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MEMORANDUM <br />TO: Bill Malinen <br />FROM: Scott T. Anderson <br />Eric J. Quiring <br />DATE: April 8, 2009 <br />Date: 4/13/09 <br />Item: 13.b <br />SUBJECT: Electronic Communications Policy <br />File No. 4002(1)-0341 <br />I. Does the Electronic Communications Policy infringe on the First Amendment <br />rights of Council members? <br />The proposed Policy sets forth restrictions on the use of electronic <br />communications by Council members. These restrictions impact the free speech rights of <br />Council members. The government can only exclude a speaker from a traditional public <br />forum where the exclusion is narrowly tailored and necessary to serve a compelling state <br />interest. Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983). <br />Notwithstanding this, the government can place viewpoint neutral restrictions on the <br />time, place and manner of the speech taking place in traditional public fora, so long as <br />there are ample alternative channels of communication left open. Id. <br />As currently revised, the proposed Electronic Communications Policy does not <br />impose a broad prohibition on free speech. Rather, it only limits Council members from <br />communicating with each other outside of public meetings for the purpose of avoiding <br />public discussion, to forge a majority in advance of public meetings, or to hide improper <br />influences such as personal or pecuniary interests of the Council Member. (See Section <br />VI.) In other words, the Policy simply states the law as to what constitutes a violation of <br />the Open Meeting Law. Council members may still express themselves in any other <br />manner that is not violative of the Open Meeting Law. Moreover, Council members may <br />communicate with each other openly on any topic at public meetings. <br />The Policy has been revised to more narrowly tailor the limitations on electronic <br />communications to go no further than the prohibitions of the Open Meeting Law. As a <br />result, several clauses have been deleted from Sections VI of the revised Policy. <br />II. Should the Electronic Communications Polic,�y to advisory committees? <br />