Mayor's poll broke the law, media lawyer says

August 26, 2009

The City Council violated the state’s open meetings law Tuesday when it decided to instruct the city clerk to verify signatures on a proposed ballot initiative, an attorney who specializes in First Amendment and media law said Wednesday.

Mayor Lionel Rivera polled council members after their meeting Tuesday on whether they wanted City Clerk Kathryn Young “to do an expedited verification of signatures” or “follow her normal verification process and have a special election in December,” according to an e-mail Rivera sent to council members at 7:42 p.m.

At issue were petitions with thousands of signatures that anti-tax crusader Douglas Bruce submitted after Young gave him an Aug. 3 deadline to place his proposed initiative on the November ballot. Bruce wants to ask voters to eliminate the stormwater fee immediately and other enterprise fees in phases.

Rivera’s e-mail indicated which council members supported an expedited verification and which ones opposed it.

“If I don’t hear differently from you, then this e-mail and a phone call from me will serve as direction to Kathy to proceed with (an) expedited verification,” Rivera said in the e-mail.

Rivera said Wednesday he didn’t think the council had broken the state open meetings law.

“This is not a decision to put something on the ballot and not have any public input,” Rivera added. “All this is is direction to count the ballots as quickly as possible.”

Rivera also said he got legal advice from City Attorney Patricia Kelly beforehand. adding she OK’d it.

But Steve Zansberg, who represents The Gazette in open government matters, said the council broke the law in three ways.

“First, the ‘poll’ taken by the mayor was what has been referred to as a ‘serial meeting’ of all members of the council, with the mayor, to discuss public business, thereby evading the open meeting’s law ‘quorum’ requirement,” he said in an e-mail.

Second, the council’s decision to instruct the city clerk to verify signatures “can only be done at a meeting that is open to the public,” he said. “Lastly, the mayor’s e-mail addressed simultaneously to all members of the council, discussing public business, is itself a ‘meeting’ of the City Council under the statute.”

Call the writer at 476-1623


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