Commissioner Smith’s Proposed “Civility Ordinance.”

Commissioner Curt Smith (left) and Brevard County Attorney Scott Knox (right.)

Yesterday we wrote that Brevard County Commissioner Curt Smith was looking to introduce a “Civility Ordinance” that would mandate the behavior of Commissioners, the staff, people in the audience and those who speak in front of the Commission during Commission meetings. Smith said that he had been working with County Attorney Scott Knox on the preparation of this ordinance since June.

During the November 21st meeting, Smith said that he would present the ordinance for a vote on December 5th, and handed each Commissioner a draft copy of the ordinance.

We decided that it might be a good idea to get a copy of that draft and so we made a request for the draft. That request was handled quickly and efficiently by Commissioner Smith’s staff and the County Staff. Our request was filled in less than a day, and that is more than we could hope for. We want to publicly thank those involved in the response to the request.

(EDITOR’S NOTE: We were sent the ordinance draft in a .docx (Microsoft Word) format. The software we use for this blog requires a third party plugin to embed .docx files. We don’t want to add another plugin to the site, so we converted the Word document to an Adobe .pdf file which is seen below. In converting the file, Adobe removed a watermark from the original .docx file. That watermark reads “DRAFT 6/20/17.” We don’t want it said that we are hiding anything or making changes to the wording of the ordinance draft. If you wish to download and see the original .docx file we were sent, you can get it here. Otherwise, feel free to read the document below.)

That being said, the ordinance itself is a nightmare and an assault on the rights of citizens.

Chapter 125 of the Florida Statute allows a county legislative body to:

Chapter 125.1(1)(a)

Adopt its own rules of procedure, select its officers, and set the time and place of its official meetings.

However, those “policies and procedures” must stay within the laws, the Florida Constitution and the US Constitution.

We aren’t sure whether “policies and procedures” can force a member of a legislative body to give away their rights to free speech in order to sit on said body. If the Commissioners want to vote to restrict their rights, we suppose they can do that. The part of the ordinance that deals with the conduct of the Commissioners will never apply to us so while we are curious about whether a right can be restricted when one becomes an elected official, we aren’t going to address that part of the ordinance.

The part that deals with citizens we are going to deal with.

Section 2-30(b)(3) reads:

3. Each person that addresses the Board, staff, or the general public must avoid making impertinent, profane, or slanderous remarks that cause a disruption, disturbance, or otherwise impede in the orderly conduct of any County Commission meeting and the fair progress of County business.

The ordinance then goes on to say that if a member of the general public is “impertinent, profane, or slanderous,” the Chair can interrupt the speaker and demand they stop. If they refuse to stop, they can be told to sit down. If the person refuses to sit down, the Chair can order the person to leave the meeting. If the person refuses to leave the meeting, the Chair can have them arrested by law enforcement officers and charges with a second degree misdemeanor which can result in up to 60 days in jail and a fine of up to $500.

We are working on a post and perhaps emails to Commissioners and even a trip to Viera to address this mess, but for now, here is the “Cliff Notes” version of what is wrong with that part of the ordinance.

1) Being “impertinent.” If one accepts the definition “not restrained within due or proper bounds especially of propriety or good taste; given to or characterized by insolent rudeness” this seems to be saying that the Commission can decide what is “rude.” That is classic “viewpoint discrimination” as defined by the Supreme Court.

2) Profane. We are not fans of profanity, but that is our choice. In Cohen v. California, Justice Harlan wrote in the majority opinion that “it is nevertheless often true that one man’s vulgarity is another’s lyric,” meaning that it is improper and unConstitutional for the government or government officials to restrict speech based upon what they believe to be “profane.”

3) Slanderous. We suspect that the term “slanderous” is being used here to describe “something said about an individual that is not flattering.” Yet that is not the definition of slander:

slander: n. oral defamation, in which someone tells one or more persons an untruth about another, which untruth will harm the reputation of the person defamed. Slander is a civil wrong (tort) and can be the basis for a lawsuit.

Slander is more than just saying something that is not “nice” about someone. It is a lie aimed at another person and may harm that person’s reputations. In addition, for slander against a public official, actual malice must be proven.

In that the Brevard County Commission meeting room is 1) not a courtroom, 2) the Chair of the Brevard County Commission is not a judge, 3) it would be impossible to prove malice in the setting of a Commission meeting and 4) the person allegedly being “slandered” has legal routes they may take, it is clear that something being judged “slanderous” by the Chair of the Brevard County Commission is actually not “slander” but a case of “that person is saying something that is not nice,” which is protected speech.

None of the three things this ordinance puts forth as a basis for restricting the speech of a speaker is Constitutional. Not a one.

However, perhaps the ordinance means to tie the speech and “cause a disruption, disturbance, or otherwise impede in the orderly conduct of any County Commission meeting” together. That makes no sense as one does not have to be “impertinent, profane, or slanderous,” to disrupt a meeting. People can be disruptive without saying a word. To put it another way, “does the Commission allow disruptive behavior if one is not “impertinent, profane, or slanderous?” We would hope and think not. Therefore, the disruption of a meeting is separate and apart from the words a person uses.

We also wonder how “”impertinent, profane, or slanderous,” and causing ” disruption, disturbance, or otherwise impede in the orderly conduct of any County Commission meeting” would play out in the real world.

We may already have an answer and an example.

Back October 5, 2017, after a contentious agenda item and vote, Commissioner Isnardi claimed she heard someone use the word “bitches” in describing Commissioners.

She later went on a rant about it saying:

“I get a little upset when we get attacked by the public, and I would just ask and implore this board that, when we hear obscenities that are loud enough for the entire room to hear, to where people are sending me emails and messages to that effect, I think that we all need … to ask for order. Because I heard some pretty horrible things, and I would never treat others that way. They wouldn’t say those things at the mike. But to say those things from the audience is quite offensive. So I would just ask that we hold the audience accountable as a board, at least for some order and some proper discourse.”

While Isnardi’s comments were made during the part of the agenda dealing with “Commissioner Reports,” we wonder how her feelings being hurt is relevant to the meeting.

In other words, who was actually creating a disturbance or disruption in the meeting? Was it the people who said something that didn’t stop the meeting at the time? Or was it Isnardi herself who disrupted the flow of the meeting in responding to something she heard?

Our opinion is that it was Isnardi and her “rabbit ears.” We suspect that in regards to this ordinance, that is how this would play out. Someone makes a statement that a Commissioner feels a need to react to and that – not the comment itself – is the actual disruption but it would be the speaker that would be held accountable for the actions of a Commissioner.

The whole ordinance falls apart the more one looks at it.

We want to make it clear that we are for “civility” or whatever you want to call it during meetings. For example, we don’t think it is necessary to use “profanity” to make a point. Just because you can doesn’t mean that you should.

Our point is that it is unConstitutional to limit the rights of speech the way this ordinance does.

We also want to bring up the fact that this ordinance is being proposed by Commissioner Smith. According to Smith he worked closely with County Attorney Scott Knox to write the ordinance.

That a sitting Commissioner and attorney, both of whom have sworn to uphold the law, the Florida Constitution and the US Constitution would attack the rights of people is beyond belief. That Attorney Knox would allow this to go out to a vote of the Commission is embarrassing on many levels.

It also shows that the title “Brevard County Attorney” is a lie at worst and a misnomer at best.

The term implies that Knox works for the people of Brevard County. One would think and hope that his job description would mean that he is looking out for the people of the County.

However, the people of the County are not his clients – the County Commissioners are. That means when Commissioner Smith comes to Knox and says “let’s write a civility ordinance that limits what people can say,” instead of protecting the people, Knox is going to go with his client in the person of Commissioner Smith. He’s going to help write the ordinance because that is what his client wants.

It really doesn’t matter who wrote this ordinance. What matters is that the ordinance attacks and unConstitutionally restricts the rights of citizens.

That cannot be allowed to happen.

We’ll have more on this later as we watch to see if the item appears on the agenda.

One Response to “Commissioner Smith’s Proposed “Civility Ordinance.””

  1. Truthful says:

    All county policies and procedures must indeed stay within the written law, and within both the Florida and the US Constitutions.

    To even suggest this type of proposed ordinance comes across as an strong-armed attempt to control and silence both sitting commissioners, who were elected by the people, and the public themselves, who come to voice their concerns.

  2. […] wrote about the ordinance being proposed by Brevard County Commissioner Curt Smith the other day. Initially, on November 21, […]