate confidentiality and privacy,” and that stakeholder interactions “[p]rohibit the use of abusive language and other behavior generally considered to be lacking in civility and respect for others” (POSITIVE STAKEHOLDER RELATIONS, Level 3a(5)). In addition, The Superintendent is charged with ensuring “conditions that are dignified and consistent with the mission of the public school system” for all staff (STAFF RELATIONS, Level 2b).

To promote a positive educational environment at Board Meetings and to ensure the respect and dignity due every stakeholder under District policy, the following guidelines are in place to guide public comment during ICCSD Board of Director meetings:

Once recognized to speak, speakers are limited to three (3) minutes of public comment

Speakers must submit a request form, which is available at the Board Meeting, to the recording secretary in order to be recognized to speak by the Board President

Comments should be related to matters of public concern

Speakers addressing the Board will conduct himself/herself with respect and decorum.

Comments or expressions that are abusive, harassing, bullying, discriminatory, or lewd shall be prohibited

Comments will only be made from the podium microphone after the community member is recognized by the Board President. Comments made from the audience shall be considered out of order and subject to sanction under this policy

Violations of this policy will result in the Board of Directors, through the Board President, sanctioning the member of the school community that violates these guidelines. Generally, sanctions will be imposed, in a progressive manner, as follows:

A verbal warning by the Board President that the policy has been violated

A written notification that the policy continues to be violated

A suspension from speaking at Board of Directors Meetings

These sanctions do not prohibit the Board President from moving directly to a suspension of speaking privileges for behaviors that are considered egregious. Members of the community that are disruptive to the meeting or refuse to abide by the guidelines may be immediately asked to leave the Board Meeting (or other District meetings where public comment is available). This policy does not prohibit the Board or Administration from enforcing other District Policies in concert with this policy.
# # #


Mary Murphy said...

Thanks for writing about this issue. I'm fine with having a reasonable public comment policy. We're probably fortunate that the board permits public comment at all since it could ban it although voters might react by voting elected members out or not voting for a bond. I think it is silly and confusing to have a board policy about public comment(which the board does) and then add these "guidelines" on top of that. Calling these "guidelines" a "policy" in the body of the document is also silly and setting forth sanctions under "guidelines" makes it seem like the "guidelines" are not really just guidelines. Plus, it is not the superintendent's meeting so paragraph 2 should be out. (I'd get rid of the entire document.)

The board can certainly ban disruptive behavior or even ban a subject like discussion of employees. What it shouldn't do is allow people to comment positively about an employee (e.g. wonderful tribute to retiring employee) and not permit criticism of an employee. That's impermissible censorship based on viewpoint.

I understand why the board wants a positive environment as it starts to prepare for a bond election; however, the public's right of free speech once the board opens its meeting to public comment is too valuable to toss aside. I do believe the Iowa City area audience is sharp enough to determine for themselves whether speakers are credible and personally appreciate hearing diverse viewpoints, even when I disagree with them. Finally,when the board opens the meeting for public comment, it is not a school classroom with a teacher in charge so I thought it was odd that the policy and engagement committee took language that it said applied to students and incorporated it into a policy for public comment.

mariaconz said...

For some reason, I couldn't get Julie's links to work, but found that my own link in my Iowa City Patch blog post works! Click on the link in my post on how skeptical the Iowa Supreme Court justices were when ICCSD board member Jeff McGinness' attorney pleaded for mercy in a disciplinary hearing following his acts of "dishonesty, fraud, and deceit," according to Theresa Vens, the disciplinary attorney:

mariaconz said...

The link to the video of the oral arguments in Jeff McGinness' disciplinary hearing 1/22/2014 works if you click on the link "online" in my blog post:

Julie VanDyke said...

The links in my original comment were changed by the webmaster of the Iowa Judicial Branch site as they organized the videos a little differently on their site than they had before.

This one is working for me to get to the January 2014 videos. Mr. McGinness's case was heard on 1/22/14 as number 12-1213 Iowa Supreme Ct. Att’y Disciplinary Bd. v. McGinness

What I found, as I watched it streaming live on the day it occurred, and since the video was posted is that my computer is not able to view it with Windows Media Player and, for some reason, does just fine when I view it with RealPlayer (free) instead. I downloaded the video last night and will attempt to post it to the ICCSD Unofficial Tour Director's Cruise Event Forum facebook page if FB allows the size of the file.

Julie VanDyke said...

Julie VanDyke said...

There is an interesting discussion beginning on the comments page of the the version of this Blog entry published in the Press Citizen last Saturday here: