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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- . • .� ,• Vn l,;' ► I!i f i OZ ���► 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 4 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