ACLU Threatens to Sue OC Supervisors Over Alleged Free Speech Violations

Orange County supervisors (from left): Michelle Steel, Shawn Nelson, Lisa Bartlett, Todd Spitzer, and Andrew Do. (Photos by Nick Gerda/Voice of OC and Katlin Washburn for Voice of OC)

In recent months, Orange County supervisors have been putting tighter and tighter restrictions on speakers who try to address them at public board meetings.

And now, say attorneys with the American Civil Liberties Union (ACLU), supervisors have gone too far.  It’s a warning that’s leading county officials to consider policy changes. 

In a letter earlier this week, the ACLU of Southern California claims the supervisors are violating numerous free speech rights guaranteed by state law and the U.S. Constitution. And they threatened legal action if supervisors don’t fix the alleged violations.

“Instead of acknowledging its role as servants of the community…over the last several years, the Board [of Supervisors] has treated the community as an impediment to conducting its own business and has systematically restricted members of the community’s ability to bring their concerns before the Board,” states the letter, signed by ACLU staff attorney Brendan Hamme and sent Monday to County Counsel Leon Page.

“Listening to your constituents is not an inconvenience to be endured; it is your job.”

Among issues cited in the letter are shorter time limits supervisors placed on public speakers, requiring speakers to give their names, refusing to let speakers address supervisors by name, and a policy blocking the release of security videos.

The supervisors’ actions violate the First Amendment and the state’s open meeting law, the Ralph M. Brown Act, the ACLU charges in its letter.

“If you do not agree to rescind your illegal rules and implement legal rules and policies, the ACLU of Southern California will consider all legal means to respond to your refusal,” the ACLU letter said.

(Click here to read the ACLU’s letter.)

The letter prompted county officials to consider possible policy changes.

“The County is open to improvements in the way it conducts the public’s business, and provides opportunities for comment both at public meetings and online,” said county spokeswoman Carrie Braun in a statement Thursday.

“Suggested changes will be reviewed by County Counsel and taken into consideration.”

Supervisors didn’t respond to the letter at their regular meeting Tuesday. But they have previously justified the limits as making the meetings more “efficient,” as well as curtailing three specific speakers who often use multiple agenda items as a platform to criticize supervisors.

Speakers used to be able to talk for three minutes each when individual agenda items came up for consideration, with a total cap of nine minutes per meeting for each speaker.

But in November, the board approved a proposal by Supervisor Lisa Bartlett to stop allowing public comments when individual items come up. They instead moved all public comments to the beginning of their meetings, where each person now has a single three-minute speaking period, regardless of the number of agenda items they want to address.

Commenters were curtailed even further at the Jan. 24 meeting, when Chairwoman Michelle Steel imposed a one-minute total limit for each public speaker. And when it came time to enforce it, she allowed executives for private airplane service companies to speak significantly longer than homeless advocates and county workers who talked about poverty.

In the ACLU letter, Hamme pointed to six separate board policies he claims are illegal.

First, he said restricting all public comments to one general speaking period violates the Brown Act. He pointed to a 2008 state appeals court decision that says the law requires a time for general comments “as well as an opportunity for public comment on each specific agenda item as it is taken up by the body.”

Second, he took issue with the board’s policy of allowing its chairperson to limit comments to less than three minutes each when the meeting’s entire public comment period would last longer than 20 minutes.

Steel used that provision in January to limit the 58 potential speakers to one minute each, for a total cap of about an hour of public comments for the entire meeting.

“Certainly the Board can listen to its constituents for more than one hour,” Hamme wrote.

The Brown Act requires limits on speaking time to be “reasonable,” yet the 20-minute total limit on public comments, as well as Steel’s one-hour limit at the January meeting, are “plainly unreasonable,” he wrote.

And he said the board has played favorites when it came to how long people could speak.

He cited the January meeting, during which Steel allowed a corporate jet services executive to speak for a minute and a half before she politely asked him to “sum it up please.” She then let him speak for another 36 seconds, giving him a total of about two minutes speaking time.

But two speakers later was a county social services worker who assists low-income residents to sign up for financial assistance. When he went 30 seconds over the limit, he received an irritated admonishment from Steel to “stay in one minute.”

Later, a hospitality manager for a jet company was allowed to continue speaking without interruption after the speaker light turned red. She told supervisors how her company could accommodate private jet fliers by arranging “a VIP wine tour and limo for a group of 20.”

Third, Hamme said the board violates the First Amendment and the Brown Act with their policy allowing speakers to be declared “out of order” if they don’t fill out a comment card that lists their name.

“There can be no doubt that anonymous speech is protected under the Constitution as a time honored tradition stretching back to our country’s inception,” Hamme wrote.

“Individuals addressing the Board, such as those who are critical of government employees, may already be hesitant to do so out of fear of retaliation or harassment,” he added.

Hamme also pointed to a Brown Act guide from the main association of California city officials, the League of California Cities, which says: “Public speakers cannot be compelled to give their name or address as a condition of speaking.”

Fourth, he challenged the board’s ban on comments to individual supervisors.

Their meeting agendas state: “Members of the public desiring to speak should address the Board as a whole through the Chair.  Comments to individual Supervisors or staff are not permitted.”

“These restrictions violate the First Amendment and the Brown Act,” Hamme wrote.

In particular, he says, the Brown Act “indicates that the public shall have the right to speak on ‘any item of interest…within the subject matter jurisdiction of the legislative body.’ ”

“Critiques of the actions or inactions of individual supervisors with regards to issues within the Board’s jurisdiction are no doubt covered by these principles,” Hamme said.

The day after the ACLU’s letter, a supervisor enforced this policy against a speaker who was critical of the board’s treatment of homeless people in the Santa Ana riverbed.

As she started her comments, Kimberly O’Neill wondered why Supervisor Shawn Nelson hadn’t followed through on the phone call she said he had promised.

“I still don’t understand why this board is horrible, cold hearted, and inhumane” to homeless people, O’Neill said.

“Anybody want to respond to that? [I’m] kinda waiting on an answer. Like Shawn, I’m still waiting on your phone call. When is that gonna happen? Probably never, right?”

Supervisor Todd Spitzer then interrupted her in a forceful tone of indignation.

“Madam chair, we do not allow, per our rules, direct addressing [of] supervisors or confrontation. We don’t answer questions. This is public comment,” Spitzer said.

“She’s literally out of order, and we don’t allow the rules this way. And so she called on a colleague, it’s not appropriate, and I would just ask that she be admonished to continue her comments the way we’re supposed to be addressed.”

O’Neill was then careful not to mention Nelson by name, instead referring to him as “one of the board members.”

Fifth, Hamme takes issue with the board’s restriction on signs that he says are not disruptive.

The ACLU’s homeless advocate, Eve Garrow, “was told that she could not bring in her [11-inch by 14-inch] sign that said ‘Housing First,’” he wrote.

“The sign, no larger than her shirt, did not pose a safety hazard to any person in the room,” the letter states. “Nor did the sign block anybody’s view because she was not even permitted to bring the sign into the room; if held to her chest, the sign would have been, for all intents and purposes, indistinguishable from message bearing t-shirts, which are not and could not be prohibited.”

Restricting such signs violates the federal constitution and California law, Hamme said.

“Because the purpose of an open, public government meeting is to allow the public to understand, inform, and influence its government, it is unreasonable to prohibit reasonably sized signs that do not disrupt the meeting by, for example, blocking the public’s view for a prolonged period of time,” he wrote.

And lastly, he took issue with the board’s limits on disclosing security footage, which state:

“All recordings from security cameras are confidential and are not public records, but copies of such recordings shall be provided to any or all Board Members at their request, absent any state law that may prohibit such distribution.”

Hamme says this rule “directly contradicts the Brown Act’s requirements, which state ‘Any audio or video recording of an open and public meeting made for whatever purpose by or at the direction of the local agency shall be subject to inspection pursuant to the California Public Records Act.’ ”

In conclusion, Hamme called on supervisors to “immediately begin the process of rescinding and replacing its illegal policies and practices and fundamentally change its approach to the community it purports to serve.

“Your constituents are not obstacles to be avoided—listening to and addressing their concerns is the very purpose of this Board.”

Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at ngerda@voiceofoc.org.

  • Preston L. Bannister

    I am rather disappointed at Spitzer’s reported comments.

    Near twenty years ago someone(?) organized local town hall meetings at the local school (in Foothill Ranch). Spitzer was present at both I attended. While he what he said was not always what I wanted to hear, my impression of Spitzer was that he was honest and constructive. (And I voted for him, before the district lines were re-drawn.)

    Also at one of those local town halls, Mike Carona spoke. While I could not say exactly why, I did not trust the guy, and voted against his election as county sheriff. (He later proved to be corrupt.)

    Perhaps after twenty years Spitzer is no longer the same man. I hope that is not true.

  • Ron Rodarte

    The SCE Citizens Oversight Committee is run in such a manner as to shut public discussion at will, silence even the comittee members who voice a difference of fact and opinion, and shut out the knowledgable public experts who would make factual scientific testimony on the subject of radioactive waste threatening our state and nation at San Onofre Nuclear Generation Station, SONGS, the nuclear plane that was shut and is in decontamination process at the hands of Southern California Edison in a process that is seemingly steamrolled on to public expense and danger for the financial concerns of the highly connected public utility.
    These meetings of incredible importance are being run as a Star Chamber to the point of the chairman packing up and taking the game ball if questioned outside of a narrow pre-set SCE agenda.

  • Ron Rodarte

    Every time I’ve called the US Representative in the 49th District I’ve been asked to state my name, address in a most official tone, and this behavior from the office of the 49th Congressional District and the other Congressional District offices has to stop. The demand is an arrogant implication of suspicion and listing towards citizens hoping to express their concerns and commentary in and of the District and Congress. I do not respond to the requests to stare my name any longer although the general impression communicated or inferred by the representative telephone staff seems to indicate my comment will be handled in a different manner if I am not cooperative to their demands. I do not intend to aquiesce the demands of the Congressional office or staffers in future communications and would hope others follow suit, and possibly note the practice to the ACLU when faced with such official arrogance.

    • LFOldTimer

      I could never understand the BS that callers must identify themselves and provide an address when calling members of congress.

      They say it’s to make sure the caller resides in the District so the person can forward the message to the congress person.

      All of us (regardless of residence or zip code) fund the compensations of ALL congress members and every vote the congress members cast impacts the lives of each and every one of us – regardless of where we live.

      Basically, they are telling us that we are only allowed to have our voices heard by ONE OUT OF 435 ELECTED IN THE HOUSE OF REPRESENTATIVES!!!

      THAT’S FASCISM!!!

      Next time they ask you for your name – ask them for their full name and address!

  • Roger Butow

    carryanne:
    Are you Pretty Boy Spitzer’s avatar? Or a stalking horse apologist for the BOS?
    And how in the hell have you found time to attend thousands of meetings? Little hyperbole there, dontchathink?
    You must be getting paid by someone in government, your postings are not only delusional but very incorrect—typical of failed leadership, when in doubt, make something up, then repeat it.
    During general public comments (or as some venues cite it “Public Communications”) for non-agenda, non-action (no votes taken/required) items, of course the leaders can interact with the speaker.
    That’s not even a Brown Act issue: It’s just civil, especially if the speaker is bringing a problem they feel is in need of urgency.
    Your assertion that there’s not a venue ANYWHERE that allows exchanges is fake, made up information, some bizarre reality……Can’t tell if you’re lying or just argumentative, but back in my years as a enviro-activist (1998—-2006), combined with what I observe as an advisor/consultant the past 10 years, of the hundreds of meetings I’ve personally observed, I’d estimate about 25% of the time someone up there on the dais acknowledges then engages the speaker.
    Might only be “Do you have more information to help us get to the bottom of this?” or “Let me look into that,” or “Please call me,” or “I’ll have staff look into that.”
    If the chair has any common sense, when there appears to be a problem that can be dealt with proactively, a smart politician takes the lead and thus appears responsible/accountable, cements some future votes.
    Regardless of the seated elected’s motivation, failure to respond, suppression of input, leads to more virulent, strident confrontations further on.
    As for speaking duration time, when an activist leader, I anticipated that and wrote copy with bullet points. If time was limited AT the hearing, we just divided up the copy, read into the record our concerns because in many cases you can only appeal decisions, have interested party rights if you previously testified.
    And carryanne? Not all of us can afford legal counsel, so there’s a need for intervention like the ACLU.

    • David Zenger

      The people who complain the most about the ACLU are people in authority who don’t like to be challenged. Some of the ACLU issues may seem trivial but protecting fair and easy access to public officials isn’t one of them.

  • Roger Butow

    “To learn who rules over you, simply find out who you are not allowed to criticize”- Voltaire

    • David Zenger

      We could use Voltaire. Or Mark Twain. Or H.L. Menken. Or Hunter Thompson.

      Instead we have the OC Register, and millions spent by the taxpayers on PR for the benefit of our elected superiors trying to bamboozle…us.

      • LFOldTimer

        Don’t forget about Will Rogers.

  • Becks Torres

    Not often that I agree with the ACLU.

  • Jacki Livingston

    Good! They are starting to act like the Orange Fuhrer, thinking they are royals, instead of elected officials WHO ANSWER TO US! Now, if someone would investigate all of their shady backroom deals, we might actually get a government that we can be proud of, instead of the embarrassing disaster we have nationwide with senators and other elected officials who are too good to attend town halls and such. It is ridiculous, and they need to remember what happens to public figures in the past, who got too big for their britches…sharpen the guillotines, kids, and lets take back government, once and for all!

  • LFOldTimer

    I scanned the OC Register for news of this county government debacle. I found zero, zilch, nada. The largest county news publication should inform the people that the supes stepped in it again by abrogating basic rights of public participation at government meetings. Looks like VOC beat them to the punch on this one. Did the watchdog take a day off?

  • B Dalton

    Folks, we have in many ways a rouge Board of Supervisors. They’ll do anything they want if it benefits them, but really don’t care what the citizens think/want. So the next election keep that in mind when you VOTE.

    • David Zenger

      “a rouge Board of Supervisors”

      I’m sure you meant “rogue,” but the idea of the male members of the board applying make-up struck me as pretty funny.

      • Jacki Livingston

        Me, too, David. I am trying to imagine Todd with guyliner like Captain Hook on Once Upon a Time. LOL!

  • LFOldTimer

    Changing the rules back to a semblance of sanity that recognizes the public as a integral part of government is not enough. There should be punishments for the supes who imposed these draconian rules on those who pay their fat compensations and put them into power. “Of, for and by the people” has a specific implied tone to it – and elected officials this high in the food chain should not have to be reminded of it over and over again. At some point they need to feel the pain, other than taking the risk of being voted from office in 2, 3 or 4 years. I say hit them PERSONALLY in their pocketbooks for violating the rights of the public so we don’t see these same egregious acts of disrespect for the general public repeated. And if we have to change the darn laws to make that happen – so be it.

    I said from the start that this was a childish emotional overreaction to Klubnikan and the Seglans (sp?) who regularly appear at the supe meetings. 3,100,000 people were punished for the perceived acts of 3 individuals. Repulsive. I’m surprised it took the ACLU this long to react. Until some force of authority or power responds to such fascist acts these bullies will push the envelope to the limits because they feel that they are taking no political or financial risk by doing so. That needs to change forthwith!

    And why does the ACLU even give them a chance to respond? Just go after them and give this situation more light of day so that more OC residents realize we have a group of jackboots running the county – not servants who work at our pleasure!

    • carryanne

      The ACLU has already taken these same grievances about other counties to court and have lost. Most counties allow only 3 to 5 min to talk and most only 3 min. And no county allows for individual conversation or responses from a Board member at a Board Mtg, if they were to do that then all the people that wanted to speak would not be able to, meetings would run too long and folks would start leaving, not allowing all to speak who wanted to, The ACLU is again trying to use a government agency to increase there bank accounts. They have no interest in truth or justice or fairness, just lining their pockets. It’s an organization that makes things up and some, only some, people really take the ACLU seriously.

      • David Zenger

        “And no county allows for individual conversation or responses from a Board member at a Board Mtg”

        Incorrect. Conversation and responses to public comments happen all the time. They are not disallowed. However nobody can make a Supervisor talk and we’d be a lot better off if they talked a lot less.

      • LFOldTimer

        Go read the actual Ralph M. Brown Act.

        It states the exact opposite of what you claim.

        I believe the law.

      • Ron Rodarte

        Sorry Carryanne. Please state your comment in three words or less or leave the discussion group.
        and don’t forget to state your name and address and work address while leaving, it’s “policy”, and we’re sure you won’t mind. Because, we’re the government and you trust us.
        These new rules are legitimized by the fact that the attention span of the average US citizen is about three words or less and we just don’t want to waste the editors time posting all those words.

      • Jacki Livingston

        Oh, I take them seriously, darlin’. I got me a call from an ACLU lawyer just yesterday, and he asked me if he could scan the six boxes of files, emails and documents in my possession, showing conspiracy and fraud from the BoS in regards to their involvement with members of organized crime, not to mention direct orders that workers received, demanding that we falsify reports and turn a blind eye to fraud that bilked taxpayers for millions. In particular interest? Emails between myself and County outside counsel as well as Toddy’s CoS, where we discussed his unethical use of influence to gain a pass from testifying under oath. Oh, yes, come the 28th? The ACLU will have boxes of files and reports showing falsification of records, fraud, extortion, assault, embezzlement and activity that can get dear, darling Todd disbarred. Now, I may be wrong, but it seems common sense to me that if a lawyer is disbarred, it is real hard for him to run for District Attorney. Oh, yes…revenge is a dish best served cold, but put a heaping, fluffy dollop of justice on it? Mmmmm…delicious.

  • verifiedsane

    “Your constituents are not obstacles to be avoided—listening to and addressing their concerns is the very purpose of this Board.” <—well worded summation

  • Roger Butow

    “The welfare of the people is the ultimate law.” Cicero

  • OCservant_Leader

    Thank you ACLU. Suing this corrupt BOS is the only avenue, unfortunately the public has to communicate with this closed regime.

  • David Zenger

    Wow, Spitzer sure has become a sensitive little flower.

    • carryanne

      They can directly address a board member anytime they want, but there isn’t a county in the USA or Europe who allows an exchange of conversation while in an active Board Mtg. I would be pissed if I was sitting in a Board Mtg listening to important information and some one were to get up and ask why they hand a hang nail and want an answer, and that happens in Board Mtgs, I have been to hundreds if not thousands in my career.

      • David Zenger

        You are wrong.

        Of course exchanges are “allowed.” They happen all the time during public comments at meetings everywhere – voluntarily. Of course nobody can force a boardmember to respond and no one at that meeting was demanding that happen.

        This board has just become so imperious they are actually starting to believe their own ridiculous rhetoric about rules and privileges.

      • OCservant_Leader

        BOS – staffer…shut it.