A freedom-of-speech battle over public comments at Orange County supervisors’ meetings is heating up – and could be headed to court – after the supervisors’ top attorney argued against changing policies the American Civil Liberties Union claims are illegal.

County supervisors are planning to vote next week on changing two policies challenged by the ACLU of Southern California.

But other rules the ACLU objected to, like a ban on public speakers addressing supervisors by name, were defended by County Counsel Leon Page after meeting with supervisors last week.

In response, an ACLU official said the issue may have to be decided in court.

“We are deeply disappointed that the Board of Supervisors has decided to continue treating their constituents as obstacles,” ACLU staff attorney Brendan Hamme wrote in a statement Sunday.

“If they won’t willingly listen to the community, they will have to listen to the courts. It’s just unfortunate that, yet again, the Board would rather waste taxpayers’ dollars on needless litigation than voluntarily serve the public and invest that money into desperately needed services for those in the County.”

Page, the supervisors’ attorney, called Hamme’s remarks “unfortunate.”

“As you can see from my email to Mr. Hamme, I invited the ACLU to continue this conversation. I did not reject out of hand their proposals,” Page wrote in an email to Voice of OC early Monday.

“Rather, I asked Mr. Hamme to identify what I might have missed in my legal analysis. Obviously, I can’t stop Mr. Hamme from filing a lawsuit, and I have no way of predicting what the courts will do, but I do know that moneys spent on Mr. Hamme’s attorney’s fees will do nothing to improve the services that the County provides to its residents.”

Following a demand letter last month from the ACLU that threatened legal action, the supervisors stopped enforcing a policy they’ve used to restrict comments to one minute per person.

And Page said the supervisors will vote next week on eliminating that policy entirely and loosening another that regulated handheld signs.

“With respect to the other issues you identified in your letter, we did take a very close look and (respectfully) came to the conclusion that many of your arguments were misplaced or lack merit,” Page wrote.

He sent Hamme a detailed legal analysis explaining his position, including a defense of the rule against addressing supervisors by name.

That rule “does not (as you suggest) preclude a speaker from making pertinent comments about an individual Board member,” and “does not control the substance of speech,” Page wrote to Hamme.

“The rule simply directs – in an effort to preserve decorum – that such comments be directed to the Board through the Chair.”

The discussion was sparked by a March 13 letter from the ACLU, which threatened legal action against the Board of Supervisors over a series of policies the ACLU claimed violated free speech rights.

Among the complaints was a policy that allows supervisors to reduce the official three-minute-per-person speaking time to one minute, no matter how many items a member of the public wants to speak about.

That one-minute limit was imposed at the Jan. 24 meeting by Chairwoman Michelle Steel. A board policy allowed her to shorten each speaker’s time limit when there were enough speakers – more than six – to make the meeting’s public comment period longer than 20 minutes.

But when she enforced the rule, Steel allowed executives at luxury airplane service companies to speak significantly longer than homeless advocates and county workers who talked about poverty.

The ACLU also took issue with policies that ban speakers from addressing supervisors by name, prohibit handheld paper signs, and block the release of security videos.

Supervisors went into closed session last week to discuss the letter and emerged with a plan to vote on changing the speaking time and sign policies at the April 11 meeting, according to emails Page sent to the ACLU.

In an email a few hours after supervisors discussed the ACLU letter, Page said he is preparing a proposal to eliminate the policy that allows comments to be shortened to less than three minutes per speaker when the total comment time would be more than 20 minutes.

Supervisors will also vote on changing their sign rules “to ensure that only those signs that actually disrupt the Board meetings are prohibited in the Board room,” Page wrote

In response, Hamme noted they leave several of the ACLU’s concerns unaddressed.

“Your letter didn’t mention the other pieces we flagged…including addressing individual supervisors, anonymous speech, the security recordings, or the applause issue I mentioned the other day,” Hamme wrote back.

“Does the Board intend to address those issues as well or are they only willing to address the 20 minute public comment cap and sign policy?”

Additionally, Hamme continued to take issue with supervisors requiring all members of the public to give just one comment per meeting, no matter how many agenda items they want to speak about.

Hamme said court rulings have established the state’s Ralph M. Brown Act “requires the Board to provide both public comment and the opportunity for members of the public to comment on each specific agenda item.”

“This would provide an opportunity for those constituents who need to make their remarks early to do so and leave, as well as for those who may need to come later in the day or prefer to speak to the item closer to when the Board will consider it,” Hamme wrote.

“Importantly, this would also allow individuals to fully comment on multiple items, which is extraordinarily difficult in only three minutes.”

Page responded that the Brown Act does not require supervisors “to provide both a [general] ‘public comment’ period as well an opportunity for the public to comment on each agenda item at the time it is taken up by the legislative body.”

He also defended the county’s policy blocking the release of security footage of board meetings.

“Obviously, public access to the security video might reveal ‘blind spots’ in the Sheriff’s monitoring of the Board room from which an assailant could fire a weapon or place an explosive device with less likelihood of detection,” Page wrote.

“As the (public) video of Board meetings dating back to 2007 is readily available on line, we think a court would probably agree with us on this point that the public interest in nondisclosure of the security video substantially outweighs the public interest in disclosure.”

Additionally, Page said the public has benefitted from a Nov. 8 policy change that ended the ability of the public to comment on individual items when they came up and moved all comments to the beginning of the meeting.

Before that change, the public could speak for up to three minutes per item with a total cap of nine minutes per meeting. But the policy change, which was proposed by Supervisor Lisa Bartlett, moved all public comments to the beginning of the meeting and imposed a three-minute total cap per speaker.

The number of commenters “tripled as a result of this positive change,” Page wrote to the ACLU.

“Members of the public now have the benefit of a ‘time certain’ as to when they can provide public comments to the Board, and may do so regardless of whether the issues they wish to address involve items that are included on the regular meeting agenda,” he wrote.

The ACLU letter seems to have already led to more time for public commenters.

In prior meetings, when dozens of speakers wanted to comment, Steel would limit each person to two minutes, or – in the case of the Jan. 24 meeting, one minute – in order to keep the total public comment period to one hour.

But at last week’s meeting, which followed the ACLU letter, Steel let members of the public to speak for up to three minutes each.

Altogether, 37 people spoke, which lasted a little over an hour and a half. (While some used the full three minutes, others were more succinct.)

Hamme was among those who spoke last week, and told supervisors that listening to public comments is a crucial part of their responsibility.

“Listening to your constituents is not an inconvenience to be ignored. It is the very nature of your job as supervisors,” Hamme said.

Eve Garrow, an ACLU homeless advocate added “those of us who represent people without economic power, we don’t have powerful moneyed interests to take out ads during campaign season and to get your attention. We come and speak with you directly, during public comments.

“And when the board restricts public comments to three minutes for all agenda items, and sometimes even limits it to one minute [per person], we cannot engage in meaningful public comments. It does a disservice to the groups we represent. It’s undemocratic.”

None of the supervisors responded publicly to Hamme and Garrow’s comments at the meeting.

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

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