A&A: Written public comment not read as promised before City Council vote taken

Q: I submitted a written public comments to an agenda item because I could not attend a Special Meeting of the City Council. The City Clerk acknowledged that they had been received and would be read into the record during public comment time period for the specific item. This did not happen and the vote was taken on the item. After the vote was taken the City Clerk stated that she had forgotten to read the submitted comment and then read my statement. The City Attorney did not advise that the item should be reconsidered.

I have since requested that the City Attorney review and advise. No response has been received. I then sent a certified letter to the City Attorney, District Attorney, and emailed all council members. Does any of this require that the item be reconsidered
or that litigation may be required to cure and correct the action?

A: It is unfortunate that the clerk’s promise to read you written comments went unfulfilled, but I am not sure that any violation of California’s open meeting law or the First Amendment occurred here.

As you may know, under the Brown Act, in connection with any regular meeting of a legislative body, the public must be given the opportunity 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 § 54954.3(a).

There is no such provision for special meetings, although if the legislative body did turn the microphone on so members of the public could provide comments – as it sounds like was the case – then it would seem the body would have to do so in such a way that does not offend the First Amendment (i.e., all members of the public are, within reasonable time, place and manner restrictions, given an equal opportunity to address the body, regardless of their point of view).

However, had this been a regular meeting, the clerk would not have been obligated to read comments into the record of anyone who could not attend, as this is not what the public comment provision contemplates.  For the special meeting, it sounds like public comment was permitted, but again, it would seem the same analysis might apply – i.e., if you were not physically present to read your comments, the clerk did not necessarily have any duty to read them into the record for you.  Of course, if the clerk was willing to do this for all of the other written comments that were submitted except for yours, and the reason for this was based on those comments’ content, then there might be a problem.

In the future, if you are unable to attend a meeting in person, but have comments you would like the entire legislative body to be aware of, you might consider writing to each member individually, as well as submitting your comments to any city staff who might be responsible for advising the legislative body on that item.

Bryan Cave 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.