ACLU Sues Supervisors Over Public Comment Policies

The American Civil Liberties Union of Southern California has filed suit against the Orange County Board of Supervisors for policies that the civil rights group says prevent the public from stating controversial opinions in public meetings.

The suit was filed Wednesday in U.S. District Court in Santa Ana on behalf of William Denis Fitzgerald of Anaheim, who has spoken frequently at board meetings and is a director of the government watchdog group Homeowners for Maintaining our Environment (HOME).

The ACLU wants the federal court to order revision of policies on public comment to make it clear that speakers have a right to make controversial statements, even if board members and others disagree.

Most recently, Fitzgerald, who was an Army infantryman for 11 years and served in Vietnam, was interrupted by Supervisor Janet Nguyen and chastised while making public comments Aug. 23 about the board's boundaries for new supervisorial districts.

The plan ultimately adopted by the board divided the city of Fountain Valley in order to add more Vietnamese voters to Nguyen's 1st Supervisorial District.

Fitzgerald criticized the board for not doing enough to give a stronger voice to Latinos, who constitute about 40 percent of the county's population.

Then he said U.S. troops fought and died in Vietnam, but Vietnamese, who fled to the U.S. after the fall of Saigon in 1975 were "cowards" who should have stayed to fight for their country.

Nguyen was born in Vietnam but came to the U.S. as a child and graduated from high school in Orange County.

Board Chairman Bill Campbell, named as a defendant in the suit, "abruptly interrupted Mr. Fitzgerald before his allotted three minutes had expired to give the floor to Defendant Nguyen, who," the complaint alleges, "proceeded to berate him purely for the content of his speech, calling it 'appalling' and 'wrong' and indicating that Mr. Fitzgerald was not allowed to criticize 'members of any communities coming to this country, this great country, for their freedom and democracy.' "

When Fitzgerald made his controversial comments, he was approached by the sheriff's deputy assigned to board meetings who stood at his side as Nguyen was chastising him. Ultimately, Fitzgerald stalked from the room while Nguyen was still speaking.

According to the court complaint, Fitzgerald wanted to speak when the board took up the redistricting issue again on Sept. 6 but didn't. "Because of the Board's rule and procedures, as well as their past treatment of him, he fears being silenced again and possibly punished for expressing himself."

Specifically, the suit seeks an order requiring the board to change Rule 46 and Speaker Guidelines to make it clear the board doesn't prohibit speakers from expressing their opinions, even if supervisors and others may disagree.

Campbell didn't return calls seeking comment, but in a telephone interview Nguyen said it is common for board members to interrupt speakers to ask a question. She said speakers are allowed to continue their comments after they answer the question.

She said she was telling Fitzgerald "you're free to say whatever you want, but let's not talk about people being cowards or people fighting in vain.

"All I wanted to tell him was 'look, make all the comments you want. You're welcome to make comments about me. But you shouldn't make comments about other people.' "

She said at board meetings "the one thing you can't do, in my opinion, is disrespect other people."

"The deputy stood there. He [Fitzgerald] left himself. The deputy never arrested him."

But ACLU lawyer Belinda Escobosa Helzer, director of the group's Orange County office, said the board "can't regulate the content of people's speech.

"Whether we agree or not with his opinion," she said, "he has a right to his opinion. He was not disrupting the meeting."

Supervisor John Moorlach is also named in the suit because of a July 27, 2010, board meeting in which, during the comment period, Fitzgerald criticized the board clerk, who also runs the county Assessment Appeals Board.

Fitzgerald, according to the suit, said the clerk was mismanaging the Appeals Board, costing homeowners unjustified taxes.

The suit quotes Fitzgerald as saying, " 'It is apparent that (the Clerk of the Board) is like the commander of a concentration camp. She is just following the orders of her bosses.' "

The suit alleges "at that point, Defendant Nguyen [who chaired the board] and Defendant Moorlach interrupted Mr. Fitzgerald and at least one of the [unspecified] defendants, an Orange County Sheriff's Department deputy, approached Mr. Fitzgerald and instructed him to leave the podium.

"Defendant Moorlach," according to the suit, "scolded Mr. Fitzgerald for not being polite, informed him that they were 'in a position of authority' over him, and promptly had him escorted from the meeting."

Moorlach, in a telephone interview, said he interrupted Fitzgerald because he wanted to ask him a question, but "Mr. Fitzgerald just wouldn't stop."

Moorlach said the county has investigated Fitzgerald's claims of poor performance by the Appeal Board and found they were unwarranted.

Moorlach said that some speakers "say things that are a little over-the-top, that incide people."

"I believe in free speech, but you've got to balance too," Moorlach said.

"He [Fitzgerald] lights into people," he added. "I don't know why they [the ACLU] would select this type of client, but if you look at the tape [of the meeting], I was just trying to ask him a question."

Earlier this year the board changed its speakers policy, no longer requiring speakers to fill out in advance a form with their names and the towns where they live.

Such a requirement is a violation of both the U.S. Constitution's First Amendment guarantee of free speech and of California's Brown Act, both of which protect the right to address government anonymously, said Terry Francke, who is general counsel for Californians Aware and Voice of OC's open government consultant.

After Voice of OC wrote about the board policy, it was changed so speakers need not state their names.

Now if speakers prefer, they can list themselves as "Man from Mars" or any other title, "and we've had some who do," said Susan Novak, chief deputy clerk of the board.

Please contact Tracy Wood directly at twood@voiceofoc.org and follow her on Twitter: twitter.com/tracyVOC

 

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