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Berkley splits on ordinances related to codes of conduct

By: Mike Koury | Woodward Talk | Published January 21, 2020

BERKLEY — The Berkley City Council split on two related ordinances that dealt with a code of conduct and ethics for city officials and employees.

The first readings of both ordinances were held at the council’s Jan. 6 meeting, beginning with one that would establish a “Standards of Conduct for City Officials, Officers and Employees.”

As detailed by City Manager Matt Baumgarten, the ordinance centered around civility, the conduct of a government official and the manner in which officials discuss anything with a resident.

The ordinance set standards such as “City officials, officer, and employees shall express themselves with civility — in both spoken and written communications — in a manner becoming of a City of Berkley official or representative and maintain a constructive tone that may not reasonably be construed as demeaning, harassing, accusatory, untruthful or disrespectful.”

Though the council recognized the good intentions of what the ordinance was aiming for, members felt that it couldn’t stand on legal ground if it was ever challenged. Councilman Dennis Hennen said the document is a “restriction of free speech” and “unconstitutionally vague.”

“There has to be sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and (discriminatory) enforcement. … The entire concept is too vague,” he said. “What is civil to one person may not be to another, and so I do not see any way we can get over the constitutional problems with even the very concept of this ordinance.”

City Attorney John Staran said the considerations brought up by Hennen are serious and that there’s nothing in the constitution that only civil, polite and respectful speech is protected.

“All speech is, and when you do have a challenge on free speech grounds and the strict scrutiny standard applies, government always loses,” he said. “Not sometimes loses — always loses.”

The council moved to reject the ordinance and not move it to a second reading, though Mayor Dan Terbrack noted that a work session on the item could be considered in the future.

The second ordinance that was considered would have repealed a section of Berkley’s Code of Ordinances and replaced it with a new section for a code of ethics for city officers, officials and employees.

Terbrack said the difference between this ordinance and the one rejected was the ethics in this document pertained to “some sort of benefit — typically financial gains in exchange for preferential treatment.”

The ordinance, which had its first reading approved, also would establish a board of ethics to hear complaints against officers, officials and employees of Berkley. At the meeting, the council also discussed setting the number of board members at five.