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Court says town’s public meeting rules must change

Blogger Kevin McKenna settles suit with town

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Syosset blogger Kevin McKenna settled his federal lawsuit on Dec. 21 against the Town of Oyster Bay’s public meeting rules, which the town adopted in October. The new law allows for the arrest and filing of criminal charges against anyone who disrupts a Town Board meeting.McKenna’s settlement awaits approval at the board’s Jan. 12 meeting.

The law had not been followed as of Nov. 16, when U.S. District Judge Gary Brown issued a restraining order, while the issue was being decided in court. Initially, Brown said the town could rewrite the law and present it at a court conference on Dec. 2, when the judge would determine whether the rewritten law was constitutional. There were several conferences in December in which lawyers hired by the town and McKenna’s lawyer, Jonathan Clarke, worked to come up with wording that would be satisfactory to both parties.

McKenna won a settlement for $20,000. Clarke said that McKenna had agreed to accept $5,000 of the settlement and to pay Clarke the rest.

“The town passed the law against a select group of people it wanted to prevent from speaking, including Kevin,” Clarke said. “We wanted the town to put language in that adhered to the Open Meetings Law in its decorum rules. A lot of the fighting that goes on is due to the town not following this law.”

Brian Nevin, the town’s public information officer, said that the proposed settlement includes an agreement from both parties on the importance of rules of decorum at town meetings.

“This settlement, if ratified by the Town Board, safeguards the town’s intent to protect the freedom of speech for all attendees,” Nevin said, “while ensuring a safe environment free of profanity, sexual gestures and unruly behavior.” 

The town did not want to add the state’s Open Meetings Law to its decorum rules, and opted to pay the damage award from the lawsuit instead, Clarke said.

Nevin explained the town’s reasoning by saying that no municipality has the state’s Open Meetings Law in its decorum rules, and that the town is already complying with the law, anyway.

What the town removed in part was that speakers shall “observe the commonly accepted rules of courtesy, decorum, dignity and good taste and shall not use foul language, display unacceptable behavior or be disruptive of the proceedings.”

What was added in part was that speakers cannot “disrupt, delay or otherwise impede the orderly conduct of the proceedings by defaming, intimidating, making personal insults, making threats of violence or threats against public order security.”

All charges of criminality have been removed from a draft of the revised rules as well as a ban on political speech by speakers at meetings. The town supervisor can request the assistance of law enforcement in removing an individual who is not following the town’s decorum rules, but an arrest will no longer be possible.

“The section on political speech was the most important to me,” Clarke said. “The categories of speech that were not permitted was unconstitutional. For Kevin, the most important was the threat of arrest. Now he can speak his mind without needing to have bail money that day.”

What constitutes “removal” from a meeting has changed. Going forward, if decorum rules are broken, Nevin said, the supervisor will first issue a warning. If the behavior continues, the supervisor will ask the person to leave the board room, and then he or she will be directed to do so. Members of law enforcement, who are always at board meetings, will then be asked to remove the individual if they refuse to abide by the supervisor’s request.

The Press Club of Long Island had requested that the town change the rules, including what was directed at camera operators, who could have been charged. “This softened language is an improvement,” said Brendan O’Reilly, the group’s vice president. “The revised code must be paired with a presiding officer who will ensure that minor inconveniences are not interpreted as disruptions that merit ejection. Perceived nuisances that arise due to the presence of recording and lighting equipment and the movement of a journalist about the room must be tolerated as necessary to facilitating the public’s right to know.”

Nevin said that other changes were made because the court said that some of the town’s wording was too broad. “The court wanted our wording more defined,” he said. “But the intent is the same — to have an orderly meeting.”