Demonstrators at a Portland City Council meeting on March 1
Demonstrators at a Portland City Council meeting on March 1 Dirk VanderHart

When Mayor Ted Wheeler last week eased off the gas of a new proposal that could see disruptive audience members banned from City Council meetings for months, he did so with an understanding.

"I was disappointed that we didn't have more opportunity to engage with ACLU," Wheeler said at the end of a meeting packed with testimony—including that from the ACLU of Oregon—urging city council to hold off on the new policy.

But when the exclusion proposal comes back before council on Wednesday, it looks like the civil liberties group and Wheeler will still have failed to engage. After tentative plans for a Tuesday meeting, the ACLU canceled, according to Wheeler's office. That means that the proposal appears headed for a vote without significant changes.

"We will bring the resolution up for a vote on Wednesday," says Michael Cox, a spokesperson for Wheeler. "I do not anticipate any significant amendments at this time."

The ACLU says it wanted to meet with Wheeler—and still does. The organization's legal director, Mat dos Santos, is on vacation currently. He'd hoped to meet with Wheeler's staff on Tuesday, but awoke this morning to a notice that his flight had been cancelled, and asked Wheeler's office to push back.

Wheeler's deputy chief of staff, Kristin Dennis, asked whether another ACLU staffer would want to meet instead, and dos Santos responded that it wouldn't make sense to hold a meeting without him there, and suggested the mayor's office meet with others who have concerns about the policy. He says he didn't hear back until the Mercury inquired about the matter with news the vote was moving forward.

"It makes me believe that whatever they said on the record was a farce," dos Santos said this morning. He points to Wheeler's appearance on the OPB show Think Out Loud last week, in which the mayor said: "Frankly, I'm in no particular hurry. I'd rather get this right."

"If the mayor moves forward now, that's his choice, and a direct contradiction to the message that he wants to get it right," dos Santos says.

It's not entirely clear that Wheeler and the organization could find common ground even if they met. Wheeler wants to re-institute a system—banished by a 2015 federal court ruling—that would allow him to exclude audience members after they repeatedly disrupt meetings. A first exclusion under Wheeler's proposal would last for 30 days. Subsequent exclusions would be for 60 days.

The ACLU and others have pointed out that the policy seems to fly in the face of US District Judge Michael Simon's finding that it's illegal to ban people from meetings "for possible or assumed disruption in the future." The judge did say the city could restructure its code to create a new policy, but it's not clear how this proposal would be permissible given the 2015 ruling. The City Attorney's Office clearly thinks it will.

Wheeler's staff has been putting together the exclusion proposal for months, and fast-tracked its introduction in light of repeated disruptions at council meetings this year. The ACLU has said Wheeler hasn't used one available tool for calming those disruptions: having individual protesters escorted out (or arrested) and prevented from re-entering the meeting.

"There are ways to deal with it within the bounds of the constitution," says Sarah Einowski, an attorney who works with the ACLU. "Although it may be inconvenient for them to kick people out every day, the city does have tools available to it."

If the vote moves forward as planned on Wednesday, it likely has support to pass. But as things stand now, it wouldn't take effect right away. Wheeler asked his colleagues to remove an "emergency" designation from the ordinance at the end of last week's meeting, meaning it would take effect 30 days after passage.

It's possible the mayor could convince council to re-designate the matter as an emergency, in which case it would apply immediately after passage.