A Parkhill representative presented this slide at the recent town hall meeting. It purports to show the planned construction at ICISD if the May 4 2024 bond election passes. In reality, these plans are far from final. If you know the topography as I do, you can readily see that what's missing are the flood control structures. If the bond passes and citizens and the other local government entities (City of Mertzon and Irion County) sit on the sidelines to wait and see if the School Board and Superintendent do the right thing, the environmental consequences to public and private property at lower elevations could be catastrophic. The City of Mertzon needs to be careful to not too readily accept ICISD's mere promises to improve the flooding problems until such time as actual plans are presented and evaluated by the City's own engineer. This discreet approach to flood control as evidenced in this slide ought to be a call for sunlight.
Below is the City's agenda for the April 15, 2024 meeting, with my agenda analysis here and meeting analysis here. Access the meeting documents for this meeting here.
A. Agenda analysis:
The meeting is at 6:30 and conflicts with the 6:00 meeting of the school board.
Attacking the character of a board member, item 7: a. I have been unable to locate any public meeting agenda that currently uses this language. Irion County ISD and the City of Mertzon used identical language from at least 2019 - 2023. I suspect the language was shared because of the common practice of rotating city council and board member positions between the two governmental bodies. b. I began publicly questioning the legal sufficiency of the language in November 2020 after former ICISD Superintendent Ray DeSpain called me "out of order" when I said at their public forum during a school board meeting that his legacy would be that future superintendents would have to drive through floodwaters to get to the superintendent's office. c. The language remained on the ICISD agenda until August 2023, when new ICISD Superintendent Moore replaced the language with a reference to the requirements of school policy BED. The District's policy manual is largely driven by a statewide association, TASB. BED is divided into two parts, BED legal and BED local. Neither part includes a prohibition against attacking character. BED legal nicely frames the ultimate issue: commenters at public forums have a 1st Amendment right of free speech. d. The word "character" is defined by the Oxford Dictionary as "the mental and moral qualities distinctive to an individual". The word is not defined by the City of Mertzon, and it should be if they were to ever try to enforce it. The word and its very definition are exceptionally vague. The enforcement of a prohibition against attacking the character of an elected or public official might be challenged as an unconstitutional prior restraint upon public speech because "character" is so vague. e. If, and I am not certain this to be the case, the prohibition has its origins in tortious libel/slander of a public official, even this area of law doesn't support it. See Texas Civil Practices Code section 73.002(b)(1)(D), which appears to give public officials some protection during an open forum. In contrast, however, also see New York Times v. Sullivan, the landmark US Supreme Court case addressing a public official's right to sue for defamation. "Actual malice" would have to be proven by the public official, so a mere prohibition on attacking the character of a public official is of no real protection to the public official. The prohibition is meaningless in a libel/slander situation. f. The Texas legislature in 2019 expressly addressed open forum requirements at Texas Government Code section 551.007. At paragraph (e), the law provides, "A governmental body may not prohibit public criticism of the governmental body, including criticism of any act, omission, policy, procedure, program, or service." I think any prohibition on attacking character flies in the face of this language, though the degree of any violation is going to be determined by context. The City should weigh any language replacing its current prohibition with the entirety of section 551.007. g. I think the best practice is for the agenda to be silent on the issue, unless the governmental body has an attorney present at every open forum and can on the fly evaluate the conduct of the speaker and the content at the time of the speech. The risks for error on the part of the governmental body are too great, and the law is complex and always changing. Cities similar in size to Mertzon have no prohibition, nor does the City of San Angelo. Even state agencies, like TEA, are silent on what they consider to be prohibited speech. Frankly, the issue of shutting down speech during an open forum is a landmine. In all my years at the Texas Attorney General's Office advising state agencies on the fly during public meetings, I never had a single experience where it was necessary to prohibit or control speech during an open forum. h. I also think the best practice is to let the disgruntled citizen speak, then task a staffer with following up with that individual immediately to work with them to solve their complaint. Cooperation with citizens already bold enough to speak their minds in an open forum will likely yield a better result than trying to silence them in public. A governmental body should at all costs try to avoid the suppression of speech during open forum because, especially these days, citizens can so easily turn to the web on a website or anonymously on social media to express their views. Cooperation is a far better tool than suppression of speech. i. To date, Irion County ISD has refused to consider my request for an appeal or reconsideration of their former superintendent's 2020 determination that I was out of order during their open forum.
B. Meeting analysis:
First Amendment gets the win, but not without a debate. The Council voted 3-2 to delete the line in their agenda, "remarks that attack the character of employees or Council members are considered out of order". Council members Elliott, Lindley and Councilman voted for the removal and Council members Holland and Crutchfield voted against. Council member Elliott, who asked for the matter to be placed on the agenda, said "Somebody can come in here and take their 3 minutes and tell us we are all lazy and not doing our jobs, that's their right, as a citizen of this community. Directly criticizing government is how our Founding Fathers wanted it to be." When asked by Council member Holland how he would control the room without the language, Mayor Stewart replied that there is the 3 minute rule and "if they are impeding the meeting and just rambling on and exceeding their time and everything we would need to call law enforcement to have the person removed." When asked what the City's attorney (Jeff Betty) said about the language, Mayor Stewart replied, "Quite a few city councils have lost this battle before". Council member Holland raised the issue of how much speech is allowed and said "Everybody has a freedom to their speech, but there should be a cutting off spot." The discussion here moved toward the 3 minute time limit as a cutting off point. Mayor Stewart and Council member Councilman concurred with this, with Mayor Stewart accurately stating that time limits are permitted under the law. There was also some discussion and concurrence among the members that outright disruption and interference during open forum would not be tolerated. Mayor Stewart's position is that it is difficult to draw the boundary between free speech and disruption. I agree. When recognized to speak during the agenda item (citizens can be recognized to speak by the presiding officer) I stated that the sentence had curbed my speech because the meaning of "character" was too vague. Council member Holland pointed out that I limited my speech to my issue and that I do not make my comments personal. I appreciate that recognition, but I accomplish that in part by specifically controlling my speech prior to attending the meeting. All of my public comments are written in advance and carefully timed to be within 3 minutes. I believe in owning my public speech (anonymous social media cheapens democracy, in my opinion), so I have been particularly mindful of this prohibition given that Superintendent DeSpain used it against me back in 2020. I also praised former Mayor Taylor for not using the prohibition during his many years of service when I spoke while he presided. I attended 95+% of his meetings and spoke in open forum in most of those specifically opposing the City's position on City Gym. Not once did Mayor Taylor call me out of order. I also praised current ICISD Superintendent Moore for removing the prohibition from the school board agenda. All in all, it was an excellent debate about freedom of speech. Staff, the Mayor and several council members did their homework in advance to make the discussion meaningful and on point. The only surprise came in the form of the "no" vote to remove the prohibition from Council member Crutchfield, who never really engaged in the debate. As the member who recites the prayer for the Council at their meetings, a volunteer firefighter at the Irion County VFD and Troop Master of local Boy Scout Troop 116, I expected him to be more of a free speech advocate and willing to stir things up a bit. He did not. But at the end of the meeting at item 10 he requested that the matter of re-opening the temporarily closed Fleming Ave in front of my residence on the agenda for the next meeting. The City has temporarily closed a portion of the street, not at my request, to sort out the flooding remedies with ICISD and avoid damage to vehicles from potholes. There may be some flood politics going on here with Council Member Crutchfield, as I have indeed exercised my 1st Amendment rights both on this site and at Council meetings opposing his positions that allowed for the construction of City Gym. Flood politics are real, folks. There are consequences for opposing community flooding and speaking up. The next City Council agenda should be released on Friday, April 3rd, the day before the April 4 bond election that has promised $850,000 in drainage relief. The next regular meeting is on April 6, and by then the election results will be known. I may yet have another opportunity to write before the election about how the errors of the 2019 bond election and City Gym are visiting our community all over again in the 2024 bonds...and our elected leaders and citizens who are ok with flooding our neighbors' homes are faced with being responsible for also flooding our City Park if they vote against the 2024 bonds. It is a true irony, indeed. You can't make this stuff up. It is all the same water, we are all one community. That is what I said back in 2019.
Pending.
Copyright 2024 G. Noelke