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HomeMy WebLinkAbout20 - Policy A-6, Censuring, Use of SealCITY OF aEW Pp�T �� @= NEWPORT BEACH Cq�F00.N�P City Council Staff Report August 11, 2015 Agenda Item No. 20 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL PREPARED BY: PREPARED AT THE REQUEST OF COUNCIL MEMBER CURRY TITLE: City Council Consideration of a Waiver of Council Policy A -6 which, if Approved, will Allow the City Council to Consider a Resolution of the City Council of the City of Newport Beach Censuring Council Member Scott Peotter and Disapproving of Comments Made by Council Member Peotter Related to Same -Sex Marriage in a Manner which Appeared to be the Official Position of the City of Newport Beach and Allow the City Council to Consider Referring Council Member Peotter to the Office of the District Attorney for the Alleged Improper Use of the Official Seal of the City of Newport Beach ABSTRACT: Recently, City Council Member Scott Peotter circulated an email newsletter commenting on the United States Supreme Court's ruling on same -sex marriage. The email contained a picture of the City of Newport Beach's ( "City ") official seal and referenced that he was a City Council Member. At the Special Meeting on July 14, 2015, Council Member Curry requested that City staff place on the City Council Agenda an item so that the City Council could consider: (1) waiving Council Policy A -6; (2) adopting a Resolution disapproving comments made by Council Member Peotter related to same - sex marriage; and (3) referring Council Member Scott Peotter to the Office of the District Attorney for investigation /prosecution related to the alleged improper use of the official seal of the City. RECOMMENDATION: Consider waiving City Council Policy A -6 and, if waived: (1) consider adoption of a Resolution of the City Council of Newport Beach censuring Council Member Scott Peotter and disapproving comments made by Council Member Peotter related to same - sex marriage; and /or (2) consider referring Council Member Peotter to the Office of the District Attorney for investigation /prosecution related to the alleged improper use of the official seal of the City. 20 -1 If the City Council decides not to waive Council Policy A -6, the City Council should consider whether the City Council wishes to examine, at a future meeting of the City Council: (1) the adoption of a Resolution of the City Council censuring Council Member Peotter and disapproving comments made by Council Member Peotter related to same - sex marriage; and /or (2) the referral of Council Member Peotter to the Office of the District Attorney for investigation /prosecution related to the alleged improper use of the official seal of the City. FUNDING REQUIREMENTS: There is no fiscal impact. 17610111 *-9107. On July 6, 2015, Council Member Scott Peotter sent out an email commenting upon the United States Supreme Court's recent decision holding the United States Constitution guaranteed a right to same -sex marriage. The email expressing Council Member Peotter's personal views on the decision by the United States Supreme Court contained a picture of the official seal of the City and also referenced that he was a City Council Member. Attached hereto as Attachment 1 is a copy of the email. At the Special Meeting on July 14, 2015, Council Member Curry requested that City staff place on the City Council Agenda an item so that the City Council consider: (1) waiving Council Policy A -6; (2) adopting a Resolution disapproving comments made by Council Member Peotter related to same -sex marriage; and (3) referring Council Member Scott Peotter to the Office of the District Attorney for investigation /prosecution related to the alleged improper use of the official seal of the City. Council Policy A -6 Prior to the consideration of: (1) a Resolution disapproving comments made by Council Member Peotter related to same -sex marriage; and /or (2) referring Council Member Scott Peotter to the Office of the District Attorney for investigation /prosecution related to the alleged improper use of the official seal of the City, the City Council must consider waiving Council Policy A -6. Specifically, Council Policy A -6 provides that, prior to taking action on an item that a Council Member has requested be placed on the City Council Agenda, the City Council should first discuss the issue and, "if three (3) members of the City Council wish to examine the issue, staff will prepare an appropriate report and return the item to the City Council with greater detail for discussion and /or action." Hence, prior to considering adoption of the Resolution and /or referring Council Member Peotter to the Office of the District Attorney for investigation /prosecution, the City Council must first decide whether it wishes to waive Council Policy A -6. If the City Council wishes to waive Council Policy A -6, the City Council is authorized to take action this evening. If the City Council decides not to waive Council Policy A -6, the City Council should hold a discussion of whether three (3) members of the City Council wish to examine, at a future meeting of the City Council, the Resolution and /or the possible 20 -2 referral of City Council Member Peotter to the Office of the District Attorney. A copy of Council Policy A -6 is attached hereto as Attachment 2. Resolution Disapproving of Council Member Peotter's Comments A Resolution of the City Council of Newport Beach censuring Council Member Peotter and disapproving of comments made by Council Member Peotter related to same —sex marriage in a manner which appeared to be the official position of the City has been submitted by Council Member Curry for the City Council's consideration. A copy of the proposed Resolution is attached hereto as Attachment 3. Referral of Council Member Peotter to the Office of the District Attorney Council Member Curry also requested that the City Council consider referring Council Member Peotter to the Office of the District Attorney to investigate /prosecute Council Member Peotter for the improper use of the official seal of the City. Section 1. 16.050 of the Municipal Code, which governs the use of the official seal of the City, provides, in pertinent part, that: No person shall use or allow to be used the official seal of the City of Newport Beach, or any cut, facsimile, or reproduction of said seal, or make or use any design which is an imitation of said seal or of the design thereof, or which may be mistaken for the seal of this City or the design thereof, for malicious or commercial purposes, or for any purpose other than for City purposes or for the purposes of any officer, board or department thereof, without the express consent of the City Council of the City of Newport Beach. ENVIRONMENTAL REVIEW: Environmental review The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Description Attachment A - Council Member Peotter's July 6, 2015 Email Attachment B - City Council Policy A -6 Attachment C - Proposed Resolution Censuring Council Member Peotter and Disapproving Comments Made by Council Member Peotter (Submitted by Council Member Curry) Attachment D - Correspondence from Public 20 -3 ATTACHMENT A Click here i \r NEWpO 7 t, Al U � FORN�� The Art in the Park Part Deux The second batch of 10 art pieces are on the agenda for approval for the Civic Center Park The Supremes 4 ilimplimplaw lip, 9=1 know, The Supreme Court (that would be 5 out of 9 guys in black robes) decided 10 days ago to overturn 5,000 years of Judeo-Christian tradition, by redefining and allowing gay marriage. All of a sudden, a lot of the "important stuff" of the city didn't seem so important. I like how the White House is really quick on the "important" stuff like this rainbow lighting. I do find it interesting that the homosexual movement adopted the rainbow as their symbol, as it was God's symbol that he wouldn't destroy the world by flood again.... Maybe they are "wishful City Hall 100 Civic Center Drive Newport Beach I CA 192660 City Website 20 -5 thinking..." Art in the Park Part Deux 10 new pieces of "ART" were approved last meeting. The budget for this was ($120k) was approved by the last council in the 2014 budget and the Arts Commission recommended certain pieces. See all 10 (click here). The good news is that the Arts Commission is trying to raise private funding for Fire Rings Are LEGAL! The Coastal Commission approved the City's layout June 11th Stay Connected Like me on FacebookIl Scott's Cell: 949 - 250 -7118 mil send your email address by ten mxsege: PEOTTER W io q.,.uned. TEXT "Peotter" to 22828 to sign up for the mailing list KM- Fire I e the next phase (at least 50 %). Fire Pits Saga Finally Over? Some put the cost of this entire fiasco at nearly $1 M. That is how much money the city has spent since they decided to get rid of all the beach fire rings in 2012. The history is long and if you want to read that click here). The Council approved plan can be found (click here) The bottom line is that the previous council tried to get rid of all the beach fire rings and when the California Coastal Commission wouldn't let them, 20 -7 the AQMD got into the act and after more than 3 years (and the nearly $1 M) the rings are back and 40 of them can burn wood the other 24, we are required to burn Charcoal. Please feel free to email me atscott(a-)-taxfig hter. com Snail Mail is OK too: 2618 San Miguel Drive, Suite 535 Newport Beach, CA 92660 Thanks for helping. M-1 ATTACHMENT B OPEN MEETING POLICIES PURPOSE W. The Newport Beach City Council and certain Boards, Commissions and Committees are required to comply with the Ralph M. Brown Act (Brown Act). The Brown Act requires public entities to deliberate and take action, in open session. The City Council has adopted these rules to ensure compliance with the Brown Act and to promote full citizen participation in the discussions and decisions of their elected and appointed representatives. POLICY A. Regular Meetings. The City Council shall hold regular meetings on the second and fourth Tuesdays of each month except in December and August when there shall be at least one regular meeting held on the second Tuesday. The meetings shall be held in a location allowed by the Charter. The regular meeting shall begin at 4:00 p.m., or as otherwise scheduled due to the demand of business, for Study Session, Closed Session to follow immediately thereafter, recess after Closed Session, and reconvene at 7:00 p.m. or as otherwise scheduled due to the demand of business. The December meeting of even - numbered years shall begin at 4:00 p.m., or as otherwise scheduled due to the demand of business, without reconvening at 7:00 p.m. The City Council may hold a regular meeting, special meeting, or adjourned regular or special meeting at another location within the City, or locations outside the jurisdiction of the City provided appropriate notice is given pursuant to, and the location of the meeting is consistent with, the Brown Act. When the day for any regular meeting falls on a legal holiday, no meeting shall be held on such holiday, but a regular meeting shall be held at the same hours on the following business day. B. All regular, special and adjourned meetings of the City Council, Boards, Commissions, and Committees created by the Charter or formal action of the City Council and which have continuing subject matter jurisdiction shall be called, noticed and conducted in compliance with the Brown Act. C. Regular City Council Meeting Agenda. 1. Staff shall provide the City Clerk with the title and recommendation of all items to be placed on a regular Council meeting agenda no later than 5:00 p.m. two Fridays before the next regular City Council meeting. The City Clerk shall prepare the regular meeting agenda of all such matters under the direction of the City Manager. This agenda shall be provided to the City Council Members on the Thursday preceding the Tuesday Council meeting to which it pertains. 1 Kffi W. The agenda and staff reports will be available for the public and media in the Office of the City Clerk and shall be posted on the City's public website no later than 3:30 p.m. on the Friday preceding the meeting. 2. The regular meeting agenda shall contain a brief description of each item of business to be transacted or discussed and a statement that members of the public may offer testimony as to any matter on the agenda and may speak on non - agenda items during the public comment section of the agenda. The agenda shall be posted on the City's website, as well as at the entrance to the City Council Chambers, at least 72 hours before each regular meeting, and the City Clerk shall maintain records of the name of the person posting the agenda, and the date and time of posting. 3. A member of the City Council may place an item(s) on the City Council agenda for discussion by submitting a title or topic sufficient to satisfy the requirements of the Brown Act on or before 5:00 p.m. on the Tuesday preceding the meeting at which the item is to be discussed. When requested, the City Attorney shall assist a City Council Member with the drafting of an agenda title or topic to ensure consistency with the Brown Act. These items will appear under the section of the agenda titled, "Matters which Council Members have asked to be placed on a Future Agenda." At the Council meeting, if three (3) members of the City Council wish to examine the issue, staff will prepare an appropriate report and return the item to the City Council with greater detail for discussion and /or action. Additionally, the City Manager may place an item(s) on the agenda in the course of operating the City. The Closed Session agenda shall be prepared by the City Attorney. The closed session agenda shall strictly conform to the format specified in the Brown Act. The City Attorney shall prepare a written report, or give an oral report, of any action taken in closed session that is required to be reported in open session by the Brown Act. COUNCIL CORRESPONDENCE The City Clerk is authorized to open and examine all mail or other written communications addressed to the City Council and to immediately give a copy to the City Manager. The City Manager shall give immediate attention to administrative business referred to in the communication that does not require Council action and may be promptly concluded or shall prepare a staff report for the next available Council meeting. Except as otherwise permitted by law, all mail or written communications from the public /residents /applicants shall be submitted to the City Council by 5:00 p.m. on the Monday immediately prior to the meeting at which the City Council will consider the item that is the subject of the mail or written 2 20 -10 W. communications to allow time for the City Council to adequately consider the mail or written communications. ORDER OF BUSINESS The agenda for regular meetings of the City Council shall contain the following items in the order listed: Study Session Current Business • Clarification of Items on the Consent Calendar • Presentations (will be placed on the Regular Meeting agenda if no Study Session is scheduled) • Study Session Items Public Comments, including public comments about items on the Closed Session agenda. Closed Session - After Study Session - Council Chambers Conference Room Recess Reconvene at 7:00 p.m. for Regular Meeting Roll Call Closed Session Report Pledge of Allegiance Invocation Notice to the Public City Council Announcements (non- discussion item) Matters which Council Members have asked to be placed on a Future Agenda Public Comments on Consent Calendar 9 20 -11 W. Consent Calendar: A. Reading of Minutes/ Ordinances and Resolutions B. Ordinances for Introduction C. Ordinances for Adoption D. Resolutions for Adoption E. Contracts and Agreements F. Miscellaneous (for example: Planning Commission Agendas, budget amendments, and permit applications) Items Removed from the Consent Calendar Public Comments on Non - Agenda Items Oral Reports from City Council on Committee Activities Public Hearings Continued Business Current Business Motions for Reconsideration Continued Closed Session, if necessary (report if applicable) Adjournment The Mayor shall have the discretion to change the order of business. Council Members may change the order of business by majority vote of the City Council. PREPARATION OF MINUTES The City Clerk shall have the exclusive responsibility for preparation of the minutes, and any directions for changes in the minutes shall be made only by majority action of the City Council. READING OF MINUTES Unless the reading of the minutes of a Council meeting is ordered by a majority vote of the Council, such minutes may be approved without reading if the City Clerk previously furnished each Council Member and the public binder and website with a copy. 0 20 -12 ►. Adopted - November 13,1967 Amended - March 28,1994 Amended - June 13,1977 Amended - June 27,1994 Amended - October 25,1977 Amended - December 12,1994 Amended - February 9,1981 Amended - February 26,1996 Amended - December 9,1996 Amended - May 26,1998 Amended - November 8,1999 (eff.1 /1/2000) Amended - March 14, 2000 Amended - February 27, 2001 Amended - March 27, 2001 Amended - August 28, 2001 Amended - January 27, 2004 Amended - March 9, 2004 Amended - March 28, 2006 Amended - February 26, 2008 Amended - October 27, 2009 Amended - December 6, 2010 Amended - February 22, 2011 Amended - November 27, 2012 Amended - January 8, 2013 Amended - May 14, 2013 Amended - June 9, 2015 20 -13 ATTACHMENT C RESOLUTION NO. 2015- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, CENSURING COUNCIL MEMBER SCOTT PEOTTER AND DISAPPROVING OF COMMENTS MADE BY COUNCIL MEMBER SCOTT PEOTTER, THAT WERE CRITICAL OF SAME -SEX MARRIAGE, IN A MANNER WHICH APPEARED TO BE THE OFFICIAL POSITION OF THE CITY OF NEWPORT BEACH BASED, IN PART, ON COUNCIL MEMBER SCOTT PEOTTER'S IMPROPER USE OF THE CITY SEAL AND REQUESTING HIS RESIGNATION IF HE IS UNWILLING OR UNABLE TO ABIDE BY HIS OATH OF OFFICE WHEREAS, on November 4, 2014, Council Member Scott Peotter was duly elected to the Newport Beach City Council and was seated as a member of the City Council, after taking the oath of office, during a ceremony conducted on December 9, 2014; WHEREAS, in taking the oath of office, Council Member Scott Peotter, like every member of the City Council, swore to uphold the Constitution of the United States and the Constitution of the State of California; WHEREAS, on July 6, 2015, Council Member Scott Peotter sent an email newsletter which was critical of the United States Supreme Court's recent decision holding the United States Constitution guaranteed a right to same -sex marriage ( "email "); WHEREAS, Municipal Code section 1.16.050 prohibits the use of the official seal of the City of Newport Beach ( "City ") for malicious purposes and limits the use of the seal to official City purposes; WHEREAS, the email contained a picture of the official seal of the City and referenced that Council Member Scott Peotter was a City Council Member giving the appearance that the email was an official communication from the City; WHEREAS, in response to the email, City staff and other Council Members received inquiries from members of the public as well as local, regional, national and international print and broadcast media asking whether the City's official position on same -sex marriage was reflected in the email; WHEREAS, to address the concerns raised by the public, media and citizens of the City, on July 14, 2015, the City Council held a Special Meeting of the City Council ( "Special Meeting ") to consider adoption of a Resolution re- affirming the City Council's support for a diverse and inclusive community, and a Council Policy relating to Council Members' expression of the official position or policy of the City; 20 -14 Resolution No. 2015 - Page 2 of 4 WHEREAS, at the Special Meeting, the City Council received testimony from the public including, but not limited to, citizens of the City as well as members/ representatives of the Lesbian, Gay, Bisexual, and Transgender ( "LGBT ") community who testified that the email caused them confusion as to whether the comments made in the email reflected the official position of the City or if the comments were Council Member Scott Peotter's personal views; WHEREAS, at the conclusion of the Special Meeting, the City Council adopted Resolution No. 2015 -63 Relating to City Council Members' Expression of an Official City Position or Policy and Affirming the City of Newport Beach's Support for Diversity, Equality and Inclusiveness; WHEREAS, the City Council recognizes that Council Member Scott Peotter has a right under the First Amendment to the United States Constitution to express his personal opinions; however, his use of a picture of the official seal of the City and identification of himself as a City Councilman confused the public, media and members /representatives of the LGBT community, bringing embarrassment to the City; and WHEREAS, Councilmember Scott Peotter's comments made under color of authority by using the official seal of the City, may be construed as creating a "hostile work place" at the City for people of LGBT sexual orientations or in same -sex marriages, potentially creating additional employer liability and financial exposure to taxpayers due to his comments. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach as follows: Section 1: FINDINGS The City Council hereby finds as follows: A. Municipal Code section 1.16.050 prohibits the use of the official City seal for malicious purposes and limits the use of said seal to City purposes. B. Council Member Scott Peotter's use of a picture of the official seal of the City and his reference to his status as a Council Member in an email newsletter that was critical of the United States Supreme Court's decision holding that the United States Constitution guaranteed a right to same -sex marriage violated the spirit of the law governing the use of the official seal of the City and was possibly a crime. C. Council Member Scott Peotter's improper use of the official seal of the City has created confusion as to the official policy of the City and has caused 20 -15 Resolution No. 2015 - Page 3 of 4 embarrassment to the City on a local, national and international level, potentially impacting tourism and commerce in the City. D. Council Member Scott Peotter's comments could be viewed as demonstrating a bias against LGBT and those in a same -sex marriage and may be construed as creating a hostile work environment at the City for LGBT employees and those in a same -sex marriage. E. The Members of this City Council are obligated by law to perform their duties consistent with the Federal and State Constitution and statutes and are committed to abide by their oath of office in the performance of all official duties. F. The Members of this City Council and this community must have confidence that all Members will consistently perform their official duties without regard to the faith, race, creed, nationality, gender, age, disability, religion, ethnicity, marital status or sexual orientation of any person, as required by the Federal and State Constitution as well as Federal and State statutes. Section 2: ACTIONS Based on the findings contained in Section 1, the City Council takes the following actions: A. The City Council, and each of the Members voting to approve this Resolution, apologize for the remarks of Council Member Scott Peotter to all persons who construed those remarks as evidence that he would consider sexual orientation or marital status in the performance of his official duties, or as evidence of a prejudice or bias against people who are in a same -sex marriage or have an LGBT sexual orientation, and to any employees affected by Council Member Scott Peotter's remarks. B. The City Council, and each of the Members voting to approve this Resolution, disapprove of Council Member Scott Peotter's remarks regarding same -sex marriage to the extent those remarks evidence any intent or desire by Council Member Scott Peotter to take into consideration the marital status or sexual orientation of any person in the performance of his official duties and /or evidence an intolerance or prejudice against persons based on sexual orientation or marital status. C. The Members of the City Council voting to approve this Resolution believe Council Member Scott Peotter should tender his resignation, for the good of the City, if he is unable or unwilling to commit to performing his official duties without regard to the faith, race, creed, nationality, gender, age, 20 -16 Resolution No. 2015 - Page 4 of 4 disability, religion, ethnicity, marital status or sexual orientation of any person who works or lives in the City or visits the City. Section 3: This action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(3) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3 because the activity is not a project as defined in Section 15378 and has no potential for resulting in physical change to the environment, directly or indirectly. Section 4: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. ADOPTED this day of August, 2015. Edward D. Selich Mayor ATTEST: Leilani Brown City Clerk 20 -17 ATTACHMENT D r1 I—i- "\�I1 /EV Law Offices of Craig A Alexander 24681 La Plaza, Suite 250 2015 JUL 23 ,AM 9:23 Dana Point, CA 92629 ice: 949 - 481 -6400 Facsimile: 949-242-2545:­** E -mail: cpalexander@a,cox.net FLi VIA ELECTRONIC MAIL AND U.S. MAIL July 20, 2015 Mayor Edward Selich and Honorable Members of the City Council 100 Civic Center Drive Newport Beach, CA 92660 RE: The City of Newport Beach's new Prior Restraint "Rule" and the Proposed Censure of City Councilman Scott Peotter Dear Mayor Selich and Honorable Members of the City Council, 1 address this letter to you as a concerned citizen, not as legal counsel for anyone involved in this matter. It would appear the City of Newport Beach City Council is on its way down the road of censorship and government mandated speech, or in this case, prohibited speech. There is absolutely no question that the statements made on Councilman Peotter's private e-mail, using his private e-mail account, on his own time, involved the critical right of Freedom of Speech. It was what the Courts call Religious Speech and Ideological Speech which are types of speech entitled to protection under the 1n Amendment of the U.S. Constitution. I have reviewed the new "rule' your council passed at the hastily called City Council meeting of July 14, 2015. It is vague and full of ambiguity - the very type of thing that invites subjective judgments about what is "proper' communications and "proper subject matter" under the council's policy. Something that likely violates a Council person's First Amendment rights under the Constitution. Having also read the e-mail Mr. Peotter sent out I can find no reason to censure him - his only expression was his own opinion on a controversial issue. It simply expressed his sincerely held religious and free speech protected beliefs that the recent decision by the U.S. Supreme Court regarding homosexual marriage was wrongly decided. It should be remembered by the Council that only a few years ago a majority of voters in California voted to restrict marriage to between a man and a woman. It was a single Federal Court judge that overturned millions of California voter's Yes votes on Proposition 8. Also, the vast majority of states in the United States passed laws either via their legislatures or directly via voter initiatives, some with passage rates of over 70 %. It was 20 -18 only in the last two years that Federal Court judges overturned millions of Americans votes for traditional marriage. Many of those voters live, work and vote in the City of Newport Beach. 1 suspect most of those voters have not changed their opinions about marriage, any more than people's opinions on the abortion issue were changed by the Roe v. Wade decision. The legal citations of Matthew McReynolds of the Pacific Justice Institute' in his letter of July 14, 2015 are entirely accurate. Mr. McReynolds' cited the case of American Family Association v. City and County of San Francisco 277 F.3d 1114 (91h Cir. 2002). It would be helpful if the City Council noted that the Court stated in that decision: We agree with the host of other circuits that recognize that public officials may criticize practices that they would have no constitutional ability to regulate, so long as there is no actual or threatened imposition ofgovernment power or sanction. [Emphasis added]. Am. Family Assn, Inc. v. City & Cnty. of San Francisco, 277 F.3d 1114, 1125 (9th Cir. 2002) Here the City seeks to impose restrictions upon a City Council persons' ability to give his or her own opinions not only about matters before the City but other matters not before the City which are of public interest. The California Supreme Court in Gerwin Farming, Inc. v. Lyons, issued rulings on Constitutional Free Speech protections that are instructive here: In terms, the First Amendment's free speech clause prohibits the legislative branch of the government of the United States from making any "law ... abridging the freedom of speech, or of the press." (U.S. Const., 1 st Amend.) In effect, it also bars the executive and judicial branches from taking any action with similar consequence. (New York Times Co. v. United States (1971) 403 U.S. 713, 715 -717, 91 S.Ct. 2140, 29 L.Ed.2d 822 (cone. opn. of Black, J.); see Hudgens v. NLRB (1976) 424 U.S. 507, 513, 96 S.Ct. 1029, 47 L.Ed.2d 196 [stating that "[i]t is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee ... against abridgment by government," including the "federal" "government," and not merely its legislative branch].) Initially, the First Amendment's free speech clause constrained only the United States and its government. (See Barron v. Baltimore (1833) 32 U.S. (7 Pet.) 243, 247 -250, 8 L.Ed. 672.) Today, through the Fourteenth Amendment's due process clause, it also constrains the several states and their governments. (E.g., McIntyre v. Ohio Elections Comm'n (1995) 514 U.S. 334, 336, fn. 1, 115 S.Ct. 1511, 131 ' I note the irony that Brad Dacus, President of the Pacific Justice Institute, has been an invited speaker at [he Orange Coast Christian Outreach Week (Iutp:Houtreachweek.orJabouln, an event organized for many years by a N.B. City Councilman's spouse. 20 -19 L.Ed.2d 426; City ofLadue v. Gilleo (1994) 512 U.S. 43, 45, fn. 1, 114 S.Ct. 2038, 129 L.Ed.2d 36; Near v. Minnesota (1931) 283 U.S. 697, 707, 51 S.Ct. 625, 75 L.Ed. 1357; ** *482 Gitlow v. People of State of New York (1925) 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138; see Hudgens v. NLRB, supra, 424 U.S. at p. 513, 96 S.Ct. 1029 [stating that "[ilt is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee ... against abridgment by government," including "state" "government," and not merely its legislative branch].) Gerawan Farming, Inc. v. Lyons, 24 Cal. 4th 468, 484, 12 P.3d 720, 730 (2000) As 1 noted above, Mr. Peotter's statements were both political speech and ideological speech entitled to 1st Amendment protections. The Court in Gerawan found: By contrast, "political speech" is speech that deals with " `governmental affairs "' (First National Bank of Boston v. Bellotti, supra, 435 U.S. at p. 777, 98 S.Ct. 1407), and "ideological speech" (Schad v. Mount Ephraim (1981) 452 U.S. 61, 65, 101 S.Ct. 2176, 68 L.Ed.2d 671) is speech that apparently concerns itself with "philosophical," "social," "artistic," "economic," "literary," "ethical," and similar matters (Abood v. Detroit Board of Education, supra, 431 U.S. at p. 231, 97 S.Ct. 1782 [considering the First Amendment's right to "freedom" of "association," which is evidently embraced by its right to freedom of speech] ). The First Amendment's right to freedom of speech protects political speech. (Schad v. Mount Ephraim, supra, 452 U.S. at p. 65, 101 S.Ct. 2176.) It likewise protects ideological speech. (Ibid.) Gerawan Farming, Inc. v. Lyons, 24 Cal. 4th 468, 486 -87, 12 P.3d 720, 732 (2000) Thus the City is walking on some rather thin ice Constitutionally speaking with its new policy that appears to force an independently elected City Councilman / woman to obtain approval prior to making a statement on matters that are before the Council and not before the Council. Does the City of Newport Beach really need more litigation costs from this hastily adopted and poorly written new "policy" or "rule" restraining Councilmember's speech? Does the City of Newport Beach wish to be known as the San Francisco of Southern California? Our country has a robust tradition of allowing all persons to exercise free speech on many, many topics - including political, ideological, religious, moral and a vast number of other subjects. This includes speech that is not "popular" or put into today's terminology, is not "Politically Correct." A person who is elected to a City Council does not trade away his First Amendment rights of Freedom of Speech just by being elected to office. Only the Brown Act restricts speech in very limited closed session circumstances. 20 -20 I offer you these quotes about Freedom of Speech and Religion from famous Americans: To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker. Frederick Douglass Freedom of speech means freedom for those who you despise, and freedom to express the most despicable views. It also means that the government cannot pick and choose which expressions to authorize and which to prevent. Professor Alan Dershowitz In justice, too, to our excellent Constitution, it ought to be observed, that it has not placed our religious rights under the power of any public functionary. Thomas Jefferson 1 consider the government of the U.S. as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. Thomas Jefferson, letter to Samuel Miller To those who cite the First Amendment as reason for excluding God from more and more of our institutions and everyday life, may I just say: The First Amendment of the Constitution was not written to protect the people of this country from religious values; it was written to protect religious values from government tyranny. Ronald Reagan, Address to Alabama State Legislature The City of Newport Beach should rescind its very suspect "rule" about a City Council person obtaining prior authority for one of its duly elected members from making a statement. It is the voters at an election who pass judgment on a council member's speech, not each other. Finally this censure motion you will be considering looks like nothing more than political "gotcha" from a majority of the Council. It is no secret that Mr. Peotter and some of the other council members ran on a reform platform. Some of the remaining councilpersons have been the subject of criticism by Mr. Peotter and other newly elected City Councilpersons on the subject of budgeting, the new City Hall cost over runs, staffing, fire rings and other matters. Thus this censure motion looks like nothing more than political payback. The entire Council should raise above these shoddy tactics of "gotcha" and focus on the problems facing the City of Newport Beach. That is what the voters of your city expect of you and deserve from you. You should also consider that instituting these types of policies to try and restrain others on the council (1 doubt you will obtain that desired affect) may "feel good" but political winds blow back and forth all the time. You may find yourself at the short end of a vote on the Council with these same "rules" and standards being applied about something you 20 -21 speak out about. That action against those who vote for this "rule" and a censure will be no less wrong for the very reasons I cite above. However, if you leave these poorly drafted, vague, and ambiguous rules in place and give into the temptation to make some small (I would argue very, very small) political points by censuring Mr. Peotter, you not only demean your office and yourself, but you set yourself up for future problems with a future counsel majority - where you are the minority. 1 urge you to rescind this new "rule" or "policy" of July 14, 2015 that is likely an unconstitutional prior restraint on speech and to vote no on this foolish political censure motion against Councilman Peotter. Thank you for considering my views on this subject Very truly yours, 4� Craig P. Alexander 20 -22