Calaveras County: Citizens claim open meeting violation in silencing speaker

Residents of Calaveras County are rising to the defense of a fellow citizen whom the Board of Supervisors shut down while he was delivering a diatribe against a supervisor. They say the state’s open government law does not permit shutting down speakers just for critical comments. -db

Calaveras Enterprise
March 25, 2010
By Claudette Langley

A Calaveras County Board of Supervisors action earlier this month not only triggered protests from residents, but may have also violated the state’s open meetings act.

At the March 9 board meeting, Supervisor Merita Callaway shut down a speaker who was railing against Supervisor Steve Wilenksy. Terry Baker of Rail Road Flat, who has been fighting with the county for years about his neighbors’ roosters, went on a harsh diatribe during the public comment period.

“Mr. Baker,” Callaway said, interrupting the verbal assault about a minute into it. “I will not allow words like that in this board room.”

When Baker didn’t quiet down, she called for a five-minute recess and left him standing at the podium. While her intent appeared to be in defense of her colleague, even Wilensky said that he defended the rights of speakers to say what they need to say.

However, the Brown Act, which governs California public meetings, states fairly implicitly that elected leaders can’t shut someone down for simply criticizing them.

An excerpt from the Brown Act reads: “When a member of the public testifies before a legislative body, the body may not prohibit the individual from criticizing the policies, procedures, programs or services of the agency or the acts or omissions of the legislative body. … This provision does not confer on members of the public any privilege or protection not otherwise provided by law. Public meetings of governmental bodies have been found to be limited public forums. As such, 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.”

Specifically, the courts found that policies that prohibited members of the public from criticizing school district employees were unconstitutional (Leventhal v. Vista Unified School District, 1997; Baca v. Moreno Valley Unified School District, 1996). These decisions found that prohibiting critical comments was a form of viewpoint discrimination, and that such a prohibition promoted discussion artificially geared toward praising.

In addition, Jim Ewert, an attorney with the California Newspaper Publishers Association, weighed in on the incident. He said there are only a few reasons a speaker can be shut down in a public meeting: If the person is off topic or repeating something that has already been stated by other speakers, if the topic is outside of the board’s purview or if the speaker has gone over his or her time limit.

Upon learning that none of these were the case with Baker, he said that it did appear the Brown Act had been violated and he said, like it or not, elected officials can’t shut down someone just for criticizing them.

“They have to sit there and listen,” Ewert said.

County Counsel Jim Jones, disagreed with Ewert’s conclusion. He said this week that the board has some discretion to keep control of its meetings and that actions that defame or disrupt can be reined in.

“This is a business meeting and it needs to conducted in a way that business can be accomplished,” Jones said. He added however, that he didn’t know if that was specifically stated in the Brown Act or not.

Callaway said Wednesday that she believed she was within the law and that her decision was based on Baker’s comments bordering on slander.

“He called Steve (Wilensky) a liar,” she said.

She added that Baker had been allowed to vent many times in front of the board uninterrupted but that this last time he was defaming a supervisor.

“Would I do again?” she said. “Yes I do believe I would.”

Baker has been fighting with the county for several years to get action against his neighbors, who raise roosters. Baker and his neighbors on Black Oak Drive maintain that David and Carolyn Redmond’s roosters are a nuisance that seriously disrupts the quality of life for the neighborhood.

“I can’t take it anymore, my husband can’t take it anymore,” said Sandy Baker, Terry’s wife, at a board meeting last year. “I get up at 4:30 a.m. to go to work and what do I hear? Roosters. I work a 10-hour day and come home and what do I hear? Roosters”

Calaveras County Superior Court Judge Douglas V. Mewhinney agreed with the neighbors and on Sept. 11, 2007, issued a ruling against Carolyn Redmond that the “agricultural operation is in fact a nuisance and has been for at least two years.”

Copyright 2010 Calaveras Enterprise