Benson nixes calls to public for now

The evidence of the difference between the San Pedro River during monsoon and the rest of year is evidenced by the sandbars deposited during floods and the low flow during the dry months.

BENSON — “The recent change regarding the Call to the Public seems to have been viewed as stopping members of the public from speaking to or otherwise communicating with our Mayor and Councilmembers. This is simply not the case.”

So said Benson city manager and city clerk Vicki Vivian in response to questions about the decision to remove call to the public from city agendas.

Calls to the public allow residents to bring information to governing bodies, but the matters brought up cannot be discussed by the council members, she added. People may “submit that information at the council meeting in a letter or notes, or contact them by mail, email, calling and speaking to a requested council member or leaving a message for them.”

According to Arizona Statute, “A public body may make an open call to the public during a public meeting, subject to reasonable time, place and manner restrictions, to allow individuals to address the public body on any issue within the jurisdiction of the public body.”

The word “may” allows governing bodies to hold them or not at the discretion of the members.

However, when a call to the public is listed on an agenda and someone signs up to have their five minutes to address the governing body, the person expects to be heard. So, it was a surprise during the council meeting on July 22 when Mayor Toney King called upon Sierra Vista resident Tricia Gerrodette, who signed up to speak, and she was silenced. Before she could get to her feet, Councilman Joe Konrad made a motion to adjourn the meeting, a second was given and the council voted to end the meeting.

“I was stunned,” said Gerrodette. “This has never happened before.”

The move was so shocking to Gerrodette, she filed an Open Meeting Law complaint with the Arizona Attorney General’s Office (AGO) shortly after.

After reviewing the agenda and the audio recording of the meeting, Katherine Jessen, assistant attorney general, determined the Benson City Council had violated Open Meeting Law.

Jessen stated in her finding, “Once a public body permits a call to the public, it creates a ‘limited public forum.’ As such, a public body may only impose reasonable time, place and manner restrictions on speakers during a call to the public. Each person wishing to address the public body must be subject to identical time, place and manner restrictions. To impose different limitations based solely on an individual’s identity or content of their speech potentially implicates numerous First Amendment concerns.”

In fact, Jessen found in listening to the recorded meeting, Konrad made the motion three seconds after King called on Gerrodette.

“By adjourning the meeting before conducting the duly noticed call to the public, the council prevented a member of the public from speaking. Because preventing a member of the public from speaking during a call to the public is not a reasonable time, place or manner restriction, the council violated the Open Meeting Law,” Jessen wrote.

To remedy the violation, the mayor and council members were “to acknowledge this letter’s conclusion at a duly noticed council meeting.”

The council placed the acknowledgment under an executive session at the Sept. 9 meeting. It was noticed as a “discussion or consultation for legal advice with the attorney or attorneys of the public body and discussions or consultations with the Mayor and Council’s designated representatives to discuss Open Meeting Law requirements and processes.”

At the Oct. 14 meeting, the council acknowledged Jessen’s letter on the consent agenda, through city attorney Gary Cohen. He pointed out no penalty was issued, and the acknowledgment by the city “is not an agreement with the conclusions in that letter.” Jessen’s letter to the council could not be found in the council’s packet of information on meeting agenda items.

Gerrodette said of the council’s handling of the situation at that meeting, “The brief analysis provided in the packet is belittling and insulting, in my opinion. I believe it’s also wrong in claiming that the particular call to the public on the July 22 agenda is entirely discretionary and optional. Once call to the public has been placed on the agenda, it is no longer discretionary and optional. I urge the Attorney General’s office to look into this situation and decide if the remedy specified in their August 27 letter is being complied with by this action on the October 14 consent agenda for Benson City Council.”

No calls to the public for nowCalls to the public have been absent from city council agendas since then.

Vivian said she talked to a resident prior to a recent meeting, “who was dismayed he could not address the council directly.” She told the resident he could give the mayor and council all the information he wished via other avenues such as email, calling the office, mail or handing it in to the office. I also hope that people feel they can always speak to city staff. As with council, staff may not always have the answers to those questions, but we are happy to discuss city issues and share information with anyone who requests it.”

Another viewpointGeorge Scott, with Southeast Arizona Economic Development Group, in a letter to the editor of the Benson News-Sun about the issue, stated, “There has been much misleading coverage on decision by Benson City Council to suspend Call to the Public. The reason for suspension of Call to the Public is simple: Patricia Gerrodette, an activist and resident of Sierra Vista, not Benson, browbeat and bullied council so relentlessly council decided it was time for a ‘timeout’. That is the only reason.”

He took issue with Gerrodette’s complaint to the AGO and wrote she should have “sat down with council members and had a respectful conversation. This issue could be resolved easily. Withdraw the complaint, sit with council members and agree to cease bullying the City Council. Simple as that.”

His perception of Gerrodette’s acting in concert with the Center for Biological Diversity and other conservation non-profits, is an intent to derail Villages at Vigneto, a sprawling multi-purpose development which will benefit the city’s and the county’s economy.

Scott noted most Benson local businesses and residents, as well as the city and the county strongly support Vigneto, now a year behind in its development.

“Because of incessant lawsuits by the Center for Biological Diversity and others, this development is three years behind schedule. It is high time we all stand up to the anti-human campaign to depopulate Cochise County,” emphasized Scott.

Gerrodette responded with her own letter to the editor to the Benson New-Sun, witing, “I’m equally bemused and proud that I’m so scary to the Benson city council that they have removed Call to the Public on the meeting agenda so that they don’t have to face me. For those who don’t know me, I stand five feet tall and I’m 69 years old. Not what usually comes to mind for someone intimidating. Or in the words of George Scott, I ‘browbeat and bullied’ the city council into feeling they had to remove Call to the Public from the agenda to escape my words. In doing so, however, the council is denying all members of the public the chance to speak to the council.”

“I’m perfectly willing to sit down and talk with council members, as suggested by George Scott in last week’s commentary, but how would that happen? In a work session or a regular meeting,” she added.

As far as Scott’s assertions she is “anti-growth, anti-progress,” Gerrodette wonders how he can make such assumptions without having some sort of meaningful conversation with her.

She concluded, “He may be unaware of my deeply held concerns for the environment and for following the law, but he is ascribing views to me without any basis for doing so. I love the San Pedro River and the life it supports. I will continue to work for its protection however I can. And that would include sitting down with Benson city council members or Vigneto representatives, anytime they are willing.”

Legal battle continuesCurrently, Earthjustice, which represents a number of conservation organizations including CBD, Tucson and Maricopa Audubon and Sierra Club, is waiting on judgement on an amended complaint to force U.S. Game and Fish to thoroughly study the impacts on protected and threatened wildlife and wildlands and Army Corps of Engineers review a larger territory for planned grading and filling of washes for the 404 Rule under the Clean Water Act. This is due to Vigneto’s proximity to the San Pedro River and the federally protected San Pedro Riparian National Conservation Area. The court’s decision will not be reached until next year.

Gerrodette remarked, “Lawsuits are not filed frivolously, despite what some people believe, and they are filed when people think laws are being broken. Then a judge makes a decision about the merits of the case. That is how our system works.”

In regard to the legal wrangling, Lanny Davis, attorney for El Dorado Holdings and Vigneto, pointed out, “There is not a single fact supporting that the Villages would in any way endanger the San Pedro. The Arizona Department of Water Resources, the only state agency with expertise and jurisdiction over water adequacy judgments, certified that the Villages will not affect adequacy if water supply at least for 100 years. If that is the case for Benson, it logically follows that would be the case for San Pedro just three miles away.”

The Corps already analyzed the impacts of the 404 permit and decided to allow fill material to be placed in desert washes, Davis added.

He stated, “The Clean Water Act doesn’t require ‘any disturbance’ of a desert wash to be studied and mitigated. Moreover, there are no wetlands or streams on the Villages property – only desert washes that rarely contain water. The Corps’ permit allows fill material to be placed into desert washes on the Villages property to construct road and utility line crossing and related improvements. The Corps is obligated to consider on the effects of its permit, which allows fill material to be placed in desert washes. The evidence will show that the Corps did so.”

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