Panel told not to post about Downtown Phoenix Dog Park online

[Source: Emily Gersema,]

Phoenix city staff have told a 73-member committee charged with finding a location for a new dog park that they can’t discuss their meetings and opinions on blogs and social networks such as Twitter, a warning that some attorneys believe is a violation of free speech.

Phoenix staffers issued the directive this month, saying blogging or tweeting could violate the state’s public-meetings laws.

At least one member of the Ad Hoc Dog Park Committee, Sean Sweat, balked at the warning because he believes it’s a matter of free speech.

Sweat, who lives in downtown at St. Croix Villas and blogs about downtown issues, said city staff made similar warnings at the committee’s first meeting on Dec. 14.

The committee must suggest a new dog-park site in or near the downtown area by Jan. 31. The site must be inexpensive to develop and maintain. Most members are volunteers who live in neighborhoods in and around downtown Phoenix.

Phoenix’s open-meetings coordinator, Joey Casto, responded to Sweat with a letter on Dec. 16 warning that blogs and other online statements could prompt committee members to comment online and have a discussion outside of public view.

If enough members commented, there could be an informal quorum, which would be illegal because the discussion would be taking place outside of public view, Casto wrote.  “The city strongly discourages board members from having any discussions with each other about board business outside of their publicly posted meetings,” he wrote.

Given the committee’s size, the risk of a quorum appearing online is slim. With 73 members so far and a maximum membership of 80, it’s the largest committee in the city and would need more than 37 members online to constitute a quorum.

Two attorneys consulted by The Arizona Republic read the letter and said the city is going overboard on its interpretation of the state’s open-meeting law. They said it verges on infringement of Sweat’s First Amendment right of free speech.  “What the city is doing here is it is essentially squashing this member’s free-speech rights because some other members might post comments,” said Mike Liburdi, a Phoenix attorney speaking for the Arizona First Amendment Coalition. “There’s a lot of less intrusive ways of dealing with this that don’t infringe on his First Amendment rights.”

Liburdi said city staff could have asked Sweat to disable the comment capabilities on his blog, but even then, their warning is extreme. “I think they’re impermissibly chilling Mr. Sweat’s First Amendment rights based on this hypothetical concern that some other members may post replies,” he added.

Paul Bender, an attorney who teaches U.S. and Arizona constitutional-law courses at Arizona State University, said he would have thought that city staff would encourage a public blog because it is transparent, providing public information.  “My reaction to (Casto’s) letter is if the blog is open to the public, I don’t think it would violate the open-meeting law,” he said. “The spirit of the open-meeting law is that the committee is not supposed to be getting together in private.”

City Council members routinely send out newsletters telling their constituents about their positions on issues that the council hasn’t voted on.

Casto said he has not heard of any effort to tell them to stop doing so. He also said he didn’t mean to infringe on Sweat’s freedom of speech.  “We were definitely not trying to squash his First Amendment rights,” said Casto, who had consulted the city’s Law Department before sending Sweat the letter. “We tried to make sure that . . . the blog or e-mail is not used to circumvent open-meeting law.”

Three-fourths of the committee must agree on the site for the new dog park. The next meeting is Jan. 6 at 6 p.m.

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