Date: December 2018
Public hearings are meetings designed to gather information or survey citizen opinion regarding a certain proposed government action or application before a government body. Unlike most open meetings where the public has a limited—if any—role, public hearings are meant to encourage citizens to speak and offer evidence regarding a certain proposed action. Some public hearings are required by state statute, and some involve constitutional considerations.
Public hearings are required in various circumstances, such as truth-in-taxation, conditional use permit and land use variance applications, and establishment of zoning ordinances to identify a few.
When holding public hearings, the entity should consider at a minimum these questions:
- What notice must be given?
- What procedural rules do we have/need in place?
- What other laws may affect our answers to these questions?
This resource provides a starting point for the discussion.
Example of Statutorily Required Public Hearings
Minnesota Statutes, Section 394.26, Subdivision 1, requires a hearing as required by Minnesota Statutes, Section 375.51 prior to the adoption or amendment by ordinance of any comprehensive plan or official control. The statute also requires a public hearing before the approval or denial of any conditional use permit, interim use permit, variance or subdivision approval. Public hearings may also be required pursuant to Minnesota Statutes, Sections 394.21 to 394.37 (relating to adopting comprehensive plans and ordinances)1.
Many statutes requiring public hearings also state specific notice requirements for those hearings. For example, Minnesota Statutes, Section 394.26 requires that notice be given of the time, location and purpose of any public hearing:
- Notice of the hearing must be published in the newspaper in general circulation in the town, municipality or other area of concern, and in the county’s official newspaper.
- Notice must be published at least 10 days before the hearing.
- The statute also details situations where other newspapers, individuals and entities must be given notice of the hearing.
Public hearings are also likely to be subject to the notice requirements of the Open Meeting Law (OML). The OML applies to city, township and county board; planning commission; and board of adjustment meetings. Presence of a quorum of board members constitutes a meeting under the OML. Therefore when a public hearing is a meeting under the OML, that law’s notice requirements apply1.
Prior to holding a public hearing, the entity should consult the enabling statute and the OML to ensure that proper notice is given.
Conducting the Hearing
At a public hearing, the public is allowed to present testimony. How that looks and what limitations an entity may place on citizens depends on the nature of the hearing and the entity’s established policies and procedures. Often statutory and constitutional considerations shape those policies and procedures. Below are some of the considerations.
Procedural Due Process
Procedural due process, guaranteed by both the United States and Minnesota constitutions, requires that a citizen may not be deprived of life, liberty or property without notice; the opportunity to be heard; and a decision by a neutral party. The citizen must have a “legally recognized” and protected life, liberty or property interest for due process to apply.
Many hearings involving procedural due process are referred to as “quasi-judicial proceedings.” Courts have held that when government entities hold quasi-judicial proceedings, the “full panoply” of procedures available in regular judicial proceedings are not required. Rather, the basic rights of procedural due process are “reasonable notice of hearing and a reasonable opportunity to be heard.”2
The degree of notice is dependent on the issue in each case. Public hearings relating to property must inform the property owner of his or her right to appeal and the timeline for such appeal.3
At the hearing itself, people may have the right to be heard and present evidence; however, that same right does not necessarily include the right to question or cross-examine other individuals presenting evidence or provide rebuttal evidence.4
Due process requires a decision by neutral/impartial decision makers. Elected officials need to be responsive to constituent needs and opinions. However, when acting as quasi-judicial decision makers, elected or appointed board members must ensure that they listen to the evidence presented to the board in an objective, neutral manner.
They also must make their decision based on the information provided to the board during the application and/or hearing process. Failing to do so exposes the board to having its decision overturned on appeal, even when the decision otherwise would have been supported by the record.
Which Hat Is It?
The role of a county commissioner requires making legislative and quasi-judicial decisions. Legislative decisions establish policies for future application, while quasi-judicial, or administrative, decisions are the application of those policies.
Examples of legislative decisions of a county board that establish a policy includes:
- adoption of plans
- adoption of ordinances (or amendments to ordinances)
- passing budgets
Examples of quasi-judicial decisions wherein a county board applies previously established policies include decisions on:
- special exceptions
- subdivision plats
- zoning code violations
- site plan review
- employee terminations
The distinction between legislative and quasi-judicial decision making in zoning matters is important. In quasi-judicial proceedings, the decision-makers sit as an impartial decision maker (e.g., making decisions based on the evidence as it applies to that particular application versus the decision maker’s personal beliefs).
Considerations Other Than Due Process
Even if an individual is not entitled to procedural due process when an individual challenges a government entity’s decision in court, the court looks at: 1) the application or hearing process; 2) the evidence before the board when it made its decisions; and 3) the findings made by the board when deciding whether enough objective evidence supports the board’s decision.
If evidence is insufficient to support the board’s decision or it is unclear why the board made its decision, the court will likely reverse the board’s decision. Also, the board should make sure that the reasons for its decisions are based on factors identified in the relevant ordinance and/or statutes.
Note: A government entity’s failure to follow its own procedural rules may render the action void or voidable.5
To Record or Not to Record?
When county boards, commissions and boards of adjustment conduct hearings relating to planning and zoning and otherwise act as a quasi-judicial body, MCIT recommends recording the hearing. An applicant or affected land owner or citizen has a right to challenge a board’s decision. The appeal may be heard by a judge of District Court or the Minnesota Court of Appeals. The court typically reviews the entity’s decision “on the record.” This means that the court examines all of the information that was before the board at the time it made its decision and determines if sufficient evidence was presented to support it.
In legalese, the court’s review of the decision is limited to whether the government body’s decision was “unreasonable, arbitrary or capricious, with review focused on the legal sufficiency of and factual basis for the reasons given.”6
When the hearing and board meeting is recorded, a transcript of the hearing and discussion can be made and submitted to the court. This greatly reduces the ability of the parties to disagree about what was discussed and what the board took into consideration.
MCIT recommends that members ensure that recording equipment is in good working order. There is little point in recording a hearing to preserve a record when the recording is inaudible. Board members and others should be mindful that the proceeding is being recorded and speak one at a time.
First Amendment Considerations and Public Meetings or Hearings
The amount of public participation allowed at a public hearing is left to the individual local government unit’s discretion. However, MCIT members should be aware that their ability to regulate speech in these arenas depends on the type of forum that is created.
Generally, the four types of forums are traditional public, designated public, limited public and nonpublic.7
A traditional public forum consists of places that have traditionally been devoted to open assembly and debate. A park would typically be included in this category. If the government is regulating speech in a traditional public forum, the government’s ability to do so is extremely limited.
Reasonable restrictions as to the time, place and manner are permitted, but any restriction must be content neutral, narrowly tailored to serve a compelling government interest and leave open alternative channels for public communication. For example, generally a public entity may enact viewpoint neutral time, place and manner restrictions for large demonstrations in public parks.
Government entities can create a “designated public forum” in places where the government property has not traditionally been regarded as a public forum but where the government entity creates the forum. In these situations, the government’s ability to restrict speech is the same as in a traditional public forum.
Government entities may also create limited public forums that are limited to use by certain groups or dedicated solely to the discussion of certain subjects. In these forums, a government entity has a greater ability to place restrictions on the use of such forums. Any limitations on speech must be reasonable and viewpoint neutral.
A public hearing would likely be an example of this type of forum. Examples of valid restrictions would be to restrict information provided at a public hearing to the subject matter of the public hearing and limiting each speaker to five minutes. The restrictions are content neutral, i.e., they do not discriminate based on the viewpoint of the information.
The final type of forum is nonpublic. This includes all places not encompassed by the other categories. Examples of nonpublic forums are streetlight posts, prisons, military bases, polling places, a school district’s internal mail system and airport terminals.
This type of forum allows for the greatest regulation. In addition to applying time, place and manner restrictions as described previously, the entity may reserve the forum for its intended purposes. The regulation on speech must be reasonable and not an effort to suppress expression because public officials oppose the speaker’s views.
Government entities should be thoughtful when creating such forums because the classification governs the government entity’s ability to establish and enforce regulations.
Public comment periods during public hearings may present unique challenges and pitfalls for government entities. Procedural rules may assist an entity in managing the potential risks. Some questions a board may want to consider are:
- Must citizens preregister to speak?
- Who is the contact person to be placed on the agenda?
- Will a time limit apply to each speaker?
- Will rules of decorum be printed and posted?
- Will penalties exist if these procedures are not followed? (For any penalties, the board should ensure that they do not run afoul of the First Amendment.)
Private Data Is Being Shared, Now What?
One benefit of establishing policies and procedures and outlining them before the start of a hearing is to put citizens on notice that certain information should not be discussed or is protected data. A citizen may not be violating any laws by making a comment, but the board may create a potential claim by responding to it.
The Minnesota Government Data Practices Act (MGDPA) classifies certain data as “not public” and other data as “public.”8 Government entities including elected officials are limited in what “not public data” they can access, but more important are the limits regarding what they can share with members of the general public. For example, most personnel data is not public data.
It is plausible that a citizen at a public hearing may bring up data that is not public. Board members need to know what data or topics are restricted by law and have a plan to deal with such information. The board should ensure that its comments do not inadvertently create an MGDPA claim.
Prior to responding to a citizen’s comments, elected officials should contemplate the following:
- Would responding to the inquiry require a discussion of not public data under the MGDPA?
- Does the subject matter involve an issue relating to pending litigation?
- Has all of the necessary information been presented to the board so it can make an informed response?
- Would the question be more appropriately answered by a staff member?
Running public meetings and hearings may expose counties to risk. MCIT recommends officials work with the staff and the county attorney/legal counsel to discuss how best to structure such meetings to allow public participation without violating federal and state regulations.
Best Practices for Holding a Public Hearing
- Establish rules of procedure as necessary to maintain control of a hearing, to provide for appropriate public input under the circumstances and to keep the length of the hearing reasonable.
- Consider establishing a time limit for each participant if numerous individuals want to speak.
- Remind speakers that participation includes the right to present evidence but not to cross-examine other speakers.
- Allow an applicant to inspect documents, present evidence and fully present the case if the hearing involves a land use application.
- Make a record for the basis of any decision, including all pertinent documents and any exhibits (documents, maps, photographs) presented.
- Make sure the information on which a decision is based is part of the record.
- Listen to public sentiment and opposition; however, ensure decision makers are not unduly relying on such input.