Mayor Reilly Illegally Suppresses Public Comment: A Brown Act Demand

309 Cedar PMB #14 B
Santa Cruz, CA 95060

April 2, 2007

Mayor Emily Reilly
City Council Offices
809 Center St.
Santa Cruz, CA 95060

Dear Mayor Reilly:

I request that you correct the Brown Act violations that occurred at the February 27, 2007 City Council meeting during the Afternoon Session.

On the Agenda Item “Presentation--Honoring 2006 Community Hero Jim Howes”, you refused to provide a period for Public Comment though specifically requested to do so. I made this request by phone several days before. I repeated it at a personal taped meeting with you the day before. I followed up asking you immediately before the Council session. Hence you had ample notice of my desire to make public comment.

You originally proposed a special comment period two hours after the Howes item had been acted on, which, as you know, violates both the spirit and the letter of the Brown Act, since communication can only be meaningful if it happens before or during the agenda item. In any event, you didn’t offer the subsequent comment period.

While I can understand your desire to provide a unanimous vote of approval for Officer Howes and a celebratory atmosphere, you surely know that some in the community have strong feelings about Officer Howes treatment of homeless people

Howes has displayed not only a clear bias against them. Early in his
career he arrested Helen Langley, Linda Edwards, and others as they tried to sleep outside the Civic Center Auditorium, serving as emergency shelter two days after the earthquake in October 1989. Howes acted against the express orders of the shelter providers who had no more shelter indoors and were letting the homeless sleep outside under their protection.

Howes has also used his position in the police department as a venue for inappropriate political action against the poor and homeless. In 1999 he harassed a petitioner for a city rent control initiative at the Farmer’s Market and tried to stop him from petitioning there. In the same year, he went door to door trying to encourage residents on Almar Avenue to post anti-homeless “no parking at night” signs. Several years later, though he was SCPD community liaison officer, he refused to meet with HUFF (Homeless United for Friendship & Freedom) to discuss concerns.

In 2003, he refused to follow the law regarding the placement of tables and display devices downtown when he set up a table in defiance of the ban on having tables next to businesses.

Hence, when the City Council took celebratory action regarding Howes during a City Council agenda in City Council chambers using staff time and money, and before a public audience, we expected and you were required to provide a comment time for those of us who don’t like hate crimes against the homeless.

Though the City did not participate actively in generating the United Way’s “Community Hero” award, you specifically provided public space and agenda time for that presentation. You then took the additional step of reading aloud the City Council’s Proclamation of February 27th as “Jim Howes Day” as a part of that United Way Ceremony.

This action violated Section 5.4954.3(a) of the Ralph M. Brown Act in the Government Code. That section 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.”

I believe you were also aware through previous conversations that my remarks would have been critical of the Council’s presentation. That interview was broadcast subsequently on Free Radio Santa Cruz (and is archived at http://www.radiolibre.org/ brb/brb070304.mp3). Hence your decision also violated Section 54954(c) which reads: “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…”

You were also aware of a authoritative opinion by Peter Sheer of the First Amendment Coalition (e-mail attached) that advised such a denial of public comment was a violation of the Brown Act. Intentional violation of the Brown Act not only requires a correction but is a misdemeanor. Hence your action was not only negligent, but willful and intentional. A copy of this letter is going to the District Attorney and Grand Jury for their consideration, to see if there are any grounds for criminal prosecution.

You commented throughout the radio interview that you would “follow the opinion of the City Attorney”. Doing so does not relieve you of responsibility for violating state law or denying me the basic First Amendment right to speak briefly on an issue at City Council.

Your claim, and the city attorney’s claim, that the City Council was simply “witnessing” the United Way’s award does not pass the straight face test.

You provided a public forum, took the action in the midst of a Council meeting, and agenda-ized the item.

The United Way ceremony was followed with your proclamation noticed subsequently on the March 13th agenda. It read “Proclaiming Tuesday, February 27, 2007 as “Jim Howes Day.”...encouraging all citizens and his coworkers to join in honoring him and congratulating him on being selected as a 2006 Community Hero.”

This was clearly not an action taken by United Way and “witnessed” by the City Council but an active presentation by the Mayor and City Council. To emphasize the point,. each member of the Council in turn read aloud from the presentation.

You involved yourself personally in the ceremony by then congratulating Officer Howes at the podium. Thus, the Presentation became not just an “item of interest to the public” for which you were nonetheless required to provide public comment “before or during the legislative body’s consideration of the item.” It also became an item on which you acted after improperly improperly noticing it on the agenda.

The Council had clearly “considered” the Proclamation before each member expressed their consent by reading a paragraph of it aloud from their official seats on the City Council dais. The fact that the Council took no recorded vote on the item at the meeting is irrel-evant. An implicit consensus was obviously in force.

The City Manager’s office and the Mayor’s office apparently chose and
scheduled the Howes Proclamation many weeks in advance yet failed to put the reading of the Proclamation on the Agenda as an item of public comment.

This failure violated Section 54954.2a(1) which provides for a 72-hour
advance notice posting of the agenda “containing a brief general description of each item of business to be transacted ... at the meeting.

Section 54954.2a(2) which provides “No action or discussion shall be undertaken on any item not appearing on the posted agenda.”

The whole Council also obviously agreed to the Proclamation. I don’t know whether it did so either privately behind closed doors at a nonscheduled meeting, through a more informal consensus process, or through a series of informal serial meetings. These are all Brown Act violations that shut the public out of the process.

Whether the decision happened previously or at the February 27th meeting, it clearly happened. The Proclamation reading was a very public, very deliberate, very official action. Unless Council members claim they were sleepwalking or hypnotized, clearly at some point
every Council member agreed to approve and read from this proclamation line-by-line. The public was illegally excluded from any comment on this decision.

When it became clear the Council was not “witnessing” but actively involving itself in approval of a statement, I rose to request time to speak. You ignored both my attempts. Council member Rotkin, however, intervened to demand that I be "dragged from the chambers" if I made the request again.

He falsely suggested that I had twice been warned and suggested that I had twice disrupted the meeting. Both of these claims were false; my speaking from the floor was a reminder to comply with the Brown Act. You hadn’t “warned” me at all when Rotkin claimed I’d been warned twice.

Rotkin’s threat was a grave one. It violated my right to be present at
meetings, my right to make public comment, and my right to be critical of public officials. It gave the public the false impression that I was trying to be disruptive.

I also had reason to believe his threat was not an idle one. Two years ago, he initiated a violent arrest as I stood at the public microphone waiting to speak. on a regular agenda item Last year the district attorney finally dropped Rotkin’s bogus charge of “disrupting a meeting”. He has since publicly expressed his determination to see me tried and jailed. Rotkin also used the explicit and violent phrase “dragged out of the meeting”--which describes what he prompted and condoned two years ago.

Frightened by this pressure, I fell silent and surrendered my right to speak. When the chair condones this kind of bullying and abuse by ther Council members, it chills not just my speech, but the speech of others and their willingness to come to City Council meetings.

You need to communicate clearly that these kinds of threats will not be tolerated, that they violate the Council’s own decorum rules.

While I feel strongly that no one should be prevented from speaking freely (Council members included), those in positions of power have a special responsibility not to intimidate the public. When this is done, the damage needs to be repaired.

One way to do this is to publicly advise Councilmembers of their responsibilities to the public. Another way is to acknowledge your mistakes under the Brown Act and correct the violations.

I request that the Brown Act violations be corrected and the Howes presentation be rescheduled with adequate notice and public comment time with appropriate verbal cautions to other councilmembers not to engage in assaultive interruptions.

Additionally I would urge you to schedule Oral Communications--the only time members of the public can put their own matters before the Council in this public forum--at the beginning of either the evening or afternoon session, which you have not been doing.

I further suggest you extend it so that each person who speaks can have three minutes of time (with thirty minutes at the scheduled time, and the rest allowed as overflow at the end of the meeting, as is done by the Board of Supervisors).

Please advise me of your decision on this matter as soon as possible.

Sincerely,

Robert Norse
(423-4833)

P.S. I include the opinion of First Amendment Coalition worker Peter Scheer on the matter, which I spoke to you about prior to the meeting.

cc: First Amendment Foundation, ACLU, Santa Cruz Sentinel, HUFF, Kate Wells, David Beauvais, indbay.org/santacruz, Metro Santa Cruz, City on a Hill Press, Good Times



PETER SCHEER'S OPINION THAT NOT ALLOWING PUBLIC COMMENT ON THIS ITEM VIOLATES THE BROWN ACT

From: Peter Scheer <pscheer [at] earthlink.net>
Date: February 27, 2007 1:47:34 PM PST
To: rnorse3 [at] hotmail.com
Subject: Brown Act issue

Robert:

Good talking to you yesterday.

My view is that members of the public must be afforded a chance to speak to a legislative body simultaneously or before the body takes up any item on its agenda---not just those matters on the agenda on which the legislative body is being asked to vote or take other formal action.

The relevant provision of the The Brown Act is as follows:

<<54954.3. (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. . .>>

Note that the right to address a body, before or during consideration of a matter, applies to any "item" on the agenda. The word Item is an intentionally broad term. Also, the purpose of this provision is to enable public participation in a body's deliberations. Meaningful participation requires an opportunity to potentially influence the outcome of a matter by speaking before, not after, a body's consideration of an item.

Good luck.

-Peter
=========================================
Peter Scheer, Executive Director
CALIFORNIA FIRST
AMENDMENT COALITION
534 4th St. #B, San Rafael, CA 94901
ph 415.460.5060 fax 460.5155 cell 505.5024
pscheer [at] earthlink.net http://www.cfac.org
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