Are public comment periods too risky for Utah's local governments?
By cathy mckitrick
The Salt Lake TribuneFirst published Aug 24 2013 01:01AM
Whether it’s concern about a neighbor’s reptile collection, dirt on a political opponent or beefs about the federal government, citizen remarks can offer some of the most colorful and candid portions of local government meetings.
While some view the public comment period provided by many city and county council meetings as a sacred right, one risk manager has suggested it also poses a costly liability and local governments might want to consider, as one option, doing away with it.
Johnnie Miller, chief executive officer for Utah Counties Indemnity Pool (UCIP), recently raised such concerns to the Box Elder County Commission and also to the Utah Association of Counties.
Miller fears that the gripe-fests can put local governments at risk for unwittingly violating Utah’s Open and Public Meetings law or entertaining slander that becomes part of the public record.
"The Open Meetings Act requires them to list all the items they’ll discuss at least 24 hours ahead," Miller said, "and yet the public wants them to have this open period where they can talk about anything."
While an anything-goes comment period is not required, many counties and cities routinely offer the option. And the law states that a public body may discuss a topic raised by the public that is not listed on the agenda, but may not take final action on it.
"Doing away with the public comment period is just one option to avoid risk," Miller said. Other recommendations include training officials to be cautious in their responses.
The cost of free speech • Government entities have immunity when it comes to defamatory statements from the public, but Miller said they still have to expend taxpayer dollars to get lawsuits thrown out of court.
The three-member Box Elder County Commission has included public comment periods during its meetings for the past two years. But now, it’s considering Miller’s advice, said Stan Summers, a commissioner who took office in January.
"Our biggest problem right now is that people are using it as a platform for their agendas, for anything from Obamacare to Agenda 21," Summers said. "I don’t think we can stop gun sales to Egypt."
Jason Rose, legal counsel for the nine-member Salt Lake County Council, said members have added a public comment period to work sessions in addition to their business meetings in hopes of increasing citizen feedback.
"We have no specific parameters limiting what people say," Rose said, "but if they get too disruptive, the Open Meetings Act allows us to have them removed."
If citizen comments begin to interfere with conducting the public’s business — "a few people hijacking the bus for everybody" — it might be something they’d address, Rose said.
During his 24 years serving Davis County, Clerk Auditor Steve Rawlings said that public comments have been a routine part of their commission meetings.
"I can’t remember a problem," Rawlings said. "It’s a format where free speech is embraced, and I’ve never seen our commissioners feel differently about that."
John Petroff, former West Point mayor and current chairman of the Davis Commission, said that nixing public comment altogether would be a significant departure from the past.
"At this point, I’d like to make sure that citizen voices get heard," Petroff said.
Davis County is one of 24 Utah counties that participate in UCIP’s property and liability programs, while Cache, Grand, Salt Lake, Summit and Utah counties do not.
More speech, not less • Salt Lake City media attorney Jeff Hunt believes that Miller’s liability concerns are unfounded, since government bodies have significant immunity under the law and cannot be held liable for defamatory remarks during public comments.
"Public comment is a great feature," Hunt said, noting that the democratic process involves robust speech and even sharp, meddlesome words at times. "If anything, they should consider more."
Brigham City Mayor Dennis Fife received his share of harsh critique after confessing to an extramarital affair last fall. Even so, Fife said that anyone should be given the opportunity to say what they want, and that broader participation is better.
"People are not involved enough," Fife said.
On Thursday, as part of routine recodification, Brigham City’s council unanimously voted to retain public comment periods that allow free expression but ban personal attacks. The council will hold a public hearing Sept. 19 to get feedback.
Brent Gardner, executive director for the Utah Association of Counties, said there have been incidents that raised liability concerns, but he’s not aware of any lawsuits arising from public comments.
"We’re trying to determine what controls officials should start looking at," Gardner said.