ORDINANCE

9^TH CIRCUIT COURT’S RULING REGARDING ACOSTA’S REQUEST

RULE 7 MEETING DECORUM AND ORDER

ARS SECTION 13-3803

WHAT IS DISRUPTIVE BEHAVIOR?

Vice Mayor Barotz stated that one of the situations often seen at meetings is when a speaker is commenting and the audience reacts with clapping and howling; she asked how the Mayor should respond and deal with that. Ms. Sullivan explained that clapping and cheering is to be expected and those actions alone will not be seen as disruptive by the courts. She suggested possibly pausing the proceedings and asking the audience to hold their applause. She further explained that there is little that can be done to make people be civil even in that type of setting because it could be an infringement on their free speech.
 
Vice Mayor Barotz asked if Ms. Sullivan would advise against stating that no clapping is aloud. Ms. Sullivan stated that even if that is said chances are that there will still be clapping. She suggested saying that the Council understands that the issue is an important one but in an effort to keep the meeting going and reduce delay so that everyone can have the opportunity to speak please hold your applause. Unfortunately, there is little that can be done about the clapping but it is possible to temper the Council’s response; a brief recess may allow time to let people calm down as well.
 
Ms. Sullivan explained that when a speaker is loud and agitated it is important to make sure that the Council and staff observe the response of the people in the audience and, if necessary, issue a warning. If the speaker is getting to a point where they are getting further agitated Council can suggest taking a moment to calm down; this allows staff to make a record of the warning. If the meeting comes to a point where something needs to be done, it is important to recess the meeting and halt the proceedings. This is another indicator that the behavior is disruptive. City Clerk Liz Burke asked if a recess is called due to disruptive behavior if the audio/visual recordings should continue to run or stop. Ms. Sullivan stated that if the recess is called due to a disrupting situation then the audio visual should continue to run. Not all police officers have body cameras so additional recording assistance is helpful.
 
Ms. Sullivan stated that there should never be a decision to do something based on a speaker’s position or what they said, only on their behavior. Deputy City Manager Josh Copley asked about a speaker whose behavior is calm but what they are saying is egregious or slanderous. Ms. Sullivan explained that unfortunately public officials have to deal with a lot of negativity directed at them and it is very hard to not respond. It is important to separate from the reaction one wants to have from the reaction they should have. Try not to respond or engage because reacting to what a person says could be seen as an infringement on that person’s first amendment rights.

Councilmember Overton stated that it is an awkward position to try and maintain decorum with an audience that is being disruptive. He asked if having no public participation because of the contentiousness of the issue is a tool that can be used. Ms. Sullivan stated that it is an option, but that it is absolutely vital that it is communicated clearly at the very beginning of the meeting or as part of the agenda so that people are aware of the change; to try and do that in the middle of a meeting may be more difficult. Councilmember Overton followed up asking if comments can be suspended if a meeting gets disruptive and there is a recess. Ms. Sullivan stated that the Council must allow the speaker to finish and complete their statements and there would be concern with not allowing the remaining people to speak because they are not the ones who cause the disturbance. Vice Mayor Barotz added that nothing incites the public more than the feeling of repression. It is important for the Council to listen as much as possible and make no comment in return. It is a difficult balance to strike; it is uncomfortable at times but it is better to let people say what they want to say.
 
Ms. Sullivan stated that focusing on what a speaker can and cannot do is key, not what they can or cannot say. If they are out of time the Mayor has the ability to tell them that they need to be done as their allotted time has expired.
 
Mayor Nabours asked when he can ask the officers to escort a person out. Ms. Sullivan stated that in order to remove someone their behavior must rise to the level of seriously disruptive and that cannot be based on what someone is saying, only on what they are doing. If someone is making threatening statements, that is where the judgment comes in; if the threat is immediate or the person has the ability to act on it immediately that would be a time when action may be taken.
 
Councilmember Evans stated that she would like to better understand how this gets applied to everyone equally. There are people that are very good at staying within their allotted time when speaking, and there have been people crying and laying on the podium and eliciting a negative response from the audience. It seems that it is up to the perception of the chair to make the determination and some of the things Council has witnessed are on that fine line between what they are saying and what they are doing. Ms. Sullivan stated that it will depend on the person who is conducting the meeting and that is why the focus needs to be on what the person is doing versus what they are saying.

Mr. Meilbeck asked if public participation is a right of citizens at council meetings to which Ms. Sullivan stated that it is not a right but a privilege. Ms. D’Andrea added that better enforcement of the three minute rule is needed; the Council often lets people go over the three minute limit which makes it difficult to enforce later in the meeting. Being consistent helps to enforce the three minute cut off when there is a speaker who is being difficult. Councilmember Putzova stated that the three minute limit should be equally enforced and the Council either allow everyone to go over the limit or not. Ms. Sullivan stated that the risk comes when the rule is not enforced consistently and people think the enforcement is based on what is being said.
 
Mayor Nabours asked if there is someone at a meeting in the audience that is yelling out if that has to be tolerated until it is somehow disturbing the entire audience. Ms. Sullivan stated that the chair can tell them that they are in violation of the rules and to discontinue the activity. The second step would be to call a recess; but being rude is not a violation of the law. There are other options before kicking someone out a meeting but it is a really hard balance. Mayor Nabours stated that he has concerns about balancing the information presented at this meeting with the right of the public to have a undisturbed meeting with decorum to conduct City business.
 
Police Chief Kevin Treadway stated that if law enforcement assistance is requested, it is important to call a recess at that time. When officers are called to the front and there is some expectation that the meeting will proceed after the issue is addressed it puts the officer in a position of having to react quickly; calling a recess is vital to the officer being able to respond in an appropriate manner and time.