Last week, Oakley City Attorney provided a memo to the Oakley City Council regarding limiting public comments at council meetings.
The item was placed on the agenda after a Sept. 13 public comment where a resident blasted former city manager Bryan Montgomery, the city attorney and members of the Oakley Police Department.
In response, Councilmember George Fuller requested a policy to potentially limit public comments to issues involving the city or take on a councilmember, not used to complain about staff.
Last week, City Attorney Derek Cole stated he typically does not include judicial opinions to his memos because that is his job, not hand the council court decisions, but rather interpret them—noting these decisions were in the 1990’s.
“I put those in there in case I somehow missed anything,” stated Cole. “I think even if you causally look at those decisions you will see how emphatic the courts were in saying that the type of policy that you have asked me to research is just blatantly unconstitutional and we can’t do it.”
He noted how the decisions were in the 1990’s but have grown to be more libertarian position, the courts has shown more protection for First Amendment rights going forward.
“In First Amendment Law when it comes to free speech, we have seen a considerable and continuing progression toward protecting speech,” explained Cole noting that some cities require speakers to only address the chair of a board—which is now being challenged on restricting speech. There are even challenges over boards trying to limit speakers to showing politeness and avoid “f—bombs”.
He told the council he understood their position to protect staff, but their hands were tied.
Vice Mayor Sue Higgins asked about restraining orders.
Cole said in order to get a restraining order the council would have to show a course of conduct as something that is “truly threatening” that puts you in fear or a threat of violence or even stalking calling the bar is very high. He also stating offensive comments does not even get close to that.
Fuller said this was not a matter of political gain.
“I really believe that people who are required to come to work in a public setting, should not be harassed or encounter a hostile, toxic workplace and we have a responsibility to do that,” said Fuller who argued they are allowing a hostile work environment with certain public comments being allowed.
Mayor Randy Pope said his belief was no matter how “crazy” someone is they get their 3-minutes just like anybody else.
“Personally, the more they speak the more people will realize how crazy they are,” stated Pope. “Then everybody knows. But when they do rise to the level of breaking the law of the penal code such as threatening an official or making criminal threats, if someone comes to the podium and does say something threatening towards staff or anybody on the dais, is there a procedure or can we establish.”
Pope said people could say whatever they want as long as they were not threatening anybody.
No other action was taken other than receiving the memo.
Here is the commentary from Sept. 13 City Council Meeting:
At the meeting, Oakley resident Randi Adler spoke making several accusations about Oakley staff:
“On the 27th of June, I put in a complaint against an officer. The next day I had a fire in my backyard, they came into my house for no reason to come into my house. They said I was unstable, grabbed me, hurt me so bad that I have been in the hospital four times and have had surgery. They took me to the hospital in restraints and I was released 45-minutes later. That is one part of the story. Mr. Fuller, I congratulate you for doing what you did on the Bryan Montgomery issue and turning it into the District attorney and going to the grand jury and stealing money from the city.
Mr. Pope, you told me the debt was paid off, actually it was not, it was pardoned.
Mr. Cole, you told everybody not to talk to me because you were afraid that I was going to sue the city, but you committed a felony by doing all the paperwork for the Bryan Montgomery issue and pardoning the loan. I have turned you into the bar association, the FBI, the attorney general, the district attorney and the state senate. You do not live in this district. You live in Sacramento. You have no right to even do anything about this city when you don’t even care or live in it. I think there should be term limits with the city council and that we should be able to vote in our next mayor.
Also, I have been sexually abused by the police department for years and I am getting tired of it. I am tired about the comments, about the money I have and what I spend it on. Its nobody’s business but mine.
Mr. Cole, if I had the right I would do a personal citizens arrest on you for doing everything that you have done, I hope you didn’t run out of black ink when you told them to redact my police report and videos.
You are disgusting, you are a disgusting person and you should be prosecuted and I am going to make sure you are. And I am a better friend than I am an enemy. Just remember, I ran for city council twice and learned all these things about the legal aspects of this chamber and I find it absolutely repulsive. Thank you”.
At the end of the meeting, Councilmember George Fuller requests a policy aimed at limiting public comments and instead restrict members of the public from complaining about city employees.
“I want to make it very clear that our employees are to be treated with dignity and respect. They step forward and commit themselves and are not to be insulted on an ongoing basis because its easy to do so. We have some of the best employees in the United States as far as I am concerned. Our police department is exemplary, if there is a complaint, we have a complaint process or a review process to investigate that. We can bring reports forward and they will be investigated in a proper manner. But I really want to see a policy in place as soon as possible where at public comments in the public form that the only discussion will be issues involving the city or if you want to take on a city council member, but it will not be used for personnel complaints to hammer home. No personnel complaints to be made during public comments from the podium during any meeting.”
No other members of the Oakley City Council issued a comment on the item.
I attach two judicial opinions to this Staff Report. These cases, which challenged rules made by school-district boards, make very clear that the First Amendment precludes any restrictions on discussion of personnel matters during public comment.
For purpose of this discussion, a restriction on “personnel” matters would be typified by a rule at issue in one of the attached opinions. In the Moreno Valley USD Case, the rule read as follows:
“No oral or written presentation in open session shall include charges or complaints against any employee of the District, regardless of whether or not the employee is identified by name or by any reference which tends to identify the employee. If an attempt is made to include charges or complaints against an employee in any way, the Board President will order the presentation stopped at once, and the Board meeting will continue in accordance with the established agenda. All charges or complaints against employees must be submitted to the Board under provisions of Board policy.
Any individual who violates this policy will be warned to discontinue his/her comments immediately. If the individual willfully interrupts the meeting by refusing to comply with the warning, the Board President may authorize the removal of the individual pursuant to Government Code section 54957.9.
I will avoid a very lawyerly or overly complex analysis of this issue because I believe the law as to this subject is so clear. Succinctly summarized, the reasoning of the two attached cases is that:
- In requiring that the public be given an opportunity to comment on matters within the jurisdiction of the City Council, the Brown Act creates what First Amendment law describes as a “limited- purpose public forum.”
- When government creates a limited-purpose public forum, any “content-based” restriction on the speech allowed in such a forum is subject to strict constitutional scrutiny. A limitation on “personnel” matters is inherently content-based as it declares as off-limits speech concerning specific types of subjects—e.g., complaints about or charges against public employees.
- Under strict-scrutiny analysis, local governments do not have a “compelling interest” in limiting public comment on these subjects. The protection of the rights of public employees who may be the subject of complaints or charges does not rise to the “compelling” level necessary to survive strict constitutional scrutiny.
- Nor, under strict-scrutiny analysis, would limitations on the making of charges or complaints against public employees be “narrowly tailored” to ensure that do not sweep more broadly than necessary to serve any compelling interest.
The City Council has no authority to impose any limitation on public comments concerning personnel issues, including on the making of complaints about or charges against City employees.
Agenda Item & Staff Report – click here