Megan Navarro
KYLE — The Foundation for Individual Rights and Expression (FIRE), a nonpartisan and nonprofit organization, sent a letter to Kyle City Council July 21 after a police officer was asked to intervene in the middle of a resident’s public comment during a council meeting.
During the citizen comment period of the May 27 meeting, resident — and former Kyle City Council member — Yvonne Flores-Cale spoke on agenda item 21. The agenda item proposed to amend the city’s ethics code to require the ethics compliance officer to forward complaints to the Ethics Commission only if they are “legally sufficient,” according to the letter. However, she stated that she opposed the amendment and suggested that city officials were trying to conceal unethical conduct.
“What exactly are City Attorney Aimee Alcorn-Reed and City Manager Bryan Langley trying to cover up? Is it the ethically questionable makeup of the city’s ethics committee? A council member nominating a friend to oversee the actions of the very person who nominated them? Seems like a blatant conflict of interest to me or perhaps it’s the affair between a council member and an assistant city manager — an affair confirmed not only by the spouse of one of the parties but also by multiple sitting council members,” Flores-Cale said in her comment, the letter read.
When Flores-Cale mentioned the alleged affair, Kyle Mayor Travis Mitchell “tried to gavel her down,” the letter continued and proceeded to share examples of ethics complaints that have been allegedly dismissed by the ethics compliance officer. After, the mayor called for police intervention; an officer approached her, turned the microphone off and escorted Flores-Cale away.
According to a statement issued to the Hays Free Press, the city said it disagrees with the characterizations of what occurred during the public comment period at the May 27 meeting. The city continued to state that Mitchell attempted to call the speaker to order, under the city council rules, after some of her remarks “appeared to fall outside the permitted scope. The speaker refused to yield to the chair, which led to confusion and disruption of the public meeting. She was ultimately asked to conclude her remarks and was not removed from the meeting.”
According to FIRE's letter, Mitchell defended his actions at the next regular meeting of Kyle City Council, "... citing rules banning ‘personal attacks’ and discussion of ‘personnel matters.’ This apparently referred to council rules that ‘prohibit the use of the citizen comment period to engage in personal attacks, discussion of personnel and employment matters, the use of profanity or ethnic, racial or gender-oriented slurs, or any ‘disorderly conduct’ which violates state or local law,’” the letter read. “In describing the ‘personal attacks’ rule, Mitchell said, ‘There is a line there. I’m not exactly sure what it is.’ He added, ‘You can’t call someone a liar, coward and thief. That’s not a debate. That’s not public discourse. It’s an open and hostile accusation.’
Mitchell’s statements at the meeting raised “serious constitutional concerns,” FIRE stated.
One of these being that the council's censorship of Flores-Cale and its ban on personal attacks are unconstitutional as, according to the group, the First Amendment protects speech by members of the public at government meetings. Public comment periods are limited public forums where the government may “restrict speech only on bases that are viewpoint-neutral and reasonable in light of the forum’s purpose” and council may “set reasonable time limits on comments or require they be germane to city business,” said FIRE.
However, the letter continued, council can not restrict comments that are relevant to city business, “no matter how objectionable or inappropriate it may find them. Nor may it restrict comments ‘when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.’”
The group also claimed that by cutting Flores-Cale’s comment short, Mitchell unlawfully discriminated against her viewpoint relating to an alleged affair between city officials and its influence on the ethics amendment. They also said that her reference to the alleged affair was directly tied to her criticism of a proposal before the council to amend the ethics rules and she argued that the policy change was motivated by a desire to avoid scrutiny of unethical conduct like the affair: “Right or wrong, she had every right to express that view,” the letter stated.
The city’s statement claimed, “The city of Kyle values and respects the First Amendment rights of all residents. Our public meetings are designed to provide a forum for respectful public input while maintaining fair and orderly proceedings.”
Later in the letter, the group alleged that council’s “blanket bans” on profanity and ethnic, racial or gender-oriented slurs “fare no better under the First Amendment. It is a ‘bedrock principle underlying the First Amendment’ that officials cannot restrict speech simply because some find it ‘offensive or disagreeable.’ This is no less true in the context of a public meeting.”
Lastly, the letter alleged that the censorship of Flores-Cale and rules restricting criticism of public officials violates the Texas Open Meetings Act that requires governmental bodies to “allow each member of the public who desires to address the body regarding an item on an agenda for an open meeting of the body to address the body regarding the item at the meeting before or during the body’s consideration of the item.” Along with that, according to the letter, the act states that a “governmental body may not prohibit public criticism of the governmental body, including criticism of any act, omission, policy, procedure, program or service.”
In response to these allegations, the city said, “The city’s current Rules of Council are broadly consistent with those of many municipalities in our area, designed to balance open expression with reasonable standards of decorum, and are fully compliant with the Texas Open Meetings Act. Even so, we are committed to reviewing our procedures to ensure they continue to align with legal standards and uphold the rights of all residents.”
FIRE called on Kyle City Council to immediately cease censoring protected speech and to revise its public comment policies to comply with the First Amendment, offering its service to assist the council in the process. They also requested a response to the letter by Aug. 4.
For Flores-Cale, she shared in a statement to the Hays Free Press that she is frustrated by the ongoing abuse of power by the city of Kyle’s administrative leadership and elected officials; according to her, she is not alone in those feelings “of being disregarded, and the recent violation of my constitutional and state rights through censorship only adds to that frustration.”
“As for the outcome I'd like to see — a little humility goes a long way. While an apology would be appreciated, at the very least, I hope the city of Kyle will take it upon themselves to amend the city's Rules of Council to ensure compliance with both state and federal laws,” she said.
The full letter sent to Kyle City Council from FIRE can be found at bit.ly/4lRCwuM.
