Environmental Press # 47

Subj: Brown Act Facts -- Local pols violate the law
Date: 7/4/2002 8:43:14 PM Pacific Daylight Time
From: doug@seal-beach.org
To: voiceforveterans@aol.com
Sent from the Internet (Details)

STOP THE SEWAGE WAIVER held by Orange County Sanitation District

The local city councils, and OCSD, have been counter-attacking, trying to defuse citizen outrage by stopping people from speaking during public comment and by moving the meetings around and canceling agendas. For example, Tustin gave us only 1 minute, OCSD gave us only 2 minutes at 10:30 PM, and OCSD cancelled the vote on June 26 after ERF and SC sent out 10,000 flyers saying the vote was the 26th! CM Sanitary District (meeting again Monday, 8AM) tried to limit us to 2 minutes, 30 minutes total -- after being warned, their Attorney
agreed that everyone could speak, many given more than 2 minutes. But their intent was to buffalo and bamboozle waiver opponents. While sewagers (http://StopTheWaiver.com/sewagers.htm) got all the time they wanted to drone on about diapers, birds and on-shore sources.

 

 

Well, can they do this?

My legal aid society says NO.

In fact, they cannot even limit us to any time at all unless they have passed WRITTEN REGULATIONS that must pass the test of being "reasonable". Without such regulations, the only test is that we be "reasonable" as judged case-by-case.

The relevant law is on http://StopTheWaiver.com/brownact.htm

There is no criminal penalty unless they *knowingly* violate the law, and the only usual penalty is to "cure" the fault by letting you speak. But a violation can be used to invalidate all actions taken at that time, such as a vote on a project. In the case of OCSD, we could invalidate their vote on the 19th, which was to delay the vote on the waiver until after the RWQCB issues its regulations -- they would have to hold another meeting, perhaps on the 26th. So the "cure" is not much, but they CANNOT violate the Brown Act with impunity. The lawsuit starts with a simple letter to the offending agency pointing out the fault, and requesting a cure.
-------------------------------DETAILS:
Ralph M. Brown Act Facts

"...pursuant to...54954.3(b)...the total time allocated for public comments on Agenda Item No. 7 will be 30 minutes..."

Can they do this? The answer is NO. Yet many local jurisdictions get away with it, because they know they can snow you, and they think no one will sue. But the process of enforcing your right to speak to the issue begins with a simple letter, and the lawsuit, if necessary, is very cheap and fast. The whole thing can be finished in six weeks. Let's look at 54954.3 (Brown Act). You will see that (b) only sets limits to speech under 2 conditions:

First, to further the intent of (a)! That is, they can only limit people's speech if it's necessary to promote the "intent" of everyone speaking.

Second, they must pass a rule! That's right, if they have not passed a written "regulation", as stated in (b), then arguably, they can't stop you at all, the only criterion is "reasonable" time limits!

Here's the text, the details are in the case law, but not very complicated. It's all in the definition of "reasonable".

§ 54954.3 Public Comment

(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...

(b) The legislative body of a local agency may adopt reasonable regulations to ENSURE THAT THE INTENT OF SUBDIVSION (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. [Emphasis Added]

So ask:
Where are your written regulations? And how do they promote the intent of 54954.3(a)?

75 Ops.Cal.Atty.Gen. 89 (1992): A local agency legislative body may limit public testimony on particular issues at meetings to five minutes or less for each speaker, depending on the number of speakers. Factors to consider in determining a reasonable time for public discussion are the time allocated for meeting, number of agenda items, complexity of each item, and number of persons wishing to address the legislative body on each item of general public interest.

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