Analysis: Bloomington city councilmember demands decorum, but what about First Amendment?
The mayor and the city council of Bloomington make up an all-Democrat group of elected officials, who are approaching the one-year mark in their four-year terms.
They were all sworn into office on Jan. 1, 2024.
Despite their all-Democrat makeup, a certain rift has evolved between some members of the city council and Kerry Thomson’s mayoral administration.
It’s a rift that was evident in the recent stand-off over an appointment to the city’s historic preservation commission. It was a conflict that was initially invisible to the public.
However, completely visible to the public from the start was an accusation by councilmember Matt Flaherty, against deputy mayor Gretchen Knapp, that her remarks during a city council meeting breached the council’s rules of decorum that are ensconced in Robert’s Rules.
Knapp’s remarks were given during the council’s Oct. 30 meeting. At that meeting, Flaherty gave an immediate impromptu objection, saying that Knapp’s comments were out of order, for questioning the motives of a councilmember—his own and those of Kate Rosenbarger.
There’s more to the complete context, which involved the salaries of planning and transportation department employees. But the part of Knapp’s remarks that drew Flaherty’s criticism included a reference to Beth Rosenbarger, the former assistant director of the planning department.
Knapp said: “And I’m sorry that I have to point out for the benefit of the public, that one reason perhaps why Councilmember Rosenbarger is so interested in this department is that her sister was the former assistant director until a few months ago, and that person was also Councilmember Flaherty’s wife.”
At the council’s Nov. 6 meeting, Flaherty followed up with prepared remarks about Knapp’s Oct. 30 comments and concluded by saying, “If this does happen a second time, I think we as a body should not only call the behavior to order, but also consider appropriate penalties, as outlined in Robert’s Rules.”
The B Square has consulted with two experts—the first a professor who teaches constitutional law, and the second a registered parliamentarian who serves full-time in that capacity for a state house of representatives.
Based on the input from those experts, the idea that Robert’s Rules of Order could be used as a way to regulate the speech of anyone at a council meeting—other than councilmembers themselves—appears to be unanchored in any legal authority.
To raise the specter of disciplining the deputy mayor, Flaherty is relying crucially on the idea that anyone who speaks at a council meeting, not just a councilmember, is subject to the requirements of decorum as they are laid out in Robert’s Rules.
On Nov. 6, Flaherty put it like this “Generally, these rules do also apply to participants, other than council members, speaking during our meetings, and perhaps especially so when the administration is using public comment to functionally engage in debate on the merits of legislation, as the deputy mayor was last week.”
Extending Robert’s Rules to rank-and-file public: Bloomington custom
As a part of local law, Bloomington’s city council long ago adopted Robert’s Rules as a default to cover any meeting procedural issues that are not covered elsewhere in the city code. Here’s how it reads:
2.04.080 – Parliamentary authority.
All meetings of the council and its committees shall be conducted in accordance with the procedures set forth in “Robert’s Rules of Order” except where a different procedure is required by state law, this chapter, or other ordinances of the city. A majority of the members of the council shall decide all matters of procedure not covered by the authorities stated in this section.
Bloomington’s city council has not typically adhered to Robert’s Rules in a strict way.
For example, the custom for speech by the council president would, under Robert’s Rules if strictly applied, never include the pronoun “I”.
Robert’s Rules, which uses sexist pronouns throughout, puts it like this: “The presiding officer speaks of himself only in the third person—that is, he never uses the personal pronoun ‘I.’ In actual parliamentary proceedings he always refers to himself as ‘the chair’—as in, ‘The chair rules that…’”
There are also prohibitions in Robert’s Rules that say members should not address each other directly, but rather only in the third person, through the presiding officer. There is also a requirement that says: “The officers of the society should always be referred to by their official titles.” That means, it’s not enough to call the council president ‘Councilmember So-and-So’. The council president has to be called “Council President So-and-So”.
The Bloomington city council has historically required that members of the public also adhere to formality when speaking from the public mic. That includes an insistence on referring to councilmembers by their titles, and not by their first names.
Here’s an exchange from April 8, 2021, when Steve Volan and Jim Sims were serving on the city council—Sims as president. It was Alex Goodlad’s turn to speak. His reference to “Susan” is to Susan Sandberg, who served on the council at the time:
Jim Sims: Hi, Alex Goodlad. You have about five minutes, sir.
Alex Goodlad: OK, so I want to respond to, I guess, Susan’s rebuttal. And I guess, Sims’s addendum, or Jim’s addendum to the rebuttal…
Steve Volan: Mr. President, I’d ask that members of the public address council members by Councilmember Sandberg or Councilmember Sims. Thank you.
Alex Goodlad: Why is that?
Matt Flaherty: Mr. President?
Jim Sims: Yes, sir. Mr. or, Councilmember Flaherty?
Matt Flaherty: Sure. In answer to Mr. Goodlad’s question, the idea is a principle in Robert’s Rules that to maintain decorum and civility within legislative bodies themselves, as well as members of the public, to have a degree of formality and make sure that we are addressing ideas and arguments and not personalities and people.
Jim Sims: Thank you, Councilmember Flaherty, and thank you, Councilmember Volan. Mr. Goodlad, you can proceed. I did stop the clock. So you have approximately 4 minutes and 20 seconds, if you need it.
Extending Robert’s Rules to rank-and-file public: First Amendment
Flaherty’s objection to the deputy mayor’s remarks on Oct. 30 was not anything as superficial as her use of the wrong form of address. Instead, Flaherty objected to remarks that he analyzed as questioning the motives of a councilmember.
Flaherty’s justification for extending Robert’s Rules—from members of the council to the deputy mayor—looks like it would encompass members of the public as well: “Generally, these rules do also apply to participants, other than council members, speaking during our meetings…”
Could Robert’s Rules be used to prevent a member of the public from questioning a city councilmember’s motives from the public mic? The B Square asked Steve Sanders, a professor of law at Indiana University, for his perspective on that question. Sanders teaches courses on constitutional law.
Sanders wrote in an email: “[M]embers of the public do have First Amendment rights that can’t be overridden by Robert’s Rules.” Sanders continues, “The council is not required under the First Amendment to make time and space for public comments at its meetings. But having done so, it creates what the law calls a ‘limited public forum.’”
Sanders indicated that in a “limited public forum,” the city council could regulate the subject matter of speech—for example, by requiring the comments to pertain to city business.
But Sanders wrote that “[The council] cannot limit or regulate the viewpoints that are expressed. It can ask for decorum in a general way and suggest that people refrain from personal attacks, but it can’t punish someone for the viewpoints they express.”
Sanders added, “Thus, if a member of the public…impugns a council member’s motives regarding some matter of city business, then as long as it’s not legally defamatory, it’s protected by the First Amendment.”
Also asked by The B Square for comment on the issue was C.J. Cavin, who is president of the American College of Parliamentary Lawyers, and serves as the full-time parliamentarian for Oklahoma’s house of representatives.
For members of the public who are allowed to speak at a city council meeting, Cavin also looked immediately to the First Amendment as the controlling authority. Reached by phone, Cavin said, “Because it’s a public body, they’ve also got First Amendment considerations that are obviously going to supersede what Robert’s [Rules] says.”
Extending Robert’s Rules to a member of the mayor’s administration
The Oct. 30, 2024 speaking turns for Knapp and Flaherty went like this:
Gretchen Knapp: I have the utmost respect for every single person in the planning department, and I would anticipate that as we go through that process, there are other opportunities, but not just for them. And I do take issue with that Councilmember Rosenberger zeroed in on one department. You know, there were other departments who also had serious requests, and I appreciate that not every employee may have had what they feel is the right opportunity to talk with their supervisor and be included in this salary ordinance. That is not the end of the process. And I’m sorry that I have to point out for the benefit of the public, that one reason perhaps why Council Rosenbarger is so interested in this department is that her sister was the former assistant director until a few months ago, and that person was also Councilmember Flaherty’s wife. So obviously you have deep connections to planning. You know how hard the struggle has been for them. You’re invested in their outcomes. I understand that, but I do think the public needs to be aware that that might be a reason for the extra attention and concern for this department over all the others.
Matt Flaherty: Point of order. Actually speculating about the motivations of other people and the rationale in their positions is not appropriate. It is out of order. I also resent that assertion. I lost a lot of respect for the deputy mayor just now. Unfortunately.
According to IU law professor Steven Sanders, when speaking in her capacity as the deputy mayor, Knapp is not automatically afforded the same kind of First Amendment protection that a member of the public is.
Sanders put it like this: “If the deputy major was addressing the council in her capacity as deputy mayor (i.e., speaking officially for the administration), rather than as a member of the public, then she likely would not have a First Amendment right in this context.”
Sanders added “When public employees like the deputy mayor speak pursuant to their official responsibilities, their speech is not protected by the First Amendment.”
But Sanders wondered what authority Flaherty was drawing on with his assertion that “Generally, [Robert’s Rules] do also apply to participants, other than council members, speaking during our meetings,…”
At the Nov. 6 meeting, Flaherty quoted extensively from a section of Robert’s Rules on meting out discipline, and read aloud the title, which is “Discipline of Members and Guests.”
On its face, the title alone seems like the full text of the section might include some clear indication that rules of decorum can be extended from members to guests. But the section makes a clear distinction between members and nonmembers, by describing separately some infractions by members and appropriate punishments, and infractions and punishments for nonmembers.
The punishable infractions by nonmembers seem to be limited to “annoyance” and “disruption” of the assembly.
Flaherty did not respond to an emailed B Square question asking for the legal authority on which he based his claim that Robert’s Rules of decorum in speaking extend to nonmembers.
Asked about the idea of extending Robert’s Rules to the deputy mayor, C.J. Cavin, full-time certified parliamentarian, who is also an attorney, first stressed to The B Square that he was not giving legal advice.
Cavin appeared to agree with Sanders that if the deputy mayor was speaking on behalf of her employer, then her speech could be restricted.
But Cavin indicated some skepticism about whether Robert’s Rules could be the mechanism for restricting the deputy mayor’s speech at a city council meeting.
Cavin mulled the idea that for the “limited public forum” that the council established in allowing the public to speak, it might be possible to restrict that time just to the public and not to people speaking in their official capacity as members of the administration.
In fact, on Oct. 30, council president Isabel Piedmont-Smith at first declined to allow Knapp to speak, because Knapp had risen to take a turn during public comment time. Piedmont-Smith reasoned that the administration had enjoyed adequate time, during the time for questions from the council, to present its position on the amendment to the salary ordinance.
But Piedmont-Smith relented when it was pointed out to her that Knapp herself had not been asked a question on the specific item.
Cavin indicated one way to regulate the speech of department heads and the deputy mayor would not be through the city council’s meeting rules, but rather through employee policies.
In 2020, the city of Bloomington’s personnel manual, which at that point had last been revised in 2014, appears to regulate speech in just one place. It’s in the context of reasons for immediate discharge, which include: “Immoral or indecent conduct or use of abusive language while on the job;”
Even though she was “on the job” at the time, Knapp’s remarks about Rosenbarger and Flaherty’s former connection to the planning and transportation department don’t appear to qualify as “abusive language.”
