Did SF City Council Chair Michelle Erpenbach violate city ordinance?

Since the December 18 council meeting, in which Erpenbach limited public testimony to 20 minutes for the snowgate advocates, I have been researching Roberts Rules, city ordinances, statutes, 1st Amendment rights and censorship. While some of my findings are not definitive, especially when it comes to public input,  some things do stand out. From all accounts city ordinance is very clear about the 5 minute testimonial rule, but is the council required to follow it?

You be the judge.

*Your feedback on this post will be essential in what I decide will be the next steps in preventing the council and mayor from limiting public testimony.

ADOPTION OF RULES

It is important to note that the current city council has never had an adoption of rules of order. In other words the parliamentary procedures they follow are standing rules of the past. Chapter 30.012 of city charter outlines this;

30.012 RULES OF ORDER.

Robert’s Rules of Order Newly Revised (latest edition) shall govern the proceedings of the council in all cases, unless they are in conflict with this subchapter.

LIMITING DEBATE of PEERS

There has been much talk about whether the council chair can limit the number of questions other councilors can ask during a public meeting. According to Roberts Rules she cannot unless by a two-thirds vote of the entire body;

The chairman cannot close debate unless by order of the assembly, which requires a two-thirds vote; nor can he prevent the making of legitimate motions by hurrying through the proceedings. If members are reasonably prompt in exercising their right to speak or make motions, the chair cannot prevent their doing so. If he has hurriedly taken and announced a vote while a member is rising to address the chair, the vote is null and void, and the member must be recognized. On the other hand the chairman should not permit the object of a meeting to be defeated by a few factious persons using parliamentary forms with the evident object of obstructing business. In such a case he should refuse to entertain the dilatory or frivolous motion, and, if an appeal is taken, he should entertain it, and, if sustained by a large majority he may afterwards refuse to entertain even an appeal made by the faction when evidently made merely to obstruct business. But the chair should never adopt such a course merely to expedite business, when the opposition is not factious. It is only justifiable when it is perfectly clear that the opposition is trying to obstruct business. [See Dilatory Motions, 40].

STATUTES

There are no real statutes in Roberts Rules for public testimony;

Some issues, such as budget approval or ordinance changes, require public hearings, according to statutes. But for regular, open meetings, municipalities are left to their own devices to make the meeting rules.

Rules can be good, Dreps said. They can keep meetings moving so everyone can get home before midnight. They can prevent municipal employees from getting dragged through the mud when they’re not there to defend themselves.

But public officials shouldn’t hide behind rules for convenience’s sake, he said.

“What can you say?” Dreps said. “Democracy is messy.”

Basically each governing body can determine their own set of rules, which the city council has done in their ordinances. According to Chapter 30.015 of city charter;

30.015 ADDRESSING THE COUNCIL; TIME LIMIT.

(a) During the public input portion at the start of a city council meeting, no person shall be permitted to speak on a topic that appears later in that meeting’s agenda if public input will be received when that agenda item is up for discussion.

(b) No person shall address the city council without first securing the permission of the mayor, or acting mayor, to do so.

(c) Each person addressing the city council shall step up to the microphone in front of the rail, shall give his or her name in an audible tone of voice for the record, and unless further time is granted by the city council, shall be limited to five minutes.

(d) All remarks shall be addressed to the city council as a body and not to any member thereof.

(e) No person, other than the city council and the person having the floor, shall be permitted to enter into any discussion, either directly or through a member of the city council without the permission of the mayor or acting mayor.

(f) No question shall be asked of a city council member except through the mayor or acting mayor.

(g) No person, except city council members, shall address the council after a motion is made and seconded unless requested by a city council member.

(1992 Code, § 2-16) (Ord. 50-95, passed 3-20-1995; Ord. 52-11, passed 7-11-2011; Ord. 24-12, passed 4-2-2012)

So, since the current city council has never had their own adoption of rules, wouldn’t this mean they should be following current city charter?

And according to the current city charter each person can only be limited to a 5 minute time period, unless they are being disruptive. So when Council Chair Erpenbach ‘concocted’ a new set of time restraints for public input before that input started, did she violate city ordinance?

Love to hear the city attorney weigh in on this one, and he just might get an opportunity to do so.

14 comments ↓

#1 pathloss on 01.04.13 at 5:53 pm

UrpBucket needs an ethics complaint. Where do I sign? Something nobody has thought of is due process. They voted to have a citizens vote in 2014. They agreed to an election and not at the soonest date is a violation of the state civil procedures act. I’m very disappointed with Entenmsn. Unconstitutional support for Huether’s tyranny is grounds forhim to lose his franchise as americas motorcycle dealer.

#2 scott on 01.04.13 at 7:15 pm

If I read this right, a person is limited to 5 minutes but the public input in general can not be limited to 20 minutes. Is this correct?

#3 GregN on 01.05.13 at 9:50 am

It seems to me there are two main issues:
1. There is no ordinance that allows the 20 minute limit (in other words essentially 4 speakers x 5 minutes). The only limitation is 5 minutes per speaker. I’m not sure the body given that language has the power to adopt a time limit rule, even if enforced on everyone equally. But I’m no lawyer. If they had to change city ordinance, I’d definitely oppose that.
2. Council Erpenbach on several occasions has closed debate essentially at informational meetings (and at regular meetings via rules the Mayor decides to follow). I can point to several examples where she limited the number of questions or decided ‘enough’ time on a subject had been spent, etc. When she hasn’t flat out closed debate, she’s hurried and bullied those she disagrees with (typically Councilor Staggers). I can’t think of examples where he was deliberately trying to obstruct or change the subject. He simply wanted to ask tough questions.
Whether this is illegal per city charter/ordinance I can’t answer. It seems it may be. But in any event, I find it unacceptable and childish. Its simply done by a leadership who really can’t handle any opposing viewpoints. They have the numbers so they’re going to get whatever they want. What they shouldn’t be able to do is close down debate as well as prevent another councilor or a citizen to point out weaknesses of their argument.
I’m actually in favor of unlimited public input on a subject (with the 5 minute per speaker caveat unless extra time is granted) as long as the testimony from speakers is relatively new and different. What’s the hurry? Since this leadership took over there seems to be an all fire hurry to get out of these meetings.

I think this issue should be elevated and I’d be opposed to an arbitrary time limit imposed on public input, even if equally balanced. The problem is deeper than unequal time limits. Its about an attitude and action of a leadership who really can’t stand opposing viewpoints. That’s the biggest issue.

My last point – isn’t it convenient that the Mayor says he has no power to do anything about this and that he simply must follow the directives of the council leadership? Isn’t the Mayor the chair of the regular meeting? Am I supposed to believe he has no power to overrule some directive he gets by email from leadership the day of the meeting? Seems to me whenever its politically convenient he claims to be powerless so he can appear to not be a party to these things, but in actuality he must be all for it. Its not like council leadership and the Mayor ever differ on anything. Just saying.

#4 Detroit Lewis on 01.05.13 at 11:28 am

I have often wondered if Michelle has a bladder control problem, and if she gets up to go to the bathroom she might miss something (that she cannot control). Actually, the mayor shouldn’t be running the meetings. Erpenbach and the city clerk should be running them. He shouldn’t even be sitting up there.

#5 Detroit Lewis on 01.05.13 at 11:59 am

Greg, thanks for your comments. I am working on a serious plan right now, that I really cannot discuss on the site.

#6 GregN on 01.05.13 at 10:37 pm

That’s pretty funny you mention the bladder control thing. I was thinking it but I didn’t say it. Many a time I’ve been at a meeting that ran a little long and she was always the one who asked for a recess to use the potty :)

#7 Detroit Lewis on 01.06.13 at 11:26 pm

Then just go! Right?! She is so afraid she is not going to be in control. Like Kermit is going to propose a constitutional amendment while she is backed up on the porcelain Carnegie? She needs to get a grip.

#8 Testor15 on 01.07.13 at 7:13 am

As I have watched the meetings she has made me uncomfortable with her squirming and strange facial expressions. Thanks L3wis, I know now why. She is trying to let SubPrime know she needs to find her porcelain throne.

#9 Detroit Lewis on 01.07.13 at 11:50 am

In the AL today, Egguliar defended the practice because it has been ‘done in the past’. I don’t give two shits about the past. The ordinance is clear, 5 minutes per person. If you don’t like it, talk to the charter revision commission and have it changed.

#10 Detroit Lewis on 01.07.13 at 11:52 am

Then she says that sometimes these things need to be limited because of ‘redundancy’. Let’s talk redundancy Sue, like how you continue to make up rules, that is beginning to get redundant.

#11 anominous on 01.07.13 at 5:27 pm

The mayor should do like Michael Bloomberg and ban the sale of Big Gulps to the city councilors. Or at least make a simple rule that the councilors may not bring in enormous cups of soda to suck down during the meetings, instead of taking out their issues with bladder control on the innocent folks of Sioux Falls who have come to speak at the meetings.

#12 Testor15 on 01.07.13 at 8:22 pm

If Michele is afraid of Kermit and can’t leave the chamber, she better wear Depends.

#13 pathloss on 01.08.13 at 9:49 am

Should public comment be longer? ‘Depends’

#14 pathloss on 01.08.13 at 9:54 am

Why do we bother with councilors? Home Rule gives the mayor all the power. Do I want to be mayor? No, I want to be the developer who buys the mayor. Richer faster without treason. You’ll get immunity for testifying against the mayor regarding public funds fraud.

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