Speaking objections

This week, two comments on . . . public comments.


Imagine the following scene:

It’s Tuesday, March 7, around 7:00 p.m.

Having just held an anti-Trump rally on the steps of City Hall, a gaggle of protesters marches up the stairs to Council chambers and awaits an opening during the period reserved for “oral communications, non-agenda (public comment)” to present their resolution demanding the president’s impeachment.

But when the appointed time arrives, Mayor Trish Spencer holds up her hand before the first speech-maker can begin.  “As you know,” she says, “the Brown Act, Government Code section 54954.3, requires a Council agenda to ‘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 of the legislative body. . . .’”

She then picks up a document entitled, 78 Ops. Cal. Atty. Gen. 224 (1995), and continues:  “Our state Attorney General has opined that

[t]he statute does not grant the public the right to comment on matters outside the legislative body’s subject matter jurisdiction.  To conclude otherwise would require us to change the language of section 54954.3 to, for example, ‘within or without the jurisdiction of the legislative body.’”

The Mayor then looks at City Attorney Janet Kern, sitting at the end of the dais.  “Madam City Attorney,” Ms. Spencer asks, “is the impeachment of the president within the subject matter jurisdiction of the Alameda City Council?”

Ms. Kern takes a deep breath.  “My office would need to research this issue exhaustively to provide a definitive answer,” she replies.  “But I will tell you that we have reviewed both the City Charter and the Municipal Code sections regarding the powers of the City Council, and we have found nothing that gives Council jurisdiction over the subject matter you describe.”

“In that case,” the Mayor declares, “I regret that I must rule out of order any public comments about impeaching the president.”

Immediately, Vice Mayor Malia Vella and Councilman Jim Oddie leap up from their adjacent seats: “You can’t do that!” they exclaim to Ms. Spencer.  “It’s unconstitutional!”

The Mayor remains calm.  “I’m glad you brought up the Constitution,” she says, “because the Attorney General considered that issue, too.”  Again, she turns to the document in front of her and reads from the text, omitting the case citations:

[A] city council meeting constitutes a “limited public forum” where the Legislature may properly limit the matters to be addressed by the public to those topics “within the subject matter jurisdiction of the legislative body,” as it has done in section 54954.3.  The provisions of section 54954.3 are thus consistent with both the federal and state Constitutions.

Pandemonium ensues.  A man wearing a beret and an ESPN blazer starts yelling, “Sarah Palin! Sarah Palin! Sarah Palin!” at the Mayor.  Others in the crowd hurl even more pejorative epithets.  Finally, Public Works Director Bob Haun grabs Ms. Spencer by the arm and, preceded by a phalanx of police officers, hustles her out of the room.

Can’t happen, you say?

Well, of course, you’re right:  no politician would ever dare to exacerbate the ire of the City’s self-proclaimed “progressives” by defying them so boldly.

Nevertheless:  Everything we’ve put into the mouths of the Mayor and the City Attorney happens to be true.  The Attorney General did issue an opinion in which he upheld the legality under the Brown Act of limiting public comments to matters within the subject matter jurisdiction of the legislative body.  And he did conclude that such a limitation was constitutional.  (So, BTW, did the federal Ninth Circuit Court of Appeals.)  Likewise, the Alameda City Charter and Municipal Code don’t purport to give the Council jurisdiction over matters such as impeaching the president.

But, remember, this is the Alameda City Council–2017 edition, where ideology, not law, rules the day.


The Merry-Go-Round may have been the only one to notice, but at the last two Council meetings, Mayor Spencer has begun the “oral communications, non-agenda (public comment)” period by reading a statement before calling the first speaker.

It goes like this:

The State Brown Act and our City’s Sunshine Ordinance prohibit the City Council from engaging in a discussion with speakers who raise issues and concerns at this point on the agenda.  Open government means that the people must be told in advance what items the Council will be discussing so that any and all interested persons can attend the meeting and speak.  Only those agendized items are discussed.  This part of the agenda allows persons to raise other non-agendized issues [and] there is no discussion allowed.

This statement surely was written for, rather than composed by, Ms. Spencer.  But what’s going on here?

As a matter of law, the statement is misleading.  As a matter of policy, it is misguided.  And who thought such a statement was necessary in the first place and why did they think so?

First, the legal issue.

It is true that the Brown Act, Government Code section 54954.2(a)(3), states that, “No action or discussion shall be undertaken on any item not appearing on the posted agenda. . . .”  But the context makes clear that the statute is referring to discussion among the members of the legislative body, not dialog between a public speaker and a legislator.

Indeed, the text flatly contradicts the proposition that any exchange between the citizenry and Council – or City staff – during the public-comment period is prohibited.  The sentence quoted above states, after the ellipsis, that “members of a legislative body or its staff may briefly respond to statements made or questions posed by persons exercising their public testimony rights under Section 54954.3.”  In addition, “in response to questions posed by the public,” a legislator or staffer “may ask a question for clarification, make a brief announcement, or make a brief report on his or her own activities.”

The fact is that, despite the contrary message being conveyed through Ms. Spencer, neither she nor any other Council member would violate the Brown Act (or the Sunshine Ordinance, which contains substantively identical language) by answering a question asked, or replying to an assertion made, by a public speaker.  And, as far as we’re concerned, this is as it should be.

We are long-time fans of “question time” during British parliamentary sessions, when any member of the House of Commons gets the chance to grill a government minister, including the prime minister, on any issue before the body.  We wouldn’t go so far as to recommend that Alameda adopt a similar practice for Council meetings, but, still, we think a little back-and-forth between a citizen and a Council member during the public-comment period could be valuable.

For example, it didn’t escape our attention that the closed-session agenda for Tuesday’s Council meeting includes an item about “labor negotiations” with firefighters’ Local 689 over “salaries and terms of employment” – even though its contract with the City doesn’t expire until December 2021.  This leads us to expect that, very soon, it will be payback time for those Council members whose campaigns were funded by the local firefighters’ union and its allies across the state.

When that time arrives, we think it would be perfectly appropriate for a citizen to ask Vice Mayor Vella and Councilman Oddie during the public-comment period just how much cash (and other contributions) each of them took from organized labor (including Alamedans United) to get elected to Council on the first try.  And it also would be perfectly appropriate for Ms. Vella and Mr. Oddie to reply by attempting to rebut any presumption of bias arising from their reliance on union money.

Of course, the practice of permitting interaction between citizens and Council members during the public-comment period can be abused.  The most egregious example that comes to mind occurred during the hearing before Council on the voter-sponsored initiative to protect Crab Cove from residential development.

At one point during the public-comment period, Mayor Marie Gilmore stopped one of the initiative’s leading proponents from leaving the podium after she had finished her remarks and demanded an explanation for what the Mayor – incorrectly – identified as an inconsistency in the speaker’s presentation.  Ms. Gilmore then turned the floor over to City Manager John Russo, who proceeded to cross-examine the speaker – condescendingly – about another supposed flaw in her argument.

The next person who spoke, former City Council member Karin Lucas, got similar treatment.  Again, the Mayor told the speaker to remain at the podium.  Again, Ms. Gilmore rebuked her for taking a position with which the Mayor disagreed.  And again, Mr. Russo, this time adopting a tone of exasperation, piled on with an attack of his own.

Had these events occurred recently, we might have seen the purpose behind a rule restricting communication between Council (and staff) and the citizenry at public meetings.  But they took place in July 2014.  And – although we haven’t watched every minute of every meeting – we can’t recall either Mayor Spencer or City Manager Jill Keimach jumping down a speaker’s throat as the Gilmore/Russo tag team did.  So what’s the point of having the Mayor read a statement suggesting a limitation that doesn’t, and shouldn’t, exist?

We can only scratch our head.  But we guess it means that, if the dump-Trump crowd gets to speak at the beginning of next Tuesday’s meeting, Ms. Vella and Mr. Oddie will have to wait to express their approbation till the end when they present their own referral denouncing the Donald.


Brown Act: brown-act-current-thru-2016

Sunshine Ordinance: article_viii-___sunshine_ordinance-2016

Attorney General’s opinion: 1995-cal-ag-lexis-49

Ninth Circuit case: white-v-norwalk_-900-f-2d-1421

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
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6 Responses to Speaking objections

  1. If the public can’t comment on matters outside the jurisdiction of the legislative body, then neither can the legislative body. It sounds like this impeachment referral should have been preempted from appearing on the agenda.

    • carol says:

      Alameda has plenty of legitimate problems for our City Council to be working on. Isn’t that why our meetings last so long into the night? That 2 of our elected city officials waste valuable City time putting hyperpartisan horse manure like this on the agenda is frankly immature & self-serving. I cringe to see Alameda covered in the national news for this! Its embarrassing! Alameda, STOP EMBARRASSING ME!!!

  2. This morning, Sarah Henry, the City’s Public Information Officer, sent us the following note:

    I read your column this week and wanted to send a quick note to say that the reason the Mayor is opening with a statement before public comment is because we have had renters come up and tell their stories for months, and we want them to understand why it is that the Council is not commenting on their remarks. We also wanted to be sure they have the contact info for the Housing Authority. People who speak regularly at Council meetings understand this, but we have heard from others who didn’t and wanted to help.

    Ms. Henry also provided contact info for the AHA: phone: 510-747-4346; email: rrac@alamedahsg.org; web: http://www.alamedarentprogram.org.

  3. egorelick says:

    I am confused why the non-agenda item part of the meeting was not open to people wishing to comment on the animal shelter. It seems unlikely that their comments were directly related to the specific nature of the agenda item on the closed session. (From the description, how would they even know if their comments were related.) Since the relationship between the City and the FAAS is certainly part of the City Council’s scope, excluding these speakers because some other aspect of that relationship was discussed in close session seems like it may have been a violation of the Brown Act. Yet there are people who are very much insistent that keeping people from speaking was not only legal, but proper. I am not so sure and have emailed Janet Kern for clarification.

    • carol says:

      A city meeting ends when it is adjourned, does it not? It occurred to me that the entire premise of the FAAS item being on the agenda of the Regular City Council meeting is incorrect–because it wasn’t. The special closed session meeting is NOT part of the regular city council meeting at all. It happens on the same day, but it has a Separate Agenda,[which cannot be said to be part of the agenda of the regular open session meeting]; a separate public comment period, and a separate adjournment. Therefore, it is wrong to say that the FAAS item was on the agenda of the regular city council meeting. In fact, the closed session agenda is usually completely unrelated to any agenda item in the following open session meeting.
      The instructions for Agenda Sections 4 & 8 say: “Any person may address the Council regarding any matter not on the agenda”. They do not say: “No person may address the Council regarding any matter already covered on the agenda for this meeting or any other meeting”. Anyway, FAAS was not on the regular council agenda.

      • David says:

        Indeed. Members of the public have the opportunity – subject to inopportune scheduling – to comment on closed session items.

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