City Councilor Bob Fenwick could be in big trouble. He spoke to a C-VILLE reporter recently about his concerns with new council meeting procedures and didn’t “explicitly” state it was his individual opinion and that he was not representing council, as required by the new rules.
“I really objected to this,” says Fenwick, who was the lone dissenter February 16 in the 4-1 vote. That was one clue he was not representing council when he spoke to C-VILLE. Ditto for the letter he wrote headlined “Freedom of speech or controlled speech?” that appeared in the March 6 Daily Progress.
That same issue contained an op-ed from activist Walt Heinecke—“Tightened grip undermines dissent”—criticizing new meeting procedures, as well as a letter from the four other councilors—“Efficiency of meetings will benefit public”—defending the new rules.
On March 9, local civil liberties organization the Rutherford Institute weighed in with a letter to council, challenging the constitutionality of the new rules. Rutherford letter to city council 3-09-2016
Forbidden behaviors such as “improper comments” and “disorderly conduct” are problems for Rutherford founder John Whitehead because of their vagueness. “They’re not defined,” he says. “Civility is another guise for censorship.”
He also notes that telling elected officials they can go to hell is protected speech, although council’s ban against profanity or vulgar language or gestures has been on the books since 2013.
In the section of the new procedures titled “Mayor as presiding officer,” Whitehead finds it particularly egregious that in the case of a disturbance, the mayor can order audio and visual equipment turned off, and he notes that nothing in the rule limits its application to city-owned equipment, “so by its plain terms it could be used by the mayor to stop citizens from using personal recording equipment,” he writes.
He says City Council has approved surveillance cameras on the Downtown Mall. “Why can’t we watch City Council?” asks Whitehead. “Why would the mayor shut down video equipment if there was a disturbance? Who is he protecting?”
City Attorney Craig Brown responded to Rutherford Institute allegations with a letter to City Council, and he disputes any notion that the new procedures are unconstitutional. “As you know, during the deliberation and discussion of this policy, there was never any suggestion that it would be used to restrain members of the media or the public in taking notes or making their own audio or visual recordings,” he says. city response to rutherford
Brown doesn’t address why the mayor needs kill-switch power over city-owned equipment.
When asked, Mayor Mike Signer says in an e-mail, “This was all about Council making our government as fair, accessible and effective for as many folks as possible. As our city attorney has advised, these new procedures are wholly consistent with the First Amendment and Virginia law. With that said, we should always be considering the effectiveness of all our policies, and these procedures, including the section you cite, should be no exception.”
Fenwick points out that the debate on the new policy took place at a Saturday work session attended by one citizen at which no public comment was allowed. “The public had no input on this,” he says.
Most bothersome for Fenwick, he says, are the lack of transparency and the lack of public participation in the new procedures. “Everything was done at once,” he says.
The new procedures nix councilors replying to citizen comments and direct them to defer to City Manager Maurice Jones’ responses, unless, at the discretion of the mayor, a councilor is recognized to respond to an individual public comment.
“I’m being silenced,” says Fenwick. He feels further stifled by another rule that now requires two councilors rather than one to request the removal of consent agenda items and placing them at the end of the meeting for discussion. “If I’m working against a 4-1 majority, it’s pretty clear I’ve got a tough row to hoe,” he says.
One thing Fenwick doesn’t object to: the three-minute limit on councilors’ comments to make the meetings more efficient and end by 11pm.
Brown finds “no compelling reason to recommend any amendments” to the new procedures, and says with the rare exception of those who have attempted to disrupt and hijack the meeting, speakers have enjoyed full exercise of their free speech rights. “The First Amendment does not compel City Council to conduct its meetings in a manner akin to ‘The Jerry Springer Show,’” he writes.
Whitehead disagrees with Brown’s assessment. “I’m a nationwide authority on this,” he says. “If they aren’t going to listen to a constitutional authority, who are they going to listen to?”
He says such policies are a national phenomenon “to keep citizen comment to a minimum,” and he cites James Madison, who said he wrote the First Amendment to protect the minority from the majority.
Asks Whitehead, “Do we want that or do we want a group of bureaucrats who don’t want improper comments?”
The new procedures went into effect March 7.
Correction: Council will review the lottery sign-up procedure in six months, not the meeting procedures as a whole as originally reported. And Bob Fenwick should have been quoted as having a tough row, not road, to hoe.