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Balancing the Council's Right to Manage Meetings With Expectations of Citizens


March 1, 2012 by P. Stephen DiJulio
Category: Council-Commission Advisor

This Advisor column was originally published in June 2008.

The tragedy at the City Council meeting in Kirkwood, Missouri on February 7, 2008 is a stark reminder of the physical and personal attacks that may be encountered by elected officials. In Kirkwood, a man who had frequently disrupted previous council meetings shot and killed two council members, two police officers and the public works director and seriously wounded the mayor and a journalist before himself being shot and killed by other police officers. Fortunately such instances of extreme violence are a rare occurrence in most cities and counties, and for that reason, few city councils or county councils maintain security like that found at the state legislature or the United State Congress. Nevertheless, most local councils do have an interest in assuring that meetings are conducted in an orderly way and are not disrupted by threatening, irrelevant or overlong comment. These types of disruptions are common. And, many councils may be unsure about their ability to respond to disruptive conduct for fear of violating their citizens' First Amendment rights to free speech. A recent decision from the Federal Fourth Circuit Court of Appeals highlights and provides guidance on these issues.

Chesterfield County, Virginia has a population of a little over 300,000, approximately 60,000 more than Kitsap County. Like many communities, it maintains a planning commission to "promote orderly development" within the county. At one meeting of the Chesterfield County Planning Commission, a scheduled item was requested to be "deferred" until the next meeting. The Commission Chair asked for public comment only on the issue of deferral. The first two speakers addressed deferral but also briefly, but politely, addressed some substantive issues regarding the application. However, the third speaker, Steinburg, began to speak about the development proposal and not on the question of deferral. Steinburg's comments also attacked the Chair of the Planning Commission. The Chair "cut off" Steinburg, and asked him to sit down. An excerpt of the dialog follows:

Chairman Litton: I am asking you just to sit down please.

Steinburg: I know you are. I understand what you're doing. And when I'm through speaking I will sit down.

Chairman Litton: No I think you're going to sit down now.

Steinburg: I'm not!

At which point the Chair called for a police officer to request that Mr. Steinburg be seated. When Steinburg refused, two officers escorted him from the podium and out of the meeting room.

Steinburg brought an action against the Planning Commission and its members, claiming violation of First Amendment rights to free speech. In discussing Steinburg's assertions against Chesterfield County, the court acknowledged that the Planning Commission meeting was a public forum. Generally, the First Amendment provides protection to and opportunity for free speech in public forums. But, a meeting of a council (or a planning commission) was not a traditional public forum such as a soapbox in a public park. Rather such meetings are "limited public forums" which may be managed by the government entity.

In the case of Chesterfield County, a policy prohibited "personal attacks" on the commissioners. Steinburg argued that such a policy violated his First Amendment rights. The court rejected that claim concluding that a "content-neutral policy against personal attacks is not . . . unconstitutional as it is adopted and employed to serve the legitimate public interest in a limited forum of decorum and order." The court emphasized that such a policy does not preclude a speaker from expressing an opinion on the subject matter before the board, council or commission.

The court also recognized that argumentative or disruptive behavior cannot be shielded by a claim of First Amendment rights. A presiding officer must be able to control the course and decorum of a meeting.

Officials presiding over such meetings must have discretion . . . to cut off speech which they reasonably perceive to be, or imminently to threaten, a disruption of the orderly and fair progress of the discussion, whether by virtue of its irrelevance, its duration, or its very tone and manner.

See Steinburg v. Chesterfield County Planning Comm'n, ___F.3d___, 2008 WL 2211886 (4th Cir. May 29, 2008).

It is well recognized in Washington law that a council may order the removal of people who disrupt meetings. The Open Meetings Act specifically authorizes the clearing of a meeting room and continuation of a meeting, including reconvening without the public (even at another location), in response to such disruptive behavior that causes the ongoing meeting to be infeasible. See RCW 42.30.050. Council members may readmit an individual or individuals not responsible for the disruption. And, representatives of the news media, except those participating in a disturbance, are required to be readmitted to such meetings.

It is one of the more difficult responsibilities of a council to limit the rights of people to speak at the council's meeting. Nevertheless, when the conduct of people at meetings are disruptive to the council's action, legitimate steps may be taken to assure that the public's work is conducted by the council and not interfered with by others.

About P. Stephen DiJulio

P. Stephen DiJulio writes for MRSC as a Council Commission Advisor and as a Open Government Advisor.

P. Stephen DiJulio, a partner at Foster Pepper PLLC, focuses on litigation involving state and local governments, and land use and environmental law. Particular experience includes representation of jurisdictions on eminent domain, utilities (water, wastewater, storm water, solid waste systems), local improvement districts, facility siting and contractor litigation.

The views expressed in Advisor columns represent the opinions of the author and do not necessarily reflect those of MRSC.

VIEW ALL POSTS BY P. Stephen DiJulio

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