Morro Bay City Council Meetings & the Brown Act

By Kari Olsen

Synopsis: Residents have asked the City to tackle alleged Brown Act violations and improve government openness and transparency by adopting a "sunshine ordinance" that would expand on the State's basic rules for public meetings and access to public records.

The City of Morro Bay's handling of public comments at city meetings has been criticized by residents, some of whom have alleged California Brown Act violations.  Issues cited have included the occasional reduction of the comment time from three minutes to two, or even one, statements that speakers must confine their comments to items on the agenda, failure to provide a separate public comment period for each agenda item, and what has been perceived as unequal treatment of speakers who run over the time allotted.  Some are gently prodded to wrap up their comments, but are allowed to finish.  Others have received less lenient treatment.  On occasion, the Mayor has ordered the microphones turned off and called a halt to meeting proceedings in order to stop a speaker who failed to yield the floor when the three-minute time limit was reached.

Limitations

At the October 14 Joint Powers Agreement (JPA) Board meeting, Morro Bay's failure to provide a separate comment period for each agenda item was again challenged.  A resident indicated that he had two specific concerns.  One was that a single public comment period at the beginning of a meeting, with a three-minute-per-resident time limit, may not allow enough time if the resident wishes to comment on several agenda items.  The second problem is related to the fact that discussion and presentations during the meeting may provide information that residents need in order to formulate their comments, but the public comment period is at the beginning of the meeting, before those discussions and presentations occur.

The California Brown Act addresses the public's right to participate in all phases of local government decision making.  The Act mandates the public's right to attend public agency meetings, and includes provisions to curb misuse of the democratic process by secret legislation of public bodies.  It was noted at the October 14 JPA meeting that there may be a difference of opinion between Tim Carmel, Cayucos City Attorney, and Rob Schultz, City Attorney for Morro Bay, with regard to interpretation of the Brown act requirements for public comment.  Schultz has reportedly held that a single public comment period is legal under the Brown Act, while Carmel has supported the stance that separate comment must be allowed for each agenda item. 

The California Brown Act—Chaffee vs San Francisco Library Commission

An appellate court decision made several years ago may provide support for Carmel's position.  The appeal, case A102550, heard in San Francisco Superior Court, dealt with a case involving public comment for items that are continued from one meeting to the next.  The appellant, James Chaffee, held that if an agenda item is continued to another meeting, two public comment periods must be provided—one at the meeting at which discussion of the item begins, and a second at the meeting at which discussion of the item continues. His opponent, the San Francisco Library Commission, disagreed, stating that one public comment period per agenda item was sufficient.

Chaffee lost his case, but comments from the court included this one: "When the Brown Act and the Sunshine Ordinance (a law specific to the city of San Francisco) are read in their entirety, we conclude that the lawmaking bodies clearly contemplated circumstances in which continuances and multiple sessions of meetings to consider a published agenda would be required, and thus they mandated that a single general public comment period be provide per agenda, in addition to public comment on each agenda item as it is taken up by the body."

At its September meeting, the JPA Board decided that a discussion of Morro Bay's handling of public comment at JPA meetings would be on the October agenda, but as noted by the resident who complained at the October meeting, it was not there.  A discussion ensued, and Morro Bay Mayor Janice Peters asked if the item might be added. 

Length of Agenda Excuse For Not Discussing Handling of Public Comments

Schultz said that it could not, and told the Board that the item was not on the agenda because of the length of the meeting and the number of items that were more important and had higher priority.  Schultz said, "We knew about it but just made a decision not to schedule it for this one but the next.  Carmel offered a different reason, stating, "I think it was an oversight and it'll probably be on the next agenda."

While the public comment issue might not have been considered high priority by some of the staff, others at the meeting, including Morro Bay Councilmember Winholtz, expressed a different view.  Winholtz told the staff that if the Board thinks an item is important enough to be on the agenda, but the staff doesn't want to include it, they should consult with the Board.  "Ask us, please," she said.

Maybe a Little San Francisco Sunshine Would Help

There was no discussion of whether decisions made on how Morro Bay handles public comment at JPA meetings will apply to other City meetings, but some residents have expressed hope that will be the case.  Some have long asked that the City not only do a better job of adhering to the Brown Act, which has been allegedly violated, but that the City go even further and enact a "sunshine ordinance."  San Francisco's ordinance has been heralded as one of the best, and suggested as a model.

The framers of that ordinance explained its purpose in the following statement:  "Although California has a long tradition of laws designed to protect the public's access to the workings of government, every generation of governmental leaders includes officials who feel more comfortable conducting public business away from the scrutiny of those who elect and employ them. New approaches to government constantly offer public officials additional ways to hide the making of public policy from the public. As government evolves, so must the laws designed to ensure that the process remains visible." The ordinance includes comprehensive rules for public meetings and access to public records.

The San Francisco Ethics Commission requires that "All City Officials, Department Heads and employees who are required to file an annual Statement of Economic Interests with the Ethics Commission must annually:  Read the San Francisco Sunshine Ordinance; Attend a training session on the Sunshine Ordinance; and File a signed declaration with the Ethics Commission stating, under penalty of perjury, that they have read the San Francisco Sunshine Ordinance; and that they have attended or will attend when next offered, an annual training session on the Sunshine Ordinance."

While Morro Bay may not yet have achieved San Francisco's status with regard to open and transparent government with full citizen participation, Morro Bay residents may take comfort in knowing that some of the alleged sins of its elected officials dim beside those of some other California cities.

Censorship—Outtakes, Mute Buttons, and Trap Doors

A September 22 article in the Los Angeles Wave states, "Seen by some residents as another attempt to silence their voices, the city council voted 3-1 to remove the public comment segment from its local cable telecasts." and, "Public policy experts are also troubled by the Council's action, which a number of other Southland cities have contemplated but quickly abandoned when their outraged constituencies reacted. Only one city countywide is known to edit TV broadcasts of public meetings."  One resident was quoted as saying that the action was taken to prevent the public from hearing criticisms of public officials leveled during the meetings, and issues that officials want to keep out of the public eye.

According to an October 13 article in the Daily Breeze, "The District Attorney's Office has warned Carson Mayor Jim Dear to stop using a mute button to silence speakers at City Council meetings."  The article notes that the mayor was allegedly using the mute button to silence speakers when he didn't like what they were saying.  The article goes on to say that officials at the District Attorney's office indicated they were not "convinced that use of a mute button to silence the broadcast of public comment is the least restrictive means by which to accomplish the important governmental interest of orderly and efficient decision-making."  and, "Were that the case, then a trap door might be a reasonable alternative to the mute button."

Citizen Input Important

Residents of Morro Bay will likely encourage their officials to avoid following the examples set by their peers in Compton and Carson, and to follow instead in the footsteps of San Francisco and of Berkeley, which is considering a new sunshine ordinance.  A September 26 San Jose Mercury News commentary by Thomas Peele discusses aspects of the proposed Berkeley ordinance, and the need for one in nearby Alameda.  Indicating his support for sunshine ordinances in general, the author states, "The state's Public Records Act and its open meeting law, the Ralph M. Brown Act, are the minimum transparency requirements a government must employ. Nothing stops a county, a city, a water district or any government entity from passing local rules that improve upon them.  And there is no question that improvements to access are needed everywhere."