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In response to a lawsuit from the ACLU, Orange County’s top elected officials have now deleted their longtime ban against public commenters mentioning the officials’ names or questioning them without permission.

The rule – which had been on the books for decades – required that public comments be directed at the entire Board of Supervisors 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,” added the rule, which went unchanged since it was first adopted in 1971.

The restriction was rarely enforced in recent years, but remained in the rules and had been enforced at least twice in the months around a legal demand letter in 2017 and eventual lawsuit by the American Civil Liberties Union.

The ACLU alleged the rules violates the First Amendment, as part of a broader lawsuit that also challenged county rules allowing officials to immediate destroy some of their communications.

Fast forward a couple years, and last month – in order to settle the case – county supervisors deleted the public comment restrictions, half a century after they were put into effect.

The ACLU suit sought a wide range of changes to county public comment and records rules, such as the county’s limits that commenters can talk during no more than three agenda times per meeting. A large majority of its requests were rejected in court.

But the civil liberties group won on two points: its challenge of the comment restrictions on questioning or addressing individual supervisors, and its claim the county was letting officials destroy public records too quickly.

The county paid $75,000 for the ACLU’s attorney fees as part of the settlement, in addition to a $200,000 cost for the county’s in-house attorneys.

No county supervisor returned phone messages for comment on this story. 

ACLU attorneys said their actions and the ultimate settlement defended the public’s right to redress their government leaders. 

“There’s a lot of local government bodies who see the public, particularly people who have critical things to say about them, as a nuisance,” said Peter Eliasberg, an attorney with the ACLU of Southern California who helped lead the lawsuit.

“I think the case just emphasizes the continuing importance of pushing local governments to abide by the state’s quite good laws around public meetings,” he added. “[Public comment] is a way that the public can communicate how they feel about their elected officials. And it’s important that they be allowed to do so.”

County attorneys, however, said they expected to win the case for a variety of reasons, including the court’s rejection of “the vast majority” of the ACLU’s other requests to the court.

In practice, supervisors have allowed members of the public to question them during public comments, County Counsel Leon Page wrote in a November letter to the ACLU proposing a settlement.

“Though this provision in the Rule 46 clarifies that neither Board members or County staff will be subjected to compulsory questioning by members of the public during a public meeting absent permission of the Chair, to the extent Plaintiffs have incorrectly and perhaps deliberately misconstrued this language as a prior restraint on speech, other members of the public could similarly misinterpret the language,” Page wrote.

“However, as I testified at deposition, and as evidenced by the Rules and by Board practice, absent an actual disruption to the meeting, members of the public have addressed the Board, and will continue to be able to address the Board, in whatever manner they choose,” he continued.

“Plaintiff’s members must now undoubtedly realize the reality that no other local agency in the State does a better job than the County of Orange with respect to encouraging public participation, observing the Brown Act, and protecting the First Amendment rights of the public,” Page added.

The judge in the case ruled in July 2019 that the county probably violates the U.S. Constitution with its restrictions on commenters questioning or naming supervisors.

“Defendants offered no evidence to show how the Chair determines whether to permit a speaker to address and individual Board or staff member,” wrote Judge Sheila Fell of Orange County Superior Court.

“Defendants 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,” Fell added as she issued a court order banning the count from enforcing the rule.

“Plaintiff met its burden to show it is likely to prevail on the claim that the Rule is unreasonable, and in turn, unconstitutional.”

The comment restrictions were rarely enforced in recent years by the supervisors’ chair, with at least two exceptions.

One was at a June 2017 supervisors’ meeting, when a public speaker mentioned a supervisor’s name during public comments.

Michelle Steel, the supervisors’ then-chairwoman, interrupted the speaker and said, “you can’t comment on individual supervisors here.”

The next speaker, attorney and activist Mohammed Aly, then told Steel that’s an unconstitutional restriction on speech and proceeded to mention each supervisor by name.

A few months later, in November 2017, a homeless advocate critical of the supervisors asked Steel if he could address a particular supervisor by name.

In response, Steel told David Duran he “can talk whatever you want. Except attacking.”

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

In her 2019 ruling, 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.

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

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