July 6, 2005
Mayor Adam Rivas
City of Yelm
P.O. Box 479
Yelm, WA 98597
Re: Restrictions on Public Comment Periods
Dear Mayor Rivas:
The ACLU of Washington writes to express its concern over a practice of the Yelm City Council governing public comment periods during council meetings. According to recent press reports, the Council will routinely block discussion of topics -- or even particular words, such as "moratorium" -- that the Council does not wish to hear about. This practice frustrates the entire purpose of a public comment period, which is to allow citizens the opportunity to tell their representatives what they care about. The ability of citizens to state their views about matters of public concern is one of the cornerstones of a free and accountable government. Yelm's practice of silencing public comment violates that principle.
Local governments have some leeway to determine the ground rules for public comment periods, so long as those rules are reasonable and viewpoint-neutral. Kindt v. Santa Monica Rent Control Board, 67 F.3d 266 (9th Cir. 1995); White v. City of Norwalk, 900 F.2d 1421 (9th Cir. 1990). Yelm is entitled to adopt truly neutral rules about its public comment period, such as a time limit or a noise restriction. If a speaker abuses the public comment period by engaging in disorderly conduct, the person can be prosecuted. But declaring certain topics or certain words to be off-limits is neither reasonable nor viewpoint-neutral.
A federal court of appeals ruling from New Mexico involved very similar facts. The City in Mesa v. White, 197 F.3d 1041 (10th Cir. 1999) refused to allow public comment about the city manager, purportedly because employment-related litigation about the city manager was underway. The Court found, first, that barring all public comment on the topic was not reasonable. Even though the council was entitled to make employment and litigation decisions in closed session, the Court rejected the idea that this "translates into a significant interest in restricting the public's ability to present its views on personnel or litigation matters at a public meeting." Id. at 1046. Mere desire not to listen to the public on a particular topic is not a reasonable basis for a rule. Second, the court found that the rule was an attempt to silence opinions that it was tired of listening to. As a result, it was a viewpoint-based restriction. The City's proposed interests were pretexts for censorship. Id. at 1047.
If recent news accounts are accurate, Yelm is behaving in exactly the same manner as the city in Mesa. Members of the public wish to express their viewpoints on contentious public issues; the most vocal members of the public are known to offer views that differ from those of the council. In order to avoid hearing those viewpoints, the council has responded by refusing to allow any public comment on the topic. Unlike a time limit, this is not a reasonable and viewpoint-neutral way to handle public comment periods.
It appears that Yelm banned at least some topics or words out of concern that allowing public comment on land use issues might implicate the appearance of fairness doctrine if, at some point in the future, the council is required to hear an appeal of a permit application in a quasi-judicial capacity. This is not a reasonable basis for limiting public comment periods. As defined by state statute, ex parte communications with legislators are subject to the appearance of fairness doctrine only "during the pendency of any quasi-judicial proceeding." RCW 42.36.060. Communications between council members and interested parties that occur before the proceeding begins do not cause problems. West Main Associates v. City of Bellevue, 49 Wash.App. 513, 527, 742 P.2d 1266 (1987). The statute allows members of the council to hear quasi-judicial land use appeals ever where they have participated "in earlier proceedings that result in an advisory recommendation" on the subject. RCW 42.36.070. Finally, there is no reason to think that public comments during an open public meeting are a form of ex parte communication. Even if they are viewed as ex parte, they are acceptable so long as they are an acknowledged part of the record. RCW 42.36.060. For all these reasons, it is plain that the appearance of fairness doctrine was not designed to discourage open constituent communication with elected representatives.
The constitution protects the ability of all persons to speak their mind about matters of public concern, even if what they have to say is not what the government wants to hear. Our constitution reflects "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). In short, it is the duty of elected representatives to listen to their constituents, not silence them.
Please let me know by July 22 whether Yelm will allow uncensored discussion during public comment periods that fall outside the pendency of quasi-judicial proceedings.
AARON H. CAPLAN
Cc: Councilmember Don Miller
Councilmember Joe Baker
Councilmember Bob Isom
Councilmember Ron Harding
Councilmember Pat Fetterly
City Attorney Brent Dille