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Public Hearings
When and How to Hold Them

by Bob Meinig, MRSC Legal Consultant
August 1998

Public bodies, such as city councils, boards of county commissioners, and planning commissions, are sometimes required by state law to hold public hearings. Since the issues addressed in these public hearings are frequently contentious, may involve due process rights of private parties, and generate litigation, it is important to know and follow proper hearing procedures. Because these procedures are not generally spelled out in the statutes that require hearings, there is no ready guide for public bodies to follow when conducting hearings. This Focus issue discusses what is legally required for public hearings, with an emphasis on quasi-judicial hearings, and summarizes the basic procedures that should be followed. While following proper hearing procedures may not eliminate litigation over the issues addressed in hearings, it will help prevent having the decisions made following public hearings overturned by the courts on procedural grounds. Following proper procedures also helps insure that public hearings are conducted fairly.

What is a public hearing and how it is different from a public meeting?

A public meeting generally occurs whenever a quorum of a public body, and sometimes less than a quorum, meets together and deals in any way with the business of that body. Public meetings, whether regular or special meetings, are governed by the procedures of the Open Public Meetings Act in chapter 42.30 RCW. Although the public often is allowed to participate in regular or special meetings, public participation is not required by state law. Two basic legal requirements of a public meeting are that the public be notified and be allowed to attend.

Although a public hearing is also a public meeting, the main purpose of most public hearings is to obtain public testimony or comment. A public hearing may occur as part of a regular or special meeting, or it may be the sole purpose of a special meeting, with no other matters addressed. An "open record hearing" under 1995 regulatory reform legislation (chapter 36.70B RCW) is a public hearing, while a "closed record appeal" is a public meeting.

There are two types of public hearings, legislative and quasi-judicial, and it is important to understand the distinction between them. The purpose of a legislative public hearing is to obtain public input on legislative decisions on matters of policy. Legislative public hearings are required by state law when a city or county addresses such matters as comprehensive land use plans or the annual or biennial budget. Legislative public hearings are generally less formal than quasi-judicial public hearings. They do not involve the legal rights of specific, private parties in a contested setting, but rather affect a wider range of citizens or perhaps the entire jurisdiction. The wisdom of legislative decisions reached as a result of such hearings is not sEcond-guessed by the courts; if challenged, they are reviewed only to determine if they are constitutional or violate state law. For example, a court will not review whether the basic budgetary decisions made by a city council or county commission were correctly made. On the other hand, comprehensive plans in Growth Management Act (GMA) counties may be reviewed by a growth management hearings board, and maybe later by a court, for consistency with the GMA.

The Importance of Public Process

On certain controversial legislative issues, it can be important to conduct a thoughtful public process in advance of any public hearing. Hearings often occur late in the process and may leave citizens with the impression that local officials do not want to hear their ideas. Council or board chambers are formal and can be intimidating to citizens who are not accustomed to public speaking. The format of hearings often leaves little, if any, room for reasonable discussion, give or take, or response to prior testimony.

While beyond the scope of this Focus issue, here are some brief thoughts on public process. Involve citizens in the early stages of the policy development process. Small group processes work well for truly involving interested citizens. Make sure that there is plenty of opportunity for people to get answers to questions; this usually does not happen at a formal public hearing. Consider using a trained facilitator to facilitate discussion on really controversial issues. Good public process can be time consuming and expensive. However, these processes increase the potential to arrive at solutions that have strong support in the community.

Quasi-judicial public hearings, unlike legislative ones, involve the legal rights of specific parties, and the decisions made as a result of such hearings must be based upon and supported by the "record" developed at the hearing. Quasi-judicial hearings are subject to stricter procedural requirements than legislative hearings. Most quasi-judicial hearings held by local government bodies involve land use matters, including site specific rezones, preliminary plats, variances, and conditional uses.

When are public hearings required?

A public hearing is required only when a specific statute requires one. Of course, a local government may hold a public hearing in other instances, such as when it desires public input on a sensitive or controversial policy issue. If you have any question as to whether a public hearing is required for a particular matter, we recommend that you consult with your city attorney or county prosecutor.

What procedural requirements apply to public hearings?

Notice (legislative and quasi-judicial public hearings). Some form of public notice is required for all public hearings. If the statute that requires a public hearing in a particular instance identifies the type of notice to be provided, those notice requirements must be followed. Such notice requirements may include publication in a newspaper, posting on and/or near real property that may be affected by the matter being addressed in the hearing, and mailing notice to specific parties. Since all public hearings are considered public meetings under the Open Public Meetings Act, the notice requirements of that law must be followed. A city or county may, of course, choose to provide any additional notice beyond whatever statutory notice requirements may exist.

If the statute requiring a public hearing does not specify the type of public notice to be provided, a good general rule to follow is to provide notice designed to alert those who may be affected by the proposed action, to inform them of its nature, and to allow them enough time to prepare for and attend the public hearing. The method of providing notice can include publication in the official newspaper, posting, mailed notice, and other means that a jurisdiction typically employs. The notice should be provided a number of days before the hearing, and a week to 10 days generally is sufficient. In some circumstances, notice of less than a week may be adequate. Ideally, each city and county should enact an ordinance that sets out the notice to be provided for public hearings, when notice provisions are not identified in the statute requiring the hearing.

Appearance of fairness (quasi-judicial hearings). The appearance of fairness doctrine applies to quasi-judicial hearings, not to legislative hearings. It is permissible, even expected, that members of a public body will have biases and will be lobbied by constituents when the matter is legislative. Different rules apply to quasi-judicial hearings, where a decision maker is not permitted to prejudge or have biases regarding or a matter. Ex parte communications are prohibited in quasi-judicial proceedings. More information on the appearance of fairness doctrine can be found in the MRSC publication, The Appearance of Fairness Doctrine in Washington State, Report No. 32 (January 1995), which is also viewable on MRSC's Web site at http://www.mrsc.org/textafd.htm.

Decision based on the record (quasi-judicial hearings). A public body's decision on a quasi-judicial matter must be based on and supported by the "record" in that matter. The "record" consists of all testimony or comment presented at the hearing and all documents or exhibits that have been submitted in connection with the matter being considered. All documents, including maps, drawings, and staff reports, should be admitted as numbered exhibits during the public hearing.

All quasi-judicial hearings should be tape recorded. If a quasi-judicial decision is appealed, the court will require a transcript of the hearing, which can be made from the tape. Tape recording of legislative hearings is not required.

How should a public hearing be held?

The setting. Council or commission chambers where public meetings are usually held will often be the best place to hold a public hearing. If a large crowd that cannot be accommodated in those chambers is anticipated, a larger room should be found. Whatever room is used should be well lighted and ventilated. A microphone (on a podium, if available) should be provided to help insure that all testimony is heard and, if necessary, adequately recorded.

Legislative hearings. State statutes do not specify how public hearings, whether legislative or quasi-judicial, should be conducted. Because legislative hearings are generally informal, the main concern is to provide an opportunity for all attending members of the public to speak if they so desire. Time limits should be placed on individual comments if many people are intending to testify, and the public should be advised that comments must relate to the matter at hand. Order and decorum should be maintained at all times. The "ground rules" for the conduct of the hearing should be stated by the chairperson or presiding official at the beginning of the hearing.

Quasi-judicial hearings. Because due process protections apply to quasi-judicial matters, quasi-judicial hearings are more formal than legislative hearings. However, they should not be as formal as a court proceeding. Keep in mind that quasi-judicial decisions may be overturned by a court if proper procedures are not followed, even if the decision itself is a "correct" one. Thus, it is important to establish in advance written procedures to guide the conduct of quasi-judicial hearings, both for the sake of the public body holding the hearing and for the attending public. Copies of the procedural rules should be made available prior to the hearing to members of the public.

Agenda. The adopted procedures should include a standard agenda. MRSC has numerous examples of public hearing agendas that can be provided upon request. A typical agenda for quasi-judicial land use hearings might include the following:

• Introduction. The presiding officer introduces the matter being heard and announces the ground rules for the hearing. The presiding officer should also address the appearance of fairness doctrine by asking if any members of the hearing body have any interest, conflict, or bias that would preclude their participation and if any members have had ex parte communications regarding the matter at issue. See the discussion below concerning a "script" for the presiding officer to follow.
• Staff report. Planning staff describe the application being considered; identify and discuss and technical studies; describe possible alternatives; and, if appropriate, make a recommendation concerning the proposal. Members of the decision-making body should ask questions of staff at this point.
• Applicant presentation. The applicant, who has the burden of proof to show compliance with applicable laws, presents testimony and evidence to support the application. The applicant may have expert witnesses, who should speak at this point. The applicant should addresses any issues raised by staff-proposed conditions. Members of the decision-making body should ask questions.

Should testimony be taken under oath? Testimony at a quasi-judicial hearing should be taken under oath. However, it is not necessary that individual oaths be taken. A group oath given by the clerk or the presiding officer is sufficient and saves time.

• Public Testimony. Both proponents and opponents of the proposal are allowed to speak. Typically, proponents speak first, followed by opponents, pursuant to ground rules previously announced (either at the beginning of the hearing or at the beginning of the public testimony stage). People testifying should give their names and addresses. Some jurisdictions also require speakers to provide this information in writing at the beginning of the hearing, and speakers are called according to the order on the sign-up sheet. Speakers should be given time limits and cautioned to avoid repetitious or irrelevant comments. They should not be allowed to make personal attacks.
  
  Note that quasi-judicial bodies are not governed by the formal rules of evidence established for the courts. Comments and exhibits should be allowed as long as they have some relevance to the matter at hand. However, attempts to exercise too much control over seemingly irrelevant comments or exhibits could be perceived as censorship of legitimate public comment. If in doubt about an exhibit, admit it and decide about its reliability or relevance later.

Should cross-examination be allowed? As a general rule, cross-examination is not appropriate in a quasi-judicial hearing before a local government body. However, there may be instances where it should be allowed. Where the hearing assumes a distinctly adversarial posture, the proponents and opponents are represented by legal counsel, expert witnesses are called, or complex technical information is presented, cross-examination should be permitted if requested. Cross-examination can be conducted by one representative, presumably legal counsel, from each side of the matter. When requested by a party, cross-examination of planning staff who wrote and presented the staff report should also be permitted.

• Rebuttal testimony. Some jurisdictions allow the applicant to respond to any testimony presented. Some also allow rebuttal by staff and by opponents. Rebuttal preferably should not include new testimony or evidence.
• Questions from the hearing body. The hearing body may wish to direct questions to speakers either during testimony, or at the close of public testimony.
• Close the hearing. Sometimes it becomes necessary to continue a hearing to another day if there are more people wishing to testify than can be accommodated in one evening or afternoon. A hearing should not be allowed to last too late into the night since many of the public participants will find it necessary to leave before its conclusion. The record is closed at the conclusion of the hearing, and no other testimony or evidence should be considered by the hearing body. Deliberations and the vote on the application can take place immediately after the close of the public hearing or at some future meeting.

Hearing Script (quasi-judicial hearings). The presiding officer may find it helpful to have a written "script" to follow for opening and presiding over the hearing. A typical script might include the following:

• Call to order; open the hearing.
• Introduce self, hearing body, and staff.
• State the purpose of the hearing, including a brief description of the application and the action that the hearing body may legally take on the application.
• Address appearance of fairness issues; explain briefly what the appearance of fairness doctrine requires; ask the members of the hearing body:
  • if they have any interest in the property or the application, or if they own property within a certain distance (e.g., 300 feet) of the property subject to the application;
  • if they stand to gain or lose any financial benefit as a result of the outcome of the hearing;
  • whether they can hear and consider the application in a fair and objective manner;
  • if they have engaged in any ex parte communications with either proponents or opponents of the application, and, if so, ask them to place on the record the substance of any such communications so that interested parties have the opportunity at the hearing to rebut the communications.

Ask members of the audience if they wish to challenge on appearance of fairness grounds participation in the matter by any member of the hearing body, including the reasons for the request. (Any member challenged should be given the opportunity to either disqualify or refuse to disqualify him- or herself.)

Any member disqualified based on appearance of fairness grounds must leave the hearing room and must not participate further concerning the application.

• State the ground rules for the hearing and the manner in which it will proceed.
• Administer the oath to all those who may testify, as a group (or have clerk or other appropriate official administer the oath).
• Ask for staff to give a report on the application; insure that all documents, charts, maps, etc. are introduced as exhibits, with a number assigned to each exhibit.
• Ask for applicant to comment on the application, followed by the testimony of any technical experts in support of the application.
• Ask for any public testimony on the application (first by proponents and then by opponents) and state any rules regarding public testimony, such as:
  • all speakers must speak into the microphone and give their names and addresses;
  • all comments should be addressed to the hearing body, should be relevant to the application, and should not be of a personal nature;
  • identify time limits, if any, on speaking;
  • avoid repetitive comments;
  • if there are a large number of speakers, including many who are part of groups or organizations, ask for a representative to speak on behalf of the organization or group;
  • unruly behavior, such as booing or hissing or harassing remarks, is prohibited.
• Ask if everybody understands these rules.
• Ask for closing or rebuttal comments from the applicant, and, if desired, from the public.
• Ask for additional staff comments.
• Ask for questions from members of the hearing body (these questions may also be authorized to occur as testimony is presented).
• Close the hearing and state what steps are to occur next regarding the application.

MRSC has numerous examples of such scripts that will be provided upon request.

Deliberations. Deliberations on a quasi-judicial matter can occur following the public hearing or at some other time. If the matter is a complex one, it is best to postpone deliberations until members of the hearing body have had time to review the exhibits and perhaps listen again to some or all of the recorded testimony. Be careful not to delay the deliberations and eventual decision beyond any applicable statutory timelines.

Although it is recommended that the deliberations occur in open session, the Open Public Meetings Act exempts from its coverage that part of a meeting which relates to quasi-judicial matters between named parties. If the deliberations are held in an open meeting, comments from the audience should not be permitted. Deliberations by the hearing body are not considered part of the record for purposes of judicial review of the decision.

Vote/decision. The vote on the application must occur in open session. After the vote is taken, the hearing body should direct the staff or legal counsel to prepare, based upon instructions from the hearing body, findings of fact and conclusions of law in support of the decision. After preparation of the findings and conclusions, the hearing body must vote to approve them or to send them back for modification.

Tips For A Successful Public Hearing

The following should be kept in mind to help insure that a quasi-judicial public hearing runs smoothly, is error-free, and is fair:

• Be prepared! Don't come to the hearing cold. Review the application and supporting documentation, including SEPA documents, and any staff-prepared documents and recommendations prior to the hearing.
• Prior to the hearing, make sure that timely and proper notice was provided.
• Have clear ground rules for conducting the hearing, and make printed copies available to the public.
• Make sure that all appearance of fairness issues are addressed.
• Be sure that the recording equipment is working properly and that there is an ample supply of blank tapes. Stop any testimony during tape changes.
• Keep order in the hearing, limit testimony where necessary, but maintain an impartial attitude.
• Make sure all witnesses identify themselves on the record and that all exhibits are properly identified for the record. Testimony that references an exhibit should identify the exhibit number.
• Make sure that every person or group (via a spokesperson) that wishes to speak has that opportunity.
• If the hearing is going on too long, adjourn it and continue it to another day.
• Ask questions, ask questions . . . of staff, legal counsel, the applicant, and people who testify.
• Make sure your decision is clear and understandable, is based on evidence included in the record, and is consistent with the legal standards that apply to the application.

Resources

The following resources provide more detailed information concerning public hearings and the legal considerations that apply:

• You Be the Judge - A Handbook for the Land Use Decision Maker, by Jim Driscoll and Ted Hunter, prepared for the Association of Washington Cities (1993).
• The Appearance of Fairness Doctrine, MRSC Report No. 32 (January 1995) (viewable at http://www.mrsc.org/textafd.htm).
• A Short Course on Local Planning, Planning Association of Washington and the Washington Department of Community, Trade and Economic Development, version 3.2 (March 1997).