By Stephanie Edwards
An ethics policy moving through the Council Rules Committee will make one more pass through the Committee before it makes its way on to the full Council.
The Council Rules Committee met September 5 to discuss the policy.
The committee is weighing a draft of a policy that borrows from several policies from cities across the country. City Attorney Brian Head compiled the draft based on the Committee’s previous discussion on August 16 meeting.
Committee members discussed various parts of the draft, including who would assign an investigator in the event of an investigation against a member of the Council, or the mayor.
Free speech among elected officials was a topic discussed at length. Councilmember Phyllis Edson referred to a section that discussed acts prohibited for Council members. “So, this prohibits us from talking about ballot initiatives that we put on the ballot,” she asked.
“It prohibits you from attempting to influence the vote on ballot issues,” City Attorney Brian Head said. “We’ve gone round and round on this issue, but the Charter says what the Charter says.” The newest Charter revision contains the same language as it did ten years ago, he said.
“So, if I’m sitting at a Chamber lunch and there is an election coming up, I cannot say ‘this is what I think of this ballot issue,’” Councilmember Edson asked.
The city attorney replied that Council members cannot attempt to influence the ballot. “You can educate all day long,” he said. “But you can’t say ‘and I urge you to vote in favor’ or ‘I urge you to vote against’ because then it becomes self-serving. The City is attempting to influence for its own purposes the ballot that it put on the election.”
Councilmember Edson pointed out that Council members are elected officials, and not paid employees. Head agreed that there was a distinction, but said that the “Charter does not draw that distinction.”
“There is no Supreme Court case that affirms one way or the other whether or not elected officials can speak,” he continued. He explained that the topic is “ripe for the Supreme Court” and that several lower courts have ruled different ways, but that no Missouri courts have given guidance on the matter. “That leaves me as the city attorney with ‘do I ask my councilmembers to follow what is in our Charter, or do I not?’”
He said that if there were any cases that had spoken on a case remotely close to the issue, he would not have the same opinion. “I do think that there is a very good argument that an elected official ought to be able to say what they think about a particular ballot issue, but that is not what our Charter says,” Head continued.
Councilmember Edson asked how the Charter does not then “fly in the face of the First Amendment.”
Head explained that the First Amendment was not an unlimited right, and that public employees often have limited First Amendment rights. Local governments, he explained, are traditionally nonpartisan bodies, and therefore are more restricted than partisan bodies, like some state and federal entities.
The Lee’s Summit City Council is a nonpartisan body, he said.
While he cannot ultimately say if the prohibition is valid or invalid, Head explained that the Charter does make it clear. “This is what my citizens said they wanted to have in their Charter. This is the prohibition they placed upon our speech.”
The Council Rules Committee will discuss the ethics policy further when it meets on October 3, 2017.