Sussex councilmen discuss future of public hearings

GEORGETOWN — Out with the old. In with the new.

That’s the thinking of Sussex County Councilman Irwin G. Burton III, who says the county needs to plan now for the new way of conducting business — even when the County Administration Building, county offices and facilities reopen to the public in phased recovery from COVID-19.

Irwin G. Burton III

“I just think that the new normal isn’t going to be the old normal. Just to think that this is just going to pass and we’re going to go back to the same old, same old … is a fool’s run,” said Mr. Burton Tuesday during council’s session conducted electronically. “And we had better start thinking about how to do this, given that there has been a change in Sussex County, Kent County, New Castle County, Annapolis, Salisbury. Everybody has to adapt to a new way of doing business. And I don’t know when it gets normal, if it does.”

Mr. Burton, who represents District 3, voiced his thoughts following Sussex County Administrator Todd Lawson’s recommendation that county buildings facilities remain closed to the public for the foreseeable future.

“I base my recommendation on a few points,” said Mr. Lawson. “First, the county’s operations remain productive even under our current modifications. Second, we have made adjustments throughout this pandemic to our operations that have improved our productivity. And third, remaining closed is the safest approach to continually minimize the risk to our county staff and the public we serve.”

Later Tuesday, Gov. John Carney announced that Phase 2 of Delaware’s economic reopening will begin at 8 a.m. Monday, June 15. In Phase 2, retail establishments, restaurants and other businesses that were permitted to open at 30 percent of stated fire capacity in Phase 1 may expand to 60 percent of stated fire occupancy.

Mr. Burton pointed to sessions in council chambers in the County Administration Building, including public hearings, altered or delayed with closure of the county buildings during the pandemic.

Under Phase 1, effective June 1 all public meetings of public bodies governed by Delaware code may conduct in-person meetings in public buildings provided that number of people does not exceed 30-percent state fire code occupancy and all persons wear cloth facial coverings and are seated or standing no less than a radius of six feet apart.

That percentage equates to an approximate 30-person maximum allowance in council chambers, Mr. Lawson said. Council meetings, planning and zoning and board of adjustment sessions on occasion draw much larger attendances. Public hearings of large-scale or controversial nature have filled chambers.

Mr. Lawson said county planning and zoning recently held a public hearing virtually and county council will soon address its first virtual public hearing.

“We are having public hearings, but we are doing it in the virtual mechanism that we’re using right now. You (council) will have your first virtual public hearing next Tuesday (June 9). Those public hearings were obviously heard by planning and zoning previously,” said Mr. Lawson. “We have planned for this and have scanned the public hearing applications so that we can handpick some of the quote/unquote ‘easier’ ones and some of the less controversial. So, the chances of having the public need to participate, speak and comment is less than what a normal controversial public hearing may present.”

Discussion, punctuated by a moment of friction between Mr. Burton and council president Michael Vincent, ranged from utilizing the lobby area for overflow, scheduling hearings by appointment or seeking a larger seating venue altogether to limiting the time for public hearing speakers.

“We can’t not have public hearings because of the number,” Mr. Burton. “We have to figure out how to have public hearings with interested people that want to voice their opinion. I am not trying to take it away from anybody. But I’m trying to say we’ve got to get back to business, and we’ve got to figure out a way to do it.”

“Along councilman Burton’s comments, which I am very sympathetic to, what about the possibility of a different venue, perhaps the auditorium out at Del Tech or something of that nature, where we could accommodate a much larger group of people,” said county councilman John Rieley.

Mr. Burton tendered an appointment system for public hearings.

“We could,” said Mr. Lawson.

“But that is going to be very difficult, guys, because you have got no idea knowing how long that thing is going to last,” said Mr. Vincent. “So, the idea of an appointment … what if it goes a half hour past that?”

“You tell everybody how much time they’ve got,” said Mr. Burton.

“Oh no, they can’t do that. My opinion would be … that is going to be something where we’ve never done that before. And somebody is going to say, ‘You took away my rights. I had things I wanted to say, and I couldn’t say,’” said Mr. Vincent.

“We don’t do it,” said Mr. Vincent. “This is Sussex County.”

“Mike, I clearly know where I am from,” Mr. Burton responded.

“As you indicate Mr. Vincent, this is something that we have not done in the past,” said County Attorney J. Everett Moore Jr. “If we would look at this, I would want to look at what some of the other jurisdictions have done, so we are not re-inventing the wheel. We could look at that. But I think that there are some potential problems with that, especially like what our past practices have been that if multiple people want to come. We never know how many people are going to show up and want speak.”

Mr. Moore said that when you have complex hearings, you have to be very careful “that we give ample time for that record to be established, on both sides.”

“I can look at other jurisdictions,” said Mr. Moore. “If that is the case, I would suggest we would adopt a new rules and procedure for those hearings.”

Mr. Lawson said public hearings could be held in another venue. “But that presents a whole host of other challenges, which we could overcome,” said Mr. Lawson, noting neighboring Kent County’s auditorium-style setting can hold nearly 200 people. “Certainly, you would think about the technology challenge.”

“If we do open up chambers as I hear you are strongly ready to do, we would continue with the quote/unquote easy public hearings. If we did have it would not fill room up,” Mr. Lawson said. “That means that the controversial or larger pub hearings may get pushed off even further.”

“Well, there has got to be a limit to how far we can push some of those off,” said Mr. Rieley.

One of Mr. Burton’s suggestions for public hearings with large attendance would be to admit persons into chambers in waves of 30 people at a time and have overflow in the adjacent lobby.

“It just may be a way to facilitate more than the 30 if we utilize all of the space. And I know we’ve had overflow where we have put speakers in the lobby and stuff like that. Is that an option that we’re looking at?” Mr. Burton said.

“It is certainly an option we could entertain. And you are correct. We use the lobby as an overflow. It does have a broadcast capability so people can hear the audio and see the video with the screen TV in the lobby,” said Mr. Lawson. “The issue is the maintaining of the 30 people in the chambers … and if there is that 31st person that still wants to participate in the hearing. By the letter of the law we would make one person leave and have that next person come in, so that they could present their testimony during the public hearing. It turns into sort of a gate-keeping exercise which could become somewhat cumbersome.”

Mr. Lawson said the second issue if you stack public hearings one on another and first hearing has about 30 people and the next public hearing has 30 people, “Where does that second wave of 30 people wait until the next public hearing, and their public hearing begins?”

“That is an issue that we had occur during the board of adjustment back in March when we tried this. We had a lot of individuals stacked in the lobby waiting for their public hearing to be heard,” said Mr. Lawson. “It’s a guessing game.”

Mr. Lawson said the county’s decisions are made through guidance from the Gov. Carney and staff and the Centers for Disease Control. Restrictions. Phase 2 would likely provide more leeway.

“I think if we start to see that, we really need to be prepared to welcome the public back into this building, if we can do so and numbers present themselves where we are able to do it safely,” Mr. Lawson said. “It’s going to be a balancing act between how much pressure we are under to bring public hearings in person back to these chambers versus the risk related to that. I, for one, cannot wait to finish these virtual meetings. They are significant challenge to staff and the participants as well.”

Later in the council session, Mr. Vincent offered an apology, saying, “If I came across as Mr. Burton didn’t know what county he was in, that was not my intention. The way I said that … maybe it came off wrong. If that is the case, I apologize …”

Helpful Coronavirus links

Delaware Division of Health Coronavirus Page
CDC: About the Coronavirus Disease 2019
CDC: What to do if You Are Sick
Johns Hopkins Coronavirus Resource Center
AP News Coronavirus Coverage
Reopening Delaware: Resources for Businesses
Delaware Phase 2 guidance

Have a question, tip, or resources about the coronavirus pandemic? Submit it to our newsroom and we’ll do what we can to provide answers.