Berkowitz lawyers say Burien can’t enforce ‘no social media’ during meetings


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By Jack Mayne

A letter from lawyers representing Burien City Councilmember Lauren Berkowitz says it would be illegal for the city to enforce a blanket ban or censure her for her use of social media during Council meetings.

Seattle attorney Stephen A. Teller wrote in a letter sent to Burien City Attorney Lisa Marshall that Berkowitz could continue to Tweet or post on Facebook or other social media. Otherwise the city would violate the Constitution.

Hanging in the balance is a proposed censure of Berkowitz for social media use during official council deliberations. The censure move by Councilmember Bob Edgar was slated for Council discussion at the April 3 meeting. It appears that Edgar has withdrawn his censure move following receipt of the lawyer’s letter.

All Burien Councilmembers were asked for comment on this development and only one responded.

‘Actual Disruptions’
Teller’s letter said his “firm represents Lauren Berkowitz in relation to her public communications while sitting as a Burien City Council member.

“It is our position that it would be unconstitutional for the City Council to censure Ms. Berkowitz for ‘tweets’ she sends out regarding City Council public business. We urge you to tailor any restriction on her public speech narrowly to avoid violating the United States Constitution.”

The lawyer said that a Council meeting guideline on banning the use of social media during meetings “is unconstitutional” because it prohibits all “electronic communications while a Council meeting is in session.”

Limiting speech at public meetings has been ruled by courts to be valid only when it prohibits “actual disruptions,” said Teller.

He cited an example where a California city passed an ordinance forbidding speakers who engage in “disorderly, insolent, or disruptive behavior.”

Teller wrote a censure of Berkowitz would be illegal, “and I am assured that she will contest it appropriately.”
“We are confident that the city does not intend to violate the U.S. Constitution,” 
Teller wrote.

Workplace rules
Councilmember Debi Wagner said many businesses restrict the use of social media in the workplace, and believes the Council has the same power in the Council meeting as a workplace.

But Berkowitz has said she is not an employee of the city but an elected official who attends a meeting as part of her job so that the Council is not her employer, therefore she is exempt from such workplace rules.

Here’s the text of the letter in its entirety:

Dear Ms. Marshall:

This firm represents Lauren Berkowitz in relation to her public communications while sitting as a Burien City Council member. It is our position that it would be unconstitutional for the City Council to censure Ms. Berkowitz for “tweets” she sends out regarding City Council public business.  We urge you to tailor any restriction on her public speech narrowly to avoid violating the United States Constitution.

It appears to us that Council Meeting Guideline 22.4(1), “Use of Social Media by Councilmembers – Standards of Conduct,” is unconstitutional insofar as it prohibits all “electronic communications while a Council meeting is in session.”

As you are certainly aware, in order for a rule limiting speech at council meetings to be valid, it must prohibit only “actual disruptions.”  For example, Costa Mesa, CA passed an ordinance that forbade “members of the public who speak at City Council meetings to engage in “disorderly, insolent, or disruptive behavior.”” Acosta v. City of Costa Mesa, 718 F.3d 800 (9th Cir. 2013) (ordinance stricken); see also Ernst v. City of Bellingham, 177 F. App’x 652, 654 (9th Cir. 2006) (action upheld due to actual disruption of City business).  These cases should provide adequate guidance to you so that you can assist the City Council to avoid violating Ms. Berkowitz’ rights.

In Acosta, the Ninth Circuit held that by barring more than “actual disruptions” the City violated the Constitution with its ordinance.  A censure of Ms. Berkowitz would be similarly illegal, and I am assured that she will contest it appropriately.

We are confident that the City does not intend to violate the US Constitution.  Please feel free to contact me if you have questions or concerns.

Thank you for your service to local government.  It is appreciated.

Thanks,
Steve

Stephen A. Teller
Teller & Associates, PLLC
Seattle

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Comments

44 Responses to “Berkowitz lawyers say Burien can’t enforce ‘no social media’ during meetings”
  1. Trevor says:

    Thank you Debi for standing up!

    • Michael says:

      For what? The right to be distracted and not pay full attention in Council meetings?
      Shes an addict. Just because you can, does not mean you should.

      • Dogboy says:

        Debi Wagner was the person trying to get Berkowitz off social media during the council meetings, not the one on Facebook/twitter

    • On Lake Burien Miinor says:

      Standing up for what? For claiming that an elected official is subject to the same free speech limits as an employee of the private sector? If Ms Berkowitz were a public employee, she would have constitutionally protected free speech in the workplace so Ms Wagner’s comments are beyond the pale for a public official.

  2. Maureen says:

    How about holding off on social media just for the sake of COURTESY? Can’t the social media wait until after the meeting? When I’m meeting with a client, I’m not on social media or email with anyone other than those with whom I’m meeting, unless, as the group that’s meeting, we all want to inquire of or inform someone outside of the meeting. If I’m enjoying a meal with someone, I’m not texting or tweeting others… I’m focussed on the person with whom I’m having the meal. If I’m attending a meeting as a volunteer, not paid a penny, (therefore, not an employee) I’m still not tweeting during that meeting. Sure, constitutionally I’m allowed to be in contact with others while I’m meeting or eating, for instance, but it’s just rude.

    • Lee Moyer says:

      I agree the tweeting is rude, but it also is no big deal. It is an issue only because of the handful who disagree with her on a few council issue positions and want ammo to sustain their bitter personal attacks.

      • Question Authority says:

        So what your saying is – It may be rude but totally legitimate for her to stay home so she can tweet? Do you actually feel she is fulfilling her sworn duties to serve the citizens of Burien by this personal stance? You have obviously lost your ability to be considered a rational thinker by openly supporting Bezerkoitz and her actions.

      • Question Authority says:

        You’ve been drinking from the Liberal Kool- Aid fountain again haven’t you? So her need to Tweet justifies her need to stay home? That argument is on the wrong side of common sense and rational thinking.

      • Peter says:

        Translation of Lee’s comment: It is rude but I’ll give Berkowitz a free pass because I agree with her politics.

    • Janet says:

      Exactly!

  3. Meri Haydon says:

    So basically Burien city council has a jr female Trump who cares nothing for the people she represents. A tweetlawyer. Hmmm. Hahaha.

  4. DJT2020 says:

    This Berkowitz lady has got to go in the next election.

    She’s more concerned in furthering her political career through partisan stunts to get media attention than making Burien a safe place to raise our children.

    She got elected on false pretenses and now her true colors have been exposed.

    SHE DOES NOT REPRESENT THE GOOD PEOPLE OF BURIEN!

    • Question Authority says:

      With a past like she is acquiring I don’t think she has a chance being elected to serve in any capacity, the Web never forgets.

  5. Joey says:

    Can I just say, the picture of the speakerphone with the caption of “Lauren Berkowitz Councilmember” *completely* made my day.

    Really, really great.

  6. rlc says:

    Really sick and tired of this Laura drama. Our city has many serious problems and her drama does nothing but make it worse. Laura show up do your job or better yet don’t run for re-election. Please save us all

  7. Winechick says:

    If she is not an employee, then I guess she doesn’t qualify for the benefits she is collecting…

  8. Brody Scanlan says:

    Thank you Lauren for always attending the Council meetings and showing that you are performing the same functions as the rest of the CMs and also standing up for yourself when others attempt to censure you.

  9. KitKat says:

    Who authorizes her pay check, who’s account is the check drawn on and who signs her pay check. Just curious… I know they are paid very little but where does the money come from?

  10. Joel A. Manning says:

    An elected official? The clock is running out on that term..

  11. Question Authority says:

    Does Bezerkoitz accept any monetary compensation as a Council member? If so she is an employee and should follow workplace rules, although it’s obvious rules don’t apply to her privileged self, at least that’s what she thinks. It is absolutely mind boggling that her need to tweet is the sole reason she needs a left leaning liberal lawyer to represent her for such a useless endevour. This is what some of you elected.

  12. PatHToLogic says:

    So we continue to run a daycare center for with ‘this person’ rather than have a contribution of some positive effort to maintain, improve and govern our fair town….come on, folks, enough! What were you people thinking when you voted….amazing!
    Sign of the times….allow, empower negativism, reject, negate, be as socially destructive as possible and never contribute positively……whatever….

  13. Very Concerned says:

    She doesn’t PARTICIAPTE. She phones in her attendance which is disgusting. People of the city SHOW UP to communicate. This elected “official” phones in and comments on all the speakers. Really disgusting.

  14. Tom Taaffe says:

    I suspect that Mr. Teller is right on in his analysis of the law. But remember Mr. Bumble in Oliver Twist who famously said, ” If the law says that then the law is a ass”.
    But putting the quibblings and quiddities of the law aside it seems that decency and common courtesy to the citizens of Burien would reqiire full attention to the proceedings of the council and the business of the City of Burien. Tom

  15. Pat Paulsen says:

    I’m sorry but this nonsense seems all out of proportion to the offense. Ms Berkowitx has always shown up as far as I can see. She just hasn’t shown up in the way you want. If she attends the meetings, listens to the issues and gives her informed input, who am I, or any of you, to say she isn’t doing her job.

    This sounds like more of the Burien culture of hate that has been so in evidence the past few years.

    • Tom Taaffe says:

      Pat: I sure hope that I am not caught up in what you refer to as ” the culture of hate”. I am very well aware of its’ existence and I am totally opposed to it. In fact on the issue of the absentee councilperson I have found myself in agreement with people whom I know by their names or their aliases and whom usually disagree with. Strange bedfellows indeed.
      Imagine a council meeting in which all of the members attended by remote means. They could all dash in for a minute while a vote was taken to pass the quorum rule and then dash out again to avoid facing their constituents.
      This just isn ‘t right Pat. It really isn’t. Legal maybe but wrong. Attendance in person by the elected official – probably facing an unhappy constituency – is part of the job. “Attending”
      Electronically smacks of a Brave New World that should be relegated to fiction. Tom

  16. Question Authority says:

    Her parents must be so proud, they have raised someone who is better than everyone in the whole wide world. What’s next, we have to start legally referring to her as “She who Tweets, but will not meet”

  17. Diane says:

    I believe Stephen Teller’s letter to Ms. Marshall puts forward a phony constitutional argument. It is silly to think the First and Fourteenth amendments justify Lauren Berkowitz’s persistent refusal to follow reasonable norms of responsible public service.
    Mr. Teller’s case references have nothing to do with a member of a public governing board as distinguished from the audience or demonstrators she may be dealing with. Ms. Berkowitz persistently refuses to physically attend meetings and face her electorate, and instead submerges herself in social media distractions.

    If she insists on continuing this course of action instead of maturely participating in the duties of her office, we the citizens of Burien should recall her now and get rid of the distraction. This city has serious problems to deal with.
    Don’t wait for December!

    Last week it was a threat to sue the B-Town Blog. This week it’s a threat to sue her fellow city council members. There are far too many new lawyers out there.

    • Question Authority says:

      Speaking of Lawyers, did you hear the one about the bus full of them that drove off the cliff? The sad news is, there was one empty seat. Disclaimer – only the useless types were on board because I have some form of compassion.

    • Testing 123 says:

      If a council person can call in from home shouldn’t the council provide citizens the same courtesy? I’m sure they would get more community involvement from the citizens they represent. There many conference calling solutions they could implement. We are a progressive forward looking city……right?

  18. Brian Braun says:

    So let me get this straight, this is the same Berkowitz who never shows up for council meetings but rather via a black space ship with lights on it lands on a desk, the same Berkowitz that’s been on paid tax payer dollars for a year for maternity leave, when she does show up for work she can sit on her phone or computer and post to social media during business. Am I getting this right. Someone please explain to me anybody else that there employer would tolerate this kind of abuse. This is Bull S__t. She needs to be dismissed 6 mos ago. Could she be saying to the tax payers screw you anymore. Unbelievable behavior. Absolutely disgusting……….

  19. leroy says:

    If one follows M’s Berkowitz’s, social media interactions, it does not really take a rocket scientist to ascertain her motives.

    She in my opinion, only cares about pushing, her belief system. She cares not, about the city of Burien, it’s business or homeowners.. My guess, she only ran for city council so she could push her ideas. And give herself a platform on which to further her agenda.

    In that light her staying home and just calling in makes perfect sense. From her point of view.

  20. Clean it up! says:

    Lauren B (It’s all about me!) strikes again. Ignore her until she’s gone. It’s our only defense against her mania. Please stop calling her an example of liberal thinking and such. She is all about herself and only herself – the self indulgent angst of a teenager in an adult body. She is something to be endured until it is over, like a bad cold or a migraine. I know it seems like forever until we are rid of her, but we will be eventually. She gets to live with herself for the rest of her so called life. I think we get the better deal when seen from that prospective. Leave her to her ignorant tweets and death spiral of self indulgence. We have real issues to take care of. Step around her and as you would any disgusting thing on the sidewalk and carry on.

  21. Heather says:

    No accountability. Wonder if they could just move the meeting to her house since she refuses to show up? Have sign will travel!

  22. Rick McMichael says:

    Come on Lauren, get with the program and do your job.

  23. Ghost Of Maplewild says:

    I want JACK back!

  24. Sean says:

    Lauren Berkowitz is absolutlely useless, If she had any respect for herself much less the people of Burien she would resign since she apparently can’t show up to work like everyone else. She needs to go now, enough is enough.

  25. Big Duke says:

    Of course her lawyer is going to take her side. That’s what lawyers do. I say move for censure and let her sue. A judge can decide, that’s what judges do. Come on Edgar, grow a backbone.

  26. Burinal Dumas says:

    If Berkowitz never shows up at council meetings how do we even know she still lives in Burien?

    For all we know she could have joined ISIS and is Skyping to us from Afghanistan.

  27. Clean it up! says:

    What to we do if all the council members lawyer-up and demand to only phone in???

  28. Captain obvious says:

    These are all the same blog posters that prefer to blame bicker and complain with out actually doing anything to fix a issue.

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