In Whitewater, Three Recent Trespasses Against Public Comment

Whitewater’s public comment periods are lawful rights worth defending, and there has never been a time when respecting public comment – humbly and gratefully – has been more important for the city.

Since June, there have been three meetings during which Whitewater’s current council president has deprecated public comment, or wrongly set the order of comments. These occasions have been an unsound departure from this city’s better practice of the last decade.

The paragraphs below describe each of these three occasions, with an applicable video clip, a transcript of the clip, and remarks about that occasion.

First, a bit of background —

One can describe the principal laws pertaining to Whitewater, Wisconsin’s public meetings simply and plainly: the comment periods at public meetings of the City of Whitewater (its council and its various committees and boards) are matters under state statutes and local ordinances. (For today, one needn’t look farther or deeper.)

Wisconsin’s Open Meetings Law. The Wisconsin Open Meetings Law — part of state statutes (Wis. Stat. §§ 19.81-19.98) — does not require public comment at meetings, absent other statutory requirements for specific types of public meetings.

If only state statutes described rights of public comment, then public comment would mainly rest on government officials’ occasional condescension to the residents from whom government’s political authority derives.

And yet, Whitewater has her own ordinances that recognize and describe rights of public comment, provisions that lawfully acknowledge more expansive rights for residents than does state law.

Whitewater Transparency Enhancement Ordinance.  For the last ten years, Whitewater has recognized public comment rights through her own Whitewater Transparency Enhancement Ordinance. Whitewater, Wisconsin Municipal Code §§ 2.62.010-2.62.050. The provisions of that chapter, in full, appear below. (Some of these provisions govern public participation in city meetings, others the recording of public meetings.)  Where the city’s departure from convention is sometimes to her detriment, in this chapter of the municipal code her recognition of residents’ rights is wholly to her credit. Whitewater’s former council president (Singer) respected consistently this chapter of the local code; the city’s current council present (Binnie), although a long-serving councilman, has taken a different path.

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The Section 2.62.010 explains “The purpose of this chapter is to maximize public awareness and participation in City of Whitewater Government. (Emphasis aded.)

Section 2.62.040 describes meeting procedures: 

1. (a)  All council, committee, commission and board meetings shall have a public input agenda item to allow citizens to make statements on matters that are not on the agenda.
2. (b)  All council, committee, commission and boards shall allow the public an opportunity to comment on substantive items on the meeting agenda. The council, committee, commission or board shall have the discretion to impose time limits and other reasonable procedural rules concerning the public comment.
3. (c)  If the agenda for a council, committee, commission or board meeting includes staff reports or other reports, a specifc description of the item to be reported on shall be listed on the agenda and said report(s) shall be limited to the speci”c items listed in the agenda.

(Emphasis added.)

Even the headings of agendas for Whitewater Common Council meetings express the promise of the ordinance: that “citizen participation will be welcome during topic discussion periods.”

In recent months, departing from years of respect for these promises, Whitewater’s new council president has deprecated public comment or manipulated public comment beyond a reasonable procedural rule.

Discussion of those occasions appears below along with a recording and transcript. After each,  I’ve added a few remarks.

Common Council Session of 6.16.20. (Relevant clip below. The full session recording and agenda are available online.)

City Attorney (Video, beginning of clip):

One thing that is sort of something that we have, a unique ordinance, our transparency ordinance, does require giving the opportunity for public input on pretty much anything that’s on the agenda. That’s not the general rule, and that’s not common that that’s allowed in public meetings. It may be that, to some extent, there would have to be a suspension of that rule if we weren’t allowing people to come, to come meetings, or limited the number of people. But most subjects we have on the agenda would not require the right to the public to actually speak on them but for our transparency ordinance. Some exceptions of course are public hearings and things that’s an important aspect of it. So that’s just one of the many considerations when the council decides to more forward, if it does, in a limited way.

City Council President [Video clip at 4:00]:

We are, as Wally indicated, going beyond what the office of open government [sic] says is required. For one, public comments are not normally required by law except for public hearings, they view telephone conferences as being acceptable with the public, we’ve gone beyond that to having these virtual meetings online. Some bodies require citizens to submit their comments in writing in advance, not allowing for contemporary comments like we allow for. I’d even mention that the school board, up until I’ve now pointed it out, hasn’t even been listing a telephone number for the public to call in on, which we have been doing since the beginning.

Whitewater’s city attorney is right that but for Whitewater’s transparency ordinance there would be fewer lawful opportunities for public comment. The ordinance is to Whitewater’s credit, that she properly recognizes – as she has for years – rights of residents to address their local government. That others have done less does not justify that Whitewater should return to less. A solution of negative equality only imposes the acquiescence to lower standards rather than the expansion of higher standards.

Liberty is more than a consequence of rights government allows; it is the flourishing of rights that government is obligated to recognize.

Whitewater’s new city council president implies that Whitewater’s legal recognition of contemporaneous comment on agenda items is superfluous – or some kind of generosity to Whitewater’s residents – because other communities require that citizens submit comments in advance. It should be obvious that a rule requiring prior submissions denies residents the ability to respond most effectively to remarks made in a meeting on a particular item. The opportunity for truly responsive comments comes only if one can speak in reply to what others have said during that meeting. Anyone could send in a message beforehand, in any event. A community that truly respects its residents would care about the opinions they formed while hearing the most current information presented during a public meeting.

Before the pandemic, during the pandemic, after the pandemic, in person, via telephone, via videoconferencing, or combinations of these formats — any of them could accommodate public comment on each meeting topic. Nothing has happened in Whitewater that would suggest – to a person committed to public participation – that Whitewater should retreat from her ten-years’ long legal commitment to public participation.

On the contrary – this city has never need robust public participation more than now.

Common Council Session of 7.21.20. (Relevant clip below. The full session recording and agenda are available online.)

City Council President [Video, beginning of clip]:

It’s not necessary for us to hear the same information repeatedly, so, if you are making a comment that is lengthy and really amounts to clapping for somebody else’s comment, if you can just kind of make your comments succinct so that we don’t have a great deal of repetition in the comments.

There’s much that’s wrong with this preface to public comments. It assumes that comments are only for the benefit of governmental deliberations. On the contrary, they are properly – as Whitewater has previously acknowledged them – an intrinsically valuable, vital part of the governmental process.

Cautions like this act produce a chilling effect, where some residents may question whether, in fact, what they say is sufficiently ‘unique’ to topic.  Of course it will be unique to the topic – each person will – within a uniformly-applied time limit – have something different or particular to say. Deciding whether someone is simply ‘clapping’ for someone else is condescending and disrespectful to individual residents. And, in fact, if they are supporting each other, should that not be their right within a common time limit?

Residents do not serve this council or its president; the council should humbly serve and respect its residents. It shouldn’t be too hard for ordinary men and women who hold offices of limited authority to listen patiently and without condescension. 

A reminder, true now and forever: everyone who resides in Whitewater is an equal resident. There is no other kind of resident.

Common Council Session of 9.9.20. (Relevant clip below. The full session recording and agenda are available online.)

City Council President [Video, beginning of clip]:

After a straw poll in which only the council present voted for a draft ordinance, he chose to limit by viewpoint which public comments would first be heard:

So my suggestion, unless I hear objections from council, would be that we focus at this point in time on comments from citizens, or university members, business owners, etc., who are in favor of one of these ordinances, because after all, if we hear from everyone who wishes to speak in favor, and then, perhaps, take another straw poll at that point, then I would see it as not being a worthwhile use of anyone’s time to hear from everyone who’s opposed to the ordinance if all those who are in favor of consideration speak and we don’t have sufficient interest. Is that acceptable to council members? [No dissent.]

No one should accept this arrangement. It’s wrong first and foremost because it makes public comment a mere instrumentality to council’s actions. Public comment is an independent right and value.

If residents want to speak on the topic, then it’s worth their time, and therefore it’s worth the time of this council president to listen patiently and fully. If that’s too hard or too tiring for a politician, then he or she is unsuited to the office.

There’s a second, obvious wrong here: allowing one side to speak about the ordinance, to change minds, gives that side an advantage without allowing the opposing side – during the same comment segment – to reinforce to a prevailing view. Under the method from 9.9.20, the council president, while himself in the minority, gave a first chance to those who would try to turn the vote around (to the position he wanted). Those who, in a random queue of commenters, might have spoken against turning the vote around were denied the same chance to speak. Their views in reinforcement of the original straw poll were assigned to a lower priority.

This was a crude manipulation that denied all commenters the chance to exercise their rights before a second vote (in this case, a second straw poll).

At a time when this local government should encourage all the public comment it can – and recognize that public comment in Whitewater is a right under law – this these three occasions have taken the city in the wrong direction.

Whitewater deserves better.