Q: I am interested in a possible cause of action arising from events at a meeting of the high school Site Council, at which public comment was cut off by the chair.  The individual was repeatedly ruled “out of order.”

The person was then ordered out of the meeting and, when he failed to comply, an armed police officer was summoned. The officer, however, determined that situation was not a police matter and refused to remove the man from the meeting.

Nonetheless, the action had a chilling effect on parents and other members of the public attending the meeting.  This seems to be a First Amendment violation as well as a violation of the Brown Act. Can you help?

A: It sounds like you may already know that under the Brown Act — California’s open meetings law — the legislative bodies of local agencies are required to provide opportunities for the public to comment at regular meetings, as follows:

(a) Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body, provided that no action shall be taken on any item not appearing on the agenda unless the action is otherwise authorized by subdivision (b) of Section 54954.2.

However, the agenda need not provide an opportunity for members of the public to address the legislative body on any item that has already been considered by a committee, composed exclusively of members of the legislative body, at a public meeting wherein all interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee’s consideration of the item, unless the item has been substantially changed since the committee heard the item, as determined by the legislative body.

Every notice for a special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that item.

(b) The legislative body of a local agency may adopt reasonable regulations to ensure that the intent of subdivision (a) is carried out, including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker.

(c) The legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body. Nothing in this subdivision shall confer any privilege or protection for expression beyond that otherwise provided by law.

Gov’t Code § 54954.3

With respect to removing individuals from public meetings, the Brown Act provides that:

In the event that any meeting is willfully interrupted by a group or groups of persons so as to render the orderly conduct of such meeting unfeasible and order cannot be restored by the removal of individuals who are willfully interrupting the meeting, the members of the legislative body conducting the meeting may order the meeting room cleared and continue in session.

Only matters appearing on the agenda may be considered in such a session. Representatives of the press or other news media, except those participating in the disturbance, shall be allowed to attend any session held pursuant to this section.

Nothing in this section shall prohibit the legislative body from establishing a procedure for readmitting an individual or individuals not responsible for willfully disturbing the orderly conduct of the meeting. Gov’t Code § 54957.9.

As you can see, this provision allows for removing individuals from a meeting only when they have “willfully interrupted” the meeting so as to “render the orderly conduct of such meeting unfeasible.”

Obviously, there may often be room to disagree as to whether interruption was willful and whether it rendered the orderly conduct of the meeting unfeasible.

The provision must, however, be applied consistent with the mandate in California’s Constitution that “a statute, court rule, or other authority … shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.”

In addition, note — as you may also already know — that the Brown Act’s public comment requirements create a “limited public forum” under the First Amendment. See Baca v. Moreno Valley Unified School Dist., 936 F. Supp. 719, 729 (C.D. Cal. 1996).

Spaces such as sidewalks and parks have traditionally been used for conduct protected by the First Amendment, and are considered “public forums,” and therefore conduct in these forums is protected by the First Amendment and can only be restricted if a high standard is met.

The other end of the spectrum is the “non-public forum,” or places not traditionally open to the public for speech or petition-related activities. Restrictions in non-public forums need only be reasonable and are generally upheld.

In between these two extremes are “limited public forums,” or areas that traditionally have not been made open to the public, but have become public forums for at least some purposes because the government body that regulates a particular area has made it available for use by the public.

The same high standard that applies to public forums — the restriction must be narrowly drawn and serve a compelling interest — also applies to limited public forums where the conduct fits within the time or purpose for which the place has been made open. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).

Meetings of public bodies typically fit into this “limited public forum” category.

In order to restrict speech in a public forum or limited public forum, reasonable time, place and manner regulations are permissible, but restrictions must be “content neutral” (as opposed to “content based”) and narrowly tailored to serve a significant government interest, and must allow ample alternative channels of communication. Perry Educ. Ass’n, 460 U.S. at 45.

Restrictions on speech in a public forum “must be justified without reference to the protected speech’s content.” ACLU v. City of Las Vegas, 466 F.3d 784, 792 (9th Cir. 2006). Content-neutral restrictions are those that are both viewpoint and subject matter neutral, i.e., do not contain any restrictions based on either the ideology of the message or the topic of the speech, whereas content-based restrictions are those that endeavor to restrict or prohibit speech based on either the viewpoint or subject matter. See, e.g., Boos v. Barry, 485 U.S. 312, 320 (1988).

Regulations related to public comment, therefore, must be neutrally administered. Baca, 936 F. Supp. at 728-29 (if access to the forum is limited based on subject matter or speaker identity, limitations must be reasonable in light of the purpose served by the forum and must be viewpoint neutral).

As for next steps, the Brown Act provides that any person may sue to “prevent[] violations … of this chapter by members of the legislative body of a local agency or to determine the applicability of this chapter to actions … of the legislative body.” Gov’t Code § 54960(a).

In other words, you could sue for a determination that the body’s actions in cutting off public comment and/or removing you from the meeting violated the Brown Act (as well as the First Amendment).

Whether you would be likely to prevail in such an action would require a highly fact-intensive analysis that is beyond what we can provide through this service.

You might be able to locate legal assistance through one of the following resources, however:

California State Bar-certified attorney referral services (http://www.calbar.ca.gov/Public/LawyerReferralServicesLRS.aspx

866-442-2529)

ACLU of Southern California (http://www.aclu-sc.org/contents/view/6)

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: During a hearing on a massive development project the several county supervisors walked around the room, talked on cell phones, or to each other or staff, worked on their computers and otherwise did not listen to any of the public testimony. This is particularly discouraging because this is a massive project with terrible impacts to our community. Does failure to pay attention to the testimony being giver or discussing the matter privately between themselves constitute a Brown Act violation? If so, is the deadline for sending a cure and correct letter 30 days?

A: Although the Brown Act does require that local agency governing board meetings be open to the public, and that the public be permitted to address the board regarding any item within the agency’s jurisdiction, Govt. Code section 54954.3(a), the Brown Act does not require that any Board member pay attention to those comments.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

An ex-school board member alleged that the Galt Joint Union Elementary School District board violated the Brown Act, California’s open meeting act by not allowing public comments while conducting public interviews to fill a vacant seat on the board.

The board has agreed to repeat the meeting to satisfy the Brown Act. -db

From the Lodi News-Sentinel, December 13, 2011, by Jennifer Bonnett.

Full story

Q: I sit on a local municipal advisory committee and some time ago we added a standing item to our agendas entitled “Committee Reports” so that council members who sit on these committees or work groups can report out.

There are four such reports listed at the end of our agenda. At the beginning of the meeting under Public Comment, I (as the chair) had a speaker card which listed the Item and the subject of the report.

The person was not asking to speak on the report but rather on the broader subject matter of the report and I directed him to speak under Public Comment instead as he was going to be speaking on an item not on the agenda. Come to find out he wanted to actually give his own report on behalf of his group.

He later stated that he had the right to speak on the agenda item but my contention is that he was not speaking on the item because the item is the Councilmember’s report, not the broader subject.

No denying his right to speak – just a question of what is appropriate. I realize that a member of the public can speak on any item ON THE AGENDA but for items not on the agenda, it needs to be under public comment. I would like to know if I was correct or not.

A: There may not be a hard and fast answer to your question. As it sounds like you know, under the Brown Act, the public has the right to speak on any item on the agenda, before or during the body’s discussion of the item in regular or special meetings, and to address the legislative body on any item of interest to the public during a regular meeting. Gov’t Code Section 54954.3(a).

It seems here that even though this individual’s comments address the broader subject matter that is contained in the council member’s report, the comments are still probably directed at an item on the agenda, i.e., the report and its subject matter.

The speaker could argue that even though he was not specifically commenting on what the council member had written in his or her report, he wanted to make sure that he was able to comment about the subject generally in light of the fact that the council member had written a report in the first place.

Requiring him to speak to the subject matter contained in the report at a later time arguably could make his comments less effective, since the message could get lost from the time the council member delivers his report to the time that the general public comment is open.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

The American Civil Liberties Union is suing the Orange County Board of Supervisors for their policies regulating controversial commentary at their public meetings.

The suit came after the supervisors cut off a speaker who in their opinion had wrongly criticized Vietnamese immigrants. -db

For the Voice of OC, September 9, 2011, by Tracy Wood.

Full story

Q: At our last City Council meeting our mayor personally invited a federal government agent to speak during our public comment session, although this presentation was not on the agenda.  Our mayor allowed him to speak over the allowed three minute time period and  allowed City Council members to ask questions of this man, but the public was not allowed to speak.   Can he do this?

Also, as of late our Mayor is not allowing  has been rudely interrupting and stopping certain public speakers from finishing their public input, during their three minute time allowance. Though many, many, many, many times in the past he allowed other people to talk past their three minute time allowance.

A: The Brown Act provides that “[n]o action or discussion shall be undertaken on any item not appearing on the posted agenda, except that members of a legislative body or its staff may briefly respond to statements made or questions posed by persons exercising their public testimony rights under Section 54954.3. In addition, on their own initiative or in response to questions posed by the public, a member of a legislative body or its staff may ask a question for clarification, make a brief announcement, or make a brief report on his or her own activities.” Gov’t Code § 54954.2.

It is not clear that inviting an individual who is not a member of the legislative body or its staff to address the body as part of the public comment part of the meeting would necessarily violate this provision, though extended substantive exchanges between the members of the body and this individual might effectively transform the episode from public comments to discussion that should have been included as an agenda item (which should then have also triggered the public’s right to comment on that item).

With respect to public comment during meetings, the Brown Act provides that:

• (a) Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body, provided that no action shall be taken on any item not appearing on the agenda unless the action is otherwise authorized by subdivision (b) of Section 54954.2.

However, the agenda need not provide an opportunity for members of the public to address the legislative body on any item that has already been considered by a committee, composed exclusively of members of the legislative body, at a public meeting wherein all interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee’s consideration of the item, unless the item has been substantially changed since the committee heard the item, as determined by the legislative body.

Every notice for a special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that item.

• (b) The legislative body of a local agency may adopt reasonable regulations to ensure that the intent of subdivision (a) is carried out, including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker.
• (c) The legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body. Nothing in this subdivision shall confer any privilege or protection for expression beyond that otherwise provided by law.
• Gov’t Code § 54954.3.

In other words, although a legislative body may reasonably regulate the public comment period, including limiting the amount of time that each speaker is allocated during periods of public comment under Gov’t Code section 54954.3(b), it must ensure that the right of public comment is carried out, and may not prohibit public criticism of the legislative body’s policies or actions. Galbiso v. Orosi Public Utility Dist., 167 Cal. App. 4th 1063, 1076 (2008).

To the extent a legislative body enforces restrictions on speech that are based on the content of that speech (i.e., speakers favorable to the body get to speak longer and without interruption while speakers critical of the body are interrupted and have their time curtailed), then that might be a violation of the Brown Act (and possibly of the First Amendment), as explained below.

The Act’s public comment requirements create a “limited public forum” under the First Amendment. See Baca v. Moreno Valley Unified School Dist., 936 F. Supp. 719, 729 (C.D. Cal. 1996).

Spaces such as sidewalks and parks have traditionally been used for conduct protected by the First Amendment, and are considered “public forums,” and therefore conduct in these forums is protected by the First Amendment and can only be restricted if a high standard is met.

The other end of the spectrum is the “non-public forum,” or places not traditionally open to the public for speech or petition-related activities. Restrictions in non-public forums need only be reasonable and are generally upheld.

In between these two extremes are “limited public forums,” or areas that traditionally have not been made open to the public, but have become public forums for at least some purposes because the government body that regulates a particular area has made it available for use by the public.

The same high standard that applies to public forums — the restriction must be narrowly drawn and serve a compelling interest — also applies to limited public forums where the conduct fits within the time or purpose for which the place has been made open. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).

The First Amendment limits the ability of legislative bodies to restrict speech based on its content.

In order to restrict speech in a public forum or limited public forum, reasonable time, place and manner regulations are permissible, but restrictions must be “content neutral” (as opposed to “content based”) and narrowly tailored to serve a significant government interest, and must allow ample alternative channels of communication. Perry Educ. Ass’n, 460 U.S. at 45.

Restrictions on speech in a public forum “must be justified without reference to the protected speech’s content.” ACLU v. City of Las Vegas, 466 F.3d 784, 792 (9th Cir. 2006).

Content-neutral restrictions are those that are both viewpoint and subject matter neutral, i.e., do not contain any restrictions based on either the ideology of the message or the topic of the speech, whereas content-based restrictions are those that endeavor to restrict or prohibit speech based on either the viewpoint or subject matter. See, e.g., Boos v. Barry, 485 U.S. 312, 320 (1988).

Regulations related to public comment, therefore, must be neutrally administered. Baca, 936 F. Supp. at 728-29 (if access to the forum is limited based on subject matter or speaker identity, limitations must be reasonable in light of the purpose served by the forum and must be viewpoint neutral).

One caveat to this high standard are situations where the moderator may limit speech in order to maintain order at the meeting. In public meetings, “[c]itizens have an enormous first amendment interest in directing speech about public issues to those who govern their city. It is doubtless partly for this reason that such meetings, once opened, have been regarded as public forums, albeit limited ones.” White v. Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990). However, this is balanced with the public body’s need to “be addressed and deal[] with its agenda.

Public forum or not, the usual first amendment antipathy to content-oriented control of speech cannot be imported into the Council chambers intact.” Id. While the governmental body may not stop a speaker from speaking because the moderator disagrees with the viewpoint expressed, it may stop the speaker if his or her speech becomes irrelevant or repetitious. Id. A speaker may also be stopped where he or she becomes “disruptive” in a manner that would not meet the test for “actual breach of the peace … or of ‘fighting words’ likely to provoke immediate combat.” Id. Disruption may occur where the speaker speaks too long, is unduly repetitious, or extends discussion of irrelevancies so that the legislative body is prevented from accomplishing its business in a reasonably efficient manner. Id. at 1426.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

The Marin County District Attorney criticized the Novato City Council for deciding at the last minute to discuss an issue without informing the public. The issue concerned affordable housing, of great interest to the public. The council agreed to readdress the matter at a future meeting. -db

From the Marin Independent Journal, August 16, 2011 by Bob Rogers.

Full story

The Atascadero City Council has decided without public notice or discussion to halt give-and-take during the public comment session of council meetings, says David Broadwater, a local activist.

In an opinion piece in the Cal Coast News, Broadwater writes, “Previously, under the Brown Act, in response to questions and matters raised regarding non-agenda issues, the public could expect those assembled officials may ask to clarify a question, direct people to information, briefly discuss matters raised, or direct an issue to be a subject of a staff report or agenda item at a future meeting.” -db

From a commentary in the Cal Coast News, August 3, 2011, by David Broadwater.

Full story

After investigating a citizen’s complaint, the Kern County Grand Jury has concluded that the Ridgecrest City Council violated the Brown Act, California’s open meeting law at two meetings in December and when three council members discussed a city matter in January at a meeting at the Naval Air Weapons Station China Lake.

In December the city council did not provide for public comment. The jury did not find that the council intended to violate the Brown Act. -db

From The Daily Independent, May 11, 201, by Stephanie Forshee.

Full story

The Santa Ana City Council voted last week to settle a lawsuit concerning a housing project but in doing so may have violated the Brown Act, California’s open meeting law, since the public was not allowed to comment on the settlement.

The council took the vote precipitously to accommodate a council member who had another engagement. Three others on the council could not vote because of a conflict of interest so the council needed to vote while there was a quorum. -db

From The Voice of OC, April 25, 2011, by Adam Elmahrek.

Full story

After alleging that the Arcata Planning Commission violated California’s open meeting law, the Brown Act, an Arcata design review commissioner resigned.

Commissioner Marc Delaney said when he attempted to speak during the public comment session on an application to demolish a church building, the planning commission chair said it had already decided the issue in denying the application and asked Delany to sit down. The design review board chair said it was “inappropriate” for a member of the design review to speak at the public meeting. -db

From The Times-Standard, March 18, 2011, by Allison White.

Full Story

Sonoma County supervisors  have rejected a request by opponent of an asphalt plant to reconsider their decision to not allow public comment during the final vote on the Petaluma project last year.

The opponents said not allowing public comment violated the Brown Act, the state’s open meeting law. The county said no comment was required since the supervisors held a long hearing on the project in October that allowed for extensive public comment. -db

From the Santa Rose Press Democrat, February 3, 2011, by Brett Wilkison.

Full Story

The Ventura County District Attorney has concluded that the Economic Development Corporation (EDOC) of Oxnard violated the state open meeting law, the Brown Act, when it canceled a special meeting then reconvened it 20 minutes later. The DA’s office issued an order that the violation be corrected by rescheduling the meeting and revoting on the meeting’s item.

The president of the EDCO agreed with the DA that the violation was unintentional and has scheduled a new meeting to address the issue on February 22. -db

From the Ventura County Star, February 4, 2011, by Scott Hadly.

Full Story

The Sonoma County Board of Supervisors plan  to vote on a controversial asphalt plant to be built south of Petaluma without allowing the public to comment since they claim they have already allowed public comment on the proposal. -db

The Santa Rosa Press Democrat
December 14, 2010
By Brett Wilkison

Opponents of the proposed Dutra asphalt plant south of Petaluma plan to press their right to speak against the controversial project at the Sonoma County Board of Supervisors meeting Tuesday despite a county determination that the item would be closed to public comment.

Opponents say a state open-meeting law dictates that public comment be allowed on the matter. Supervisors are set to formally vote on the Dutra plant, a proposal they backed Oct. 12 in a 3-2 preliminary vote.

Because that vote was preceded by a full public hearing, including more than three hours of public testimony, county officials said today’s meeting can be limited to board deliberation on the project prior to the vote.

But opponents said that decision runs afoul of the Brown Act, which requires that government bodies such as the Board of Supervisors allow public comment on any item under their consideration.

“If they’re foolish enough to try and shut down public comment, let’s just say it doesn’t look good in front of a judge,” said David Keller of the Petaluma River Council.

County legal officials defended their decision Monday.

“Our position is there has been a full and fair public hearing and the board has taken a straw vote,” said David Hurst, chief deputy county counsel.

Hurst said the board and other government bodies regularly rely on the same legal interpretation to formalize preliminary decisions made in conjunction with previous public hearings.

“We take a different view” from opponents, he said.

California open-government expert Terry Francke said opponents are right to push their case for allowing public comment Tuesday.

Franke, general counsel of the non-profit Californians Aware, said state laws covering public hearings are not to be confused with the Brown Act, which protects public participation at government meetings.

“The public hearing may be closed but not the people’s right to address the board,” Franke said. Regardless of the hearing’s closure, he said, “the one thing the Board of Supervisors can’t do at this point is say ‘no public comment.’ You’ve got to allow people to speak.”

Hurst, the chief deputy county counsel, said board Chairwoman Valerie Brown could allow public comment on the item.

Brown and Supervisor Shirlee Zane voted against the asphalt plant in October. She could not be reached by phone Monday.

The Dutra asphalt plant is slated for 37 acres along the Petaluma River just beyond the Petaluma city boundary. In the works for five years now, it would have an annual production capacity of 570,425 tons of asphalt and rock material.

The item is one of several land use matters scheduled for a 2:10 p.m. time slot on Tuesday.

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Q: I am a signatory of an initiative which qualified for the ballot, but which the city refused to forward to the county for inclusion on the ballot in violation of Elections Code. At the next city council meeting, during the public comment period, I was criticizing the council’s illegal refusal to forward the initiative and was arrested for “disturbing” the meeting. Low voice, no profanity. I need criminal defense.

A: You might be able to find a criminal defense attorney through one of the resources listed on the American Bar Association web site at http://www.abanet.org/legalservices/findlegalhelp/lris.cfm?id=CA. I have also included the following information to give you a First Amendment/open meetings perspective on the situation.

Whether or not your rights to speak at this meeting under both the First Amendment and the Brown Act were violated may turn on whether the officials were simply attempting to maintain order at the meeting, or whether you were arrested based on the content of your speech.

As background, California’s open meeting law, known as the Brown Act, requires that “[e]very agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body.” Gov’t Code section 54954.3(a).

The scope of comment permitted at a regular meeting includes not only agenda items, but any item within the body’s jurisdiction that has not already been considered at a previous meeting where public comment was permitted. The Act’s public comment requirements create a “limited public forum” under the First Amendment. See Baca v. Moreno Valley Unified School Dist., 936 F. Supp. 719, 729 (C.D. Cal. 1996).

Spaces such as sidewalks and parks have traditionally been used for conduct protected by the First Amendment, and are considered “public forums,” and therefore conduct in these forums is protected by the First Amendment and can only be restricted if a high standard is met. The other end of the spectrum is the “non-public forum,” or places not traditionally open to the public for speech or petition-related activities. Restrictions in non-public forums need only be reasonable and are generally upheld.

In between these two extremes are “limited public forums,” or areas that traditionally have not been made open to the public, but have become public forums for at least some purposes because the government body that regulates a particular area has made it available for use by the public.

The same high standard that applies to public forums — the restriction must be narrowly drawn and serve a compelling interest — also applies to limited public forums where the conduct fits within the time or purpose for which the place has been made open. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). Meetings of public bodies typically fit into this “limited public forum” category.

The Brown Act permits legislative bodies to adopt “[r]easonable regulations” for public comment periods, including regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker, but the body may not “prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.” Gov’t Code section 54954.3(b), (c).

The First Amendment also limits the ability of legislative bodies to restrict speech based on its content. In order to restrict speech in a public forum or limited public forum, reasonable time, place and manner regulations are permissible, but restrictions must be “content neutral” (as opposed to “content based”) and narrowly tailored to serve a significant government interest, and must allow ample alternative channels of communication. Perry Educ. Ass’n, 460 U.S. at 45. Restrictions on speech in a public forum “must be justified without reference to the protected speech’s content.” ACLU v. City of Las Vegas, 466 F.3d 784, 792 (9th Cir. 2006).

Content-neutral restrictions are those that are both viewpoint and subject matter neutral, i.e., do not contain any restrictions based on either the ideology of the message or the topic of the speech, whereas content-based restrictions are those that endeavor to restrict or prohibit speech based on either the viewpoint or subject matter. See, e.g., Boos v. Barry, 485 U.S. 312, 320 (1988).

Regulations related to public comment, therefore, must be neutrally administered. Baca, 936 F. Supp. at 728-29 (if access to the forum is limited based on subject matter or speaker identity, limitations must be reasonable in light of the purpose served by the forum and must be viewpoint neutral).

One caveat to this high standard are situations where the moderator may limit speech in order to maintain order at the meeting. In public meetings, “[c]itizens have an enormous first amendment interest in directing speech about public issues to those who govern their city. It is doubtless partly for this reason that such meetings, once opened, have been regarded as public forums, albeit limited ones.” White, 900 F.2d 1421, 1425 (9th Cir. 1990).

However, this is balanced with the public body’s need to “be addressed and deal[] with its agenda. Public forum or not, the usual first amendment antipathy to content-oriented control of speech cannot be imported into the Council chambers intact.” Id.

While the governmental body may not stop a speaker from speaking because the moderator disagrees with the viewpoint expressed, it may stop the speaker if his or her speech becomes irrelevant or repetitious. Id.

A speaker may also be stopped where he or she becomes “disruptive” in a manner that would not meet the test for “actual breach of the peace … or of ‘fighting words’ likely to provoke immediate combat.” Id.

Disruption may occur where the speaker speaks too long, is unduly repetitious, or extends discussion of irrelevancies so that the legislative body is prevented from accomplishing its business in a reasonably efficient manner. Id. at 1426

If you are interested in finding an attorney specializing in the First Amendment and the Brown Act to assist in your defense, you may consider using the FAC’s Lawyer Assistance Request Form: http://www.firstamendmentcoalition.org/lawyers-assistance-request-form/.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

The Compton City Council has taken several steps regarding citizen participation in council meetings including removing public comments from local cable coverage of the meetings. -db

Los Angeles Wave
September 22, 2010
By Leiloni De Gruy

COMPTON, Calif. — Seen by some residents as another attempt to silence their voices, the city council voted 3-1 to remove the public comment segment from its local cable telecasts.

The Sept. 14 move followed a “minute motion” on the Sept. 7 agenda. There was no staff report to address why such an action was considered or taken.

However Mayor Eric Perrodin and council members Lillie Dobson and Barbara Calhoun saw fit in removing what they have called in past meetings “slanderous” and “vicious” statements that prevent them from conducting city business. Councilman Willie Jones was the lone dissenting vote and Councilwoman Yvonne Arceneaux was absent.

In addition, the city clerk’s office is no longer selling videotaped copies of the council meetings, which had cost members of the public about $20. A representative of the clerk’s office stated that the policy began at the beginning of this month but could not provide a reason behind it.

But some residents, interviewed last week outside the Compton Superior Court, harbored suspicions about the council’s intent.

Guillermo Rodriguez said he “didn’t think this would happen, but in a way I saw it coming,” referring to residents’ being unable to watch a month’s worth of heated council meetings after the city failed to renew its contract with the cable provider. He also pointed to last year’s changes to the rules of decorum in the council chambers, which limit public speaking time and restrict certain outbursts or gestures.

“It’s not right, they are violating people’s rights and trying to silence us,” added Rodriguez. “They are trying to keep the community from knowing what’s really going on.”

Shameeka Thomlinson does not “think they should take [the public comments] out,” she said. “They are only saying what they see happening in the city. We need to know because the city isn’t going to tell us. And a lot of us look for that [in the telecasts] because we can’t make it to the meetings. … Something is wrong here. They must be trying to hide something.”

It was in September 2009 that the city council voted to change the rules of conduct that govern citizen participation during council meetings.

According to the ordinance, “each person who addresses the Council shall do so in an orderly manner and shall not make personal, impertinent, slanderous or profane remarks to any member of the Council, staff or general public.” In addition, “no person in the audience at a Council meeting shall engage in disorderly or boisterous conduct, including the utterance of loud, threatening or abusive language, whistling, [or] stamping of feet…”

Each person must also address their comments to the Council as a whole and cannot single out any member unless in response to a question from that particular member.

Violators are to first be given a verbal warning, after which the person will be asked to leave for the duration of the meeting. If the person does not remove him or herself, any Council member holds the right to have them removed by force by law enforcement. A person resisting removal may be charged and found guilty of a misdemeanor.

Beyond the rules of decorum, audience members no longer have three minutes to comment per item on the agenda. Instead, they have a total of five minutes to address any and all items on the agenda, as well as non-agenda matters, in the early part of the meeting; that is before the items are brought up and considered by the Council. During public hearings, persons commenting are limited to two minutes.

Since its implementation, at least three speakers have either been threatened with removal or removed from council chambers and barred from the following meeting.

Copyright 2009 Los Angeles Wave     FAC Content Use Policy

The Johnstonville School Board drew criticism for restricting public comment that concerned the school administration when court decisions have upheld the right of the public to criticize school employees under California’s open meeting law, the Brown Act. -db

Lassen County Times
September 28, 2010

Parents and other concerned community stakeholders were given an opportunity to speak their mind at a special meeting of the Johnstonville School Board Wednesday, Sept. 22 — one week after the board shut down public comment because it thought it was following proper procedures and school policy.

At the regularly scheduled Wednesday, Sept. 15 meeting, numerous parents were in attendance to share concerns regarding how the school was being run under the current administration.

When parent Stacey Jones started expressing her concerns, the board stopped her.

At that Sept. 15 meeting, board member Maggie Reuck said personnel items could not be discussed in open session and there were policy and procedures in place that must be followed.

She also said, “We encourage you to meet with the personnel that is of your concerns and if at the point in time if it cannot be resolved then the superintendent or the board can then bring this back to closed session where you can be heard, but it cannot be heard unless you want to speak about policy and procedures with regards to personnel. We cannot discuss an individual in open session.”

Reuck said she did not mean that in a negative way. She said if any accusations are made in public and it impacts the individual outside of school, that person could sue the school and the school is liable for that.

However, per the Brown Act, every agenda for a regular meeting shall provide an opportunity for members of the public to directly address the governmental body, which also applies to closed session items as well.

The Brown Act says, “Accordingly, this office believes that it would be prudent for legislative bodies to afford the public an opportunity to comment on closed-session items prior to the body’s adjournment into closed session. The only exception to the public testimony requirement is where a committee comprised solely of members of the legislative body has previously considered the item at a public meeting in which all members of the public were afforded the opportunity to comment on the item before or during the committee’s consideration of it, so long as the item has not substantially changed since the committee’s hearing.”

It also says, “Where a member of the public raises an issue which has not yet come before the legislative body, the item may be briefly discussed but no action may be taken at that meeting. The purpose of the discussion is to permit a member of the public to raise an issue or problem with the legislative body or to permit the legislative body to provide information to the public, provide direction to staff or schedule the matter for a future meeting.

In addition, the Brown Act also addresses comments directed toward employees, “As such, members of the public have broad constitutional rights to comment on any subject relating to the business of the governmental body. Any attempt to restrict the content of such speech must be narrowly tailored to effectuate a compelling state interest. Specifically, the courts found that policies that prohibited members of the public from criticizing school district employees were unconstitutional.”

Sept. 22 meeting

During the Sept. 22 meeting, parents and teachers had the opportunity to voice their concerns to the board. However, the board could not take any action because the issues were not on the agenda.

Attorney Tom Gauthier, who is from the school’s firm, was in attendance and board member Skip Jones said he asked the attorney to attend to ensure proper protocol was being followed.

Parent Stacey Jones read a statement expressing her concerns regarding Superintendent Sally Clark.

“We have lost good staff and good families because of the way things are being done. Departing staff is not willing to say it out loud for fear of how it will affect future job prospects and current staff will not say anything for fear of some kind of retaliation,” Jones said.

At a site council meeting, Jones said it was mentioned that teachers had called parents encouraging them to attend the board meetings. According to Jones, Clark voiced concerns that if so many people started to attend, protocols would have to be put in place.

Jones said Clark said something to the effect that meetings are not public meetings, they are publicly held meetings.

“And that kind of reflects the attitude in which I feel the school is being led and I think it’s wrong. Johnstonville School no longer seems to possess that sense of community where parents want to be involved. With the elimination of stipends for sports we need parents now more than ever, ” Jones said.

Jones also said it seems every little thing needs to be micromanaged by Clark.

Clark’s contract is up for renewal this year and Jones said there are four new board members ready to be seated in December.

Jones said she hopes the board will not take any drastic action that the next board will have to deal with.

In December, new board members Amy Castro, Linda Meusch, Michael Kelley and Terry Mallery will be seated on the board. Incumbents Scott McCullough, Skip Jones, Carol Growdon and Joan Schmidt did not seek re-election and the new members ran unopposed.

Jones added she thought Clark is good on the business side of the job.

However, she said, “Our school, I think, needs more than that. The concerns circulating among parents and staff leave me with serious reservations of whether or not you can deliver what we need.”

Jones did note the positive aspects of the school and the hard work of the staff members. She also thanked board clerk Growdon for seeking her out and apologizing for what occurred during the Sept. 15 meeting.

Other parents said they were considering pulling their children out of Johnstonville School and parent Janet Davenport encouraged the board to talk with the teachers.

Another parent said she felt the board was losing credibility with the whole mess. She pointed out the board had approved June minutes where her dialogue had been left out.

She said it makes people think either board isn’t looking into what it supposed to be doing and doesn’t have all the information or the board is being sneaky.

The parent also expressed concerns with the board holding a public hearing on the budget several hours after the meeting began.

“I don’t agree with doing that. If you have a public hearing on a budget where you want people to be involved, I think you need to do that at the beginning of the meeting at 6,” the parent said.

Parent Heidi Floyd also expressed her concern with the board going into closed session first while parents and staff wait around for open session.

During the Sept. 15 meeting, Floyd said parents and staff waited for an hour and 10 minutes.

“It felt like the board was trying to outlast the public,” she said.

Clark said notes were taken during the meeting and she has an action plan to address each and everyone of the concerns.

The Johnstonville School board meets at 6 p.m. on the third Wednesday of the month at Johnstonville School.

Copyright 2010 Lassen County Times     FAC Content Use Policy

Q: I would like to question the legality of a new practice our school board school board to “bundle”  regular action items on the agenda.

At the only regular board meeting of August 2010, after approving the consent calendar, the board approved the regular agenda items as presented. Their own by-laws state an agenda item will be presented; the administration will give their presentation and recommendations for action; the board will ask/seek further information; the public will be allowed to speak; the board will discuss and deliberate; the vote will be taken.

Ignoring their own by-laws, it was moved and rapidly seconded that they bundle three action items. There was no presentation or recommendation by administration, no discussion, no public comment, no deliberation…simply a vote on all three at once. Not only was the public silenced, so were any board members who wished to ask for information or who wished to discuss or deliberate. I would like to know if they may continue with “bundling.”

A: If I understand your inquiry correctly, the public was not given the opportunity to comment on agenda items that the board took action on at the meeting, which sounds like it may have been a violation of California’s open meeting law, known was the Brown Act.

The Act requires that “[e]very agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body.” Gov’t Code section 54954.3(a).

The scope of comment permitted at a regular meeting includes not only agenda items, but any item within the body’s jurisdiction that has not already been considered at a previous meeting where public comment was permitted. The Brown Act permits legislative bodies to adopt “[r]easonable regulations” for public comment periods, including regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker, but the body may not “prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.” Gov’t Code section 54954.3(b), (c).

It’s not entirely clear what you mean by excluding other board members (who presumably were present at the time) from deliberations, but that might also be problematic (though not necessarily under the Brown Act, which focuses on the public’s access to the deliberations and not necessarily how the deliberations themselves should be conducted).

Thus, if the public was not permitted to comment on the agenda items prior to some action being taken on those items, then the Brown Act may very well have been violated with respect to those items. (Whether or not the school board could “bundle” the items for purposes of discussion and voting amongst the board members themselves would probably depend on what the board’s bylaws permit.)

The Brown Act does not specify a particular way that a violation of the Act may be cured and corrected, but presumably the board could satisfy the Act by reopening the process to permit public awareness of all the facts and views, as well as give the public the opportunity to express its views on the issue(s).

Either a citizen or the district attorney may sue to compel the local agency to comply with the Brown Act; obtain a ruling that a particular practice of the local agency violates the Brown Act; or obtain a ruling that the local agency is violating the free speech rights of one or more of its members in seeking to silence that member. Gov’t Code section 54960(a).

Please note, however, that the Brown Act imposes fairly strict requirements on the enforcement of the Brown Act, including deadlines for taking certain necessary actions. Notice and demand to cure and correct a violation must be given, in writing, within 90 days from the date the action was taken, or 30 days if the basis for the notice is that the action was not on an agenda or not adequately described. Cal. Gov’t Code § 54960.1(c)(1).

The local agency then has 30 days to take action. Cal. Gov’t Code § 54960.1(c)(2). If the local agency responds and refuses to correct the problem or does nothing, the challenger has 15 days to initiate court proceedings to nullify the action. Cal. Gov’t Code § 54960.1(c)(3)-(4).

You can find a template for a Brown Act complaint, as well as other useful information pertaining to the Act, on the FAC’s web site http://www.firstamendmentcoalition.org/category/resources/access-to-meetings/.
If you are interested in finding a lawyer who specializes in the Brown Act and First Amendment to represent you, you may consider using the FAC’s Lawyer’s Assistance Request Form at http://www.firstamendmentcoalition.org/lawyers-assistance-request-form/.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: Before filing a Brown Act violation against the mayor for denying me the opportunity to speak on an item before the city council because I refused to identify myself before making a public comment.  I would like to get an opinion from your organization on my complaint and the city’s response.

A: You are already aware that Government Code Section 54953.3 provides that members of the public may not be required to provide any information as a condition of attending a meeting that is subject to the Brown Act.

You are also aware that Government Code Section 54954.3 provides that members of the public must be permitted to address the legislative body on any item of interest to the public before or during the body’s consideration of that item, unless the item has already been considered at a previous meeting with an opportunity for comment, and subject to “reasonable regulations” to facilitate public comment, time limit per speaker to allow more people to speak.

While it is not absolutely clear that the Brown Act forbids requiring a member of the public to identify himself or herself or provide information in order to address the body, such a rule would certainly be consistent with the spirit of the Brown Act, as a contrary rule could inhibit robust debate.

With respect to interpreting these provisions of the Brown Act, note that Article I, section 3 of the California Constitution provides that “[a] statute, court rule, or other authority … shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.”

In addition, the Supreme Court has recognized a First Amendment right to speak anonymously. See, e.g., Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150 (2002) (ordinance requiring those intending to engage in door-to-door advocacy of a political or religious cause to obtain and, upon demand, display permit, which contained one’s name, violated First Amendment protection accorded to anonymous pamphleteering or discourse);, 323 U.S. 516, 539 (1945) (“As a matter of principle a requirement of registration in order to make a public speech would seem generally incompatible with an exercise of the rights of free speech and free assembly”).

One might argue that such a right to speak anonymously would be particularly important at city council meetings where the free exchange of viewpoints would seem to be especially critical.

Meetings of legislative bodies, such as city council meetings, are regarded under First Amendment framework as “limited public forums.” See White v. City of Norwalk, 900 F.2d 1421, 1425 (1990).  Speech in a “public forum,” which includes public spaces such as sidewalks and parks that have traditionally been used for conduct protected by the First Amendment, can only be restricted if a high standard is met.

The other end of the spectrum is the “non-public forum,” or places not traditionally open to the public for speech or petition-related activities. Restrictions in non-public forums need only be reasonable and are generally upheld.

“Limited public forums” that traditionally have not been made open to the public, but have become public forums for at least some purposes because the government body that regulates a particular area has made it available for use by the public — such as a city council or planning commission meeting — command the same high standard that applies to public forums, so long as the conduct fits within the time or purpose for which the place has been made open.See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).

Very generally speaking, the more public a venue is, the less latitude the government has to restrict speech.  Also, generally speaking, restrictions that are content-neutral (i.e., not tied to a particular message) will generally be easier to uphold than restrictions based on a particular viewpoint, which are more often constitutionally suspect.

This general principle is codified to some extent in Section 54954.3 of the Brown Act, which provides that “[t]he legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.”  This particular provision might be particularly relevant where the spectator trying to speak at a meeting was a political opponent of the member of the body forbidding the spectator to speak.

In such circumstances, it might be reasonable to infer that the limitation on speech is not a content-neutral restriction but is instead a viewpoint-specific restriction on speech which could violate not only the Brown Act but also the First Amendment.

Theoretically, this could also be the case in a situation where a facially neutral policy was enforced in a way that discriminated against a particular viewpoint.  In other words, even if a rule requiring speaker cards was considered acceptable under the Brown Act and First Amendment, it might still be the case that enforcing a speaker-card policy against a particular person expected to voice an unpopular opinion while not enforcing the policy against others represented an unconstitutional viewpoint-specific speech restriction.

The same kind of reasoning might apply if, when a disfavored speaker came to speak, the body imposed an ad hoc rule limiting speech that was more restrictive than its stated policy.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: Since January, the local Board Of Education has been systematically trying and often succeeding in suppressing or censoring public comments. For more years than I can count, the Board has provided a democratic, all be it cumbersome, method of accommodating the public’s right to speak on non-agendized items. Speakers were called in the order in which their “yellow cards” were submitted to the Clerk of the Board. One hour was allotted at the beginning of the meeting with an additional time at the end of the meeting. Now the board groups requests to speak according to topic and then he/they decide which topic will be first up. Gone is the democratic process of first come first to speak. By grouping , the board controls whether controversial subjects will be addressed during the first hour or at 11pm or later and essentially eliminated the opportunity for individuals to address them on their preferred topic. Is this method, done without a formal board policy or by-law change legal?

A: I see two different issues in your question below. One is whether the proper procedures for adopting the new comment practice were followed. The other is whether the new comment practices themselves violate the Brown Act or are otherwise unlawful.

As to the first question, you might check the Board’s rules and by-laws to see whether a particular procedure should have been followed for changing the way the Board runs the public comments section of its meetings. As to your substantive question, the new procedures do implicate not only Brown Act provisions but also the First Amendment, though it is not clear whether or not the new procedures violate either.

As you may know, the Brown Act requires that “[e]very agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body.” Gov’t Code section 54954.3(a).

The Brown Act explicitly provides that a legislative body may “adopt reasonable regulations to ensure that the intent of subdivision (a) is carried out, including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker.” Gov’t Code section 54954.3(b). But the legislative body “shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.” Cal Gov Code § 54954.3(c).

In addition, First Amendment principles related to the content of speech at public meetings are relevant here. The Act’s public comment requirements create a “limited public forum” under the First Amendment. See Baca v. Moreno Valley Unified School Dist., 936 F. Supp. 719, 729 (C.D. Cal. 1996). Spaces such as sidewalks and parks have traditionally been used for conduct protected by the First Amendment, and are considered “public forums,” and therefore conduct in these forums is protected by the First Amendment and can only be restricted if a high standard is met.

The other end of the spectrum is the “non-public forum,” or places not traditionally open to the public for speech or petition-related activities. Restrictions in non-public forums need only be reasonable and are generally upheld. In between these two extremes are “limited public forums,” or areas that traditionally have not been made open to the public, but have become public forums for at least some purposes because the government body that regulates a particular area has made it available for use by the public.

The same high standard that applies to public forums — the restriction must be narrowly drawn and serve a compelling interest — also applies to limited public forums where the conduct fits within the time or purpose for which the place has been made open. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). The meeting should fit into this “limited public forum” category since it is governed by the Brown Act and the Act’s regulations related to public comment. See Baca, 936 F.Supp. at 728 (open session of a school board meeting is a designated, limited public forum).

In order to restrict speech in a public forum or limited public forum, reasonable time, place and manner regulations are permissible, but restrictions must be “content neutral” (as opposed to “content based”) and narrowly tailored to serve a significant government interest, and must allow ample alternative channels of communication. Perry Educ. Ass’n, 460 U.S. at 45. Restrictions on speech in a public forum “must be justified without reference to the protected speech’s content.” ACLU v. City of Las Vegas, 466 F.3d 784, 792 (9th Cir. 2006).

Content neutral restrictions are those that are both viewpoint and subject matter neutral, i.e., do not contain any restrictions based on either the ideology of the message or the topic of the speech, whereas content-based restrictions are those that endeavor to restrict or prohibit speech based on either the viewpoint or subject matter. See, e.g., Boos v. Barry, 485 U.S. 312, 320 (1988). Regulations related to public comment must also be neutrally administered. Baca, 936 F. Supp. at 728-29.

It sounds like the Board might take the position that the new procedures are the kind of “reasonable regulation” authorized under the Brown Act to facilitate public comment in that the procedures would group comments together by content, conceivably making the process more efficient. Similarly, under the First Amendment analysis such a regulation would seem, on its face, to be content neutral.

However, you raise an interesting argument, which is that by selecting which topic will be addressed first, the Board could, as a practical matter, influence whether comments on a particular subject are likely to be heard by a significant number of audience members. To the extent the Board were administering this kind of regulation to discourage critics or diminish the effectiveness of criticism during public comment (e.g., because they are heard at the very end of the meeting when many have left and interest levels are at their lowest), such conduct might violate the First Amendment (and, conceivably, the Brown Act).

This kind of argument would be highly fact-specific and would likely require a significant amount of evidence showing that the Board engaged in a pattern of scheduling comments in a way calculated to muffle criticism. In other words, this would probably not be a situation where you could make out a violation of the First Amendment or Brown Act simply by pointing to the new procedures and their theoretical effect.

If you are interested in engaging an attorney to assist you with evaluating a potential claim, you might try the FAC’s Lawyer’s Assistance Request Form at http://www.firstamendmentcoalition.org/lawyers-assistance-request-form/.

Q: A draft National Pollutant Discharge Elimination System (NPDES) permit was submitted for comments. A final permit ignored most comments, but made three small changes. The first and only public hearing is coming up , but the agenda states that oral comments will be limited to the three changes. Thus, no important points can be made to the Regional Water Quality Board members at the public hearing. Can they so tightly constrain what the board hears from the public?

A: California’s Brown Act provides that, subject to certain “reasonable regulations,” meetings of legislative bodies of local agencies must provide “an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body…” Cal Gov Code § 54954.3.

But the provision goes on to say that
“the agenda need not provide an opportunity for members of the public to address the legislative body on any item that has already been considered by a committee, composed exclusively of members of the legislative body, at a public meeting wherein all interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee’s consideration of the item, unless the item has been substantially changed since the committee heard the item, as determined by the legislative body.” Id.

It may be that the board took the position that the three minor changes you refer to below were the only items that had not already been considered at a meeting where members of the public had been allowed to comment. While the spirit of open meetings and public access to government deliberation may have been better served by allowing the public to comment on the permit as a whole, if the criteria set forth in § 54954.3 for items that have already been open to comment were met, then the board may have been within the law in limiting comments to the changes.

Q: The current City Council Agenda contains the following item: “DISCUSSION AND POTENTIAL ACTION ITEMS. Introduce and Waive the First Reading of One of the Three Ordinances Relating to Establishing Rates for Water Service Fees.” Here is the problem. We are not being allowed to comment about this item at all, even though it has been on multiple Agenda’s and postponed multiple times. The City Attorney says we can’t comment on it because the Prop 218 hearing has been closed and no further comments can be taken. That would have been fine if they had voted on the day they closed the hearing, but they didn’t. The vote has been delayed again and again. I don’t want to comment on the RATES themselves. I want to comment on the “foot dragging” by certain City Council members. I’m not allowed to say anything during “Public Comments” because it is on the Agenda. But when it comes up on the Agenda, I am not allowed to tell the Council to “get their act together and VOTE already” because the Prop 218 hearing has closed. Something doesn’t seem right here.

A: I understand your frustration. Unfortunately, it is possible for legislative bodies to prevent public comment on an item, but only under a very limited exception. As you seem to know, the Brown Act requires that legislative bodies provide an opportunity for members of the public to address the body on any items on the agenda. Gov’t Code § 54954.3 ((“Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body, provided that no action shall be taken on any item not appearing on the agenda….”). As noted, there is one exception to this general rule. If an item has already been considered by a committee, composed exclusively of members of the legislative body, at a public meeting wherein the public were afforded the opportunity to address the committee on the item, before or during the committee’s consideration of the item, the legislative body need not provide an opportunity for members of the public to address the body on that particular item in subsequent meetings. Gov’t Code § 54954.3. This exception does not apply, however, if the item has been substantially changed since the committee heard the item. Gov’t Code § 54954.3. From the information in your submission, it is not entirely clear whether this exception would apply. If it does not, then the legislative body is required to provide the public with the opportunity to address the body on that item.

If you determine that a violation of the Brown Act occurred, the Act provides the public with certain remedies. First, you may seek to void an action taken at such meeting. The requirements for taking such an action require you to seek to have the agency “cure and correct” the action taken at the improperly held meeting, and then bring a lawsuit if they do not. The requirements are very specific, they have very short deadlines, and they are generally strictly enforced. Generally speaking, the demand must be made within 90 days from the date the action is taken (but the demand must be made within 30 days if there is a violation of the agenda requirements set forth in Section 54954.2 — which sounds to be the case here). If the legislative body fails to correct the action within the requisite time period, you must file the lawsuit within 15 days. Please see the provisions of California Government Code 54960.1 regarding the particulars of the timeline.

In the alternative, you may consider filing an action for injunctive or declaratory relief. This alternative remedy is available for the purpose of stopping or preventing violations or threatened violations under California Government Code section 54960, but this type of action will not have the effect of voiding the action. The procedures and time limitations set forth in Section 54960.1 do not apply to Section 54960. Ingram v. Flippo, 74 Cal. App. 4th 1280, 1288, 1290 (1999). CFAC’s website contains a link to the statute for your reference (see http://www.cfac.org/content/index.php/cfac-meetings/index/).

Elected Officials Right to Public Comment

Q: Can an elected official (City Councilperson) speak under Oral Communications and claim to do so as a resident? May that official verbally insult residents who have spoken without some consequence to himself? Is there any violation of the Brown Act? How can we the residents protect ourselves and how can we convince the Mayor and Council, who have been intimidated, to take action? What recourse do we have?

A: Although your inquiry is not entirely clear, I am assuming you are referring to a situation where a member of the City Council made remarks during a public comment period.  The Brown Act provides that “[e]very agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body . . ..”  Cal. Govt. Code Section 54954.3(a).  As an initial matter, your question goes to whether a member of an elected body is a “member of the public” for the purposes of public comment before that elected body.

In a written opinion issued last year, the California Attorney General concluded that the legislative body of a local agency may not permit an agency employee from addressing the body during public comment period.

We are not aware of any authority definitively stating that an elected member of the legislative body itself has the right to speak during public comment period.  On the other hand, we are not aware of any authority to indicate that the member of the legislative body would nothave such a right, and permitting him/her to speak to state his views on a matter within the subject matter jurisdiction of the body would appear to be consistent with the policies behind the Brown Act.

A legislative body can take action against “disruptive speech,” but it cannot prevent speech with which it does not agree merely by labeling it disruptive.  In the context of city council meetings, the Ninth Circuit has explained that “[a] speaker may disrupt a Council meeting by speaking too long, by being unduly repetitious, or by extended
discussion of irrelevancies.  The meeting is disrupted because the Council is prevented from accomplishing its business in a reasonably efficient manner.  Indeed, such conduct may interfere with the rights of other speakers.”  White v. City of Norwalk, 900 F.2d 1421, 1426 (9th Cir. 1990).

A meeting of a legislative body is considered to be a limited public forum for First Amendment purposes, and as such, the body faces a substantial burden in justifying any content-based restrictions on speech of members of the public during the public comment portion of the meeting.  Any limitations on content must be shown to be necessary to serve a compelling state interest, and must be narrowly tailored to achieve that goal.  See, e.g., Leventhal v. Vista Unified School Dist., 973 F.Supp. 951 (S.D. Cal. 1997). The restrictions adopted by the body must be reasonable, must be viewpoint neutral, and must preserve the purposes of the body’s limited forum.  In addition, the Act specifically provides that: “[t]he legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.  (Cal. Govt. Code Section 54954.3(c)).  Attempts to suppress critical speech — even speech critical of the views of certain members of the public, including speech that may be considered insulting – may be considered an unconstitutional content-based restriction. For example, the Leventhal court held that policies prohibiting members of the public from criticizing school district employees were unconstitutional because the policies promoted only one viewpoint — e.g. praising and maintaining the status quo.  By allowing only one viewpoint to be expressed, the policies foreclosed meaningful public debate on a particular subject.

Although this information may not be what you wanted to hear, I hope it is nevertheless useful to you.

Limiting Public Testimonies to New Issues

Q: During a recent City Council meeting the board Chairman told the individuals coming forward that when they are giving their testimonies they are to limit their comments to issue other than what has already been brought up by previous testimonies.

My problem with this is that it appears to be limiting people’s testimonies.  I see the practicality of have such a policy during these public quorums, but it does appear to be limiting their testimony unnecessarily.

A: As you may know, the Brown Act is California’s Open Meetings law, and contains provisions regarding the public’s right to speak at meetings of local agencies such as the County Board of Supervisors.  With respect to public comment, the Brown Act provides that:

(a) Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body, provided that no action shall be taken on any item not appearing on the agenda unless the action is otherwise authorized by subdivision (b) of Section 54954.2. However, the agenda need not provide an opportunity for members of the public to address the legislative body on any item that has already been considered by a committee, composed exclusively of members of the legislative body, at a public meeting wherein all interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee’s consideration of the item, unless the item has been substantially changed since the committee heard the item, as determined by the legislative body. Every notice for a special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that item.

(b) The legislative body of a local agency may adopt reasonable regulations to ensure that the intent of subdivision (a) is carried out, including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker.

(c) The legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body. Nothing in this subdivision shall confer any privilege or protection for expression beyond that otherwise provided by law.
Cal Gov Code § 54954.3 (emphasis added).

In other words, at every regular meeting, the body must allow an opportunity for the public to speak, but it may adopt “reasonable” rules, including regulations “limiting the total amount of time allocated for public testimony on particular issues.”

On the other hand, a meeting of a legislative body is considered to be a limited public forum for First Amendment purposes, and as such, the body faces a substantial burden in justifying any content-based restrictions on speech of members of the public during the public comment portion of the meeting.  Any limitations on content must be shown to be necessary to serve a compelling state interest, and must be narrowly tailored to achieve that goal.  See, e.g., Leventhal v. Vista Unified School Dist., 973 F.Supp. 951 (S.D. Cal. 1997). The restrictions adopted by the body must be reasonable, must be viewpoint neutral, and must preserve the purposes of the body’s limited forum.  In addition, the Act specifically provides that: “[t]he legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.  Cal. Govt. Code Section 54954.3(c).  A policy which attempts to suppress critical speech may be considered an unconstitutional content-based restriction. For example, the Leventhal court held that policies prohibiting members of the public from criticizing school district employees were unconstitutional because the policies promoted only one viewpoint — e.g. praising and maintaining the status quo.  By allowing only one viewpoint to be expressed, the policies foreclosed meaningful public debate on a particular subject.

The critical question for your inquiry is whether the limitations placed on speakers not to repeat prior testimony is a reasonable regulation meant, for example, to limit the amount of time set for testimony, of it is a contest-based restriction on speech, which is likely impermissible.  I find no cases directly on point, as most cases addressing an agency’s right to set “reasonable regulations” focus on the time limits available for public comment.  In those cases, California courts have taken the position that agencies may exercise discretion as long as the regulations are not applied “unreasonably or arbitrarily.” Chaffee v. San Francisco Public Library Com., 134 Cal. App. 4th 109, 115 (2005).   The Board may argue that the regulation at issue is applied even-handedly, and intended to function more administratively than substantively, by, for example, creating more time for different issues to be addressed and eliminating cumulative, repetitious testimony.  Still, it would seem very difficult to apply the rule without subjectively considering the content of the speech, which could be problematic.  It would not seem to always be clear when a new speaker is raising a new issue or not, and there would seem to be some room for using such a rule to minimize critical speech.  Moreover, the regulation might be unreasonable to the extent that it would be useful for Board members to know that numerous people have the same or similar concerns about a particular issue.

Time allotted for speaking at public meeting

Q: Since the State take-over of the Oakland Public Schools, the State Administrator, Randolph Ward, has maintained the following rule for public comment. At a regular State Administrator and/or School Board Meeting, a member of the public is restricted to three minutes of public speech on all agenda and non-agenda items. Is this rule a violation of the Brown Act?

A: Time limits on public comment are not a violation of the Brown Act. A legislative body’s chief control over the scope of public comment is the use of time limits. The law does not state what those limits are, simply that they must be “reasonable…to ensure that the intent” of accommodating public comment “is carried out.” The Attorney General has concluded that five minutes per speaker may be “reasonable” under the circumstances (75 Ops. Cal. Atty. Gen. 89 (1992)), but many if not most agencies appear to keep the per speaker limit to three minutes – per agenda item.

More important that the exact time permitted is that the time limits be administered neutrally and evenhandedly. Clearly giving more time to citizens on one side of a controversial topic than those on the other, for example, is not “reasonable.” On the other hand, although the staff or other main proponents of an agenda item will commonly take considerable time in presenting the proposal, there is no requirement that citizens be given “equal time” for rebuttal.

Denying public comment

Q: Can a City Council deny public comment on an agendized item?  At the start of a Council meeting, the Mayor told the many people present they might speak on any item on the agenda when it came up. When under Administrative Items, there was an item reconsidering a certain program but the Mayor would allow no comment.  Although no mention was made of the qualifications on the item in back-up papers or orally prior to taking up the item, the Mayor said a majority of Council had to support reconsideration for public comment on the item to be allowed.  The reconsideration did not get even a second, so none of the many people expecting to be able to speak was allowed to do so.  Does this accord with the laws governing the conduct of public meetings?

A: Government Code Section 54954.3(a), requires public bodies to allow public comments not only on agenda items but on any item of interest subject to the body’s jurisdiction.  The only exception to the public testimony requirement is where a committee comprised solely of members of the legislative body has previously considered the item at a public meeting in which all members of the public were afforded the opportunity to comment on the item before or during the committee’s consideration of it, so long as the item has not substantially changed since the committee’s hearing.  Gov’t Code § 54954.3(a).