Q: Can a public board limit who can make comments during public comments to only members who live in their jurisdiction?
During a recent community meeting held by our local public sewer/water district, there was a portion of time to comment on the plans they were discussing. They stated that only residents who live within their jurisdiction could make comments. Can they legally limit who can make comments during public comments in that way? They also required everyone who spoke to state their name and address prior to speaking. Is that allowed? I was under the impression that you were allowed to make comments without providing that information. Any help would be very appreciated!
A: As you probably are aware, California’s open meeting law, known as the Brown Act, requires that:
“[e]very agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body.” Gov’t Code section 54954.3(a).
Although the Brown Act permits legislative bodies to adopt “[r]easonable regulations” for public comment periods (i.e., regulating the total amount of time allotted to each speaker), it may not exclude speakers based on the content of what the speaker might say, except to the extent that the public comment provision is intended to provide a forum for members of the public to address matters that are within the legislative body’s “subject matter jurisdiction.”
The Act does not seem to indicate that a “member of the public” who must be allowed to address the legislative body is restricted only to those individuals who live within the legislative body’s jurisdiction.
Indeed, the Brown Act explicitly states that:
“[a] member of the public shall not be required, as a condition to attendance at a meeting of a legislative body of a local agency, to register his or her name, to provide other information, to complete a questionnaire, or otherwise to fulfill any condition precedent to his or her attendance.” Gov’t Code § 54953.3.
It would seem to follow that such information would also not be required in order to address the legislative body. And following from that, it would seem that the individual’s actual place of residence is irrelevant for purposes of deciding who gets to address the legislative body. So long as the comments are within the body’s “subject matter jurisdiction,” then any member of the public would seem to have a right to speak during public comment. (Indeed, one does not have to live in a particular jurisdiction to be affected by decisions made by legislative bodies in that jurisdiction; think of pollutants from factories from one town that affect the citizens in another town, for example, or a homebuilder who is seeking approval for a new development in a particular jurisdiction, even though the builder lives elsewhere.)
You might consider writing to the board, citing relevant provisions of the Brown Act, and letting them know that any decisions taken in violation of those provisions may be subject to a judicial determination that they are null and void, particularly where the public did not get a meaningful say in the process.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.