City Attorney Ducking Questions On Legality Of Redlands’ Abridgement Of Public Comment

Two weeks after he was invited to do so, Redlands City Attorney Dan McHugh has yet to mount a defense of the policy that Redlands City Manager Charles Duggan has put in place preventing the city’s residents from directly participating in city council meetings.
In March 2020, Governor Gavin Newsom issued a blanket order restricting large public gatherings from taking place as part of an effort to prevent the unmanageable spread of the coronavirus. In doing so, Newsom waived certain provisions of the Brown Act, California’s open government and public meeting law, specifically those which required that legislative bodies such as city councils, county boards of supervisors and agency directors such as school district and water district boards meet in a single physical location within the boundaries of the jurisdiction that particular legislative body represents. That waiver was made so the bodies in question could meet remotely by electronic means or teleconferencing. The governor in giving his order did not waive the requirement that those bodies accommodate members of the public in providing their input with regard to the issues or matters which the body in question is to take a vote on or enter a decision about.
Some cities facilitated the public participating directly in the electronic or online meeting process by supplying access codes to the citizenry which allow them to take part in the teleconferencing. Other cities and agencies gave the public telephonic access to the meetings, providing a public comment period during which phone calls were taken to allow those callers to weigh in on the topics or items being discussed at that particular meeting, prior to the city council’s or board’s decision being rendered through a vote.
A relatively smaller sampling of cities used more restrictive means with regard to public input; among those was Redlands. Redlands did not allow residents or the general public to phone in during the meeting, but instead required that members of the public wishing to address the city council with regard to the issues that panel was to discuss or vote on submit comment in writing, either by email or in a hard copy letter form by 4 p.m. the day of the meeting. A city employee would then read those statements submitted prior to the deadline during a designated portion of the meeting. After the city council’s May 19, 2020 meeting, that policy was changed to a requirement that the comments be submitted 24 hours in advance of the meeting. Those statements submitted after the deadline are not read and do not become part of the public record.
City officials said the policy was intended to allow citizens to communicate with the city’s ultimate decision-making panel, the city council, in a meaningful and timely fashion. A number of residents, open government advocates and legal experts, however, have pointed out that the policy constitutes a violation of the Brown Act, specifically those elements of the law which had not been waived by the governor. Those provisions of the Brown Act yet in place require that members of the public be afforded the opportunity to directly address governing boards during their meetings.
According to David Snyder, an 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.
“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 in real time at the time it is about to vote,” Snyder said.
Snyder said it appears Redlands city officials took Governor Newsom’s relatively narrow waiver of elements of the Brown Act to facilitate the holding of remote meetings and widened it to illegally obviate parts of the Brown Act that remain intact.
Snyder said, “The governor’s executive order waived the requirement…that all legislative bodies have a quorum in a physical location within their respective jurisdiction… [and that] a quorum of the council had to actually be in Redlands or at City Hall. The governor’s order and waiver made it possible to hold meetings remotely, but it did not waive the requirement that the public has the right to address the city council. 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.”
Snyder said the Brown Act ensures “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. 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.”
Adherence to the Brown Act is not an abstract principle, Snyder said. The Brown Act, as embodied in the California Government Code 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.”
Though criminal prosecutions under the Brown Act are rare, Snyder said, the law itself and its language gives those wishing to pursue civil action recourse against any officials or bodies which can be demonstrated to have violated the Brown Act.
“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,” Snyder said. “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 logistical problems relating to accommodating large numbers of citizens wanting to address the city council with regard to action the council is to take exacerbated by the complications brought on by incorporating precautions relating to the spread of COVID-19 will not suffice as a legal justification for precluding the public’s rights to participate in the public decision-making process.
“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. 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 that 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.”
On January 21 the Sentinel phoned Redlands City Attorney Dan McHugh, seeking to engage with him in regard to the legality or illegality of the City of Redlands’ public participation policy for city council meetings and hearings. McHugh did not return the call and the Sentinel followed up with a letter/email to him on January 22.
The email inquired as to whether he was the architect, or one of the architects, of the policy that requires the pubic to provide comments and/or questions regarding pending city council action in writing 24 hours prior to the meeting, and if it was his position that the 24 hours-prior-to-the-meeting submission deadline for public comments was a reasonable one that is in compliance with the Brown Act and all applicable law.
The Sentinel further asked McHugh if he was prepared to defend the city against any legal challenge that might arise from the city excluding input that arrived after the 24 hours-in-advance deadline from the public record of the city council’s consideration/approval of an item on the council agenda.
The Sentinel asked McHugh what the city’s rationale was for not allowing for telephonic contact between members of the public and the council during meetings.
The Sentinel requested from McHugh a citation of any specific language in the governor’s order which waived that element of the Brown Act requiring governing boards/legislative bodies to provide for direct interaction with the public during their meetings.
McHugh did not respond to the Sentinel.
Redlands City Clerk Jeanne McDonald did consent to speak with regard to the issue, acknowledging that “We [City Hall] flipped a little bit” in changing the deadline for submitting written comments from 4 p.m. on the day of the meeting to 24 hours in advance.
Without directly addressing why the city, in the face of resident discontent, did not reinstitute the same day deadline for providing written comment to the council, Donaldson defended keeping the 24-hours-in-advance deadline by saying, “It’s something we don’t want to change too often. We might start confusing people. At this point people are very familiar with those guidelines.”
She did not offer an explanation as to why the city had changed from the same-day deadline to the 24-hours-in-advance deadline.
Donaldson said she had taken the liberty of having comments that arrive too late for inclusion at one meeting read at the following meeting.
“What I have done with people who miss the deadline generally, unless they tell me otherwise, is have their statements read at the next meeting,” she said. “Some have not wanted me to do that, but for the most part, things that are submitted the day of the meeting are read at the next meeting.”
She acknowledged that in many cases the input offered by residents is time sensitive, as the council’s decision relating to many things takes place the day those items are first on the agenda.
As to Redlands’ requirement that citizen input be provided in writing rather than the city receiving phone calls from residents during the course of the meeting, as is being done with most other cities, Donaldson said, “We are trying to work toward” accepting calls from city residents during the course of meetings.
She said she did not have the technical expertise to know how the phone calls could be incorporated into the city council’s videoconferencing, saying that was something that needed to be handled by the city’s information technology department.
As to how the city arrived at the policy it now has, she said “It was a joint decision” involving City Manager Charles Duggan, City Attorney Dan McHugh, herself and some department heads. “We wanted to be fair,” she said. “We wanted to make it procedurally doable. It was what we came up with.” Nevertheless, she said, it was Duggan who had led the discussion, pushing toward the ultimate derivation of the policy.
“He is the city’s emergency operations director, and the ultimate decision-maker for those kinds of things,” Donaldson said.
With regard to Snyder’s contentions that the city’s policy is out of step with the Brown Act, Donaldson said, “I would have to defer to the city attorney. I can’t really respond to that with any kind of expertise.”
She said the city, city staff and the city council were being guided by McHugh, and were proceeding under the assumption he was offering competent legal direction.
“I believe we do comply with the Brown Act, within the guidelines of the governor’s orders,” she said.
Donaldson took exception to Snyder’s assertion that Redlands is out of compliance with the Brown Act and had run afoul of the law by not allowing for an exchange between the public and the city council during the council meetings.
“There is no dialogue that goes on between the public and council,” she said, asserting that has always been the case. “That was the way it was before COVID. The public could get up and they did have their time to speak, but there isn’t a dialogue between the public and the council. The public speaks and that is for the record. After that, the council has a discussion. There really is not an ongoing dialogue during the meetings.”
Donaldson said that the custom of the council not involving itself in a discussion with the public during the course of meetings was intended to ensure compliance with the Brown Act, which requires that all issues discussed by the council be agendized prior to the meeting. The public often strays into areas not on the agenda, she said, and if the council were to involve itself in expostulation and reply with citizens, the council would find itself discussing things that were not on the agenda.
-Mark Gutglueck

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