Instructions/Guidance for a Presiding Officer

A Department staff member usually acts of behalf of the Environmental Quality Commission as the presiding officer at a rulemaking hearing. It is a relatively simple chore to conduct a public hearing on a rulemaking proposal. The following suggestions will help you avoid pitfalls.

The MAIN RULES are:

A.  When you serve as presiding officer, you are a designated representative of the Commission, there to receive information and to forward UNBIASED information to the Commission and to the Department staff doing analysis. It's not an adversarial proceeding, you are not called upon to defend the proposed rule. The purpose is to im­prove the rule in the light of new informa­tion. If someone attacks the proposal or criticizes you publicly, you are not called upon to counter the attack dur­ing the hearing. Simply commit yourself in public to record their remarks and make them known to the Commission, and the Department.

B.  No decisions on the rule will be made immediately. Do put yourself impartially in the place of the Commission and try to develop the kind of information you would want if you were a Commissioner. Al­most any issue except for procedure can be postponed for decision. Concentrate on procedures. If someone says they've had insufficient time to prepare, advise them of the established deadline for submitting written comments (should be at least 5 days after the hearing).

Location and Setup

The size of the hearing room should be planned based on the program's best perception of how many people will want to attend. If you are dealing with a rule that will prove contro­versial to persons in many geograp­hic areas, plan multiple hearings so one can be held in each major affected location. It may be well to enlist two or more persons as hearing officers and to hold simultaneous, multiple hearings. This often provides an added op­portunity for regional managers to be visible in their communities and meet people con­cerned about our programs.

If the hearing is likely to be controversial, you should use a public address system regardless of the acoustics of the room. The use of one microphone for witnesses is a silent reminder to those not at the microphone that they should await their turn before they speak. Also, try to set the witness' podium or table so the witness will be facing the hearing officer but will have his or her profile, not back, to the rest of the people in attendance. People don't like to turn their back to the crowd. The crowd doesn't like to try to listen to someone whose facial expressions can't be seen.

On the other hand, if the witnesses face those in attendance two problems occur: (1) They may be afraid of facing a large crowd and some would-be witnesses would not sign up to speak; (2) Witnesses may take it upon themselves to "educate" the crowd and tell long anec­dotes, taking half hour blocks of time to do so. Also, you may find witnesses committed to working the crowd into an impassioned fren­zy. Situating the witnesses so they do not directly face the crowd may improve both problems.

Introductory Remarks

In a large gathering explain to the group at the outset that each witness will be asked to pre-register on sign-up slips so that the spell­ing of their names and affiliation will be correct and so that all can find out before hand how much time will be needed. Explain that each witness will be asked to sit at the table or stand at the podium by the micro­phone so his testimony will be on the record. This will also help avoid comments of rebuttal or catcalls.

Legalities: (1) Tell the group that the meeting is being tape recorded and that by signing up to testify, they've consented to be taped. It's a felony to secretly tape a conversation. Use posters announcing that the meeting is being taped. (2) Tell them Oregon Law prohibits smoking while the meeting is in session.

When all have signed up let everyone know how many witnesses have requested time and the average time requested. When there are many witnesses, you get much better luck at limiting testimony if you've shared the prob­lem with everyone. If there are a lot of witnesses you should ask that each witness listen carefully to the speakers and try to avoid simply paraphrasing or repeating a previous witness. Tell them they're welcome to go on record as supporting a previous statement. Later in the meeting, if everything has been fairly well "talked out," you can again ask for wise use of time, (e.g. "It's _____ o'clock already. I see we have ___ more witnesses who collec­tively need _____ time. I would ask that everyone be as brief as possible and avoid repetition.")

Don't allow persons in the audience to ask questions of witnesses. If necessary, explain that if you allowed one person you would have to allow everyone for every witness and that some witnesses may not testify if they feel they are opening up to "cross-examination" by everyone in the room. Also time is a factor. If you secure the witness' permission and ask for a show of hands to see how many would have a question, you may allow it only if there are few questions to be dealt with and on the understanding that's as far as it will go.

In some settings we have some flexibility. Don't be too straitlaced in a small group. Dispense with the guidelines where it appears appropriate. Just be sure that no one is de­nied an opportunity to take a reasonable time to get relevant information on the record.

AFTER THE HEARING

Where the hearing is not before the Commis­sion (few are), the Commission must be provided with a Presiding Officer's Report. This report will be officially transmitted to the Commission as an attachment to the Agenda Item presented to the Commission for action on the proposed rule. OAR 340-11-030(1) governs:

 "... Where the hearing has been conducted before other than the full Commission, the presiding officer, within a reasonable time after the hearing, shall provide the Com­mission with a written summary of state­ments given and exhibits received, and a report of his observations of physical experiments, demonstrations, or exhibits...."

The Presiding Officer's Report should be prepared in the form of a memorandum addressed to the Environmental Quality Commission from the Presiding Officer. It should identify the date, time, and place where the hearing was held, describe for the record the essence of the introductory remarks provided for the audience, summarize the oral testimony of each person presenting testimony, and index of the written testimony received at the hearing. Both the written and oral testimony if further summarized and evaluated in the Department’s Evaluation of Public Comment, which is an attachment to the Agenda Item presented to the Commission.