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Publication Date: Friday, May 18, 2001

"As an integral part of many City teams, City boards, commissions and committees should:... not criticize staff, other advisory bodies or the City Council in public." @dropname:From the Procedures Committee's guidelines for board, commission and committee member behavior "The whole picture is to learn to play fair, learn to take a loss with dignity ... It's not a gag order -absolutely not a gag order. It's simply saying, in a couple of words, no staff-bashing." @dropname:Mike Martello, city attorney "It will make people less willing to donate time to city government committees, and it will make it much easier for people who want to misuse funds and misuse city government." @dropname:Greg Perry, parks and recreation commissioner

Proposed conduct guidelines would limit public criticism by commissioners Proposed conduct guidelines would limit public criticism by commissioners (May 18, 2001)

Free speech advocate says enforcement of rules would violate First Amendment

By Justin Scheck

The City Council Procedures Committee, which consists of Mayor Mario Ambra and Council members Ralph Faravelli and Matt Pear, has proposed a set of behavioral guidelines for members of city commissions and committees that would limit commissioners' ability to express opinions different from the council's.

The document, which is in draft form and has not yet been reviewed by the full City Council, lists 26 guidelines for appointees on city committees and commissions to follow.

The guidelines include clarifications of appointees' roles, reminders that they do not possess legislative power, and suggestions that boards, commissions, and committees, and their individual members support council decisions with which they disagree.

The guidelines also say that members of these bodies should not publicly criticize the council, or other legislative bodies.

"As an integral part of many City teams, City boards, commissions and committees should:... not criticize staff, other advisory bodies or the City Council in public."

Although no punitive actions against violators are specified, Faravelli said last week that he hopes to have a "three strikes" rule, under which a commissioner or committee member with three violations would be removed from his or her position.

Commissions, boards and committees are currently given a handbook by the city setting forth loose guidelines explaining the roles of appointed bodies within city government.

The handbook says that appointees should be careful in speaking on behalf of the city in public, and serve as members of advisory bodies that take their direction from the council. It says also that appointees will be removed after three successive unexcused absences, or conviction for "a crime involving moral turpitude," but does not list any provisions for removal due to public statements; nor does it specify types of speech that are unacceptable.

Some city commissioners and outside observers say the new guidelines would violate the First Amendment, in addition to limiting public access to city government and discouraging residents from volunteering for city positions.

Mayor Ambra has refused to comment on the guidelines.

But in interviews this week Faravelli and City Attorney Michael Martello insisted that the new rules would do no more than promote civility within city government.

Kent Pollock, executive director of the California First Amendment Coalition, a nonprofit organization that monitors free speech rights and takes legal action to preserve them, disagreed. "It sounds like a lot of blustering and an attempt to squelch free thought," he said.

After reviewing the list of conduct rules, Pollock said, "In my view these rules have no standing to the extent that they violate a person's right to speak out."

Pollock said that any enforcement of the rules would violate the First Amendment, thereby exposing the council to the risk of civil rights litigation.

He said that, even though commissioners are appointed by the council and can be removed for no reason by the council, it would be illegal to remove a commissioner for criticizing the council.

Parks and Recreation Commissioner Greg Perry has openly criticized the council for planning to build a new community center, a stance Faravelli this week called "out of line."

Perry said he sees this measure as an attempt to silence critics of the council, including himself.

"It will make people less willing to donate time to city government committees, and it will make it much easier for people who want to misuse funds and misuse city government," Perry said.

Council member Mike Kasperzak, who served on the parks and recreation and planning commissions prior to the council, said he is not completely familiar with the conduct committee's proposal, but he thinks a set of behavior guidelines could help commissioners understand their roles better and avoid disputes with other city officials.

"It's the issue of your First Amendment right to free speech and encouraging free speech, and having professionalism or decorum," said Kasperzak.

He said that, in his time on boards of directors of nonprofits, as well as with the city, he has followed a policy of supporting a group's decision, even if he voted against it.

Council member Sally Lieber said she has not yet seen the procedures committee's guidelines, but she does not feel there is currently a problem in the way commissioners and committee members address the city.

Lieber said public criticism is "probably a part of a lively debate, and the remedies are usually worse than the sickness in these things."

Faravelli agreed that dissent is natural in city government, but said it is beneficial for the public to have a council that presents a unified front.

Referring to past city councils, Faravelli said that, despite internal disagreement, "publicly, they've put up a good front, and I think that's what I'm looking for."

Although the conduct rules say that committee members and commissioners should not publicly criticize the council, Martello said the document is not intended to prevent city officials from publicly criticizing the council.

"The whole picture is to learn to play fair, learn to take a loss with dignity ... It's not a gag order -absolutely not a gag order. It's simply saying, in a couple of words, no staff-bashing," Martello said.

"I've been around a long time, and I know you don't have to follow every single word," said Faravelli, when asked why the document's wording differs from its intent.

"They shouldn't say what they don't mean," said Pollock. "That's a slippery slope."

Pear was unavailable for comment about the guidelines before press time.

Council member Rosemary Stasek said she has not seen the guidelines and will not comment on them until they come before the council.


 

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