No Comment: Communication Considerations when Facing Difficult Public Issues
It has been said that silence is a virtue. But what’s not often remembered is that philosopher Francis Bacon added that “Silence is the virtue … of fools.” When cities face a difficult or sensitive issue, maintaining silence by answering “no comment” may seem the best way to respond to the public or the media.
But “no comment” can often be interpreted as saying “I don’t care” about this issue or that “You’re not saying anything because you must have something to hide.” From my experience as an attorney in several high-profile cases that were widely publicized by the media, including litigation involving the Kentucky state auditor and the Department of Alcoholic Beverage Control, I’ve learned that when dealing with litigation and other crises that cities face on a regular basis, giving a carefully prepared comment at a public meeting or putting outa press release can often help manage the situation.
Bottom Line:
“When dealing with litigation and other crises that cities face on a regular basis, giving a carefully prepared comment at a public meeting or putting out a press release can often help manage the situation. We live in a world where news spreads faster than ever. Delay can be your enemy in dealing with matters of public concern, so try to stay ahead of the game.”
Wouldn’t it be helpful, for example, to have a statement ready for a group of concerned citizens that you know is going to attend that evening’s city councilor city commission meeting? Or when announcing the removal of a high-profile, nonelected city official? For the public and the media after they are already aware of certain circumstances through a video? Or for seemingly routine matters like water/sewer issues, rate increases, zoning changes, etc.?
Most times, cities’ insurers will require a plaintiff not to publicize a settlement or make any comment, but these terms are not often negotiated to be binding upon the city or its officials, who may need to comment to their constituents, especially if part of the settlement contains public monies. In such circumstances, city officials may want to begin with “the matter has been resolved” but also have in their back pocket a prepared statement explaining the rationale of the settlement.
After nearly 30 years of practicing law, I have found the following pointers work well.
Be Proactive.
When the city clerk gets that “certain” request for someone to appear on the agenda, the mayor should have a prepared written statement ready — just in case. If litigation is threatened along with the crisis of the moment, consider an executive session and discuss potential responses to inquiries among all the elected offi cials. When that long-term, nonelected official is removed, prepare a written thank you for the official’s years of service and best wishes for future endeavors, along with a brief explanation of the circumstances.
Create a Narrative That Can Be Offered and Repeated.
For high-profile matters, develop talking points around the issue that are informative but do not include sensitive or confidential information, then stick to them. If you’re an elected official, use the skills that got you into the ring, aka your office. You have likely never been a boxer, but pivot and move like a boxer. But what does that mean? When the press or public makes the inquiry, remember the narrative, briefly answer the question, and pivot to the theme.
Remember the Rules for Police Disciplinary Matters and Body-Worn Cameras.
Always remember that when Kentucky’s Police Officer Bill of Rights is applicable, then “no public statements” are allowed by any person(s) of the employing agency [or the officer] “until final disposition of the charges.” Police body cameras present a different set of issues. Many city attorneys and public officials are unaware that such videos must be made available for viewing if “requested by a person or other entity or personal representative of a person or entity that is directly involved in the incident contained in the body-worn camera.” [KRS 61.168(5)(d)]. Consult your city attorney if a copy of the video is requested via open records or otherwise.
My experience is that police officers are generally well-behaved on body camera video. Allowing the video to be reviewed can often lead to deescalating a situation from the outset of expressed concern, which can often be refuted by video evidence. Should the video be released to the general public or the press? Circumstances will dictate, but consistency is the key. Otherwise, you will need to answer questions about why you released a video previously but are not releasing one now. Unfortunately, the assumption will likely be “because you have something to hide.” The City of Louisville recently announced that body-worn camera video of police-involved shooting incidents will be released to the public within 10 days of the incident. Louisville faces unique circumstances that may (or may not) be present in your community, but remember one thing — consistency.
Be Consistent in Communication.
When should you prepare a public statement for a critical incident? This may well be suited to your community and expected from the public and constituents. Careful consideration of the circumstances is required, but a brief initial statement after the incident may be warranted, as well as a final statement once the investigation is complete and the matter is closed. Also, carefully consider what is posted on social media. If you need to post a social media statement, ensure it is consistent with your public statement. Any officials, employees, or officers involved should not post anything regarding the issue on their personal social media accounts.
Remain aware, however, that the investigation of an incident can just be the beginning as a civil action may follow, and any statements of fact might be used in such a lawsuit, so consult with your city attorney and other available counsel. An initially prepared response can be as simple as follows: “On [date], officers with the City of [-----] responded to an emergency dispatch. Upon their arrival, they were fi red upon and returned fire, striking the suspect. The suspect was transported to the local hospital, where he was treated. The Kentucky State Police is investigating the incident, and all additional inquiries should be made to them. A preliminary administrative review has indicated that the officers acted consistent with policy and training.”
Takeaways.
We live in a world where news spreads faster than ever. Delay can be your enemy in dealing with matters of public concern, so try to stay ahead of the game. Initial responses to such matters may be necessary with follow-up as the facts are developed. Once the situation is sufficiently understood, develop the narrative and stick with the plan.
Charles D. Cole is a member attorney in the government and municipal law practice. He has for many years been involved with providing prompt responses to personnel and other matters that regularly arise with his clients that often require a rapid response under the spotlight of public attention.
This article originally appeared in Kentucky City magazine, a publication of the Kentucky League of Cities.
