Q: I experienced an incident at a meeting of my county board of supervisors. Upon addressing the Board for my allotted three minutes, a district supervisor interrupted me, commenting about previous issues I’d raised about county agencies. I am of the understanding that Supervisors are not allowed to publicly comment on matters raised during the public comment period as those matters are not posted upon the Board’s agenda that is required to be publicly noticed at least 72 hours in advance of the scheduled meeting.
Furthermore, the Supervisor’s outburst seemed to me to be an attempt discredit my very valid comments. In addition, it is my perception the Supervisor’s outburst was to intimidate me from any further public comment regarding the subject.
Can you offer me any assistance whether such actions by the Supervisor have violated in anyway the Brown Act?
A: I don’t know that there’s anything in the Brown Act that necessarily prohibits members of a legislative body from responding to comments from members of the public during the required public comment period.
However, as you have identified, it may be that the legislative body risks violating the Brown Act agenda requirements if one of its members engages in any sort of discussion, however short-lived, on a topic that is not on the agenda. It sounds like that may have been the case here: the supervisor took the opportunity to raise an issue that is within the supervisors’ subject matter jurisdiction – complaints against their public works director – that wasn’t on the agenda. Unfortunately, there may not be much in the way of a remedy here, since it does not appear that any action was taken in connection with this issue by the board as a whole. That said, you might want to let the supervisors know that outbursts like this during the public comment period may violate the Brown Act to the extent they are commenting on issues not on the agenda.
As to the second issue you raise – whether the board member was attempting to silence you through intimidation – it may be there is a First Amendment angle here with respect to your and the public’s right to address the board during the public comment period. In addition to what the Brown Act requires with respect to giving the public the opportunity to address the board per Government Code 54954.3(a), courts have found that the Brown Act’s public comment requirements create a “limited public forum” subject to First Amendment scrutiny. Baca v. Moreno Valley Unified Sch. Dist., 936 F. Supp. 719, 729 (C.D. Cal. 1996). If the supervisor is trying to silence you because of your viewpoint, the board would have to have a really, really good reason as to why these actions are permissible. Any “content-based restriction” is only valid upon a showing by the government “that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). This is a very high standard and would be difficult to meet.
If this supervisor continues to attempt to silence you at these public meetings, you might want to write to let the board know you believe your First Amendment right to address the board is being infringed.
Bryan Cave Leighton Paisner 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. No attorney-client relationship has been formed by way of this response.