Anaheim’s City Council majority members have decided they don’t need to consider policy proposals from the minority more than once in a six-month period.

Councilman Jose Moreno is considering legal challenges against the decision.

“I do plan on following up with not just the ACLU (American Civil Liberties Union) but other attorneys and public interest groups, advocacy group — across not just party lines, but ideological lines, who value public input,” Moreno told Voice of OC Wednesday. 

Moreno warned the City Council before their vote he’d call the ACLU Tuesday night, if his colleagues further restricted agenda-setting abilities.

“I will make a phone call to the ACLU tomorrow if you approve this policy,” Moreno told the Council. “It’s a serious breach of what I consider to be our oath of office here.”

The new agenda-setting requirement bars Councilmembers from trying to agendize for at least six months a discussion if it doesn’t get support from two colleagues. The same six-month restriction also applies to “Council-initiated agenda items that the Council has considered or taken action on at a meeting (Including, but not limited to, by voting on, postponing or tabling) …” 

Media attorney Kelly Aviles, also Voice of OC’s chief litigator, said the move could be illegal because it doesn’t allow “substantially similar” items to be brought back within the time frame. 

“Even though they state that its content neutral it’s not. Because it states if it’s similar to another thing, you can’t bring it up again,” Aviles said. 

She also said policy isn’t applied evenly because it elevates Mayor Harry Sidhu above Councilmembers in agenda-setting abilities. 

“There’s another problem if the mayor can propose whatever he wants, but nobody else can, then it’s not content neutral in that regard either,” Aviles said. 

She added, “I think it clearly has First Amendment issues also … the point of cities and representative officials is to be able to openly debate on issues that are a public concern … you can’t just restrict that.”

Voice of OC open government consultant, Terry Francke, notes the concept of limiting debate in legislative environments is “not necessarily” illegal. 

“I mean, the State Legislature has rules that are somewhat comparable to that. In other words, once a bill is either defeated by a vote or dies without being taken up, you can’t just bring the bill back, as is, in the second half of the session,” said Francke, co-founder of Californians Aware, an open government and free speech advocacy group.  

Moreno and Councilwoman Denise Barnes have been fighting for months to get the City Council to vote on issues like releasing the Angel Stadium appraisal, a 30-day sunshine period on a final proposal from the Los Angeles Angels of Anaheim for 30 days and various rent control ordinances. 

On Tuesday night, city officials announced that stadium talks with the LA Angels start on Nov. 15.

Sidhu already has restricted Councilmembers’ ability to place items on the agenda when he spearheaded the first change in beginning in December that requires two other Councilmembers’ support of a proposed item before it can be placed on an agenda. Before that, a Councilmember could schedule an agenda item without support from two of their colleagues. 

And Councilman Trevor O’Neil proposed tightening agenda-setting restrictions after the Oct. 29 meeting, when Moreno tried to get the Council to vote on stadium and rent control items, but Sidhu successfully motioned to shelve all of Moreno’s proposals and cut off debate about the items. Councilman Jordan Brandman joined Moreno and Barnes in their dissent of Sidhu’s move to close off debate.

The Council voted 4-3 for O’Neil’s proposal Tuesday, with Barnes, Brandman and Moreno dissenting. 

Meanwhile, Moreno said he’s going to speak with Anaheim City Attorney Rob Fabela about the new agenda-setting requirement.

“I’ll be consulting with the city attorney and civil rights and civil liberties organizations,” Moreno said. 

Moreno also said the new policy could conflict with the California Voting Rights Act, which the ACLU sued Anaheim over and ultimately resulted in the city implementing district elections in 2016 after it was found minority voters were disenfranchised. 

“The concern that I will also be expressing to the ACLU and perhaps some other civil liberties lawyers and civil rights lawyers, is the question of the California Voting Rights Act. I was a plaintiff in the lawsuit. The whole premise of the law is to allow a disenfranchised minority to have their voice heard in government and certainly in elected office,” Moreno said. 

He’ll likely put that question to Fabela also. 

“I’m going to likely ask our city attorney for a legal opinion on whether the agenda setting actions — are they in fact any way breaching the law as it relates to the California Voting Rights Act,” Moreno said.  

During Tuesday’s meeting, Brandman said the agenda-setting restrictions, including Sidhu’s first change, aren’t needed. 

“We should each have the power to agendize. As we’ve all seen the power of the majority vote — they can table,” Brandman said. “So that’s where I am. I think we had really good rules and procedures and I would just go back to that. And I don’t think we need to change any more, we need to become simpler and rely on historical precedence that has governed this council for decades,” Brandman said. 

Sidhu said some Councilmembers propose items “just to use this chamber for political purposes … therefore, I’m going to be supporting this proposal.” 

Moreno reminded his Council colleagues that they said the first change in agenda-setting policy last year wouldn’t be used to silence the minority. 

“We were assured that wouldn’t be used to prevent items from coming to the council, but that has been proved to be untrue,” Moreno said at the meeting.

O’Neil said his colleagues could bring back items if the Council voted to suspend its procedural rules. 

“To address some of the concerns about silencing dissent and not allowing the vote, there’s nothing that would preclude a motion to suspend the rules to have an agenda item that was previously heard in that six month time window from being heard again,” he said. 

It takes at least five Councilmembers to agree to suspend the rules.

Barnes reminded them about the warning letters issued by the ACLU earlier this year over the numerous procedural changes the Sidhu-lead Council majority voted for, including restructuring of public comments and his unofficial rule of limiting council debate on an item to two rounds of five minutes per Councilmember. 

“How many times has the ACLU written to us?” Barnes said to her colleagues. 

“I will not be silenced and I know the residents of West Anaheim will not sit down and shut up, said Barnes, the West Anaheim councilwoman. “I’m not going to be silenced any more … so I suggest that we keep that in mind and be faithful to all the residents in Anaheim.” 

These past two weeks, Anaheim city officials have rolled out tightened security at the meetings, now requiring that anyone entering the council chambers walk through a metal detector and have their bags searched. 

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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