Change to Arden Hills public inquiry process prompts questions of freedom of speech

A recent condition placed on the public comment period at Arden Hills City Council meetings, prompted by a desire on the part of the city to protect itself during ongoing litigation, has led to questions about freedom of speech. 

Ramsey County sued the City of Arden Hills on May 10, following lengthy disputes over residential density and affordability at the proposed mixed-use Rice Creek Commons development in the city.

The county claims that the City of Arden Hills breached the contract of a joint development agreement by not making a good faith effort to resolve differences when planning for the 427-acre project. Rice Creek Commons would be located on county-owned land at the former Twin Cities Army Ammunition Plant site. The county and city were recently ordered into mediation.

In June, during the public comment portion of a city council meeting, Arden Hills resident and former council member Gregg Larson began questioning how much the city had spent on TCAAP-related legal expenses since Feb. 1. This spring, he had attended other council meetings to push for greater density and affordability at TCAAP, concerns he raised again in June.

Elected officials are not obligated to respond to issues raised during the public comment section, and council members did not respond to Larson when he first raised concerns over legal fees. He said the city sent him the relevant invoices in early July, after he submitted a formal data practices request through Arden Hills’ website.

The new restriction banning discussion of matters under litigation from public comment was first mentioned at the June 24 council meeting. Although the change did not appear in the written agenda posted to the city’s website, Mayor David Grant read the new guideline before opening the floor for public inquiries: “Matters of litigation involving the City shall not be discussed during Public Inquiry by citizens or Council.”

The new restriction has appeared on every written agenda and been read aloud by Grant at every meeting since, beginning on July 8. It joins other decorum-related guidelines, which set a time limit of three minutes and ban profanity and personal attacks during public comments.

While Larson said he doesn’t expect answers during public comment at meetings, he thinks the city is overstepping its bounds.

“[The city] doesn’t have to respond. If I were in their position, I wouldn’t respond either because litigation is currently underway,” Larson said in an interview. “At the same time, there’s no legal basis to say that they can’t listen.”

Because discussion of the change did not appear anywhere in city council or work session minutes from June, Larson returned to both the July 22 and Aug. 26 council meetings to ask about how and when the decision was made. 

 

On the record

Public comment sessions, while common, are not a required part of city council meetings, according to Stacie Christensen, director of the Data Practices Office at the Minnesota Department of Administration. 

Held at the discretion of each council, the ways in which comment periods are structured and the procedures for making changes to them can vary from city to city.

Minnesota’s Open Meeting Law makes it necessary for the public to be able to observe meetings of governmental bodies, but does not require that the public be able to speak at such meetings, said Christensen.

“The change itself in terms of limiting or eliminating the public comment period wouldn’t have any open meeting law implications,” she explained. “[The Open Meeting Law] says that public bodies have to have open meetings and if they’re going to close the meetings it has to be either legally required or permitted. It doesn’t get into what they discuss, or what the requirements around that are. 

“Generally, you would assume if some sort of policy or other decision is made, there would be some sort of record for it,” she said. “But the Open Meeting Law doesn’t have a requirement for minutes or any sort of record like that.”

Arden Hills City Administrator Dave Perrault said in an email that because of how closely related the new guideline is to the suit against the city, “On the advice of our attorneys, the City does not comment on matters of ongoing litigation, this includes the Public Inquiry portion of our agendas.”

On how the approval of the new change came about, he said only, “The authority over the agendas rests with the City Council, and they are approved at the start of each meeting.”

Grant did not return a request for comment.

In his nine years on the city council, from 1998 to 2006, Larson said he recalls making one alteration to the public inquiry guidelines. 

“That was discussed by the council at an open meeting, and we subsequently voted ‘yes’ or ‘no’ on it,” he said, although he doesn’t remember the exact nature of the change. 

Larson said he was told by city staff there would be nothing to prohibit him or other residents from contacting council members about litigation directly via email or phone calls. Still, he said, “I haven’t made the effort because I would rather be on the record.”

Anything residents bring up during council meetings becomes part of the public record, which means it could potentially be used in an ongoing lawsuit.  

 

Freedom of speech, issues of decorum

Although the restriction was in place at the July 22 meeting, Larson took the podium regardless to ask about the new guideline. 

“I noted you’ve adopted new language regarding public inquiry banning citizens from commenting on litigation, but there’s no mention in past council meetings or work sessions going back to May 13. Where’s the documentation for the change?” he asked. “Is it a coincidence that the change appeared after I received attorney invoices on July 5? Perhaps you or the city attorney don’t want me to publicly discuss litigation costs.”

He went on to liken the restriction to a gag order, banning speech before it can happen. “I find it amazing that you’re so lacking in self-confidence about your actions that you seek to clumsily muzzle citizens and control free speech,” he said.

Following that statement both Grant and council member Brenda Holden decided Larson’s comment had crossed the line into a personal attack on the council, and Grant called a five-minute recess. When the council returned from the recess, it moved on to the next agenda item.

According to Larson, a sheriff’s deputy present at the meeting pulled him aside and said it would best if he didn’t try to continue with his comments, which had at that point devolved into an argument with members of the council. 

According to Christensen, issues of decorum can sometimes factor into cities choosing to limit or, in some cases, do away with public comment portions entirely. Councils, like Arden Hills’, typically already set guidelines limiting profanity, personal attacks, allotted time and other matters. 

When Larson returned to the Aug. 26 meeting, he was allowed to speak uninterrupted on the city’s new policy. 

“As elected officials, you should be promoting broad transparency. You should be acting legally, and you should recognize that criticism of your actions — whether about litigation or any other matter — is a right of citizens, no matter how much you dislike it,” he told council members.

The next Arden Hills City Council meeting is scheduled for Monday, Sept. 23.

 

–Bridget Kranz can be reached at bkranz@lillienews.com or 651-748-7825.

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