Question
Recently, the California Medical Board’s Division of Licensing (not the full Board) will be discussing pending litigation in closed session. I would like to make a public comment before they go into closed session, but currently they are only scheduling such public comment on the prior day, and not before just the Division of Licensing, but before the entire Medical Board. May I correctly insist on their scheduling public comment on Friday instead of Thursday, or is their scheduling public comment for Thursday sufficient?
Answer
With respect to public comment at meetings subject to the Brown Act, the Act provides that “[e]very 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 during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body.” Govt. Code Section 54954.3 (see below). Under this provision, it appears that scheduling public comment for one day of a two-day meeting would be sufficient. Depending on the circumstances, you might be able to argue that Thursday’s and Friday’s are actually two different meetings and that public comment should therefore be scheduled for each meeting.
If the comment were scheduled for the day when the smaller group was meeting, you could probably argue that you should be entitled to address the entire board. I don’t think this argument works the other way around, though.
54954.3. (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, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body, provided that no action shall be taken on any item not appearing on the agenda unless the action is otherwise authorized by subdivision (b) of Section 54954.2. However, 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. 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.
(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 total amount of time allocated for public testimony on particular issues and for each individual speaker.
(c) The 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. Nothing in this subdivision shall confer any privilege or protection for expression beyond that otherwise provided by law.
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