A&A: City gone wild with continual Brown Act and CPRA violations

Q: At last night’s city council meeting one city councilperson was censored by having his microphone turned off in the middle of his public comments. He was talking about how the city has lost millions [like the city of Bell] and given away millions more as favors to certain council and city staff friends.

Actions are being taken by the city manager to sue this same outspoken city councilman over his asking questions about contract steering by the city finance director. Multiple PRA public document requests by our newspaper have been denied – some for three years. The city police chief is in on the deals. Crimes in city hall go unreported and no one is held accountable. We believe the County District Attorney is compromised. Help is seriously needed. Please.

A: With respect to the first issue you note below, although the Brown Act allows for certain restrictions on the speech of both members of the relevant legislative body and members of the public, these restrictions must be filtered through the protections of the First Amendment. Very broadly speaking, this means that the governmental agency must not curtail speech based on the viewpoint expressed through the speech.

For example, members of a legislative body subject to the Brown Act are constrained from addressing issues that have not been properly agendized in order to ensure that the public has notice and can attend meetings where particular issues are addressed.

Although “[n]o action or discussion shall be undertaken on any item not appearing on the posted agenda, … members of a legislative body or its staff may briefly respond to statements made or questions posed by persons exercising their public testimony rights ….

In addition, on their own initiative or in response to questions posed by the public, a member of a legislative body or its staff may ask a question for clarification, make a brief announcement, or make a brief report on his or her own activities.

Furthermore, a member of a legislative body, or the body itself, subject to rules or procedures of the legislative body, may provide a reference to staff or other resources for factual information, request staff to report back to the body at a subsequent meeting concerning any matter, or take action to direct staff to place a matter of business on a future agenda.” Gov’t Code § 54954.2.

In other words, it is possible to imagine a situation in which it would be appropriate for a legislative body to cut short the comments of a member.

But even where a Brown Act provision or other procedural rule might arguably support cutting short the comments of a legislative body member in a particular situation, such speech restriction could run afoul of the First Amendment if it were applied only based on the content of the speech.

That is, if a procedural rule were enforced only in order to silence comments critical of the majority, then there might be a First Amendment violation. See, e.g., Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); ACLU v. City of Las Vegas, 466 F.3d 784, 792 (9th Cir. 2006) (restrictions on speech in a public forum “must be justified without reference to the protected speech’s content”); Boos v. Barry, 485 U.S. 312, 320 (1988).

While this issue normally arises in the context of restricting comments by members of the public, conceivably it could arise in the context of speech by members of the legislative body, as well.

As for a lawsuit based on a councilperson’s comments about public issues, it seems likely that legal protections for public speech, including California’s anti-SLAPP law, would generally make it difficult to impose civil liability based on truthful speech about a matter of public interest.

Whether the denials of the PRA requests are wrongful would, of course, depend on whether there was a legal justification for the city to refuse to make the requested records available.

If not, the ultimate recourse would be litigation to enforce the PRA. It can sometimes be useful to remind an agency that a plaintiff who succeeds in litigation to enforce the PRA is entitled to his or her attorneys’ fees. Gov’t Code § 6259 (“The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section.”).

You can find more information about enforcing the PRA at the First Amendment Coalition web site at https://firstamendmentcoalition.org/category/resources/access-to-records/.

It sounds like the transparency issues you describe may be fairly deep and complicated, but perhaps addressing a discrete issue — such as an unjustified PRA denial — would be a reasonable place to begin.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition 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.