Cape Coral Final

The First Amendment Foundation has sent a letter to the city strongly urging a rework of recent rule changes that allow Cape Coral City Council to impose attendance bans for violating meeting decorum.

The consequences portion of the policy Council enacted in February allowing for bans of 30-90 days “is excessive and does not leave a private citizen ample alternatives that would allow such persons to participate in the free expression of ideas,” the April 11 letter to Mayor John Gunter and City Manager Michael Ilczyszyn states, concluding the ban time periods “could unlawfully infringe on private citizens First Amendment rights.”

The four-page communication cites various legal precedent and is signed by FAF Executive Director Bobby Block.

“Courts, such as in Brown v. City of Jacksonville, have recognized that a restriction needs to be narrowly tailored and leaves citizens with ample alternatives which a ban that can span over several months does not. It is overly restrictive and can therefore act as a prior restraint due to the excessive time limits,” the letter states.

Saying “‘Council Rules” and or any limitations of speech must be drafted with caution as to not override private citizens’ Constitutional rights to speak and ask questions of officials during these meetings,” the organization urged the city to reconsider and rework that section of the Council policy.

It also offered to assist the city with any revision effort.

“In conclusion, we strongly urge the City of Cape Coral to rework subsection T to conform to federal and state law and to reconsider the ban time periods as it could unlawfully infringe on private citizens First Amendment rights and their ability to freely participate in the free flow of expression and ideas. We understand the City has a right to maintain order and decorum to enhance Council meetings. Therefore, FAF is available to assist the City on crafting and or discussing the Council Rules as the resources of The First Amendment Foundation are available to everyone in the Sunshine State.”

Gunter did not respond to an email requesting comment.

City staff does not comment on Council policy decisions.

“The Mayor and City Council are Charter Officers that have the authority to enact Rules and regulations regarding their business meetings. The City Manager’s Office has no ability pursuant to the charter to establish, modify or repeal such Rules,” the city’s Communications Office said via email.

The city, meanwhile, is facing a lawsuit from a resident who was escorted out of a City Council meeting and then not allowed to attend subsequent meetings.

Scott Kempe, during the Oct. 11 Cape Coral City Council meeting, spoke about Jaycee Park during public input.

He returned to his seat where he later turned his back to the dais.

“Kempe felt that his government was discounting the feedback of its citizens. Kempe turned around in his seat and sat backwards at some point during the meeting to silently protest,” according to his legal complaint.

Kempe then tried to attend the Oct. 18 Council meeting and was told to leave pursuant to Council rules which, at that time, banned ousted residents from meetings until Council voted to allow them back in.

Kempe showed up for the Dec. 13 meeting and “advocated for his rights” as he said he was informed the ban was improper because the then-rule regarding Council approval to return called only for a vote to be allowed back into the same meeting.

He was arrested and issued a “Notice to Appear” on charges that included resisting/obstructing an officer without violence and trespassing.

The charges were dismissed on Jan. 25 for “insufficient evidence.”

Council modified the rules to specify how meeting bans were to be handled.

According to the city’s new rules, those who are “boisterous or disruptive in any manner to the conduct of a meeting” and so are asked to leave will be issued a trespass warning and barred from future meetings, with the length of the ban dependent on whether the person was also arrested.

Those removed but not arrested are barred from all meetings for 30 days from the date of removal for a first offense as determined by the mayor or other presiding member of Council.

They will be barred for 60 days for a second offense.

A third offense within a year of the first violation results in being barred for 90 days and requires the person ousted to petition Council “stating the reasons why they can attend Meetings without violating these Rules.”

Council then decides whether that person will again be “allowed” to attend Council workshops and meetings.

If arrested, the person is barred until a final disposition of the criminal charges related to the ouster. After disposition by the court, the person is required to petition Council “stating the reason(s) why they should be permitted to attend future Meetings with City Council to then “decide whether the person is permitted to attend future Meetings of the City Council.”

In addition to the First Amendment Foundation, the Florida League of Cities, an organization to which the city belongs, has advised cities that they “CANNOT ban persons who have exhibited disruptive behavior from attending or speaking at future meetings. The government cannot prohibit future expressive activity because of past unlawful conduct.”

The case law cited by the League in a Jan. 1, 2023 advisory, also is Brown v. City of Jacksonville.

The First Amendment Foundation is a non-partisan, nonprofit organization. Established in 1984, its primary objective is to monitor legislative sessions and programs. It also has a mandate of “safeguarding the First Amendment, particularly in relation to public records law, open government, and instances of free expression infringement. Our core mission is to uphold and promote the rights enshrined in the United States Constitution.”

The Breeze, as does other news organizations, contacts the First Amendment Foundation for comment or background when a question concerning public records law, open government or instances of free expression infringement arises.

The Breeze did so in this case both before and after Council’s vote to approve this particular policy change and provided a copy of the city policy.