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The blue cards that the Orange County Transportation Authority gives members of the public to fill out before they can comment during meetings violate California’s open-meetings law, according to open government expert Terry Francke.
OCTA lawyer Ken Smart said speakers are “not required” to fill out the cards with information including their names, addresses, telephone numbers and affiliations.
But in no way does the agency tell potential speakers that giving OCTA that information is voluntary.
“When the government hands you a form to fill out, the usual assumption by most people is you have to fill it out,” said Francke, general counsel for Californians Aware and Voice of OC’s open government consultant. “If they don’t tell you it’s voluntary, you’re going to assume that it’s not.”
The OCTA card also tells potential speakers “when your name is called upon, by the Chairman, please come forward, state your name, city of residence or agency you are representing, and present your comments.”
Francke said: “If they [members of the public] have something to say to the government, they do not need, under the Brown Act or any other law, to disclose who they are.”
And, he said, the Legislature recognized that people might feel they are required to fill out a form, if it is given to them. He said state law requires public agencies that have a sign-in roster to specifically “advise the public of their right not to sign.”
The Brown Act is California’s open-meetings law. The purpose is to make government agencies open to public scrutiny and accountable.
Smart, who has advised Orange County government agencies for decades, said he would “take a look” at OCTA’s public speaker policies, adding that the issue “never has been raised” before now.
At Monday’s meeting, Curtis Gamble wanted to speak about concerns regarding whether bus drivers are getting their state-required lunch and rest breaks. Gamble isn’t a driver, but he was concerned about the issue.
He filled out the blue card, he said, because he thought he had to in order to speak during the public comment section of the meeting.
“How [else] do you get on the agenda?” he asked.
Francke said: “The burden would certainly be on the [transportation] district to explain why a person addressing a government body has to identify himself as to name, address or anything else.”
The right way for government agencies to plan for public speakers, he said, is to ask them to simply write which item on the agenda they wish to address, without giving their name or any other information. That way, the presiding officer knows how many speakers are interested in a specific issue and can plan for large numbers who may want to speak without violating the Brown Act.
If speakers, on their own, want to say they come from a specific town or neighborhood, or volunteer other information, Francke said that’s up to them.
We’ll let you know how OCTA decides to handle this.
If you know of other public agencies that are seeking information like OCTA does for those who wish to make public comments, please let us know; we’ll check it out. Email: firstname.lastname@example.org.