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PROTOCOLS FOR FREE SPEECH: A fully informed public & the consent of the governed

NEWS! My attorneys' letter to Philadelphia City Council on their Sunshine Act violations (March 13, 2024).

See below: The Sun Isn't Shining On Philadelphia City Council, But It Could!

In a functioning democracy, the public must be allowed to speak on and hear all aspects of any issue, in order for our elected representatives to lay claim to the "informed consent" of the governed. That is not happening in many parts of the United States, and certainly not in the City of Philadelphia. In blatant violation of the Pennsylvania Sunshine Act, the public is explicitly censored from making public comments about their concerns at public government meetings by being restricted to "agenda items only". Those public meetings include city council, its committees, as well as city departments, commissions, and agencies. In addition, many city council committees and city departments do NOT hold regularly scheduled public meetings, also in violation of The Sunshine Act. Meanwhile, we do not have a free or fair press.  Our press is overwhelmingly privately-owned and routinely censors the news, as social media often suspends and bans users with whom they disagree. We have is systemic censorship... and it needs to end.  Which is why we must fight every day for our basic human rights to free speech, a fair press, and a representative government.

See Federal Sunshine Act:

SUGGESTED PROTOCOLS FOR GOVERNMENT PUBLIC MEETINGS:  Why are public meetings so important? Because this is the public’s "Public Square", it's their opportunity to address their political representatives, as well as the public, with their concerns and possible solutions, as most public meetings are televised and published online, so their audience can be quite large.




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The Sun Isn't Shining On Philadelphia City Council, But It Could!

(Below is a slightly edited email Lynn Landes sent to a staffer in City Council President's Kenyatta Johnson's office with whom she was directed by Johnson to work with. She was told that no other parties were going to be included in these discussions. As a result, none of the Rules of City Council were changed, as City Council remains in violation of the Pennsylvania Sunshine Act.  Although Johnson said that he would abide by the 3-minute rule, that's not stated in the Rules of Philadelphia City Council. According to the staffer, the Law Department made the final decision on the matters presented below.)

From: Lynn Landes [mailto:lynnlandes@gmail.com]
Sent: Friday, December 08, 2023 3:08 PM
Subject: follow-up to our discussion re: Sunshine Act compliance and City Council meeting improvements

Hi (blank):  Thank you again for your call. It was very much appreciated. Certainly, the list we discussed regarding City Council meetings included both legal and technical issues, big and small. I understand the position that other government bodies may do things the same way Philly does, but City Council has an opportunity to be a national model for free speech and Sunshine Act compliance, and that would be inspiring.  I would also like to bring others into this conversation, particularly those who have legal expertise on the subject of the Sunshine Act, such as the ACLU of PA and attorney George Bochetto, if they are willing to be involved. Frankly, I don’t expect the Law Department to suggest any changes, as they endorsed the current rules (see below). In addition, I assume that before any substantive changes are considered, City Council will schedule at least one public hearing on this subject (in compliance with the Sunshine Act), so that other individuals and groups could weigh in on these issues.  As a follow-up to our discussion yesterday, I wanted to add more details to the items we discussed, which are listed below in yellow, with the understanding that this is a work-in-progress:

1.   End restrictions on public comments at city council meeting and committee meetings to “agenda items only”, which is a violation of the Sunshine Act, also recognizing that under the Sunshine Act, public comments shall be on issues pertaining to governance.

·     In response to (your) comment that people are free to privately contact and speak with City Council members and their staff - that type of private free speech is different from public comments, which is free speech exercised in an official public forum in order to influence both public officials and the public.

·     In response to (your) comment that city council will be overwhelmed by those who wish to publicly comment, that does not give a government body the right to restrict free speech. Accommodation must be found. It is an issue addressed by the PA Sunshine Act, below in blue highlight. In addition, groups could be asked to designate representatives to speak for the group, as is current practice. Plus, other options to mitigate a crowded schedule could be investigated. That said, there should also be a review of how city council is managing its time. For instance, there has been a lot of criticism about council meetings that routinely start 40 minutes late, as well as the considerable amount of time spent honoring groups and individuals, which also cuts into time for public comments.

Details: Restrictions Public Comments To “Agenda Items Only”:

The following is the 2010 City Solicitor Shelley Smith memorandum on the Draft Rules which gave the “green light” to the Sunshine Act violation regarding restrictions to “agenda items only”- http://www.protocolsfordemocracy.org/Solicitor's%20Opinion%20re%20Rules%20Amd%20Public%20Comment,%20FINAL%20Signed%20by%20Shelley....pdf

Rules of Philadelphia City Council  “At each meeting of Council, opportunity shall be provided for residents and taxpayers to comment on bills and resolutions that are listed either on the final passage calendar or the second reading/final passage calendar for that meeting of Council. No comment shall be received with respect to any bill or resolution on the suspension calendar.” 

The result of this rule has been an institutional and systematic censorship of public comments on vital government issues of the day that relate directly to the public interest in a timely manner.  This Rule is also in stark opposition to the Pennsylvania Sunshine Act § 710.1Public participation. (a)  General rule.--Except as provided in subsection (d), the board or council of a political subdivision or of an authority created by a political subdivision shall provide a reasonable opportunity at each advertised regular meeting and advertised special meeting for residents of the political subdivision or of the authority created by a political subdivision or for taxpayers of the political subdivision or of the authority created by a political subdivision or for both to comment on MATTERS OF CONCERN, official action OR deliberation which are OR may be before the board or council prior to taking official action. The board or council has the option to accept all public comment at the beginning of the meeting. If the board or council determines that there is not sufficient time at a meeting for residents of the political subdivision or of the authority created by a political subdivision or for taxpayers of the political subdivision or of the authority created by a political subdivision or for both to comment, the board or council may defer the comment period to the next regular meeting or to a special meeting occurring in advance of the next regular meeting.

Please note that I am making no argument against restrictions to public comments for the following reasons:  1) non-government related topics, 2) during ‘special hearings’ to discuss a specific subjects, bills, or resolutions, and 3) designated times during a regularly scheduled public meeting to discuss specific subjects, bills, or resolutions.

According to a Philadelphia Magazine article and a federal lawsuit, for 60 years Philadelphia City Council did not allow public comments at city council meetings, but instead directed public comments to committees. As the result of a 2010 federal lawsuit (Alekseev v City Council of Philadelphia), that practice ended, but another unfortunate practice was adopted – restricting public comments to “agenda items only”, Rules of Council Section XVI, Sec. 1.  When a member of the public signs up to speak, they are instructed to list the bill or resolution they are speaking on, and whether they support or oppose it. This essential restricts public comments to subjects City Council pre-approves.

In a Dec. 1, 2010 memorandum about these Rules when they were in draft form, City Solicitor Shelley Smith advised then City Council President Anna Verna, “While Council’s authority to restrict comment only to matters potentially up for a vote at that meeting is not entirely free from doubt, I believe the Sunshine Act permits doing so.” The PA Sunshine Act Sec 710.1, states the public is permitted to “…comment on matters of concern, official action or deliberation which are or may be before the…council prior to taking official action.  One would think that the meaning is clear; that the public is free to bring up any issue that comes under the purview of the government.  However, Smith disagreed. Smith focused on the end of the sentence, and not the sentence in its entirety.  Smith wrote, “Thus, although the words “are or may be before the … council” can be read expansively to allow a broad range of commentary by its plain terms, the Act limits required comments to topics upon which Council is actually taking “official action”, i.e., voting upon, at that session.”  However, the Sunshine clearly does not impose that restriction. It says, “which are or may be before the …council”.  Under Smith’s interpretation, city council could censor or prevent any public comment, as long as there is no bill or resolution pending. 

And in 2010, City Council did just that. They restricted public comment to “agenda items only”.  As a result, a second lawsuit (Duff v City Council of Philadelphia) was filed in 2014, but it eventually failed in 2015.  The main reason given for its failure, according to the court, was that the plaintiff was never stopped from speaking on the topics that concerned him. In fact, the plaintiff had been coached to ‘play the game’, in other words, to sign up to support a bill or resolution, and then he could speak on whatever government-related issue he desired.  Specifically, the Court wrote, “The Council’s legal advisor suggested that he choose an agenda item, and then attempt to segue into another topic, not on the agenda, during the time allotted for him to speak. Plaintiff followed this advice and was permitted to speak and express his view.”  That advice from City Council’s own legal advisor indicates that the Council’s restriction is problematic and does not rest on strong legal grounds. 

It should also be noted that the Court stated in Duff v City Council, “The City’s position is supported by case law; for example, in Alekseev v. City Council of City of Philadelphia, the Commonwealth Court held that: “Limiting public comment to the subject of the proposed legislation under consideration by the committee is patently reasonable and in no way violates the Act.”   However, that case was reversed by the Court of Common Pleas, which did not address that issue in its reversal. Plus, the use of the word “committee”, makes it less meaningful to Council’s Rules for City Council meetings, and more likely meant to apply to special hearings to do with specific issues.

All that said, this issue has advanced.  On April 13, 2023, President Darrell Clarke did stop me from completing my public comments about the ongoing COVID mandates, so I have been “injured”.   I and others have been ‘playing the game’, for the most part, although I did notice that some people were allowed to speak without publicly supporting a bill or resolution. Before the COVID pandemic, I was making a variety of comments before City Council, and I began again attending City Council meetings when they started meeting in person in September of 2022.  I was never stopped before April 13th, plus I have never before witnessed Clarke ever completely stop anyone from speaking, although it is possible that it happened. 

Vince Feldman, President of the PA Chapter of Children’s Health Defense, and I had previously been interrupted by President Clarke during our public comments when we criticized the city’s ongoing COVID mandates. KYW news even wrote an article about it, criticizing myself and Vince Feldman (without naming him or our organizations) for spreading “misinformation”, and admonished President Clarke for allowing us to speak.  Then last week, when I again addressed the issue of the city’s ongoing COVID mandates, President Clark forced me to stop speaking and cut off the microphone (see video and article). Criticizing the city’s ongoing COVID mandates seems to have been the deciding factor in interrupting Vince Feldman and myself, as well as in finally stopping me from speaking last week.

On April 20, 2023 I signed up to speak per usual, but deliberately struck a line through the section where I was to fill-in which bill or resolution I was commenting on and whether I supported or opposed it.  I decided not to ‘play the game’ any longer, so that President Clarke could not accuse me of misrepresenting my intentions of what subject I was going to comment on. He never called on me. That appears to constitute a second “injury”, in that Pres. Clarke made it clear that we can only speak on subjects that he and City Council have approved. 

In summary, restricting discussion to “agenda times only” is blatant censorship, plus has had a “chilling effect” on free speech, in general, with regards to important government functions, not only at City Council meetings, but also at committee meetings.

2.   Provide the public with a complete agenda of city council meetings and ending the practice of adding agenda items at the beginning of a meeting that are not emergencies or unforeseen occurrences.

3.   End the practice of voting on agenda items that were added at that same meeting, but do not constitute emergencies. Per our conversation, even if the item being voted on is only a resolution, the public has the right to publicly comment in an informed manner, as with any other matter before city council to be voted on. Voting on agenda items that were only verbally introduced at the beginning of the meeting, does not give the public time to be adequately informed on the matter in order to make informed public comments.

4.   Institute regularly scheduled monthly committee meetings, so that the public can make public comments on those specific subject areas. City Council committees should serve the public’s interests, not just city council’s agenda. Monthly committee meetings is not an unreasonable request. For example, civic associations routinely hold regularly scheduled monthly meetings of the main organization, as well as separate monthly meetings for their various committees.

5.   Ask public commenters to provide contact information when they sign up to speak, so that councilmembers can respond to their concerns. The online form provides for contact information, but not the sign-up sheet in the hallway. You (Vincent) said that it’s an easy fix, which sounds good.

6.   Give full 3 minutes for public comments.  Regarding current practice, it is unreasonable, if not unfair, to tell public commenters at the last minute, right before they are due to speak, that they only have 2 minutes to speak, not the 3 minutes that was advertised, which means that they must edit their comments by 30%.  Per our conversation, perhaps most people only need a couple of minutes to speak, but it appears that the law supports 3 minutes.  When there is a large number of speakers, public commenters could be asked to keep their comments to 2 minutes, but also informed that they are allowed to take the full 3.

7.   Request that the city clerk and public commenters speak clearly and slowly. Many of us cannot understand what is being said because people are not speaking clearly into the mic. The request to speak clearly could be made in two places: the online directions and at the top of the sign-up sheet.

8.   Improve the acoustics in City Council. Many of us cannot hear what is being said due to the horrible acoustics. The room needs sound absorbent materials which could be applied to the wall panels and other locations. Cost should not be that great, but even if it were, it’s the price we pay for democracy, free speech, and the ability to hear what others are saying.

9.   ...Require that councilmembers be present during public comments. It’s the polite and respectful things to do for those who have made the effort to attend city council meetings in person and make public comments. This advice could have been expressed more delicately, but the sentiment remains the same. Often times, when public comment begins, certain members of city council take that opportunity to leave the room. It’s not in the spirit or intent of the Sunshine Act.

10.  Start the meetings on time. Punctuality saves time and sets a good example for others to follow in their daily lives. One can understand the occasional emergency, but city council meetings routinely start 40 minutes late, which wastes everyone’s time and discourages public participation.

11.  Public commenters should be allowed to submit their “public comments” for City Council meetings in writing prior to the meeting, which would then be published in the minutes of the meeting. (I did not see this option offered in the online information, but perhaps I missed it.)

Thank you for your attention to this matter.

Lynn Landes, Founder
217 S. Jessup Street
Philadelphia, PA 19107