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.