UPDATE: Victory! Citizens to be Heard Will Remain First Come, First Serve". Stand Down, New Rochelle. You have been heard! Mayor Noam Bramson just disclosed that he is withdrawing his proposed change to CBTH during a discussion item brought forward by Council Member Lou Trangucci at the very end of the City Council C.O.W. Meeting. "It's not worth the hassle," said Bramson in admitting defeat. That "hassle" is you! Thank you for your support in convincing the Mayor to drop his absurd and illegal proposed change to CBTH.
Mayor Noam Bramson recently announced a new policy regarding Citizens to be Heard. More on that below.
Before responding the Mayor's declaration of a new policy, I wanted to first run it by Robert Freeman, Executive Director of the New York State Committee on Open Government and get his thoughts. He has provided them today. My exchange with Freeman is published below along with a 2001 advisory opinion that addresses, in part, the questions I raised to him.
In short, Freeman says that the law is silent on public participation during a meeting of a public body but the Committee on Open Government, part of the New York Department of State, has advised that any rules adopted by a public body governing public participation at their meetings treat members of the public equally. Freeman states that he believes the policy would be found to be valid but adds "if properly adopted by the City Council".
Therein lies the rub.
The Mayor claims to have "discussed" the change with the City Council. Council Member Louis Trangucci says no one discussed it with him. Trangucci and Council Members Al Tarantino and Jared Rice have all confirmed that there was never any discussion item on a change of policy. All three have confirmed there was never any vote.
I have been unable to find anyone who recalls any prior public discussion at City Council and there is no evidence of a vote or passing of a resolution or even a show of hands on this issue.
Even if there had been a discussion or vote, where is the public outcry that would have justified the recent change?
Now, let me explain why I oppose the Mayor on this point.
[more after the jump; join us at 4 pm today on Talk of the Sound Radio to discuss]
I would say to all New Rochelleans that there is no more serious issue than attempts of ANY kind by ANY government official to hinder in ANY way our right to free speech. It is the bedrock upon which our nation is founded and without which all our other rights have no meaning. What value is there in freedom of assembly if we may not speak while assembled? What value is their in freedom of religion if we may not pray as we see fit? What value is there in freedom of the press if the words on the page have no meaning? What is the value of the freedom to petition our government if the pages are blank?
Is there any doubt that this recent change at Citizens to be Heard -- to require speakers to indicate whether they spoke at a City Council meeting within the last two months and then de-priortize those who answer in the affirmative - is anything less than an attempt by the Mayor to punish his critics, the most regular speakers at Citizens to be Heard?
It has become abundantly clear, through his abuse of executive session, his organizing secret 2x2 meetings with developers to circumvent OML, his belligerently uninformed CIty Clerk and the repeated constructive denials of FOIL requests, his replacing his only vocal opponent on the IDA with a woman with no experience in real estate, development, finance or city government, and now this transparent attempt to discourage his critics from speaking at public meetings, that our Mayor has interpreted his re-election and 5-2 majority on City Council as a mandate to silence all opposition and hide from the public matters of tremendous public interest such as private real estate development using public land and so-called "public-private" partnerships in which public money is used to finance otherwise unprofitable business proposals from companies like Cappelli, Forest City and, most recently, Albanese, that specialize in pitting communities against each other and exploiting their municipal resources.
Recall that this is the same Mayor who opposed recording and broadcasting IDA, Planning and Zoning meetings, enumerating all sorts of excuses including claims about logistics and costs and a supposed lack of public interest. It turned out that recording and broadcasting EVERY single meeting of these three committees costs $8,000 a year and required the installation of two low cost video cameras and some wires in a room in Beaufort. The logistics was a triviality. Having attended quite a few of these meetings over the years when they were entirely empty, I would venture to say the number of people viewing these proceedings is many times higher now because they can be viewed from home and/or time-shifted, especially important because the IDA meetings start at 5:30 pm when few are able to attend and others can run very late. The Mayor opposed all of this.
I would remind you that the Declaration of Independence specifically lists among the grievances against King George III the inaccessibility of pubic records. Our Constitution enumerates a Bill of Rights. The First Amendment spells out Five Freedoms including the right to free speech, freedom of the press, the right of assembly, freedom of religion and the right of petition. The two major differences between the British government and the American government established by our Constitution is to directly watch our representatives conduct public business and our right to have direct access to the product of their labors (i.e. documents).
Many Americans have fought and died to defend these rights.
Apparently the people of New Rochelle have the right to know the position of every council member on how may chickens can be raised on an acre of land or how late a nightclub can stay open but they may not know that some Democrats on City Council have expressed grave doubts about the Albanese project or that one Democrat has repeatedly raised concerns about Forest City's habit of ending up named as "Developer #1" in various DOJ Indictments. These sorts of disagreements among members of his own party are confined by the Mayor to patently illegal executive sessions.
People of goodwill in New Rochelle do not need to agree on every issue to agree that we all have a right to disagree and to exercise that right without a government official arbitrarily deciding that there is a limit to how many times a citizen may avail themselves of the few opportunities we have each year to express our views directly and publicly to our elected representatives before that citizen is relegated to the back of the bus.
The Mayor's action is an outrage and should be treated as such. That he would simply assert his right to change City Council policy without discussion and without a vote, more so.
If we as New Rochelleans were to sit back and do nothing when the Mayor, actively and openly seeking to suppress speech he does not like, moves to raise ANY barriers to that speech or limit that speech or the audience for that speech in ANY way the Mayor will interpret them as acquiescence and only embolden him to continue down a path so well articulated by Martin Niemöller which I borrow here:
First he came for the regular speakers at Citizens to be Heard
and I didn't speak out because I wasn't a regular speaker
Then he came for the all of the speakers at Citizens to be Heard
and I didn't speak out because I wasn't a speaker at Citizens to be Heard
Then he came for those who watched Citizens to be Heard
and I didn't speak out because I did not watch Citizens to be Heard
Then they came for me
and there was no one left to speak out for me.
It is precisely those people, a relative handful in a City of 77,000, that keep our government officials honest. If all of us do not come together to defend those CTBH Regulars today, the day will soon come that there is no CBTH at all. As noted by Freeman, there is no requirement that the City Council allow public participation.
It seems to me that for $90,000 a year working a part-time job, lifetime medical benefits and a free car, it's not too much to ask that the Mayor learn how to live with Ward Henderson calling him a "jackass" every now and then.
RESPONSE FROM FREEMAN AND MY EMAIL TO HIM FOLLOWS...
Robert Freeman of the New York State Committee on Open Government Response
Attached is an opinion that deals in part with the issue that you raised. In brief, the Open Meetings Law is silent with respect to public participation. Consequently, if a public body does not want to permit the public to speak during its meetings, that is its choice. Most public bodies permit limited public participation, and in those instances, it has been advised that they adopt rules authorizing the public do so, and that any such rules should treat members of the public equally. I would conjecture that the rule at issue, if properly adopted by the City Council, would be found to be valid.
Robert J. Freeman
Committee on Open Government
Department of State
April 16, 2001
Hon. Tracy Jong
Village of Bergen
11 Buffalo Street
P.O. Box 100
Bergen, NY 14416
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
Dear Ms. Jong:
I have received your letter of March 6 and the materials attached to it. You referred to a letter of March 1 addressed to the Bergen Village Board of Trustees in which Patricia and Thomas Pawlaczyk criticized the Board relating to their ability to speak at meetings of the Board.
In this regard, by way of background, the Open Meetings Law clearly provides the public with the right "to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy" (see Open Meetings Law, 100). However, the Law is silent with respect to the issue of public participation.
Consequently, by means of example, if a public body does not want to answer questions or permit the public to speak or otherwise participate at its meetings, I do not believe that it would be obliged to do so. On the other hand, a public body may choose to answer questions and permit public participation, and many do so.
When a public body does permit the public to speak, I believe that it should do so based upon reasonable rules that treat members of the public equally.
From my perspective, any such rules could serve as a basis for preventing verbal interruptions, shouting or other outbursts, as well as slanderous or obscene language or signs; similarly, I believe that the Board could regulate movement on the part of those carrying signs or posters so as not to interfere with meetings or prevent those in attendance from observing or hearing the deliberative process.
A public body’s rules pertaining to public participation typically indicate when, during a meeting (i.e., at the beginning or end of a meeting, for a limited period of time before or after an agenda item or other matter is discussed by a public body, etc.). Most rules also limit the amount of time during which a member of the body may speak (i.e., no more than three minutes).
If you choose to adopt the kinds of rules described above, it is suggested that they be read or distributed to those in attendance at meeting. If the rules are not heeded, it is suggested that you contact a local law enforcement agency. Often the presence or possibility of the presence of an officer will encourage decorum. If a person continues to interrupt, I believe that you could ask the officer to remove the person or persons from the meeting.
Second, while public bodies have the right to adopt rules to govern their own proceedings [see e.g., Education Law, 1709(1)], the courts have found in a variety of contexts that such rules must be reasonable. For example, although a board of education may "adopt by laws and rules for its government and operations", in a case in which a board's rules prohibited the use of tape recorders at its meetings, the Appellate Division found that the rule was unreasonable, stating that the authority to adopt rules "is not unbridled" and that "unreasonable rules will not be sanctioned" [see Mitchell v. Garden City Union Free School District, 113 AD 2d 924, 925 (1985)]. Similarly, if by rule, a public body chose to permit certain citizens to address it for ten minutes while permitting others to address it for three, or not at all, such a rule, in my view, would be unreasonable.
I note that 103 of the Open Meetings Law provides that meetings of public bodies are open to the "general public." As such, any member of the public, whether a resident of the District or of another jurisdiction, would have the same right to attend. That being so, I do not believe that a member of the public can be required to identify himself or herself by name or by residence in order to attend a meeting of a public body. Further, since any person can attend, I do not believe that a public body could by rule limit the ability to speak to residents only. There are many instances in which people other than residents, such as those who may own commercial property or conduct business and who pay taxes within a given community attend meetings and have a significant interest in the operation of a municipality or school district.
In sum, based on the foregoing, I believe that the Board may establish rules concerning the conduct of those who attend its meetings, including the privilege of those in attendance to speak or participate to certain times, topics and duration.
I hope that I have been of assistance.
Robert J. Freeman
cc: Patricia and Thomas Pawlaczyk
My recent letter to Robert Freeman of the New York State Committee on Open Government
Dear Bob, et al.
On Tuesday, without any prior announcement or public discussion, there was a change to long-standing policy in New Rochelle.
For many years, the New Rochelle City Council has held a monthly Citizens to be Heard period. There are also monthly public hearings on specific resolutions from time to time. Whether for public hearing of the Citizens to be Heard, there is an opportunity once a month for anyone to get up for 3 minutes to address council. There are perhaps a dozen people who are what might be called "regulars". They don't all speak every month but some of them always speak at every meeting. People are asked to fill out a card (one color for Citizens to be Heard and another color for Public Hearings). The card is a form for name, address, phone number and, if for a public hearing, which resolution. Speakers are then selected on a first come/first serve basis.
In the last few months, regular speakers noticed that the Mayor was not longer calling people up in the usual first come/first serve basis. Last month there was a reaction from one regular speaker who said he was the fifth sign up but after about 15 people had called up to speak still had not been called. He began grumbling loudly and then stood up, made a complaint about being passed over and stormed out of the room. A few minutes after he left the Mayor called his name, observed he was no longer there, and went to the next person at which point the Mayor said he had not intentionally skipped the person. Several people in the audience made derisive remarks (the person in question is a former supporter of the Mayor who has come to oppose him and done so publicly).
Whatever the motivations, at the next meeting there was a formal change in policy.
On Tuesday, there were new cards. These cards had check boxes asking "Have you spoken in the last two months at a Citizens to be Heard or Public Hearing YES/NO?
When one of the regular speakers got this turn, the Mayor was asked about the new card and the reason for asking the new question.
The Mayor stated that it had been discussed with Council. That the purpose of the change was to give "new" people an opportunity to be heard first, that people who checked YES would be set aside and only allowed to speak after all the "new" people had spoken. This has caused a good deal of outrage among the regulars who feel they, as frequent critics of the Mayor, the Council and the City Manager, are being singled out. Some feel the purpose is to discourage them by making them wait longer. Some people feel it is a form of punishment for falling into disfavor with the Mayor. Some feel it is an attempt to suppress critical speech. Some feel the purpose is to clear the room as much as possible so that there are fewer people in the room when the regulars speak.
I can see two sides to this issue and was hoping to get your view and any support for that view.
On the one hand, it is my understanding that city council is not required to hold a public comment period at all, that if they do they can make rules so long as those rules apply to every speaker equally. In this case the new policy applies equally to every speaker -- if you spoke recently you go to the back of the line regardless of when you filled out the card that night.
On the other hand, the new policy appears designed to single out a specific group of individuals who are known to be vocal critics of the local government. To that extent the Mayor's new policy (I have not gone through the video but no one I spoke to recalls any public discussion or vote by council about this new policy so it is HIS policy) appears to have the intent of being discriminatory.
I suspect the Mayor is operating within the law because his motives for the policy have no bearing on determining whether the policy is lawful.
You're the expert. Your thoughts on this are greatly appreciated. If you could REPLY ALL even better. I also intend to publish parts of this email and your reply to it on Talk of the Sound.
Talk of the Sound