Question
At a recent Planning Commission public hearing, we were told in the agenda and online that we would be given up to three minutes to speak. Right before public comments were heard, the chair said we’d be given only two minutes without any explanation. It says in the agenda he can change the time with no cause. Is this a violation of the Brown Act and what is our remedy?
Answer
As you know, the Brown Act is the California law that sets forth requirements for local agencies to open their meetings to the public. With respect to public comment, the Brown Act, at Govt. Code section 54954.3, states as follows:
“(a) 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 . . . . (b) The legislative body of a local agency may adopt reasonable regulations to ensure that the intent of subdivision (a) is carried out, including, but not limited to, regulations limiting the amount of time allocated for public testimony on particular issues and for each individual speaker.”
Thus, any time limits the agency places on the time for public comment need only be reasonable. Although the Brown Act refers to “regulations,” to the best of my knowledge, this has not be interpreted as requiring an agency to formally adopt regulations, as opposed to less formal procedures and policies, which are most typically seen.
Regarding the fact that the agency changed the time limit from what it had posted in the agenda, there is nothing in the Brown Act that specifically prohibits an agency from so acting, as long as the end result is “reasonable.”. Indeed, it is often advantageous for members of the public for an agency to have such flexibility. In the event that many more members of the public may want to speak than anticipated, one of the ways the agency can accommodate all speakers is to shorten the time allotted for each speaker.
Of course, the agency must be acting with the intent to “provide an opportunity for members of the public to directly address the legislative body.” And the agency is directly prohibited from taking any action that has as its purpose the prohibition of “public criticism” or which serves to discriminate against any particular viewpoint. Govt. Code section 54954.3(c).
Holme Roberts & Owen 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.
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