The Town Council Sept. 6, had a lengthy back-and-forth discussion before voting 4-3 to adopt an amendment to the council Policy and Procedures making changes to the ethics policy.

Town staff set out to address concerns about the number of complaints being received that were determined to be without merit or frivolous. Town Clerk Linda Mendenhall wrote the proposed changes with help from Town Attorney Aaron Arnson and input from policies of other municipalities.

Prior to the meeting Mendenhall had passed along to the council a number of written comments received by email, nearly all opposed to the proposed changes. Dr. Rich Rutkowski set the tone of the discussion as the first member of the public to speak. Rutkowski said he believes the language is generally an infringement on freedom of speech and unconstitutional. He cited language in the policy that included terms such as misinformation, personal attacks, derogatory, negative comments, disparaging remarks. He said these are subjective terms that place a limit on free speech.

Several other speakers echoed Rutkowski’s comments. Liz Gildersleeve urged the council to “completely reject” the proposal. She called it a roadblock to citizens speaking their concerns and an effort to regulate free speech and censure colleagues. Lori Troller suggested the council would be violating their oath of office if they approved the changes.

Not all council members were on board with making changes.

“Why are we even doing this?” Vice Mayor Sharron Grzybowski asked. “I think this is asinine.” Grzybowski said the council should not be writing regulations that apply to themselves.

Town Attorney Aaron Arnson said the language is not a constitutional issue, but he added that he recommends a policy that provides some deterrent to frivolous complaints. A proposal for a $200 filing fee for ethics complaints was soundly rejected across the board.

Mayor Ginny Dickey noted that the language of the policy applies only to council members and not the general public.

“It is unfortunate that a ‘Golden Rule’ community needs to define ‘do unto others’,” Dickey said.

Councilwoman Brenda Kalivianakis also said the proposed language was a freedom of speech concern. “For the second Town Council meeting in a row, we addressed first amendment issues and freedom of speech. I am thankful that in both votes, reason and common sense received the nod to preserve this essential right in our town,” Kalivianakis said in a follow-up email to The Times Independent. “Everyone has the right to freedom of expression. This right includes the freedom to hold opinions and to receive and impart information and ideas without interference from government authority. To quote the ACLU, ‘free speech can be messy, but we need it’.”

Council members also questioned who the authority was to determine what language is subjective as well as determine what a frivolous complaint is. In both instances the policy calls for the assigned investigator, normally an outside attorney, to make those determinations.

“This does not look like a good document to vote on,” Dickey said. “I’d like to see it fixed and cleaned up.”

Councilwoman Peggy McMahon made a motion to continue the discussion to allow for legal direction in an executive session. Her motion did not get a second.

It was Kalivianakis who wrote an amendment to the proposed resolution on the ethics policy that was eventually passed. The amendment was presented to council members in the hours prior to the meeting but was not part of the agenda packet available to the public. The proposed amendments were discussed but never read to the public present for the meeting or tuning in.

“Knowing we had language Councilwoman Kalivianakis created in front of us that was not in the agenda packet, I purposely presented the process for the ethics policy discussion when we opened that item,” Dickey wrote in an email to The Times Independent.

“I asked for a motion on the resolution as stated (2023-30) so we could discuss her amendments, section by section. That’s how you have full, transparent consideration and ultimately, take the vote.

“As I noted at the meeting, a usual process on any action item before Council is to talk about the topic as presented, make amendments vocally if desired, further discuss them as a body, and if a vote is taken, they pass or fail. Unfortunately, Councilmember Skillicorn made the motion to approve Councilwoman Kalivianakis’ language, which was not clear to the public or the press without the context of the full resolution.

“Process was disregarded, and as a result, a majority passed a policy that makes filing an ethics charge potentially cost prohibitive, holding residents more accountable than the Council, and the public has no idea what it was.”

Councilmembers Gerry Friedel, Kalivianakis, Allen Skillicorn and Hannah Toth voted to approve the amendments presented by Kalivianakis. Dickey, Grzybowski and McMahon voted no on the motion.