Newark City Council last week voted to restrict public comment at meetings to “real people” only, rejecting a developer’s argument that someone who controls multiple companies should be allowed a speaking slot for each entity.
The vote came April 18 during the annual organizational meeting, in which newly elected council members are sworn in and the council votes on its rules of procedure for the year. The rules provide a five-minute public comment period for members of the public who wish to speak about an issue being debated.
City Solicitor Paul Bilodeau reminded council members of an issue that arose in March in advance of the discussion of a controversial proposal to levy a 1 percent tax on rental property profits.
Chris Locke, vice president and general counsel of Lang Development Company, argued that because Lang Development controls 42 separate limited liability companies, he should be allotted a speaking slot for each entity, Bilodeau said. Locke’s argument relied on the controversial 2010 Supreme Court case Citizens United v. FEC, which ruled that corporations have free speech rights.
Locke later explained in a message to the Newark Post that while he contends that each of his LLCs has a right to a speaking slot, he only intended to speak for a total of 11 to 13 minutes.
Bilodeau said he researched the law and advised council that public comment sessions are a “limited public forum” and Delaware’s open meeting law allows the city to impose time, place and manner restrictions on public comment. During the March 11 debate over the rental tax, Locke was given five minutes to speak but not allowed additional slots for his LLCs.
“My ruling in that case was that public comment is limited to people, real people, and that would be my proposal moving forward that we just limit public comment to real people and not entities like corporations and LLCs,” Bilodeau said.
Council unanimously amended the rules of procedure to make Bilodeau’s recommendation official. While business owners can use their five minutes to speak on behalf of their business, they do not get additional speaking slots if they own multiple businesses.
Locke expressed disappointment at council’s decision.
“I asked for the same rights under the constitution that is afforded every citizen, business and taxpayer as per the landmark Supreme Court case of Citizens United,” he said. “It is a very sad day when any government body seeks to quash the most important constitutional right we have, which is the freedom of speech.”
The issue has parallels to a debate that arose after Locke voted 31 times in the 2018 capital referendum. Several other developers cast multiple votes as well.
At the time, that was perfectly legal, because the city’s charter opened referendum voting to a broader constituency than other elections. In addition to city residents, non-resident property owners and corporations that own property in the city were also allowed to vote. For legal liability reasons, housing developers often create a different LLC for each project they build, meaning those developers had the opportunity to cast multiple votes.
After public outcry, the city amended its charter to restrict referendum voting to only real people who live or own property in the city.
Other changes
Council also amended the rules to specify that public comment must be related to city business.
“I believe there was a case somewhere else in the state where someone came up on public comment and started railing about something completely unrelated to city business, and the council cut them off and got sued because they didn’t define public comment as specific to city business,” City Manager Tom Coleman explained.
Another change relates to public comments that are submitted in writing in advance of a meeting. For the past few years, standard practice has been that the city secretary would read each letter in its entirety during the meeting.
That proved problematic during the March 11, when the city received several dozen letters opposing the rental tax, many of which were similar. When the City Secretary Tara Schiano read only a sampling of the letters, opponents of the tax cried foul, and Bilodeau advised her to read all of them to avoid any legal concerns. The process took more than an hour, with council members stepping in to help read letters while Schiano caught her breath.
Under the new rules approved last week, letters will be entered into the public record and distributed to council members but not necessarily read aloud.
“I’m not going to stifle the public coming in, but I don’t want to get into the situation where people are trying to hijack the meeting in order to delay whatever it is they don’t want to occur and we’re there until 1 o’clock in the morning literally just trying to wear us down,” Councilman Travis McDermott said.
Council also rearranged the timing so that council members hear from the public on each issue before giving their own opinion.
“To me, that always seemed a little backwards,” McDermott said. “Really, the decision making process for the council members should come after you have taken in all of the available information and comments.”
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