Pa. public-comment ruling could have unintended results

Monday, November 29, 2010

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As a long-time advocate for open government, I applaud the Pennsylvania Supreme Court’s decision in Alekseev v. City Council of the City of Philadelphia. As a former school board president, however, I see why some might find it a bit naive.

In Alekseev, the court held that Pennsylvania’s Sunshine Act requires city councils and other public bodies in the state to allow public comment during their meetings. In doing so, the court rejected the practice of the Philadelphia City Council, which for 60 years has channeled public comment only to meetings of its committees.

Pennsylvania passed its Sunshine Act in 1998. The act generally provides that public bodies “shall provide a reasonable opportunity at each advertised regular meeting and advertised special meeting for residents of the political subdivision … to comment on matters of concern, official action or deliberation which are or may be before the board or council prior to taking official action.”

In a grandfathering clause, the act exempted from the public-comment rule any public body that before Jan. 1, 1993, had “established a practice or policy of holding special meetings solely for the purpose of public comment in advance of advertised regular meetings.”

Since 1951, the Philadelphia City Council has not allowed public comment during its meetings. Instead, it has referred proposed ordinances to its committees, which receive public comment during their consideration of the proposals. During these meetings, the committees do not limit the number of persons who may testify or the length of their testimony. Committee meetings are broadcast internally to council members who do not attend, and transcripts of each meeting are circulated to all members.

After being denied the opportunity to comment during a meeting of the Philadelphia City Council, the plaintiffs in Alekseev sued, claiming the “special meetings” grandfathered in the act did not include committee meetings. A special meeting of the council, they claimed, would require that at least a quorum of the council attend; a committee meeting, on the other hand, usually does not include a quorum of the council.

In a 4-3 decision, the Pennsylvania Supreme Court agreed, reversing decisions of the trial and appellate courts that had rejected the plaintiffs’ claim.

“Contrary to Council’s position,” the court held, “there simply is no authorization in the Act, actual or fairly implied, for delegation of the obligation to entertain public comment to some body other than a board or council.”

As a matter of statutory construction, the court almost certainly is correct. Special meetings and committee meetings are different and are intended to be different. Indeed, the Sunshine Act defines “special meeting” as “A meeting scheduled by an agency after the agency’s regular schedule of meetings has been established.”

From a practical perspective, however, there appears to be little benefit — and perhaps even some harm — in requiring the Philadelphia City Council to change its procedures. As the dissenting judges observed, the city’s committee procedure “may well be superior to a public comment period that might be offered at its regular meetings, where final votes would be taken.”

“In this case, and consistently with the practice in effect in Philadelphia for over half a century,” the dissent continued, “appellants were allowed to provide input to the committee in advance of the regular Council meeting at which the bill was passed, so it appears they actually had a more realistic opportunity to participate in shaping the legislation, rather than speaking at the very meeting where the vote was taken.”

Even the majority saw the merits of Philadelphia’s procedure.

“We do not take issue with Council’s perspective that its previous practice for developing public comment in committee is superior to the general requirement implemented by the General Assembly,” the majority wrote, “although there would appear to be advantages and disadvantages to both schemes and arguments to be made that either may be preferable depending on the circumstances.”

Ideally, of course, the Philadelphia council will simply add a public-comment section to its regular meetings and maintain the public input it receives through its committees. Hoping for that outcome, however, might be naive, as most councils and boards tolerate, rather than embrace, public comment.

During my six years of presiding at meetings of our local school board, I came to dread the public-comment part of our agenda. In most cases, the speakers wanted to address confidential personnel matters or administrative issues that were not the prerogative of the board. In others, the speakers misinterpreted “public comment” as question-and-answer time or as an opportunity to debate board members. The speakers, though well-intentioned, at times were uninformed (or worse). My all-time favorite public comment came from a parent: “You keep talking about curriculum, curriculum, curriculum. When are you going to start talking about academics?”

While I realize (and regret) that this attitude seems elitist and un-democratic, the fact is that most public comment — especially that which comes, as the Pennsylvania dissent noted, immediately before a vote — is of limited value. It rarely comes from speakers with a perspective as broad as the council or board must have, and it almost never raises a point that has not already been considered. As a result, boards and councils across the country routinely adopt rules that limit the number of speakers, the length of their presentations and the topics they can address.

Still, public comment brings some value to these bodies. Whatever its deficiencies, public comment provides at least some sense of public opinion, allows elected officials to understand better how their decisions will affect their constituents and, occasionally, brings to light new and important facts.

However, given most board and council members’ attitude toward public comment — it surely is not lost on them that neither the legislatures that create nor the courts that enforce public-comment rights have public-comment periods themselves — I suspect that some members of the Philadelphia City Council now will be tempted to follow the act literally, to offer limited public comment only during their meetings and to scale back or eliminate the public comment during committee meetings.

I hope they resist that temptation. As difficult as public comment sometimes might be to endure, I hope Philadelphia’s council members realize that, ultimately, a system of representative government without it is far worse.

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