[Vision2020] Palouse Gets Refresher in Free Speech

Tue Mar 31 11:47:30 PDT 2009

By way of the Latah Eagle's sister paper, the Boomerang, which has been at odds with the mayor over this for quite some time over this.
Funny how Echanove will talk to the Trib, but not to the Boom...
Here is the full text of the letter from the AG's office, which we received March 24:

March 24, 2009

Mayor Michael Echanove
Palouse City Hall
East 120 Main Street
P.O. Box 248
Palouse, WA 99161-0248

RE: Restrictions on Public Comment Periods

Dear Mayor:

I am the Attorney General's Open Government Ombudsman and provide assistance
to the public and agencies for compliance with the state Public Records Act
and Open Public Meetings Act.  I received a letter from the Boomerang
questioning the City's policy prohibiting public comment on personnel issues
of city staff.  Any policy prohibiting comment on a specific topic would
have serious constitutional implications.  I would ask the city to consider
my informal advice in this letter.  

The ability of citizens to voice their opinions about the performance of the
public employees and officials who serve the public is one of the
cornerstones of a free and accountable government.  Particular criticism of
government conduct may irritate the city, but such criticism is protected by
the 1st amendment of the U.S. Constitution, and by Article I, section 5 of
the Washington Constitution.  In the case of Mesa v. White, 197 F.3d 1041
(10th Cir. 1999) a county refused to allow public comment and criticism
about the city manager.  The court found that the restriction was
unreasonable, an attempt to silence opinions, and a pretext for censorship.

A municipality that deliberately allows a general public comment period
during its meetings creates a limited public forum for constitutionally
protected free speech.  The city may not restrict speech it merely dislikes,
but has some ability to limit public comment in a neutral manner.  The city
may set time limits or noise limits to public speech.  

The Open Public Meetings Act allows the city to remove an individual if they
are being disruptive.  RCW 42.30.050.  A municipality may adopt a policy to
prohibit personal attacks such as insults if they lead to disruption of the
meeting.  Steinburg v. Chesterfield County Planning Com'n, 527 F.3d 377 (4th
Cir. 2008).  Yet even Steinberg acknowledges that criticism may not be
prohibited where the speech is directed on a substantive idea.  Personal
insults should not be confused with insulting criticism over the conduct of
public officials or employees.  Moreover, Steinberg does not allow the city
to prohibit public comment on a particular topic when the public comments
are neither personally insulting nor disruptive.

The U.S. Constitution reflects "a profound national commitment to the
principle that debate on public issues should be uninhibited, robust, and
wide-open, and that it may well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public officials."  New York
Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).  If the city allows a
general public comment period at its meetings but prohibits comment on
personnel issues, then the prohibition should be repealed.

Sincerely,

Tim Ford
Open Government Ombudsman
Assistant Attorney General for Government Accountability

----- Original Message ----- 
From: "Tom Hansen" <thansen at moscow.com>
To: <vision2020 at moscow.com>
Sent: Tuesday, March 31, 2009 10:36 AM
Subject: [Vision2020] Palouse Gets Refresher in Free Speech

> Courtesy of today's (March 31, 2009) Lewiston Tribune by way of the 
> Spokesman Review.
> 
> -----------------------------------------------
> 
> Palouse gets refresher in free speech
> State warns mayor against limiting comments during public meetings in town
> By David Johnson of the Lewiston Tribune
> 
> PALOUSE - After receiving some unsolicited advice from Washington state's 
> ombudsman on open government, Mayor Michael Echanove on Monday declared a 
> resumption of free speech at city council meetings.
> 
> "Someone can always come in and say the mayor is a bonehead," said 
> Echanove, who's been at the helm of this Whitman County town since 
> 2001. "That doesn't bother me in the least."
> 
> But prior to receiving a letter last week from Tim Ford, assistant 
> Washington attorney general for government accountability, Echanove had 
> protected paid city employees from public criticism.
> 
> "Some years ago," the mayor explained, "a person took off on an employee 
> and was going at it. Afterwards, I was told that I should have clamped 
> down on that."
> 
> But Ford, who could not be reached for comment, wrote in his letter that 
> Echanove's ban has serious constitutional implications.
> 
> "The ability of citizens to voice their opinions about the performance of 
> the public employees and officials who serve the public is one of the 
> cornerstones of a free and accountable government," Ford wrote in the 
> letter. "Particular criticism of government conduct may irritate the city, 
> but such criticism is protected by the First Amendment of the U.S. 
> Constitution, and ... the Washington Constitution."
> 
> Echanove said he plans to ask members of the city's policy and 
> administration committee to review Ford's letter. But from his 
> perspective, Echanove said, he's ready to accept Ford's advice, while at 
> the same time asking citizens to maintain a level of civility in their 
> criticism of paid employees.
> 
> Ford wrote that his letter was in response to a letter he recently 
> received from the Boomerang newspaper, questioning the city's policy of 
> prohibiting public comment on issues regarding city staff.
> 
> "So I stand corrected," Echanove said. "People can now bring any topic up 
> in the open forum, including personnel."
> 
> Open forum, the mayor explained, was started a number of years ago as a 
> means for citizens to bring up issues that weren't, or should be, on the 
> council's agenda. "It's where anyone on the planet can come in and talk 
> about anything they want," Echanove said. "I'm the one that put that 
> there, just to have open communication."
> 
> Ford wrote any municipality that deliberately allows general public 
> comment during it's meetings has, in essence, created a public forum for 
> constitutionally protected free speech. "The city may not restrict speech 
> it merely dislikes," Ford wrote. But the city may limit comment in 
> a "neutral manner" by, for example, setting time limits.
> 
> People who become disruptive may be removed from the meeting under the 
> state's open public meetings act, Ford wrote. And cities may adopt a 
> policy that prohibits personal attacks such as insults, if they lead to 
> disruption. But personal insults, Ford wrote, are not the same as 
> insulting criticism. Moreover, case law prohibits cities from banning 
> public comment on a particular topic.
> 
> Federal case law also underscores, Ford wrote, that the U.S. Constitution 
> reflects a "profound national commitment" to the principle that debate on 
> public issues must be uninhibited, robust and wide open. Such debate may 
> also include "vehement, caustic, and sometimes unpleasantly sharp attacks" 
> on government and public officials, Ford wrote.
> 
> "If the city allows a general public comment period at its meetings but 
> prohibits comment on personnel issues," Ford wrote, "then the prohibition 
> should be repealed."
> 
> Echanove said he has taken the legal advice to heart and wants to keep the 
> open forum. "I like people to walk through the door and talk about 
> anything. So right now I'd say anything is fair game."
>  
> -----------------------------------------------
> 
> You know what this means, dontcha?
> 
> Item #3 on the Moscow City Council agenda . . . the item marked "Public 
> Commentary" . . . is (as it always has been) an open podium for the public 
> to air its grievances, whether that grievance is focused at a particular 
> councilman or the city in general . . . provided the grievance is 
> presented in a manner of civility . . . unlike the manner in which 
> Councilman (and candidate for mayor of Moscow) John Weber addressed 
> another council member a while back . . .
> 
> John Weber's idea of "civility"
> http://www.youtube.com/watch?v=EVKtZJQZb9k
> 
> Seeya round town, Moscow.
> 
> Tom Hansen
> Moscow, Idaho
> 
> Join us at The First Annual Intolerista Wingding, April 17th, featuring 
> Roy Zimmerman and Jeanne McHale.  For details go to . . .
> 
> http://www.MoscowCares.com/Wingding
> 
> Seeya
> there.
> 
> ---------------------------------------------
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