AURORA | Aurora city officials want to ensure city employees won’t testify or take positions contrary to City Council’s stated position on issues without running afoul of those workers’ First Amendment rights.
But council members took issue with a proposed measure aimed at addressing that issue at a study session Monday, July 25. They agreed not to move forward with a measure that would require city employees to ask the city’s permission for testimony that is related to “the scope of an employee’s duties.” The measure would not apply to employees who testify as private citizens.
The measure was prompted by a bill passed by the state legislature this year that prohibits municipal courts from jailing poor defendants who can’t pay fine. This year, presiding Aurora Municipal Court Judge Richard Weinberg testified against the bill to the state House Judiciary committee, while at the same committee an Aurora public defender testified in favor of the bill.
House Bill 1311 stirred controversy in June when Aurora City Council gave the Aurora Municipal Court authority to vacate 4,454 outstanding warrants for low-level crimes following the bill being signed into law.
“I think this policy should just say to employees, ‘Be careful when you go to the legislature,’” said Aurora Ward IV Councilman Charlie Richardson, who said he didn’t support having two city officials disagree publicly in the state legislature, but that the measure would violate employees’ First Amendment rights.
“Don’t say you represent Aurora. Just say you’re a private citizen,” Richardson said.
Richardson also asked Aurora City Attorney Mike Hyman whether the employee in question would be punished if the amendment passed. Hyman said they would.
“This is a trap, a setup to ensnare some poor city employee,” Richardson said.
An Aurora City Council committee that reviews state legislation also opposed the measure, but according to city documents, there is no clear direction on the process for city employees to receive permission to offer testimony to legislative and rule-making bodies.
“As a city employee they need to respect protecting the city with this policy,” said Aurora Ward VI Councilwoman Francoise Bergan, who supported the measure. She said the city should at least have a policy for giving warnings to employees who continually violate the city’s advice and testify as an Aurora employee against city-supported legislative issues.
Aurora Mayor Steve Hogan said this was the first time he has seen the issue come up in a decade.
“It’s not like we’re facing this huge problem,” he said. “I don’t think it’s worth a formal resolution.”
City officials say the measure would be in accordance with a 2006 ruling the United States Supreme Court made concerning First Amendment free speech protections for government employees. In that case, Garcetti v. Ceballos, the U.S. Supreme Court narrowly ruled that a district attorney who claimed he had been passed up for a promotion for criticizing a warrant did not have First Amendment protection because he made the criticism as an employee and not a private citizen.