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:
â€śIn 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.â€?
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) (Â§ 54954.2(a).). They also include â€śthe 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. (Â§ 54954.3(a).)â€?, as well as the â€śright at every regular meeting to provide testimony on any matter under the legislative body's jurisdiction. (Â§ 54954.3(a).)â€? (i.e., matters not on the agenda). The â€śOral Communicationsâ€? segment of Santa Cruz City Council meetings fulfills this requirement. We also have the right to criticize â€śthe policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body. (Â§ 54954.3(c).)â€?
(Quotes sourced from â€śThe Brown Act: Open Meetings For Local Legislative Bodiesâ€?, prepared under the aegis of California Attorney General Bill Lockyer in 2003, and available on the web at ag.ca.gov/publications/ in the â€śOpen Governmentâ€? section).
Importantly, according to Attorney General Bill Lockyer, â€śPublic 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.â€?
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 â€śConsent Agendaâ€?. 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 â€“ 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) â€śdecorumâ€? rules that ban â€śimpertinent, personal, or slanderousâ€? 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 â€śpublic forumâ€? 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 â€śOral Communcationsâ€? (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 â€śblacklistâ€? of â€śdisruptiveâ€? members of the public, and threatening to limit their ability to participate in City Council meetings based on a cumulative series of â€śrules violationsâ€? 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 â€świllfully caus[ing] a disruption of a meeting so that it cannot be conducted in an orderly fashionâ€? (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.