James Simon’s Claims & Citations on Urbana’s New Speech Restrictions Exhibit Gross Incompetence

After bringing two different variations of ordinance (on September 21^st and October 5^th) that would significantly restrict the public’s right to speak at Urbana meetings, Mayor Diane Marlin managed to get her legislation (Ordinance 2020-09-49) passed on October 12^th, 2020. Marlin’s speech regulations were supported by Council members Maryalice Wu, Julie Laut, Shirese Hursey, Bill Brown, Dennis Roberts, and William Colbrook. Jared Miller stood alone in opposing the speech restrictions.

The new public speaking rules went into effect the following week, and were posted along with the Urbana City Council meeting packet for October 19^th. Included with the new rules were the legal citations repeatedly mentioned (but never with any specificity) by Urbana City Attorney James Simon, who has argued that Marlin’s speech restrictions are supported by various Illinois Attorney General opinions and other court cases. Marlin’s ordinance variations, the new speaking rules, and every legal citation issued by Simon is included in a list at the end of this article, in case you prefer to skip directly to the source material.

Mayor Marlin got ahead of herself and exercised her new rules (and violated the Open Meetings Act) at the September 14^th City Council meeting by actively interrupting and muting a number of public speakers, including myself (which I wrote about here). I filed a request for review with the Illinois Attorney General’s Officer, alleging Open Meetings Act violations, and that is currently being investigated by Deputy Public Assistant Counselor Leah Bartelt (article, including Urbana City Attorney James Simon’s response).

James Simon responded to my Open Meetings Act complaint using the same seven legal citations that he included in the new public speaking rules. I discussed the cases to some extent in my article, but I thought it would be a good idea to break them down in a clear and orderly fashion, since they really demonstrate either gross incompetence, negligence, or willful deceit (or a combination of those things). First, let’s establish some facts:

Urbana’s new public input rules contain the following provisions:

Prohibitions on speech containing “abusive, harassing, threatening, or defamatory language”
Speakers must address all comments to the public body as a whole (one cannot name a specific person or position, including elected officials)
The presiding officer may limit speech not directed at a specific agenda item up for a vote

For perspective, we must also note some facts about the September 14^th Urbana City Council meeting wherein Diane Marlin created new speaking rules:

Diane Marlin, without any legislative action, independently created new public input rules contrary to the established and recorded rules in Urbana City Code Section 2-4
Diane Marlin enforced the same speech restrictions mentioned above by actively interrupting and muting multiple speakers
Diane Marlin invented new time limits on speaking, contrary to the rules recorded in Section 2-4

James Simon has argued that both the new rules established by the Urbana City Council on October 12^th, as well as Marlin’s conduct at the Urbana City Council meeting on September 14^th, were both entirely legal and provided for in three opinions from the Illinois Public Access Counselor, and four other court cases. We’ll review them one by one:

Illinois Open Meetings Act Request for Review 2019 PAC 59187

This case was very simple. Ms. Shari Thurman, at a City Council meeting in Rushville, Illinois stood up to speak during public input, and the Mayor allegedly responded with “No ma’am, I listened to you for two months and you have no standing to be here, you don’t live in this town, you don’t vote in this town and you have no reason to be here. I have heard two months of it and I’m not hearing anymore!” Public Access Counselor Sarah Pratt issued a binding opinion that Rushville City Council had violated the Open Meetings Act by denying Ms. Thurman her right to speak.

It is very difficult to determine why Simon thinks this opinion supports anything that Mayor Marlin or the Urbana City Council has done. In his reply to my PAC complaint (PAC 64787), Simon plucks only one line from the opinion:

“…’ordinarily only reasonable time, place and manner restrictions’ that are content -neutral are permissible in such a designated public forum under the first amendment to the United States Constitution.”

Simon appears to be using this line to demonstrate that the City can regulate “manner”, which Simon claims translates into “abusive, harassing, threatening, or defamatory language”.

No portion of the PAC 59187 binding opinion supports content-based speech limitations of any kind, and certainly not any put forth by the Mayor Marlin. PAC 59187 doesn’t even contemplate speech content. In fact, PAC 59187 nicely demonstrates an OMA violation by a Mayor who no longer wished to hear the comments of a particular individual (sound familiar?).

Illinois Open Meetings Act Request for Review 2018 PAC 55462

PAC 55462 is a binding opinion issued by Public Access Counselor Sarah Pratt who determined that the Lyons School District 103 Board of Education violated the Open Meetings Act when they limited total speaking time to 15 minutes during its October 22^nd, 2018 meeting. At that meeting (which occured after the public became aware that the school district had just hired a 6^th grade English teacher after he was charged with 9 counts of attempted murder) approximately 100 people attended, many of whom wished to express their concerns.

The Lyons School Board had established the 15 minute limit and previously practiced that limit (for at least 10 years, according to the Board), even writing it in their “Welcome Handout” which is provided at their meetings. However, the 15 minute time limit did not exist in the recorded Board Policy. The PAC found that though the board had certainly established the practice, since the 15 minute time limit was never created or recorded by any formal action, it violated the OMA. In other words, a public body cannot simply establish a practice – they must vote on and formally recorded their policies.

The PAC further concluded that the 15 minute time limit severely reduced the ability of the public to address the Board, and that:

“There is no evidence that limiting comments was necessary to maintain decorum or that extending the comment period would have unduly interfered with the orderly transaction of public business.”

Mr. Simon has cited 2018 PAC 55462, apparently, to harp on the line “the right to address public officials is not without limits”. Simon emphasized this line in his response letter to my PAC complaint, and he also emphasized the line “Such rules must be reasonably necessary to protect a significant governmental interest and must tend to accommodate, rather than to unreasonably restrict, the right to address public officials” (Simon underlined that part to emphasize it, then paid no attention to the latter half of the sentence).

This citation is apparently being used by Simon to support content-based speech limitations, but PAC 55462 was specifically and only about time limits. No component of PAC 55462 contemplates speech content.

It seems to have been a major blunder by Simon to cite this PAC opinion. It seems as though he simply searched for any partial sentences that might appear to suggest that a public body can regulate public speech, and then extrapolated whatever he pleased from those words. The real blunder is that PAC 55462 clearly imputes guilt upon Marlin’s actions at the September 14^th City Council meeting because it shows that a public body must follow its formally recorded meeting rules, not just its established practice, and certainly not some newly invented rules slapped together last-minute by the Mayor.

Illinois Open Meetings Act Request for Review 2016 PAC 45349

PAC 45349 was issued by Deputy Public Access Counselor Neil Olson and he found that the Town of Normal was violating the OMA by prohibiting members of the public from speaking more often than once every forty-five days.

This PAC opinion in no way supports anything that Marlin has done nor any argument put forth by Simon in favor of Urbana’s new speech restrictions. Again, reviewing Simon’s response letter to my PAC complaint, it seems that Simon has invoked this PAC opinion because he wanted to pluck out two partial sentences:

“public bodies may generally promulgate reasonable’ ‘ time, place and manner’ regulations that are necessary to further a significant governmental interest… while ensuring that the public body can maintain order and decorum at public meetings”

Simon wishes to use this to prove that the Mayor can create content-based speech restrictions and stop people from making “abusive” comments, but PAC 45349 really deals only with timing restrictions. PAC 45349 does deal with content restrictions in one sense: it clearly states that a public body cannot create speech restrictions requiring members of the public to speak only about agenda items – this is exactly one of the restrictions that Marlin has placed upon speakers beginning on September 14^th!

PAC 45349 also helps us settle one of the most idiotic and asinine arguments ever put forth by James Simon. Though the City Code may indicate a maximum speaking time per person, Simon has argued the presiding officer can reduce the speaking time limits to whatever they please, due to the particular wording of Urbana’s public input rules. Here is a clip from page 4 of Simon’s letter to the PAC in regards to Mayor Marlin’s conduct on September 14^th:

(it may help the reader to know that Section 2.06(g) is the section of the Illinois Open Meetings Act that establishes the right of the public to speak at public meetings)

Simon’s contention is absurd and it is not believable that a sane person would espouse something so ridiculous. Clearly, public input at public meetings is compelled by members of the public, and it is those individuals that determine their own speaking time, up to the limits noted in the rules of the public body. The Mayor could not arbitrarily reduce that time any more than she could force members of the public to speak longer than they wished. Fortunately, PAC45349 promptly disposes of silly claims such as the one Simon is putting forth:

“Section 2.06(g) of OMA cannot reasonably be construed as granting members of the public a statutory right to address public officials on the one hand while permitting public bodies to unconditionally abridge that right. Such an interpretation would render section 2.06(g) meaningless and yield absurd results that are inconsistent with OMA’s clear purpose of allowing members of the public to attend every public meeting and contrary to the public policy—articulated in section 5 of the Citizen Participation Act—that encourages public participation in government affairs.”

Milestone v City of Monroe (Opinion of the Court by Judge Sykes)

Simon referenced Milestone v. City of Monroe, a lawsuit filed by Edith Milestone after she was banned from a senior center for constantly picking fights, shouting at people, and throwing things, to the extent that the Monroe Senior Citizens Board determined that she was a safety hazard. The Board claimed that Ms. Milestone had repeatedly violated the code of conduct of the senior center and that she could only return after taking an anger management class. The case was actually dismissed on the grounds that Ms. Milestone had not properly filed it as a 1983 (constitutional rights) lawsuit, so it isn’t clear what we are supposed to learn here.

Simon claims this case as evidence that Marlin that create speech restrictions at Urbana City Council meetings. I struggle to find any significant meaning in the case and I cannot understand how Simon thinks this situation relates to Urbana Zoom meetings.

Vega v Chicago Board of Education (Memorandum Opinion and Order)

Mr. Simon referenced Vega v. Chicago Board of Education, which involved a member of the public repeatedly violating the recorded speaking rules, threatening to continue to do so, physically interrupting other speakers, and rushing up to the dais and shaking her fist at a board member. This case has no relevance to the September 14^th Urbana City Council meeting, and does not in any way mimic or represent the actions of any person at any recent public meeting in Urbana. This case has especially little meaning in regards to Urbana’s new speaking rules, which apply ONLY to virtual meetings, and not in-person meetings. All of the issues raised in Vega v Chicago could ONLY have occurred at in-person meetings. It makes no sense for Simon to cite this case in regards to Urbana’s virtual meeting rules.

Sandefur v Village of Hanover Park (Memorandum Opinion and Order)

Simon referenced Sandefur v. Village of Hanover Park, wherein a person was removed from speaking at a public meeting because he brought a gun into the board meeting. When people saw the gun on his hip, he was removed by law enforcement officers. Again, it is completely nonsensical for Simon to use this case as evidence that Mayor Marlin can restrict speech content. This case also has no meaning in regards to virtual meetings, and Simons has cited this case specifically in regards to Urbana City Council meetings held on Zoom.

I A Rana Enterprises Inc v City of Aurora (Memorandum Opinion and Order)

Simon referenced LA. Rana Enterprises, Inc. v. City of Aurora, which is, unlike every other citation that Simons has made, actually a case about the content of speech at public meetings. The issue of speech content that was raised was the Aurora Council’s rule that public input must be relevant to the meeting agenda. The plaintiff also complained that they were not allowed to speak at all at another Committee of the Whole meeting, since the Aurora City Council does not allow any public input at Committee of the Whole meetings.

The City of Aurora won a summary judgment in their favor, which doesn’t make any sense because they clearly violated the Illinois Open Meeting Act twice, right? Wrong. This lawsuit was filed in February of 2007, nearly four years before the Open Meetings Act rule (Section 2.06(g)) establishing public input went into effect. What the City of Aurora did in 2007 would be very clearly illegal today, and Aurora has long since changed their public input rules to allow speaking about any topic at every meeting.

This case has no modern-day application to the Open Meetings Act. It wasn’t even an Open Meetings Act lawsuit, it was a first amendment lawsuit, and the Open Meetings Act isn’t mentioned anywhere in the case files. James Simon having used this case to justify Urbana’s new public input rules is egregiously negligent.

In conclusion, Mr. Simon has not supplied any compelling or even slightly compelling PAC opinions or case law which would support Mayor Marlin’s actions at the September 14^th City Council meeting, or any similar actions by the Council promised at future meetings by Urbana’s new public input rules. In fact, every PAC opinion cited by Mr. Simon actually demonstrates an OMA violation by a different public body, and each only serves to support the claims I’ve made of similar violations by Mayor Marlin.

All of these citations and extrapolations put forth by James Simon indicate to me that he is either extremely negligent or extremely dishonest, or some combination of both. Simon’s efforts here are so plainly embarrassing and contrary to the interests and values of the people of Urbana that it is entirely irresponsible and untenable for Urbana’s elected officials to continue to ignore the issue.

The City of Urbana desperately needs new legal staff going forward, and a strong declaration, codified in ordinance, which would obligate that staff to always work in the interests of the people of Urbana. This declaration should be married to a detailed statement of City values (Urbana currently has no stated values), which should also entered into the City Code and accompanied by the creation of an Urbana Ethics Commission that can take action both independently and on behalf of residents who are subjected to abuse from the City Government. An easy first-step in this effort would be to remove Mr. Simon from the position of “ethics advisor” (yes, James Simon currently serves as Urbana’s “ethics advisor”).

I have sent this article to the Urbana City Council and Mayor Marlin, urging them to immediately call a special meeting specifically to remove Section 2-5 (which was passed on October 12th via Ordinance 2020-09-049 and established Urbana’s new public input restrictions) from the Urbana City Code.

-Christopher Hansen, Urbana

The following documents support the claims I’ve made above:

Urbana City Code Section 2-4 Public Meetings

Ordinance Amending Urbana City Code, Chapter 2, Section 2-4 (abandoned in committee – replaced with Section 2-5 proposal)

Ordinance Amending Urbana City Code, Chapter Two, Addition of Section 2-5 (Electronic Virtual Public Meetings) 2020-09-049 (2020-10-05)

Ordinance Amending Urbana City Code, Chapter Two, Addition of Section 2-5 (Electronic Virtual Public Meetings) 2020-09-049 (2020-10-12)

Ordinance Amending Urbana City Code, Chapter Two, Addition of Section 2-5 (Electronic Virtual Public Meetings) 2020-09-049 Final, Passed

Urbana Public Input Rules Derived from Ordinance 2020-09-049 (posted for 2020-10-19 City Council Meeting)

Illinois Open Meetings Act Request for Review 2019 PAC 59187

Illinois Open Meetings Act Request for Review 2018 PAC 55462

Illinois Open Meetings Act Request for Review 2016 PAC 45349

Illinois Open Meetings Act Request for Review 2015 PAC 38037