Question
I want to understand why my City Council can limit comment during a single meeting by a member of the public to five minutes total for a particular class of items (consent agenda items), no matter how many items are categorized as such, and no matter how many items an individual wishes to speak to. I have never heard of anything similar being used by any other public body in the state. It seems clear to me that, legally and politically, they could never get away with applying such a rule to non-consent agenda items, and that this represents a large and dangerous loophole in the Brown Act and 1st Amendment if permitted.
In particular, this particular rule also appears targeted at a single, specific individual who is consistently the primary target of their ire for speaking on these issues, and for whom the then Mayor created this rule ad-hoc during one meeting, and only afterwards brought it to the City Council and City Attorney for validation. He is now on trial for disrupting a meeting by refusing to abide by this limit, and asked me to follow up on previous conversations and see if you had any new thoughts on this issue.
Answer
The Brown Act, in Government Code section 54954.3(a), requires a legislative body (ie, the City Council) to “provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public,” unless the matter has been previously considered at a prior public meeting where members of the public were allowed to address the issue. I am not aware of any different rule for consent items.
Subsection (b) of section 54954.3 allows the Council to adopt “reasonable regulations to insure the intent of subsection (a) 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 speaker.”
The Brown Act itself does not define what a “reasonable” time limit would be. The California Attorney General has opined that five minutes PER SPEAKER may be “reasonable.” 75 Ops Cal. Atty Gen. 89 (1992). But five minutes for ALL speakers on ALL consent items would seem to be unreasonable, at least if it had the effect of preventing each speaker, or some of them, from having an meaningful opportunity to directly address the Council.
Any attempt to impose or apply a time limit to prevent a particular individual from criticizing the Council, or to prevent comment on a particular item, may violate Section 54954.3(c) of the Brown Act and the First Amendment. However, it may be difficult to prove such intent.
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