The Legal Structure for Public Participation

On May 6, 2013, the Citizen Advocacy Center sponsored a free event for the public on “The Legal Infrastructure for Civic Engagement”. The event was hosted by the Chicago Metropolitan Agency for Planning (CMAP) in their offices. Janice Thomson, public engagement consultant, organized and facilitated the event. It was recorded for later broadcast by CAN-TV. Matt Sweeney contributed notes to this report.

Public participation laws, such as the Open Meetings Act (OMA), are an important element of the civic infrastructure for civic engagement.  In Illinois, as elsewhere, they do not match the expectations and capacities of modern citizens to influence public policy. They also do not reflect lessons learned on how to engage residents productively, including online. They mandate public hearings, open comment periods, and other passive, formulaic processes rated poorly by both residents and public servants, and often seem to have a negative impact on policymaking and trust in government.

Terry Pastika, executive director and community lawyer at the Citizen Advocacy Center introduced the topic and offered that in order to have a functioning democracy, a balance between the following two necessities are ideally achieved: (1) an engaged, informed, and active public, and (2) laws that encourage and protect engagement in policymaking.  Civic engagement is a learned activity that must become habit forming, but current learning standards do not support the civic mission of our public schools.  In addition, government officials often see public participation laws as a ceiling and not the foundation for public participation.  Changing the landscape of civic engagement includes pursuing school-based civic education, as well as changing the culture of public officials that pass laws affecting civic participation in government decision making.

To stimulate the minds of the participants of the presentation on the subject of amending public participation laws, they were asked, “If you could make one change to public meetings in Illinois, what would it be?”  The answers included: roundtable format, sufficient meeting information in advance, appropriate supporting materials (e.g., board packets), professional meeting facilitation for skills and neutrality, descriptive and better suited names of government meetings, different kinds of meetings, no more public hearings, a standard for minutes for better description, and flexibility in the OMA (intent vs. letter) such as to foster simultaneously an open, creative, and transparent environment.

Panelists included:

• Pete Peterson, the executive director of the Davenport Institute at Pepperdine University.  He consults with and trains municipal officials in how to conduct better public processes.  He was also the first executive director of Common Sense California which supports citizen engagement to produce more creative policy decision and better citizens. He spoke on how public sector officials view public engagement and how typical “public comment” can often be an obstacle to real public participation.

• Maryam Judar, a community lawyer with the Citizen Advocacy Center.  She speaks out against policies that deteriorate the fabric of our democracy and has been active in reforming the Illinois Open Meetings Act (OMA).  She shared the barriers and limitations of the legal infrastructure for civic engagement in Illinois.

• Matt Leighninger, executive director of the Deliberative Democracy Consortium, an umbrella group that includes the major organizations in the field of deliberation and citizen involvement.  He is also a Senior Associate of Everyday Democracy and the author of The Next Form of Democracy: How Expert Rule is Giving Way to Shared Governance—and Why Politics Will Never Be the Same.  He shared the outcomes of a recent DDC project, involving representatives from the American Bar Association, NLC, ICMA, IMLA, and other organizations, to develop model 21st century state and local public participation ordinances.

Speaker Presentations
Pete Peterson spoke from the perspective of public officials.  He referred to a quiet revolution that is changing the relationship between people and government, driven by the ongoing fiscal crisis that is hitting local governments especially, as well as technology.  In previous years when there were big revenues, public officials did not perceive the need to engage the public.  With increasingly difficult land use and other decisions, some public officials are interested in engaging the public differently.  This is a unique time in governance: public officials are looking for more engagement.  They know that the traditional “public comment” period at public meetings does not suffice but are at a loss as to how to change the status quo.

Yet, one challenge according to Peterson is persuading public officials to understand that public comment is not public engagement. Referencing the study “Making Local Democracy Work,” by the National League of Cities, Mr. Peterson outlined what he calls the “trilemma” of public engagement: (1) public officials understand that they must engage, (2) but they don’t have the skills to engage, (3) and they don’t like the public that is currently engaged, who they view as the loudest and angriest constituents. He questioned the current design of the public engagement process that recent brain science research shows predisposes people to think poorly and inhibits creativity. The solution is not more public engagement, but more effective public engagement. Mr. Peterson also made a plea for the public to show more compassion for public officials because it is the process that is problematic, not the people. He emphasized how it is in the best interest of public officials to involve the public in more meaningful ways. For example, the Humboldt Bay Municipal Water District in California led a 13-month public process to make a decision about the surplus of water in the wake of the closing of two pulp mills.

Maryam Judar, Community Lawyer at the Citizen Advocacy Center, outlined the barriers and limitations of the legal infrastructure for civic engagement in Illinois, including passive and reactionary laws, definitionally deficient laws, poor knowledge about civic participation and/or poor attitudes about civic participants by public officials, and legislative backlash in the wake of citizen success in their efforts. Some of the laws include passive, formulaic processes, including the Freedom of Information Act, the Open Meetings Act, and the laws respecting public hearings found in the Illinois Municipal Code. In addition, legislative definitions and frameworks limit public participation. For example, the definition of “public body,” describing which entities are subject to both the FOIA and the OMA, by its nature excludes non-profit organizations that government bodies increasingly rely upon to deliver traditional government services or to perform government functions. These statutes are also riddled with exceptions that belie their purpose to ensure that the citizenry may monitor government to ensure that it is being conducted in the public interest. Lack of civic knowledge and/or poor attitudes affect the ability of the citizenry to utilize mechanisms for direct democracy, such as for the electors at an Annual Township Mechanism

Matt Leighninger, the Executive Director of the Deliberative Democracy Consortium, an umbrella group that includes the major organizations in the field of deliberation and citizen involvement, outlined the core principles of good public engagement: (1) recruiting diverse voices proactively, (2) employing facilitated small group discussions to foster more deliberate, informed, and intimate environments, (3) providing citizens opportunities and support to take action, and (4) using online tools to complement (not to replace) face-to-face interactions.  

Matt listed several challenges in achieving best practices.  He cautioned that this is an emotional issue, and urged that the public take into account these reasons for which public officials may feel jaded about public engagement.  Public participation laws do not adequately acknowledge the increasing use of online resources used by governments to promote public participation and by the public to civically engage.  It is unclear how to apply laws to the many models of online participation.  Given that online discussions have been shown to generate more acerbic comments than participants would say in face-to-face interactions, challenges in promoting civil discourse are paramount yet not regulable under the First Amendment.  Matt pointed to the American Bar Association resolution to promote civil discourse, which encourages the legal community to promote civil discourse, as an example for a potential pathway to ameliorate the problem.

Towards promoting stronger and more relevant public participation laws, the Deliberative Democracy Consortium convened a working group on legal frameworks for public participation.  The working group started with a preliminary question not asking what our laws should look like but rather what our public participation should look like.  It drafted two documents: a model State Public Participation Act and a model Municipal Public Participation Ordinance.  These were inspired by Alternative Dispute Resolution that puts forth principles to resolve legal disputes.  By following this model, the working group was able to create a more permissive model of public participation.  Finally, Matt urged that professionals in the field should concentrate on creating more engagement more broadly within our communities rather than more government structured and initiated engagement.

Before closing, the audience divided in groups to discuss how they might begin to craft meaningful public participation opportunities.  The ideas included reducing the number of units of government to make monitoring of government bodies in the state more manageable, and building a stronger culture of engagement through targeted outreach and information dissemination about the processes for public participation and the areas of need for it, as well as partnering with organizations comprised of public officials to create workshops in which public officials may learn to value public engagement with an eye on the issues and not on personalities. 

Note: Making Public Participation Legal is a helpful report that was produced following the event described above.