Brevard County: Tobia Pulls Back On Speech Restrictions.

This is welcome news.

Brevard County Commissioner John Tobia has beefed up his proposed civility ordinance aimed at keeping commissioners in check during their meetings.


His latest proposal also eliminates references to potential sanctions aimed at members of the public for incivility. (emphasis ours)

It almost seems like someone reminded Tobia of the Constitution and the idea behind the First Amendment.

Under the proposal, commissioners who fail to comply with established rules of decorum would be subject to censure, by a majority vote of the County Commission. Additionally, a commissioner who is censured would be ineligible to be elected County Commission chair for one year.

A second offense by a commissioner who “fails to come to order” could subject the offender to be reported to the governor, with a request that “the board member be suspended from office for malfeasance, misfeasance or neglect of duty.” Such a move by the County Commission to report the offender to the governor would require a “supermajority” vote of four of the five commissioners.

Tobia’s proposed ordinance — which is aimed at “civility and decorum during board meetings” — is scheduled to be discussed at Tuesday’s County Commission meeting, which begins at 9 a.m. at the Brevard County Government Center in Viera.

The current version of his proposal is stricter than his initial proposal, which he released last week. For example, the new proposal adds the provisions of disqualification from serving as County Commission chair for the first offense, and the potential of suspension by the governor for the second offense. Those were not in the first draft of his ordinance.

We have a tendency to think that a call to the governor for removal of someone who does not “come to order twice” is draconian. For a Board that always talks about “home rule,” appealing to the governor where there are no legal charges filed or no illegal actions seems ridiculous to us.

(We aren’t sure of the time frame for that penalty either. Is that “come to order twice” in one meeting? Two meetings? A month of meetings? A year? The term of the Commissioner?)

Under Robert’s Rules of Order:

72. The Right of a Deliberative Assembly to Punish its Members. A deliberative assembly has the inherent right to make and enforce its own laws and punish an offender, the extreme penalty, however, being expulsion from its own body. When expelled, if the assembly is a permanent society, it has the right, for its own protection, to give public notice that the person has ceased to be a member of that society.

But it has no right to go beyond what is necessary for self-protection and publish the charges against the member. In a case where a member of a society was expelled, and an officer of the society published, by its order, a statement of the grave charges upon which he had been found guilty, the expelled member recovered damages from the officer in a suit for libel, the court holding that the truth of the charges did not affect the case.

73. Right of an Assembly to Eject any one from its Place of Meeting. Every deliberative assembly has the right to decide who may be present during its session; and when the assembly, either by a rule or by a vote, decides that a certain person shall not remain in the room, it is the duty of the chairman to enforce the rule of order, using whatever force is necessary to eject the party.

The chairman can detail members to remove the person, without calling upon the police. If, however, in enforcing the order, any one uses harsher measures than is necessary to remove the person, the courts have held that he, and he alone, is liable for damages, just the same as a policeman would be under similar circumstances. However badly the man may be abused while being removed from the room, neither the chairman nor the society is liable for damages, as, in ordering his removal, they did not exceed their legal rights.

We’d prefer that a Commissioner be removed from the meeting instead of removed from office. The idea of the Commission going outside the Commission in order to enforce its own rules makes no sense to us. In essence, the penalty would be the same for a citizen at the podium who was disruptive. (By disruptive, we don’t mean the content of their speech (other than what is judged to be a true and imminent threat to a Commission member, staff, or member of the public.) We mean someone, for example who won’t stop talking when their time is up or is disruptive from the audience seats.

The Commission has the right to make sure that the meeting is run in an orderly fashion, so someone who is disorderly in their conduct may be removed.

We would be happy with that provision being applied to Board members. Just kick ’em out. No need to involve the governor and certainly no need to seek to remove someone from office which would in effect, tell the people who elected that person their votes didn’t matter. Also, if a person is removed from office under Tobia’s plan, are the taxpayers on the hook for another election to replace that Commissioner? If they are, in what time frame must the election take place? How long would or could a district be without representation on the Board?

The good news is that Tobia has stepped back from provisions that would have affected the rights of the people. As we detailed the other day, no one has the right not to be offended and certainly the Board cannot censor speech (generally speaking.)

We have long maintained that the way to stop the “incivility” of the Board of Commissioners is for the Chair to comply with the rules that are in place. That hasn’t been happening and it needs to.

We can’t wait for the debate on this item, which is scheduled for discussion next Tuesday at 9:00 AM.

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