On July 16, William Noonan, of the Save the Cultural Park Committee, filed a complaint with the Sedona city attorney’s office alleging that Mayor Scott Jablow, Councilman Brian Fultz, outgoing Councilwoman Jessica Williamson, then-City Manager Karen Osburn and thenHousing Manager Shannon Boone had collaborated to oppose the signature-gathering process for Proposition 483, the November referendum on the city’s attempted rezoning of part of the Sedona Cultural Park for use as a homeless car camp.

Osburn retired in April. Boone was terminated by City Manager Anette Spickard on July 3.

In the letter, Noonan alleged that these individuals may have violated Arizona Revised Statutes §9-500.14(A), which states that “a city or town shall not spend or use its resources, including the use or expenditure of monies, accounts, credit, facilities, vehicles, postage, telecommunications, computer hardware and software, web pages, personnel, equipment, materials, buildings or any other thing of value of the city or town, for the purpose of influencing the outcomes of elections.”

Paragraph C of the statute further specifies that cities may fund “government-sponsored forums or debates if the government sponsor remains impartial and the events are purely informational and provide an equal opportunity to all viewpoints,” while paragraph D provides that “employees of a city or town shall not use the authority of their positions to influence the vote or political activities of any subordinate employee.”

Citing internal city emails obtained through public records requests, Noonan stated that:

• Boone allegedly used her city email account on March 13 to instruct opponents of the referendum to “keep Noonan from getting 500 signatures for the referendum by April 11.” Recipients of this email included Jablow and Williamson’s official city email accounts. “City Council members should not use city email servers to participate even as observers in plots against their constituents,” Noonan wrote.
• Osburn allegedly used her city email account on March 17 to seek legal counsel from the city attorney on behalf of Linda Martinez, co-leader of an unofficial Housing Advisory Group that included Jablow, Fultz and Williamson, which Noonan described as “entrusted with defeating the referendum petition,” and used the phrase “shame on [them]” to refer to supporters of the referendum.
• Fultz and Osburn allegedly used their city email accounts on March 20 to conduct a conversation in which Fultz referred to the “sheer ignorance” of the referendum’s supporters and Osburn described herself as a “bit disgusted” with them.
• Jablow allegedly used his city email account on March 28 to provide edits to a resident’s comments opposing the referendum prior to the resident posting them on social media. “This March 28 email, which illustrates that the collaboration went to the very top of Sedona government, also shows that all the city employees copied on the email were participating from their official city sedonaaz.gov email accounts,” Noonan said.

“We ask that you remind the city council and staff that they should refrain from using city personnel and resources to affect the outcome of the referendum, as required by Arizona law,” Noonan wrote. “It would also be helpful to remind them that they should refrain from vilifying residents in city emails that are public records.”

“Arizona rules of professional conduct prevents me from disclosing attorney-client privileged communications with City Council and city staff, but I can say I appreciate Dr. Noonan’s letter and his timely reminder regarding the prohibition on using city resources to influence an election,” Sedona City Attorney Kurt Christianson said when asked if he discussed Noonan’s letter with council members or staff. “City Council and city staff share Dr. Noonan’s goals of a civil and democratic election on the Safe Place to Park referendum.”

Exclusionary Behavior

Noonan’s letter also alleged that on March 22, Osburn and Williamson had engaged in an email exchange using Osburn’s city email address and Williamson’s personal email address.

During the correspondence, Williamson had complained about a resident opposed to the car park named Joetta Winter, whom Williamson described as having been “disruptive” for asking questions during a Citizens’ Academy meeting.

Osburn had responded from her city email account “that she told the Housing Department to ‘look at the rosters of names of people who RSVP’ for the Q&A sessions about the homeless car park and said, ‘I would simply refuse them participation,’” Noonan quoted from Osburn’s email.

The U.S. Court of Appeals for the Ninth Circuit ruled in Reza v. Pearce in 2015, a case involving a constituent being indefinitely barred from the Arizona State Senate by a legislator, that “the government can remove an individual from a limited public forum only if the individual actually disrupts the proceedings … ‘Actual disruption means actual disruption. It does not mean constructive disruption, technical disruption, virtual disruption, nunc pro tunc disruption, or imaginary disruption’ … No cases, in the Ninth Circuit or otherwise, even remotely suggest that [Norse v. City of Santa Cruz] can be inverted to indefinitely ban an individual from a government building based on a single disruption of a hearing.”

Noonan described Osburn’s proposal to exclude residents from public meetings as “prior restraint.”

“The term ‘prior restraint’ is used ‘to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur,’” the U.S. Supreme Court ruled in Alexander v. United States in 1993.

Christianson declined to state a city position on whether Osburn’s actions constituted prior restraint.

“Democratic government can function properly only if people are allowed to have reasonable differences of opinion and seek democratic redress of their grievances through legal electoral channels without the resources of the city being used against them,” Noonan said.