Invest in Incline Proposes Code of Conduct for Public Speakers

The following letter was sent to the IVGID Board of Trustees on May 26, 2023 from the Invest in Incline Advocacy Network.  We have never received a response to this letter, but the issue is now on the Board’s agenda for the August 30, 2023 meeting.  We have also provided a link to a legal opinion from IVGID’s legal counsel, Mr. Nelson, for this agenda item in response to a request from the Trustees.  If you support this effort, please send an email to the IVGID Trustees at info@ivgid.org encouraging them to adopt a Code of Conduct for Public Speakers at Board Meetings, or provide public comment in support of this code of conduct at the August 30 meeting .

 

link to Mr. Nelson’s legal opinion:  https://www.yourtahoeplace.com/uploads/pdf-ivgid/E.2._-_Reports_-_Regulating_Public_Comments.pdf

 

letter to the Trustees from the Invest in Incline Advocacy Network:

 

Dear IVGID Trustees,

Democracy depends on the active participation of its citizens.  We believe that as elected representatives of our community, one of your goals should be to do whatever you can to encourage, nurture and foster public involvement in IVGID affairs. One of the most obvious opportunities for public involvement in IVGID governance is the public comments section of regular Board of Trustee meetings.

 

We are sure you recognize that too many of the public comments are disrespectful or inappropriate. More often than not, this uncivil and inappropriate behavior comes from a relatively small number of our neighbors, and has occurred on a regular basis for many years. These personal attacks, slanders, and rude behavior have negative consequences, such as:

• • Making it unbearably unpleasant for people to attend meetings, therefore discouraging participation.
  • Undermining the morale of IVGID staff, resulting in more turnover, more challenging hiring, and defensive behavior.
  • Setting a negative tone for these meetings, and failing  to restrain this behavior makes it appear that the Trustees condone, and even endorse, these extreme departures from civil discourse.
  • Actively discouraging people from running for IVGID Trustee.

 

Does this habitual misbehavior at public comments have to be tolerated? Is there ANYTHING you can do as elected officials to improve this situation?

 

Nevada State Open Meeting Law requires that citizens be able to make public comments. But just like the 1st Amendment of our Constitution, there are reasonable limits. According to the Open Meeting Law Manual, from the NV Attorney General’s office, a public agency has the right to limit such comments:

(https://ag.nv.gov/uploadedFiles/agnvgov/Content/About/Governmental_Affairs/OML_Portal/omlmanual.pdf ),

“A public body’s restrictions must be neutral as to the viewpoint expressed, but the public body may prohibit comment if the content of the comments is a topic that is not relevant to, or within the authority of, the public body, or if the content of the comments is willfully disruptive of the meeting by being irrelevant, repetitious, slanderous, offensive, inflammatory, irrational or amounting to personal attacks or interfering with the rights of other speakers.”

 

We also recognize that in the past an IVGID Board and Chair were cautioned by the NV OAG for not allowing public comments from two residents who filed a complaint about being censored because the Chair felt that the comments were false.  (see OAG File # AG File No. 11-024 referenced in the attached Addendum B )

 

The right to make such false comments is clearly something that some commenters at IVGID Board meetings feel quite comfortable taking advantage of; and we have NO interest in asking for this right to be infringed upon.  There are a number of legal considerations and court opinions that address the ability of government officials to tackle  the issues around public comments during public meetings, and we have referenced several of these in the attached Addendum B.

 

In the past, the Board has adopted guidelines for public comments (see agendas from Feb 2017). The NV Attorney General admonished the IVGID Board in an Oct 17, 2017 action, for incorrectly stating that the Board’s legal counsel can cut off public comments. However, it did reinforce the fact that a Public Body may appropriately limit public comments.  “The interpretation and enforcement of rules during public meetings are highly discretionary functions. A Public Body may impose restrictions on public comments that are repetitious, irrelevant, or disruptive comments.”

https://ag.nv.gov/uploadedFiles/agnvgov/Content/About/Governmental_Affairs/OML_AGO_13897-224_and_226.pdf

 

It would therefore be prudent and necessary for the Board to get an opinion from legal counsel regarding the ability of the Board to safely navigate these waters.  Limiting comments would be challenging, and should be done with care. But you were elected to do hard things.

 

As an example of what might be possible, we’d suggest you create and approve an official “Code of Conduct” for public commenters. We’ve attached a sample of what might work below (Addendum A). Additionally, you may want to create a standard, repeatable process for determining when a commenter has violated the Code of Conduct, and the actions you will take when that happens. We’ve also attached a sample process below.

 

Again, as elected officials, part of your job is to encourage, nurture and foster public participation in governance. The existing behavior of some at board meetings is a hindrance to that goal. You could choose to do something about that. We encourage you to be bold; take action; make your board meetings better.

 

With a sincere desire to help make our community better,

Dr. Myles Riner

Jim Croley

 

Addendum A   Code of Conduct

 

Sample Code of Conduct for Public Comments at IVGID Board Meetings

1) Ensure your comments are an honest attempt to improve IVGID, whether it’s positive or negative feedback.

2) Be civil by refraining from comments which are:

a. Personal attacks: an abusive remark on or relating to somebody’s person or character instead of providing evidence when examining another person’s claims, comments, or behavior
b. Inflammatory: arousing or intending to arouse anger or violent feelings
c. Slandering: making a false spoken statement damaging to a person’s reputation
d. Offensive: causing someone to feel deeply hurt or abused.

3) Treat others with respect (due regard for the feelings, wishes, rights, or traditions of others).

4) You may not make comments on the competency of public employees.

a.  Treat others with respect (due regard for the feelings, wishes, rights, or traditions of others)

b. You may not make comments on the competency of public employees.

Sample Meeting  Process

Any Trustee, during an individual’s comments, can:

• • Ask the commenter to stop.
  • Ask the meeting secretary to stop the clock.
  • Request the chair to check on adherence to the Code of Conduct.
  • The Chair either accepts or denies the request.
  • If the Chair denies, the clock and commenter resume at once.
  • If the Chair accepts the request:
    A. The Chair asks the requesting Trustee to state their reasons for believing a breach of the Code of Conduct has occurred.
    B.  The Chair asks the other Trustees for their input.
    C.  When the Chair decides there has been enough discussion, the Chair asks the Trustees to vote for one of the following actions:

1. 1. 1. No action needed; the clock and commenter resume.
      2. Cancel the rest of the comenter’s time; the commenter is told they cannot finish and must return to their seat.
      3. Warn the commenter that if there is a subsequent breach their comment period will be canceled; the clock and commenter resume.

 

Addendum B     Findings and Opinions Related to Restrictions on Public Comments

1. 1.  The OML Manual says that:  “Moreover, government officials performing discretionary functions are entitled to qualified immunity where they reasonably believe their actions to be lawful. Id. (citing Saucier v. Katz, 533 U.S. 194, 202 (2001)). The interpretation and the enforcement of rules during public meetings are highly discretionary functions. Id. (citing White v. City of Norwalk, 900 F.2d 1421, 1426 (9th Cir.1990) (“[T]he point at which speech becomes unduly repetitious or largely irrelevant is not mathematically determinable. The role of a moderator involves a great deal of discretion.”))
   2. Additionally, the NV Attorney General’s office has ruled the following:  2001-22/AG File No. 00-047

https://ag.nv.gov/uploadedFiles/agnvgov/Content/About/Governmental_Affairs/OML_Portal/Opinions/omlo2001.pdf

 

Finally, a public body may place limitations on caustic personal attacks made by members of the public during the public comment period. “When a person does initially engage in protected First Amendment speech on matters of a public concern, they may not use this protection, in the guise of public concern, to also level personal attacks.” Smith v. Cleburne County Hospital, 870 F.2d 1375, 1383 (8th Cir. 1988); see Dunn v. Carroll, 40 F.3d 287, 293 (8th Cir. 1994). A rule against personal and slanderous remarks, like other rules of decorum, serves the important governmental interest of preventing disruptions to its meetings. Scroggins v. City of Topeka, 2 F. Supp. 2d 1362, 1373 (D. Kan. 1998). “Emotionally charged personal attacks could antagonize and even incite others and . . . a rule restricting such attacks is both a rational and reasonable means” for achieving a public body’s orderly, efficient, effective, and dignified meetings. Id.; see also Jones v. Heyman, 888 F.2d 1328 (11th Cir. 1989).

 

Accordingly, a restriction placed by a public body in Nevada that limits public comment to a particular purpose, i.e. subjects within the public body’s scope of authority, should be considered a legitimate viewpoint neutral restriction. Such a restriction should be considered legitimate because it reasonably serves to “preserve the limits” of an open meeting. For the same reason, a restriction that requires public comments to refrain from making personal attacks should be considered constitutionally sound.

 

With respect to whether a public body can limit public comment if the comment is disruptive, the Open Meeting Law provides that a willfully disruptive person may be removed from an open meeting. NRS 241.030(3)(b). Accordingly, it would be reasonable for a public body to restrict a person’s participation in a public comment period if that person’s comments are offensive, potentially inflammatory, irrational, or otherwise disruptive to maintain order in a public meeting. See Dunn v. Carroll, 40 F.3d 287 (8th Cir. 1994); Jones v. Heyman, 888 F.2d 1328 (11th Cir. 1989); Smith v. Cleburne County Hospital, 870 F.2d 1375 (8th Cir. 1988); Scroggins v. City of Topeka, 2 F. Supp. 2d 1362 (D. Kan. 1998).

1. 3.  Also, the NV Attorney General has ruled the following with regard to limiting public comments on the competence of public employees:  2001-07/AG File No. 01-005

https://ag.nv.gov/uploadedFiles/agnvgov/Content/About/Governmental_Affairs/OML_Portal/Opinions/omlo2001.pdf

A public body shall not hold a meeting to consider the character, alleged misconduct, professional competence, or physical or mental health of any person unless it has given written notice to that person of the time and place of the meeting. Except as otherwise provided in subsection 2, the written notice must be: (a) Delivered personally to that person at least 5 working days before the meeting; or (b) Sent by certified mail to the last known address of that person at least 21 working days before the meeting. A public body must receive proof of service of the notice required by this subsection before such a meeting may be held.

 

Thus, pursuant to NRS 241.033(1) you were correct in advising the Board of County Commissioners to terminate any discussion regarding the professional competence of a county employee. You represented that the requisite notice to the county employee had not been provided. Failure to provide the requisite notice (5 days via personal delivery or 21 working days via certified mail) precludes discussion on matters regarding the professional competence of an individual. To proceed with a discussion without proper notification would have resulted in a violation of the open meeting law. Moreover, there was no Agenda item description that delineated the professional competence of any county employee. Thus, in addition to the notice deficiencies listed above, the matter had not been agendized and any discussion in that regard would be inappropriate.