From time to time the Council considers the length, configuration and subject limitations of the various Oral Communication periods which are part of the City Council meetings.  In response to a request by Councilmember Golonski, the Council has again asked that the matter be brought back for consideration. 

Background

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 lies 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.   . . .�

This statutory provision clearly provides that members of the public have a right to address the Council on any item on the agenda before or during the Council consideration of that item.  In addition, members of the public may address the Council on any item that falls within the subject matter jurisdiction of the Council, that is, on items where the Council has the legal authority to take some action, even though such item may not be on the agenda for that meeting.  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)

So it must be kept it mind that although the right and ability to address the Council is an important one, that right is not unfettered, because the fundamental purpose of City Council meetings is to conduct the business of the City, to consider and act on the matters that appear on the agenda.

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 the unpublished case of 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 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)

Current Procedure

With this legal background it is clear that the City Council has some latitude in how it structures Oral Communications.  The current practice has four periods of general Oral Communications (excluding any discussion of public comments made during noticed public hearings).  First, Oral Communications for a designated maximum of three minutes for each speaker are allowed prior to the Council going into Closed Session.  This session is designated on the agenda as �Closed Session Oral Communications.�  These comments are to be directed to the items listed on the Closed Session Agenda, and are not televised.  Second, �Initial Open Public Comment Period of Oral Communications� for a maximum of two minutes for each speaker are held prior to the regular agenda (but after the presentations, announcements and noticed public hearings).  These comments may include agenda items and any other item within the subject matter jurisdiction of the City and are televised along with the rest of the City Council Meeting.  Next, is a period called, �Agenda Item Oral Communications,� which allows a maximum of four minutes for each speaker.  During this period of Oral Communications speakers may address any �action� item on the agenda.  Finally, the �Final Open Public Comment Period of Oral Communications� allows two minutes for each speaker and is held at the end of the meeting.  This speaking period is again open to any item within the subject matter jurisdiction of the City Council, but is limited to those speakers who did not speak at the �Initial Open Public Comment Period of Oral Communications.� 

Previously, and for several years, just prior to the Council taking up agenda items, the period of Oral Communications was set at five minutes and was open to any item within the subject matter jurisdiction of the City Council, agenda or non-agenda items.  What the Council found was that many speakers took the opportunity to speak during this period on non-agenda items, relegating those members of the public who came to speak to an agenda item often to a time very late in the evening.  It was the hope that in adopting the current procedure that those who wanted to speak to the Council about a trash pick-up problem or another community need could do so without waiting for the entire agenda, and those who wanted to speak to specific agenda items could do so without the need to wait for lengthy periods of non-agenda comments. 

The following is a chart of the current and recent actions of the Council in fashioning a workable Oral Communications procedure:

�Action� Items

There was some question raised about the current limitation which requires speakers during the �Agenda Item Oral Communication� to address only �action� items.  This measure was adopted by the Council due to the practice of some speakers during this period of Oral Communications of selecting an innocuous item listed on the agenda and twisting it in an attempt to speak about some item which was actually a non-agenda item.  �Action� items are those items on the agenda that fall within the business portion of the meeting.  They would include the Consent Calendar and any of the Reports to Council, even if no specific �action� is contemplated.  �Action� items would also include the Closed Session items, although they precede the main portion of the agenda.[1]  They would also include Public Hearings although such hearings have their own Oral Communication period.[2]  �Action� items do not include, the invocation, the flag salute, the roll call, announcements, the recognitions and presentations, the Airport Authority Report, or perceived attacks by other speakers.  Certainly members of the public are not prevented from speaking on these items, just not during the Agenda Item Oral Communications period.

Implementation

Historically, we have found that whenever the Council has considered changes to the Oral Communications periods certain individuals have wanted to have all, or virtually all, restrictions dropped, and others, usually less vocal, have wanted the Council to impose greater restrictions.  The Council, to its credit, has attempted to adopt provisions that allow the members of the public the greatest opportunity to address their elected officials, and yet still to protect the ability to get the business of the City done.  When changes have been implemented there is almost always some tension at the beginning.  But as the new rules are made clear and consistently applied, the members of the public have been very good about following the new format.  The current procedure, albeit involving several periods of Oral Communications, has seemed to work well in allowing the members of the public to address the Council on any issue relating to City business, and still allowing the Council to accomplish the work of the City in a reasonable manner. 

Once the Council decides what changes should be made, if any, in the current Oral Communications procedure, staff will bring back the appropriate documents to formally implement that decision.

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