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HomeMy WebLinkAbout39. Discussion of Street Closure CITY HALL 215 Church Avenue P.O.Box 1130 Oshkosh,Wisconsin 5 903-1130 City of Oshkosh I � O.IHKOIH TO: City Manager Mark Rohloff Mayor and Members of the Common Council FROM: Lynn A. Lorenson, City Attorney DATE: August 7, 2013 RE: Proposed Amendments to the Council Rules Background At its last meeting, the Council discussed amendments to the Council Rules. The first amendment would clarify that citizens may request that items be pulled from the consent agenda for separate vote. Two other potential amendments which were discussed were related to civility at the meetings. Courts have recognized that a Council has a significant governmental interest in ensuring order at its meetings and that council meetings are public forums that carry with them the expectation of decorum and civility. To that end, courts have upheld reasonable regulations designed to maintain order at public meetings. The first proposed amendment called for all participants in council meetings to conduct themselves according to the civility pledge adopted previously by the Council. The second proposed amendment would prohibit personal attacks on city staff and/or council members. Both of these proposed amendments potentially implicate First Amendment rights. Based upon the review of the text of the civility pledge and the website created in support of that effort, it would appear that the proposed new rule that all participants in meetings conduct themselves according to the civility pledge adopted by Council is intended as a guideline and is not intended to result in enforcement during a meeting for violation of any specific "pledge". It is unlikely therefore to impede the exercise of First Amendment rights. A copy of the pledge as shown on the Oshkosh Civility Pledge website is attached to this memorandum. The proposed rule that no person shall personally attack any city council member or employee potentially raises greater issues. This proposed rule is more specific and appears to be clearly intended to be enforced. In view of the court cases addressing this issue, it would be my recommendation that this rule be limited to personal attacks not relevant to the person's position or duties or when the nature of the personal attacks causes an actual disruption to the meeting. Analysis By creating a public comment period within the meetings, the Council has created a "public forum" which is entitled to First Amendment protection. The general rule governing the regulation of speech under the First Amendment is that governmental bodies may place reasonable restrictions on the ►„ time, place and manner of speech so long as those restrictions are content - neutral, are narrowly tailored to serve a significant governmental interest and leave open ample alternatives for communication. Courts recognize that there are different types of public forums and will review any regulations that limit speech with reference to the type of public forum in which the speech occurs. In the Council meeting setting, we are dealing with what is typically referred to as a limited or designated public forum. In designated or limited public forums content - related regulation is permissible as long as the content regulation is tied to limitations framing the scope of the public forum. That is, for example, the Council can limit speech to a particular subject matter, such as agenda items or items within the City's jurisdiction and control. Regulation of speech within that frame then must be neutral as to the speaker's particular viewpoint. So, for example, the Council could not create a limited public comment period and only allow comments supporting city initiatives. The council meeting is essentially a business meeting and one in which there is an expectation of order, decorum and civility. Courts have recognized that a speaker cannot use the First Amendment as a means to disrupt the meeting and various courts have upheld regulations limiting the time speakers are allowed to speak, limiting irrelevant or repetitious speech, and imposing sanctions upon conduct that actually disturbs or impedes a meeting. Courts have also recognized that disturbing and impeding a meeting may embrace more than simply physically disrupting the meeting by violence or other means, and may include conduct that seriously violates the rules of procedure that a Council has established to govern the conduct of its meetings. Thus, a speaker may disrupt a meeting by speaking too long; by being repetitive; by discussing things that are not relevant; by making offensive, threatening or obscene remarks; by engaging in handclapping, stomping of feet, shouting, whistling or similar behavior during the speech or presentations by others. Courts have taken a cautious view of rules that prohibit criticism or personal attacks against government officials or employees. Because such rules are clearly content- based, they are subject to stricter scrutiny by the courts and in many cases the courts have found regulations prohibiting personal attacks to be overbroad. At least one court has upheld a policy prohibiting personal attacks as not being facially unconstitutional insofar as the court believed the policy - served a legitimate interest in preserving decorum and order and kept open ample alternative means of communication. Other courts however, have been more restrictive and would allow regulation prohibiting personal attacks only if those regulations are clearly limited to personal attacks not relevant to the person's position or duties or when the nature of the personal attacks causes an actual disruption to the meeting. The Michigan Attorney General issued an opinion on the issue of regulating personal attacks and opined similarly, that if the definition of a personal attack includes the manner in which an employee or board member carries out his/her official duties, then the rule restricting speech would be invalid. If the definition of personal attack refers to conduct of the person being attacked that is totally unrelated to the manner in which he /she performs his /her duties then the exclusionary rule may be applied. Finally, with regard to any rule limiting permissible speech, the Council and Mayor must be cautious when exercising its authority to ensure that it is exercised in a fair, consistent and content - neutral basis. While speakers may not be stopped because the Council disagrees with the speaker's viewpoint, the Mayor may stop the speaker if the speech violates the Council's reasonable rules for conduct of its meetings. For your convenience, a copy of the rules including the recommended changes based upon the direction expressed during discussion at the last council meeting is attached. Recommendation The Council could consider each of the proposed changes individually as follows. As to the amendment to current paragraph 6 of the council rules, I would recommend: I move to add the phrase "or a citizen" between the words "Council Member"and "an item"in the first line of paragraph 6. As to the proposed amendments pertaining to civility, I would recommend that the Council consider amending the rules to add two new rules and renumber accordingly. As to the adoption of the Civility Pledge, I would recommend language such as: I move to amend the Council Rules to create a new rule, number 3, to read: 3. All participants in Council meetings shall conduct themselves according to the Civility Pledge adopted by the Council on June 14, 2011 by Resolution 11-270. and to renumber the rules accordingly. I would recommend that the Council may wish to consider language addressing personal attacks together with other disruptive behaviors, such as: I move to amend the Council Rules to create a new rule, number 5, to read: 5. No person shall personally attack a council member, city official, city employee or any other person. For purposes of this section personal attacks shall include comments directed at a particular person or persons which pertain to any matter that is unrelated to the performance of official duties or the conduct of city business, are threatening, slanderous, defamatory or obscene or are of such a nature that the comments disrupt the meeting or cause a disturbance. No person shall make irrelevant, unduly repetitious, offensive, threatening, slanderous, defamatory, or obscene remarks or act in such a manner as to disrupt or disturb the orderly conduct of any meeting, including handclapping, stomping of feet, whistling, shouting or other demonstrations. Any person violating this provision shall be called to order by the Mayor. If the conduct continues, the Mayor may order the person removed and the Council shall make a fact finding whether such behavior was outside the scope and content of the council rules and, if applicable, whether the behavior was of a character to cause a breach of the peace. and to renumber the rules accordingly. In the alternative, if the Council were in agreement to make all three changes, a single motion could be made to revise the rules as reflected in the attachment to this memorandum. Re ctfully Submitted, Approved: ,/ -n /A. Lorenso Mark A. Rohloff City Attorney City Manager Pledge - The Oshkosh Civility Project: A Community -Based Initiative The Oshkosh Civility Project: A Community -Based Initiative Home Principles Pledge Speaker's Bureau Download Materials Contact Us Oshkosh Civility Pledge — Building A Strong Community The Oshkosh Civility Pledge: We build a stronger and more diverse community by actively sharing our ideas and opinions with others in thoughtful and considerate ways. By practicing this basic commitment to civility, we learn and grow from one another - even in disagreement. Today and Every Day I Aspire to Practice the following Skills: 1. Pay Attention - Be Aware of Others & Sensitive to the Immediate Context of Actions 2. Listen Closely - Understand Other Points of View 3. Be inclusive - Welcome All; Don't Exclude Anyone 4. Don't Gossip - Remind Others of the Importance of this Practice 5. Show Respect - Honor Others (Especially in Disagreement) 6. Be Agreeable - Find Opportunities to Agree 7. Apologize Sincerely - Repair Damaged Relationships 8. Give Constructive Comments, Suggestions & Feedback - No Personal Attacks (Focus on Issues) 9, Accept Responsibility - Don't Shift Blame; Share Disagreements Publicly "It's not what you say. It's how you say It," See Pledge Signatories here I sign the pledge! http://�vww.oshkosheivilityproject.org/pledge.htmi Page 1 of 2 Find Us Freedom and Responsibility: The Framework for Enlighten Action Vltlen people sign the pledge, they are expressing their intention and their aspiration. The core prindples of the "Speak Your Peace campaign really resonate vdth the standards and expeciai ons of an enlightened and engaged society. The Oshkosh Civility Project, itself, as an organization. does not serve as the "civility police," monitoring and taking action relating to the conduct or actions of specific people. Everyone in our society shares the responsibility to help make all relationships stronger, more healthy and affirming, and more oriented tavard advancing and preserving the key attributes we share and hold in common. 7/25/2013 0 OSHKOSH COMMON COUNCIL RULES OF ORDER OJW -1 T O!! H E WATER ADOPTED APRIL 77 2012 Individuals speaking to the Council regarding agenda items are limited to five (5) minutes, one appearance per agenda item per person. (NOTE: Exception to the five (5) minutes may be made at the discretion of the Council.) Whenever the Council proposes an amendment to a resolution or ordinance, the Council will permit additional public comment specific only to the amendment and its effect. 2. The Mayor may relinquish the gavel to address any agenda item before the Council for consideration. 3. participants in Council meetings shall conduct themselves according to the Civility Pledge adopted by the Council on June 14, 2011 by Resolution 11 -270. 3-4. Individuals speaking to the Council under the heading "Citizen Statements to Council' are limited to five (5) minutes. Individuals may address Council only and must address items that are not listed on the Council meeting agenda, except for those items listed under "Council Member Statements ", are limited to issues that have an impact on the City of Oshkosh and that the Common Council may address at a future meeting, and must not include endorsements of any candidates or other electioneering. (NOTE: Exception to the five (5) minutes may be made at the discretion of the Council.) 5. No person shall personally attack a council member, city official, cif employee oran other erson. For ur oses of this section personal attacks shall include comments directed at a particular person_ or persons which pertain to any matter that is unrelated to the performance of official duties or the conduct of city business are -threatening, slanderous defamatoty or obscene or are of such a nature that the comments disrupt the meeting or cause a disturbance. No person shall make irrelevant, unduly repetitious, offensive threa teninq slanderous defamato or obscene remarks or act in such a manner as to disrupt or disturb the orderly conduct of any meeting, including handclapping, stomping of feet, whistling, shouting or other demonstrations. Any person violating this j2ro vision shall be called to order by the Mayor. if the conduct continues, the Mayor may order_ the person removed and the Council shall make a fact finding whether such behavior was outside the scope and content of the council rules and if applicable, whether the behavior was of a character to cause a breach of the peace. 46. Council members speaking under the heading "Council Member Announcements, Statements & Discussion" are limited to five (5) minutes and must not include endorsements of any candidates or other electioneering. (NOTE: Exception to the five (5) minutes may be made at the discretion of the Council.) Council members shall inform the City Clerk by 12:00 noon on the day prior to the Council meeting of such statements. 57. Council Members must have agenda items submitted by 12:00 noon on the day prior to the Council meeting. �8. Upon the request of a Council Member or a citizen an item will be pulled from the consent agenda and be considered as a separate issue. (NOTE: If the Council Member informs the Mayor of the request before noon on the day of the Council meeting the Mayor will notify the City Clerk to revise the agenda indicating the change.) 9. The Deputy Mayor shall be responsible for ensuring that the annual evaluation of the City Manager is accomplished and the goals for the City Manager are developed and approved annually. 10. To be considered an excused absence from a Council Meeting a Council Member will give notice to the Mayor and City Clerk prior to the meetings start time.