Not seen, not heard

Having successfully found a way to keep the public from attending any meetings of the police reform steering committee and its subcommittees, City Council now is resuming its effort to limit the extent of participation it will allow ordinary citizens to have in Council meetings themselves.

Since 2018, Council has appointed two sub-committees, both of which included then Councilwoman and now Mayor Marilyn Ezzy Ashcraft, to rewrite its “rules of order.”  Those committees have restricted the rights of the public to speak at Council meetings while at the same time largely resisting any call to rein in the Council members themselves.

Ms. Ashcraft and her collaborators say their objective is to make Council meetings more “efficient.”  Maybe so.  But if there are other, and better, ways to make the railroad run on time – and there are – we don’t think the ordinary citizen should be forced to jump off the tracks in order to avoid being hit by the speeding train.

Let’s begin with what the law says about the role of the public at meetings of legislative bodies like Council.

The relevant statute, of course, is the Brown Act.

Councilman John Knox White, who regularly professes expertise in legal matters (among many other subjects), told his colleagues this February that the purpose of the Brown Act is “so that people can hear us make decisions and understand why we made those decisions; the Brown Act is not so that everybody can come and talk to us. . . .”

But that’s not what the statute says – or how the courts have interpreted it.  As more than one court of appeal has recognized, the Brown Act is intended not only to “ensure the public’s right to attend the meetings of public agencies,” but also to “facilitate public participation in all phases of local government decision-making. . . .”

To that end, the Act specifically requires that legislative bodies (like city councils) “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. . . .”  (The Sunshine Ordinance enacted by Council in 2011 contains identical language.)  The legislative body may promulgate regulations limiting the total amount of time allocated for “public testimony” on particular issues and for each individual speaker, but such limitations must be “reasonable.”

So now let’s look at what our City Council has done to “facilitate public participation” at its meetings.  We’ll do so by comparing the rules of order governing Council proceedings that originally were adopted in 1994 (which we’ll call the “Original Rules”) with the corresponding rule as it stands after the most recent changes made by Council a month ago.

Consent calendar

The items placed on the consent calendar are supposed be “routine” (and therefore, by implication, non-controversial).  Council takes a single vote on the calendar as a whole; it does not vote on each individual item.

The Original Rules permitted any member of the public – as well as any Council member – to “pull” an item from the consent calendar – i.e., request that it be removed for “discussion or explanation.”

The public continued to enjoy this right through the enactment of the Sunshine Ordinance in 2011 and the major revision of the rules of order that took place in May 2018.  This February, however, the subcommittee consisting of Mayor Ashcraft and Councilman Knox White proposed eliminating it.  By a 3-to-2 vote, with Council members Trish Spencer and Tony Daysog dissenting, Council approved the change.

Likewise, once an item had been “pulled” from the consent calendar, the Original Rules permitted a member of the public to speak for up to three minutes about it.

Again, the Sunshine Ordinance and the 2018 revision preserved this right.  But again, this February the Ashcraft/ Knox White subcommittee sought to weaken it.  Under their proposal, a member of the public would be allowed to comment only once on the entire consent calendar.  In addition, any public comments would be limited to two minutes per speaker unless there were 12 or more speakers, in which case the time limit for each speaker would drop to one minute.

Council approved the first two changes but not the one-minute rule, as to which Mr. Knox White did not seek a vote.

The new rule creates a pathway for ramming approval of arguably controversial items through Council with minimal, if any, input from the public.  No pesky citizen will be able to pull any consent item, even the most egregious one, for explanation or discussion (or should we say “conversation”?).  And if the consent calendar were loaded up with such items and Council members themselves pulled them, a citizen will be forced to condense her comments into one two-minute speech.

Public comment on non-agenda items

The Original Rules established the right of any member of the public to “address the Council in regard to any matter over which the Council has jurisdiction or of which it may take cognizance, that is not on the agenda.”  The three-minute time limit applied.

The Sunshine Ordinance subsequently established a few procedural rules –a total of 15 minutes would be reserved for public comment on non-agenda items at the beginning of the meeting; if the speakers weren’t finished within 15 minutes, additional time would be made available at the end of the meeting – but it didn’t change any of the public’s basic rights.

Likewise, the subcommittee appointed in 2018 – Ms. Ashcraft and Councilman Jim Oddie – largely left the rule alone.  It accepted the recommendations by the Open Government Commission (whose advice Council had solicited) to affirm that the three-minute time limit applied to public comment on non-agenda items and to limit speakers to commenting once per day on the same topic.  Council approved the changes.

This February, as part of what Mr. Knox White called “our ever‑constant chase to shorten” Council meetings, the Ashcraft/Knox White subcommittee proposed reducing the maximum speaking time during the “oral communications, non-agenda” portion of the meeting from three minutes to two.  The change sailed through under the radar.

As a result, Alameda’s own Hyde Park corner just became a little narrower.

Public comment on agenda items

From 1994 through 2018, any citizen had the right to speak for up to three minutes on any item on Council’s regular agenda.

When it reviewed the rules of order in 2018, the Open Government Commission saw no reason to recommend reducing this well-established time limit.  Their only suggested change was to prohibit one speaker from “ceding” time to another.

But both of the two Council subcommittees of which Ms. Ashcraft was a member have had the rule squarely in their sights.

In 2018, the Ashcraft/Oddie subcommittee proposed a new rule under which the three-minute limit would apply only if there were six speakers or fewer.  Once the number of speakers hit seven, speaking time would go down to two minutes, and then, if there were 13 or more speakers, to one minute.

The Ashcraft/Oddie subcommittee didn’t present any written report, but Mr. Oddie defended the proposed new rule in terms of diminishing returns.  If six speakers got the full three minutes apiece, he asserted, “you’re probably going to get 18 minutes of pretty full and robust discussion.  By the time you’re into hour two, there’s not a lot new that people are going to be able to bring to the argument except to say, this is the way I feel.”

Moreover, he added, perhaps revealing his true motive, if the public speakers were limited to two minutes apiece, they might “leave out some of the nastiness and personal attacks that they’re not supposed to say but often do.”  (A few weeks before, 32 citizens had come to Council to denounce Mr. Oddie and Councilwoman Malia Vella publicly for their interference with the selection of the new fire chief; only two labor leaders defended them.  Small wonder that the Ashcraft/Oddie subcommittee also proposed inserting into the rule a provision admonishing public speakers to “avoid personal attacks on members of the Council, staff, or public.”)

Mayor Spencer and Councilman Frank Matarrese opposed changing the three-minute time limit.  Councilwoman Vella was willing to reduce the public’s speaking time to two minutes, but she drew the line at one minute.  Lacking a third vote, Ms. Ashcraft and Mr. Oddie backtracked, and Ms. Ashcraft ultimately convinced Ms. Vella to sign off on a two-tier system:  a three-minute per speaker limit if there were six speakers, a two-minute limit if there were seven or more.

But Ms. Ashcraft wasn’t done yet.  Less than three years later, the subcommittee on which she was joined by Mr. Knox White returned with another proposal to create a third tier in which public speakers would have only one minute to comment on an agenda item.  (The only change in this version was that the third tier would kick in if there were 12 rather than 13 speakers.)

This time, Ms. Ashcraft was willing to venture a defense of a one-minute time limit.  “When we all ran for public office and spoke at public forums, I think we very often had one minute to answer a question,” she stated, adding that, “Those of us who’ve practiced law before a judge who might not have been terribly patient knew to pick up the pace and say what you needed to say and say it in a minute’s time.”

But, once again, her colleagues balked.  Ms. Spencer and Ms. Vella hadn’t changed their views about a one-minute rule since the last time Ms. Ashcraft floated the idea.  Tony Daysog, who was not on Council at that time, also objected.  (As far as we’re concerned, the cleverest comment on the proposed one-minute rule came from a public speaker, local Democratic Party factotum Zak Bowling: “We shouldn’t be trying to squeeze public comments for each person into a tweet.”)

Reading the tea leaves, Mr. Knox White didn’t even ask for a vote on the proposal to revise the time limits.

So, for now, we’re back to the two tiers for public comment on agenda items.  Although Council members may be reluctant to admit it, this system has flaws that won’t be fixed by cutting speaking time for the public any further.

For one thing, the two-tier rule creates an ironic result:  the more important an agenda item is, the less time any speaker will get to address it, since a contentious item is likely to draw enough speakers to trigger the reduction to two minutes.  But why should the mundane get more attention than the controversial?

Moreover, as Ms. Spencer was the first to point out, the two-tier rule exacerbates uncertainty for those who want to speak.  Since no one knows before a Council meeting how many speakers there will be on any item, anyone planning to comment won’t know whether to prepare a two- or three-minute speech before heading to Council chambers (or logging on to Zoom).  Perhaps the safest course would be for the speaker to draft two sets of remarks.  But why should citizens be subjected to this burden?

And the situation can get even worse after the meeting starts.  Suppose that, at the time the mayor opens an agenda item for public comment, there are six speakers.  Under the two-tier rule, each gets three minutes.  Now suppose that, as, say, the third speaker is talking, a seventh person hands in a speaker slip.  Under the new rule, that will trigger a reduction to two minutes.

In such a case, City Clerk Lara Weisiger confirmed to us, the reduction takes effect as soon as the third speaker finishes.  As a result, speakers four through six in our hypothetical, who had been counting on having three minutes to speak, now will find their speaking time cut to two minutes.  This forces them to edit their remarks, on the fly, to get them down to the lower limit.  Try it yourself and see how easy that is.

As the prime mover behind the effort to limit the extent of public participation in Council meetings, Ms. Ashcraft has sought to characterize it as a way to shorten – the word she favors is “streamline” – those meetings.  Despite acknowledging her own “hard rule” against permitting a Council meeting to go on past midnight, she insists that the time limits she has promoted are for the public’s benefit, not for hers or her colleagues’.  “I’m . . . thinking of it from the public’s perspective,” she stated in May 2018.  “We don’t want to keep people here until all hours of the day and night.”

Now, it’s undeniable that the longer a Council meeting lasts, the smaller the audience becomes.  But one wonders just how much time reducing the limit for the public actually saves.  Under the Original Rules, public comment on an agenda item with 10 speakers would last a maximum of 30 minutes.  Under the current rules, it would last a maximum of 20 minutes (assuming all the speaker slips are submitted before the start of the agenda item).  Are those ten “saved” minutes really going to enable Ms. Ashcraft to go home when she wants to?

Moreover, if the politicians truly wanted to shorten their meetings, there are ways to achieve that goal without constraining public participation.  Contrary to what some Council members apparently believe, the City Charter does not specify the number of meetings Council must hold.  Instead, under the Charter, Council determines the next year’s meeting schedule each December.  If it wanted to hold meetings more frequently than twice a month, all it would appear to need to do is amend the resolution.

Likewise, if the politicians are eager to impose stricter time limits, they might want to start with themselves.  The Original Rules specified the same speaking time limits for Council members as they did for members of the public:  no more than three minutes.  Unfortunately, at some unknown date, Council members began ignoring that constraint, and by May 2018, as Mr. Matarrese noted, they were “routinely” violating it.

But when the Open Government Commission proposed a new regime – each Council member would be allowed to speak three times on an agenda item for no more than three minutes at a time – the Ashcraft/Oddie subcommittee rejected it.  Instead, they got a majority of their colleagues to agree to a nine-minute time limit that included any time spent asking questions of staff.

Similarly, when Ms. Spencer suggested this February reducing the time limit further – to seven minutes – she got no takers.  Indeed, Ms. Ashcraft, Ms. Vella and Mr. Knox White seemed offended that Council members should be treated the same as public speakers.  That’s a “false equivalent,” Ms. Vella declared. “Our free speech is limited by the Brown Act whereas members of the public are not curtailed.”

We’ll end by asking the a priori question:  Separate and apart from any legal requirements, what’s the value in permitting members of the public to speak at Council meetings?

After all, as several Council members pointed out this February, a citizen who wants to make her views known to the elected officials can simply call them or send them an email; she doesn’t need to take up the whole body’s time by speaking at the Council meeting itself.  And if she remembers to copy Ms. Weisiger on the email, it will become part of the public record for all to see.  (Ms. Weisiger told us she’d also include an email to an individual Council member in the “Correspondence” folder if the member forwarded it to her.)

Moreover, if we wanted to be brutally honest, we’d have to admit that public comments sometimes can be a waste of time.  We well remember a local gadfly who, years ago, showed up at virtually every Council meeting, handed in a speaker slip for almost every agenda item, and began his remarks by saying, “I don’t know anything about [whatever the issue is]” – and then launched into a three-minute speech anyway.

Likewise, we can’t recall ever hearing any Council member concede that a public speaker had said something that caused her to change her mind.  More often, the Council members sit, stone-faced and silent, during the public-comment period, and later, if they refer to the speakers at all, it’s usually only to praise the ones who agreed with them.

(It wasn’t always like this.  City Manager John Russo used to enjoy engaging in dialog with public speakers, inviting them to remain at the podium after they had completed their remarks.  The catch was, if the speaker tried to respond to Mr. Russo, Mayor Marie Gilmore would tell him to sit down because his time had expired.  We know; it happened to us.)

Still . . .

To us, there’s something refreshing, even reassuring, about seeing an ordinary citizen step up to the podium and get to say her piece in front of the exalted personages on the dais (and have it heard by a wider public audience as well), especially when the speaker knows that her comments may not receive universal acclaim.  Isn’t free exercise of the right to speak one’s mind, out loud and in public, what democracy is all about?

Sources:

Rules of order: 2018-05-15 Ex. 1 to staff report – Rules of Order Resolutions

May 2018 revision: 2018-05-15 staff report re CC procedures; 2018-05-15 Ex. 2 to staff report – Open Government Commission Recommendation; 2018-05-15 Ex. 4 to staff report – Council Subcommittee Redline Revisions; 2018-05-15 Resolution 15382 (adopted)

February 2021 revision: 2021-02-16 staff report re CC rules of order; 2021-02-16 Ex. 1 to staff report – Rules of Order – Redline; 2021-02-16 Resolution 15746 (adopted)

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
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13 Responses to Not seen, not heard

  1. Reality says:

    Rather than comparing Alameda to its past self, it might make more sense to compare regionally, how other cities are enforcing their time limit. Just a cursory browsing of Google shows roughly half of California cities use the 2-minute rule, and the other half use the 3-minute rule. I would speculate that more populous cities with very active civic involvement tend to go with the 2-minute rule. Giving anybody the opportunity to pull items from consent defeats the purpose of the consent calendar.

  2. David says:

    JKW is an authoritarian. I hear he’ll soon be starting his own social media network so he can better control public opinion…

  3. Really says:

    I am for preserving a private citizens right to speak. There should be no secret or private meetings at all, including subcommittees. Rules should make it easier, not harder for John Q. Public to speak without limiting the number of speakers at all. It’s called democracy.

    It’s amazing what happens when progressives gain power using “efficiency” as a cover for shutting down opinions they don’t like. One solution might be for a few inconvenienced politicians to resign.

    • Reality says:

      The Brown Act specifically recognizes the important work ad hoc committees do, most of the legwork done behind the scenes. The subcommittees spent a total of 3,000 hours researching, discussing, and drafting their proposals – are you suggesting all of those hours should have been spent in public eye? That would only grind things to a halt and nothing would get done, which I suspect is the ulterior motive of folks who simply believe there’s no racial bias in policing that needs to be addressed. Our city staff meet all the time to research and draft recommendations for the city council to review and vote on in front of the public, and no one ever has a problem with that – so other than being paid versus unpaid, how is an ad hoc committee any different? Adhering to the Brown Act means respecting the work of ad hoc committees.

  4. Trish Herrera Spencer says:

    Thank you for this topic. The answer to your question is yes. Democracy is not a spectator sport. Btw, comments made during a meeting are part of the Minutes. Emails may be attached to the agenda item, but, for historical purposes when people pull the Minutes, if it’s not actually in the Minutes it’s likely to be separated/forgotten. I think emailing in advance (so policymakers have time to review) and then speaking during the meeting (so in the Minutes) is best. I enjoy the public comments and have been persuaded by new issues raised, rarely, but it happens. Sometimes only one person says it but it resonates. Time for clarifying questions is also helpful; staff reports are often summaries or conclusions, yet will be how staff implements so clarification on the record is important. 

    Sometimes people wait hours to speak on an item only to have the meeting end abruptly @ 11 or midnight; the uncertainty is hard, too. This last agenda, Council voted (3:2) to change the agenda order so the police armored vehicle got continued again and is now set for March 30 (not a regular Council date), was March 2, then the 16th, now the 30th. Wonder how many will show up again? I hope they do.

    In regards to the Police Reform meetings, I disagree that the months of meetings should have been private, regardless of the technicality of whether required. IMHO, their 3,000+ hours would have been more persuasive, if they’d invited us to the process and allowed the public to participate (i.e., speak, question, comment), even two minutes each better than zero. I’m sure points in their discussions would resonate more than just their recommendations. I think that’s why they invested the time (to change hearts and minds) and why truly a missed opportunity.

    • KnowYouNow says:

      Many of the subcommittee members have expressed concerns about public venues becoming a source of intimidation from anti-reform members of the public to dissuade the members’ participation and weaken these subcommittees. You ironically validated their fears when you yourself doxxed the names of 253 individuals in a hostile online environment without their permission, which may have potentially put them in harm’s way. I will cite what was relayed to me by a volunteer group known as Transform Alameda:

      “Last week one of our Council-members, Trish Herrera Spencer, made public a list of 253 people who applied to be in the Police Reform Subcommittees and Jackson Park Renaming Committee… …If the people applying knew their information was going to be released this may not have been as problematic. But that is not the case. Additionally concerning is that there are minors on this list, youth in our community who just wanted to get involved. What adds fuel to the flame is that Ms. Spencer posted these lists among a group of people on NextDoor (known to harbor Alameda’s radical right wing) who talk about being armed and want to ‘take back the city.’ The context of the posting is highly concerning and unbecoming of any elected official. Posting in a thread of ‘armed citizens’ who are upset and want action is inexcusable. Many listed fear retaliation for their work.”

      While obtaining information via a PRA request is perfectly legal, how the information was used was highly unethical – especially for a current councilmember.

      • David says:

        Ironically, in my experience, Alameda’s NextDoor is a haven to the most intolerant of any questioning or constructive criticism otherwise progressive leftists.

      • Reality says:

        David – I’m not too sure about that. Not to get too off track from Bob’s post, but wanted to address your comment. It is well known that Alameda’s Nextdoor is currently run by a cabal of conservative neighborhood leads who work together as a voting bloc to suppress progressive contents and to do the bidding of people they align with politically, such as Trish Spencer (see screenshot below). During the height of the November election, there were 20 anti-Vella posts running concurrently and only 1 anti-Trish post that was restored in spite of rogue moderating. This blog post did a great breakdown of how the local moderating works behind the scenes:

        https://laurendo.wordpress.com/2020/10/06/spilling-tea/

      • David says:

        Not quite sure I agree on your detective work there Reality. Well-promulgated, perhaps, well known? I doubt it.

        My experience is that otherwise progressive, tolerant, folks bully and shout down anyone who doesn’t toe their line, on NextDoor and on the various Alameda Facebook groups.

        And publishing anything from Blogging Bayport doesn’t score any points in my books, as I view her as part of a local machine cabal just as nefarious for cyberbullying and silencing opinion as anything you are complaining about.

  5. MP says:

    Every minute matters. The situation is dire, apparently. How about this? Time spent pandering gets trebled against the offending councilmember’s shot clock. Do I hear a second?

  6. Trish Herrera Spencer says:

    For clarification, I did not start an original post on Nextdoor. Several people tagged me, asking questions and commenting about the selection processes, including that they’d emailed City Staff but did not receive responses. I responded with public information, which is regularly shared by the City on public City Council agendas. The lists of applicants are often shared on social media and discussed publicly as people so choose.

    Here, the lists as discussed on Nextdoor had many errors, including omitting some applicants and listing many names more than once, so probably closer to 100 applicants if someone wanted to work through it. Also, as far as I know, no one has asked the City to remove their name. And, at least one person resigned after attending numerous meetings and that also wasn’t disclosed.

    However, I did a referral, set for this Tuesday’s agenda (March 30, 9-F) asking Council to consider creating a specific disclosure policy for applicants under 18 and reviewing publicly the CA Public Records Act, Brown Act and City Attorney opinion confidentiality in continuing efforts to educate the public. The public is welcome to email and participate. I hope this helps.

    • KnowYouNow says:

      This referral, while well meaning, seems like an attempt to rehabilitate your image after the Nextdoor doxxing fiasco. Whether or not someone else originated the post, you chose to engage and put in the effort to solicitate those names and then post them.

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