Regulations on public comment
Q: Our City Council’s Law & Legislation Committee recently heard a proposal whereby the Chair (Vice Mayor), expressed her support for the measure, and restricted opposing testimony. She allowed all those (dozen) in support to testify, and then limited opposition to 1 statement of 2 minutes. All others who were signed up to testify were not allowed to. She then browbeat the committee into not voting on the measure, and breaking protocol to instead refer it to the full city council for a vote.What are my options for bringing attention to this injustice, and preventing it from occurring again?
A: The first issue that must be addressed is whether the committee you refer to is subject to the Brown Act. The Brown Act applies to the “legislative bodies” of all local agencies (cities, counties, school districts, municipal corporations, special districts, and all other local public entities). With regard to subsidiary bodies, the Act applies to any board, commission, committee or other body of a local agency created by charter, ordinance, resolution or formal action of a legislative body. Generally, this is the case regardless of whether the body is permanent or temporary, advisory or decision-making. However, Government Code section 54952(b) exempts advisory committees that are comprised solely of less than a quorum of the members of the legislative body that created them. This exemption does not apply, however, if the advisory committee is a standing committee. A standing committee is a committee that has continuing jurisdiction over a particular subject matter (e.g., budget, finance, legislation). (Gov’t Code § 54952(b)).
The California Attorney General’s Office illustrates, in its “The Brown Act” publication, how section 54952(b) operates with respect to committees created by city councils. According to the Attorney General, if the city council creates an advisory committee comprised of two council member’s for the purpose of reviewing all issues related to parks and recreation in the city on an ongoing basis, for example, such committee, even though comprised of less than a quorum of the members of the body that created it, is a standing committee that is subject to the Act because it has continuing jurisdiction over issues related to parks and recreation in the city. On the other hand, if the city council creates an advisory committee comprised of two city council member’s for the purpose of producing a report in six months on downtown traffic congestion, for example, such committee is exempt because it is comprised solely of less than a quorum of the members of the city council, and it is not a standing committee because it is charged with accomplishing a specific task in a short period of time.
Assuming the committee you are referring to is subject to the Brown Act, let’s go on to the next issue concerning the committee’s actions in limiting public comment. Section 54954.3 of the Brown Act permits legislative bodies to adopt “reasonable regulations” on public comment, including regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker. Having said that, however, public meetings of legislative bodies have been found to be limited public fora. This means that members of the public have broad constitutional rights to comment on any subject relating to the business of the governmental body. Any attempt to restrict the content of such speech must be narrowly tailored to effectuate a compelling state interest. California courts have found that policies that prohibited members of the public from criticizing school district employees were unconstitutional. Leventhal v. Vista Unified School Dist. 973 F.Supp. 951 (1997); Baca v. Moreno Valley Unified School Dist. 936 F.Supp. 719 (1996). These decisions found that prohibiting critical comments was a form of viewpoint discrimination, and that such a prohibition promoted discussion geared toward praising and maintaining the status quo, thereby foreclosing meaningful public dialogue.
Assuming the committee was in violation of the Brown Act, you may seek to void an action taken at such meeting. The requirements for taking such an action require you to seek to have the agency “cure and correct” the action taken at the improperly held meeting, and then bring a lawsuit if they do not. The requirements are very specific, they have very short deadlines, and they are generally strictly enforced. Generally speaking, the demand must be made within 90 days from the date the action is taken (but the demand must be made within 30 days if there is a violation of Section 54954.2. If the legislative body fails to correct the action within the requisite time period, you must file the lawsuit within 15 days. Please see the provisions of California Government Code 54960.1 regarding the particulars of the timeline.Alternatively, you can file a suit for injunctive or declaratory relief for the purpose of stopping or preventing violations or threatened violations under California Government Code section 54960, but this type of action will not have the effect of voiding the action. The procedures and time limitations set forth in Section 54960.1 do not apply to Section 54960. Ingram v. Flippo, 74 Cal. App. 4th 1280, 1288, 1290 (1999).