3.2 Processes for Deliberating
Deliberation is an important part of the decision-making process for natural resource agencies. Like the administrative practices regarding announcing and holding meetings, practices regarding the structure of deliberation sessions can also vary between different organizations. Some of these differences are formed by internal policies and norms, while others are dictated by local, state, or federal law. Common deliberation structures reflect rules of procedure, open or closed meeting laws, and public comment laws.
Rules of procedure dictate how an item gets placed on the agenda for a meeting, formalize the process for bringing forth, discussing, and voting on an item, and specify how that decision is recorded and announced.36 Examples of rules of procedure include Robert’s Rules of Order and Rosenberg’s Rules of Order (see Box 3b). Agencies which follow formalized rules of procedure often start with one of the aforementioned standards, and then revise the rules over time based on the agency’s needs and the outcome of relevant lawsuits. Rules of procedure facilitate the decision-making process by allowing business items to be handled and discussed in a transparent and efficient manner. Specifically, these procedures provide an objective set of rules which help ensure that the decision-making process was legitimate and legally-sound. However, there may be variability in these rules between different agencies, and some organizations may not follow a set of formalized rules. Cooperating agencies will therefore need to coordinate their practices for joint-agency meetings, and those who are accustomed to following certain rules may need to assist in training any partners who have not followed the same rule-set in the past.
Box 3b. Public Transparency Rules
Many governments have passed laws stipulating administrative processes that must be processed to ensure transparency and accountability.
For example: California’s Ralph M. Brown Act (California Government Code § 54950) was enacted in 1953 to ensure transparency and public access to information. Provisions include:
- Decision-making bodies of local governmental agencies may not deliberate and make decisions among themselves except in open and publicized meetings.
- Local governmental agencies must publicize when and where all meetings will occur, as well as what will be discussed, so that the public can observe those meetings.
- No action can be taken by a decision-making body until such item has been placed on the agenda for consideration.
- The public has a right to be heard on matters on the agenda before decisions are made.
- Closed sessions, during which private conversations between decision-makers can occur during an otherwise open meeting, are allowed only under strictly limited circumstances.
As with rules of procedure, closed or open meeting laws also have a large impact on the structure of deliberation. Closed meetings do not need to be open to the public and notes from these meetings do not need to be available for public review. In contrast, open meeting laws dictate that virtually all conversations among members of a governing body must occur during a public meeting and that notes from these meetings must be made available to the public. Open meeting laws apply to committees, commissions, and boards created by these governing bodies as well. Within open meetings, closed sessions – where brief, private conversations between decision-makers can occur – are only allowed for a strictly limited set of topics, such as pending litigations or real estate negotiations.36,37 Overall, open meeting laws are an important consideration for coordinating agencies because if one partnering agency has open meeting laws, likely all partnering agencies will have to comply with open meeting procedures during joint meetings. This fact may potentially become problematic, especially if partnering agencies wish to discuss an issue in private or discuss a rapidly developing topic without having to wait for the next public meeting.
Lastly, public comment laws also have a strong influence on the ways in which deliberation can occur. Agencies impacted by these laws are required to notify the public of any proposals to change or create new rules, as well as to accept written or oral comments from the public about these changes. Federal agencies, in particular, are required to publish a notice about proposed rules in the Federal Register and to provide the public with at least 30 days to submit written data, views, or arguments in response.40 Agencies must then respond in some form to all the comments they received, analyze any relevant data submitted by the public, and provide justification for their ruling. Therefore, any requirements for public comment are important for cooperating agencies to consider because of the impact of these laws on the scope and timeline of deliberation.