Q: Our Irrigation District Board asks for input from the pubilc on agenda items. However, the Board puts a five-minute limit on each individual. The staff has no limits on discussion time, but members of the audience are limited, even when making a case that disagrees with what staff is recommending. They are not very nice about this severe limit. I am the president of the local taxpayers association, and I often present input from many others, rather than require each of them to participate. Is this practice of limiting the public’s participation appropriate?
A: 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). The scope of comment permitted at a regular meeting includes not only agenda items, but any item within the body’s jurisdiction that has not already been considered at a previous meeting where public comment was permitted.
The Brown Act permits legislative bodies to adopt “[r]easonable regulations” for public comment periods, including regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker, but the body may not “prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.” Gov’t Code section 54954.3(b), (c).
The Attorney General has concluded that five minutes per speaker is a reasonable amount of time, 75 Ops. Cal. Atty. Gen. 89 (1992), and a court has said that it is not a violation of the Brown Act to limit public comment to two minutes per speaker on each agenda item. Chaffee v. San Francisco Public Library Comm., 134 Cal. App. 4th 109, 116 (2005). Thus, the five-minute time limit for public comment at board meetings are probably okay, even if the board members are allowed to publicly argue the issues for 45 minutes or longer.
The other question you ask is whether you might be allotted more time during public comment given your position with the taxpayers’ group, and the fact that you are speaking on behalf of many others. If the board agreed to give you more time to speak, it may conceivably be opening itself up to challenges by other individuals or organizations who are not permitted to speak for longer periods of time.
This derives from the principle that, in public forums or limited public forums such as city council meetings, reasonable time, place and manner regulations are permissible, but restrictions must be “content neutral” (as opposed to “content based”) and narrowly tailored to serve a significant government interest, and must allow ample alternative channels of communication. Perry Educ. Ass’n, 460 U.S. at 45. Content neutral restrictions are those that are both viewpoint and subject matter neutral, i.e., do not contain any restrictions based on either the ideology of the message or the topic of the speech, whereas content-based restrictions are those that endeavor to restrict or prohibit speech based on either the viewpoint or subject matter. See, e.g., Boos v. Barry, 485 U.S. 312, 320 (1988).
Someone challenging the board’s decision to allow you more time might argue that your message has been given priority over another’s, and thus the regulation is not content neutral. That said, some agencies do permit groups more time to speak during public comment under certain conditions, so you might want to check with the board’s bylaws to see if this is true with the water district.
Finally, There are other ways that you might get your group’s message to the board: line up two or three speakers to participate in the public comment period, and coordinate what you will say so that the group’s entire message is conveyed; and use alternative channels of communication — writing letters to the board — to send your message.
I hope you found this answer helpful, and wish you the best of luck in your endeavors.