I asked on February 23rd; What’s it going to take to get Santa Ana to follow the open meeting laws? It wasn’t meant as a rhetorical question, but it’s turning out that way. At the April 4th meeting of the Santa Ana City Council, Mayor Miguel Pulido managed to run off the beaten path and started requiring people to state their addresses before the cameras in order to deliver public comment.
I’m guessing that his sudden urge for such information was because a number of people had shown up to protest Elephant Rides at the Santa Ana Zoo, and he presumed that most of the speakers didn’t live in the city. Not that matters when it comes to public comment. Because I wanted to give him the benefit of the doubt I sent him an email.
The new City Attorney Joe Straka responded for Mayor Pulido and it seems that he has about as much of a clue about the Brown Act as former City Attorney Joe Fletcher had. None. So I checked with an expert, Terry Francke General Counsel of Californians Aware.
Terry pointed out to me that in his opinion, “the Brown Act requires that the agenda for local government bodies’ meetings provide an opportunity for members of the public to address a body on matters subject to its authority, and that regulations of the opportunity to speak be “reasonable.” Disclosure of one’s address cannot reasonably be made a mandatory precondition to one’s right to address the body.
“Since the right to anonymous attendance at a meeting is so comprehensively and emphatically established in Government Code Section 54953.3, and since the right to anonymous political speech has been consistently affirmed in US Supreme Court decisions under the First Amendment (e.g. Talley v. California (1960) and McIntyre v. Ohio Elections Commission (1995)), making self-identification a mandatory precondition of speech in a public meeting is statutorily and constitutionally impermissible without a compelling state interest, which is absent here,” Francke said.
The bottom line here is that a person who wishes to speak before a City Council, or any government body, cannot be required to disclose his or her home address publicly as a mandatory precondition. Such a requirement places them at personal risk of harassment, intimidation, or retaliation.
Mayor Pulido has been around for a while. He knows this stuff. What was he thinking?
Below is my correspondence with Mayor Pulido and City Attorney Joe Straka on the matter.
A Santa Ana resident called to my attention what appears to be a possible violation of the Brown Act that occurred at the April 4, 2011 meeting of the Santa Ana City Council.
You announced to those in attendance at the start of public comment and at several times during public comment that those addressing the Council must state their name and address for the record.
Such a requirement is in violation of Government Code 54953.3: “A member of the public shall not be required… to register his or her name, or provide other information”…
I therefore request an explanation of why such a requirement was enforced at the April 4, 2011 meeting? Further, how do you plan to cure this violation and prevent such violations from occurring in the future?
I plan to report on this matter soon, so a response from you, the City Attorney, or the City Clerk on Friday, April 8, 2011 would be greatly appreciated so that I can reflect your response in my story.
City Attorney Joe Straka responded on Friday evening:
Dear Mr. Prevatt,
I have reviewed your email from last evening. I disagree that any potential violation of the Brown Act occurred relative to the public comments portion of the city council meeting of April 4, 2011. I believe that your citation of Government Code section 54953.3 omits an important section of the statute relevant to the facts at hand. It also appears that you fail to consider other provisions of the Brown Act which give cities authority to adopt reasonable rules of decorum.
The complete text of the relevant portion of section 54953.3 states as follows:
“A member of the public shall not be required, as a condition to attendance at a meeting of a legislative body of a local agency, to register his or her name, to provide other information, to complete a questionnaire, or otherwise to fulfill any condition precedent to his or her attendance.
It is clear that the statute precludes the requirement that an individual register his or her name “as a condition to attendance” or “a condition precedent to his or her attendance” at a meeting of the legislative body of a local agency. At no time was such a requirement imposed during the council meeting of April 4, 2011.
Additionally, although not specifically addressed by the Brown Act, the “Request to Speak” form that persons who desire to address the council are asked to complete clearly states that “Providing the following information is strictly voluntary.” Identification of the speaker is included in that voluntary information.
Moreover, nowhere in the Brown Act does the legislature prohibit the public agency from requesting that a speaker provide identifying information, which is all that occurred at the council meeting. In fact, Government Code section 54954.3, subsection (b), allows a local agency to adopt reasonable regulations for the conduct of public comment, including, but not limited to, regulations limiting the total of amount of time allocated for public testimony on particular issues and for each individual speaker. Legislative bodies throughout the State do in fact make requests similar to that made by the Mayor of persons during the public comment portion of their meetings.
I hope the above satisfactorily addresses your concerns. I do appreciate your inquiry. Please feel free to contact me should you desire to further discuss this matter.
Interim City Attorney
City of Santa Ana
My Response to Straka
Thank you for getting back to me. If the collection of the name and address on the speakers form is voluntary, then certainly the collection of that information from the speaker would be equally voluntary.
Mayor Pulido however requested name and address from the speakers on numerous occasions. When one speaker objected, he insisted that they had to provide the information since they had not filled it in on the card. Disclosure of your name and address, publicly on live TV, as a requirement for speaking before elected officials, is neither an allowable or reasonable regulation of public comment under the Brown Act. If you require someone to record their name and address to speak at a meeting you are also requiring them to provide that information as a condition of attendance.
It is my understanding that a member of the public may identify themselves as “Anonymous” and be able to speak before a government entity during public comment. A person cannot be anonymous if he or she is also required to state their name and address when speaking. The fact that the chairman of the meeting allowed some people to state their city of residence, even thought he requested their address, does not mitigate the fact that as the chair he directed speakers that they had to provide information that, as indicated by the speakers card, is purely voluntary.
I respectfully suggest that you may wish to reconsider your position.
I have a copy of the speaker instructions on the speaker card rev(6-09) If there is a more recent version I would like a copy please. In reviewing the version I have several things are clearly apparent. If the provision of name and address is purely voluntary, that only the name will appear in the minutes, and nowhere on the form does it say that the speaker will be required to provide the voluntary information in public and on video tape. The card establishes that the speaker is to follow the instructions of the chair and maintain the decorum of the meeting.
So I have to ask for further clarification of what the city’s definition of voluntary provision of Name and Address is? On the one hand the card states it is voluntary yet, in practice at the April 4th meeting, such information was required to be stated “publicly and for the record.” At no time were speakers told that compliance with the Mayor’s instruction to provide address was voluntary.
I’ve heard nothing further from Mr. Straka or anyone else at the city as of Monday evening.