Roseburg City Councilor Ashley Hicks has done it again.
Hicks takes pride in stirring the pot on the City Council, especially when it comes to the issue of homelessness, which is widespread in Ward 4, the gritty southeast Roseburg district that she serves.
In the three years since Hicks took her seat on the council, her provocative actions and comments have repeatedly raised the ire of others on the council, who prefer a more orderly, managed approach.
Those simmering tensions boiled over at a council meeting on Jan. 27, when a dispute involving Hicks’ interactions with the public via social media — specifically her advocacy for a homeless shelter that the rest of the council disapproved of — led one councilor to propose she be censured and the mayor to suggest Hicks lose her travel privileges.
Possible sanctions for Hicks are scheduled to be discussed at Monday’s council meeting. But this time the stakes appear to be higher than past spats between Hicks and the council. At the heart of the matter is a fundamental question that public bodies throughout the nation are grappling with in the age of Twitter, Facebook, Instagram and the like: Just where do the responsibilities and duties of an elected official end, and their free speech rights as a private citizen begin?
The answer, like much of today’s ever-changing social media landscape, where tweets, text messages and Facebook posts are considered a matter of record, is a bit murky and depends on who you ask.
“It seems to me that there is a huge waste of time and energy going on here,” said Jack Orchard, a Portland attorney who is considered an expert in Oregon public records laws. “She has every right to express herself, especially in the era of Donald Trump.”
But Kyu Ho Youm, a professor and the Jonathan Marshall First Amendment Chair at the University of Oregon School of Journalism and Communication, said the issue is not cut and dry, and indeed the U.S. Supreme Court has ruled that elected officials can be restrained in what they can say.
“This is a tricky issue, especially for government officials,” Youm said. “But generally speaking, government officials do not have as much free speech rights as private citizens.”
Youm also said there is an important legal distinction between a government official who is speaking on behalf of the agency they represent and that same person offering their own private views on a matter outside of their ordinary job duties.
“The fundamental question is — how do you draw that line?” Youm said. “It’s not easy, but generally speaking, Ashley Hicks is in a precarious situation as far as the First Amendment is concerned.”
Hicks maintains she has done nothing wrong, and has no plans to stop advocating for what she believes in, even if it might make others on the City Council uncomfortable.
“I’m always being punished or penalized or reprimanded for voicing my opinion, ever since I was elected,” she said. “I think I just upset the apple cart.”
CONTENTIOUS MEETINGHicks acknowledges that she can be a lightning rod, especially when it comes to homelessness.
She made headlines on the issue even before she was elected to the City Council in November 2016. The former coffee shop owner had numerous run-ins with homeless communities, some of which Hicks recorded and posted on Facebook.
Hicks was the target of a brief recall petition in the summer of 2017 that fell short of the signatures needed. Spearheading the recall drive were homeless advocates who complained that Hicks’ public efforts to clean up riverfront camps were really meant to rid the area of homeless people.
More recently, Hicks has been critical of what she considers foot-dragging by the council on the issue of homelessness. During a series of three meetings to set goals for the next two years, the council decided to discuss the issue in depth during work sessions later this year, prompting Hicks to object repeatedly.
During one of those meetings in December, Hicks proposed that the council consider building a homeless shelter on a parcel of city-owned land off General Avenue, near the airport and across the street from the Shadow Ranch senior mobile home park. However, no other councilor agreed to discuss the matter, and the council quickly moved on to other issues.
Hicks continued to advocate for the homeless shelter and may have taken her advocacy to social media, although in what form and to what extent is unclear. Residents of Shadow Ranch got wind of the proposal and expressed their displeasure with it prior to the council’s Jan. 27 meeting.
More than a dozen sent in a form letter to each of the city councilors opposing a shelter at that site. A number of residents also called City Hall to deliver the same message.
About a dozen Shadow Ranch residents showed up at the Jan. 27 meeting, and six of them spoke out in opposition to any shelter in their neighborhood.
Mayor Larry Rich assured them that the city had no plans to build a shelter at the General Avenue site. Rich also pointed out, without mentioning Hicks, that whatever she may have said did not represent the position of the council.
“Unfortunately, if someone on the group wants to say something, I guess they can say it as an individual, but it may have come across to you that it came from the council,” Rich said. “It did not. The council is not supporting anything at the time. We know and you know where it came from, but I wanted to point out that it takes the council to make that decision and that is not the decision we have made.”
Hicks then spoke to the residents, thanking them for expressing their viewpoint.
“I just wanted to say how much I appreciate folks coming out tonight and spending their evening at the City Council meeting and bringing forth your concerns,” she said. I think that all the concerns are valid and folks have every reason to have concerns about homeless encampments or emergency shelters.”
Hicks then said homelessness was a major issue in her neighborhood and she felt a duty to try and discuss and explore solutions to the problem, even though it may make some people uncomfortable.
Nearly three hours later, during closing comments at the end of the meeting, Councilor Brian Prawitz brought up the matter again and voiced his displeasure with Hicks.
“I think you should cease and desist posting on Facebook on this topic,” Prawitz said. “You went outside the process so badly that you stirred up a good 50 people. This has to stop. It’s irresponsible.”
Prawitz said he thought Hicks should be disciplined, perhaps censured. Rich said he also thought Hicks’ actions might warrant discipline, and outlined three possible options: Not allow her to speak at council meetings, take away her committee chair, or lose her travel privileges.
“I’ve got to tell you, my feeling tonight is to pull the travel,” he said.
CROSSED THE LINE?
Both Prawitz and Rich acknowledge that they are not entirely clear about what Hicks did to prompt the actions of the Shadow Ranch residents. Both said they thought that Hicks had posted inflammatory statements on Facebook, as she has in the past, but neither actually saw them.
“Basically, I don’t even know where she was promoting the idea. I just know I was getting phone calls and emails from people about a camp on General Avenue,” Prawitz said, adding that he did not see “any of the Facebook back and forth” because he had blocked her from his Facebook page.
Prawitz said he spoke to one Shadow Ranch resident who was so upset and angry about the prospect of a homeless shelter in her neighborhood that she could barely talk about it. Spreading that fear and anger, much of it directed at city councilors and city hall staff, crossed the line, Prawitz said.
“She took an idea that she knew was not a realistic plan and promoted it to the point where people were angry and coming to City Council and berating us and the city,” he said. “The point is she created fear and distrust in the community.”
Prawitz also said that Hicks’ ongoing disrespect for the processes and procedures of the City Council has made it more difficult to get things done.
“The last three years she said stuff that was unprofessional, untrue and undermines any chance we have of having a council that has the respect that we need to do our jobs,” he said.
Rich echoed those sentiments. While he could not speak specifically about what Hicks may have posted online — “I don’t know, I don’t do Facebook,” Rich said — what is clear is that she advocated a position that the City Council at large did not agree with, he said.
“She knew full well that we were not discussing a homeless shelter in the Shadow Ranch neighborhood, and she went ahead and stirred stuff up,” he said. “She fired up that neighborhood and we were inundated with people angry about it.”
Hicks said she didn’t do anything wrong, and isn’t even sure what may have stirred up the residents at Shadow Ranch. She acknowledges advocating for the City Council to consider the General Avenue site for a homeless shelter, something she has been doing for months.
Hicks also said she is careful to make clear that the idea is hers alone, and expresses her opinions on her private Facebook account, and not the official city site. She dismissed the efforts of Rich and Prawitz to discipline her as “a knee jerk reaction.”
If anything, Hicks said, she is raising issues that the other councilors want to avoid. Dealing with difficult issues and exposing the inner-workings of city government may make some people in City Hall uncomfortable, Hicks said, but she sees it as an important and necessary duty.
“I don’t love getting in trouble, but I like when we learn stuff together. That’s part of keeping the public interested in these subjects,” she said. “In past years people were kept in the dark about what’s going on in the community. Now we’ve learned a lot over the last three years and I feel like I’ve been a big part of that, because I’m learning along with everyone else.”
A DELICATE BALANCEOrchard, the Portland attorney and Oregon public records laws expert, said as long as Hicks is clear that she is expressing her views and not that of the City Council, or blatantly misrepresenting actions taken or anticipated to be taken by the council, she has every right to advocate for a homeless shelter.
Orchard also said that if the City Council is displeased with Hicks’ comments or actions, there are better ways to deal with it than disciplining her.
“There’s got to be something more to this. All they had to do was pass a resolution or statement saying she doesn’t represent the views of the council,” Orchard said. “Up here on the Portland City Council we’ve got five egos who typically say whatever they want to say. I think that’s part of the system and she’s entitled to do that, as long as she doesn’t represent herself as the voice of the city or taking city action.”
Disciplining an elected official like Hicks for expressing her opinion is a slippery slope, and one that Roseburg city officials should think long and hard about, Orchard said.
“What happens if she makes a civil rights claim, and says, ‘You’re muzzling me?’” Orchard said.
Youm, the University of Oregon professor and First Amendment scholar, said it would be unlikely that such a claim would get very far, based on Supreme Court rulings.
“First Amendment rights for a government official are very different than for a private citizen,” Youm said. “The First Amendment, as interpreted by the Supreme Court, is not really favorable to Ashley Hicks.”
The Supreme Court has determined that government bodies need some degree of conformity in order to operate efficiently, Youm said. And while there is a “very delicate balance” between the need for that conformity and a fundamental belief in a free marketplace of ideas, over the last two decades the Supreme Court has given the “benefit of the doubt to government authority,” he said.
“Elected officials sometimes should err on the side of discretion instead of just speaking out. She may be making the whole situation more difficult,” Youm said. “Eventually the voters will decide, when they have the chance, but she still is a member of the City Council and they have their own rules and regulations to make sure everyone is working together.”
Youm also said that social media is “still very much sort of a wilderness,” and if there is one possible good that can come out of her situation it is the opportunity of the City Council to explore possible social media policies.
The Roseburg City Council currently has no specific social media policy, and that is something that Prawitz and Rich said may need to be revisited.
Hicks, meanwhile, said she refuses to give up her personal life, or her right to express her personal opinions, simply because she is a city councilor.
“I’m still a mom, I’m still a business owner, I’m still other things, but that is my private life. That’s me expressing my own opinion,” she said. “When I’m in church, I’m a citizen. I’m a member of the church. I’m not there conducting city business as a member of the church. There has to be a separation because you can’t be at work all the time. You’d go insane.”