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Tuesday, August 12, 2008

Commentary: Limiting Public Comment and Free Speech Considerations

There has been an interesting debate both on the editorial pages of the Davis Enterprise and in the community itself with regards to some of the new regulations that Mayor Ruth Asmundson has imposed both on the length of council comment and more explosively it seems on the length of public comment.

Her decision to limit the public comment period to fifteen minutes has drawn heavy criticism. Unfortunately, the rhetoric has been couched in grandiose terms such as freedom of speech and the Brown Act.

While freedom of speech is ostensibly government by the First Amendment to the U.S. Constitution, it has always effectively been subject to time and place restrictions. Public meetings could not function with complete freedom of speech which would allow anyone to talk at any time. The need for order is balanced against the right of the public to have access to their local government. Thus enters the Ralph M. Brown Act in California which governs access to local government bodies.

Section 54954.3 governs the right of the public speak. Subsection (a) reads:
"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 unless the action is otherwise authorized by subdivision (b) of Section 54954.2."
However even in this case, the right to speak is not an unlimited one.

Subsection (b) allows the legislative body to 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."
Finally subsection (c) essentially protects the right to public criticism of policies, procedures, programs, or services of the agency, but not beyond the current protection offered by the law. In other words, the Brown Act does not protect individuals from slander and other prohibitions on speech, but it does in general prevent the agency from shutting down dissent.

In the debate that we are dealing with, subsection (b) is the one that is applicable. It is here that we find that the actions of the Mayor are in fact legal under the Brown Act. "Reasonable" is always a judgment call and it also appears that her body could probably overrule her on policy, but obviously given her majority status, that is not going to happen.

That said, as with so many other provisions for open government in California, I believe that the Brown Act provides the minimum standard under which an agency should operate, not the maximum standard.

An active and engaged public is vital to this community. By limiting public comment, we begin the limit the chances for the public to participate in their own government and this I think will likely produce unwanted and undesirable consequences.

As has been pointed out before by members of the public and members on the council alike, the number of times in the last two years that the public consumed more than 15 minutes at a council meeting one could count on one hand. And it always surrounded an issue of great controversy and therefore of great import. On those occasions, what is the harm of the body of representatives to the public to listen to public input?

There is nothing more frustrating, as we have seen in the past, for the public to come to a meeting, speak on an issue for a long period of time, only to watch as the councilmembers make their comments from prepared statements as though the public's comments have no impact whatsoever on the council's final decision. Nothing is more frustrating than that except perhaps the public not even being able to fully speak out on the issue.

At the July 22, 2008 city council meeting, a number of members of the public spoke out against the new policy.

Jean Jackson, a prominent member of the public was especially eloquent:
"Your new policy of only having fifteen minutes of public comment before the meeting starts--it's not Democratic. It shuts down opposition. It shuts down good ideas, I get inspired by listening to public comment from people. It shows lack of flexibility and you are doing a great disservice to the citizens who want to participate in government and their sense of empowerment. You wonder why people don't sign up to be on commissions, well when you give them fifteen minutes public comment for all the issues, it really shows that you are not interested in what people have to say. I really urge you to get the citizens involved and not belittle us by allowing only fifteen minutes of public comment."
However in the Enterprise, members of the public such as Sheryl Patterson defended the policy. Ms. Patterson is correct that the council not violating the Brown Act (and likely not the American with Disabilities Act) with their policy. However, she also went too far in defending the policy.

She argued for instance:
"The purpose of a council meeting is to address items on the agenda."
The Brown Act actually specifically provides for the public to address items that are not on the agenda provided that the council is proscribed from taking action on those items.

Her final statement, I think misses the point as well:
"Just get to the meeting early and sit by the podium if you need to speak first. It's not that hard to be heard."
Under normal conditions, that is correct, it is not difficult to speak as a member of the public. But if a large number of people have decided to speak on a given subject that could become a bit tricky. The concern is the point about cutting off debate after 15 minutes--something that most weeks is not going to be an issue. But on those weeks that it is, what does Ms. Patterson suggest for those meetings to those individuals who did not get a chance to be heard?

This weekend, Kevin Klein in a letter to the Davis Enterprise weighed in on the issue and argued that free speech does exist at meetings.

Mr. Klein actually straddles the fence on this issue suggesting:
"I would think a better solution would be for City Council to assess the length of each meeting, and if need be, spilt public comment to two parts (before and during agenda items); and then asking those waiting to give public comment if they could wait until later in the evening. "
However he also offers a note of caution for the council:
"The one caution I would give to the council, though, is to not set public comment at the end of their meeting (which is almost always after 11 p.m.). To do so would be an act of denying citizens reasonable access to public comment otherwise required by the Brown Act."
That of course leads one to wonder exactly what the council would gain by splitting public comment. If the idea is to move the agenda forward more quickly, it seems to me that splitting the public comment section does not aid in that. It is better to allow the public to speak up front and then move on to scheduled council business.

This is an issue that is not likely to go away in the near future. The council has the authority under the Brown act to limit public comment in this manner. The question before all of us is really whether the council should in this manner and whether that really furthers our goals in the name of expediency.

---Doug Paul Davis reporting