I was able to speak late last week with Voice of OC’s open government consultant, Terry Francke, about the state attorney general’s decision to not pursue the Brown Act complaint lodged by the Liberal OC over Santa Ana Councilwoman Claudia Alvarez’s handling of public comment.

Francke, who is also general counsel for CalAware, said Alvarez clearly violated the state’s open government law and the attorney general’s office’s decision showed a “strange double standard.” But, then again, he wasn’t surprised that the office chose not to do anything because it almost never does in these cases.

For those of you just now tuning in, Alvarez’s latest run-in with the Brown Act came when she cut short a speaker, Albert Castillo, whom she described as a political opponent of Mayor Miguel Pulido.

Alvarez’s rationale in her own words:

I am going to request that your microphone be turned off — and I am speaking now, even though our mayor is sitting here, because you are personally attacking him. We all know that you’re supporting a contender that is running for mayorship that is not this mayor. I am not stopping you from freedom of speech; I’m stopping you from personal attacks. Because next thing you know you are going to start talking to him saying that he is self interested.

Here is Assistant Attorney General Gary Schons’ opinion:

Based on our review, we do not believe that a legal action, authorized by section 54960, is necessary or justified. First, it does not appear that Council Member Alvarez’s conduct was clearly a violation of section 54954.3. Appropriately, the rules of the Council direct that public comment be limited to matters within the jurisdiction of the Council or a committee of the Council or City.

In the incidents cited in your complaint, the speakers arguably were attempting to comment on matters or issues not related to the jurisdiction of the Council, a committee, its members or the City. For example, the Mayor’s vote or support in 1994 for Proposition 187 is not related to the governance of the City of Santa Ana or the Mayor’s role or duties as a city official.

If Council Member Alvarez’s conduct of the chair in any way infringed on the opportunity for public comment provided for by section 54954.3, it was de minimus, and you have referenced but two instances of such conduct. This does not justify the filing a legal action.

And here is Francke’s opinion:

The attorney general’s disinclination to take legal action was predictable; it’s never happened in the more than 50-year history of the Brown Act. And the statement didn’t even address the council’s ban on “personal attacks” as such.

A federal court has held that local bodies at such meetings may not prohibit public criticism of a specific, named employee’s behavior. It’s a strange double standard that says elected officials’ conduct as officers of their agencies is off limits for such faultfinding.


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