Gail Randall, a resident of Loveland’s Ward 2, has filed a lawsuit against the city and Mayor Pat McFall, alleging that her First Amendment rights were violated during Tuesday’s City Council meeting.
The complaint, filed in Larimer County District Court by Loveland attorney and former City Council member Troy Krenning, names McFall in both his official and individual capacities.
The lawsuit stems from an exchange that occurred when Randall was speaking against a proposed business assistance agreement with developer Realberry (formerly known as McWhinney) tied to a Costco development at U.S. 34 and Centerra Parkway.
During her remarks, Randall referenced the Ernst & Young financial review of the Centerra Metro District No. 1, which examined the use of public funds related to Realberry’s Centerra urban renewal plan.
McFall directed her to remain focused on the agenda item. When Randall argued that her comments were relevant to the discussion, the mayor directed the clerk to move to the next speaker before her allotted three minutes expired.
After Randall’s comments ended, other speakers also criticized the developer and referenced the Ernst and Young review. The mayor briefly cautioned at least one other remote speaker to remain on topic but allowed that speaker to complete her remarks.
Randall alleges in the suit that McFall’s actions during her comments amounted to unconstitutional “viewpoint discrimination.”
“Defendant McFall’s enforcement of the ‘stay on topic’ rule was selective, arbitrary, and based on the content and viewpoint of Plaintiff’s speech,” the complaint states.
In an interview Friday, McFall said he believed he was enforcing the council’s adopted Rules of Procedure, which limit public comment during agenda items to the matter under consideration and authorize the presiding officer to limit testimony accordingly.
“Basically, I felt I did what was required by charter and tried to keep the topic on the agenda item itself,” McFall said.
McFall said he did not restrict Randall’s remarks because she was critical of the developer or the deal, but because, in his judgment, discussion of the Ernst and Young review fell outside the scope of the resolution being debated.
“If she’d been speaking in open public comment, she could have talked about pink and blue aliens — I don’t care,” McFall said. “She has that right.”
The lawsuit seeks declaratory relief, nominal damages and attorney fees.
City Attorney Vince Junglas confirmed Friday that the city had received a copy of the complaint but had not been formally served under court rules.
“I can confirm the city wasn’t served technically under the rules, but the city was provided a copy of a complaint filed by Miss Gail Randall,” Junglas said. “Unfortunately, at this juncture, it’s a little early in the game, so I can’t provide any comments on it, but we’ll be running it through our insurance provider as we deal with all of our claims, and we’ll respond in due time.”
