There is not a public servant, employee, or trustee who doesn’t have a war story regarding an unruly public meeting or hearing gone wild. Perhaps it was just a quirky public comment. Maybe it’s a viral comment from a public official. However, with increasing frequency, public servants are experiencing angry, irate, and downright ugly outbursts from the public, their colleagues, and elected officials.
Public feedback, open meetings, and robust discussion are the bedrock of local representative democracy. Not only is speech and healthy debate protected by the First Amendment and the Ohio Constitution, but it is also fundamental to the governing process. However, whether it’s in person or online, the discourse of late has definitely taken a dark turn.
So, what are township officials to do?
The course of action for dealing with the situation will depend upon whether the discourteous person is a member of the public, an employee, or an elected official. There are a number of best practices, policies, and processes townships can employ to help encourage civility while encouraging robust public debate on important topics of local government.
The Public:
Public input is a core tenant of the democratic legislative process and there are numerous times members of the public can and should interact with their government. Additionally, township boards and commission meetings are required by Ohio Law to be open to the public.[1] However, just because the public are your constituents does not mean that they get to be disrespectful and treat officials and staff as punching bags.
Technically speaking, townships are not legally required to allow public comment at meetings. But those that do should adopt public comment policies for their meetings. Public comment policies should be tailored to protect the speakers’ First Amendment rights while placing reasonable time, place, and manner restrictions on their comments. How does that work in practice?
Policies can place time limits on comments, require commenters to only address a topic on the agenda, direct comments only to the meeting chair, and ask that people speak at a podium. Townships can require commenters to sign up for public comment in advance of the meeting and limit the total amount of meeting time to be devoted to public comment. The policy can also prohibit commenters from using personal attacks, obscene language, or speech that is likely to produce immediate unlawful action. However, public comment policies must avoid rules regulating the content or viewpoint of the comments. Just because the chair or members of the board don’t like or agree with it, or if it’s speech that is critical of their conduct, this is not grounds for limiting the speech.
In addition to public comment rules, providing annual trainings on open meetings, sunshine laws, and general best practices on running meetings is another way to ensure meeting chairs have the tools to make sure a public meeting doesn’t get out of hand.
Engagement with the public does not only happen at meetings. More and more discussions about local government takes place on social media. At the same time, social media can be an excellent tool for townships to communicate with their residents. Townships that decide to use social media must be aware of the First Amendment implications when the public comments on social media posts or government pages. A well-crafted social media policy that protects the rights of commenters while appropriately moderating content is highly recommended.
Government social media pages are limited-purpose public forums and as such some regulation of the content is allowable, but viewpoint-based regulation is never permissible. Townships should be careful when considering whether to allow comments on posts and whether to hide or delete a specific comment so as to not engage in unconstitutional viewpoint regulation. Townships can comply with the First Amendment while prohibiting posts that include obscenity, comments that are illegal, and spam. Townships should also be extremely careful when blocking constituents from following official pages. A social media policy that clearly identifies what type of content is prohibited will enable a township to enforce rules that withstand legal challenge.[2]
Lastly, it’s important to note that township staff obviously receive feedback in person, over the phone, and by email. When interacting with members of the public, township employees should treat them with respect. However, this does not mean that employees or public officials must willingly subject themselves to harassment, derogatory or rude behavior as part of these communications. Townships should put plans and policies in place for dealing with disruptive constituents and provide their employees training for these situations. Training can include methods of dealing with difficult phone calls, de-escalation strategies, when to involve a supervisor, and informing bad actors that they may be placed on a limited communication plan. Putting plans in place ahead of time will make life far easier for township staff when issues involving members of the public arise.
Employees:
The public are not the only people with an interest in township government. Township employees also have a vested interest in how their government operates and have opinions on a variety of local matters. As employees though they must follow workplace rules and the terms of their employment or they are subject to discipline. This oftentimes makes difficult employees the easiest group to deal with so long as you have an up-to-date and well-crafted employee handbook.
Regarding employee speech, social media policies and an employee handbook are your best tools to make sure you don’t have unnecessary discussions that disrupt the functions of government. Employees don’t forfeit their First Amendment rights when they enter public employment, but well-crafted policies put in place ahead of time can limit employees’ speech on topics related to their job, if the comment is pursuant to their official duties, or if the legitimate interests in an effective workplace are disrupted. Working with legal counsel to craft social media policies and making sure the employee handbook clearly explains what types of comments and behaviors would subject an employee to discipline will help you manage most potential public issues down the road. Again, respecting employees’ First Amendment rights as citizens is paramount, but maintaining efficient performance of the workplace does give an employer options.
Township employees in townships where there are clearly established policies and procedures are subject to discipline for violations of those policies. Discipline for violations of social media policies or an employee handbook’s restrictions on employee speech should always be done consistently and in accordance with any discipline policy or collective bargaining agreement.
Trustees/Elected Officials:
Elected officials are the stewards of township government, but they are also human and not immune to getting angry, being rude, disrupting meetings, or treating the public and staff poorly. The difficult part is that elected officials cannot be disciplined like an employee, they are required to attend meetings, and are necessary for running the government. Therefore, the options for controlling elected officials’ behavior are more limited, but that doesn’t mean that townships have no options.
Controlling behavior during a public meeting is best handled through Rules of Order. Rules of Order will help trustees and board members run effective meetings and keep any bad actors in check. Trustees can pass Rules of Order by resolution. Trustees can require any boards and commissions to also follow the adopted rules. Generally, Rules of Order can set the agenda for a meeting, limiting how long and how often trustees or board members can speak on a topic. Rules can incorporate some of the procedural aspects of Robert’s Rules of Order giving the chair of the meeting options for controlling debate and requiring members to speak in turn rather than over one another. You can work with your law director to draft Rules of Order that best accomplish your goals of running professional, efficient meetings.
Regulating elected officials’ poor conduct outside of meetings is more difficult. Voluntary civility agreements, oaths, or codes of conduct are other potential options to try and reign in bad actors. Having trustees and members of your boards and commissions voluntarily agree to an oath or code of conduct shines a spotlight on how people have agreed to behave and will remind those signing such agreements that the expectation is that they govern with civility. A sample oath of office including civility language is below:
I, [insert name], do solemnly swear or affirm that I will support the Constitution of the United States and the Constitution of the State of Ohio, and will faithfully discharge and perform the duties of Trustee of [insert township] in [insert county], State of Ohio, during my continuance in office, and until my successor is chosen and qualified. Further, I swear or affirm to conduct myself with professionalism, appropriate decorum, and treat my colleagues and members of the public with respect and civility, during my time in office.
Breaking an oath for lack of professionalism or civility may not result in removal from office, but it is a strong and public deterrent. Although officials must take an oath, there is not specific language required by law. Thus, taking this type of oath will be completely voluntary on the part of the elected official.
If a trustee or elected officials’ behavior is especially extreme, it is plausible they could be charged with misconduct in office and subject to removal proceedings. The standard for misconduct in office is someone “who willfully and flagrantly exercises authority or power not authorized by law, refuses or willfully neglects to enforce the law or to perform any official duty imposed upon him by law, or is guilty of gross neglect of duty, gross immorality, drunkenness, misfeasance, malfeasance, or nonfeasance is guilty of misconduct in office…”[3] An official who is rude, discourteous, or lacks civility without additional bad behavior will likely not meet the standard for misconduct in office. However, for elected officials whose behavior does rise to this level they can be removed through the process provided in R.C. 3.08.
Removal proceedings are not easy. A written complaint must be prepared setting forth the charges.[4] The complaint must include signatures from township voters in an amount equal to 15% of the total vote cast in the township at the last election for Governor. The complaint is then filed with the court of common pleas where the township is located. Removal requires a hearing and then a trial before judge or jury on the merits of the complaint.
If an elected official’s behavior is routinely rude, discourteous, and difficult, but doesn’t rise to the level of misconduct in office, townships can seek additional help. Contacting your law director regarding potential options is always a good first step. Other elected officials or influential constituents can be contacted to serve as an intermediary or mediator to try and work through any issues.
Consulting with the Ohio Township Association for aid or best practices is always an option. One available resource is Government Conflict Resolution Services provided by the Ohio Supreme Court.[5] The program provides potentially confidential services for elected officials and local governments to resolve disputes without court involvement. In short, even if it is an extremely uncomfortable situation there are still options available.
Although there is no silver bullet to completely end bullying, incivility, and ugly behavior, well-crafted policies and procedures combined with training officials on how to handle these types of situations can help reduce the level of unprofessional conduct. Many times, it boils down to the Golden Rule we all learned when we were young, “treat others as you wish to be treated.”
[1] R.C. 121.22
[2] See, Davis v. Colerain Township, 551 F. Supp.3d 812 (S.D. Ohio 2021) (Court held that township police department’s removal of a video was not a violation of the First Amendment because the policy prohibited videos and the regulation was reasonable.)
[3] R.C. 3.07
[4] R.C. 3.08
[5] https://www.supremecourt.ohio.gov/courts/services-to-courts/dispute-resolution/gcrs/
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