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City considers change to public hearings (02/02/2014)
By Chris Rogers
The way that the city of Winona engages constituents and makes decisions just changed significantly. After Planning Commission Chair Craig Porter raised a question on the group's bylaws, City Attorney Chris Hood provided legal advice via an email, which is being interpreted to this effect: in deliberations involving public hearings, the Planning Commission may not ask questions of audience members after the public hearing has been closed. Instead, Hood advised, the Planning Commission needs to ask all of its questions before closing the hearing, or else reopen the hearing and allow everyone to speak again.

"Basically the city attorney says we can't do what we've been doing," Porter explained at the meeting. "He wants me to make sure that all of you have all of your questions answered before I close the public hearing."

"Yeah, but so many questions come up," replied Planning Commission member Wendy Davis. "I found I formed questions from the discussion after the public hearing was closed, and those that couldn't be clarified by us, they needed to be clarified by one of the speakers from the public."

Local governments are generally not allowed to discuss an issue until after the public hearing has been closed. When questions arise during the course of that post-hearing discussion, the city Planning Commission and other local government bodies have often called specific audience members back to the podium to answer questions, asking an applicant or neighbor to clarify the current state of their property, for example.

Hood advised discontinuing this practice and more precisely following the Planning Commission's bylaws, which state, "After all new facts have been brought forth, the hearing shall be closed, and interested persons shall not be heard again unless the hearing is reopened and unless all interested parties shall be allowed to be heard again."

Davis said, "It would be a quagmire if we open up the public hearing again, because everyone would just go right back through their whole [testimony]." She asked, "Can't we put in there that if there are pertinent" or clarifying questions the Planning Commission can ask them after the hearing?

"We should be able to ask questions," said Planning Commission member Brian Buelow.

"I think that the underlying concern is that if we do it, if we say, 'Oh, it's a pertinent question,' there could be favoritism," commented Planning Commission member Ed Hahn.

Some commission members seemed to understand the city attorney's advice as the final word on the matter. "It is what it is," Porter said. "If we can't change it, we can't change," Davis lamented.

The commission does have the power to change its bylaws, as is spelled out in the bylaws themselves, City Planner Mark Moeller explained in an interview. The rules can be changed with a simple majority vote. At the meeting, Moeller told the commission that Hood was "suggesting" and "I don't think anything is cast in stone."

"I'm interpreting [Hood's email] as, 'No, you can't change it,'" Porter said of the Planning Commission's power to change that aspect of its bylaws. Ultimately, the Planning Commission accepted the ban on post-hearing questions, though they voted to change another part of the bylaws limiting the length of meetings.

When asked in an interview about the effect of the public hearing procedure change, Porter said, "I could see it could be kind of arduous to reopen the hearing as questions come up, because they will." In regard to concerns about favoritism, he said, "I don't get concerned about my losing control with regard to my showing favoritism," and added that the diverse makeup of the committee would help prevent any questions from being skewed toward one side of an issue.

Conversely, Porter researched some legal opinions that advised governments, "You're not supposed to regard any input outside of the public hearing," he said. He continued, "I don't know if I would call it a good move; I see pros and cons on both sides." On the one hand, Porter said that informal procedures and post-hearing questions made citizens feel like they had more of a back-and-forth dialogue with decision-makers. On the other hand, he said, the rules were less ambitious now. When asked about changing the bylaws, he said, "I think you would be hard pressed to go against the city attorney's opinion."

Porter said that there was no particular problem that led to the review of public hearing procedure and bylaws, but he did mention a situation in which the commission called on an audience member it felt was knowledgable on a specific issue. Other audience members may have been knowledgable, as well, or wanted to share other views on the question, he said.

After reading another local news article that described post-hearing questions as unlawful, County Board member Wayne Valentine questioned whether the county needed to revise its policy. County Attorney Karin Sonneman pledged to examine the question. Neither she nor Hood could be reached for clarification on whether state law prohibits questions after hearings. Porter noted that in his research, he found that localities conduct their hearings differently across the state.

When asked about her views on the effect such a policy might have on county governance, County Board Chair Marcia Ward said in an interview that it is best to ask questions as they come up during the hearing, because "you might trigger another audience member who might have more info on that, but we're all people" and sometimes things come up after the hearing is over. The County Board has asked questions of audience members after hearings, but often has recognized other audience members if they wished to speak to the question, as well, she said.

In government, "we take ourselves so seriously sometimes," Ward said. "Yes, we're making serious decisions, but we're just people. At the county level, we're neighbors with each other. Why wouldn't we want to ask questions and get the information? Talk about trying to be transparent, and honest and open government, and then I'm sorry to have a lawyer tell you that you can't ask questions?"

Referring to a common sense approach to public hearings and a new county policy that makes it easier for board members to place items on the board agenda, she said, "These are things that are important to our constituents, so we should be able to respond to them without jumping through a whole bunch of cumbersome processes or procedures. But to be transparent is to let all other sides of the issue know that they have that opportunity, too."

Leaders should not let procedure get in the way of open communication. "I don't want to have any lawyer or administrator squelch the dialogue between constituents, the public, and a decision-making board," she said.

Attorney-client privilege

In an interview, Moeller said that Hood's email did not tell the city commission it could not change the public hearing rules.

The Winona Post called Hood at his St. Paul office and talked to the Winona-based paralegal who helped research the issue in order to seek clarification on the email and the bylaws. Hood could not be reached. The paralegal declined to comment. When Hood learned the Winona Post had talked with the paralegal, he emailed the newspaper from St. Paul decrying the "attempt to do an end run around me," stating that "any legal research or legal advice provided by me or my staff to the city, as my client, is attorney/client privileged and confidential," and declined to comment further.

The Winona Post left a message asking City Manager Judy Bodway to authorize Hood to discuss his advice and the public hearing issue with the newspaper. Neither she nor Hood responded.

Winona Post Publisher Frances Edstrom responded to Hood's email that indicated his client was the city and his legal work on its behalf was private because of attorney-client privilege. Edstrom reminded Hood that it is "perfectly ethical and legal for citizens to ask questions of the City Attorney's office and expect answers." And, "Your employer is the people of Winona, not the bureaucrats at City Hall," she wrote. "In addition, under Minnesota precedent you cannot claim that all information you give to City Hall is protected by attorney-client privilege. The law is clear on that." 

 

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