Robert Wingo, the Surprise city attorney, introduced the measure at the end of a busy, 90-minute city council meeting on Sept. 17. At issue was the proposed repeal of a small segment of the city policies and procedures manual. There was no formal presentation or discussion. "I would ask a motion be made and a vote be taken without delay," Wingo said, and it was. The council unanimously approved the repeal and quickly moved on to other business.
Nearly a month earlier, though, that same rule had led to a controversy that generated national attention. While speaking during the public comment portion of the council's Aug. 20 meeting, Surprise resident Rebekah Massie had been arrested at the direction of Mayor Skip Hall. Massie had been criticizing a proposed pay raise for Wingo. Hall claimed her comments had violated the city's rule on not lodging "charges or complaints" against any city employee while speaking to the council.
Massie's arrest — which occurred after a spirited argument about whether that rule violates the First Amendment's guarantee of free speech — generated national outrage. Massie filed a free speech lawsuit with the help of the Foundation for Individual Rights and Expression, or FIRE. Last week, Republican state Sen. John Kavanagh asked Arizona Attorney General Kris Mayes to investigate the city.
Hall did not respond to a request for comment from Phoenix New Times. The only councilmember to respond to similar requests was Chris Judd, who said he "would very much like to answer your questions" but can't because "we are involved in ongoing litigation over the matter."
Virginia Mungovan, the city's marketing and communications director, wrote in a statement that the rule had been "part of (the city's) speaker decorum rules for over 20 years" and that "other cities in Arizona follow similar speaker decorum rules or variations thereof at their meetings."
However, she added, "as this area of the law is constantly evolving, and in light of recent events, the City has decided to repeal this rule and review its speaker rules to ensure they set forth appropriate time, manner, and place guidelines that protect both the public's right to speak and the City's right, and expectation of citizens in attendance, to conduct its meetings efficiently, effectively, and with appropriate decorum and civility."
Rebekah Massie was arrested at a Surprise City Council meeting on Aug. 20 for criticizing a city official. Her 10-year-old daughter was left behind.
City of Surprise
Lawsuit ongoing
Repealing the law may not halt that litigation, according to FIRE attorney Conor Fitzpatrick, who is representing Massie in the case."The city council’s decision to scrap its unconstitutional rule banning criticism of public officials is the right move — but the damage has already been done," Fitzpatrick said in a statement. "Twenty-eight days ago, police dragged a local mom out of the meeting for criticizing a city attorney’s pay. Twenty-eight days ago, Mayor Skip Hall abused his power to stifle dissent. This decision comes 28 days too late for Rebekah Massie."
The repeal was enough to satisfy Kavanagh, however. Reached by phone, he told New Times that he'd be withdrawing his complaint with the attorney general. However, he would like Mayes to still weigh in on the matter.
"I am going to ask the attorney general to render a formal decision on that language so all municipalities and county boards of supervisors and other boards are aware they can’t use that language," Kavanagh said.
By repealing the law and getting Kavanagh off its back, Surprise will avoid what could have been a costly outcome. If Mayes had found that Surprise's public comment rule ran afoul of state law, which requires that calls to the public "allow individuals to address the public body on any issue within the jurisdiction of the public body," Surprise would have had to repeal the law anyway or be forced to forfeit its state-shared revenues.
In a fitting bit of irony after the rule's repeal, Hall nearly skipped over the Sept. 17 meeting's public comment segment. But he then caught himself and made a call to the public. No one was registered to speak.
