Reference Guide for Local Government Public Comment Periods: Public Comment Period Statutes

This post is Part 2 of a multi-part series. (See Part 1 here). For a more detailed explanation and legal analysis of the issues discussed in this blog post series (including citations to cases referenced in the post), please see Local Government Law Bulletin # 146: Reference Guide for Local Government Public Comment Periods.

Public feedback is a vital part of governance. It allows local governments to understand the public’s concerns and perspectives, while affording the public an opportunity to impact local government decision-making. In facilitating a public comment period, local governments must comply with the appropriate statutory requirements, and this post will address just that.

Authority to Manage Public Comment Period

As the last post in this series discussed, statute requires city councils, boards of county commissioners, and local school boards to hold public comment periods. G.S. 160A-81.1 (cities); G.S. 153A-52.1 (counties); G.S. 115C-51 (local school boards). These three governing statutes—virtually identical—require each of these entities to hold at least one public comment period at a regular meeting each month. They also authorize the governing boards of cities, counties, and school districts to adopt certain rules for public comment periods. The statutes allow “reasonable rules governing the conduct of public comment period, including, but not limited to…”:

• Fixing a maximum amount of time for each speaker;
• Assigning spokespeople;
• Selecting delegates when there is insufficient space to accommodate all attendees; and
• Providing for order and decorum.

This statutory list of permissible public comment period rules (discussed in detail below) is illustrative rather than exhaustive. The statutes’ only explicit limitation is that public comment rules be “reasonable” and relate to the “conduct” of the public comment period. Put simply, public comment period rules do not need to fall within the enumerated categories to be legal, so long as they are reasonable. No North Carolina cases have interpreted reasonableness under these statutes, so it is difficult to know how courts would rule on restrictions falling outside these specific categories.

Time Limits

All three public comment period statutes permit “fixing the maximum time allotted to each speaker.” This category seems to authorize a variety of time limit rules including fixing a maximum amount of time for each individual speaker or a maximum amount of time for the public comment period as a whole. The statutes do not provide guidance on the amount of time local governments may assign and do not indicate that there are any minimum time limits. Based on the statutes’ plain language, any time limits could be legal. However, to ensure time limit rules serve the underlying purpose of the public comment period, local governments should craft rules that allow the public adequate opportunity to participate and be heard.

Spokespeople

The statutes also allow “providing for the designation of spokesmen for groups of persons supporting or opposing the same positions”. Here, the statutes balance representing both sides of an issue with reducing repetitive commentary that might otherwise monopolize the entire public comment period. This approach allows local governments to efficiently hear different perspectives, while also preserving time for other topics. Neither the statutes nor case law provide any guidance on how and when rules should provide for spokespeople.

Presumably, these decisions lie within the discretion of local governments as they draft their rules. Local governments should focus on the apparent goals of this provision–-allowing robust discussion of both sides of an issue while reducing redundancy. Some boards may wish to set a threshold for triggering the spokesperson rule. For example, there must be a spokesperson if speakers making the same general points in favor of or against an issue will take most of the time provided for public comment. Another version of that rule would require spokespeople if a majority of the commenters plan to make the same general points in favor of or against an issue. The number of people who desire to speak should likely factor into drafting this category of rule as well. For example, a very small number of people making repetitive points is probably less burdensome to meeting efficiency and order than a very large number. Local governments, working closely with their attorneys, are in the best position to strike that balance in their rules.

Delegates

The third statutory category of permissible public comment period rules involves “providing for the selection of delegates from groups of persons supporting or opposing the same positions when the number of persons wishing to attend the hearing exceeds the capacity of the hall…”. Unlike with the spokesperson provision, this provision has a clear triggering mechanism—when the meeting room cannot accommodate the number of people in attendance. Like the spokesperson provision, though, this portion of the statutes gives no guidance on how to provide for the selection of delegates. That process is again left to the local governments, with only the requirement to be “reasonable.” Perhaps it would be reasonable to allow a certain amount of time for those who cannot fit within the meeting room to select their own delegates. Another option would be for the local governments to ask for volunteer delegates. Without a set statutory approach, many options could be permissible.

Order and Decorum

Finally, the statutes allow local governments to adopt rules providing for the “maintenance of order and decorum.” This portion of the statutes can be tricky to implement because the concepts of order and decorum are highly subjective, and no cases have defined these terms for purposes of these statutes. Also, rules adopted under this provision often implicate the First Amendment. Certain common rules, such as bans on profanity, insults, or personal attacks, might be statutorily authorized as providing for order and decorum but might pose constitutional concerns.  The next post in this series will evaluate the relevant constitutional protections.