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Town adopts new public comment policy

Local concerns regarding the town’s recent attempt to seemingly restrict public input at meetings (see several of this week’s Letters to the Editor) may have been allayed Tuesday night when the Pagosa Springs Town Council responded with a resolution that appeared to expand and enhance the ability of citizens to be heard at town meetings.

As reported in the May 24 edition of The SUN, a May 22 public forum featuring preliminary Wal-Mart design plans and hosted by the Pagosa Springs Planning Commission, saw several members of the public (as well as the media) capriciously shut out of the process while that board circulated a copy of a resolution outlining how input at meetings would be restricted. That article reported a pattern of similar suppression of public comment at town meetings going back months prior to the Wal-Mart forum.

Late last week, council published an agenda that included a resolution that claimed to, “enhance the public’s access to the Town Council, improve participate (sic) in the public hearing process, and give structure to meetings.”

However, as presented, that resolution raised questions — and suspicions — regarding the town’s intent, with numerous calls and e-mail inquiries made to SUN staff asking if the town was attempting to codify further restrictions on the exercise of free speech.

On Tuesday night, meeting attendees witnessed council assuage suspicions as the resolution, debated by members of the public and the board, appeared to expand the rights of the public to be heard at council meetings.

Among several items suggested in Resolution 2012-10 (including rules governing audio and video recordings of meetings), 20 minutes will be set aside for public comment, open to any issue, even items not included on a meeting agenda. Council had not previously set aside time for public comment and, during past meetings, comments dealing with issues not on the agenda had usually been cut short by the mayor.

In fact, by the time council passed the resolution, not only had the board approved an additional portion of meetings for public comment — setting aside two public comment sections — but eliminated a provision prohibiting live broadcasts of meetings (in the resolution’s original language).

Nonetheless, the resolution passed on Tuesday night did not guarantee the continuation of a rule of order that had traditionally been practiced during council meetings: A call for questions or public comment following council discussion on individual agenda items.

That issue was addressed by SUN staff, but failed to elicit a firm answer from Pagosa Springs Town Manager David Mitchem. SUN staff pointed out that questions from the media were relevant to immediate discussions and often helped clarify issues for meeting attendees.

In a subsequent discussion, Mitchem assured SUN staff that the resolution would not hamper the media’s ability to raise timely questions and that, on a case-by-case basis, discussion on certain agenda items would be open for public comment.

The best answer regarding that uncertain adherence to the rules of order was provided to trustee Clint Alley when he asked, “This wouldn’t in any way limit ... would that still be available for the mayor to let public comment be available on certain items?”

“That flexibility is available,” Mitchem responded, stating that the resolution allowed public comment on agenda items at the discretion of council or the mayor.

Addressing the resolution, most audience members voiced dissatisfaction with how public input was handled at the May Planning Commission meeting, as well as asking that council handle public comment scheduling similar to the Archuleta Board of County Commissioner meetings, with agendas apportioning public comment periods at the start and at the end of each meeting.

Local business owner Juanalee Park said, “A lot of people were left out (speaking of the Planning Commission meeting), I thought that was really unfortunate.”

Park’s comments followed her statement of support for two public comment sections, but also her concern that many attendees needed to be aware that signing up for the public comment sections would be required.

Mitchem responded that, if council elected to include two public comment sections for each meeting, staff would have no objection.

Agreeing with other attendees that the Planning Commission meeting had been unduly restrictive, Muriel Eason wondered if council would follow a similar path, saying, “I would caution against keeping the public out.”

Stating that the recent increase in attendance at town meetings had to do with issues that inspired the public, Eason added, “I think that restricting their ability to participate only makes them more skeptical, I guess, about the process of governance that goes on here.”

Local business owner Morgan Murri also expressed support for public comment sections at the beginning and end of each meeting, to which Pagosa Springs Mayor Ross Aragon responded, “I think if you have it at the beginning and at the end of the meeting, then you’re being redundant, maybe, and I’m trying to figure this out because you’re doing it twice.”

Murri asked Aragon if he could provide an example of how two opportunities for public comment could work (especially in regards to items not listed on the agenda), likewise referring to the Planning Commission meeting and how, following certain points raised by Wal-Mart consultants or commission members, the public was prohibited from addressing issues that had been spontaneously raised.

With council clear that most attendees supported the idea of two comment sections, trustee David Schanzenbaker asked for the reasoning behind the prohibition of live broadcasts.

Mitchem responded that prohibition was the rule with many communities.

Trustee Don Volger took issue, stating that he remembered a time when KWUF had aired council proceeding in real time, a fact that Aragon verified.

“I think that, as long as it wouldn’t interfere or inhibit us doing business ... I think it would be fine. I don’t see a reason to prohibit it,” Volger said.

Following some confusion on how to amend the original motion, council approved 2012-10, but struck the prohibition of live broadcasts and set aside two public comment sections for future meeting agendas — one at the start of meetings, allowing comments on any topic, and one at the end specific to items on that meeting’s agenda.

Resolution 2012-10 requires attendees wishing to speak to sign up prior to those sections, with comments limited to two minutes and attendees allowed to speak just once during each public comment section. During a “public hearing” portion of a meeting (presumably to include comments following the discussion of agenda items), comments are limited to five minutes.

Schanzenbaker’s amended motion, seconded by trustee Tracy Bunning, was unanimously passed by council.

Council’s expansion of public input at meetings was not required by any state statute or constitutional mandate. A 1972 ruling by the Colorado Supreme Court (Hardamon v. Municipal Court), though, reads, “Home rule cities may not deny substantive rights of state citizens. This constitutional authority, broad as it is concerning the creation, organization, and administration of municipal courts, is limited in scope to those aspects of court organization and operation which are local and municipal in nature and does not empower home rule cities to deny substantive rights conferred upon all of the citizens of the state by the general assembly,” that language does not prohibit a governing board from broadly defining how it does business and limiting public participation in the process.

Indeed, numerous court decisions have upheld the rights of free speech for governing boards with the determination that public input and redress allowed in meetings can be, at the discretion of a governing body, restricted to protocols and rules deemed necessary for the orderly conduct of meetings.

Thus, it appears that council reversed a policy that, strictly speaking, would have been upheld by the courts, instead putting its faith in its constituent’s ability to conduct themselves reasonably while soliciting input.

How that decision plays out in the coming months will determine the wisdom of that reversal.

jim@pagosasun.com

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