Do I Have to Let Them Say/Do That?

Originally published at So Cal Latino Policy Center.
By Ruben Duran.

As the national political climate heated up recently, some local governments are facing spillover effects, with local and sometimes even out-of-town activists and provocateurs attending city council, school board and other meetings to let their voices be heard. While representative democracy usually benefits from a free flow of information and public input, unfortunately some recent incidents have made clear that the rancor and divisiveness that ensures high ratings on cable TV news programs can interfere with the work of local government.

Here are the top ten things to remember about public involvement in local government meetings in California:

  1. The basic rule in California under the Brown Act is that the work we do as public officials is the “people’s business.” As such, the public has broad rights to attend meetings of the legislative body (anytime a majority or more of your council or board is gathered to hear, discuss, deliberate or act on an item of agency business). Those meetings, of course, must be conducted after proper notice and posting of an agenda. Additionally, the public has the right to comment on the items we discuss and act on prior to our taking any actions on the items.
  1. The public also has the right to comment on any other issue “within the subject matter jurisdiction” of your agency during any regular meeting of the body. This can sometimes be tricky, and may require some deft handling of meetings. For example, most city councils in California have no control over schools within their jurisdiction; locally elected school boards have that authority. Thus, it would be acceptable to stop someone from commenting on school-related issues at a city council meeting. The converse is also true: a school board does not have to allow comments that should be directed at city officials at a school board meeting.

Does that mean a city council can stop public comment on national immigration policy issues, for example? Strictly speaking, local governments have no policy control over federal immigration decisions. To the extent public input is focused on issues or decisions over which the local governing body has no input, decision-making authority or control, there is a strong argument that commentary on such issues need not be allowed.

The reality in 2017, however, is that some local governments are taking public and policy-related stands on immigration issues, usually in the context of “sanctuary city” questions or local law enforcement stances vis-à-vis federal immigration enforcement. As some of us have experienced recently, those issues and debates can quickly devolve into shouting, catcalls, whistles and other disruptive activity.

  1. Which leads to the third point to remember: while the law protects speech rights for members of the public to address the legislative body, those rights are not without limits. The agency has a right to halt speech that disrupts the body’s ability to complete its business on the posted agenda.
  1. Here, it is critical to remember that the agency’s rights to limit or prohibit speech cannot be based on the content of that speech only. Content-based restrictions on speech have long been held unconstitutional by courts across the U.S. Instead, the local agency’s right to stop speech at a public meeting arises only when that speech becomes disruptive – interfering with the agency’s ability to do business. There must be actual disruption resulting from the speech, not merely the potential for disruption or discomfort, anger or disbelief for the audience, the body or the staff.
  1. Examples of disruptive speech (as found by courts) include:
  • Speech that is too long
  • Speech that is unduly repetitious
  • Speech that includes extended discussion of irrelevancies
  • Yelling
  • Interrupting
  • Personal, slanderous, or profane remarks that are also disruptive (personal, slanderous, or profane remarks on their own are not necessarily disruptive)

This means that you can legally remove from the meeting room individuals who engage in speech that disrupts your meeting.

  1. Your options when your meeting is disrupted by members of the public are laid out in the Brown Act. You can eject the disruptive person(s) from the room or clear the entire room, except for non-disruptive press, if necessary.
  1. You must allow criticism of the “policies, procedures, programs or services of the agency [and] of the acts or omissions of the legislative body,” so long as that criticism does not result in a disruption of the meeting.
  1. For cities, there are also options for when the disruption is caused by a member of your own city council. The California Government Code authorizes a city council to “punish a member or other person for disorderly behavior at a meeting.”
  1. Although not legally required, it makes policy sense to consider adopting a policy that lays out the rules so everyone knows what to expect and what to do when things get out of hand. The policy should include notice and warnings if necessary so that the people involved are given fair opportunity to conform their behavior to the rules.
  1. Finally, remember that the main reason you hold regular and special meetings of your city council, school board or other legislative body is to get the business of your agency done and serve the public. The law allows and expects that your meetings can and should be run effectively and efficiently in an environment of respectful decorum and transparency.

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Ruben Duran is a partner in the Los Angeles office of Best Best & Krieger, LLP. He serves as the Southern California Latino Policy Center’s Ethics Advisor and represents cities, school districts and special districts throughout California.
(213) 787-2569