Portland Mayor Acknowledges New Council Code Of Conduct May Not Be Constitutional

By Amelia Templeton (OPB)
March 16, 2017 2:15 a.m.

In a unanimous vote Wednesday, Portland City Council members passed new rules that empower them to eject and bar people they deem disruptive. The policy will likely face a court challenge.

Related: Portland Mayor Delays Vote On Ejecting People Who Disrupt Meetings


The rules are similar to a previous city ordinance that federal Judge Michael Simon ruled violate protesters’ rights to free speech.

Mayor Ted Wheeler acknowledged that the ordinance "may not" be constitutional and will almost certainly face a legal challenge due to a provision that allows the mayor to exclude people from meetings for up to 60 days.

"There is a difference of opinion among informed attorneys as to whether this is constitutional or not," he said. "The right place to iron this out is the federal court system."

The mayor has said the new rules are intended to address the sometimes rowdy and hostile climate during City Council meetings.

A Year Of Disruptions


Over the past year, protesters have disrupted meetings to call attention to homeless people who have died on the city streets and to the death of a black teenager shot by Portland police.
They have also yelled profanity and slurs, left homophobic graffiti in City Hall and pointed and jeered at a city employee who received a restraining order against a protester who he says physically threatened him.

On Wednesday, a handful of opponents delayed the council's vote for more than an hour by signing up to speak on unrelated business the council had to deal with first.

They weighed in on the purchase of a new asphalt grinder, a request from the Portland Police Bureau for the authority to purchase more bullets and a small island in the Willamette River that Portland is giving to the city of Milwaukie.

"I understand you need to transfer this property. Clearly, your hands are full with murdered black children and houseless dying on you," said one woman who did not give her name. "How many bodies so far during your term, Mayor?

"You're clearly overwhelmed and unfit to do the job, so I can see why you'd  be in a hurry to unload this. I know you can see our attempts to communicate, and you ignore them."

Wheeler repeatedly asked people to keep their testimony relevant to the topic at hand.

At one point, several protesters who describe themselves as advocates for the homeless criticized the council for an agenda item authorizing $9 million in bonds to build affordable housing, a borrowing package approved by voters in November.

“What are you doing with this extra revenue of 9 million?” Mimi German asked. “I don’t know enough about it to speak about it, but it’s just disgusting that it’s just sitting somewhere and not being used in a crisis.”

'Inform Us Better'

When the time finally came to vote on the rules of conduct, protesters repeatedly yelled at commissioners as they attempted to explain their position.

"We often are working 10, 12 hours a day, 6 or 7 days a week," Commissioner Chloe Eudaly told the crowd. "There is often not enough time to take a moment to communicate to all of you what we are doing, which is clear to me today because of the fact that so many of you have said things that are absolutely untrue."

"Inform us better," one person called out in response.

"I'm trying," Eudaly said. "I need you to listen in order to do that."

Eudaly, who upset an incumbent last fall on a platform of helping priced-out renters, pledged to work with Wheeler to create more town halls and more opportunities for people to speak directly to the city's leaders. But she also rebuked the crowd for not doing their homework before testifying.

"It's not useful for you guys to come here and scream at us about things that are untrue, or we're actually doing. It's a waste of everyone's time, including yours," she said.  "My office has been open to all of you. The fact that I can't single-handedly and immediately satisfy your demands does not mean that we are not listening to you."

After she voted for the new policy, several people shouted "betrayal" and "sellout."

What Are The City's Next Steps?

Before casting his vote, Wheeler vowed not to enforce one key piece of the council's new rules: a provision that lets him bar people from council meetings for up to 60 days if they have disrupted three or more meetings in the past.

"The proactive provision will not be enforced until we have clear word from the federal court system about the constitutionality," he said.

The ACLU of Oregon has said barring people from future council meetings on the basis of their past behavior violates their free speech rights, on the basis of a 2015 court case the city lost.

"I'm glad they are not enforcing the exclusions because they are unconstitutional and shouldn't be," said Matt Dos Santos, the ACLU of Oregon's legal director. "I'm very confused at what they think their next steps are."

Dos Santos suggested that Wheeler's promise not to enforce the multi-day exclusion provision in the rules creates a sort of legal chicken-and-egg scenario: The federal courts are unlikely to weigh in on whether the city's new ordinance is unconstitutional until someone is barred from future council meetings on the basis of their past behavior.  

"We have been thinking through legal strategies that allow us to challenge it before there is an actual exclusion," Dos Santos said.