Port Angeles city attorney struggles with definition of profanity

PORT ANGELES — Port Angeles City Attorney Bill Bloor is wrestling with the meaning of profanity.

He is preparing guiding principles for City Council members on a ban against use of profanity that they imposed on themselves last week by a vote of 6-1.

Bloor said Friday he could not yet define profanity in terms of what council members could and could not now utter.

He said he expects to report on his ongoing review of the prohibition, contained in new rules of procedure for the council and the public, at the council’s next meeting Sept. 5.

“I hope that I will be able to give them some advice about how to interpret that in the context of their rules,” he said.

American Civil Liberties Union spokesman Doug Honig said Friday the City Council would be wise to rethink its decision in light of the First Amendment.

“The restrictions interfere with the free speech right of council members,” Honig said.

“They leave a council member having to guess what is acceptable to say and not to say.”

City councils in Sequim and Forks do not have similar restrictions on council members’ speech, city officials in those municipalities said Friday.

Longtime Port Townsend City Councilwoman Michelle Sandoval, the city’s former mayor, said Saturday she was unaware if the council’s rules were that specific.

“On occasion, we’ve had issues where the gavel has had to be used,” she said.

Port Angeles City Council members on Tuesday approved new rules of procedure that can subject council members to an oral admonition, written reprimand, censure, expulsion from a meeting at which the conduct is occurring or removal from chairs and committee memberships for using profanity.

The profanity provision was suggested by Deputy Mayor Cherie Kidd shortly before the vote on the rules, in which Councilman Lee Whetham dissented.

Kidd said in a later interview that Whetham’s two “hell yes” exclamations at an Aug. 2 council meetings prompted her suggestion and that profanity was “self-explanatory” and consisted of “swear words.” She did not return a call for comment Friday.

Whetham was responding Aug. 2 to a voice vote, and a subsequent 4-3 show of hands, that stopped fluoridation of the city’s water supply at least until a Nov. 7, 2017, advisory election, when voters will decide if it should start up again.

Bloor said the etymology of profanity stretches centuries ago when religious blasphemy was a crime, but its definition has evolved to possess both religious and secular connotations.

“It’s very difficult to say this one word is or isn’t profanity because it does depend on the context,” Bloor added.

He expects to go through that at next Tuesday’s council meeting.

“I probably will give them at least some history of the progression of different meanings of profanity and certainly the progression of the courts’ treatment of the word in different contexts,” Bloor said.

Bloor also said courts are less concerned about City Council rules of conduct than they are about people who speak at public hearings and public comment sessions.

Jim Doherty, counsel for the Municipal Research and Services Center, which advises the state’s 285 cities on municipal affairs, said he did not know how many other cities have similar prohibitions, though many have rules that prohibit disrespectful speech, such as swearing.

“Profanity is probably a broad term that most people would associate with swearing,” Doherty said.

“When you prohibit profane or disrespectful language, you are just talking about speaking politely and decently, and it’s a judgment call for the person chairing the meeting as to how tightly or loosely to enforce that.”

The rules of procedure prohibit the council and public from disrupting council proceedings, but the public’s use of speech can be broader than council members’.

“Any limitation you put on the public has to be connected to an actual disruption of a council meeting,” Bloor said.

“That is the standard that is incorporated into the new rules of procedure.”

Whetham said Friday that he exclaimed “hell yes” out of happiness at the Aug. 2 fluoridation vote, a turnaround from Dec. 15 when the council voted 4-3 to continue fluoridation — and before Mayor Patrick Downie, who voted Dec. 15 to continue fluoridation, switched sides and swung the tide.

“I looked forward to putting fluoridation behind us for the next year and a half,” Whetham said.

“I’m not excusing my choice of words on that matter. It’s a constitutionally protected right.

“The profanity thing, I don’t see the link that council member Kidd is citing.

“I don’t see a problem with ‘damn,’ ” he added. “I’ve used that word before.”

Whetham, who believes the new rules give the council member chairing meetings too much power, said he also objected to the ban on signs in council chambers that are prohibited as part of the new rules of procedures.

He said the ban had been imposed on a case-by-case basis to mute fluoridation foes and became codified in the new rules.

“If we have a celebration for something good in our community, then all of a sudden, there are signs, clapping, booing and noises are allowed,” he said.

Whetham criticized city staff for their part in developing the sign restriction.

“The staff did nothing to halt, stop or slow down this proposed ordinance,” he said.

“I intend to take this outside Port Angeles for legal review, whatever comes out of these newly revised council rules of procedure,” he added, declining to elaborate.

“I’m not going to rely solely on Port Angeles city staff to tell me that’s a legal document.”

Forks City Attorney Rod Fleck said the Forks City Council does not have any regulations governing council members’ behavior.

In the 22 years he has been attending council meetings, there has never been a request to develop “rules of civility,” Fleck said.

Civil behavior at Forks City Council meetings “are kind of the norms of operation,” he added.

The U.S. Supreme Court, Fleck added, has tried to define profanity for decades.

“That is something that Port Angeles now finds it has to define and is going to have to do some research,” he said.

Sequim City Attorney Kristina Nelson-Gross said the Sequim City Council does not have specific rules covering council members’ decorum.

Sandoval, a Port Townsend councilwoman for 15 years, said council members as a rule were respectful toward each other, although they weren’t as cohesive during her first two years in office.

“Over the years, we’ve had numerous issues that were creating passion and emotion,” Sandoval said. “I say ‘damn’ once in awhile.

“It depends on how sensitive people are to what’s a swear word. It depends on which context things are as well.”

Honig said he did not know of any other cities in Washington with profanity bans similar to that imposed by the Port Angeles City Council.

“The [Supreme] Court has said very forcefully that public officials have free speech rights,” he said.

“Generally, city councils focus on conduct that actually disrupts council meetings, and they typically go by Robert’s Rules of Order or some other version of that.

“They can request that council members be courteous, but that’s different than saying you can lose a committee chairmanship based on a vague standard that says ‘I know it when I hear it.’

“Our hope in this for Port Angeles is that the council would take a further look at what they passed and change it, and realize it goes too far, and that they can find a better way and a constitutional way in dealing with their concerns of having courteous and respectful meetings, but understanding that what they have passed is not an acceptable response under our Constitution.”

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Senior Staff Writer Paul Gottlieb can be reached at 360-452-2345, ext. 55650, or at paul.gottlieb@peninsuladailynews.com.