Council member Ramos has asked that the issue of Oral Communications again be considered by the Council.  This question has been addressed quite often in the past and this memo summarizes the material previously provided to the Council.   

            The Ninth Circuit Court of Appeals in discussing regulation of Oral Communications at meetings of City Councils in California made this statement in White v. City of Norwalk (1990) 900 F.2d 1421, 1425: 

�. . . a City Council meeting is still just that, a governmental process with a governmental purpose.  The Council has an agenda to be addressed and dealt with.� 

            It is a delicate balance to be struck between allowing reasonable Oral Communications by interested members of the public and appropriately taking care of the public�s business.  There are those who would contend that all else must give way to the public�s right to address the Council, even if the agenda of the Council is not reached until the wee hours of the morning.  Likewise some would argue that in a representative democracy once the Council is elected the public should stay out of their way and there is no need for Oral Communications.  The legal and practical balance must lie somewhere in between. 

            As part of the Ralph M. Brown Act, Government Code �54954.3 states in pertinent part 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, before or during the legislative body�s consideration of the item, that is within the subject matter jurisdiction of the legislative body . . .

(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.   . . .� 

            The courts have provided us some limited guidance on this statute. 

            The case of White v. City of Norwalk (1990) 900 F.2d 1421, referenced above, considered acts that occurred prior to the adoption of this section but is still instructive.  On at least two occasions the plaintiff, Walter E. White, in speaking to the Norwalk City Council was ruled out of order for being unduly repetitive.  In considering his challenge to the City�s rules on addressing the Council, the court concluded (a part of which was quoted above): 

            �We are dealing not with words uttered on the street to anyone who chooses or chances to listen; we are dealing with meetings of the Norwalk City Council, and with speech that is addressed to that Council.  Principles that apply to random discourse may not be transferred without adjustment to this more structured situation.

            City Council meetings like Norwalk�s, where the public is afforded the opportunity to address the Council, are the focus of highly important individual and governmental interests.  Citizens have an enormous first amendment interest in directing speech about public issues to those who govern their city.  It is doubtless partly for this reason that such meetings, once opened, have been regarded as public forums, albeit limited ones.   . . .

            On the other hand, a City Council meeting is still just that, a governmental process with a governmental purpose.  The Council has an agenda to be addressed and dealt with.  Public forum or not, the usual first amendment antipathy to content-oriented control of speech cannot be imported into the Council chambers intact.  In the first place, in dealing with agenda items, the Council does not violate the first amendment when it restricts public speakers to the subject at hand.  (Citations omitted)  While a speaker may not be stopped from speaking because the moderator disagrees with the viewpoint he is expressing, (Citations omitted) it certainly may stop him if his speech becomes irrelevant or repetitious.

            Similarly, the nature of a Council meeting means that a speaker can become �disruptive� in ways that would not meet the test of actual breach of the peace.  (Citation omitted) . . .  A speaker may disrupt a Council meeting by speaking too long, by being unduly repetitious, or by extended discussion of irrelevancies.  The meeting is disrupted because the Council is prevented from accomplishing its business in a reasonably efficient manner.  Indeed, such conduct may interfere with the rights of other speakers.�  (at pgs. 1425-1426; footnotes omitted) 

            Then in Kindt v. Santa Monica Rent Control Board (1995) 67 F.3d 266, the Ninth Circuit Court of Appeals considered the challenge of a landlord in the City of Santa Monica to the actions of the Rent Control Board.  In the meetings of the Rent Control Board, Public Comments on non-agenda items were only allowed at the end of the meeting.  However Mr. Kindt wished to speak regarding the flag salute before the flag salute period, and wished to speak concerning the public announcements, also before the announcements were made.  As a result of his requests being denied, he would loudly disrupt the meetings.  First the Court made this statement relative to basic First Amendment rights: 

            �Citizens are not entitled to exercise their First Amendment rights whenever and wherever they wish.�  (at pg. 269) 

            Then referencing United States Supreme Court Justice Stewart, the Court noted: 

            �. . . public bodies must have a rather broad authority to structure meetings, even if that requires limiting subject matter and number and types of speakers.�  (at pg. 270) 

            The Court went on to approve the three minute time limit on comments and the restriction to the specified comment period.   

            In an unpublished case entitled Concerned Citizens Against the Land Grab v. City of Los Angeles, et al. (No. B125374 [2^nd District, December 7, 1999]), the Court of Appeals approved a 1 minute limitation on speakers at the hearing on the adoption of a redevelopment plan amendment.  This decision was subsequently approved by the State Supreme Court. 

            With reference to the above-noted statutory right to criticize the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body, the federal case of Baca v. Moreno Valley Unified School District (1996) 936 F.Supp. 719, considered a rule of the Moreno Valley Unified School District that speakers at Board meetings could not criticize employees of the district.  First the Court looked to the California Constitution: 

            �Thus, under the California Constitution, District�s Board may not censor speech by prohibiting citizens from speaking, even if their speech is, or may be, defamatory.�  (at pg. 727) 

            The Court determined that the rule was not only violative of the State constitution, but was also contrary to the Brown Act, and issued a preliminary injunction against the District.  (See also Leventhal v. Vista Unified School District (1997) 973 F.Supp. 951) 

The Ralph M. Brown Act (Government Code �54950 et seq.) provides that the public has a right to address the Council on any matter on the agenda of the City Council before action is taken on that item (Government Code �54954.3), and to also address the Council on any subject within the subject matter jurisdiction of the City Council, that is, on subjects for which the City Council has some ability to take action (Government Code �54954.3).   Implementing this provision has been a matter of much discussion and various changes over the years in the City.  Many of these provisions have reacted to a number of speakers who dominated the Oral Communications periods to such an extent that the actual work of the Council as outlined on the agenda was not reached until very, very late in the evening, requiring other members of the public to wait many hours until the item which had drawn them to the meeting was finally reached.  Since the state law has also changed over the years, some of the following provisions would no longer be legal under the current version of the Brown Act. 

November 4, 1975 � Council approved an ordinance which established that the Mayor would determine the appropriate time limit for speakers.  (Ordinance No. 2535) 

January 12, 1988 � Council directed the City Attorney to bring back an appropriate action to change oral communications for agenda items only from three minutes to five minutes, and for other matters from five minutes to three minutes.   

March 29, 1988 � Council approved that the Oral Communications be held only at the beginning of the meeting immediately following introduction of additional agenda items, and that each speaker be limited to five minutes, and that the subject be limited to matters concerning City business. 

December 13, 1988 � Council approved an ordinance which reiterated that the time allowed for Oral Communications was determined by the discretion of the Mayor.  (Ordinance No. 3138) 

May 9, 1989 � Council directed that Oral Communications be divided into two segments, the first occurring immediately after the introduction of additional agenda items, and to be limited only to agenda items.  This segment could not exceed one hour in duration, with the time equally divided among all speakers, except that no speaker could exceed five minutes.  The second segment would occur immediately prior to the adjournment, with each speaker only allowed to address the Council for a maximum of three minutes, and speakers could speak on any matter within the subject matter jurisdiction of the City.   The whole matter was to be reviewed in 60 days. 

July 25, 1989 � Council decided that study sessions be included as Oral Communication items, and deleted the �last call for cards� prior to the last segment of Oral Communications. 

December 12, 1989 � Council directed that Oral Communications be limited to agenda items only except for the first meeting each month when a Community issues format would allow for public input on any subject matter related to a community issue. 

January 9, 1990 � Council directed that the last period of Oral Communications not be cablecasted.   

April 3, 1990 � Council reconsidered the cablecasting of the last period of Oral Communications, but failed to change the direction. 

May 11, 1991 � Council again considered changing the practice of not cablecasting the last period of Oral Communications, but left the practice as is.  

May 4, 1993 � Council decided to resume cablecasting of the last period of Oral Communications for a 90-day trial period. 

August 3, 1993 � Council kept the practice of cablecasting the last period of Oral Communications. 

May 16, 1995 � Council directed that on a trial basis, the first period of Oral Communications would no longer be limited to just agenda items. 

July 18, 1995 � Council directed that an ordinance be prepared to allow the first period of Oral Communication to cover any item of City business on a permanent basis. 

August 22, 1995 � Council adopted an ordinance allowing the first period of Oral Communications to relate to any item of City business.   

June 12, 2001 - Council established four (4) periods of Oral Communications as follows:  The first period of Oral Communications preceded Closed Sessions, and was limited to items on the Closed Session agenda and was also limited to 3 minutes per speaker; the second period was for the open session of the meeting and allowed speakers to address anything which fell within the subject matter jurisdiction of the City Council, this period was limited to 1 minute; the third period immediately followed the second, and allowed speakers to speak only on action items on the agenda for that meeting, and was limited to 4 minutes; and the fourth, and last period of Oral Communications, was at the end of the meeting, and also allowed the public to speak on any item within the subject matter jurisdiction of the City Council, however, in this period of Oral Communications the speakers could speak for 3 minutes, but those who chose to speak during the second 1 minute period of Oral Communications could not also speak during this period. 

July 15, 2003 � Council changed the designations of the different periods of Oral Communications from numbers to names that more closely reflected what was to be discussed during that period, and increased the Initial Open Public Comment Period of Oral Communications from 1 minute to 2 minutes, and reduced the Final Open Public Comment Period of Oral Communications from 3 minutes to 2 minutes. 

            Pursuant to the policy of the City Council, staff has done no additional work on this matter.  If the Council desires to further discuss the issue of Oral Communications, it is recommended that such direction be given to staff, and a more complete report will be brought back for consideration. 

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