Over at Watchdog today I write about a situation in Valley City where city officials prohibited a man from speaking to the city commission because of what he might say.
What local businessman Bob Drake wanted to tell city commissioners is that Valley City Police Chief Fred Thompson should be terminated immediately, instead of being allowed to retire in January, after he pulled his gun on a father playing with his children in his yard. He submitted a request to be placed on the commission’s agenda in advance, per city rules.
But city administrator David Schelkoph told me he determined that Drake was going to make new accusations against the chief (something Drake denies), and city attorney Russell Myhre determined that this would violate the chief’s “due process rights.
If a city government is going to terminate somebody for cause there is a specific process laid out in state law. Myhre asserts that allowing Drake, a private citizen, to speak would queer that process.
“Nobody is understanding what the real constitutional issue is here,” Myhre told Watchdog. “What Mr. Drake wants to do is the equivalent of standing up before the jury before trial has begun and make accusations. If that were in a jury trial it would be grounds for a mistrial. I don’t understand what the problem is.”
I spoke with Jack McDonald, an open meetings law expert and attorney for the North Dakota Newspaper Association, who disputed Myhre’s interpretation of the law.
“In my mind he’s way off base,” McDonald said. “He’s saying there is a right to be free from criticism or something, and there’s no constitutional right for that. It’s really a form of prior restraint. This is government disfavoring speech they didn’t approve of. There’s no constitutional right to be free from criticism. It happens all the time. Public officials get criticized all the time.”
McDonald disputed Myhre’s assertion that Drake’s comments could violate Thompson’s right to due process.
“There’s a system involved, due process involved, if the city is going to dismiss him,” McDonald said. “They have to set up a hearing and all that stuff. But this is just a city council meeting. You can go before a city council meeting and say anything you want.”
Myhre insisted to me that their blocking of Drake’s speech to the commission was lawful because the commission doesn’t have to let any member of the public speak. When I asked if there might be an equal protection issue if the city was picking and choosing who could speak based on the content of that speech, and Myhre laughed at me.
“I do not have to defend my position to you,” he said. “In fact, I would welcome a lawsuit to determine this because you know what, it’s going to lose.”
But McDonald said a recent Supreme Court ruling may indicate that the city crossed a line:
“They don’t have to put him on the agenda. That’s true,” McDonald said. He says citing the content of Drake’s speech as the reason for taking him off the agenda may not pass constitutional muster.
“That’s content-based, that’s what the constitution says. No, you can’t do that. There was a case early this year where one of the courts held that there was a municipal ordinance somewhere … they overturned a sign ordinance that was content based.” McDonald is referring to Reed v. The Town of Gilbert, in which the U.S. Supreme Court ruled the city couldn’t regulate signs differently based on what the signs said.
“That’s sort of what Valley City is doing. It’s content based,” McDonald said.