The Select Board officially rescinded their Public Comment policy adopted in 2017 — four months after the Mass Supreme Judicial Court declared it unconstitutional. During the discussion on it and a new policy they adopted, it appeared members forgot they had already adopted a replacement policy two months after the ruling.
The new guidelines approved last night are slightly different from the prior version (which was never posted and disseminated).
Since the new policy isn’t posted yet, I redlined the version from the packet to reflect last night’s vote. You can read that here.
The policy was based on a template provided by Town Counsel that members revised. It doesn’t include the prohibition on rude or slanderous remarks that was behind the national headlines making ruling this spring.
As advised by the SJC decision, the only clear prohibitions to free speech during public comment are:
true threats, incitement to imminent lawless conduct, statements that were found by a court of law to be defamatory, and sexually explicit statements made to appeal to prurient interests.
Member Marguerite Landry highlighted that the legalese might be confusing to some members of the public. Chair Andrew Dennington said he deferred to Town Counsel’s expertise. Members discussed that while the overall policy was to help the public know the guidelines, that clause was mainly to inform the Chair and legally protect the Town.
Consistent with prior discussions, the board revised the draft in the packet to state that Chairs “may” provide a public comment policy at each meeting rather than “shall”. (In April, members said that while their board generally includes public comment during their regular meetings they didn’t want to dictate that to other committees they appoint.)
The Town’s version also requires attorneys commenting on behalf of clients to clarify who they are representing (now adding the phrase “for that purpose”).
The only other significant change from what was previously discussed was striking the clause to limit “entities” permitted to speak to a single spokesperson. Board members agreed that should be up to the discretion of the Chair.
As drafted by Town Counsel, the policy allows Chairs to decide which individuals and/or entities are permitted to speak, as well as the number of commenters and length of time.
The policy guides chairs that to the best of their abilities they shall “ensure that each individual and/or entity who is permitted to speak is allotted an equal amount of time in which to do so.” That was debated earlier in the spring.
In the prior discussions, the board had debated that and whether a number of minutes should be specified or the clause eliminated. The majority agreed to keep it as written. Member Kathy Cook had opined that each year after the board was reorganized, they should decide each year how many minutes to limit the Select Board’s public comments to. Former member Chelsea Malinowski advised that if the board was going to enforce it, they should have a large timer to display (to avoid accusations of inconsistency).
The board first discussed the draft replacement policy at their April 25th meeting. On May 2nd, they adopted a version based on a template from Town Counsel that they had revised. The unanimously approved motion was to adopt the policy “subject to Town Counsel review of the changes made by the Board”.* The following week, two of the five members were replaced in the Town election. This is the first time it has been on the agenda since.
During last night’s discussion, Dennington said that they had discussed the policy a few times but never actually voted to rescind it. He was told that they should vote to do that. He followed that the board hadn’t been enforcing the old, unconstitutional policy but had yet to adopt a new one. Former Chair Kathy Cook recalled that they had gotten really close at one point.
*The draft discussed in May wasn’t posted or included with those minutes. Since at least one edit was discussed as missing at that time, and another was missing in the version posted this week, I’m not clear on precise version adopted that night. But it’s now a moot point.
