Santana: Stage Set For ACLU Vs. County of Orange Fight Over Public Comment Rules

JEFF ANTENORE, Voice of OC

The Orange County Board of Supervisors has public comment at its May 2018 meeting.

In LA, people can say “fuck you” directly to a county supervisor from the public dais.

In Orange County, you can’t even utter a supervisor’s name.

Los Angeles County officials recently made news, with an interesting LA Times data-dive looking into how expletives from the public comment dais have spiked.

Yet in Orange County, ACLU officials note that public comment has significantly waned due to a sustained and aggressive attack by Orange County supervisors – who have enacted some of the most restrictive public comment rules I’ve ever seen in my time covering public bodies.

That kind of wild disparity in freedom of expression will get challenged next month in a court battle, years in the making.

At issue is whether the U.S. Constitution really allows us to challenge our elected leaders to their face – even in a rude fashion.

Orange County officials most recently tightened public comment rules on Election Day, November 2016 – under the leadership of then-chair Supervisor Lisa Bartlett.

The changes came after public speakers started visibly irritating county supervisors, especially around their failure to craft an effective response to the homelessness crisis.

The effort to restrict public comment was adopted on a 4-1 vote with then-Supervisor, now DA, Todd Spitzer opposing the effort, citing First Amendment concerns.

Spitzer warned his colleagues that day their actions were likely not only illegal but went against the spirit of elected office.

“We got elected to put up with this,” said Spitzer, who stressed the fact that the First Amendment gives “wide latitude” for the public to criticize elected officials.

“It is the arena, and if you don’t think you’re going to get bloody and dirty, then you’re probably in the wrong arena,” Spitzer told his colleagues.

Yet instead, his colleagues opted to push the public out of the arena.

The next April, in her most visible leadership effort as chairwoman, Supervisor Michelle Steel, now a candidate to represent the 48th Congressional District – shut down a public meeting after homelessness activist Mohammed Aly criticized supervisors by name.

At the meeting, both Steel and Supervisor Andrew Do laid out their views about the need for public respect for politicians.

“We have people now who directly confront individual supervisors by name, who now have gone beyond the realm of acceptable conduct, of acceptable civility in civilized society, to cast personal aspersions on people,” said Do.

“I have my right to not be verbally assaulted. I have my right to have my dignity be respected. I did not surrender those rights when I ran for office,” he continued.

“The next time somebody says something like that, I’m going to ask the chair to hold that person out of order, and I’m going to ask county counsel to look into what is it that we can do in the future to prevent things like that from happening.”

Referring to a commenter at a prior meeting, Steel added that she was “upset that somebody came here that [said] we don’t understand the freedom of speech and we…eat dogs and cats.”

“I never ate dogs and cats. And [I] was very offended by those people, the public speakers. And I really want them to do something about it, and I’m asking County Counsel…what [do] we have to do to prepare or how we are gonna to stop them.”

At the meeting, Bartlett also said “personal attacks” against supervisors by members of the public should stop.

“You know the First Amendment rights are important, but there should be a level of, of respect and common courtesy and a proper decorum. And we shouldn’t have personal attacks coming at us on the dais,” Bartlett said.

County officials continue to insist their public comment rules are constitutional – something I and others very much continue to question on First Amendment grounds.

It reminds me of the county approach toward homelessness, which supervisors’ insisted was legally bulletproof (evicting riverbed encampments without a functioning shelter system) until they ended up in federal court and endangered the ability of every Orange County city to enforce their local anti-camping ordinances.

ACLU attorneys have been tracking and protesting county actions on public comment for several years, raising concerns as far back as 2017 and attempting to settle the issue without going to court.

Yet given the county supervisors’ direction and County Counsel confidence in the rules, settlement efforts failed and the ACLU filed suit earlier this year.

Next month, we finally get to test their premise as the ACLU heads to Orange County Superior Court on June 12, for a 10 a.m. hearing in front of Judge Sheila Fell in Department C25, seeking a preliminary injunction against the county public comment rules.

Many of the issues mentioned in the ACLU lawsuit – restrictions on addressing county supervisors by name, limits on how many agenda items a person can speak to, destruction of transitory records and refusal to release security cam video of officials clearing a meeting room – come from Voice of OC news coverage of board actions on public comment.

Orange County’s rules governing public comment have a nasty tone – much like how county supervisors often treat dissenting voices challenging them from the public comment podium.

Under the most draconian board meeting rule, #47, people can’t even refer to their elected supervisor by name.

“All remarks and questions shall be addressed to the Board as a whole and not to any individual Board member,” reads the rule.

It gets even stricter the further you read.

“No question shall be asked of any Board or staff member without first obtaining permission of the Chair.”

Rule 47 goes on to even spell out what kind of speech is acceptable.

“Each person who addresses the Board shall refrain from making personal,
impertinent, slanderous or profane remarks to any member of the Board, staff or the general public,” reads the rule.

Lastly, it lays out how you can get thrown out of a meeting if you don’t agree to have your free speech rights infringed.

“Any person who makes such remarks, or who utters loud, threatening, personal, or abusive language, or who engages in any other disorderly conduct which disrupts, disturbs or otherwise impedes the orderly conduct of any Board meeting shall, at the discretion of the Chair, or a majority of the members, be ruled “out of order” and directed to end his or her remarks and be seated. If such conduct thereafter continues so as to disrupt the orderly conduct of the public’s business, the Chair shall order the person removed from the meeting room. Aggravated cases may be prosecuted on appropriate complaint signed by the Chair, a member of the Board or any other County representative.”

Listening to these restrictions, it doesn’t sound very inviting – especially of criticism, something central to our democracy.

Reading these odd rules for public comment reminded me of the jailer, Carl, in the 1960s-era film, Cool Hand Luke, as he walks the jailhouse floor and informs new inmates about all the different ways they can earn “a night in the box” for not following rules.

My favorite part of Rule 47 is the conclusion, where supervisors note, “it is the policy of the Board to encourage free speech at its meetings in accordance with these rules.”

Nothing could be further from the truth.

“The board (of supervisors) has been extraordinarily clear on it’s application of the rule, they will shut down critical speech of them while allowing laudatory speech to go on unregulated,” said ACLU Attorney Brendan Hamme, who is the lead attorney on the lawsuit.

The two newest county supervisors – Don Wagner (a Republican) and Doug Chaffee (a Democrat) – don’t seem inclined to challenge the current board rules on public comment.

Chaffee, who was sworn into office in January, wouldn’t comment on the lawsuit but said he looked forward to getting an update from county counsel on the issue. To date, he has not challenged public comment rules.

“My belief, having run a bunch of meetings is that the rules are consistent with where the courts have come down,” said Wagner, who was elected in March after a special election to fill Spitzer’s vacant seat.

“Often times, it’s a question of applying as opposed to the general rule,” Wagner said.

While Wagner doesn’t see himself challenging the current public comment rules, he says he isn’t bothered by tough public criticism and allows speakers latitude when he runs meetings.

“Part of the job is listening to what the public has to say,” Wagner said.

Wagner adds that many bodies he’s served on use similar rules restricting public comment, noting they comply with Roberts Rules of Parliamentary Order.

Yet Terry Francke, general counsel for Californian’s Aware and an open records consultant with Voice of OC, said those kinds of restrictions on public comment do conflict with the First Amendment.

“People having to get permission from the chair to ask questions is nonsense,” Francke said.

“The essence of free speech is to be able to question elected leaders.”

Francke notes a public meeting is one of the few places where people are guaranteed to actually speak directly to an elected official, especially when the feedback is critical.

“Of course, the members who are being criticized don’t have to answer,” Francke said. “But if people want to question anything, that’s part of the reason the legislature created this opportunity, for people to communicate with the body.

This is just the latest example of the silly corset that the enemies of speech are attempting to put around speakers.”

The only reason these kinds of practices develop into a pattern, where elected officials like Wagner see them as customary, is because individuals almost never have the confidence or motivation to protest these rules being applied to them, Francke said.

“It does take the ACLU or CalAware to point out this longstanding custom violates the First Amendment,” Francke added.

Yet unfortunately, after they lose in court, these politicians will just move on to the next higher office, ultimately leaving taxpayers to cover the legal bar tab run up by their collective thin skin.

Correction: An earlier version of this story misspelled Supervisor Doug Chaffee’s name. We regret the error.