Amherst subcommittee delays decision on changing public comment rules at council meetings

  • Amherst Town Hall

Staff Writer
Thursday, March 23, 2023

AMHERST — A Supreme Judicial Court decision invalidating a policy requiring civility during public comments in the town of Southborough is prompting an Amherst Town Council subcommittee to put off recommending limiting oral feedback at council meetings.

The Government, Organization and Legislation Committee agreed March 15 to delay a recommendation to amend the council’s rules and procedures, including placing time limits on public comment and restricting access to residents only, that drew backlash earlier this month from the public at a Town Council meeting.

Councilors at that March 6 meeting referred the topic back to the subcommittee for more deliberation.

Council President Lynn Griesemer said she would strongly recommend leaving written rules as they are until a KP Law attorney discusses thoroughly with town elected officials the implications of the SJC’s March 7 decision in the Barron vs. Kolenda case.

“We have a serious legal issue in front of us, and we’ve heard from the public,” Griesemer said at the subcommittee’s virtual meeting, which drew 17 participants, more than most similar meetings.

The court case centers on a woman who contended the state’s Declaration of Rights gave her permission to speak her mind at the Southborough meeting and not be threatened with removal because of her actions.

SJC Justice Scott L. Kafker wrote the decision that cites Articles 19 and 16 as forbidding civility restraints on the content of speech at a public comment session.

“Although civility, of course, is to be encouraged, it cannot be required regarding the content of what may be said in a public comment session of a governmental meeting without violating both provisions of the Massachusetts Declaration of Rights, which provide for a robust protection of public criticism of governmental action and officials,” Kafker wrote.

In a memo municipal law firm KP Law sent its communities, though, its attorneys note that the Southborough case may not be relevant, pointing out that state law doesn’t require public comment periods during meetings:

“We encourage municipalities to review the form and practice of their public comment policies, ensuring that there is no attempt to regulate civility, rude or disparaging remarks, or other content-based criticisms of public officials. In our view, public comment policies may continue to regulate, for example, content-neutral time limits for public comments, the duration of the public comment period as a whole, at which part of the meeting the public comment will occur, individual speaking time limits, rules preventing speakers from speaking over others, and acting in a nonpeaceable and disorderly manner.”

The change the Amherst subcommittee is considering states that “once the public comment period has reached 30 minutes, the council may pause public comment and move to the action item section of the agenda. The council may return to public comment once all votes on the agenda are complete.”

During the subcommittee’s discussion, At Large Councilor Mandi Jo Hanneke said she worries that without some guardrails for public comment, there could be nasty rhetoric pushing the boundaries of protected speech, and no way to stop it.

“We could have a situation where we have 40, 50, 60 people who live in Florida or Michigan and are part of a First Amendment audit issue,” Hanneke said.

District 3 Councilor Jennifer Taub, also a member of the subcommittee, said she doesn’t support a cap on the total length of public comment to streamline meetings. “I don’t think our meetings are made long by public comment, and when they are it’s an important matter,” Taub said.

A statement was also read from District 1 Councilor Michele Miller by Athena O’Keeffe, the clerk to the Town Council. Miller’s statement is that she disagrees with limiting public comment when the town charter, adopted in 2018, is still in its infancy and councilors are trying to build trust with the community.

Those from the public again voiced their displeasure with the possible changes.

“We need to be heard, and we need to feel this is a welcome place,” said Janet Keller, of Pulpit Hill Road.

“Please heed our voices now so we can be heard later,” said Birdy Newman, a District 3 resident.

Scott Merzbach can be reached at smerzbach@gazettenet.com.