Mayor Cuts Off Comment in Consent Agenda Crackdown; Brown Act Complaint Rejected

For those who want the short version, go to http://www.indybay.org/newsitems/2013/05/26/18737433.php?show_comments=1#18737550 and scroll down to "Public Comment in Freefall". For the long version, keep reading.


THE STEADY MARCH TO CUTTING BACK PUBLIC COMMENT DURING CONSENT AGENDA ITEMS

In the last decade there has been a steady erosion of the public's right to speak.

The Consent Agenda comes shortly after the afternoon session of the meeting opens. It including numerous big ticket items. These are supposedly those that are "non-controversial", but may simply be those the Council doesn't want close public scrutiny on.

Prior to 2007, as at most other local city councils and our own Board of Supervisors, any member of the public could remove an item from the Consent Agenda, have it heard individually, and given (a small amount of) time for individual public comment.


ROTKIN CHANGES THE RULES

In 2005, Mayor Rotkin changed this process (some say as a specific response to my regular discussion of several Consent Agenda items) to allow only 5 minutes total discussion on all Consent Agenda items. See "Having Your Say At City Council Meetings Is a Right, Not A Privilege" at http://santacruz.indymedia.org/newswire/display/18359/index.php and the extended comments for a discussion of this attack on free speech as well as my (rejected) Brown Act complaint at that time.


COONERTY MAKES THINGS WORSE

IN 2007 Mayor Coonerty adopted any even more repressive process. A detailed account is "Mayor Ignores Latest Brown Act Violations " at http://www.indybay.org/newsitems/2008/05/31/18503244.php

His process, adopted without discussion or vote, further abbreviated public comment—this time requiring a Councilmember's approval for an item to be pulled from the Consent Agenda..

Since then members of the public have no longer been able to remove items from the Consent Agenda for individual discussion and vote unless they can persuade a Councilmember to agree either beforehand, or in a 2-minute "persuasion" period. In addition to being a "Persuade Us to Remove An Item For Discussion" period this brief 2-minute period has also become the "Public Comment" period for Consent Agenda items.

This was Coonerty's dodge (and that of subsequent measures) to appear to conform to the Brown Act by allowing members of a token public "comment time" instead of giving them time to speak on each item.. Of course, this simply gags the public. It would require a fast talker or very short comments if one were talking on more than one or two items. The other option--getting a Council member to agree to pull the item to allow an addition 2 or 3 minutes (the usual time allowed for public comment on an individual agenda item) requires explaining why. Which takes up the 2 minutes and prevents discussion on other items.


BRYANT'S HAMMER COMES DOWN

I summarize what happened at http://www.indybay.org/newsitems/2013/05/26/18737433.php?show_comments=1#18737550 (scroll down to "Public Comment in Freefall") and the Brown Act Complaint that follows gives a fuller description.

Essentially Bryant decided that those who request to have an item pulled from the agenda cannot speak on that item if they've discussed it at all when making that request. How is one to persuade the Council to pull an item without discussing it?


MY BROWN ACT COMPLAINT.

Mayor Hillary Bryant
Santa Cruz City Council
809 Center St.
Santa Cruz, CA

Dear Mayor:

At the 5-28 meeting of the City Council, Councilmember Posner pulled Item #1 [Commission for the Prevention of Violence Against Women Bylaws Revision] off the Consent Agenda for staff report and public comment.  Before I had a chance to address that item,  you specifically barred me from speaking in spite of my repeated attempts to do so.  When I attempted to explain, you repeatedly interrupted and overrode me, demanding I not speak.

Your excuse for doing so was that I had made some prior remarks in requesting to have the item pulled from the agenda during the brief two minute period specifically allotted to allow the public to "persuade" the Council to "give permission" to address the item individually, that is, to allow the public (including myself) the normal time to address the item (usually 2-3 minutes) as well as to get a staff report on the item, which is otherwise skipped.   

My previous remarks to the Council were an attempt to persuade the Council open a hearing so I could speak on the item.   I thought I was successful, since the item was indeed removed for a Public Hearing.   I've repeatedly denounced this "begging" procedure required of the public which virtually every other local legislative body state-wide does not require.   However, I followed the peculiar Santa Cruz process which severely limits public comment in place since it was unilaterally declared by then-Mayor Coonerty some years ago.

However, when I approached the microphone, I was not permitted to speak.    You allowed NO time for me to speak on the item, rudely cutting off my microphone, and ignoring my attempt to remind you of your Brown Act obligations under section 54954.3a which provides "Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body..."

The system imposed by former Mayor Coonerty and continued by you is a bizarre and chilling restriction on the public trying to speak on Consent Agenda items---essentially muzzling the public unless they have the permission of a Council member.  But once that permission is granted, you violate section 54954.3a by not allowing me speaking time on the specific agenda item.

This you repeatedly refused to do.

You compounded this error by refusing to answer my simple repeated question "are you refusing my right to speak?", turning off my microphone, drowning me out, and then moving on to the next item as though no member of the public were standing at the podium waiting to speak, as I was.  I believe the City Council tape will document this sequence of events.

I encourage you to review the tapes of earlier Council meetings wherean item has been pulled from the agenda by a Council member.  You will find that even if a member of the public referred to that item during the 2 minute period for discussion of all Consent Agenda items as a lump/requests to pull of items, they were allowed, indeed authorized, to speak for 2 minutes along with any other speakers.

I understand this is your first year as Mayor.  But it is important that your error not be allowed to stand as a precedent.  Nor do I feel my right to speak was respected, little as you may like what I have to say.  Since I indicated I was likely to be critical of your and the Council's action, I think it's also the case that a prejudicial content-based motivation was involved here--which violates another provision of the Brown Act--54954.3c which states the Council "shall not prohibit public criticism of the policies, procedures, programs, or services of the agency."
 
Accordingly I demand that this item be revisited at the next City Council meeting, that any action taken on it at this meeting be declared null and void, and that I and other members of the public be allowed speaking time as provided for. 

It is not a matter of discretion for the Mayor to "allow" public comment time, as you incorrectly asserted.  It is mandatory under section 54954.3a requiring public comment time for each agenda item.    This is particularly the case when a member of the City Council (under the authoritarian rules you are following) removes an item for discussion by the public, as happened here.

This is not simply a matter of rules, but of common sense.   You only allow members of the public a 2 minute period for all the Consent Agenda items as a mass.  If we use this time, to urge you to remove an item from the Consent Agenda for the regular discussion (though other legislative bodies allow this as a matter of right not permission), will you then tell us--as you told me--that we have "already discussed the item" and cannot speak on it further?  Does that mean all we can say when we initially approach the  Council is "I wish to pull an item" but give no further argument lest you censor them if the item is actually pulled in order to speak further on the item?   This not only defies common sense, but also the original process.

To reiterate:  Members of the public are put in the position of having to say nothing during the short period of time you allow them to request that items be pulled from the agenda except that they want that item pulled---or such seemed to be your standard with me.   The result is they got no comment time at all on the item if no Councilmember agrees to pull it.  What it means in practice is that folks won't attempt to pull items, but will cram any and all comments they have on 5-20 Consent Agenda items into a total time of 2 minutes--a severe restriction on Public Comment.

This is an impermissible double bind which violates section 54954.3a and unfairly burdens the public, particularly since many matters of financial importance are often on the Consent Agenda.

As someone who respects the state Open Meetings Act, I'm sure you will take the necessary steps to correct this error by annulling any action taken and revisiting the item next Council meeting to restore the Public Time you cut off.    Please advise me where on the next Council meeting agenda this particular agenda item will be revisited--this time with full legal compliance.

Sincerely,

Robert Norse
(831-423-4833)


THE MAYOR'S RESPONSE

From: Hilary Bryant [mailto:HBryant [at] cityofsantacruz.com]
Sent: Wednesday, May 29, 2013 3:19 PM
To: 'Robert Norse'
Cc: John Barisone
Subject: RE: Brown Act Complaint

Robert,
I am confident that I complied with the Brown Act yesterday in connection with your ability to substantively comment to the Council relative to the agenda item you reference. However since you question whether you were accorded your legal rights, I am forwarding your email to the City Attorney for any further response he might deem advisable. Thank you. Hilary


THE CITY ATTORNEY'S RESPONSE

From: JBarisone [at] abc-law.com
To: rnorse3 [at] hotmail.com
CC: hbryant [at] cityofsantacruz.com
Date: Thu, 30 May 2013 08:42:02 -0700
Subject: FW: Brown Act Complaint
With respect to regular City Council meetings, the Brown Act requires that members of the public be accorded the opportunity to comment on an agenda item before or during the Council’s consideration of that item.

You were accorded that opportunity and addressed the Council for approximately three minutes concerning Agenda Item 1 prior to the Council’s discussion, consideration and vote on that item.

Specifically you seconded the comments of Ms. Greensite who, like you, addressed the Council for about three minutes and objected to the CPVAW reduced meeting schedule being proposed to the Council.

You further based your objection to the proposal on your contention that rapes in the community are inadequately investigated citing a poor closure rate for such investigations. You also based your objection on the fact that less CPVAW meetings would result in fewer opportunities for members of the public to publicly register their concerns relative to CPVAW issues to the Commission.

You argued that Ms. Greensite should be accorded more time to complete her comments and that the Council should not approve the CPVAW agenda item as part of its consent agenda but rather, as was subsequently done by the Council in accordance with your suggestion, pull the item and discuss it publicly before voting on it.

In addition to addressing the item at hand you used the time you had to speak, as you regularly do, to criticize the Council for the manner in which it conducts the consent agenda portion of its regular City Council meetings, this time contrasting the Council’s procedure with that of the City of Monterey.  

Based upon the foregoing, it is my opinion you were accorded your Brown Act commentary rights. Accordingly, I will not be advising the Mayor to comply with any of the demands you make in your May 29th correspondence to her.  

Thanks, JGB


COUNCILMEMBER POSNER'S RESPONSE TO THE CITY ATTORNEY'S OPINION

From: MPosner [at] cityofsantacruz.com
To: JBarisone [at] abc-law.com; HBryant [at] cityofsantacruz.com; rnorse3 [at] hotmail.com
Date: Fri, 31 May 2013 11:30:35 -0700
Subject: RE: Brown Act Complaint

Dear John and Hilary,
I entirely agree.
Micah


MY RESPONSE TO THE CITY ATTORNEY, THE MAYOR, & POSNER

From: rnorse3 [at] hotmail.com
To: jbarisone [at] abc-law.com
CC: mposner [at] cityofsantacruz.com; hbryant [at] cityofsantacruz.com; dlane [at] cityofsantacruz.com; ....
Subject: RE: Brown Act Complaint
Date: Fri, 31 May 2013 12:08:57 -0700
John: 

So, to be clear at future Council meetings,  a member of the public can either

(a) make a request that an item be removed from the Consent Agenda, but not argue for why that should happen in terms of the specific concerns they have (and risk not being able to say anything about it no Councilmember agrees to remove it).  or
(b) speak about the item and request it be removed, but then not be able to speak during the Public Hearing time. or (perhaps)
(c) at the whim of the Mayor at the moment, a, b, or some mixture of the two depending on her feelings towards the speaker.  ?

I think it's important the public know what the process is.

Thanks, Robert


MY LETTER TO DON LANE (unanswered as of yet)

From: rnorse3 [at] hotmail.com
To: dlane [at] cityofsantacruz.com
CC: ...
Subject: FW: Brown Act Complaint
Date: Fri, 31 May 2013 12:00:23 -0700
Don:

I may already know your answer, but just wondering if you agree with this new assessment of Consent Agenda process.  That is, that one can either say nothing about an item and simply request it be pulled from the agenda, or say something and then be silenced when the item is heard individually.

I'm sure you know that was not the original process, since you were around enough to know that public comment (even by those asking that an agenda item be pulled and making some initial comments on it) was allowed on those few items that were pulled from the agenda. 

Or do you have a different recollection?  I found it telling that you--who's probably had more experience on City Council than any other member--were silent as this abuse of process went down.

R