Public Hearings and COVID-19
TL;DR - Public hearings are different than the typical public meeting and require much more than just shifting to online meetings. To get it right, public officials should focus the fundamental reasons for why the hearing is being held in order to design a forum that will serve that purpose. When this happens, the resulting hearing will likely be quite different from the public hearings being held previously. For this reason, it is not recommended that cities merely attempt to replicate the typical hearing process in an online medium.
The COVID-19 pandemic and the requirements for physical distancing enacted to address it have dramatically altered the ways in which we connect with each other. Political participation is not spared in all of this and, in some respects, it presents one of the more interesting challenges.
Government officials at every level have demonstrated tremendous capacity for adapting to these changes and are leveraging modern communication technologies to facilitate innovative approaches to interacting with constituents. These public servants should be congratulated for this impressive performance under pressure.
States and municipalities have acted quickly in many cases to adapt policies for public meetings to the requirements of various public health orders that require us to stay away from each other and not assemble in-person. Many cities have continued to provide transparency and opportunities for constituents to participate through live-streaming video, telephone hotlines, expanded opportunities for online interaction, etc.
From my observation, most public meetings have continued in ways that are sufficiently open and transparent. However, as we know, not all public meetings are equal. Some public meetings are convened for the specific purpose of holding what we typically refer to as a “public hearing”. These hearings are commonly employed by local governments to afford opportunities for direct participation in legislative and other matters. The most frequent occurrences of public hearings are conducted in the policy arena of land use regulations and include hearings for zoning code amendment, zoning map amendments (aka rezones), special/conditional use permits, variances and appeals, subdivision platting, vacations of public property interests, etc.
These hearings are substantively different from the regular public meeting in that they typically involve the opportunity for parties to participate directly in the decision-making process by introducing evidence and testimony for the examination of the policy-makers and, in many cases, for cross-examination by other private individuals and groups whose interests may be adverse to those of other participating parties.
How to facilitate this sort of direct participation under conditions that preclude physical assembly is an interesting challenge, but one that I am confident our local officials are more than capable of addressing.
As a former land use planner and community developer, I have given quite a bit of thought to how I might attempt to address this challenge myself. In doing so, I find it helpful to take time to remind myself of the fundamental purposes of the process in question (in this case, public hearings) and then to build the “how” on the foundation of my renewed sense of “why” we are doing it in the first place. In this way, the process is developed with a greater degree of fidelity to its purpose and function. This has the added benefit of keeping me out of a mindset of merely trying to replicate the in-person version of the public hearing, which may ignore aspects of the hearing mechanism that are valuable.
In the United States, the 5th and 14th Amendments prohibit the government from depriving any person of life, liberty or property without due process of law. What these due process clauses do not express is what that due process should look like in any particular case. The result is that determining what process is due must be legitimated through the iterative political process of legislative action to determine rough outlines of due process, administrative implementation in specific cases, and judicial evaluation of those actions. In the case of public hearings for administrative action like land use decisions, that process has resulted in guidance that “some kind of hearing” is required and that the specific features of any hearing should be adapted to the situation at hand by balancing the value of any particular feature against the costs of providing that feature.
In response to this guidance, most states have legislated minimum standards for public hearings for land use decisions that typically include provisions for notice, delay, and written findings. Given the wide variety of issues presented by land use decisions, it is understandable that the statutory provisions for conducting public hearings would be left vague in order to allow municipalities to develop more specific procedures that fit situations that are unique to each place. Unfortunately, many municipalities merely craft hearings that satisfy the statutory minimums and go no further. While that approach may be adequate to mitigate a certain amount of risk to litigation, it is not likely to maximize the value of the hearing in order to fulfill the purpose for which the hearing exists in the first place.
When considering how to hold public hearings during a pandemic when physical assembly may be prohibited or discouraged, it is unhelpful to simply try to replicate the types of public hearings we have been holding. Those hearings have not been maximizing value under normal circumstances and they are even less likely to do so under more complicated circumstances.
Instead, a focus on maximizing value (instead of merely satisfying minimum standards) is more appropriate.
What follows is a brief discussion of why we hold public hearings, what value they can provide to our communities and our land use decisions, and how we can maximize that value when adapting hearings to physical distancing.
PURPOSE OF HEARINGS – WHY THEY ARE IMPORTANT AND WHAT VALUE THEY ADD
The concept of affording due process when rights to life, liberty and property are at stake is not original to our U.S. Constitution. Hearings have long been employed to ensure that especially important decisions (especially those in which someone has much to lose) are made under conditions where the decisionmakers are put in the best possible position to make the best possible decision. These decisions should be fair, accurate, timely, and comprehensible. Most of us, at some point in our lives, have been incensed at a decision made by a supervisor, parent, teacher, or other authority, when we believed that they were biased, that they did not have all the information, or that they didn’t take long enough to think it through. Procedures of public hearings are intended to prevent that exact sense of injustice.
By ensuring that a decision that affects your life, liberty or property is made according to rules that provide basic fairness, accuracy and impartiality, we can facilitate conditions that are accepted as just and good. Legal scholars reviewing court opinions on this subject have articulated a set of goals that public hearings should be designed to achieve:
Accuracy – a decision that is rational, logically sound and factually correct.
Acceptability – a decision that is perceived by the affected parties as legitimate and, therefore, will be adhered to.
Efficiency – a decision that does not cost taxpayers more than it is worth.
In order to achieve those goals, most scholars and practitioners agree that hearings should generally include most, if not all, of the following basic elements:
An unbiased, independent tribunal.
Notice of the proposed action and the grounds asserted for it.
Opportunity to present reasons why the proposed action should not be taken.
The right to present evidence, including the right to call witnesses.
The right to know opposing evidence.
The right to cross-examine adverse witnesses.
A decision based exclusively on evidence presented during the hearing.
Opportunity to be represented by counsel.
Requirement that the tribunal prepare a record of the evidence presented.
Requirement that the tribunal prepare written findings of fact and reasons for its decision.
Obviously, not all the public hearings held by local governments involve every element listed above. Whether to include an element in designing a hearing should depend on:
the severity of the impact of the decision on the affected parties,
the degree to which that element is helpful to rendering an accurate decision,
the extent to which that element lends itself to the decision being accepted by the affected parties, and
a comparison of the benefits of including that element to the costs to the government of providing it.
For instance, holding a trial-style public hearing for changing landscaping requirements in the zoning code would be extremely costly and would not provide much additional value to the Commission or Council in making that decision. For those types of legislative decisions, all that is usually required is an opportunity for the public to provide testimony (both written and oral) and does not typically involve the calling of witnesses or their cross-examination by opposed parties. The costs would clearly not outweigh the benefits in most cases.
Variances, on the other hand, present rather acute impacts on particular individuals and the need to be accurate requires detailed facts that may be best revealed through the examination and cross-examination of witnesses with intimate knowledge of the circumstances at hand. In those cases, the hearings are usually conducted in a fashion that more closely resembles a trial-type proceeding.
At the end of the day, what land use officials need to remain mindful of when designing hearings for the variety of decisions they face during this pandemic are the basic purposes of the hearing that provide the most value to those involved. The hearing is meant to ensure impartiality, accuracy, legitimacy and efficiency (and, in the author’s opinion, in that order of priority). All of this, of course, is meant to protect people and their rights, which is the essence of what it is to be in public service. Keeping that in mind will help you maintain the mindset needed to craft hearing procedures under even the most uncertain of circumstances.
TIPS FOR DESIGNING HEARINGS WITH PHYSICAL DISTANCING
The statutory requirements for the conduct of public hearings set minimum standards. In designing hearings to conform to physical distancing, you should be thinking about going above and beyond those minimums in order to be accurate, acceptable, and efficient.
Be mindful of the purpose of the regulations at hand as well as the mission of your organization/department considering that purpose.
Make sure that the chairperson is well equipped to lead the hearing. Go above and beyond to ensure they can respond and adapt to surprises and technical difficulties. In this vein, providing them with a script of the proceedings may be helpful. Make certain that they have ready access to important and relevant information pertaining to each case. The chairperson should also have ready access to the decision-making body’s adopted rules of procedure and order.
Be prepared to have a means of keeping order during the hearing. Selecting a medium that can prominently identify the person who is supposed to be speaking (and, perhaps, temporarily muting others until they are finished) will be helpful.
Practice makes perfect. Ensure that you have tested the media to be used for the hearing in a simulation of hearing conditions.
Remember that record-keeping is still vitally important to the integrity of the proceeding. Review applicable transparency requirements and sunshine laws, especially if they have been recently updated to accommodate the pandemic. Make certain that a recording of the hearing can be retained and reproduced.
When preparing notices, go above and beyond to ensure that the notice include plain language explanations for why the hearing is being held, how it might affect the recipient of the notice, what the result of the decision might entail, how the recipient can participate in the hearing, and how they can access additional information about the subject of the hearing. Providing more than the usual amount of information in the form of relevant documents, maps, etc. may be very important to providing the recipient with context for comprehending the nature of the issue at hand and how it might affect their rights and interests.
Make sure that instructions for how to participate are included and written in plain language. If possible, provide opportunities for interested parties to test/practice their ability to access the hearing media. Have the instructions reviewed by several laypeople to identify use of jargon or other confusing terminology.
When providing supplemental information to potential participants in the hearing, be sure that the information provided is clear and intelligible. Offer that city staff is available to answer questions and review information with them in advance of the hearings to prevent confusion.
Develop a means to communicate readily with interested parties. Having a system in place that can push timely updates to interested parties is worth considering.
Communication with interested parties is the key to success when introducing a new forum for public hearings. If you are going to err, err on the side of over-communicating.
RESOURCES FOR DISCOVERING AND EVALUATING TOOLS FOR PUBLIC HEARINGS
Marketplace.city COVID19 Readiness Kit - https://marketplace.city/cities/covid-19
Engaging Local Government Leaders (ELGL) COVID-19 Resources - https://elgl.org/covid-19/
American Planning Association COVID-19 Resource - https://www.planning.org/resources/covid-19/
International City Managers Association Coronavirus Crisis Response - https://icma.org/coronavirus-crisis-response-resources-your-community
National League of Cities COVID-19 Pandemic Response - https://covid19.nlc.org/
Government Technology Magazine Coronavirus Resource Guide - https://www.govtech.com/health/A-Resource-Guide-to-Coronavirus-for-Government-Leaders.html