Saturday, July 16, 2022

Councilman Bob Yates’ monthly newsletter was the subject of a nearly hourlong debate this week over appropriate speech for elected officials. But if you were listening to Thursday’s city council meeting, you might not know it.

Yates and his offending text were never mentioned; council members kept to their long-standing tradition of not directly naming colleagues during disputes. But his conduct drew heavy if subtle criticism, and may eventually result in an “aspirational” addition to rules about how local officials should represent their views and one another in public.

At issue was Yates’ July issue of Boulder Bulletin, the emailed newsletter he sends to some 6,700 residents each month. In it, Yates explains recent votes and council action, previews upcoming topics, shares his views and sometimes features area nonprofits. Readers are introduced to local issues, and a deluge of calls and emails to council often follows coverage of more controversial matters.

His take on moving city council races to even-year elections — which he opposes but the Progressive majority advanced to voters for this fall’s ballot —  questioned the motives of his colleagues. He characterized the effort as a “scheme” and his peers as having “Chutzpah,” which he defined for readers as “audacity or temerity, sometimes to the point of hubris. It characterizes an unrealistic overconfidence, unconstrained by convention, tradition, or prudence.”

The point-of-view didn’t go over well with councilwoman Nicole Speer, who read from a prepared statement Thursday evening to kick off the discussion she requested.

“How we represent each other to the public … affects our ability to trust each other and work together effectively,” Speer said. “It’s critical for us to be able to disagree without mischaracterizing or misinforming the public and without stoking fear, confusion, and mistrust in the public process.”

Speer requested a rule or informal agreement among council members to speak “truthfully and accurately” about one another in the public sphere, and stick to “subjects” rather than characterizations of individuals.

“It’s not at all to stop us from talking about things we are interested in,” she said. “It’s asking us not to focus on each other, our intentions and motivations, but rather our policy proposals.

“What I’m trying to do is not constrain us but invite us to a higher level of discussion.”

Intention, aspiration and commitment

There is a code of conduct for elected officials on Boulder’s books. Chapter 7, section 2-7-8, titled “Expectations,” attempts “to establish ethical standards to guide public officials.” It prescribes behavior regarding more serious issues like fraud or bribery, but also stats that council members shall:

(2) “Perform duties with honesty, care, diligence, professionalism, impartiality and integrity”
(3) “Strive for the highest ethical standards to sustain the trust and confidence of the public they serve, not just the minimum required to meet legal or procedural requirements” and
(7) “Treat colleagues and members of the public professionally and with courtesy”

All of these rules are only enforceable through censure, an official procedure that no recent council has undertaken. Any rule on speech would likewise not be legally binding, City Attorney Teresa Tate advised: It would have to be “aspirational” in nature.

That would be enough, Speer said. “We can make a commitment to each other.”

Still, for some on council, even an unofficial pledge was a step too far.

“I’m leery of signing on to things that would infringe on my ability to use my voice in a way that is earnest and honest in trying to advocate for the community,” councilwoman Rachel Friend said. Though “I personally try very hard not to say disparaging things about colleagues,” and to be transparent and accurate, “I’m not interested in committing to not speaking in any particular way.”

Appropriate speech has been a big topic for this council. They forced a rewrite of expectations for participants in open commentDedicated time at the beginning of regular council meetings, where up to 20 members of the public ca... and public hearings, prompted by a handful of swear-y speakers. (While obscenity, racial epithets and other disruptive speech is prohibited, the guidance says nothing of truthfulness or respect.)

There was also much agita — to use another Yiddish-adjacent word;* this one means “anxiety, stress or aggravation” — over a proposed civility pledge during the last election season. Similar to Speer’s suggestion for council, signers to the pledge agreed to “stay focused on debate over the issues” and “refrain from attacks on individuals or organizations that impugn their character or motivation.”

Ironically, some council members found themselves on the opposite side of the civility debate on Thursday. Speer declined to sign it, as did several others. Councilman Mark Wallach, who brought a civility pledge forward in 2019, argued against Speer’s recommended rule.

“To the extent you’re asking council members to restrain their speech,” Wallach said, that’s not something “I can get behind.”

A majority of council seemed to at least somewhat support a resolution or rule of some kind. It could be an “intention,” Mayor Aaron Brockett said.

“We can’t police each other. We want to try hard to model behavior.”

He and others spoke about the disproportionate impact of divisive speech on vulnerable people. I’ve seen “over and over” that female council members get emails with the absolute worst criticism and language, he said. “It’s appalling.”

City Attorney Tate said she would draft something and bring it back to council for approval and, likely, more debate.

Perfectly legal, but maybe shady?

This is not the first time Yates’ newsletter has disturbed his political opposites. Boulder Library Champions took so much offense at what he wrote on a proposed district that they published two blog posts correcting “myths.”

Other Boulderites have been confused and upset after finding themselves on Yates’ mailing list after contacting city council. Three separate people contacted Boulder Beat over the past several months about it. One shared a message they received from Yates’ official email account introducing them to the Boulder Bulletin and directing them on how to opt out.

“If you have no objection, I would like to add your name to the Boulder Bulletin mailing list,” it read. “If you’d rather not receive it, just drop me an email, or ‘unsubscribe’ when you get the next edition on Monday.”

That’s perfectly legal, said former city attorney Tom Carr.

“Emails to council are public record,” Carr said. Anyone “can make a records request for that information and send them emails, too.”

“It’s probably legal but it’s shady,” said Anna Segur, who was started receiving Yates’ newsletter after emailing council. It “borders on abuse of the position and his access to residents’ emails. I have not been added to a newsletter for any of the other city council members that I have written.

“I have unsubscribed myself from his newsletter because I didn’t want to read any more Bobaganda.”

Current city attorneys declined to comment through a spokesperson about whether or not Yates sought legal advice from them regarding his newsletter.

“It is the City Attorney Office’s position that they cannot discuss legal counsel they provide to specific council members,” Sarah Huntley wrote in response to calls and emails. “The City Attorney’s Office advises elected officials in their official capacity.”

Councilwomen Rachel Friend and Junie Joseph also publish newsletters related to their roles as elected officials. Friend does not automatically subscribe people who email her official council email, she said.

She did consult former City Manager Jane Brautigam to see if city officials would review the newsletter for accuracy. They were willing to do that, Friend said.

It’s unclear if Yates’ newsletter is reviewed by city officials prior to publication. In addition to staying completely silent during Thursday’s discussion, he did not respond to multiple requests for comment.

*While Yiddish-speaking New Yorkers are credited along with Italian-American New Yorkers with bringing ‘agita’ to the lexicon, the New York Times reports this word is Italian in origin. However, it is commonly used among Jewish populations — which is where I learned it — so much so that many people (even Jewish ones) are unaware of its origins, and believe it to be Yiddish. Thanks to readers for pointing this out.

Author’s note: This article has been updated to reflect that Mark Wallach co-sponsored a civility pledge in 2019, not the most recent election, and to reflect the proper origins of the word ‘agita’

— Shay Castle, @shayshinecastle

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Governance Bob Yates Boulder city council city of Boulder civility pledge conduct elections Junie Joseph Mark Wallach Matt Benjamin newsletter Nicole Speer Rachel Friend speech