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Santa Cruz Indymedia | Government & Elections

Brown Act Demand to Mayor Don Lane
by Robert Norse
Sunday Feb 5th, 2012 11:34 PM
Mayor Lane--in the most blatant selective cancellation of Oral Communications yet at City Council--denied myself and several other speakers public speaking time at the close of the January 24th Council meeting. The agenda scheduled that public comment period (the only one where the public is allowed to comment on items not on the very restrictive agenda) for the end of the afternoon session. As described in the letter below, Lane adjourned the meeting rather than allow us to speak. Nor has he suggested he will modify this procedure in future meetings.
BACKGROUND AND RATIONALE

While it is foolish to believe that speaking to the Council generally has any meaningful impact on their votes (even if numbers of people speak), it is still important in my view to insist on the right to do so. Also since the proceedings are televised, one is also speaking to the community. This reality sometimes constrains Council members to explain their actions.

On January 24, the date of Lane's shutdown of Oral Communications, Occupy Santa Cruz held its first General Assembly outside at City Hall.

Some of us anticipated a protest against the December 8th attack on the homeless encampment in San Lorenzo Park that displaced 100-200 people and destroyed much homeless survival gear and property. Lane and the City Council supported that attack, which was followed by the closure of City offices and a massive police presence in riot gear when some of us tried to visit city officials.

Lane further took no action to stop the City's posting of "No Parking at Any Time" signs to deter Occupy Santa Cruz on Water St. throughout December. Nor has he taken action to hold police officials responsible for the destruction of homeless property and the continued assaults on homeless survival (tent slashing, tickets, move-along demands) in the Pogonip and on the Levee (where many homeless people have fled after the December 8th police attack).

Due in part to some strident dissension in Occupy Santa Cruz and in part to hurried and insufficient preparation, the January 24th protest was derailed. Some Occupy Santa Cruz members wrongly believed that the protest would alienate People Power allies (which Micah Posner assured me it would not); they spread sufficient fear and concern on the internet such that the protest was effectively dismantled by discouraging OSC members from attending.

The issues involved in the proposed protest were described in the article "Beyond City Hall" at http://www.indybay.org/newsitems/2012/01/23/18705498.php where a flyer covers the subject. HUFF (Homeless United for Friendship & Freedom) activists will continue to raise these issues and are now tabling at the Homeless (Lack of) Services) Center to get more direct input from homeless folks. (See "Courthouse Steps Now Free Speech-Free at Night; SCPD Threats Downtown; Offices Close" at http://www.indybay.org/newsitems/2011/12/09/18702196.php & "Police Raid and Destroy Occupy Santa Cruz Encampment in San Lorenzo Park" at http://www.indybay.org/newsitems/2011/12/08/18702101.php).

Mayor Lane's behavior towards those of us who tried to speak at City Hall mirrors the growing civil liberties crackdown against Occupy Santa Cruz and the homeless community as well as the increasingly arbitrary and restrictive procedures at City Council.

This letter to Lane demanding he "redo" Oral Communications (by providing double time at the 2-14 Council session) is likely to be ignored--further exposing his and City Council's lack of interest in democratic and accessible process. In theory the next step in this bureaucratic process is to file a lawsuit and/or make a grand jury complaint.

A more direct response in keeping with the tradition and character of Occupy Santa Cruz would be a march to Lane's office to demand answers.

A prior march to the City Council offices took place in mid-November confronting him and City Manager Martin Bernal with public outrage over their bogus "permit"--the City's first attempt to shut down the San Lorenzo Campground (See "City Manager and Vice-Mayor Stonewall OSC Activists" at http://www.indybay.org/newsitems/2011/11/08/18698276.php). See also the General Assembly's response at http://occupysantacruz.org/2011/11/06/response-to-citys-unsolicited-permit/ .

With the weather turning (somewhat) warmer and drier, it's possible Occupy Santa Cruz may begin growing again. If so, such mass marches (such as one that was held today up Pacific Avenue opposing the police crackdown against Occupy D.C. and Occupy Oakland) may become more frequent.


LETTER TO MAYOR DON LANE

309 Cedar PMB #14B
Santa Cruz, CA 95060
February 5, 2012

Don Lane, Mayor of Santa Cruz
809 Center St.
Santa Cruz, CA 95060

Dear Don:
During the last Council meeting a number of us arrived, per your agenda announcement about when Oral Communications was scheduled to take place, to be present at the end of the afternoon agenda. This was around 5:45 PM. You declined to take our Oral Communication. You stated instead that at "your discretion" you had moved Oral Communications to an hour earlier at 5 PM or sometime around there without prior 72-hour announcement, as required by the Brown Act, before the meeting had ended.
Your closure of the meeting cut off several speakers who had come specifically to speak to the community and the Council. We were visibly waiting in line.
This clearly violates the spirit if not the letter of the law (Brown Act 5.4954.3a), which requires you to have a period of time accessible to the public when they can speak on subjects not on the agenda. If you can move this time about at your discretion, it clearly imposes an unreasonable burden on anyone trying to speak as well as those who want ot hear Oral Communications.
Additionally this seems to violate the requirement (Brown Act 5.4954.2a) that items be listed 72 hours in advance in a manner that allows the public to know what is on the agenda and--more or less--when they need to be there to speak on those items.
Please restore the time certain for Oral Communications at the beginning of the Council session, which allows the public. This was traditionally the case at the beginning of the evening session at 7 PM--the most accessible time for most people who work.
I would also request you restore an additional period at the beginning of the afternoon for those who can't be there in the evening. This would particularly impact homeless people, those few who can actually get into the token shelter services, who must be inside the Armory at night to use those services.
Given the Brown Act violations of the 1-24 session, will you be providing double time for those who were unable to speak during a time-certain Oral Communications period at the 2-14 City Council meeting? This seems only fair and would serve to compensate in some measure for the abusive and selective cut-off of public comment on 1-14. Since you knew me and the Council had been previously informed of a public protest being held, I also suggest that your action was or could be views as content-based and violated Section 54954.3 (c) of the Brown Act.
Finally, please also advise how much time will be allowed for speakers and groups and whether you will regularly allow members of the public to speak on specific items on the Consent agenda as is the case in most other California cities without begging particular permission and requiring action from specific City Council members.
As you know, past City Councils have burdened the present one with a costly and time-consuming lawsuit involving censorship of public opinion due to to go trial this spring. It would be helpful to see you and the present Council moving in a positive direction expanding public comment and public accessibility.

Thanks,
Robert Norse
423-4833
§Lane's Reply
by Don Lane (posted by Norse) Monday Feb 6th, 2012 6:33 PM
Here is Don's prompt courteous unresponsive response:

From: dlane [at] cityofsantacruz.com
To: rnorse3 [at] hotmail.com
Date: Mon, 6 Feb 2012 16:18:03 -0800
Subject: RE: Brown Act Demand to Restore Time Taken from the Public on 1-24

Dear Robert

Thank you for writing.

It is my view that you are in error in your interpretation of the Brown Act.

I also think you and I have a different take on Oral Communications. I believe public comment on regular agenda items is at least as important as oral communications on topics not on the council agenda. Homeless people, working people and homeless working people (and everyone in the community) need reasonably accessible and understandable times to address the council on ALL the different items on the agenda, not just oral communication items.

I explained my approach to you during a radio interview… and my approach is written down on the agenda every week for you and all the world to read. It is unfortunate that you did not take in this information during these opportunities. It is also unfortunate that you would blame me for your missing this information. I know it makes for great theater but I don’t find it persuasive.

I will not be providing any “extra time” for oral communications this coming week. As you know, I have been generally allowing 3 minutes for oral communications and public comment on agenda items, when there isn’t a huge number of people waiting to speak. I expect to continue that practice.

I also intend to continue the current procedure on consent agenda items. It seems to be working well…and still seems to cause many items to be successfully pulled from the consent agenda. I would also note that, if you are finding that this procedure does not allow enough speaking time for you, you are always welcome to submit comments in writing before and during the council meeting.

Thanks again for writing.


Don


Don Lane
Mayor
City of Santa Cruz
831-420-5022
§My Follow-Up
by Robert Norse Wednesday Feb 8th, 2012 7:55 AM
From: rnorse3 [at] hotmail.com
To: dlane [at] cityofsantacruz.com
Subject: RE: Brown Act Demand to Restore Time Taken from the Public on 1-24
Date: Tue, 7 Feb 2012 14:47:25 -0800

Don:

Thanks for your prompt response.

I've posted your response to my Brown Act demand on indybay.org at http://www.indybay.org/newsitems/2012/02/05/18706677.php and on the facebook page of Occupy Santa Cruz.

I have a few additional questions--actually just clarifying ones since you didn't fully respond to them in your letter.

Just so I'm clear on this: are you stating that it will be your practice to put Oral Communications anywhere during the afternoon session you choose without any prior 72-hour notice other than stating it is at your discretion? And announcing this only at the time you make this decision during the meeting? I think this is a fair question for those who have any interest in addressing City Council on items not on the agenda.

Will you be providing five minutes for group presentations? Will this traditionally be done as it was pre-Coonerty without requiring five people to stand up and say they are members of the group in question and will not be speaking?

Any additional time period at the beginning of the afternoon session to be allotted for people (like those in the homeless community who are not permitted to be at the meeting since they'd be lining up for the Armory Winter Shelter)?

No restoration of the traditional 7 PM Oral Communications period in the evening?

Thanks in advance for your speed in addressing these issues (which were previously raised, after all). I'm also hoping you'll respond to my letter following up on the other matters you agreed to address on Free Radio and at the Occupy Santa Cruz Monday afternoon meetings.

Comments  (Hide Comments)

by DW
Monday Feb 6th, 2012 5:48 AM
....if the agenda says Oral Communications are untimed and may be taken at any time during the meeting, you don't have a leg to stand on with your complaint. Also, Oral Communications can be limited in total length--the Council can limit them to as little as 10 minutes total, so if you have 15 speakers, they have less than 45 seconds each. What the Mayor did is perfectly legal. And, it's not a violation of the Brown Act to change the order of items on the agenda--as long as they're on the agenda in the first place.
by Bob Lamonica
Monday Feb 6th, 2012 8:41 AM
Robert Norse has an appropriate complaint, albeit not a Brown Act one. If nothing else, Oral Communications at Santa Cruz City Council meetings is a longstanding tradition, and Lane's when-I-damn-well-please policy is worse than Coonerty's absurdly and purposefully inconvenient 5 PM slotting. Both situations indicate an arrogance and aloofness that warrants challenge.
by brent
Monday Feb 6th, 2012 4:20 PM
While I support the statement regarding the Brown Act and maintaining public comment at City Council Meetings even though we've seen that those 2 minutes are not part of the decision making process, I do not understand the addition of Occupy issues in this posting.

Sure, the city eliminated the camp and sure Don Lane is one of the helmspeople of city government but it is clear that he worked tirelessly WITH the occupiers. I personally shot video of him at several GA meetings and City Liaison meetings where he tried to help the occupiers help him to help them.

It was the city manager Martin Bernal (as Robert has been seen with in a youtube video) who was trying to eliminate encampment in the park. The police dept. constantly peppered the news media with rumors that were reported as fact while Don Lane's comments to the media were always in the spirit of finding ways to help the camp continue to exist. He rallied the parks dept. for a dumpster and helped occupiers find solutions with county government. In my video footage on numerous occasions he is seen telling us who and how to contact them.. often repeating the same info because the occupiers either hadn't heard him or weren't organized enough to follow through.

In the end it was clear that the 75 River St. building take over had blind-sided Don Lane and the occupation had lost what political protection he could provide, allowing those destructive forces to bulldoze the park.

I don't see the point of joining City Council comment period issues with Occupy issues other than to stack an argument against him unfairly.
Finally there is a Mayor who is welcoming the community into a dialogue about homelessness and our longtime homeless advocate has an opportunity to be seen as being conciliatory.
by Robert Norse
Monday Feb 6th, 2012 6:18 PM
While I appreciate the attempts of Brent and others to dialogue with Don Lane, one has to consider the actions (and inaction) of Lane, both historically and recently.

It's also instructive, I think, to listen go the hour-long interview I, Ed Frey, and Michael Donehoo did with Lane several weeks ago on Free Radio Santa Cruz at http://www.radiolibre.org/brb/brb120105.mp3 .

CITY COUNCIL CLAMPDOWN

Since Brent acknowledges my Brown Act concerns, it's not necessary to go too much further about his support for continued repression at City Council than the letter.

It is true however that Lane does not support the right, for example, to turn one's back on the Council while speaking. With the exception of defending his own nook of the City in terms of dwindling social services, he's generally been a compliant and loquacious vote for Coonerty and Rotkin's schemes.

Nor has he suggested the "mock-Nazi salute" lawsuit be settled by directing the police to do what San Diego and Los Angeles have (at least on paper) done--direct their cops to stop enforcing anti-sleep laws at night. That was my proposal last spring and will be again when the case comes up for trial later this year. See "City Council Won't Settle; Will Now Spend Thousands More in Fitzmaurice "Hissy Fit" Case" at http://www.indybay.org/newsitems/2011/05/08/18679247.php .


ON THE POSITIVE SIDE
Lane has been more accessible, certainly than Coonerty, perhaps than Rotkin in terms of being open to debate on Free Radio. He has promised to make his schedule of public appointments and past meetings with lobbyists available.

He has put aside time to meet with HUFF (Homeless United for Friendship) on several occasions, though invariably voting for repressive legislation against the homeless when the actual time to vote came.

He is a "nice guy" in demeanor and responds in timely manner to e-mails sent to him (at least those I've sent).

He did vote to amend the "doggies on Pacific Avenue" law to strike the "no dogs for panhandlers" section, but when that was defeated, he voted for the whole law anyway.

He did however, refuse to show us the e-mails he claimed showed negative concerns about Occupy Santa Cruz. Nor has he agreed to make his e-mails public (as, I think, is required of public officials, but which many City Council members have refused to do).

LANE AND OCCUPY SANTA CRUZ
Lane has consistently supported the attack on the San Lorenzo campground--both through the original bogus "permit" process, the subsequent groundless "evacuation" order, and the massive SCPD goonsquad show of force and destruction of homeless survival gear and property. He has either done so explicitly when asked, or remained silent while it happened and taken no action subsequently to criticize it or take any remedial action. See "City Manager and Vice-Mayor Stonewall OSC Activists" at http://www.indybay.org/newsitems/2011/11/08/18698276.php

When homeless people set up their own campground and Occupy Santa Cruz had greater numbers, he played the diplomat, but made no effort to open bathrooms at night in San Lorenzo Park. Admittedly, the City finally agreed to stop blocking OSC's own portapotties, but Lane's public statements about the campground have pretty much all been negative. After all, if homeless people themselves with a relatively small number of activists can create and sustain a campground that the City has been dismissing as undo-able for 35 years, what is to become of his beloved Homeless (Lack of) Services Center funding?

LANE RIDES ALONG WITH THE REPRESSIVE AGENDA
I have spent a lot of time talking with Lane over the years, both informally and in forums that involve discussion of issues at City Council. He has supported the Sleeping Ban, the Downtown Ordinances, and the attack on musical performers. When I and three others were falsely charged with "unreasonable noise" for singing the song Downtown with homeless lyrics in front of Bookshop Coonerty he had no criticism of the persecution/prosecution (though city attorney involvement required action by the City Council in a closed session--and it prompted the longest infraction trial in Santa Cruz history).

I don't recall Lane's defending the DIY parade nor criticizing his City Council's mandating of the City Attorney to prosecute activist Wes Modes in 2010. He has not tried to hold the line against the expanding police (and police state) force.

When PeaceCamp2010 was mercilessly attacked, first by deputies and then by city authorities under Rotkin, Lane remained silent as the klieglights were set up, a curfew declared at City Hall (which continues to this day), and unprecedented misdemeanor prosecutions instituted (PC 647e) for the false "illegal lodging" demonization of what was for survival sleeping and for others constitutional protest. Ironically, the same weapons were then used against Occupy Santa Cruz and those supporting it.

SWEET WORDS, NASTY ACTIONS, FOR THE HOMELESS COMMUNITY
As for his honeyed words about the homeless, they include no tangible proposals to dump some of the laws that turn the poor into criminals for sitting, sleeping, peaceful panhandling, or performing. Nor is Lane interested in rolling back the massive police, security guard, and ranger forces arrayed against the poor (and the community downtown).

He has backed Homeless (Lack of) Services Center director Monica Martinez in her determination to block the homeless for getting letters to use in court to show that all shelter is full 7 months a year (and in practice, for 90% full the rest of the year as well). See " Vice-Mayor Lane Joins HSC Executive Director in Stonewalling on Homeless Shelter Questions" at http://www.indybay.org/newsitems/2010/12/22/18667405.php & "Sleeping Ban Sign-Offs: HUFF Activist Coaxes Answers From Vice-Mayor Lane!" at http://www.indybay.org/newsitems/2011/01/08/18668617.php?show_comments=1#18694403

Lane voted to make a fourth "unattended" infraction a misdemeanor offense. He voted for a second laws that made all subsequent infractions misdemeanors if the first three were infractions. This effectively nullifies the reforms passed under public pressure in 1999 making the Sleeping and Blanket Bans infractions rather than misdemeanors. He voted for the "anti-panhandling" meters downtown.


IN CONCLUSION
The most generous thing you can say about Lane is that he's either self-deluded or has the usual politician's excuse that he's doing what is pragmatic, practical, and possible. And civil rights for the poor are just not possible in Santa Cruz.

Sorry, that's not just...not good enough. It's simply an evil position to take that inflicts a lot of pain on a lot of poor people.

Glorifying or prettying up Don Lane does nothing to change the reality and does a disservice to those of us who want to change it. The fact that he's a pleasant and personable human being also has nothing to do with the situation. He is a politician and political actor who has chosen to take positions that hurt real people.
DON LANE'S REPLY
Don Lane responded to my February 7th letter the next day with the following:

From: dlane [at] cityofsantacruz.com
To: rnorse3 [at] hotmail.com
Date: Wed, 8 Feb 2012 17:01:19 -0800
Subject: RE: Brown Act Demand to Restore Time Taken from the Public on 1-24

Dear Robert

I will try to be even more clear on the printed agenda and out loud at the council meeting about my approach to the timing of oral communication. I have no intention to make things difficult to understand… but I also have no intention of elevating oral communications above public comment and participation on items on the regular agenda.

In the old model, oral communications always took priority and everything else had to wait. No one else got time certain—even when a crowd of 100 neighbors came to a council meeting for an important item they weren’t given a time certain as to when they could speak.

My approach is to do things in a logical order and give people as realistic idea as possible as to when an item will come up. This is not about random discretion. I will begin oral communications as close to 5 pm as possible but I will not suspend a regular agenda item in mid-stream just to start oral communications. If we are in the middle of a regular agenda item at 5, we will complete the item and then begin oral communications. If we have completed all our regular afternoon business a bit before 5 pm, we will begin oral communications a bit before 5 pm.

I am giving you -- and everyone else-- a lot more than 72 hours notice that Oral Communications will be an item on the 3 pm agenda of each regular council meeting.

I will consider providing 5 minutes for group presentations , but only if the group representative contacts me ahead of time and if the representative agrees that no one else from the group will be speaking on the same issue.


Don Lane Mayor
City of Santa Cruz
831-420-5022


ORAL COMMUNICATIONS WORDING CHANGES
At the 2-14 City Council meeting, Lane changed the wording of the agenda announcing when Oral Communications would be done.

The prior wording on-line and presumably on the printed agenda read "The Mayor determines when Oral Communications will commence but generally it is placed at the end of afternoon business, which may be before or after 5 p.m."

This was changed to: "The Mayor determines when Oral Communications will commence but generally it will occur at approximately 5 p.m. but may occur before or after 5 p.m."

Also words to the effect of Oral Communications being held at a time "at the Mayor's discretion" have been removed. When I attempted to access the prior agenda with its wording on Oral Communications, I found that all archives are currently inaccessible--making it difficult to give the exact documentation. However, in spite of the removal of the phrase, it's clear that's still the policy.

However, in spite of the new wording, Steve Pleich, who apparently sat through the whole afternoon session of the February 14th meeting, had a different report. He told me that at that meeting--which ended early around 4 PM--Oral Communications was not at the end of the meeting, and not at 5 PM, but at 4:45 PM. This resumed the "doghouse sessions" made famous by former Mayor Coonerty. Lane also cut everybody back to 2 minutes each though significant numbers of people were there to speak, no one in the audience was being kept waiting. Lane's claim the he "had" to do it, was, of course, false. It's quite simple to extend Oral Communications time--and has often been done in the past (though increasingly the distant past).

This was particularly significant since important issues were on the agenda: the treacherous wage cutbacks being strongarmed by the City against Temp Workers, the de Sal boondoggle, the attacks on Occupy Santa Cruz, the recent report linking Smart Meters with ill health by the county, etc.

NEW STREAMING/ARCHIVED VIDEO POLICY BUT CONTINUED OBFUSCATION
On the positive side, the City, as many cities have for some years, streams and archives City Council meetings. This gives you a chance to see how intrusive and repressive the Mayor's shutdown time of 2 minutes really is (compared with the Board of Supervisors allowing all speakers 3 minutes regardless of the total time, and even allowing them to speak overtime to finish their thoughts).

Negative side: Lane is also disingenuous in suggesting that Council members can't comment on Oral Communications comments. They have and do, when they want to. It's my understanding that they just can't vote on them without first giving the public 72-hour notice. It's a nice excuse for not making any meaningful comments if they don't want to.

NO LEGAL POSTING OF THE AGENDA
Note also that at the current time, members of the public don't have a physical place where they can view the Council agenda 72-hours before. The City Manager, Head of Parks and Rec, City Attorney, and Police Chief have colluded to make it illegal to walk on City Hall grounds after 10 PM at night. So the City is arguably in violation of the law as well as the spirit of the Brown Act, written to guarantee the informed public access to public meetings.

DOWNGRADING ORAL COMMUNICATIONS; NO 3 PM ACCESS FOR THE HOMELESS
It's unclear why Lane is devaluing and downgrading Oral Communications--which is the only forum for people who want to publicly raise issues that City Council members don't (other than costly and time-consuming voter Initiatives, or raising tens of thousands of dollars to elect different City Council members). Except that he's apparently signed on to the staff-dominated Council process.

In spite of his professed passion for meeting homeless needs, he's rejected the early Oral Communications option, which is the only way homeless people, who also need to be line by 4 PM for the limited emergency shelter programs made available to less than 10%, can be heard publicly.

Finally, Lane's statement that he's giving everyone " a lot more than 72 hours notice that Oral Communications will be an item on the 3 pm agenda of each regular council meeting" begs the question of when it will be and whether he'll even follow the agenda, allowing himself the loophole of "mayoral discretion".

On the positive side:
http://www.indybay.org/newsitems/2012/02/22/18707952.php
Mayor Lane Releases History of Community Contacts