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Having Your Say At City Council Meetings Is a Right, Not A Privilege

How the Santa Cruz City Council Fails To Respect the Spirit and Intent Of The Brown Act and First Amendment
By Thomas Leavitt

As citizens, we have certain rights, guaranteed by the 1st Amendment to the Constitution, and further enhanced and procedurally detailed by California's Ralph M. Brown Act, whose introductory section reads thusly:

“In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.

The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.�

The Brown Act specifies exactly how and under what conditions public meetings of local government agencies may be held, what rights we as citizens of California have to participate in these meetings, and what limited constraints on our participation the agencies may impose.

Our rights include advance notice (72 hours) of when and where meetings will be held, and what will be discussed at the meeting (an agenda detailing these items must be made available) (§ 54954.2(a).). They also include “the right to provide testimony at any regular or special meeting on any subject which will be considered by the legislative body before or during its consideration of the item. (§ 54954.3(a).)�, as well as the “right at every regular meeting to provide testimony on any matter under the legislative body's jurisdiction. (§ 54954.3(a).)� (i.e., matters not on the agenda). The “Oral Communications� segment of Santa Cruz City Council meetings fulfills this requirement. We also have the right to criticize “the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body. (§ 54954.3(c).)�

(Quotes sourced from “The Brown Act: Open Meetings For Local Legislative Bodies�, prepared under the aegis of California Attorney General Bill Lockyer in 2003, and available on the web at ag.ca.gov/publications/ in the “Open Government� section).

Importantly, according to Attorney General Bill Lockyer, “Public meetings of governmental bodies have been found to be limited public fora. 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.�

The provisions cited above are designed to ensure that the affairs of our local governments are handled in a fashion that is as transparent as possible, and to ensure the ability of the public to provide feedback on any and all issues they consider. Unfortunately for the citizens of Santa Cruz, our City Council has chosen to take a very narrow view of how these rights can be exercised.

The latest manifestation of this is the City Council's recent imposition of a 5 minute limit on the total amount of time an individual may speak on items contained in the City Council's “Consent Agenda�. Since this portion of the agenda often contains as many as twenty items (sometimes more), this effectively limits folks to as little as 15 seconds per item of comment time. While it is unlikely that anyone would want to speak to every item on the consent agenda, it isn't out of the realm of consideration that an individual might want to speak to four or five items – under these circumstances, this time limit severely limits the ability to speak effectively to the issues at hand. As well, it is not unreasonable or unlikely that an individual might be motivated to speak on items he or she had not otherwise planned to comment on (perhaps in reaction to comments made by other members of the public), but be prevented from doing so because he or she has already used up his or her allocated time.

This is a significant change from the rules and practices that previously prevailed, under which an individual could speak for up to three minutes on each and every item, or at worst would be subject to a shorter time limit on each individual item, if the Mayor decided to temporarily alter the Council's normal practice. It is also in stark contrast to the way almost every other city council or other local government body in the state chooses to manage public input. Reading through the rules of numerous other City Councils, I was unable to find any analogous practice that imposed an overall time limit on comments made by an individual.

This is only one in a series of questionable practices engaged in by our City Council that have had a chilling effect on public participation by making it difficult to impossible to effectively exercise one's rights under the Brown Act and First Amendment and or by explicitly violating them. Among the most egregious, to which I can personally attest, are the following:

a) “decorum� rules that ban “impertinent, personal, or slanderous� remarks, enforcement of which is a patent violation of the First Amendment, according to Terry Franke of California Aware (a non-profit organization specializing in “public forum� law) and others familiar with law and practice in this area that I've consulted with.

b) selectively re-scheduling consideration of agenda items in a fashion clearly intended to discourage public input or render it effectively impossible by requiring those desiring to speak to return at a later (and often indefinite) time, or remain present long past the time one expected to be able to speak.

c) canceling evening sessions and then moving “Oral Communcations� (which normally occurs at a set time, 7:00 p.m., every meeting) to the end of the afternoon agenda at an unspecified time. This essentially requires members of the public who wish to speak to the City Council on a matter not on the agenda to be present for most of the afternoon session, as it is impossible to anticipate how quickly (or slowly) the City Council will move through its scheduled agenda, and prevents the working public (folks working from 9-5) from being heard by the City Council during these meetings.

d) establishing a “blacklist� of “disruptive� members of the public, and threatening to limit their ability to participate in City Council meetings based on a cumulative series of “rules violations� over multiple meetings spanning an unspecified period. Again, according to Terry Franke and others, this is a blatant violation of the Brown Act, which requires that sanctions such as eviction from a meeting or other restrictions on participation be based solely on whether an individual action, separate and apart from any and all prior conduct at previous meetings, rises to the level of “willfully caus[ing] a disruption of a meeting so that it cannot be conducted in an orderly fashion� (to quote Mr. Lockyer's office).

The City Council's actions have rendered the city vulnerable to legal action and create an unknown but potentially significant financial liability to the city's taxpayers. This liability is not just theoretical--the city is currently being sued in federal court by a public interest lawyer acting on behalf of homeless civil rights activist /general governmental gadfly Robert Norse. The City has already lost round one of this dispute, when the lawsuit was re-instated by a federal appeals who found that the plaintiff had a substantial likelihood of prevailing on the merits of his case.

Norse, a particularly persistent and often abrasive critic of the City Council and its actions, credibly contends that many of these limitations are specifically targeted at him (a clear violation of the First Amendment) since more often than not they have had a disproportionate impact on his individual participation. The 5 minute rule is an obvious example of this, having clearly been imposed in an attempt to formalize and justify an ad hoc restriction specifically and exclusively imposed on him by the Mayor at a prior meeting, in response his habit of frequently speaking to multiple Consent Agenda items.

Mr. Norse is unquestionably a controversial figure, but regardless of what you think of him, if you care about your right to participate in the City Council's deliberative process, you should concerned about these changes. The actions taken by current and previous City Councils in an attempt to muzzle him and other activists have established dangerous precedents that future City Councils (who may not be as friendly to the causes favored by the current council) could use to silence and/or discourage critics.

The City Council could take a small but significant step back from its trend of increasingly restrictive limitations on public participation by rescinding the 5 minute rule and formally committing to ensuring that all members of the public are able to speak to each agenda item as it is considered, without fearing retaliatory imposition of arbitrary restrictions on their participation.
 
 


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Silenced at City Council

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Stand Up, Speak Out, Fight Back, Be Heard
 

Following the Norse Case

Thanks to Thomas for his Brown Act article above.

City Council's violations of the Brown Act are a key part of my lawsuit against the City, now in federal court, for an early bogus "disrupting a public meeting charge" leveled by then-Mayor Krohn in March 2002. (See "Santa Cruz City Council Will Face Trial in mock-Nazi salute case" also on this website.)

I made a formal Brown Act demand, which folks can read at "Assaulted and Arrested at City Council Tuesday Afternoon for Trying to Make a Two Minute Pro-Union Speech" elsewhere on this website. The City has not responded in writing to my demand, so I'm assuming they're ignoring it.

For those interested in following my Adventures in BrownActless Land, check out the story there.

The Santa Cruz Sentinel also printed an op-ed piece by me this last Sunday. It can be accessed at: www.santacruzsentinel.com/archive/2005/August/14/edit/stories/03edit.htm

A longer piece was printed by the American Friends Service Committee's Street Spirit newspaper. It can be read at: www.thestreetspirit.org/July2005/arrested.htm

My continued arraignment is 8:30 PM in Dept. 1 Wednesday August 17th. Kate Wells will be making an appearance for attorney David Beauvais.

I'll be pleading not guilty and asking for a copy of the audio tape which Lt. Clarke confiscated when he arrested me--the only audio record I'm aware of that demonstrates police did not inform me I was under arrest while Clark physically manhandled me.

I'll also be looking for any tapes or notes that Clark and other police officers have, including the dispatch tape and the police report (which I've previously requested--but the D.A. has refused to give me).

And if anyone witnessed the June 14th arrest, please contact me at rnorse3 (at) hotmail.com . Ditto, if you've had any untoward experiences with Lt. Steve Clark.

Recent Brown Act evasions include City Council's July 26th attempt to exclude activists from the open interval of a closed session at City Council that morning. Those concerned with the city's likely sellout of the Tidelands to the Seaside Company reported that they were initially excluded from the meeting, with Council members (or staff) reportedly saying that "your item is not on the agenda".

When the dozen or so activists were persistent enough, they were eventually let in and allowed to make brief testimony. But it was typical of Rotkin that routine public access required unusual pressure.
 

Re: Having Your Say At City Council Meetings Is a Right, Not A Privilege

all levels of government have created "laws" that are in violation of the constitution that they swore to uphold. an insult deliberate to all who served in the military to protect. and an insult to all americans who raised their children to believe that the u.s. was the greatest country in the world. an insult to all who came to this country to raise their children to be the best. in short extreme disrespect to us all.
 

Re: the article robert mentions

Assaulted and Arrested at City Council Tuesday Afternoon for Trying to Make a Two Minute Pro-Union Speech
santacruz.indymedia.org/newswire/display/17930/index.php
 

Court Dates

Pre-Trial for the two charges is Thursday September 8th at 10 AM.

Jury Trial begins Friday September 26th (probably 9:30 AM, maybe earlier).

I hope to be posting the police report shortly and my response to it.
 

Community TV Discussion of the Brown Act

A Club Cruz interview/discussion of the Brown Act and the Santa Cruz City Council is likely to air Tues. Sept. 6th @7PM at 7PM on channel 27 and repeat on Thursday Sept 8th at the same time. Becky Johnson as producer and host interviews me and Thomas Leavitt.


My jury trial will likely postponed a few days until at least October 3rd.
 

Re: Having Your Say At City Council Meetings Is a Right, Not A Privilege

One's first amendment rights do not extend to public disturbences...

...However, having heard only one side of this story, and from a somewhat biased source, one should not take a stance on way or the other.
 

First Amendment Supporters Should be Disturbed

City Council created its own "disturbance" as it has in the past, by denying me the same two minutes of speech on the IATSE labor issue that everyone else was granted.

Waiting for one's time to speak at the microphone does not constitute a "disturbance". Removing a member of the public from the room does.

In a fairer world, if anyone were to be charged, it would be Mayor Rotkin, who stage-managed the situation.

The chilling impact of his initiating and then sanctioning a violent unannounced arrest on the community is far more significant than my waiting at the microphone for my Brown Act-guaranteed opportunity to speak.
 

Mayor Won't Respond to Brown Act Demand

I received a voicemail message from Martin Bernal, assistant City Manager, in response to my Brown Act demand, indicating Rotkin won't be replying in writing.

My letter demanded that item #13.1 be redone given the Mayor's failure to provide Public Comment time for me as required by the Brown Act. (See "Assaulted and Arrested at City Council Tuesday Afternoon for Trying to Make a Two Minute Pro-Union Speech" at
santacruz.indymedia.org/newswire/display/17930/index.php for the text of the letter)

A follow-up call to Mayor Rotkin confirmed that he will not be responding to the letter since the matter will be going "to court" (that is, I will prosecuted for refusing to leave the podium and the meeting when I asked for two minutes of speaking time).

The Mayor or the City Attorney did respond to recent previous Brown Act requests (of January and March) in written form (where he formally turned them down).

If you want to read those letters, check out (1) "Third "Follow the Brown Act" letter sent to Mayor Rotkin" comment under the "Y SWAMI Y GIVEN SPECIAL MAYORAL ESCORT" story at Third "Follow the Brown Act" letter sent to Mayor Rotkin & (2) "Asking Mayor Rotkin to Follow the State Open Meetings Law" at santacruz.indymedia.org/newswire/display/17064/index.php

In the past Rotkin and previous Mayors have not regularly replied to my Brown Act demands. However this spring, my lawsuit against the City Council for its false arrest of me back in March 2002 for the mock-Nazi salute was re-activated. At that time, my volunteer attorney added new defendants and incidents based on City Council's January 2004 false arrest--which folks can also look up on this website (though some of it may have disappeared as webmasters switched over to a newer format).

These new responses came, I speculate, because the City Attorney and hence Rotkin got more nervous about simply ignoring my Brown Act demands. The City might be able to defend itself better in my civil federal case against them if they made some kind of written response.

But now Rotkin is ignoring this latest Brown Act demand in spite of probable legal anxieties about their own civil liability in the federal February 2006 trial coming up. This may indicate they are intent on taking me to a criminal trial around this latest "disrupting" charge--for the first time.

Previously when I was falsely arrested at City Council (March 2002, January 2004] for "disrupting a public meeting", I similarly got no reply from them, but then charges were never filed.

This time, given the newer practice of regularly replying, charges have been filed. And I think the Mayor may intend to go ahead with a full-blown trial on this issue. That should happen October 3rd--or perhaps a bit later, if it's delayed.

I think the Mayor's practice of disrupting his own meeting by demanding critics leave the chambers rather than have legally-guaranteed Public Comment time is criminal behavior under the Brown Act. It is also a slap in the face of the First Amendment and any pretention to an open public process. Naturally, however, no Grand Jury will ever indict him and no D.A. will ever try him.

If you want to ask him what he's doing, his office phone is 420-5023 and ask whether he's going to continue this kind of behavior.

It's also helpful to remember that Rotkin adopted the 5-minutes-only-on-the-Consent-Agenda rule, in part, I believe, because of his interest in keeping homeless civil rights issue out of the eye of the public and off the agenda.
 

Why Public Comment Is Important at Council Meetings

The Rotkin-Porter "five minutes" maximum for any and all comment on Consent Agenda items is particularly designed to target criticism on homeless issues, which the two dismiss as "tangential" (but not tangential enough to be ruled out of order).

To get a clear sense of this, check out "E-Politics" at santacruz.indymedia.org/newswire/display/10374/index.php

This is a story from the Metro in July of 2004, where I raised various questions which Rotkin declined to answer (after publicly promising to do so) about the costs of funding gentrification measures downtown like the Pacific Trading Company planter-fence (used to eliminate sitting on the large planter in front of the PTC), the New Leaf Market fenced off area between Alfesco's and Cafe Campesino, the new change-making machines (used to eliminate sitting and sparechanging within 50' in both directions).

Specifically in that article, scroll down to "Transcript of what was said at June 22nd city council meeting" by Becky Johnson, which relates particular details of discussion on consent agenda items. Since late March 2005 when the Rotkin Council passed the 5-minute Consent Agenda gag rule (Fitzmaurice voted no), that public input would no longer be possible.

The issues raised there embarrassed Vice-Mayor Rotkin. I am one of the few people who require the Council to individually and specifically address Consent Agenda items by raising substantive questions about them. Now time has been cut down do that a member of the public cannot comment on more than one or two.

I was arrested for trying to comment on the fourth item.

My trial has been postponed--probably until early December.
 

Trial Update

My trial for "resisting arrest" and "disrupting a public meeting" is now set for December 12th, but that date is again tentative.

Former mayors Krohn, Fitzmaurice, and Kennedy as well as police officials Clark and Baker and City attorney Barisone are due to be heard under oath in depositions November 28-30th. This is as part of a broader federal law suit which I filed against the city for false arrest and a continuing pattern of repression at City Council. The Mayors and cops go to federal civil trial in february 2006 in San Jose--or such is the current schedule.

If you have felt repressed at City Council or seen others in that situation, please post your story and/or contact me at 831-423-4833.
 

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