MARATHON COUNCIL EXCLUDES PUBLIC / Last minute agenda item requires prayer

People who didn’t attend the November 26, 2013 Marathon city council meeting or watch it on television or over the Internet might not know that their representatives voted to adopt a resolution requiring prayers before future meetings.

The item had been put on the agenda at the meeting itself by city councilor Ginger Snead. After a brief comment by each of the five council members, the group voted 4-1 to have a non-denominational prayer before future sessions. Newly elected member Mark Senmartin was the only one voting against as he felt that a moment of silence would be more appropriate.

The vote represents two problems. First, because the item was not on the agenda, no one from the public could comment because no one knew it was coming. Second, prayer before governmental meetings could violate the first amendment of the United States Constitution.

While governmental groups can legally vote on items that are put on the agenda at the last minute, this kind of action is frowned upon by Florida’s Sunshine Law. According to that law:

“Even though the Sunshine Law does not prohibit a board from adding topics to the agenda of a regularly noticed meeting, the Attorney General’s Office has advised boards to postpone formal action on any added items that are controversial. See AGO 03-53, stating that “[i]n the spirit of the Sunshine Law, the city commission should be sensitive to the community’s concerns that it be allowed advance notice and, therefore, meaningful participation on controversial issues coming before the commission.” [emphasis added]

The city’s outsourced attorney John Herin finds a different interpretation of the Sunshine Law and wrote to Vice Mayor Chris Bull saying,

“I find it curious that Mr. Welber appears to rely on the Attorney General’s Office referenced in the Sunshine Manual for asserting what Ginger [Snead] did was wrong,” he wrote. He goes on to point out that … “courts have rejected such a requirement because it could effectively preclude access to meetings by members of the general public who wish to bring specific issues before a governmental body (citations omitted).”

That would be so if individuals could, in fact, bring items to city council meeting for consideration. They cannot. In order to have an item put on the agenda citizens of Marathon must get one of the councilors to sponsor such a resolution.

Herin goes on to say that, “If that wasn’t the case, all of the add-on items that were discussed last week ‘excluded the public from commenting’ as stated by Mr. Welber and theoretically should never have been allowed (i.e., the discussion about the City Hall bids).”

It’s ironic that he uses the city hall issue as an example because that one has elicited many letters to the editor and much concern among the public. It was just as inappropriate for that item to be raised without being on the agenda as it was for an invocation.

Is prayer before public, governmental meetings controversial? Clearly it is because the issue is being considered by the United States Supreme Court during this session.

According to a recent article on CNN’s website,

“Two local women brought suit against Greece, New York, officials, objecting that the monthly public sessions on government open with invocations they say have been overwhelmingly Christian in nature over the years.

“The hour of sharp oral arguments presented another contentious case over the intersection of faith and the civic arena. The court’s conservative majority appeared to have the votes to allow the policy to continue in some form, but both sides expressed concerns about the level of judicial and government oversight over the content presented by members of a particular faith.”

The town of about 94,000 residents outside Rochester began allowing prayers to start its meetings in 1999, after years of having a “moment of silence.” Marathon has never had either so the council might be opening itself up to expensive litigation.

Snead cited the fact that the Florida legislature opens its sessions with a prayer as precedent for the council. However, while Congress and state legislatures regularly open their sessions with a prayer, the question in part before the court is whether local government bodies are different, in that there might be more active involvement with the local citizenry, who may want to personally petition the town in zoning, tax, and other matters.

Marathon solved that problem by excluding any local citizen debate at all.

As Supreme Court Justice Anthony Kennedy, who may prove the decisive, or “swing,” vote in this petition, said, “This involves government very heavily in religion.”

And that’s a concern for Keys American Civil Liberties Union president Kimberly Sloan.

“The First Amendment guarantees you freedom from religion every bit as much as it guarantees freedom of religion,” she said. “It states that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’”

Sloan went on to say that these city councilors represent the people.

“You should be representing them all as opposed to the ones who are engaged in a particular religion and there shouldn’t be a preference for a particular religion,” she said. “I think the moment of silence is something that is ideal.”

Such a moment would respect the rights of all religions and of those who are atheists.

Attorney John Herin also weighed in on the separation of church and state issue. Clearly the action on the part of the city council touched a public nerve, saying to the council members that “All of you received e-mails from constituents/residents of the City regarding this issue.”

Herin went on to point out that

“Florida is located in the 11th Circuit Court of Appeals. Earlier this year the 11th Circuit issued an opinion in the case of Atheist of Florida, Inc. v. City of Lakeland that presented virtually the identical issue – but phrased differently: did the district court err in concluding that Lakeland City Commission’s invocation practice is constitutional because the legislative prayers it authorized do not allow proselytization and the advancement of Christian religion over all others? The 11th Circuit ruled that Lakeland’s method of selecting an individual to give the invocation – as well as specifying the ‘religion neutral’ content and manner in which the invocation could be given (non-sectarian and no proselytization) was constitutional. In other words, this is the exact opposite of what was taking place and at issue in the litigation involving the Town of Greece.”

Therefore, until the Supreme Court rules on the issue, Herin states, “I have – and continue to advise the City – that it can legally do so as long as the process the City employs to select the individual giving the invocation and the invocation itself are ‘religion neutral’ and substantially follow the policy formally adopted by the City of Lakeland via Resolution 4848.”

Of course his opinion presumes that no one in the city of Marathon will file suit and force the city to incur expensive litigation.

Reverend Debra Andrew Maconaughey, the rector of St. Columba Episcopal Church in Marathon, understands the difficulty a prayer can represent. She was a chaplain at a hospital and encountered people of all faiths.

“At the hospital you meet everybody and what we were taught was that as a chaplain you could offer words of comfort. So you are very careful,” she said. “If I were Jewish, I wouldn’t like it to have someone start the prayer, “In the name of Jesus” because that is not where my faith’s tradition is.”

Maconaughey went on to say that she would be pleased to deliver a non-denominational prayer that would include mention of God but not reference a specific religion.

It’s unlikely that anyone in Marathon will challenge the new procedures. First of all, very few people even know about it. The vote was not reported in either the Keynoter or the Free Press and Maconaughey indicated that she had not been notified by the city. And secondly, people who challenge these kinds of procedures often face retribution.

According to the CNN article, “the two plaintiffs, who were also watching in the courtroom, said they have faced harassment from their community and even vandalism of their property.”

Herin in his email to Chris Bull concludes by saying, “I doubt very seriously last week was the end of the discussion concerning the issue of invocations at Council meetings,” And that says just about all that needs to be said about a public discussion of a last minute agenda item regarding government and religion.