Guide on the Side – Vox Populi: How to Testify Before a Public Agency

Marie Wallace has enjoyed a fulfilling career as a librarian, beginning in 1951 in academia with the University of California and transitioning in 1971 into the private law library world until her 1995 retirement from O’Melveny & Myers. She is the 1997 recipient of the American Association of Law Libraries‘ highest honor, the Marian Gould Gallagher Distinguished Service Award. Throughout her professional life, Marie has been a guiding force in the Southern California Association of Law Libraries, Practising Law Institute’s programs for law librarians and Teaching Legal Research in Private Law Libraries (TRIPLL).

Today, Marie has commenced on a new path she terms “Life in Progress,” which enables her to pursue a diversity of interests as a master swimmer, law librarian, trainer, storyboarder and designer of wearable art. She continues to be a dynamic speaker and prolific writer on such topics as private law library management, presentations and training. She is a member of Toastmasters International and is active with the American Society for Training Development (ASTD) and in continuing education for private law librarians. She devotes her “free” time to various non-profit and civic activities.

Our system of government depends on citizen participation, on the vox populi being heard. Sooner or later everyone has an opportunity or desire to go before a public agency or legislative body to advocate a personal or professional position. You get listened to or ignored depending on how well you understand the process and prepare.

Let me share an opportunity I muffed many years ago. Our State Assemblyman was speaking to our homeowner association. During the Q & A session, I asked why there was not a law to allow citizens, who journeyed to Sacramento to testify before Legislative committees on matters related to education and citizen well being, to take their expenses as deductions on their State income taxes as businesses and corporations take their lobbying expenses.

To my surprise, the Assemblyman responded “If I introduce such a bill, will you come to Sacramento to testify?” “Sure” I responded thinking that nothing would come of it. I got a call a few weeks later setting the date before the Assembly Revenue and Taxation Committee on the new Assembly Bill. My first step was a good one. I asked one of my firm’s tax attorneys to help write my testimony so that the logic corresponded with existing legislative tax philosophy and the California Revenue and Tax Code. But what I failed to do doomed the Bill.

I did not research each Revenue and Taxation Committee member to learn their concerns. I failed to contact each of them first by mail and then in person before testifying in committee. I failed to talk to legislative staff to make myself known and get their support. I had no constituency to support the bill and I never considered any arguments against the bill.

Here is how it played out at the Committee hearing. I sat all day listening to paid lobbyists testify on a wide range of bills. It was clear from the discussions that all the lobbyists and the committee members were on a first name basis. Finally, as the last item of the day, my bill came up. I was the only unpaid lobbyist testifying before the Committee. When my agenda item was announced, roughly half of the Committee got up and left. The other half listened to my well organized and delivered remarks but were not convinced. One commented, “Well, you are charming but we wouldn’t want just anybody up here testifying.” Needless to say, the bill never got out of Committee.

What should I have done? What have I learned in the interim? What can you do when you appear before a public agency or even professional organization to make a proposal?

Here are some suggestions:

  • Never go to testify at a hearing alone
  • Learn the positions of the decision makers beforehand
  • Make yourself known to the decision makers and their staff in advance
  • Align your goals with those of the agency
  • Find out and conform to their rules
  • Prepare both written and verbal testimony
  • Research the facts and issues thoroughly and from all points of view.

Even if your name is Super Persuader, do not go alone to testify, lobby or submit a proposal. Go with a team. The others do not have to speak but by just being there suggest solidarity and you will feel more secure with the tacit support of others. When it is impossible for others to attend, come with written evidence of support such as letters or petitions.

General Robert E. Lee lost the battle of Gettysburg because his reconnaissance team, the cavalry was missing. General Lee was fighting the battle blind. Get to the high ground to “see” the agency–even when you are on its side. Learn everything about its operating context, including:

  • Agency’s mission
  • Operating rules and procedures (written and unwritten)
  • Kind of hearing (public comment, preliminary, final, appeal)
  • Track record on similar issues
  • Profiles of the decision makers (like researching the judge before going to court)
  • Decision making process and which body makes the final decision
  • Physical setting (sometimes grand and sometimes very primitive)
  • Operating assumptions of the agency
  • Vocabulary of the agency and related professionals
  • Who are the other interested parties (opponents, supporters, other agencies)

If you are not an expert on the issues you wish to testify on, learn fast. One of the best ways to learn the ropes is to talk to the agency’s staff. Staff is of a group of professionals, such as the Planning Department, who often have a different outlook or standard than the decision makers, such as the Planning Commission or County Supervisors. Staff can be very helpful but may speak in code because they can not come right out and say the position their boss is taking is political or flawed. Listen very carefully to what staff says and how they say it. Ask questions, especially about records of previous decisions and jurisdictional issues. Agencies are often required by law to make decisions based on specific criteria, i.e., “promote the public good, welfare and convenience.” Align your testimony accordingly.

Talk to others who have been before the agency to find out what the setting is, what to expect and what to avoid. Proponents often are treated more differentially than opponents and have the last rebuttal. Arrange to meet with all other interested parties (even the opposition) beforehand to learn about their position. The more you know the better but take care not to get hostile with opponents. If there is time, go to a similar hearing beforehand to become familiar with the procedure and so you know how to dress like the decision makers.

Time is extremely important. If the notice of hearing says that documents must be filed by a certain date, there is rarely any room for negotiation. Testimony is usually timed. Find out how long you can talk. If you can not cover everything in three minutes, arrange to break the testimony into subtopics and have others cover the remaining points. Call the Clerk the day before to confirm the date and time of the hearing. Many agencies will change the date and time with no notice. Also, find out where you are scheduled on the agenda but note this too is open to last minute change. It is wise to get to the hearing site early and be prepared to wait. Find out if you need to sign a testimony sheet or fill out a speaking card in order to speak.

Get authoritative and up-to-date copies of any relevant statutes, ordinances, rules or regulations relating to the issue to be heard. My experience is that frequently the agency does not follow its own procedures or earlier decisions. You can often prevail by default by pointing this out.

Be prepared for a different kind of audience than you encounter for professional presentations where they are glad you came, assume that you are knowledgeable on the subject, really want you to succeed in your presentation and clap to indicate approval. When testifying before a public agency, there is usually a polar opposite set of audience assumptions: You are ignorant, do not understand the issues and are probably biased. There is no clapping. You can be interrupted at any time with unfriendly comments or rude questions. (These diversions are part of your time.) Often the posture of agency members is clearly “we wish you were not here.” A daunting reception for any speaker.

Find out what is important to the decision makers. Balanced budget, tourism, or raise test scores and then align your testimony to accomplish that. For instance, “we are for this proposal for three reasons all of which save the City money, increase the tax base, and attract business.”

Learn the vocabulary. Agency staff is a good source to learn. The language of city financing, land use, and traffic mitigation my look and sound like English but the words and phrases are often terms of art. For credibility, you must speak the jargon.

Find out whether there will be equipment to support the media you intend to use. State-of-the-art media facilities are rare. Even though you may be talking about a technology issue, such as the location of cell phone antennas, there may not even be an easel to hold up the photograph that shows the existing situation. If you need to use Powerpoint for details, graphs, pictures, drawings of buildings, engineering plans, consult with staff beforehand to find out if the equipment can be supported or even whether the agency will be swayed by technology.

Submit your remarks in written format to the decision makers beforehand is possible, as well as delivering them verbally. Make a copy for each member of the agency, plus one for the clerk for the official file. Include extra photos, drawings or diagrams when critical. If you intend to use visuals, make sure they are large enough to be seen by the decision makers from where you will be delivering your remarks.

Organize your content like a regular speech. Tell them what you are going to cover. Cover the points (keep to three items) and end by telling them what you told them. Avoid humor. Preface your remarks with an identification of who you are, where you live, your professional expertise if relevant, and your position on the issue. Be business like and factual. Treat the board, commission, committee or group you are testifying before with respect even though you may think they are idiots, crooks, political hacks or totally unfair. Be careful to keep your attitude respectful and polite. Be sure to tell your supporters to avoid booing, hissing or cheering.

Use agency sources for your facts. For example, use the Department of Transportation for traffic data. If you want to contradict agency statistics, hire a consultant to gather new data but explain any discrepancies. Do not put the official agency’s statistics down. Explain differences in measurements by different methodology, more recent measurements or lack of agency manpower.

Align your objectives with those of the agency. Your posture should be “we are here to help you.” Agency people do not like to be surprised. Let them know by submitting testimony in advance that there is strong support or opposition for a position. Offer to work with the agency to work out items of disagreement or areas of concern to mutual satisfaction.

Most public agencies and legislative bodies have procedures for signing up to speak. Be sure to conform to the requirements as you may not be permitted to speak if you have not completed the form. If there are a large group and you want a specific order for the logic of the presentation, ask the Clerk how that might be accomplished.

If a group is testifying, rehearse so that the group consistent and not redundant. The agency will become impatient if everyone gets up and says essentially the same thing. If there are 300 of you and only one spokesperson, ask the agency to call for a show of hands to record the numbers. Find out how you can arrange to receive a copy of the decision or report of the hearing.

If this all sounds too complicated, do not be discouraged. It can be a rewarding experience. Let me describe how one person was successful. The hearing was for public comment before the Southern California Air Resources Board air pollution from Los Angeles International Airport (LAX). A woman identified herself as a long time resident in a small tract of homes adjacent LAX. She admitted lack of any technical expertise in air pollution measurement but commented she knew it when she saw it. And she saw it on her window ledges. When she learned of the hearing, she set out to do a measurement of pollution at her house using simple equipment at hand. She cleaned off one of her window ledges (40″ x 4″) directly facing east toward the airport with a towel. One week later on the day of the hearing, she used a clean towel to again wipe the window ledge clean. She presented the blackened towel to the Board for their technical experts to measure and analyze the particulate laid down on her ledge in a one week period. Subsequently when the record of the hearing was published, it contained an analysis of the particulate matter in the towel. It was substantial. Clearly, the agency heard her message.

Posted in: Guide on the Side, Lobbying, Presentation Skills