Bergy’s Beat: Is this thing on?

About a month ago, I was streaming a government meeting. Nobody you know; it was another county. I was bored, and apparently this is what passes for entertainment amongst us journalists.

During the public comment section, an elected official addressed the people about to speak: “Just a reminder. We can listen to your comments, but we can’t respond.”

Can’t respond, or choose not to?

I’ve been to a lot of public meetings, and I’ve heard several variations of this claim. As I understand it, the basic idea is that although public comments are listed on the agenda, the actual items being discussed are not, and therefore they can’t be addressed in that meeting.

But I’ve always been a little skeptical when that is conveyed as “we must sit in silence.” Boards can adopt reasonable procedural rules for these exchanges. That is different from saying the Open Meetings Act requires silence.

Turns out, the West Virginia Ethics Commission’s Committee on Open Governmental Meetings addressed this in an opinion issued in 2007. The Kanawha County Board of Education wanted to know whether members could question public speakers about matters that were not otherwise listed on the agenda.

The answer was yes. Board members may ask questions to understand a speaker’s position or clarify a concern. They may discuss whether the matter belongs on a future agenda, when to schedule that meeting and what information will be needed.

“As this committee stated in Open Meetings Advisory Opinion 2004-16, the Open Meetings Act does not prohibit board members from asking questions of the Superintendent and his or her staff in order to obtain information regarding matters within the scope of the school system’s operations,” the ethics committee opined. That same rule “applies to board members asking questions of citizens, employees or representatives who speak during a public comment period,” the opinion continues.

Suppose a member of the public asks the board to change a policy. Members can ask or answer questions to clarify the issue. They can discuss putting it on a future agenda. They just cannot begin weighing whether to actually adopt the change.

“Board members are not permitted to deliberate among themselves toward a decision on that matter,” the opinion states.

The ethics committee reinforced that distinction in 2011. Substantive discussion of a matter requiring official action belongs on the agenda. Simply stopping short of a vote does not satisfy that requirement.

“This committee hereby finds that whenever a governing body discusses an issue on which it takes official action at that meeting, or at some future meeting, the agenda must identify such issue before the governing body may discuss it substantively,” that opinion states.

The key phrase, the ethics committee found, is “deliberating toward a decision.” Logistical discussions? OK. Clarifying questions? All good. Actual, substantial deliberations? Put it on the agenda first.

That leaves room for a conversation, even when the decision has to wait. And I’d rather see that discussion happen face to face than on Facebook. At least at a meeting, everyone starts in the same room.