Isolation Mandate Clashes With Open Government Ethos

In reaction to California Governor Gavin Newsom’s mandate that social gatherings of any size be dispensed with in an effort to slow the spread of the coronavirus, several governmental entities in San Bernardino County undertook the paradoxical assignment of holding public meetings from which the general public was excluded. Somewhat predictably, confusion tending toward but not quite reaching chaos ensued, creating an atmosphere and circumstance in which the flow of facts, data and input normally used to inform deliberative processes was compromised, rendering doubt about the integrity of the outcomes.
In Hesperia, where city council meetings are normally held on the first and third Tuesdays of the month, and San Bernardino, where the city council convenes on the first and third Wednesdays of the month, the ability of public agencies to meet the governor’s order and yet maintain the principle of allowing the citizenry to petition its government and participate in its democratic process were given early tests. The challenge was particularly pronounced in both of those cities, given the brief span between the time the order was given and the events at which the substance of the order had to be implemented.
The Sentinel was on hand to monitor the outcome at each.
On Tuesday night, virtually all members of the public were excluded from the Hesperia City Council meeting, including the press. The only exceptions consisted of city officials allowing an individual member of the public who had a direct interest in a specific item being discussed to come into the meeting chamber under escort long enough to provide input. Thereafter, the individual had to leave. No one came forth to address the council with regard to the 11 items on the consent calendar.
Curiously, members of the public were permitted into City Hall during the course of the meeting, but were restricted to the lobby, where they were able to watch the council action on a video monitor that also provided an audio of the proceedings. Hesperia Mayor Larry Bird and City Clerk Melinda Sayre gave contradictory statements about how the public would be able to remotely participate in the meeting. Bird stated that written comments could be submitted, which he implied would be read within the council chamber by a staff member out loud prior to the council taking any action with regard to the relevant issue. Sayre implied that a microphone hook-up in the lobby would allow members of the public to be heard by the council through that device. There was such confusion, however, that no input from the public was provided by that means. There was an indication given that a member of the public who had been present when the meeting initiated wanted to be heard on an item, but a staff member outside the chamber was unable to locate the individual when the item was considered, and the council took action without hearing from him or her.
On one item, a lawyer representing a business owner appealing his business license revocation was permitted entrance into the chamber to speak to the council. Because the microphone at the speaker’s podium inside the chamber was not at first turned on, the initial portion of his comments were not audible outside the council chamber. That glitch prevented the public from knowing his identity or the substance of roughly half of what he said.
There were further shortcomings in the way the meeting broadcast was handled. Unmicrophoned comments by staff were not audible outside the chamber. The video camera work was rigidly limited to two perspectives, one trained on the five members of the council and another on the station where two staff members were seated. It was therefore difficult or impossible for the public to know or understand which members of staff were participating in the discussion at several junctures during the meeting or discern their comments and input.
Moreover, the manner in which those members of the public who were present were herded into a single spot in the lobby had the precise opposite effect of the intent of the governor’s order, which was to prevent crowds from congregating in close physical proximity to one another.
Some city staff were present in the meeting chamber, while others remotely viewed the proceedings from their offices on their computer monitors. Of those, if the proceedings required their participation, they left their offices to come into the chamber for the duration of the time their input was required.
In San Bernardino the following evening, some, but not all of the shortcomings in Hesperia were replicated, while other problems that were not apparent in Hesperia further marred the process.
It appeared that prior to the meeting, preparations to allow the public into the meeting chamber had been made, with seats in the Bing Wong Auditorium at the Norman F. Feldheym Library where the city council meets having been demarked for occupancy in a way that would have maintained considerable space between those in the gallery. When the meeting commenced, however, the public was not permitted into the chamber. After initially denying a representative of the Sentinel entrance to the auditorium, a guard posted at the entrance was prevailed upon by a city staff member to allow the reporter inside.
Members of the public were allowed into the chamber to go to the public speaker’s podium to address the council during the initial part of the meeting. Each was escorted in and then out after the conclusion of his or her statement. The San Bernardino City Council numbers seven ward representatives and the mayor. Normally, all eight are seated at the dais. On Wednesday night, however, just four of the council members – Ted Sanchez, Juan Figueroa, Henry Nickel and Jim Mulvihill – were present in the in the auditorium in their normal positions. Mayor John Valdvia participated via video and audio hook-up from a desk that appeared to be in his mayoral office elsewhere in the city’s quarters. Councilwoman Sandra Ibarra appeared to be in an office setting as well, though it was not clear if she was in a municipal building or at her place of work. Council members Bessine Richard and Fred Shorett took part using a video and audio feed from their respective residences. Also participating remotely was Deputy City Attorney Sonia Carvalho. City Manager Teri Ledoux was present within the council chamber. Sanchez, Figueroa, Nickel and Mulvihill, as well as LeDoux and City Clerk Genoveva Rocha were obliged to wear headsets so they could hear the other officials who were not present in the auditorium. Some of the city staff members present had laptops which allowed them to hear and perhaps see in real time the three council members and mayor not present in the chamber. There was, however, no feed of the conversation and discussion between the council members to a speaker or amplifier in the council chamber, leaving those without a city-issued laptop or headphones unable to hear all sides of those exchanges.
The Sentinel reporter, who had with him a laptop, while in the council chamber logged on to the city’s website, where he found the live videocast of the meeting. There was, however, a roughly 30-second delay in the broadcast, such that monitoring the exchanges between the council members present in the chamber and those located elsewhere proved exceedingly challenging. There were also multiple technical glitches, as feedback from the headsets worn by some of the participants as well as the occasional multiplicity of open microphones at one time when one of the council members or present staff members failed to deaden his or her device upon the completion of his or her remarks sometimes obscured the substance of what was being said. When some items were voted upon, the outcome was less than clear, as the votes cast by some of the council members could not be heard. Such confusion persists up to press time today, when it appeared that City Clerk Rocha had misrecorded one of Councilman Nickel’s “no” votes as a “yes” vote, which was remarked upon by council members Shorett and Ibarra at the time. It does not appear that Rocha was able to resolve the discrepancy, as she had not responded by press time to an email sent yesterday inquiring as to whether she was able to determine whether she had recorded Nickel’s vote accurately.
The general confusion as to the proceedings rendered problematic the public’s ability to react to the council exchanges, and before the meeting was half over, the substantial crowd that showed up for the meeting had in its entirety left the library lobby just outside the auditorium. Prior to that, as was the case in Hesperia, those members of the public in attendance in San Bernardino were confined to the lobby, where a single small screen television displayed the proceedings inside the chamber and the feeds from the various other participants’ offices and homes. This put those members of the public there into a relatively small, enclosed space in which they were breathing all over one another, a situation absolutely contrary to the direction and intention of the governor’s directive.
Based upon the manner in which the cities of Hesperia and San Bernardino interpreted and applied Governor Newsom’s directive, it does not appear that the competing concepts of open public discourse and the exclusion of the general public from traditional public meeting venues for safety and public health considerations while public business is being transacted can be reconciled.
Certainly, governmental action and precautions to protect the public health are appropriate, and during times of extraordinary threat to public safety, the need for governmental action continues, necessitating that governmental deliberative and legislative bodies continue to function. Nevertheless, allowing that deliberative and legislative authority to proceed on matters beyond routine and emergency operational decisions that extend to impacts on the community extending well beyond any reasonably foreseeable crisis or emergency mode runs the risk of depriving citizens of the exercision of their rights under the U.S. and California Constitutions.
Moreover, time will tell whether the citizenry will tolerate and let stand without legal challenge any action the government takes during such a time of crisis that preempts them from engaging in a meaningful way with those decision-makers in their deliberations and decision-rendering on such issues of abiding public interest.
-Mark Gutglueck

Leave a Reply