May 21, 2024
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Although I was there at the May 13 meeting, I didn’t record this on video as I was reluctant to leave my camera on a tripod in the corner.

Here is the handout I gave the commissioners. Also, I gave them a copy of a 2015 agenda item, after Danny Chambers had been elected judge, of the public comment section

On Public comment as a Specific Agenda Item

In the past, when a citizen wanted to speak at a Texas open meeting, he or she could only comment on a non-agenda item and do so during an agenda item called Public Comment (or similar) . Every single government entity, however, has had a public comment agenda item. This includes Somervell County, which used to have a public comment section on the agenda, including with Danny Chambers as judge. But the public comment section did not allow commenting on an agenda item(s) until 2019. In other words, you could ONLY do a public comment based on something not on the agenda before 2019, frustrating people who would have liked to make a comment before the govt elected officials voted on it.

Since 2019, Texas Government Code section 551.007was added to allow comments on agenda items by the public. The way that Somervell County Commissioners Court accommodates this is by introducing and discussing an agenda item and then, before the vote, inviting the public attending the meeting to weigh in if they would like, and being called on from the audience.

That process is in addition to a public comment section on the agenda, which the Texas Open Meetings Act compares to an *open mike*. Is a public comment agenda item required? No, but, again, every govt entity here locally has one. Why not Somervell County Commissioners Court? I have been told it’s because it’s a waste of time, and people might rant or criticize the commissioners. Having a public comment agenda item does not mean there will be comments; no one can know who might show up to comment but not having one gives the appearance of unapproachability of the court from citizens or even elected officials deciding what is worthy to hear or not by not allowing it.

Certainly any citizen can go talk directly to a commissioner but having another avenue to address the commissioners court publicly is not a substitute.

A public comment section can have rules, such as the length of the comment, typically 3 minutes. The govt officials simply listen to a comment but cannot get into a discussion or call for deliberation or a vote

Why not just have someone who wants to make a public comment ask to be on the agenda, such as I am doing here. Mind you, I am doing this BECAUSE there is no public comment agenda item, so I explicitly asked to be on the agenda for this topic.

What if the commenter wants to criticize or rant? From TOMA

“(e) A governmental body may not prohibit public criticism of the governmental body, including criticism of any act, omission, policy, procedure, program, or service. This subsection does not apply to public criticism that is otherwise prohibited by law.”

• Rules must be viewpoint neutral, but as the U.S. Supreme Court has said, “Giving offense is a viewpoint.”

• “[P]ublic criticism that is otherwise prohibited by law” is a narrow exception.

Viewpoint neutral and otherwise reasonable.

A government official cannot know when someone speaks in a comment what he or she will talk about and therefore not allowing someone to speak is making a value judgement about whether that particular freedom of speech item is worthy of hearing. We have all heard public comments that we do not agree with, that we do not necessarily even understand or wonder about whether some activity took place. Commissioners cannot also ban public speech simply because it might be offensive or negative to some. SCOTUS https://www.supremecourt.gov/opinions/16pdf/15-1293_1o13.pdf                                                  

 In other words, because the disparagement clause of the Lanham Act allows only for “happy-talk” and prohibits the negative or offensive side of an issue, it is viewpoint based. The court explained that protecting offensive speech is at the heart of the First Amendment.

I believe that could include  a comment about wondering why a person with a felony indictment for theft is working in payroll, criticism of the way the enterprise entities are run, such as the golf course or the expo or wondering why, since this not a church, there is a prayer led by commissioners on the agenda.

John Cornyn – From JC0169 (from when John Cornyn was AG Jan 24, 2000)  https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0169.pdf

Unlike such briefings and presentations for which a governmental body may post specific notice of the particular subject matter, public comment sessions pose notable difficulties in predicting the subject matter of citizen comments and questions. We cannot expect a governmental body to divine or foresee the myriad of matters its constituents wish to bring to its attention. Rather, public comment sessions provide an opportunity for citizens to speak their minds on an unlimited variety of subjects. They furnish an outlet for real and imagined grievances. Moreover, they are held, not behind closed doors, but in the bright light of an open forum. They have been an integral part of public meetings since well before the adoption of the Open Meetings Act in 1967. See e.g., State Y. Hellman, 36 S.W.2d 1002, 1004 (Tex. 1931) (“[F]requently citizens interested in matters to be acted upon by the council appeared before them at their meetings.“); Swank v. Sharp, 358 S.W.2d 950,951 (Tex. Civ. App.-Dallas 1962, no writ) (“[R]ules of the Council shall provide that citizens shall have a reasonable opportunity to be heard.“) (citation omitted). There is not the slightest indication in the record that the legislature, by amending the definition of “meeting” in 1999, meant to abolish them. To require specific notice of the items raised during a public comment session would, we think, effectively end the practice. This construction, entirely prohibiting public comment sessions-is inconsistent with the principles of open government advanced by the Open Meetings Act. Thus, we conclude that while such sessions constitute meetings for which notice must be given, the terms “public comment,” “public forum, ” “open mike,” or some other generic term, provide sufficient notice for the kind of sessions you describe.

Since any commissioner can ask for something to be added to the agenda, I suggest for the benefit of Somervell County citizens that a public comment agenda item be added or rather restored.

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