With Santa Ana Mayor Miguel Pulido absent, Mayor Pro Tem Claudia Alvarez was at the helm of a recent city council meeting. And the Liberal OC’s Chris Prevatt said Alvarez ran the meeting into a Brown Act violation regarding public testimony.
Alvarez, according to Prevatt, arbitrarily applied the Brown Act’s rules regarding public testimony — giving some residents ample opportunity to speak, while cutting off others who had specific criticisms for council members.
We took Prevatt’s complaint to Terry Francke, who is general counsel for Californians Aware and Voice of OC ‘s open government consultant.
Here is the question we posed to Francke:
What are the Brown Act requirements regarding the public testimony period during open meetings? For example, does the act stipulate a set amount of time a person is allowed to comment? Can an official running a public meeting decide who can and who cannot comment? Can speakers be stopped from directing statements or questions to particular member of the body, or from mentioning their names in critical comments?
Here is Francke’s answer:
The Brown Act requires that those attending meetings of local government bodies like city councils, boards of supervisors, and school boards or special district governing boards be given the opportunity to address the body both on items on the agenda — before or during their discussion by the body — and on other items, so long as they concern matters the body has the authority to act upon.
This opportunity must be stated on the agenda to alert the public of their rights. The act gives the body the authority to adopt procedural rules governing this process, and in particular to set reasonable time limits on each speaker, on each topic, or on some combination of those categories.
Case law holds that those who wander off topic, comment repetitively or exceed standard time limits can be interrupted and prevented from speaking further. But all such rules must be applied evenhandedly and not employed to suppress a particular viewpoint.
As for forbidding speakers from addressing or even critically naming particular members of the body such restrictions amount to unconstitutional censorship. Apparently some local agency lawyers believe that unless the Brown Act expressly requires certain speech to be accommodated, it can be prohibited.
Thus, when the Act in Government Code Section 54954.3 (c) states, “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” that list leaves any other kind of complaint or criticism, for example comments made to or about an individual member, fair game for censorship.
A federal district court rejected that notion more than a decade ago, dealing with a school board’s refusal to allow a parent to complain in open session about the lack of responsiveness of several named school administrators-and its insistence that any such complaints be voiced only in closed session.
The federal court cited California’s own fundamental law, whose free speech protections are in this context even more robust than those of the First Amendment. “Under the California Constitution, District’s Board may not censor speech by prohibiting citizens from speaking, even if their speech is, or may be, defamatory,” the court concluded, especially when the context is a meeting governed by the Brown Act, whose public comment accommodation rules have created a designated forum for speech. Baca v. Moreno Valley Unified School District, 936 F.Supp. 719 (1996).
In short, when the government has expressly invited comment to its officials at an open meeting of a public agency, it cannot censor any comment, however unfair or damaging, that relates to the official activities of the agency, its officers or other personnel.
— TERRY FRANCKE