Council member Ramos has asked that the Council consider restricting the use of Council oral communications periods for certain types of political campaigning.  The following is a compilation of information that we have provided the Council in past years.  Pursuant to the Council�s policy we have done no further work on this issue.

This question brings into apparent opposition two significant public policy issues: the right of the public to address their elected officials and the right of the public to not have public funds be expended for or against a candidate or ballot measure.  In addition, the necessity of the elected City Council to be able to direct its efforts toward the business of the City must also be considered.

The Ralph M. Brown Act (Government Code �54950 et seq.) governs the notice and conduct of the meetings of local agencies in California.  With reference to oral communications the act provides:

�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 . . .  �  (Government Code �54954.3(a).)

The argument is that even in local elections the candidates and measures, once placed on the ballot, are not within the subject matter jurisdiction of the public agency, and therefore such comments can be restricted.  The opposing argument is that the local candidates and measures once voted upon are or will fall within the subject matter jurisdiction of the agency, and therefore the campaigning should be allowed, and that campaigning for or against local candidates or issues is implicit criticism of the members of the local legislative body.

As to the issue of criticism of the policies and actions of the City and its officers, the Brown Act specifically provides that such speech may not be restricted even if such officers are candidates for reelection.

�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.   . . .�  (Government Code �54954.3(c).)

The next issue is whether allowing such campaigning during oral communications would result in an unlawful expenditure of public funds for or against a candidate or measure.  The use of public funds would relate to the use of public facilities and the use of public funds to televise City Council meetings including the oral communications portions.

The leading California case on this issue is the California Supreme Court case of Stanson v. Mott (1976) 17 Cal.3d 206, 130 Cal.Rptr. 697.  This case arose out of an allegation that the director of the California Department of Parks and Recreation had expended $5,000 in public funds to promote the passage of a State Parks Bond measure.  After reviewing the previous court decisions relating to these types of cases the court observed:

�A fundamental precept of this nation's democratic electoral process is that the government may not �take sides� in election contests or bestow an unfair advantage on one of several competing factions.  A principal danger feared by our country's founders lay in the possibility that the holders of governmental authority would use official power improperly to perpetuate themselves, or their allies, in office . . .; the selective use of public funds in election campaigns, of course, raises the specter of just such an improper distortion of the democratic electoral process.�  (17 Cal.3d at 217, 130 Cal.Rptr. at 705)

In trying to provide some practical guidance to public officials as to what would and would not be allowed in such situations, the court stated:

�Problems may arise, of course, in attempting to distinguish improper �campaign� expenditures from proper �informational� activities. With respect to some activities, the distinction is rather clear; thus, the use of public funds to purchase such items as bumper stickers, posters, advertising �floats,� or television and radio �spots� unquestionably constitutes improper campaign activity (Citations omitted), as does the dissemination, at public expense, of campaign literature prepared by private proponents or opponents of a ballot measure. (Citations omitted) On the other hand, it is generally accepted that a public agency pursues a proper �informational� role when it simply gives a �fair presentation of the facts� in response to a citizen's request for information (Citations omitted) or, when requested by a public or private organization, it authorizes an agency employee to present the department's view of a ballot proposal at a meeting of such organization. (Citations omitted)

�Frequently, however, the line between unauthorized campaign expenditures and authorized informational activities is not so clear. Thus, while past cases indicate that public agencies may generally publish a 'fair presentation of facts' relevant to an election matter, in a number of instances publicly financed brochures or newspaper advertisements which have purported to contain only relevant factual information, and which have refrained from exhorting voters to �Vote Yes,� have nevertheless been found to constitute improper campaign literature. (Citations omitted)  In such cases, the determination of the propriety or impropriety of the expenditure depends upon a careful consideration of such factors as the style, tenor and timing of the publication; no hard and fast rule governs every case.�  (17 Cal.3d at 221, 130 Cal.Rptr. at 707-708, footnotes omitted)

As noted in Stanson, the case provide that fair �informational� activities are appropriate for the City in such matters, but subject to a careful review of the particular facts in each situation.

The issue then, given the provisions of the Brown Act and the strictures outlined by the Supreme Court in Stanson v. Mott, and its progeny, clearly focuses on whether the City Council can restrict speakers to the issues on the agenda and within the subject matter jurisdiction of the City Council and can prohibit blatant campaigning for or against a candidate or a ballot measure.

Despite the protestations of some that at City Council meetings the first amendment requires that speakers be able to say anything they desire about anything they desire, the cases are very clear that the oral communications periods of local public agencies are in fact limited public forums, that is, the speakers may legally be restricted to agenda items and subjects that are within the subject matter jurisdiction of the legislative body (White v. City of Norwalk (1990) 900 F.2d 1421; Leventhal v. Vista Unified School District (1997) 973 F.Supp. 951). 

We have found no cases or Attorney General Opinions that specifically touch on this issue.  However the publication �Open & Public III� put out by the California League of Cities states as part of a question and answer portion on the Brown Act:

�During the audience comment period of a regular meeting of the legislative body, a resident urges the public to support and vote for a candidate vying for election to the body.  May the presiding officer gavel the speaker out of order for engaging in political campaign speech?  No, for Brown Act purposes, the speech is relevant to the governing of the agency and an implicit criticism of the incumbents.�  (Open & Public III, 2000, pg. 24)

Interestingly, this opinion is not repeated in the League�s Municipal Law Handbook, which is used by City Attorneys around the state in advising their public clients.  It is also not stated in any of the Attorney General publications which we have been able to review.

In reacting to this very issue of campaigning during oral communications, the City of Glendale has adopted the following rules essentially prohibiting such campaigning or electioneering during oral communications:

�(A).  When addressing the Council at public meetings, an individual shall address an issue on the agenda, or an issue within the subject matter jurisdiction of the Council.  Political campaigning for or against a candidate for elective office is prohibited and the individual will be ruled out of order.  The City Attorney may be called upon to provide advice to the Council regarding when and if an individual is engaged in political campaigning.  It should be noted that in case of doubt as to the nature of the comments, that doubt will be resolved in favor of permitting the speaker to continue.

�(B).  An individual who appears before the Council at a public meeting may wear small campaign buttons or other indicia of support or opposition to or for a candidate for elective office.  Campaign signs attached to a stick or other similar device are prohibited in the Council chambers during a Council meeting.

�(C).  If a speaker is wearing campaign buttons or other items of support for or in opposition to a candidate for elective office, the television camera will not focus on or otherwise draw attention to the campaign items.

�(D).  Individuals may not distribute or place campaign literature in support of or opposition to any candidate for elective office in the Council chambers during a Council meeting.

�(E).  Individuals who violate any of the rules noted above will be ruled out of order and issued a warning that the conduct is disruptive and impedes the orderly conduct of the Council meeting, and that if the conduct continues, the individual will be escorted from the Council chamber.  If the conduct continues, the individual should be asked to voluntarily leave the Council chamber, and if the individual refuses, the individual may be escorted from the chamber by the Sergeant at Arms (police officer).  Violation of the rules or removal does not extend beyond the meeting at which the disturbance required the individual�s removal.�  (Emphasis added)

Should the City of Burbank adopt a similar restriction, successful enforcement will turn on the specific facts of each case.  Outright campaigning at oral communications could be prohibited as not within the subject matter jurisdiction of the City Council.  However, �criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body� is allowed, even in the midst of an election campaign.  The difficulty would be where the specific line is drawn in the heat and glare of a Council meeting.  One approach would be to prohibit video tape presentations.  But to attempt to prohibit just those video tapes which contain campaigning would mire the Council or assigned City staff in attempting to regulate on the basis of content.  A blanket prohibition on all public video tapes during oral communications would likely find judicial support.  Such a prohibition would not need to prevent the use of video tapes during  public hearings where either the proponents or opponents of a project could make their case before the Council using such media.  But the use of video tapes during oral communications have proven to be quite problematic on several levels, resulting in difficulty getting the tape to start at the point desired, sound not beginning at the same time as the picture, some tapes of very poor quality, confusion on the part of viewers as to whether a current or previous Council meeting is being viewed, and tapes running longer than the allotted speaking time.  From time to time City staff has even been charged with sabotaging tapes with which, it was charged, they did not agree.  A blanket prohibition on the use of such video tapes during oral communications would remove all of that uncertainty and confusion, as well as limit the ability to conduct video tape campaigning during such periods outside of the authorized subject matter jurisdiction of the City Council.

Should there be majority support on the Council to consider such a restriction, it is recommended that staff be directed to further research this issue and bring back and proposal for discussion by the Council.

cc:       Mary Alvord, City Manager

            Mike Flad, Assistant City Manager

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