On Tuesday afternoon the county’s chief judge agonized over the way coronavirus restrictions have forced repeated delays in major murder trials despite technological innovations making some court proceedings possible.
That evening, it was the Palm Coast City Council’s turn. The city hasn’t held a code enforcement board meeting since March. It hasn’t held an animal control hearing or a Beautification and Environmental Services Committee meeting since February. The planning board, after cancelling meetings in March and April, has been meeting monthly, but with limitations. The question was not only how to resume the flow of meetings but under what rules, now that all meetings are conducted in hybrid conditions: some board members and people appearing before boards participate in person, some do so remotely, through one electronic mean or another.
Public participation has not been limited at any meetings that have been held, with the Palm Coast council, like other local governments, implementing various means to ensure that anyone who wants to be heard is heard, whether by Zoom, by phone, or through email. That’s not going to change. But with restrictions still in place, and the reluctance of some people to appear in person at public meetings, certain more formal procedures especially affecting developers and land use issues have been more difficult to accommodate while ensuring that due process is afforded.
The city council voted 5-0 to adopt hybrid procedures that formalize the process for all such meetings. But key parts of the rules regarding the quasi-judicial segments of mattings such as the planning board’s raised questions among council members. A quasi-judicial process is similar to a court process: witnesses appear before the board, evidence is submitted, and people representing either side of an issue, usually lawyers, have the right to cross-examine the witnesses. The rules the council adopted on Tuesday call on applicants in development matters to waive their right to cross-examine witnesses. That drew significant concern from Jon Netts, the interim council member and former mayor, and from Bob Cuff, an attorney who is in his last weeks as a council member.
“If you’re an optimist this hybrid situation will last a brief period of time and will go away,” Netts said. “If you’re a pessimist, I’m very uncomfortable with asking people to waive their rights. If we continue with hybrid meetings ad infinitum, what options do these folks have?”
Bill Reischmann, the city attorney, said those who don’t waive their rights would have their hearings postponed to a time when it may be held under normal circumstances.
“If I were a developer on a project, postponing it indefinitely is a disaster,” Netts said.
“This certainly seems within the limits of those constitutional powers that the city has,” Reischmann said. “This process isn’t something that was made up by the city of Palm Coast. A lot of jurisdictions are doing this as well.”
But nothing stops an in-person applicant from being cross-examined, if the person chairing the meeting allows it. (The same rules would apply to the council). “We could have a night where no one shows up live, or you’ve got 10 people that show up virtually, or you have people that submit texts or emails and give evidence that would otherwise be subject to cross-examination in a normal process,” Reichmann said. “So we have to make sure that we have something in the waiver that would protect the City of Palm Coast against appeals for alleging that the applicant’s rights for due process in these quasi-judicial matters were violated.”
The waiver, in other words, is like a disclaimer, covering the city in case of a legal challenge. But it’s not a prohibition of cross-examination. Cuff said the court system has been conducting cases with cross-examinations for weeks.
“I’m with Council member Netts,” Cuff said. “I feel uncomfortable asking anybody to waive constitutional rights in order to have us listen to them, or make a decision. But if you start trying to qualify it, or maybe if you want to qualify it at all, just add something to say that the waiver can be amended to allow cross-examination under circumstances where that’s feasible. If the person is there and they stand at the podium and talk, they should be subject to cross-examination. If they’re on Zoom, and I have a question about how that’s going to work, and they can see and be seen: I’ve done cross-examination on Zoom. It’s not fun, but up until last Monday that’s how every court hearing in Flagler County and I think pretty much in the state of Florida has been conducted since this all started. It’s certainly possible to do it.”
Cuff asked that any podium where an individual would stand and from where he or she would be subject to cross-examination would have to be properly camera-ready. He was not comfortable, during the recent interviews that led to Netts’s appointment, when he could not see the candidates being interviewed head-on.
Council members also raised concerns about who would be allowed in, if more than 50 people showed up to a meeting. The current limit ion attendance is 50. Reischmann noted a recent meeting in Orange City that drew about 100 people. The council there was debating masks, an issue that’s roiled many local governments across the state (and the country). Only 20 people could be accommodated in the council chamber. The rest were taken across the street to a larger hall with a television connection, and where social distancing rules could be followed. The same would happen in Palm Coast, with overflow rooms or even the Palm Coast Community Center accommodating larger crowds.
“I think we’re really over-complicating all this. It’s done all the time,” Mayor Milissa Holland said, noting that even in normal times the council has had to set up overflow rooms to accommodate residents showing up for a major issue.
Before the council approved the resolution, Reischmann said there was no way to predict how courts would interpret the sort of rules Palm Coast was adopting. He suggested that “the more rights for due process are accommodated, the better off the city would be.
The city reopens City Hall on Oct. 1, with its first in-person, hybrid council meeting on Oct. 6.