The Transportation Corridor Agencies (TCA) board of directors changed its public comment procedures without public notice or a vote by the entire board, which County Supervisor Todd Spitzer, who sits on the board, and others said could be a violation of California open meeting laws.
“Each speaker will be given three minutes to speak and one opportunity to speak today,” San Joaquin Hills Transportation Corridor Agency Chairwoman Melody Carruth said at the Dec. 14 meeting. Carruth, also Mayor Pro Tem of Laguna Hills, added that the public comment would be broken up into three sections during the meeting.
“That’s a new procedure, I’ve never heard about it,” Spitzer said. “I’ve never heard of it, never called about it, never briefed … what’s going on and why did we come up with that policy?”
The TCA is responsible for toll roads in Orange County and the joint powers authority consists of two boards: The San Joaquin Hills Transportation Corridor Agency (SJHTCA) and The Foothill/Eastern Transportation Corridor Agency (F/ETCA). Each board is made up of city council members appointed by their respective councils to vote on policies and programs that involve toll roads across the county. County Supervisors Lisa Bartlett and Shawn Nelson also sit on the TCA board, in addition to Spitzer.
F/ETCA Director and San Clemente Councilwoman Kathy Ward was the only other director to join Spitzer in opposition to the change in public comment policy.
“We are not going to allow people to speak on each individual agenda item they’re interested in?” Ward asked, claiming it’s a violation of the Brown Act, California’s open meeting law.
“They have one opportunity to speak and that is the established rules,” Carruth said. “It is not a violation of the Brown Act and most of our cities, and I’m sure it’s the case in San Clemente, most of our cities you have one opportunity to speak.”
Ward said Carruth is wrong and people are allowed to speak on every item, including general public comment, at the San Clemente City Council meetings, along with nearly every city council.
“I would say this is a new rule we have not been doing,” Ward said.
The change in public speaking rules wasn’t on the TCA board agenda and board members did not publicly vote to adopt it. It was handled by a committee.
Voice of OC open government consultant Terry Francke, an expert on public meeting laws, said Spitzer and Ward’s claims have merit. “I think those people have a very good point.”
Francke said the Brown Act rules aren’t limited to big policy issues, “but they’re really addressing any decision that the body makes that has an impact on the public.”
“So I would agree that greatly reducing the access the people have to speak to the body is a major step backwards,” Francke said in a Tuesday phone interview. “The public is entitled to know about (the policy change) in advance, so anyone concerned about this can come and express their views to the board before the decision is made”
TCA Spokeswoman Lisa Telles said the agency had to update their rules because public turnout has greatly increased at the monthly meetings since the beginning of the year. She said the administrative code the agency uses originally called for 20 minutes of public comment time, but the increased public participation has forced the agency to reconsider its policies.
The reason for the huge increase in public turnout for the meetings stems from a proposal, among 6 other proposals, to build a toll road through San Clemente’s open space land to connect the end of the 241 toll road at Oso Parkway on the edge of Rancho Santa Margarita, to the 5 freeway. San Clemente residents have launched a campaign against the proposed toll road’s route through their city and continuously show up to board meetings to voice their objections. Four of the proposals are toll roads.
“Because they get so many people coming to meetings, the 20 minutes isn’t working. So that is why the item was pushed to a committee,” Telles said, adding before the rules were revised in October, the TCA followed an administrative code and the Brown Act for public comments.
The meeting procedures updated on Oct. 26 state a person can only speak once on an issue or during public comment.
Telles said, “We haven’t had people requesting to speak more than once. So the policy was under advisement of the chair and the chair does have the ability to set the rules at the beginning of meeting like the chair did at the last meeting.”
The old policy limited a person to three minutes of comment during the general public comment time and let the chair decide if they would allow people to speak on each individual item.
The proposed routes are part of the TCA’s “South Orange County Traffic Relief Effort” to help reduce traffic on the 5 freeway.
Opponent groups, like Not My Toll Road, say the project will add more congestion to the 5 freeway and the current congestion in the south county area is from the ongoing construction on the 5 freeway.
Since the routes were proposed earlier this year, lawsuits looking to stop the proposed route have been filed against the TCA by San Clemente and The Reserve Maintenance Corporation, a homeowners association.
TCA Chief Executive Officer Michael Kraman told Spitzer the public comment policy was the result of an ad hoc committee’s decision which, at the board’s direction, made changes to the policy.
“A number of board meetings ago, staff was directed to review our processes and procedures … including public comment,” Kraman said. “The direction by the board was to take it through committee and not to wait to bring it back the board for a vote, but to implement it.”
Spitzer asked TCA attorney Benjamin Rubin how the change in policy, made on behalf of the board and without a vote, didn’t violate the Ralph M. Brown Act, which is a State law that governs public meetings and agencies in an effort to achieve more transparency.
“I believe the direction was to get these implemented as soon as possible. As for policy … the chair (Carruth) would be able to handle the meeting within certain parameters and this is one of them that’s allowed,” Rubin responded.
Spitzer countered that any change to a standing policy at the TCA needs to be done through a formal vote by the entire board, according to the Brown Act. Spitzer also didn’t like that the public comment was broken up into three sections of the meeting: one at the beginning, another after closed session and one at the end of the meeting.
“If that is a standing rule of our board, it has to come from a standing board. I adamantly object to this. I think it’s offensive.”
Meanwhile, Ward said she hasn’t seen any committee reports that addressed public comments.
“It’s not in any committee records between October and this meeting. So we got a problem. I think they did it improperly,” Ward said in a Tuesday phone interview. “If you are doing an open, honest, public process, why would you not let the people speak on the item? I don’t understand it. I don’t like being a part of it.”
Spitzer also compared the change in policy to past moves by the Board of Supervisors.
“The Board of Supervisors has dealt with a lot of this … but every time we make a change to our formal public comment procedures, it requires a vote — a formal, agendized vote. You cannot do this,” Spitzer said.
Ward thinks the agency is trying to curb the criticism its been receiving over the months, she said Thursday.
“I think they’re trying to limit criticism to the agency and it’s on purpose,” Ward said. “Why else would they go through with this and make everyone mad? There’s no reason to limit them unless you want to limit what they’re saying and that’s just not right. There’s rules against limiting public comment and I think it’s going to come back on them unnecessarily.”
Spencer Custodio is a Voice of OC reporter who covers south Orange County and Fullerton. You can reach him at firstname.lastname@example.org.