Can a city council deny public comment on an agenda item solely because the item is informational and the council will not take action on it?

Answer

As discussed generally on our website, the Brown Act governs each meeting of a “legislative body” of a “local agency” in California. Govt. Code §§ 54951, 54952. Such meetings must generally be open to the public, with opportunity for public comment, based on an agenda made available to the public in advance, except to the extent the Brown Act specifically allows certain matters to be discussed in closed session.

With respect to public comments, Government Code section 54954.3(a) states, “Every agenda for regular meetings shall provide an opportunity for members of the public 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.”

As to special meetings, “Every notice for a special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that item.” Government Code section 54954.3(a).

This statute “has been construed to mean that for each agenda of a regular meeting, there must be a period of time provided for general public comment on any matter within the subject matter jurisdiction of the legislative body, as well as an opportunity for public comment on each specific agenda item as it is taken up by the body.” Galbiso v. Orosi Public Utility Dist., 167 Cal. App. 4th 1063, 1079 (2008).

Thus, at a minimum, the Brown Act guarantees a general public comment period for “any matter within the subject matter jurisdiction of the legislative body” at a regular meeting, which may cover comment on the “informational only” agenda items. Id. However, in a special meeting, public comment can be limited to items “described in the notice for the meeting,” and time for non-agenda comments is not required. Preven v. City of Los Angeles, 32 Cal. App. 5th 925, 931 (2019). Whether these “informational only” items require a dedicated public comment period on the agenda as they are taken up by the body is a separate matter.

The plain language of Government Code section 54954.3(a) requires public comment for “any item of interest to the public, before or during the legislative body’s consideration of the item,” and does not distinguish between items on which action will be taken and informational-only items. See Lennane v. Franchise Tax Bd., 9 Cal. 4th 263, 268 (1994) (“If there is no ambiguity in the language of the statute, ‘then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs.’”).

There is an exception that “the agenda need not provide an opportunity for members of the public to address the legislative body on any item that has already been considered by a committee, composed exclusively of members of the legislative body, at a public meeting wherein all interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee’s consideration of the item, unless the item has been substantially changed since the committee heard the item, as determined by the legislative body.” Government Code section 54954.3(a).

Without knowing more about the facts, I can’t say whether this exception would apply to the “informational only” items you asked about. The Legislature is currently considering a bill, SB 707, that would remove this exception, if enacted.

The Court of Appeal has also held that 54954.3(a) does not require a legislative body to allow members of the public to address it on whether to place an item on the agenda. Coal. of Labor, Agric. & Bus. v. Cty. of Santa Barbara Bd. of Supervisors, 129 Cal. App. 4th 205, 209 (2005).

Again, without knowing more about the facts, I can’t say whether the “informational only” items you wrote about were items considering whether to place an item on the agenda. See id.

Under Government Code section 54954.3(b)(1), the legislative body may adopt “reasonable regulations” to ensure the public’s right to comment in section (a) above is carried out, “including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker.”

That said, “[t]he legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.” Govt. Code § 54954.3(c).

Courts accord significant flexibility to legislative bodies in determining what is a “reasonable” regulation of public comment, as long as the bodies do not discriminate based on viewpoint or prohibit criticism. As one court noted:

[H]aving no limit on either the length of any particular presentation by a member of the public or on the number of public speakers (or on the total time for public comment) has the potential for endless discussion—given the potential that there will be a far greater number of members of the public who may wish to speak to an issue than there are staff and guests who make presentations concerning it. The number of staff and invited guests speaking on a topic will clearly be limited; the potential for public speakers is potentially extensive and needs some reasonable limitation.

Ribakoff v. City of Long Beach, 27 Cal. App. 5th 150, 172 (2018).

In particular, the Court of Appeal held it did not violate the Brown Act when the chair of a legislative body “announced at the beginning of the meeting that public comment on each agenda item would be limited to two minutes per speaker, instead of the three minutes normally allotted to each speaker,” because the chair “anticipated that four of the items on the agenda would be lengthy, and the Commission would not be able to complete the meeting in a reasonable period unless public comments were shortened.” Chaffee v. San Francisco Public Library Comm., 134 Cal. App. 4th 109, 111–12 (2005).

Also, the Court of Appeal held that “[l]imiting public comment on items described in the agenda to the time when those items are being considered by the Board is not an unreasonable regulation,” because it “ensures the Board has a clear and complete understanding of the public concern regarding an item of business on the agenda at the time that item is to be transacted or discussed.” Olson v. Hornbrook Community Services Dist., 33 Cal. App. 5th 502, 528 (2019).

Apart from the Brown Act, the First Amendment generally reflects our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). “Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized.” Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).

In general, the Ninth Circuit has said the public comment portion of a city council meeting can be considered a limited public forum, in which restrictions on speech are typically upheld if they are deemed reasonable and viewpoint neutral. See, e.g., Norse v. City of Santa Cruz, 629 F.3d 966, 975 (9th Cir. 2010).

For example, rules imposing time limits or restricting comments to relevant subjects might be deemed reasonable if they are applied equally to all speakers. But generally “a speaker may not be stopped from speaking because the moderator disagrees with the viewpoint he is expressing.” White v. Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990); see also, e.g., Acosta v. City of Costa Mesa, 718 F.3d 800, 812–13 (9th Cir. 2013) (rule against “personal, impertinent, profane” or “insolent” remarks at city council meeting violated First Amendment).