ROCKINGHAM — The Richmond County Board of Commissioners is slated to vote Tuesday evening on its public appearance policy which has been in place for more than 20 years, but open government experts say the draft is still potentially problematic.
The vote was originally scheduled for the January meeting but was put on hold because County Manager Bryan Land said attorney Bill Webb had not yet had a chance to review it.
The main issue with the current policy — which First Amendment experts have said poses “serious concerns” for free speech — is a provision that bars residents from speaking on items that are included in the meeting’s agenda.
Commissioner Andy Grooms said in December that he’d like to do away with that rule “altogether” — and it was stricken from the draft presented at the last meeting.
Grooms, who had tried to get the topic on the agenda as early as February of 2021, also took issue with a section requiring potential speakers to sign up with the clerk the Friday before the meeting, which is typically held the first Tuesday of each month.
He thought, if the agenda wasn’t publicly posted until Friday, it wouldn’t give potential speakers enough time.
A draft of the revised policy states that the agenda will be posted by 5 p.m. on the Wednesday before the meeting and still has would-be speakers signing up by 5 p.m. the prior Friday, essentially giving them 48 hours.
Among other changes, the draft also:
- shortens individual speaking time from five minutes to three minutes and gives groups a total of six minutes with a limit of two speakers;
- Seemingly limits speakers to county residents or property owners;
- Prohibits comments or matters that are “harmful, discriminatory or embarassing to any citizen(s), official(s) or employees of Richmond County.”
The only change to the draft Grooms requested was that the time limit remains the same, which has been changed back in the policy included in the February agenda.
While none of the other commissioners expressed any issues with the draft, the head of a statewide organization that promotes free speech thinks it could be more open.
“Generally, public bodies have a fair amount of discretion to control public comment periods to keep topics germane to the subjects under consideration by the public bodies,” said Brooks Fuller, a journalism professor at Elon University and director of the N.C. Open Government Coalition. “There are serious concerns about First Amendment violations when the public body starts to limit public comment based on the identity of the speaker.”
Fuller said the state’s law allows for the free-flow of public records to non-residents.
“So unless the (North Carolina General Assembly) passes a residency requirement into the open meetings law, I would suspect that the residency requirement or property ownership requirement may also raise serious legal issues,” Fuller said.
Fuller, who was critical of the current policy, added that he saw issues with the other prohibitions listed in the policy.
“The public should be able to comment on matters in litigation since decisions about litigation are core public policy concerns,” Fuller said. “Citizens should be allowed to say things that might be embarrassing to elected officials because the public has a right to criticize the work of the public body without engaging in personal attacks. This is a fine line, of course, and the public body does have a responsibility to maintain decorum, but that does not mean it can police and prohibit all speech that might reflect poorly on the public body.
“Similarly, it’s the public body’s responsibility to discuss ‘closed session issues’ in closed session, but the body cannot impose that requirement on citizens who may have legitimate interest and concern about personnel, litigation, security, or other issues.”
Fuller referenced a 2016 post from Frayda Bluestein on the UNC School of Government’s Coates’ Canons blog.
In regard to the residency requirement, Bluestein said that at least one court case has ruled that it’s not a constitutional violation.
However, Bluestein concluded: “I think a rule restricting comments to residents or taxpayers would be on feeble legal ground.”
Bluestein also says there “no legal basis for prohibiting criticism of employees in open session.”
While a board can encourage residents to report complaints to a supervisor or offer to meet with them in closed session, Bluestein says: “A public comment period remains open, however, for both praise and criticism of public officials and employees.”
When it comes to prohibition of closed session topics, Bluestein says she knows “of no authority for this restriction.”
“It might make sense to include a statement that members of the public should not discuss confidential information in the public comment period, but the list of matters that may be discussed (in) closed sessions does not double as a list of topics that are off limits for public comment,” Bluestein writes.
Other topics on the Feb. 1 agenda include a resolution for the 2020 Local Water Supply Plan and presentations by the Richmond County Partnership for Children and FirstHealth EMS.
The meeting starts at 5:30 p.m. in Courtroom C of the Richmond County Judicial Center.
Commissioners are also meeting at noon at the Richmond County Airport for a closed session.
