HomeMy WebLinkAbout103-22 RESOLUTION113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Resolution: 103-22
File Number: 2022-0356
AMEND RULES OF ORDER AND PROCEDURE OF THE FAYETTEVILLE CITY
COUNCIL:
A RESOLUTION TO AMEND A.7.e. COURTESY AND RESPECT AND A.d.(2) PUBLIC
COMMENTS OF THE RULES OF ORDER AND PROCEDURE OF THE FAYETTEVILLE
CITY COUNCIL TO BETTER CONFORM WITH RECENT FIRST AMENDMENT COURT
DECISIONS
WHEREAS, a couple of subsections of the Rules of Order and Procedure of the Fayetteville City
Council should be slightly amended to better conform with a December 3, 2021, Fourth Circuit Court
of Appeals decision concerning a local governing body's procedural rules constitutionally limiting public
comments in its limited public forum; and
WHEREAS, the Fayetteville City Council has long been well served by its Rules allowing significant
valuable public comments which are restricted to issues or questions concerning the Agenda item that
the City Council is then considering; and
WHEREAS, reasonable restrictions to further the City Council's purpose of efficiently and openly
conducting its public business by prohibiting comments that are harassing or amount to a personal
attack against any identifiable person, regardless of viewpoint, are necessary because such personal
attacks would cause unnecessary delay or disruption at a City Council meeting and would not be
relevant to any Agenda item under consideration by the City Council; and
WHEREAS, the Mayor is the "ex officio president of the City Council and shall preside at its
meetings "A.C.A. §14-43-501 (b)(1)(A); and
WHEREAS, pursuant to this statutory power as well as Rule A.7.e. Courtesy and Respect, the
Mayor (and the Mayor alone) is empowered to enforce order at City Council meetings by applying the
Page 1 Printed on 514/22
Resolution: 103-22
File Number: 2022-0356
Rules of Order and Procedure of the Fayetteville City Council concerning public comments; and
WHEREAS, the last sentence of the current Public Comments subsection could be misinterpreted to
allow the IT Department to limit the content of a publicly offered electronic visual aid.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby repeals the last sentence
of (2) Public Comments referring to the IT Department which should still assist staff, applicants, and
the public with their proposed electronic visual aids.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby repeals the second
sentence of (e) Courtesy and Respect which may not be detailed and clear enough for recent Court
decisions and enacts the following to replace this sentence:
"All shall refrain from comments that are harassing or amount to a personal attack against any
identifiable individual including abusive comments and derogatory remarks about integrity or offer any
other comments that are also not limited to the discussion of the specific agenda item being considered
by the City Council."
PASSED and APPROVED on 5/3/2022
Approved:
Lioneld Jordan, Mayor
Attest: R h' t r f'►.,
G'G
�.•' -1T Y I Kara Paxton, City Clerk Treasurer-
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Page 2 Printed on 514122
City of Fayetteville, Arkansas 113 West Mountain Street
Fayetteville, AR 72701
(479)575-8323
Text File
File Number: 2022-0356
Agenda Date: 5/3/2022 Version: 1 Status: Passed
In Control: City Council Meetinq File Type: Resolution
Agenda Number: C.3
AMEND RULES OF ORDER AND PROCEDURE OF THE FAYETTEVILLE CITY COUNCIL:
A RESOLUTION TO AMEND A.7.e. COURTESY AND RESPECT AND A.d.(2) PUBLIC
COMMENTS OF THE RULES OF ORDER AND PROCEDURE OF THE FAYETTEVILLE CITY
COUNCIL TO BETTER CONFORM WITH RECENT FIRST AMENDMENT COURT DECISIONS
WHEREAS, a couple of subsections of the Rules of Order and Procedure of the Fayetteville City Council
should be slightly amended to better conform with a December 3, 2021, Fourth Circuit Court of Appeals
decision concerning a local governing body's procedural rules constitutionally limiting public comments in its
limited public forum; and
WHEREAS, the Fayetteville City Council has long been well served by its Rules allowing significant valuable
public comments which are restricted to issues or questions concerning the Agenda item that the City Council is
then considering; and
WHEREAS, reasonable restrictions to further the City Council's purpose of efficiently and openly conducting
its public business by prohibiting comments that are harassing or amount to a personal attack against any
identifiable person, regardless of viewpoint, are necessary because such personal attacks would cause
unnecessary delay or disruption at a City Council meeting and would not be relevant to any Agenda item under
consideration by the City Council; and
WHEREAS, the Mayor is the "ex officio president of the City Council and shall preside at its meetings
"A.C.A. §14-43-501 (b)(1)(A); and
WHEREAS, pursuant to this statutory power as well as Rule A.7.e. Courtesy and Respect, the Mayor (and
the Mayor alone) is empowered to enforce order at City Council meetings by applying the Rules of Order and
Procedure of the Fayetteville City Council concerning public comments; and
WHEREAS, the last sentence of the current Public Comments subsection could be misinterpreted to allow
the IT Department to limit the content of a publicly offered electronic visual aid.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby repeals the last sentence of (2)
Public Comments referring to the IT Department which should still assist staff, applicants, and the public with
City of Fayetteville, Arkansas Page 1 Printed on 51412022
File Number: 2022-0356
their proposed electronic visual aids.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby repeals the second sentence of
(e) Courtesy and Respect which may not be detailed and clear enough for recent Court decisions and enacts
the following to replace this sentence:
"All shall refrain from comments that are harassing or amount to a personal attack against any identifiable
individual including abusive comments and derogatory remarks about integrity or offer any other comments that
are also not limited to the discussion of the specific agenda item being considered by the City Council."
City of Fayetteville, Arkansas Page 2 Printed on 51412022
Legistar ID No.: 2022- 0356
AGENDA REQUEST FORM
FOR: Council Meeting of May 3, 2022
FROM: Kit Williams
ORDINANCE OR RESOLUTION TITLE AND SUBJECT:
A RESOLUTION TO AMEND A.7.e. COURTESY AND RESPECT AND A.d.(2)
PUBLIC COMMENTS OF THE RULES AND ORDER AND PROCEDURE OF THE
FAYETTEVILLE CITY COUNCIL TO BETTER CONFORM WITH RECENT FIRST
AMENDMENT COURT DECISIONS
APPROVED FOR AGENDA:
7�A---A-
P t, t L z-Z
Kit Williams Date
City Attorney
191
OFFICE OF THE
CITY ATTORNEY
DEPARTMENTAL CORRESPONDENCE
TO: Mayor Jordan
City Council
CC: Susan Norton, Chief of Staff
FROM: Kit Williams, City Attorney
DATE: April 14, 2022
Kit Williams
City Attorney
Blake Pennington
Assistant City Attorney
Jodi Batker
Paralegal
RE: Slight changes in Public Comments and Courtesy and Respect sections
of the Rules of Order and Procedure of the Fayetteville City Council are needed
because of recent Court decisions
I sent you a memo on January 19, 2022, that stated that some minor
changes to your Rules governing public comments were probably needed. This
was confirmed during the IMLA Mid -year Seminar we attended in D.C. I also
believe the last sentence of Public Comments could be mistakenly interpreted to
mean that the IT Department could limit the content of an electronic visual aid
that a member of the public wishes to present at a City Council meeting. By grant
of statutory authority and as recognized by the Rules of Order and Procedure of the
Fayetteville City Council, only the Mayor can enforce order at the City Council
meeting, limit the public's comments to an agenda item being considered and
stop any harassing or personal attacks which include abusive comments and
derogatory remarks about a persons integrity.
As Fayetteville City Attorney, I sponsor very few agenda items which
almost always concern legal or constitutional concerns that need to be addressed
and resolved by the Fayetteville City Council. I believe my proposed amendment
to your Rules of Order and Procedure is one of those rare times that it is
appropriate for me to sponsor such agenda item.
Your current Rules attempt to prevent "rude... remarks." Personally, I like
this limitation and hope that we will not be subjected to rude remarks from staff,
elected officials or citizens in the future. However, I do fear that "rude" is such a
broad term that a Court might interpret our attempt to limit "rude" remarks as
an unconstitutionally vague limit on the public's free speech rights. Thus, I
believe we need to remove this reference and replace it with language approved
by a recent Federal Circuit Court decision regarding local government public
comment rules.
As I told you in my January 19, 2022 memo (attached), the Fourth Circuit
Court of Appeals found that a governing body's limitations of public comment
during the body's limited public forum were constitutional. The Court upheld
limitations that restricted "discussion to specified agenda items" as we also do.
They further upheld disallowing comments "that are harassing or amount to a
personal attack against any identifiable individual..." These limitations were
found justifiable because "they are reasonable 'to further the forum's purpose of
good business"'. Davidson v. Loudoun County School Board, slip opinion No. 20-
1683 (4th Circuit December 3, 2021). I believe we should closely mirror this
language as I have tried to in my proposed Resolution.
If anyone has any questions or comments, please let me know as quickly as
possible.
2
4
DEPARTMENTAL CORRESPONDENCE
OFFICE OF THE
CITY ATTORNEY
TO: Mayor Jordan
City Council
City Clerk
Kit Williams
City Attorney
Blake Pennington
Assistant City Attorney
Jodi Batker
Paralegal
CC: Susan Norton, Chief of Staff
Keith Macedo, Information Technologies Director
FROM: Kit Williams, City Attorney
DATE: January 19, 2022 -- -
RE: Fourth Circuit Affirmed imposing reasonable restrictions on public
comment
The United States Court of Appeals for the Fourth Circuit just affirmed as
constitutional a local governing body's policy of a limited public forum which is
viewpoint neutral and is "justified in limiting its meeting to discussion of
specified agenda items and in imposing reasonable restrictions... to further the
forums purpose of conducting public business." Davidson v. Loudoun County
School Board, slip opinion No. 20-1683 (4th Cir. Dec. 3, 2021); quoting Steinburg v.
Chesterfield County Planning Commission, 527 F. 3d 377, 385 (4th Cir. 2008).
The Fourth Circuit affirmed the limitation in the School Board's policy that
does not allow comments "that are harassing or amount to a personal attack
against any identifiable individual..." Id. "The policy prohibits all personal
attacks, regardless of viewpoint, because they cause 'unnecessary delay or
disruption to a meeting."' Id. The Court found that the School Board "is justified
in imposing these restrictions as they are reasonable 'to further the forum's
purpose of good business."' Id.
The Fourth Circuit Court of Appeals then affirmed the District Court's
grant of Summary Judgment to the School Board which dismissed a disorderly
member of the public's First Amendment and Due Process claims when he was
not allowed further comment.
The School Board's policy limiting public comments to the subject of the
agenda item and prohibiting personal attacks on anyone is similar to your
limited public forum rules in Rules of Order and Procedure of the Fayetteville City
Council. These rules are also viewpoint neutral, designed to allow substantial
public comment on agenda items, but restrict comments to the agenda item
before the Council and prohibits personal attacks which not only are not relevant
to the agenda item, but also cause unnecessary delay and disruption of the City
Council meeting.
N
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DEPARTMENTAL CORRESPONDENCE
OFFICE OF THE
CITY ATTORNEY
TO: Mayor Jordan
City Council
City Clerk Kara Paxton
CC: Susan Norton, Chief of Staff
Paul Becker, Chief Financial Officer
Chris Brown, Public Works Director
Terry Gulley, Asst. Public Works Director
Jonathan Curth, Development Services Director
Steven Dotson, Internal Auditor
FROM: Kit Williams, City Attorney
DATE: May 2, 2022
RE: Mayor recuperating at home and performing essential duties
Kit Williams
City Attorney
Blake Pennington
Assistant City Attorrey
Jodi Batker
Paralegal
Mayor Jordan is currently recuperating at home, but is fully capable and
performing the essential duties of his office. One such duty was to clarify how
and when his approval through use of his signature stamp could be exercised.
Ordinances, Resolutions, Contracts and other documents approved by the City
Council may have the Mayor's signature stamp applied upon the unanimous
agreement of the Chief of Staff, Chief Financial Officer and City Attorney. A
similar procedure was used during a rare week or longer vacation for the Mayor
years ago where cell phone service at his vacation spot was not always reliable.
An initial draft of his authority for use of his signature stamp was signed
by Mayor Jordan on Friday April 29th and is attached. Mayor Jordan has just
signed an updated and more specific and complete authorization detailing what
the City Staff should do during this period when staff may speak with him for
any necessary decisions or instructions, but when City Staff is authorized to
perform housekeeping, ministerial, and uncontroversial actions on the Mayor's
behalf. This replacement authority dated today is also attached and supersedes
the April 29th authorization.
Mayor Jordan has also designated his Chief of Staff to handle most of his
normal meetings duties until his full time return to the office. The Vice Mayor
shall conduct all City Council meetings and Agenda sessions as the Mayor
recuperates. If any document proposed for the Mayor's signature has any
questionable aspect, the Chief of Staff shall inquire upon Mayor Jordan s decision
before his signature stamp is used or withheld.
Mayor Jordan remains able to perform his necessary official duties
although much of the noncontroversial, house -keeping measures will be handled
by his Chief of Staff and necessary signatures by use of his signature stamp so
the Mayor can get more needed rest. In the unlikely event that Mayor Jordan
would be deemed by a Circuit Court as being "unable to perform the duties of
office", Mayor Jordan has signed the attached Designation of Chief of Staff Susan
Norton to Perform the Duties of the Office of Mayor If and When Necessary.
A.C.A. §14-43-501 (b)(3)(C) provides that "one of the following individuals
may perform all functions of a mayor during the disability or absence of the
mayor:
(C) An unelected employee or resident of the city if designated by the
mayor and approved by the City Council."
If the City Council does not approve the Mayor's designation of Chief of
Staff Susan Norton, then the Mayor has designated Vice Mayor Sarah Bunch who
as an "elected official of the city" does not need approval of the City Council.
(A.C.A. §14-43-501 (b)(3)(B).
2
OFFICE OF THE MAYOR
April 29, 2022
I, Lioneld Jordan, Mayor of the City of Fayetteville, do hereby authorize the following
approval procedures to be used during any period I am absent from the City, under the
following conditions:
• Until I return to regular office hours Chief of Staff, Susan Norton will have the final
approval necessary for Legistar items
My signature stamp may be used for all of the following:
1. Approval of documents deemed necessary and appropriate by the unanimous
agreement of the following:
o Susan Norton -Chief of Staff
o Paul Becker -Chief Financial Officer
o Kit Williams -Fayetteville City Attorney
2. Ordinances, resolutions, contracts and deeds as needed for items already approved by
the Fayetteville City Council
3. Development documents and other non -agenda items after their approval through the
Legistar process
Lioneld Jordan,
Date Signed
Witness
City of Fayetteville 113 W, Mountain Street Fayetteville, AR 72701 www.fayetteville-ar.gov
OFFICE OF THE MAYOR
May 2, 2022
I, Lioneld Jordan, Mayor of the City of Fayetteville, do hereby authorize the following updated
approval and signatory procedures to be used during any week or longer period of time if I need some of
my more signatory and ministerial and/or in -person meeting duties performed for me until I return to
full-time status:
■ Chief of Staff Susan Norton will have the final approval necessary for Legistar items
• My signature stamp may be used to approve all of the following:
1. Approval of documents deemed necessary and appropriate by the unanimous agreement of the
following:
o Susan Norton -Chief of Staff
o Paul Becker -Chief Financial Officer
o Kit Williams -Fayetteville City Attorney
2. Ordinances, resolutions, contracts and deeds as needed for items already approved by the
Fayetteville City Council
3. Development documents and other non -agenda items after their approval through the Legistar
process
■ Chief of Staff Susan Norton may chair and attend any and all of the meetings I normally chair or
attend (except City Council meetings and Agenda Sessions). Other staff who are already
ejnpowered to represent me in regional boards or commissions may continue to represent me
iii those boarasland commissions
4tv
r...��
Lioneld Jordan,
Date Signed
Witness
City of Fayetteville 113 W, Mountain Street Fayetteville, AR 72701 www.fayetteville-ar.gov
OFFICE OF THE MAYOR
Designation of Chief of Staff Susan Norton To Perform The Duties Of The Office Of Mayor If
And When Necessary
I, Mayor Lioneld Jordan, remain capable of performing the essential duties of my office
while I recuperate in the hospital or at home. I have established proper procedural guidelines
so that my signature stamp may be used instead of my written signature on documents
approved by the City Council such as Ordinances, Resolutions, Contracts, Grant Application and
Acceptances, and Deeds.
If I become temporarily unable to perform the duties of the Office of Mayor, I hereby
designate pursuant to A.C.A. §14-43-501 (b)(3)(C) that Chief of Staff Susan Norton shall assume
the powers and duties of Fayetteville Mayor until I am able to resume such powers and duties
myself.
If the City Council fails to approve my designation of Chief of Staff Susan Norton to
perform all functions of Mayor, then I designate Vice Mayor Sarah Bunch pursuant to A.C.A.
§14-43-501(b)(3)(B) to perform all functions of Mayor until j am again able to perform the
duties and functions of Mayor of Fayetteville.
s - a -
Date LIONELD J❑
Mayor
��-��
Witness
City of Fayetteville 113 W. Mountain Street Fayetteville, AR 72701 www.fayetteville-ar.gov