Large numbers of public hearings, covering a tremendous variety of topics, are held each year. They are conducted by legislative bodies and administrative agencies at federal, state, and local levels. Some are required by law; others are held only when requested or considered desirable by government officials. Although terminology varies considerably among agencies and governing bodies conducting them, most hearings fall into one of four broad categories, summarized in Figure 1.
give people an opportunity to comment on proposed legislation. The most familiar ones are probably those conducted by committees of Congress or the state legislature. Others are held by local governing bodies, such as city councils, school boards, and county legislative boards. Local hearings, often required by state law, deal with budgets, proposed ordinances, capital projects, and other matters.
are conducted by administrative agencies and various appointed boards and commissions. They deal with proposed rules and regulations, plans to be adopted, or projects to be undertaken. Like legislative hearings, they are designed to give anyone who is interested an opportunity to present relevant information and comments. Procedures at both types of hearings are relatively informal.
Adjudicatory or quasi-judicial hearings,
held by administrative agencies, boards, or commissions, are usually much more formal. They often deal with actions having special impact on specific individuals or firms, such as applications for permits or licenses, rates to be charged by public utilities, enforcement of particular laws, or assessment of penalties for non-compliance. These hearings often resemble courtroom trials. They differ from legislative and quasi-legislative hearings in that participation is usually restricted to specified parties, and decisions must be based on the record of evidence presented at the hearing. The parties are often represented by attorneys.
are sometimes conducted by congressional or state legislative committees. Their purposes include obtaining information necessary for the development of legislative proposals, inquiring into the management of administrative agencies, and educating the public about certain problems or conditions. Such hearings may also resemble courtroom trials, with witnesses subpoenaed and required to testify and be cross-examined under oath.
Because of the special, more formal nature of adjudicatory and investigatory hearings (and the likelihood that participants will have legal assistance), the remainder of this bulletin will focus primarily on legislative and quasi-legislative hearings.(1)
In addition to hearings, agencies and legislative bodies also sponsor less formal meetings that have a variety of designations, such as public meetings, public information meetings, or workshops. In contrast to hearings, these are usually held early in the decision-making process, when plans or proposals are not completely formulated. Purposes include discovering people's concerns in certain areas, obtaining information and ideas that may lead to legislative proposals, informing the public about plans under development, and receiving reactions and suggestions before further work is undertaken.
(1) For more information on adjudicators procedures, consult the federal Administrative Procedure Act (U.S. Code, Title 5, Sections 551-559, 701-706) or the state Administrative Procedure Act (McKinney's Consolidated Laws of Now York Annotated, Book 56A).
Procedures at public hearings are governed by statutes, administrative regulations, and custom. They are likely to vary considerably from one hearing to another, depending on the type of hearing, its purpose, and the agency or legislative body conducting it. Consequently, only a general summary of typical procedures is given here.
Statutes or regulations usually require that notice of forthcoming hearings be mailed to interested or affected parties. The number of days before the hearing date that notice must be given varies; in some cases, there is very little lead time for preparation. Notices are published in the New York State Register (2) and may also appear in newspapers or agency publications (such as the Department of Environmental Conservation's Environmental Notice Bulletin). Persons can usually have their names placed on mailing lists for notices of hearings by writing to the appropriate agency, legislative committee, or local government.
(2) Formerly the New York State Bulletin. The Register is published by the N.Y.S. Department of State.
An example of a hearing notice is given in Figure 2. Note that it states the purpose of the hearing and gives the location and time. Locations and times may be chosen for the convenience of the general public, affected or interested parties, or the agencies or legislative bodies conducting the hearings. Hearings on some matters may be held at several locations.
The hearing notice also explains how to get on the agenda. Participation in adjudicatory hearings is usually limited to specified parties or others who follow certain legal procedures, although opportunities may be provided for any interested persons to make public statements before the formal, trial-type proceedings begin. (The New York State Public Service Commission, for example, follows this practice.) Legislative and quasi-legislative hearings, on the other hand, are generally open to anyone, although advance notification of the intention to testify may be required. An opportunity to submit written statements is often provided for people unable to attend the hearing.
Finally, as in the example, most hearing notices also present requirements or guidelines on length and other aspects of written and oral testimony and indicate where relevant plans, proposed regulations, or other materials may be inspected before the hearing.
Persons who attend a hearing may be asked to sign in and indicate whether they wish to testify. Hearings are conducted by hearing officers, hearing examiners, administrative law judges, chairpersons or members of legislative committees, or other presiding officers. They generally begin with an explanation of the purpose of the hearing and the procedures to be followed. Occasionally, a longer public information session is held before the hearing begins to permit agency or legislative representatives to describe and explain proposed plans and actions in more detail.
The order of the agenda may be determined by the order in which people who wish to testify have signed up or by a more formal procedure. Those who testify may have to leave their seats and speak into a microphone. Time limits may be imposed on oral statements; participants with long statements may be asked to summarize them and submit the complete statement for inclusion in a written record. After all, those who signed up have spoken, others wishing to make additional comments may be allowed to do so.
Since hearings usually focus on specific topics, speakers who raise unrelated or only loosely related issues may be asked to confine their remarks to the specific purpose of the hearing. Nevertheless, some citizen groups intentionally use public hearings as a forum for trying to raise larger or tangential issues. Such efforts will be discussed more fully in a later section.
The hearing officer or others conducting the hearing may ask questions of those who testify or they may remain passive. Questions may or may not be neutral. In some cases, the questions may be intentionally designed to help witnesses who support particular positions or to hinder and embarrass those who disagree with the officials conducting the hearing.
Decisions are never made at a hearing; motions are not in order; and those conducting the hearing will usually refrain from debating or commenting on the issues at hand. In some cases, informal sessions may take place after the hearing so that questions can be asked and additional discussion held in a more relaxed, "unofficial" atmosphere.
Provision is often made for the submission of additional written statements within a specified number of days following a hearing. In the case of adjudicatory hearings, decisions usually must be made within a specified number of days and must be based on the record of evidence presented at the hearing. The written decision, witnesses' written statements, and the transcript of the hearing (if made) are all matters of public record and should be available for inspection.
Such requirements, however, rarely apply to legislative and quasi-legislative hearings. Of course, it is expected that testimony will be given full consideration, and such consideration is usually promised. In reality, many factors other than testimony presented at hearings may be taken into account before proposed bills are enacted into law or administrative rules and regulations are adopted.
Despite the widely acknowledged importance of public hearings, no one seems very happy with them.
Complaints from the citizen's perspective include:
Hearings tend to be equally unsatisfying for agencies and legislators. Familiar complaints include:
The convergence of these two perspectives often produces public hearings that are perceived as mere charades. Government officials view them primarily as occasions for citizens to "let off steam." Citizens, for their part, either stay home or turn the hearings into angry confrontations aimed at killing projects or proposals.
When hearings really are charades, a strategy aimed at killing projects or proposals is not necessarily unreasonable. Citizens may believe they have no realistic alternatives. In such cases, the primary value of a hearing lies in the fact that it will be the subject of news media attention. Gaining access to the media is often a problem for citizen groups, especially newly organized ones that are not well established. Since the media do cover government activities, however, a hearing provides an excellent opportunity for such groups to be heard, They will try to stage an "event" generating maximum publicity. If this effort is successful, the agency or governing body holding the hearing may either back down under the pressure of public opinion or be overruled by a higher authority.
Spectacular examples of success in using such strategies can be found, but such efforts often fail. The successes get more attention; the failures are more likely to go unnoticed. In any case, confrontation is a costly strategy, most likely ending any possibility of constructive interaction in the future with the agency or legislative body in question. It may also turn off many other potentially sympathetic participants and decision makers. This is not to say that the strategy should never be used, but it should be selected only after a great deal of serious thought and discussion.
More useful may be a strategy that places public hearings in a larger context. A hearing is generally only one relatively small element in public decision making. People who expect hearings to produce great changes in public policy may misperceive their purpose. Hearings frequently do result in marginal policy adjustments, and, even if they don't have much effect on emotional, highly publicized issues, they may have considerably more impact in less controversial situations. Perhaps this is all we should expect of hearings by themselves.
Citizens who are serious about influencing decisions might better view participation in hearings as only part of a larger strategy. The following comments by a lobbyist may be instructive: "If you walk into a hearing and nobody knows who you are, your testimony is not likely to make much difference.
... So what you have to do is to cultivate their friendship long in advance of the actual hearing. As soon as I know who will be on the committee [or hearing panel], even before the first meeting is held, I make certain that they have at least met me."(3) Most lobbyists, of course, do much more than that. They seldom fail to participate in hearings related to their concerns, if only because failure to testify might be taken as an indication of lack of interest. But they also make certain that their preferences are known by all the key decision makers before and after the hearing as well as during it, their information and assistance are made available constantly.(3) Quoted in Harmon Zeigler and Michael A. Baer, Lobbying (Belmont, Calif.: Wadsworth, 1969), p. 172.
Most citizens lack many of the resources available to professional lobbyists. Nevertheless, if you are seriously interested in exercising influence, you may wish to copy the lobbyist's strategy as closely as possible. The following suggestions may be helpful.
Since lobbying requires a great deal of time and energy, it is essential, first, to be certain of your priorities. Don't waste your effort on issues that are not of primary importance to you or your group.
The next step is to get organized, if you aren't already. Individual citizens hardly ever carry the weight that an organized group does.
The third step is to get to know the actors - not just the agency, committee, or governing body directly responsible, but all the parties likely to be involved in the issue. This includes opponents of your point of view as well as people who are friendly or indifferent. Potential actors include other agencies, legislators, chief executives, and a wide array of interest groups. The decision makers you will be trying to influence will have to take all these other actors into account. That is why you need to know who they are and where they stand so you can more easily design your own strategy.
There are no neat rules for designing strategies; what you do will have to depend on the situation. You may want to form a coalition with other actors. You may need to modify your position on the issue in order to generate support or reduce opposition. Never expect decision makers to take actions that would be politically damaging. If you want them to take risks on your behalf, be prepared to offer support for them in return. Talk with them; listen to their interpretations of the situation; negotiate; drive a hard bargain; but don't be unreasonable.
If you take this approach, public hearings can be useful. They force part of the decision-making process into the open and give you a better chance to get your message across. But they should not be the exclusive focus of your strategy. You should try to come to them with the knowledge that you will be merely making a statement for the record - that your position and all the support for it are already well known by those who will make the decisions. And you should follow up with continued contact after the hearing is over.