Our opinion: Council resolution tramples free speech


Just when it appeared the controversy about City Hall's handling of the methadone clinic proposal had end ed, along came a resolution last Tues day designed to not only punish critics on the City Council but gag them going forward. That it passed is irrelevant. That it actually saw the light of day is discouraging, and the wounds reopened won't close soon, if ever.

Still angered by the October 9 meeting in which the Council pursued a "no confidence" motion against City Solicitor Kathleen Degnan because of her handling of the methadone clinic case, Councilor Melissa Mazzeo filed an Open Meeting Law complaint based on her belief that the councilors behind the effort had conspired together. That she had no evidence, only suspicions based on comments made on radio programs about the no confidence effort, made it apparent that her motives were political, as Councilor Mazzeo, a frequent critic of Mayor James Ruberto, will not abide criticism of Mayor Daniel Bianchi or his administration.

It doesn't take a lawyer to understand the Open Meeting Law, and there was plainly no violation by councilors. A quorum of six councilors is required for a violation, and Ms. Mazzeo could only come up with five villains -- Councilors Barry Clairmont, Christine Yon, John Krol and Jonathan Lothrop, who were critical of the city solicitor and the mayor in regard to the handling of the multi-faceted methadone clinic controversy, and Council President Kevin Sherman, who allowed the no confidence motion to go forward. Contrary to Ms. Mazzeo's assertions, talking by councilors does not constitute "deliberating," and even if they were deliberating, there were still only five.

The state attorney general's office would have found no violation had the complaint been filed, but in formulating an official council response to the complaint, President Sherman and Ms. Mazzeo reached a far more troubling "compromise" that trampled the First Amendment. The Open Meeting Law is an important document -- the Constitu tion is the foundation for nearly every law on the books.

The compromise article stated that "Councilors are asked to refrain from discussing proposed agenda items publicly until they are officially listed as agenda items." Court have for decades used the First Amendment as a basis for banning "prior restraint," in which free speech rights are denied in advance of those rights being executed. This provision of the Sherman-Mazzeo compromise is in clear violation of this First Amendment precept. The resolution also warns that "... councilors should act in a professional decorum when discussing their opinions on issues through all forms of media (print, radio, TV, social, etc.)" Does criticizing the Bianchi administration constitute a lack of decorum? In fact, councilors have that right under the First Amendment. For that matter, doesn't accusing councilors at a public meeting of violating the Open Meeting Law without introducing a shred of evidence constitute a lack of decorum?

Council President Sherman is a conciliator, which is often laudable but in this case it worked against him in the creation of the disturbing article. It's also unfortunate that some councilors were buffaloed by Tuesday's lengthy debate into thinking that Ms. Mazzeo's claims of an Open Meeting Law violation had merit. Those targeted could have used their support.

The resolution eventually passed, but because it is unenforceable and unconstitutional we urge councilors to ignore it and continue to freely engage the media, both print and electronic. This is how transparency in government is assured. The media are also the link to voters, and it is the voters to whom all city councilors ultimately must answer.


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