From Darkness To Light

13 Apr 2018

City officials ask board members to restrict their 1st Amendment right to free speech

Posted by Adam Howell

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At an orientation meeting on Thursday, City of Durango officials asked the appointed members of its 21 boards to restrict their speech outside of board meetings.

IMG_2423[1]Several examples of speech that City officials asked the board members in attendance to restrict could be interpreted as free speech that’s protected by the First Amendment of the United States Constitution.

The First Amendment of the U.S.  Constitution lays out the right:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances,” says the First Amendment.

Request for restrictions on speech

Examples of speech that the City of Durango is asking board members to avoid includes the following:

  1. Discussions between board members outside of their official board meetings about matters that are discussed before the public body, or board that they are on
  2. Verbal or written discussions about matters that are discussed before a public body with members of the public, outside of board meetings
  3. For board members who adjudicate at quasi-judicial hearings, the signing of any “pro” or “con” petitions similar to those that are commonly created for liquor license disputes
  4. For board members who adjudicate at quasi-judicial hearings, the assumption of a role as a negotiator or advocate
  5. For board members who adjudicate at quasi-judicial hearings, the collection of evidence outside of the official hearing
  6. Contact with someone outside a hearing who has a stake or interest in the subject matter of the hearing

City of Durango Attorney Dirk Nelson explained the justification for telling board members to restrict their speech outside of board meetings.

“Particularly when you’re acting in a quasi- judicial role, if you’re on one of those boards that does that, primarily the Planning Commission, Board of Adjustment, in certain circumstances, Board of Ethics, you’re being asked to act as a judge. So again, I think we’d all assume, we’d all hope that a judge–if I have a case before a judge–and they run into the other side at City Market, because judges buy groceries too, that my judge isn’t going to engage in that kind of discussion with the other side without me knowing. So I think that’s where it becomes critical,” said Nelson.

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“Now just the legislative stuff, again if somebody comes up to you and says, you know you’re on the Park and Rec Board and they say man, I hate the idea of these electric bikes. I don’t think we should have those on the trails. Well, that’s a different situation because that’s legislative. You’re trying to decide what the rule ought to be. You can talk to people like that, I think. And if you want to express your opinion and engage with them, again the idea is you want to get their input in a fashion that the whole board hears. But I don’t think that you’re censored from talking with people,” he said.

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“Now advocating is another thing. If you’re out there drumming a business, or seeking people to come to the board to support your petition, you know again, you’re there as a decider, not as an advocate,” said Nelson. “I think that’s kind of the difference.”

Ex-parte contacts

Using a Powerpoint presentation, the City officials laid out their request for board members to restrict their speech, with the City’s Attorney, Dirk Nelson, explaining what board members should avoid doing.

One of the slides suggested avoiding any ex-parte contacts.

  • “An ex-parte contact is an “outside the hearing” contact with someone who has a stake or interest in the subject matter of the hearing,” said the slide, which was explained by Dirk Nelson. “The contact is impermissible whether with the applicant, citizens, staff, or others. Affects your ability to participate in the decision making.”

The “ex-parte” reference is a bit out of context in the realm of board conduct outside of board meetings. This is because “ex-parte” is a term that historically has been used to reference a judicial proceeding that’s brought for the benefit of one party only, without notice to or challenge by an adverse party, according to Barron’s Law Dictionary, Fifth Edition.

Adversely, to define any speech that occurs outside of a board meeting as a “judicial proceeding” is a stretch for any City official to make.

An ex-parte proceeding has a more relevant context in the U.S. legal system where the Fifth Amendment right to due process requires providing fair notice to all parties who may be effected by a legal proceeding.

An ex-parte proceeding, in the more relevant sense, which is conducted with no notice to, or presence of, other parties would seem to violate that Constitutional right, according to the online Legal Dictionary.

A less arbitrary use of the term “ex-parte,” according to Legal Dictionary, is its more relevant use in circumstances where a court decides that giving proper ex-parte notice to one party may cause serious harm to another.

The use of ex parte motions in family court due to the threat of serious personal injury between family members is probably the most relevant use of the term, according to Legal Dictionary.

Furthermore, comparing family court hearings to the conduct of board members outside of board meetings is dubious, and to accuse any board member of having ex-parte contact could be scurrilous.

Overall, board members having discussions outside of board meetings about board business could breed resentment from the public, but to restrict those discussions could amount to violating their rights to free speech.

Adam Howell is a writer who is on the City of Durango’s Natural Lands Preservation Advisory Board. He can be reached by clicking on this link to the contact page.

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