By Charlie Wisoff
On October 23, 2013, the Brookings Institution held a panel presentation on a model municipal ordinance and a model state act for public participation. The presentation, titled “Making Participation Legal,” was the culmination of a year’s work of the Working Group on Legal Frameworks for Public Participation, consisting of public participation practitioners and researchers, local public officials, and lawyers. Notable groups represented include the National League of Cities, the International City/County Management Association (ICMA), the National Civic League, America Speaks, and the American Bar Association. Moderator Matt Leighninger and panelists Lisa Amsler and Mike Huggins represented the Working Group. During the Brookings event, the panelists explained the background and main features of the model ordinance and act. A defining theme of the conversation was the extent to which the proposed laws promote, as opposed to simply make a space for, public officials to practice quality public engagement. Although the laws call for some substantial structural support for public engagement, the presenters emphasized that the laws are mainly designed to do the latter, create a space and a legal infrastructure for those public officials who are already experimenting with innovative public participation practices.
The Model Municipal Ordinance and Model State Act are designed to fill a void that was left by the legacy of past legislation pertaining to public participation. In particular, panelist Lisa Amsler pointed to the Freedom of Information Act and the Sunshine Laws of various states and municipalities. Although rooted in admirable motives, these laws have resulted in a number of deficient public participation practices. For example, it has become common practice for public meetings to consist largely of citizens getting three minutes at a microphone and having no interaction among people in the room. In addition, these public meetings include no discussion outside the scope of the agenda, and public officials can be legally removed from office if they allow meeting conversation to do so. Modeled after the 1996 federal dispute resolution act, the Model Municipal Ordinance and State Act seek to give public officials legal protection when doing innovative public participation and to move beyond what has become the status quo of public participation.
As mentioned above, the Model Municipal Ordinance and Model State Act do not mandate public engagement but provide a space for doing so. According to Matt Leighninger, “we’ve ended up with a model that does not require participation or a specific model but enables and supports what needs to emerge for public participation by focusing on the principles of public participation.” Key here is that the laws focus on principles of public engagement, not specific models or techniques. In the words of panelist Mike Huggins, the laws establish public participation as a recognized public good. The principles may guide public officials in how they do public participation, but the officials are left with significant discretion. That being said, the laws do require municipalities to be intentional and thoughtful in how public participation is implemented. First, the laws require the mayor or city manager to designate a public participation specialist (who can be hired or chosen from existing staff). According to the panelists, the purpose of this position is to gain and disseminate public participation expertise in a “pyramid” fashion. Second, the laws require municipalities to develop their own policy about public participation and to establish a public participation advisory board. The purpose of this board is, “to advise the city council on the design, implementation, and evaluation of public participation processes for determining community goals and policies and delivering services.”
It is difficult, at this early stage, to analyze how the theory behind the Model Municipal Ordinance and Model State Act will play out in practice, but a couple of preliminary comments can be made. It is clear that by themselves laws cannot engender genuine and legitimate public participation. For example, Matt Leighninger acknowledged one weakness of the ordinance is, “that it treats participation as a government responsibility.” He added that participation needs to be a community value and that they are hoping the ordinance results in a conversation that involves a number of stakeholders about what they want their participation to look like. In other words, legal infrastructure is only one factor that is necessary for public participation. As such, a main question in analyzing the Municipal Ordinance and State Act should be how they either facilitate or inhibit other necessary ingredients of public participation. During the Q&A session, Carolyn Lukensmeyer, of the National Institute for Civic Discourse, suggested picking a few pilot municipalities to study as a next step forward. She noted, for example, that the Municipal Ordinance has already been adopted in Oakland, CA. Further analysis is needed, but the Model Municipal Ordinance and Model State Act provide a promising step forward in local and state public participation.