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Anaheim could be headed for a court battle over its public comment system after the American Civil Liberties Union (ACLU) sent the city warning letters claiming the comment structure and practices violates state law and the First Amendment.

“We are deeply concerned by the Council’s recent actions to unlawfully suppress the voices of community members at its public meetings. The City of Anaheim should not follow the example set by the Orange County Board of Supervisors, which is among the least transparent and accountable government bodies in the state,” reads the April 16 letter to Anaheim.

ACLU lawyer Brendan Hamme, who wrote the letter, said the three-minute time limit people have during public comments at Anaheim City Council meetings is too little. He also said the way public comment is structured violates the Ralph M. Brown act, a state open government law.  

He also said a lawsuit is the last resort for the ACLU.

“First we’re hoping to hear from the City (in response to the second letter sent) and to engage with them in a productive dialogue. It’s never our first inclination to file a lawsuit … it’s always our sincere hope that these government entities will do the right thing,” Hamme said Friday.  

The ACLU sent two letters, one dated April 16, which the city responded to May 3 and a second letter dated May 15.

Hamme said Monday the city attorney left him a voicemail June 3 informing him the City Council will take up the ACLU’s concerns in a closed session meeting later this month.

At the start of Anaheim Council meetings, people get to address the council for three minutes on items listed on the agenda. After that, the general comments — people speaking about items not on the agenda — get to speak, unless 1.5 hours have passed since the start of public comments. If the first comment period goes over 1.5 hours, then general comments are made at the end of the meeting. But sometimes if there are only a few general comment speakers, Mayor Harry Sidhu will take the rest of the comments before the start of the meeting.

The change in public comment structure stems from Sidhu’s proposals in January, shortly after he took office.

“The Council’s structuring of public comment on agendized and non-agendized items also violates the Brown Act,” reads Hamme’s letter.

But the City Attorney disagreed with all claims listed in the ACLU letter.

“If the City were to adopt the procedure you suggest (allowing individuals to speak on each item of business as it is called, plus make general public comments), it would be difficult, if not impossible, for the Council to conduct City business in a reasonably expeditious and orderly fashion,” reads the May 3 letter signed by senior assistant city attorney Kristin Pelletier.

Hamme said a court of appeals opinion was clear on the issue.

“The California court of appeals was very clear. It’s the obligation of government entities to hear comments on each agendized items as they’re called and we believe the court of appeals meant what it said,” Hamme said. “The (County) Board of Supervisors at one point had contemplated a change that would’ve prevented people from commenting on agendized items as they got called, but after we sent our letter they fell back from it.”

The ACLU sent a letter to the County warning against the change in 2017 and the County eventually reverted back to allowing people to speak on each agenda item as its called.

Anaheim has held public comment on agenda items at the beginning of the meeting for at least eight years, according to a search of archived agendas and Council meeting videos. It wasn’t until Sidhu’s changes that general comments were pushed to the back of the meeting, if public comment on agenda items went over 1.5 hours.

Despite how long Anaheim has held its agenda-specific public comments during the beginning of the meeting, Hamme said the ACLU has been watching Anaheim for years.

“The structure of government in Anaheim is something the ACLU has been watching, even before the public comment issue,” Hamme said, dating back the organization’s Anaheim concerns to the district election lawsuit battles in 2013 and 2014.

In 2014, the City Council, then five members, settled the lawsuit with the ACLU and switched from at-large elections to districts in the November 2016 election. Now, the 350,000 Anaheim residents are represented by six councilmembers elected by districts and one at-large mayor, for a seven-member council.

The ACLU letter also criticized actions at the April 2 meeting, when Sidhu told Councilman Stephen Faessel how to vote.  

Just before council members were about to vote to suspend the rules to allow for debate on a proposed mobile home rent control ordinances, dais microphones picked up Sidhu telling Faessel how to vote on the issue.

“No, no. Just put down no. Just vote no. Voting no,” Sidhu told Faessel as he was leaning toward him at the April 2 meeting.

The city attorney, in the May 3 letter, wrote, “In fact, this is a routine occurrence at Council meetings and is the very reason for Council debate.”

“The last section of your letter addresses an exchange between Mayor Sidhu and Council Member Faessel that occurred during a time that the Council Members were unclear what motion they were voting on, and Mayor Sidhu was attempting to provide guidance in this regard,” reads Anaheim’s response letter.

The ACLU letters also expressed concern over Sidhu’s unofficial limiting of council comments and discussion on agenda item issues, but didn’t technically consider the move illegal.

Since May 7, Sidhu has restricted council comments to two five-minute rounds in an effort to make the meetings more “efficient.” He first proposed the rule change at the April 16 meeting, but failed to get enough support from the Council and tabled the item. Sidhu single handedly instituted the rule as a practice without a formal vote by the Council and has drawn criticism from Councilman Jose Moreno over the issue.

Hamme said the Anaheim’s restrictions on Council comments goes against the spirit of open government.

“The residents of Anaheim and the broader community have a right to see how their elected officials are representing them — that’s the core of our democratic process. And certainly the Brown Act’s very purpose is to ensure that the people are apprised of their elected officials actions,” Hamme said. “And we sincerely hope that it’s not indicative of a broader trend. We hope that practice will start and end in Anaheim.”

Spencer Custodio is a Voice of OC staff reporter. You can reach him at scustodio@voiceofoc.org. Follow him on Twitter @SpencerCustodio.

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