The American Civil Liberties Union called on Irvine City Council members to publicly chastise their city attorney for silencing a resident during public comment.

The criticism comes in a second letter to the ACLU sent city over the past month. 

The letter was a follow-up to the civil rights group’s letter to the city last month, when they called the proposed public speaking rules councilmembers were about to implement unconstitutional. 

[Read: Irvine Repeals Some Transparency Regulations, Leaves Public Speaking Time Alone]

While the April 19 letter thanked the city for its changes to those rules and asked a few clarifying questions, the primary complaint centered on city attorney Jeff Melching stopping Dee Fox, an Irvine resident, from speaking at both of the council’s March meetings.

Melching’s move is raising questions about whether or not city attorneys should stop residents from making allegedly slanderous remarks during public comment.

At the March 8 meeting, Fox called into the meeting and began discussing a 2007 lawsuit that listed Costa Mesa resident Michael Carroll in a fraud case where both he and the Sage Credit Company settled for $65,000.

It’s unclear the person listed in the fraud case is the same Mike Carroll who sits on the Irvine City Council. Carroll and Melching didn’t respond to questions about the issue. 

“Based on the accounts from the plaintiff, Mike Carroll and his partner set up as part of their scheme a network of mortgage loan branches,” Fox said.  

Melching then muted the speaker, saying it was not within the topics allowed for public comment since it wasn’t in the control of the city. 

“I also want to be clear that Councilmember (Mike) Carroll has never been found by any court to be guilty of fraud or any crime,” Melching said. “I also want to caution Ms. Fox … speaking in this forum does not protect her from slander or libel liability.” 

Fox hung up the phone. 

At the next meeting on March 22, Fox called to comment again and Melching stopped her again when she brought up the Sage Credit Company. 

“The Irvine municipal code does not insulate a public speaker against slander. That is not a threat … it is a friendly warning,” Melching said. “She’s sent prior comments to the city of Irivne accusing Councilmember Carroll of committing a crime. The documents attached do not substantiate what she says.” 

Fox ran out of time on the public comments clock before she could respond. 

Carroll didn’t respond to the allegations from the dais either time Fox spoke. 

While the ACLU attached the lawsuit Fox was referencing in their letter, there’s no evidence showing the Michael Carroll listed in the lawsuit is the same Mike Carroll who sits on Irvine’s City Council. 

When the lawsuit was filed in 2007, Councilman Carroll was starting up his own law firm, CorpGen Counsel, according to his LinkedIn page

His last job before that was listed as the Aames Investment Corporation, a company managing a “portfolio of high yielding subprime mortgage loans,” according to Bloomberg.

In their letter, the ACLU staff argued that the city couldn’t prohibit Fox from speaking on the lawsuit, saying even if her remarks were slanderous, the proper action would be to file a lawsuit against her alleging slander and not have the government stop her from speaking altogether. 

“The City Attorney does not have the authority to silence a member of the public addressing the City Council merely because the content of the speech is unpleasant or unflattering,” wrote Peter Eliasberg, the ACLU’s chief counsel in Southern California. 

To read the rest of the letter, click here

Eliasberg also wrote that the new public comment rules the city adopted against “personal, impertinent, slanderous or profane,” remarks could encourage more commenters being shut down in a similar way, and asked the council to make sure that didn’t happen. 

While Melching has regularly stopped commenters in other meetings for other issues such as talking on an issue already decided on the agenda or speaking on an issue the city can’t control, the topic of slander does not regularly come up at council meetings. 

“The council should rectify any chilling effect resulting from the new language … and officially recogniz(e) that Mr. Melching’s conduct was improper,” Eliasberg said in the final sentence. 

Councilman Larry Agran said even if speeches from public commenters are false, they should be allowed to proceed. 

“The mayor and the city attorney as well as the city clerk should all be in the business of facilitating speech, not inhibiting it or somehow ruling it out or order based on content,”
Agran said in a phone call with Voice of OC. “Reference to the word slanderous, that’s absolutely an inappropriate type of intimidation.

Councilwoman Tammy Kim declined to comment, saying she didn’t know enough about the issue yet, while Mayor Farrah Khan and Councilman Anthony Kuo did not return requests for comment.

The council’s next meeting is scheduled for Tuesday, April 26. 

Noah Biesiada is a Voice of OC Reporting Fellow. Contact him at nbiesiada@voiceofoc.org or on Twitter @NBiesiada.

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