Friday, August 8, 2014

Commissioner's Corner: Robert's Rules of Order and deliberative decisionmaking at the planning commission

In June, I was appointed to the Boise Planning & Zoning Commission.  I know:  the real world!  Since that time, I have been to three hearings, one of which was a seven-hour marathon that lasted into the next day.  I've loved the experience, and I thought I would occasionally write blog posts on the experience.  I will caption these posts with the header "Commissioner's Corner," with the idea that these will either be posts of the sort you will want to read...or avoid.

Of course, I will not comment on specific projects, fellow commissioners, or anything that would jeopardize the integrity of the Commission's work.  Nonetheless, I have had a flood of ideas arising from the experience and life is too short to write a 60-page article about all of them, so a blog post will have to do.  

And is my first reflection on being a Commissioner:

Robert's Rules of Order?!  Are you kidding me.  Yes, that's right:  Robert's Rules of Order is the procedural handbook for Boise's Planning Commission.  The last time I used Robert's Rules of Order, I realized when I heard this, was in the 11th-grade when I spent beautiful spring Saturdays locked inside at "Model-U.N." hearings, which, as I recall, were primarily an excuse to pass notes to other "countries" (read: friends) and plan how to built multi-country alliances to do something or another I cannot now recall.  What was the point of Model U.N. anyway?  Two decades later, I still don't know.

Suffice it to say that when I read the bylaws of the Planning Commission and noted that Robert's Rules of Order was the parliamentary foundation of the Commission, well, I thought of Mock-U.N. and I chuckled. But then I began to think about it more.  

Robert's Rules of Order are really complicated.  Admittedly, as a law professor, I kind of love them.  "Point of privilege," anyone?!  That said, I wondered if Boise was the only city that used Robert's Rules of Order for their parliamentary procedure.  No!  It turns out hundreds, maybe even thousands, of cities do the same thing, according to a quick Google search.  In fact, I realized that many of the jurisdictions where I had practiced prior to becoming a professor had also adopted Robert's Rules of Order...and I never knew!  Embarrassment ensued.  (I would not have publicly admitted this if I did not firmly believe that most other land use lawyers, much less land use law professors, had no idea that Robert's Rules of Order were the basis of most planning commission procedure.) 

There are several interesting issues arising from this.  First, I did a quick survey of case law and discovered only a small smattering of cases ever mentioning Robert's Rules of Order in the broadest search available (all state and federal cases, no date limit).  I think that is fascinating because, you would presume, since Robert's appears to form the background of procedure for many local government commissions across the country, planning and otherwise, there would be at least some attempts to use that procedure against a comission in a due process or equal protection claim.  It appears, however, that this has not been a popular line of attack.  I'm guessing that is primarily because (i) most attorneys have no idea that Robert's governs the local proceeding; (ii) most attorneys have no idea of the intricacies of Robert's and thus might not understand how a procedural violation might affect their client's interests; and (iii) a concern that challenging a Robert's Rules of Order violation on procedural grounds might be viewed by courts as, well, mere parliamentary doggerel not rising to a constitutional level.  But does it really end there?  I don't know.  

The second issue I thought about is whether Robert's is the appropriate parliamentary tool for Planning Commission hearings to yield the best outcome for cities and communities.  Planning typically works best when there is a give and take, but the parliamentary procedures of Robert's are not intended to provide for negotiation, much less conversation.  To wit, I wonder if there is a better way.  Might there be some other parliamentary procedure out there that might be better than Robert's for facilitating planning but that would also meet constitutional due process and equal protection minima?  

I would love to hear from others out there, especially anyone with a knowledge of other parliamentary procedures used by other cities that are not Robert's Rules of Order.  

Stephen R. Miller

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Stephen - Coincidentally I just ordered Larry Susskind's book "Breaking Robert's Rules." If it seems worthwhile I'll blog about it.

Posted by: Jamie Baker Roskie | Aug 9, 2014 5:06:50 AM

Stephen, I was going to make the same recommendation as Jamie. The book gives a great history of why Robert’s Rules is so prevalent, what the process is good for and where it is limited. Also, you should take a look at my article “The Lawyer as Process Advocate: Encouraging Collaborative Approaches to Controversial Development Decisions” ( where I explore your second topic – when boards should consider supplementing their required processes with more collaborative processes.

In the meantime – have fun on the commission and keep the reports coming!

Posted by: Sean Nolon | Aug 9, 2014 5:59:07 AM

Sean, These are great recommendations. Thank you! Jamie, yes, please blog about Susskind's book!

Posted by: Stephen R. Miller | Aug 11, 2014 3:37:04 PM