A&A:Public comment vs. speaking on agenda item

Q: I sit on a local municipal advisory committee and some time ago we added a standing item to our agendas entitled “Committee Reports” so that council members who sit on these committees or work groups can report out.

There are four such reports listed at the end of our agenda. At the beginning of the meeting under Public Comment, I (as the chair) had a speaker card which listed the Item and the subject of the report.

The person was not asking to speak on the report but rather on the broader subject matter of the report and I directed him to speak under Public Comment instead as he was going to be speaking on an item not on the agenda. Come to find out he wanted to actually give his own report on behalf of his group.

He later stated that he had the right to speak on the agenda item but my contention is that he was not speaking on the item because the item is the Councilmember’s report, not the broader subject.

No denying his right to speak – just a question of what is appropriate. I realize that a member of the public can speak on any item ON THE AGENDA but for items not on the agenda, it needs to be under public comment. I would like to know if I was correct or not.

A: There may not be a hard and fast answer to your question. As it sounds like you know, under the Brown Act, the public has the right to speak on any item on the agenda, before or during the body’s discussion of the item in regular or special meetings, and to address the legislative body on any item of interest to the public during a regular meeting. Gov’t Code Section 54954.3(a).

It seems here that even though this individual’s comments address the broader subject matter that is contained in the council member’s report, the comments are still probably directed at an item on the agenda, i.e., the report and its subject matter.

The speaker could argue that even though he was not specifically commenting on what the council member had written in his or her report, he wanted to make sure that he was able to comment about the subject generally in light of the fact that the council member had written a report in the first place.

Requiring him to speak to the subject matter contained in the report at a later time arguably could make his comments less effective, since the message could get lost from the time the council member delivers his report to the time that the general public comment is open.

Holme Roberts & Owen 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.