|
Getting your Trinity Audio player ready...
|
Editor’s note: The Woodside Town Council agreed to a settlement with Nancy Reyering, paying $35,000 to cover her legal fees, on Nov. 14, 2017.
A workshop could begin in January to revisit the ethics code that, since 1994, has governed the behavior of Woodside’s Town Hall employees and the town’s elected and appointed officials, according to Mayor Tom Livermore.
The workshop a process to evaluate and make recommendations to improve the town’s ethics guidelines and procedures was part of a settlement between the town and longtime volunteer Nancy Reyering.
She had filed a complaint against the town over how she was treated in a months-long investigation of an alleged ethics-code violation involving an email she sent as a member of the town’s architectural review board.
In the settlement, which the Town Council approved unanimously Nov. 14, the town agrees to pay Ms. Reyering $35,000 “for the legal expenses she has incurred as a good faith gesture and to avoid future litigation costs.”
That payment, when added to the estimated $33,384 cost for the investigation, brings the town’s total cost for this matter to at least $68,384.
Mayor Livermore and council members Anne Kasten, Dave Tanner and Daniel Yost voted for the settlement, the mayor said. Councilmen Peter Mason and Chris Shaw recused themselves and Councilwoman Deborah Gordon was absent, Mr. Livermore said. The settlement prohibits all parties from discussing it further.
The council also appointed a group of resident volunteers who offered to participate in the ethics code workshop.
The volunteers are: Dave Burow, Roy Crawford, Virginia Dare, Dave Eichler, Elizabeth Fergason, Thomas Johnson, Thalia Lubin, Declan McCullagh, George Offen, Ron Romines, Emerson “Chip” Swan, Marilyn Voelke, Marty Walker and John MacDonald, according to a list provided by the town clerk’s office.
A federal case
In the wake of the investigation of Ms. Reyering and the council’s decision to take no action on the ethics case, Ms. Reyering’s complaint threatened a federal lawsuit that named the town, Mayor Livermore and his predecessor, Ms. Gordon, as defendants, claiming violations of her constitutional rights to free speech.
The constitutional issue and the town’s investigation centered on comments Ms. Reyering made as a member of the town’s architectural review board to the planning director and other board members concerning a residential design project that was coming before the board.
Ms. Reyering had noted in a May 2016 email that the project’s architect was Mr. Mason, a member of the council, and said the applicant should refrain from the common practice of asking for exceptions to regulations and design guidelines in light of Mr. Mason’s role in forming those regulations and guidelines.
Ms. Reyering’s email led former mayor Dave Burow to, eventually, file an ethics complaint against her, leading to an investigation by the outside attorney at a cost to the town of at least $33,384, according to one of Ms. Reyering’s attorneys.
The investigation included a recommendation that five of nine allegations against Ms. Reyering be sustained: unequal treatment of Mr. Mason, personally attacking Mr. Mason, reaching a conclusion about a project before hearing testimony and before a public meeting had been held, and failing to maintain “a positive and constructive working environment,” as the code requires.
Facing a hearing before the council, which the current ethics code requires to determine whether violations had occurred, Ms. Reyering allowed her term on the board to expire in February 2017 and informed the mayor that she would not apply for reappointment.
The council, rather than determining whether violations had occurred, voted 4-0 to follow a recommendation by Mayor Livermore to take “no further action.” Council members Mason, Dave Tanner and Anne Kasten were absent.
Free speech rights
In her claim, Ms. Reyering’s attorney, Scott Emblidge, commented on a provision in the ethics code requiring officials to “refrain from abusive conduct, personal charges or verbal attacks upon the character, motives, ethics or morals of members of the Town Council, other appointed officials, Town employees, or members of the public.”
“While the town’s emphasis on civility may be admirable,” Mr. Emblidge wrote, “it infringes on a speaker’s right to engage in uninhibited, robust debate on public issues, including negative criticism – and even very sharp attacks – of public officials.”
“On its face,” he continued, “it would prohibit a town official from remarking on questionable campaign contributions taken by another official (and) would bar council member Jones from suggesting that council member Smith be prohibited from voting on a matter in which council member Smith has a financial interest. … (It) creates an unacceptable risk of the suppression of ideas that are protected as part of a vibrant public discourse.”
Mr. Emblidge also took issue with the code’s provision on maintaining “a positive and constructive working environment.” The town, through its investigator, found Ms. Reyering in violation by “raising concerns about a council member’s possible conflicts of interest,” he wrote. “Anyone with even a passing understanding of the First Amendment would know that it is unlawful to discipline someone for raising concerns about an elected official’s possible conflicts of interest, even if that speech somehow detracted from a ‘positive environment.'”
Mr. Emblidge asserted that mayors Livermore and Gordon, while required to undertake an investigation, “unlawfully” enforced a code that “violated clearly established constitutional free speech rights of which a reasonable person would have known.”
In the vote on the settlement, Mr. Shaw, who was not a party to the ethics code matter, also recused himself. He had run a write-in campaign in the fall of 2015 contesting Ms. Reyering’s uncontested bid for a seat on the Town Council and won with 53.1 percent of the vote.
Mr. Burow, a council member during that campaign, contributed about $960 toward a mass mailing in support of Mr. Shaw.
