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Report: Public participation laws need revisions

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"Paralysis by analysis" it's a phrase sure to be familiar to many an elected County Board member. You have an issue, appoint a task force, advisory panel, study group. You hold a public hearing. By the time everyone has weighed in, the issue has been talked to death.

A recent report, Making Public Participation Legal, seeks to broaden and modernize the framework for public participation while giving elected officials legal authority to experiment with new forms of citizen engagement.

Among its recommendations, the report includes model state and local public participation ordinances. It offers suggested language to amend state laws, such as government in the sunshine laws, to "shield agencies and municipal authorities from litigation over the choice of process model, for example, deliberative polling, deliberative town hall meeting, blog, etc."

BulletClick here to read the Making Public Participation Legal report

BulletClick here to listen to the Brookings Institution forum on the report.

Existing state laws on public participation can be overly punitive and stifle innovation, said Lisa Blomgren Amsler, a coauthor of the report. "In Arizona, if you look at the freedom of information or the government in the sunshine act, you have to have an agenda that specifies what you will discuss and if somebody brings something up that's not on the agenda, then the officials in Arizona, if they start discussing that subject, they could actually be charged with a felony and removed from office. It's crazy."

Similar issues crop elsewhere as well, said Chuck Thompson, executive director of the International Municipal Lawyers Association and a former county attorney in Maryland. He said some states take corrective actions that don't criminalize deviating from published agendas. For example, in Maryland there are prohibitions against public bodies acting in violation of the open meetings law, and those include voiding any action that was taken at "an improperly called or noticed meeting."

While the report most often makes reference to cities, its recommendations are equally applicable to counties, Thompson said.

The model local participation ordinance suggests that local governments designate a public participation administrator to "provide ongoing training in public participation processes" for employees, members of boards and commissions and others.

One problem plaguing the interpretation of public participation is that the term often appears in various codes and statutes, "but it's never defined," said Amsler, a professor at the Indiana University Bloomington School of Public and Environmental Affairs.

"Because it's not defined, people have developed this default, and you have a habit or a routine or a standard operating procedure that gets enacted, and basically the default is three minutes at the microphone, maybe five if you're lucky."

She also noted that the laws governing public participation are at least 30 years old and predate the Internet, social media, online forums and email listservs. "The playing field has changed but the laws haven't."

The report, published by the National Civic League with support from the Deliberative Democracy Consortium, also offers policy options for strengthening public participation at the local level, including greater use of technology and incorporating public participation metrics in performance reviews of relevant government employees. Additionally, it suggests establishing youth councils that teach and model the principles of productive public engagement.

Matt Leighninger, who also participated in the Working Group on Legal Frameworks for Public Participation, which compiled the report, said it's designed to be an "open-source" tool for states and localities. He's also executive director of the Deliberative Democracy Consortium.

While legal frameworks differ from state to state, he said the low-hanging fruit from the report is "just having the conversation."

"I think part of the problem is that people just 'keep on keeping on' as far as these as these terrible, tired formats that they're using," he said. "They don't step back and say is this really the way we want to have public participation in this town or in our county. Just having that kind of conversation I think could be really helpful."

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