A&A: Can a California City Council Cut Public Comment Time with No Notice Before Meeting?

Q: At the last two City Council meetings, the agenda has announced a three-minute time limit per person for public comments. Then, at the start of the meeting, this has been reduced to two minutes.

I’ve reviewed (to the best of my ability) relevant case law that allows for deviations from the Brown Act when there is a lengthy agenda, or where the city’s Rules and Procedures outline that speakers can be given “up to” three minutes. But Rules and Regulations simply state that speakers will be given three minutes. So I do not believe this case law is applicable in this instance. Of note, the city, as I understand it, has also limited comments to two minutes in the past only when people came to speak about another controversial topic that reflected poorly on the Council.

Further, due to Covid-19, many public comments have been emailed in. These individuals did not have the opportunity to adjust their comments to meet the two-minute restriction at all. When these irregularities were brought up in a public comment, the City Council reasserted its rights to limit speech as they see fit because their Rules and Regulations allow them to limit the number of speakers.

I sent a Cure and Correct letter with a specific request for a written response to that letter in no more than 30 days (per the Brown Act). I am hoping they will admit their error, modify their operations, and we can all move on. But if they don’t, I believe it is important that this is considered for judicial determination. But, I have absolutely zero legal background, and I don’t know how to make that happen.

A: As you noted, the Brown Act provides the legislative body with discretion to modify its regulations regarding time limits on public comment if necessary, e.g., the time limit could be shortened to accommodate a lengthy agenda or lengthened to allow additional time for discussion on a complicated matter.  Case law generally recognizes a public entity’s ability to put reasonable restrictions on public comment during public meetings.  For example, the Second District Court of Appeal in Ribakoff v. City of Long Beach, et al. affirmed a trial court’s determination that a city transit board’s restriction of public comment to 3 minutes, per person, per agenda item, did not violate the Brown Act. 

In this case, your City Council’s Rules provide for a three-minute time limit but also permit limiting comments depending on the extent of the agenda and the number of persons desiring to speak. To determine whether the Council’s decision to limit the comment period to two minutes is a “reasonable” restriction will require a full examination of the circumstances, e.g., length of the agenda, number of speakers, prior conduct, etc.  In other words, the two-minute limitation is not per se unreasonable.  

You can find information about enforcing the Brown Act here.  Enforcement of the Brown Act is tricky and can be expensive since the ultimate method of enforcement (after sending a demand letter to the body) is to sue the legislative body to get a court to generally declare that the body has the habit of violating the Brown Act and requiring that it stop doing so.  I hope you are able to work with your council members to make sure the Brown Act is being followed. If you did not receive a satisfactory response to your Cure and Correct correspondence and are seeking an attorney referral, your local bar association’s attorney referral service would be a great option to find an attorney in your area.  

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.

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