Have you heard the one about the Pensacola City Council, vote of confidence, circus, First Amendment rights?

Pensacola Councilwoman Sherri Myers has asked her fellow council members to pass a vote of confidence in favor of Council President Brian Spencer, whom Mayor Ashton Hayward criticized in a letter after the Pensacola City Council’s special meeting regarding the ECUA storage tank under construct on North Palafox Street. She placed it on the agenda for the Oct. 12 regular meeting.

In his Sept. 22 letter, Mayor Hayward indicated his displeasure with the “tone of the discussion and the disparaging remarks” directed toward the city attorney.

“The days are long past where the governing body of a community can chain individuals to a post in the public square and invite anyone to throw stones at them,” wrote the mayor.

Hayward placed the blame on Spencer and included with the letter a 20-page memorandum on meeting order and decorum prepared in 2014. He said, “In light of the improper decorum that was on display at Wednesday’s meeting, now is a good time to review procedural tools that you have as council president to conduct the meeting…”

After receiving the mayor’s letter, Myers sent him an email on Sept. 24 asking for more details.

She wrote, “I am not sure what part of the special meeting you were watching as there are no facts alleged in the memo… please be specific regarding the conduct you are complaining about and refer me to the time that it occurred so I can go back and watch it.”

The mayor did not reply.

At Monday’s agenda review, Myers declined the council president’s request that she withdraw the item. She said, “I’m not going to entertain moving it because this attack was not only on the council president, but as the council as a body. They accused this body of doing something that we have never done and would never do.”

Council President Spencer said he had received support from the community after the letter was made public and wanted to “sidestep (the) spectacle” of a Thursday confidence vote.

“I was honored to hear from many people that they felt that the meeting that I handled it as best as I could,” he said.

However, only the sponsor of an agenda item can withdraw it under council rules.

Calling the confidence vote a “circus item,” Councilman Larry Johnson argued the mayor was exercising his First Amendment right and asked for City Attorney Lysia Bowling to render an opinion on the matter.

“If I could, Mr. President, ask the city attorney if she would render opinion on does the mayor have First Amendment rights…” said Johnson. “When you talk about people having First Amendment rights, doesn’t that pass on to all people, even the mayor? I mean to me, he would have a First Amendment right to express himself, so this circus item can move forward to Thursday night, but I believe he has a right to … and whoever the mayor is, to express themselves, too.”

Bowling appeared to be little perplexed as to what Johnson was requesting.

“I would say that there’s a First Amendment right to speak,” said the city attorney. “I don’t see that it was a direction of council, but I could look at it more carefully if you wish. I understand the issue that you’re speaking of. I don’t think there’s a charter violation just from looking at the language.”

She reminded the council about an earlier opinion she issued regarding the usurpation and encroachment of the executive and legislarive branches of city government.

Bowling said. “I think that it’s clear that it would be inappropriate and a charter violation for one branch to direct the other branch to act, and I just … reading the letter, it appears that it’s just a statement, but not a direction. Nothing to mandating city council to act, so I don’t think it’s in the nature of a charter overreach. I think it’s just in the nature of free speech. I’d be glad to look at that more specifically.”

Johnson said that he thought the confidence vote was a waste of time since the council president’s last meeting would be in November.

“I think is a poor use of our time, so on a First Amendment … you know, you can’t have it both ways,” he said. “Either he has a First Amendment right to express himself along with everyone else or not, so I just think we could be spending our time with something more important than this right here. Thank you.”

Myers countered that the confidence vote has nothing to do with free speech.

“Nobody’s saying anybody doesn’t have the right to speak, but the council, we also have the right to express our views,” she said “And the mayor, I would love for him to start attending council meetings. He can certainly show up and express himself, and he can also sign up for three minutes and express himself however he wants to do it, but this is definitely not any restrictions on anybody’s First Amendment rights.”

Myers continued, “First Amendment doesn’t even factor in here. Nobody is restricting anybody’s freedom of speech.”


3 thoughts on “Have you heard the one about the Pensacola City Council, vote of confidence, circus, First Amendment rights?

  1. Re: Mayor’s absence from City Council meetings

    For discussion: Review the city charter regarding the use of the words “shall” and “must”. Determine where/if it would be proper to use “must” instead of “shall” in order to explicitly state an obligation. If any change is worthy, then initiate the process for an amendment.

    Personally, in the case of the mayor attending City Council meeting, I believe the word should be “must.”


    Section 4.01. Mayor.
    (a) Powers and Duties. The Mayor, who shall serve in a full-time capacity, and shall exemplify good citizenship and exhibit a cooperative spirit, shall have the following powers and duties:

    (11) To attend all meetings of the City Council with authority to participate in discussions, but without power to vote.

    Source: http://www.ci.pensacola.fl.us/ArchiveCenter/ViewFile/Item/222

    NOTE: In the ‘Charter for the City of Pensacola’ — 
    — “Shall” appears two-hundred-forty (240) times.
    — “Must” appears seven (7) times.



    According to:
    Federal Plain Language Guidelines (March 2011)
    Source: http://www.plainlanguage.gov/howto/guidelines/bigdoc/fullbigdoc.pdf (page 25)

    iv. Use “must” to indicate requirements
    The word “must” is the clearest way to convey to your audience that they have to do something. “Shall” is one of those officious and obsolete words that has encumbered legal style writing for many years. The message that “shall” sends to the audience is, “this is deadly material.” “Shall” is also obsolete. When was the last time you heard it used in everyday speech?

    Besides being outdated, “shall” is imprecise. It can indicate either an obligation or a prediction. Dropping “shall” is a major step in making your document more userfriendly (sic). Don’t be intimidated by the argument that using “must” will lead to a lawsuit. Many agencies already use the word “must” to convey obligations. The US Courts are eliminating “shall” in favor of “must” in their Rules of Procedure….

    Instead of using “shall”, use:
    • “must” for an obligation,
    • “must not” for a prohibition,
    • “may” for a discretionary action, and
    • “should” for a recommendation.


    According to:
    Federal Register
    Writing Resources For Federal Agencies > Drafting Legal Documents > Drafting Legal Documents, Principles of Clear Writing

    3. Use “must” instead of “shall”.
    • shall — imposes an obligation to act, but may be confused with prediction of future action
    • will — predicts future action
    • must — imposes obligation, indicates a necessity to act
    • must not — indicates a prohibition
    • should — infers obligation, but not absolute necessity
    • may — indicates discretion to act

    To impose a legal obligation, use “must.”
    To predict future action, use “will.”

  2. When Hayward attacks one of the Council he attacks the full Council and so those of us who they represent. Perhaps an alternative approach would be for the Council to vote to rebuke Hayward for violation of the voter-approved City Charter that requires him to exhibit “a cooperative spirit” that he does not. However, at some point, the Council needs to think about changing how the Council President and Council Vice President are selected. Perhaps the positions could be elected ones with voters asked to elect them during the November general election. The general election to elect Council members could be held in August with the candidate receiving the most number of votes elected to office. With the exception of the first Council President Maren DeWeese, all the others to include Spencer have openly said that it is a “non-leadership” position. That needs to change. Imagine if the Speaker of the Florida House of Representatives made such a statement. For years, I have urged the Council to grow a political backbone and stand up for itself and us. Some members like our District 1 Councilman Wu has actually said aloud that he is “afraid of the Mayor.” Why? Any easy place to start this Thursday is to direct that the City Administrator remove himself from the dais in Council Chambers. Nothing at all gives City Administrator Olson the express or implied authority to demand to participate in Council meetings just as Council members cannot have their neighbors sit in their seats and speak for them. I have also urged the Council to require that any person sponsoring an agenda item must be present during the meeting to explain and defend it. Starting this Thursday, the Council President would be on very solid ground to remove an agenda item sponsored by Hayward from the agenda if Hayward fails to attend a meeting where it is to be considered. The voter-approved City Charter does require the Mayor to “attend all meetings of the City Council.” If Hayward refuses, there should be political price for him to pay. Another option would be for the Council to request the Governor remove Hayward from office for “Neglect of Duty.” Once done, the Council President would be made Acting Mayor. As for the festering presence of Larry Johnson on the Council, we should remember that in 2014 he said he did not want to serve on the Council and would not seek reelection if “a working mother” wanted the position that pays pretty good at more than $150 an hour if you divide the salary by the actual number of hours worked with pension and family health care benefits too. There must be more than a few “working mothers” in District 4 to include Carolyn Fries who care enough about the future of the city to help rid us of Johnson and the political disease he spreads in city hall. Johnson’s arch-nemesis “Buttercup” of East Pensacola Heights could easily beat Johnson but unfortunately pot-bellied pigs are not eligible to qualify as candidates for elected offices of the city which seems odd given that Johnson habitually acts like a “pig” during Council meetings to include openly disrespecting the public when he even bothers to show up. at all.

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