In two actions this year, Cedar Park has taken steps that appear to be aimed at protecting the city’s interests. However, through the lens of government transparency and First Amendment rights to free speech, these actions are concerning.
First, passage of Proposition E in May’s election is a blow to government transparency. Council members are now prohibited from discussing items deemed protected by attorney-client privilege without a vote of two-thirds of the council.
Attorney-client privilege is one of the oldest principles in our legal system. However, it is intended to restrict the attorney, not the client. According to the U.S. Supreme Court, by assuring confidentiality, clients can make "full and frank" disclosures to their attorneys, who are then better able to provide candid advice and effective representation.
Cities discuss lots of things with attorneys, and they do it often. Everything from legal issues surrounding right-of-way for a new street to tax rebates and economic incentives for businesses can involve attorneys.
That the city, and the city council, seek legal advice is a good thing. Seeking to prohibit duly-elected representatives from communicating the business of the city government with their constituents is not. It flies in the face of the principles of government transparency.
Chip Stewart, an attorney who teaches First Amendment law at TCU, thinks it might even be unconstitutional.
“It’s certainly questionable,” Stewart said. “There’s really a significant public interest in allowing people to speak.”
Stewart said that he’s often seen city councils try to restrict council members from publicly discussing the work that goes on in executive session.
“Sometimes that’s done through a council rule that’s essentially a ‘gag order,’ and they’ll say nobody can talk about anything that’s happened in executive session,” said Stewart. “Those are pretty clearly unconstitutional.”
The restriction involving attorney-client privilege and putting the proposal before voters are “new twists” Stewart hasn’t seen before, so as far as he knows, they’re untested in court. Still, the idea of prohibiting a council member, an elected representative of the people, from discussing the business of the council is not in the public interest.
That brings us to last week’s Cedar Park City Council meeting.
With no fanfare and limited discussion, the council passed a set of rules to govern itself. Among those is a paragraph that states: “Members of the City Council shall confine their discussions concerning a motion or a question to the merits of a motion made and seconded or to a question already presented to them. Councilmembers shall show respect and courtesy to, and refrain from making disparaging comments about, fellow Councilmembers, the public, and City staff in the conduct of a City Council meeting, outside of Council meetings, in social settings, and on social media.”
Council Member Heather Jefts told us that the verbiage had been discussed for some time and the intent wasn’t to prohibit speech, but to ensure the council members conduct themselves “in a manner befitting the gravity of (their) positions.”
While we certainly agree that council members should conduct themselves with courtesy and professionalism (we don’t want council meetings looking like WWE matches, as has happened in some places) we do not believe this ordinance is the best way to do that.
Considered together, the combined effect of Proposition E and the new rules of procedure have a chilling effect on the free speech of council members, prohibiting a dissenting council member from discussing certain issues or sharing their personal views. They limit the public’s access to the business of their elected officials and their city government.
Council Member Jefts said, “Discourse and debate are crucial to our democracy, but there are respectful methods of disagreement, and there are counterproductive methods. I would like to move us to uphold higher standards for our conduct.”
We certainly agree with that sentiment. We just feel that the methods chosen go too far in limiting free speech.
Francine Romero, Dean of Public Policy at the University of Texas San Antonio, said, “There is a fine line with this proposal.”
TCU’s Stewart went even further, telling us, “There’s no chance that survives First Amendment scrutiny. That’s a strict ban on free speech, on dissenting speech, and it’s so broad it’s the kind of thing the founders were trying to avoid in this country by punishing dissenters because they speak out in opposition. The whole idea is repulsive to the First Amendment.”
City council members are the people’s representatives, not the city’s. If a council member — especially one in the minority on an issue — decides that his or her constituents’ interests are not being properly represented, or has a view that he or she wishes to share with constituents, the First Amendment guarantees that right.
We don’t take issue with the city’s attempts to protect itself and ensure decorum. We do take issue with the methods chosen to do so. There has to be a better way that doesn’t run afoul of the First Amendment.