Payson’s town council faces two legal challenges — one claiming the mayor infringed on a protester’s free speech rights and the second centered on an alleged open meeting law violation.
The investigations have only deepen a persistent 4-3 council split, with Mayor Tom Morrissey and councilors Jim Ferris, Janell Sterner and Suzy Tubbs-Avakian on one side, and councilors Barbara Underwood, Chris Higgins and Steve Smith on the other.
Complaints about the actions of the majority have prompted a recall effort against Morrissey, Ferris, Sterner and Tubbs-Avakian.
And one voter has filed paperwork saying he will try to recall Smith.
Morrissey has dismissed both the open meeting law complaint and the free speech complaint as efforts by the “good old boy” network to regain power of Payson.
“Do you want to go back to the days of the Good Old Boys from previous administrations?” wrote Morrissey in an email. “Or do you want the opportunity to look to a future of opportunity with the recently elected mayor and town council where the citizens are empowered and allowed to participate in town direction?”
Recall supporters have criticized the mayor for not allowing public comments during some town meetings and for reportedly making decisions in private.
Open meeting law violation alleged
The legal battles started when Smith filed an open meeting law complaint with the Arizona Attorney General’s Office back in May. He maintained the council majority lined up votes ahead of a decision on whether the town should support a plan to help improve broadband service. He based his complaint in part on an email sent to the council majority by Greg Friestad, a member of an informal broadband committee.
Since then, letters have flown back and forth between the AG’s office and Payson’s legal counsel.
The AG sought evidence that proved, “whether any council members responded to or discussed the (Friestad) email ... with any other council members ...”
A lawyer for the town argued the charges “must be dismissed” because although Friestad emailed four council members, who ultimately voted against the broadband proposal, it does not prove councilors spoke to one another about the email.
The open meeting law bars a council majority from agreeing on their votes outside of a public meeting, but doesn’t bar officials from receiving information if they don’t talk about it among themselves.
A council could violate the law by forwarding emails in a way that serves to influence their final votes.
The town lawyer argued, “the complaint must be dismissed” because there is no evidence of a violation.
“What happened after six months was the filing of a complaint with the state Attorney General’s Office of a frivolous open meeting law complaint by an unelected member of the town council,” said Morrissey in an email. “I was subsequently advised by the investigating attorney for the attorney general that there was no finding of a violation after she investigated the matter on behalf of the state attorney general. After that not bearing fruit they have now turned to a recall election.”
However, the AG’s office has not closed Smith’s case. In a prior article, the Roundup reported the complaint had been dismissed based on inaccurate information. However, a spokesman for the attorney general’s office this week confirmed that the investigation continues.
“This is still under investigation,” said Rachelle Lumpp, a public information officer for the AG’s office. “We have not sent a letter with our findings yet. Happy to provide that ... once it’s been completed.”
Protester files complaint
The second legal battle stems from Morrissey’s decision to order police to eject Payson resident Marjorie Oldenkamp from a council meeting. She has filed a First Amendment violation with the Town of Payson, the American Civil Liberties Union and the AG’s office.
Hearing that the mayor would not allow comments during the Aug. 15 meeting, Oldenkamp displayed a sign that said, “No public comment, back room meeting, recall now.”
She sat at the front of the room — her back to the audience and the sign’s message visible only to the council and city staff at the front of the room.
“I did not say anything or make any noise,” she wrote in her complaint to the town.
Then, “the mayor immediately ordered a Payson police officer to remove me and my sign from the meeting because I was being ‘disruptive,’” said Oldenkamp.
As officers removed her from council chambers, Oldenkamp told the mayor “there was no Payson town rule preventing me from displaying a sign at the council meeting and that he was violating my civil rights by ordering the Payson police officer to remove me and my sign from the meeting.”
Her complaint accuses Morrissey of “an abuse of his power that violated my First Amendment right to free speech and also violated my Fourth Amendment right against unreasonable seizure.
“This is against the mayor,” said Oldenkamp. “He will have to pay for his legal defense. The town doesn’t have to pay.”
Morrissey explained his reasoning for ejecting Oldenkamp.
“The town attorney advised me of that several times ... that I run the meetings and am charged with maintaining order,” he said. “That means that when there is a disruption I have the duty to restore order. Her (Oldenkamp’s) actions at that meeting were in my judgment, disruptive. Freedom of speech does not give a person the right to shout “Fire!” in a crowded theater.
“Emotions run high at some of our town council meetings and maintenance of order can be challenging, but it is always necessary for public safety.”
Neither the AG, nor the ACLU have indicated they will take Oldenkamp’s case. No decisions have been made in her cases.
On Tuesday, resident Dave Golembewski took out paperwork to recall Smith. Read more about why he wants to recall Smith in an upcoming Roundup.