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Orange County officials likely are breaking the law with a policy allowing immediate destruction of public records and another rule banning public commenters from asking questions of county supervisors or addressing supervisors by name unless they have permission, a Superior Court judge ruled Wednesday.

Judge Sheila B. Fell now plans to issue a court order banning the county from enforcing the comment restrictions and records destruction policy.

[State law] sets a two-year retention period for documents prepared or received in any manner other than pursuant to a state statute or county charter,” Fell wrote in her decision.

Fell rejected the county’s claim that a “transitory records” exemption, which is not mentioned in state law, allows them to delete public records before the law’s two-year retention period.

“Neither the [California Public Records Act] nor the Brown Act include exemptions based on the definition of transitory records used in the [county] Records Policy,” the judge wrote.

The ruling was in response to a lawsuit by the American Civil Liberties Union (ACLU), which learned of the record destruction policy from Voice of OC coverage of its 2017 approval by county supervisors.

Regarding public comments, the judge ruled that evidence showed public commenters were granted permission to address individual supervisors if they were complimenting them, while permission was denied to commenters critical of the board. That’s probably unconstitutional, Fell wrote.

“[The county] offered no evidence to contradict Plaintiff’s showing that the Chair enforces the prohibition against those critical of the Board and grants permission to those who are complimentary,” the ruling states.

The ACLU, she wrote, is likely to win its “claim that the [speaking] Rule is unreasonable, and in turn, unconstitutional.”

[Click here to read the court ruling.]

“Just in time for the Fourth of July, today’s ruling reaffirms the fundamental principle that the government must be accountable and transparent to the people it represents,” ACLU attorney Brendan Hamme, who argued the case in court last month, said in a statement.

“The fight for independence wasn’t for BBQ and fireworks, it was for representative government. The court’s order forces the Board [of Supervisors] to learn this lesson.”

County Counsel Leon Page, who oversaw the creation of the records destruction policy and the county’s defense of it in court, didn’t have an immediate comment on the court’s decision.

“When an order is issued, County Counsel will discuss next steps with the Board of Supervisors,” said county spokeswoman Molly Nichelson.

The judge directed the ACLU to send a proposed court order to her in the next 10 days that implements the ruling. She would then review and sign a final order banning the county from carrying out the policies she ruled against.

Nichelson declined to say if officials have told the supervisors and the county’s 18,000 employees about the ruling, which finds it is likely illegal for them to follow the county policy allowing destruction of certain official communications “at any time.”

It was also unclear how many times since the 2017 policy went into effect that county officials deleted messages before the two years required under state law. Nichelson said she was checking whether the county has kept track of that information.

County officials developed the record destruction policy in the months following a landmark March 2017 California Supreme Court ruling establishing that the Public Records Act covers officials’ communications about government business on their personal phones and accounts.

Six months later, county supervisors passed a policy that the supervisors and the county’s 18,000 employees may “at any time” destroy emails and text messages they consider to be internal memos or “working notes” they no longer need. The policy was unanimously approved by Supervisors Michelle Steel, Lisa Bartlett, Andrew Do and former Supervisors Todd Spitzer and Shawn Nelson.

Fell also ruled the county probably violates the Constitution with its restriction on public commenters questioning supervisors or using the supervisors’ names.

The limits, known as Rule 46, states: “All remarks and questions shall be addressed to the Board as a whole and not to any individual Board member. No question shall be asked of any Board or staff member without first obtaining permission of the Chair.”

The ACLU argued this infringed on First Amendment free speech protections.

“Addressing supervisors [by name during public comments] absolutely is protected speech,” Hamme said during oral arguments last month.

The lawsuit points to an example of a homeless advocate, David Duran, who asked during public comments if he could address a particular supervisor by name. In response, Steel, the supervisors’ then-chairwoman, told Duran he “can talk [sic] whatever you want. Except attacking.”

“The Board’s own conduct demonstrates that the real purpose of the prohibition on addressing individual Supervisors is to shield them from criticism,” the ACLU’s lawsuit stated.

County lawyers argued commenters can still mention individual supervisors, as long as their comments are directed to the board as a whole.

The Ralph M. Brown Act and First Amendment provide “broad discretion” for officials to allow “efficient conduct at those meetings,” said Adam Clanton, the county lawyer, during oral arguments.

Fell ruled the ACLU was likely to win its argument, pointing to a lack of evidence by the county disputing that the chair is granting permission based on whether people are complimenting or critical of the board.

Fell issued her ruling three weeks after hearing oral arguments in her Santa Ana courtroom from both sides of the case.

She directed the ACLU to send a proposed court order to her in the next 10 days that implements her ruling. She would then review and sign a final order banning the county from carrying out the policies she ruled against.

Fell declined to restrict the county from enforcing other meeting rules the ACLU alleged were illegal, saying the balance of evidence and law tilted toward the county.

Those rules block people from commenting if they submit their speaking card after the comment period begins; limit commenters to talking during three agenda items per meeting, allow the chair to reduce speaking time; place general public comments at the end of the supervisors’ meetings; and declare surveillance video of supervisors meetings to not be disclosable under the Public Records Act.

Regarding the chairperson being able to reduce speaking time, Fell wrote, “The Chair is in the best position to determine whether the number of speakers, in conjunction with what is on the agenda for that meeting, would prevent the Board from accomplishing its business in a reasonably efficient manner.”

“There is no abuse based on content written into the Rule,” she continued. “Speakers are still permitted to address the Board, just with a shorter time period. Furthermore, Plaintiff has not shown the time restriction is determined based on the speaker’s content or that the Rule is enforced arbitrarily.”

Fell also rejected the county’s argument that the plaintiff, the People’s Homeless Task Force, couldn’t sue because it’s an organization rather than individual people.

The group was formed by residents concerned about the county’s growing homelessness, and its members have often publicly criticized supervisors during public comments.

It was co-founded by advocates Mike and Jeanine Robbins, Lou Noble, Linda Lehnkering, David Duran, and others, according to their suit.

In the final moments of oral arguments last month, a county lawyer argued the task force was seeking an “extremely broad and extremely sweeping” order blocking county policies.

The plaintiffs, in turn, argued there’s a permanent harm to the public if government is immediately destroying records about their conduct that would be subject to public records requests.

Zachary W. Byer, a lawyer with Kirkland & Ellis who joined the ACLU in the case, told the judge, “The problem is, if the county destroys a record…and a records act request is made tomorrow, there’s no document to potentially hand over.”

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

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