City governments, police departments and county boards of supervisors have an enduringly difficult time understanding the proper order of things. It’s clichéd, but true. We don’t work for them. They work for us. Their inconvenience—in terms of providing records or allowing public comments—is no reason to abridge the rights of “the people.” If they don’t like it, officials can find another line of work.
That’s the context in which to view a lengthy letter—backed by threat of lawsuit—that the American Civil Liberties Union of Southern California sent Monday to the Orange County counsel and board of supervisors. The group contends the board’s newer policy limiting the public to one three-minute comment at the beginning of each meeting is an infringement on speech.
The old policy allowed members of the public to speak three times for three minutes and allowed public comments before each agenda item. The board instituted the policy to reign in long meetings caused, in part, by gabby members of the public.
I feel their pain. I’ve attended many governmental meetings in Orange County and elsewhere, and some speakers drone on like adults on those Peanuts cartoons: “Wah, wah, wah.” The chatter can be off-point and annoy the rest of us (especially when one is awaiting to discuss a specific agenda item!).
Nevertheless, the ACLU is right about this one.
“Instead of acknowledging its role as servants of the community … over the last several years, the board has treated the community as an impediment to conducting its own business and has systematically restricted members of the community’s ability to bring their concerns before the board,” wrote ACLU attorney Brendan Hamme. The ACLU also criticized a requirement that people fill out a card before speaking, a prohibition on addressing individual board and staff members, a ban on signs and limits on access to security footage.
County Supervisor Shawn Nelson told the Register new rules were needed because of a small number of people. OK, but it’s almost always a bad idea to design general laws to deal with a handful of specific people. It is never good optics for politicians to shut down public discourse. Sorry, but aren’t supervisors paid to listen to constituents?
“Of course,” said Supervisor Todd Spitzer, who was the only “no” vote on the rules change. “We signed up for the job.” His only caveat is reasonable: Speakers need to talk about matters that county board members have authority to handle. If you show up at the board meeting and want to complain about President Donald Trump’s Supreme Court nominee or postulate about NASA and flying saucers, then the board needs to shut you down. But not if you’re weighing in on county welfare policies.
Spitzer agrees with the ACLU’s arguments, although he doesn’t think they will prevail in court, given other jurisdictions have similar limits. But let’s be clear: this shouldn’t head to court. The board should just revise its wrongheaded policies.
Let’s say I want to address a specific agenda item that affects my property — maybe a road-development project. Under the rules, I may speak at the beginning of the meeting. Two hours or so later, when that specific item is up for debate, I must be silent. By then, it’s unlikely that my earlier words, mixed in with every manner of other public statement, will have any effect.
And for what? To assure a more efficient meeting? “Efficient meetings are a hallmark of totalitarian governments, but our democratic system demands a more deliberate approach to governance,” said Jim Ewert, general counsel for the California Newspaper Publishers Association. “Arguably, democracy is the most inefficient form of government that exists because public participation is a fundamental tenet of the democratic system.”
The ACLU says the board is out of compliance with the specifics of California’s open-meetings law, the Ralph M. Brown Act. According to a case the letter cites, the act requires “an opportunity for public comment on each specific agenda item as it is taken up by the body.” The county also seems to be violating the spirit of the act, as detailed in its preamble: “The people do not yield their sovereignty to the bodies that serve them. The people insist on remaining informed to retain control over the legislative bodies they have created.”
Earlier this month, we saw another obnoxious example of local governments that don’t understand the basic open-government principle. Fortunately, the California Supreme Court unanimously rebuked the City of San Jose, which had argued that public documents aren’t the public’s business if officials sent or received them on their private email accounts. San Jose essentially argued it was too inconvenient for cities to retrieve documents from private accounts.
I’m sure it is inconvenient, just as it’s annoying to endure speakers who ramble at board meetings. Tough luck. Officials work for us and that’s just part of the job.
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