Redlands Running Legal Risk By Precluding Public Input At Council Meetings

Chancing potentially costly legal challenges, the City of Redlands more than seven months ago instituted, and this week signaled it intends to persist in, a policy of preventing its residents from directly participating in its city council meetings.
Awareness of City Hall’s exclusion of members of the public from taking an active part in the municipal decision-making process, formerly limited to city officials and a relatively small circle of civically active citizens, has now spread beyond the confines of the 36-square mile, 72,000 population city, raising the prospect that what legal authorities say is a clear violation of California’s open government laws will invite lawsuits relating not just to the policy itself but challenges of the actions the council took at various points since June 2020 when the current policy went into effect.
In March 2020, Governor Gavin Newsom, in an effort to prevent the coronavirus contagion from raging out of control, mandated throughout California the discontinuation of large-scale public gatherings, including traditional meetings of the governing boards of public agencies, such as city and town councils, county boards of supervisors and school district and water district boards. His order waived certain elements of the Brown Act, California’s open public meeting law, specifically those which required that a legislative body meet at a given location, such as the council meeting chamber at City Hall, within the jurisdiction wherein that body has authority. This was intended to allow governing board members to attend meetings remotely, and participate by electronic means.
Most California cities, counties or incorporated townships responded to the order by orchestrating a meeting forum involving a video/audio hookup allowing an interchange between and among the governing board members and the senior managerial and administrative staff of that governmental entity, and providing for an accommodation of resident or citizen input by electronic means as well, most commonly telephonically.
Redlands, like most cities, responded to the COVID-19 crisis and the governor’s mandate by arranging for teleconferencing involving the council and key staff members, allowing them to use their shared video/audio feed to work their way through the agenda, interacting with one another, discussing the items and taking votes. The proceedings are broadcast or otherwise streamed, so they can be viewed in real time and thereafter by the public. Unlike the vast majority of other cities, however, Redlands has not allowed direct and immediate real time public participation to be incorporated into its council meetings. While most other cities arranged to take phone calls during the public comment/citizen input portion of the council meetings, Redlands initially, up until its May 19 meeting, accepted, up until 4 p.m. on the day of the city council meeting, written comments submitted by the public, primarily via email but also including letters written on paper. Regular council meetings commenced at 5 p.m. on the first and third Tuesdays of each month. As of the June 2 meeting, however, the city council required that those written comments be submitted no later than 5 p.m. on the Monday before the city council meeting.
Thus, since June, the city has required that all communication from the public with regard to items on the agenda which are to be voted upon by the city council be submitted 24 hours in advance of the meeting. During the meeting, the comments are read aloud by a city official and the statements are attributed by name to the person making the submission. These statements thus are part of the discussion of the agenda items before they are voted upon. In this way, the in-writing public comments become a part of the public record relating to the consideration of the items discussed and voted upon. If someone wishing to comment on any item on or not on the agenda misses the 24-hours-prior-to-the-meeting deadline, the comments are not read aloud during the meeting, although city officials have indicated that the comments are put into an email that is sent to the council members prior to the meeting. The comments that miss the 24 hours-in-advance deadline, according to Redlands City Manager Charles Duggan, are not considered to be part of the record of proceedings related to each agenda item.
Over the more than seven months that the policy has been in place, disenchantment with the way in which it has abridged public input has festered and grown.
In response to questions posed by the Sentinel, Duggan said the city and city council desire to hear and consider input from the public and Redlands residents.
“We are trying to encourage citizen comment,” Duggan said. “The council wants to hear what our citizens think and have to say. That is why we have the means for them to make written comment in place. Those written comments will be read as part of the proceedings when the council holds its meetings.”
Duggan insisted that the policy the city has developed is a reasonable one that is intended to facilitate the council being able to obtain input with regard to local issues and the items it is voting upon from the city’s residents. He defended the city requiring that the public get comments to the city 24 hours in advance of a meeting by stating that the city had previously provided a much more generous deadline, but that on one occasion there was such an overwhelming number of comments relating to one specific issue that the council decision set to take place that evening had to be postponed because of the time consumed.
“The council’s decision had to be delayed because of that,” he said. “We were overwhelmed with comments. That is why we have gone to requiring the comments by 5 p.m. the day before the meeting.”
The Sentinel queried Duggan with regard to those elements of the Brown Act contained within California Government Code Section 54953 and California Government Code Section 54954.3, asking if he was certain that the policy the city had in place was in compliance with the Brown Act.
Government Code Section 54953(a) states, “All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency.”
Government Code Section 54953(b) (1) holds “Notwithstanding any other provision of law, the legislative body of a local agency may use teleconferencing for the benefit of the public and the legislative body of a local agency in connection with any meeting or proceeding authorized by law. The teleconferenced meeting or proceeding shall comply with all requirements of this chapter and all otherwise applicable provisions of law relating to a specific type of meeting or proceeding.”
Government Code Section 54953(b) (4) states “For the purposes of this section, ‘teleconference’ means a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both. Nothing in this section shall prohibit a local agency from providing the public with additional teleconference locations.”
Government Code Section 54854.3(a) provides that “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.”
Duggan rejected a suggestion that the city’s policy of requiring that the public’s comments be submitted in writing ran afoul of Government Code Section 54953(a) and Government Code Section 54854.3(a).
“We have reviewed the council meeting rules and we have complied with the rules the State of California has in place,” Duggan said.
With specific regard to the Brown Act provision requiring that members of the public be provided an opportunity “to directly address the legislative body,” Duggan said the opportunity the City of Redlands was extending to citizens to submit a comment in writing 24 hours in advance rather than during meetings met that requirement.
Of issue in the controversy is that when a citizen legally challenges a governmental decision after it is taken, the courts have established that the matter being legally contested must have been raised prior to or at the time of the government’s action. By instituting a set of requirements that are contrary to the open government principles in the Brown Act, the ability of residents to engage in a timely raising of those issues is hampered. There is a real question as to whether the City of Redlands would be able to engage in a defense against any future lawsuits brought by a citizen or resident challenging a specific city council action by asserting that no a priori challenge of the city’s action was made, given that the city is strewing obstacles in the way of members of the public who are trying to raise such issues in the forum of a city council meeting. Of crucial interest to a court or judge hearing a lawsuit brought against a governmental entity such as a city relating to action it took is whether the public record of the city’s proceedings reflects that anyone protested or in some fashion objected to the action at the heart of a legal action at the time the legislative body’s vote on the matter took place.
In this regard, the Sentinel asked Duggan whether the public record relating to an issue considered and voted upon by the city council would include the comments submitted prior to the meeting but after the 24-hours-in-advance-of-the-meeting deadline.
Duggan said it would not, even though such late comments “would be put into an email to the council members given to them prior to the meeting. Those comments would not be part of the public record for the meeting. It would be considered the same as when someone wanted to comment but missed the meeting and came in the next morning, after the decision was made and the vote taken. That would be a late statement and would not be part of the record of the meeting.”
Duggan said there is minimal discontent with the policy, as evinced by the consideration that only two Redlands residents have complained about it.
The City of Redlands’ policy with regard to public participation in the hearing process before the city council violates the Brown Act on multiple points, according to David Snyder, at attorney with the First Amendment Coalition in Sacramento.
The city’s imposition of the requirement that comments be made in writing in advance of the meeting is out of keeping with California law relating to open public meetings, Snyder said.
“One requirement of the Brown Act is the public has the right to directly address the legislative body, and that means talking to the legislative body at issue in real time,” Snyder said.
Snyder said it appears that what Redlands has done is taken Governor Newsom’s relatively narrow waiver of elements of the Brown Act to facilitate the holding of remote meetings and widened it to obviate parts of the Brown Act that remain intact.
“All legislative bodies, including the legislative body at issue here, have traditionally had to have a quorum in a physical location within their respective jurisdiction, so when the Redlands City Council’s members were meeting, the council or a quorum thereof had to actually be in Redlands or at City Hall,” Snyder said. “The governor’s executive order waived that requirement so all members could be at home and still conduct their meetings remotely. The governor’s order made it easier to hold meetings remotely, but it did not waive the requirement that the public has the right to address the body.”
Snyder continued, “The governor’s order allows for the holding of teleconference meetings and waived some of the Brown Act’s provisions relating to having a quorum present in a single location in order to hold a meeting. The waivers were very limited. That has nothing to do with the public directly addressing a city council or school board. The governor’s order does not change that right. The city cannot limit the public’s right to directly address the council by requiring the comments to be in writing 24 hours before the meeting takes place. Direct access to a legislative body was not one of the public’s rights that was waived by the governor.”
What Redlands is engaged in, Snyder said, is a carryover of what many of the state’s cities attempted to do in the immediate aftermath of Governor Newsom’s mandate last March, but ultimately failed in doing, which was to dispense with complying with the Brown Act wholesale by claiming hardship.
“City after city made the claim that transitioning to remote meetings meant they could not comply with the Brown Act’s provisions because in dealing with the limitations of the pandemic, compliance logistically could not be pulled off,” Snyder said. “That argument is not persuasive ten months in.”
Requiring Redlands residents or the public in general to submit input to the city council on action it is considering in writing in advance “does not meet the requirements of the Brown Act. The public has a right to directly address the legislative body. That is the opportunity the public has to tell the city council or school board in person what they think about what that body is doing. Direct interaction is critical, I think, to the operation of local government. When they disallow real time questions and comments and force the public to have to put its thoughts in writing, it makes it much easier for those elected leaders to disregard those comments. They don’t even have to pretend they are paying attention. The public’s input is much more powerful and clear when words are heard directly from those who have come forward to have their positions known. That is not just a technical requirement but foundational to the right to speak to the legislative body in real time. It is the responsibility of city councils and school boards to figure out how to conduct meetings where that direct interchange can take place despite the pandemic.”
Snyder said, “I don’t discount that there are logistical headaches with transparency. It is not always convenient. The Brown Act itself has requirements that have always been logistically difficult. There has always been a need for transparency, which is sometimes very challenging for elected officials to achieve, but it is something the law requires government to deal with.”
Adherence to the Brown Act is not an abstract principle, Snyder said.
The Brown Act, as embodied in the Government Code Sections from Section 54950 through Section 54963, carries with it the weight of law, Snyder said. Government Code Section 54959 states “Each member of a legislative body who attends a meeting of that legislative body where action is taken in violation of any provision of this chapter, and where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled under this chapter, is guilty of a misdemeanor.”
Criminal prosecutions under the Brown Act, while not absolutely unheard of, are rare, as most district attorneys are reluctant to criminalize public officeholders for action or lack thereof taken in the course of public service. Generally, prosecutors will seek to cure any misdeeds by means of a notation of the offending action and a stern directive to cure the transgressions in the future. Still, the existence of the law gives those wishing to pursue civil action recourse against any officials or bodies which can be demonstrated to have violated the Brown Act.
“Every member of the public has a right to be heard on any matter to be considered that is the subject of a city council’s decision,” Snyder said. “The City of Redlands is definitely exposing itself to legal liability and the possibility of a lawsuit when it does not allow someone to comment. If such a suit were to be filed, the city could be found to be in violation of the Brown Act. That would form the basis of a judgment against the city.”
Snyder said the city’s assertion that it can dispense with public comments being taken during a meeting because at one meeting or another there was what some city officials deemed to be an excessive number of people seeking to participate in the process by offering comment to the city council would never hold up if it were legally challenged.
“Long lines of residents filing in to offer their comment to a legislative board happen all the time,” Snyder said. “City council meetings often run late. It is the city council’s obligation to figure out a way to both conduct meetings in as expeditious of a manner as possible and still honor the rights the public has under the Brown Act. These are challenges cities have had before the COVID pandemic. If city officials have 200 people who want to comment, they have to deal with that. The courts have upheld speaking limits of two or three minutes for a single person. If there are too many people to accommodate, a legislative body might have to hold a second session. A legislative body might not be bound to accommodate every person in allowing everyone unlimited comment, but a legislative body cannot take allowing people to comment or provide input off the table because it was a hassle in one instance. A city has to provide people with the ability to comment in real time. Those are obligations the city has to work out. This practice of requiring written comments be submitted before the meeting does not meet the letter of the law and it does not allow members of the public to address their concerns directly to the body.”
The Sentinel has received, but has not been able to verify, reports that Redlands city officials changed, altered, edited or redacted portions of the written submissions prior to their being read during the course of some of the council’s meetings. The justification for the alterations given, the Sentinel was told, was that some of the written statements contained inaccuracies and the city did not want to put city staff members reading those statements in the position of uttering falsehoods publicly.
If that occurred, Snyder said, “It highlights the problem with the city’s policy. There is no requirement that comments to a legislative body or governing board be 100 percent factually accurate or non-offensive to the legislative body. If they are editing and censoring what residents are telling them, that illustrates why this is an illegal process. It is not the place of the government to censor its citizens when they say something the government considers to be inaccurate. Requiring the public to submit its statements in advance of an open public meeting presents the opportunity for the city to censor and change comments, which city officials are not entitled to do.”
The cure Redlands should apply at once, Snyder said, is to “have people call in by phone. There are hundreds of legislative bodies that are doing that now. The burden is on them to figure out a way to handle the logistical issues. They are not entitled to wipe out the public’s ability to comment because allowing for that comment to take place is a hassle.”
The Sentinel this week sought to contact Redlands’ elected city clerk, Jeanne Donaldson, to determine if she was involved in the derivation of the city’s current policy relating to how citizen input on issues discussed an/or voted on by the city council is dealt with. She was not available at City Hall this morning.
The city council agenda, which is a product of Donaldson’s office, implies but does not explicitly state that the policy is Duggan’s brainchild.
“Following public health recommendations to limit public gatherings during the Covid-19 pandemic, City Manager Charles M. Duggan Jr., acting as the City of Redlands’ emergency services director, has directed that city council/successor agency meetings be closed to the public until further notice or until the current local state of emergency has been lifted,” the agenda reads. “The council chamber will not be open to the public during the city council/successor agency meetings.”
Set off in the next paragraph, the agenda continues, “In order to have your public comment read into the public record at the meeting, members of the public are asked to submit comments up until 5 p.m. the day before the city council/successor agency meeting by email at or through the public comment form on the city’s website at”
The Sentinel phoned and then sent an email to Redlands City Attorney Dan McHugh, seeking to learn from him if he was the architect, or one of the architects, of the policy that requires that citizens, residents or anyone else seeking to have input with regard to matters the city council is considering and is to vote upon provide their comments and/or questions in writing 24 hours prior to the meeting.
The Sentinel asked McHugh if it was his position that the city can deny citizens who want to provide input verbally the ability to participate in the council meetings, and whether he considered the 24-hours-prior-to-the-meeting submission deadline for public comments to be a reasonable one that is in compliance with the Brown Act and all applicable law.
The Sentinel inquired of McHugh what his confidence level was as to the city’s ability to legally defend excluding that input from the public record if it is submitted to the city after the 24-hours-in-advance-of-a-council-meeting deadline. McHugh was further asked why the city does not allow for telephonic contact between members of the public and the council during meetings, and whether that policy had evolved out of an effort to prevent prolonging the meetings or because doing so would entail some order of logistical complication.
The Sentinel asked if the city maintains that Governor Newsom’s order restricting the parameters of public meetings justifies the policy of having the public submit its comments on city council items in writing 24 hours in advance and if he could cite anything in the governor’s order which waives that element of the Brown Act requiring governing boards/legislative bodies to provide for direct interaction with the public during their meetings.
McHugh was asked to respond to Snyder’s contention that the city is misinterpreting the spirit of the governor’s order to limit public participation in a way that the governor did not intend and which goes beyond the purpose of the mandate intended to protect the public from the rapid spread of the coronavirus.
McHugh did not respond.
Councilman Eddie Tejeda told the Sentinel that the city council had been guided in implementing the city council’s policy with regard to public participation in the city council meeting proceedings “by the city manager and city attorney. We have been following their advice.”
Asked if he was confident that the city’s policy would pass legal muster if a citizen or residents were to challenge the city in court, Tejeda said, “I’m not an attorney. I have no idea.”
Told that some city residents objected to the policy and that the First Amendment Coalition’s legal counsel maintained the practice was contrary to the Brown Act, Tejeda said, “I would like to talk to the city manager and city attorney about it. I have not heard anything to suggest the way we are doing this is a problem. I think the city council should look at this to consider whether we should change the policy.”
-Mark Gutglueck

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