AGO to City of Palouse: Any policy prohibiting public comment on personnel issues of City staff has serious Constitutional implications

Tim Ford, Ombudsman for the WA State Attorney General's Office instructs Palouse Mayor that the City can not restrict comments on personnel issues during City's open comment period. A copy of the letter is posted below.

ATTORNEY GENERAL OF WASHINGTON
1125 Washington Street
SEPO Box 40100
Olympia WA98504-0100

March 24,2009

The Honorable Michael Echanove,
Mayor, City of Palouse

Dear Mayor Echanove:

I am the Attorney General's Open Government Ombudsman and I provide assistance to the public and agencies for compliance with the state Public Records Act and Open Public Meetings Act. I received a letter from the Boomerang questioning the city's policy prohibiting public comment on personnel issues of city staff. Any policy prohibiting comment on a specific topic would have serious constitutional implications. I would ask the city to consider my informal advice in this letter.

The ability of citizens to voice their opinions about the performance of the public employees and officials who serve the public is one of the cornerstones of a free and accountable government. Particular criticism of government conduct may irritate the city, but such criticism is protected by the First Amendment of the United States Constitution, and by Article I, Section 5 of the Washington Constitution. In the case of Mesa v. White, 197 F.3d 1041 (1 ot" Cir. 1999), a county refused to allow public comment and criticism about the county manager. The court found that the restriction was unreasonable, an attempt to silence opinions, and a pretext for censorship.

A municipality that deliberately allows a general public comment period during its meetings creates a limited public forum for constitutionally protected free speech. The city may not restrict speech it merely dislikes, but has some ability to limit public comment in a neutral manner. The city may set time limits or noise limits to public speech.

The Open Public Meetings Act allows the city to remove an individual if they are being disruptive. RCW 42.30.050. A municipality may adopt a policy to prohibit personal attacks such as insults if they lead to disruption of the meeting. Steinbz~vgv . Chesterjeld County Planning Comm'n, 527 F.3d 377 (4"' Cir. 2008). Yet even Steinbevg acknowledges that criticism may not be prohibited where the speech is directed on a substantive idea. Personal insults should not be conhsed with insulting criticism over the conduct of public officials or employees. Moreover, Steinberg does not allow the city to prohibit public comment on a particular topic when the public comments are neither personally insulting nor disruptive.

The United States 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). If the city allows a general public comment period at its meetings but prohibits comment on personnel issues, then the prohibition should be repealed.

Sincerely,

TIMOTHY D. FORD
Open Government Ombudsman
Assistant Attorney General