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Mayor Cuts Off Comment in Consent Agenda Crackdown; Brown Act Complaint Rejected
by Robert Norse ( rnorse3 [at] hotmail.com )
Saturday Jun 1st, 2013 10:49 PM
At Tuesday's afternoon City Council meeting (5-28), Mayor Bryant adopted a new repressive procedure which seemed to be made up on the spot to silence me as I opposed the Council's unanimous move to cut the number of Commission for the Prevention of Violence Against Women meetings in half. The cutback was bad enough by itself, but along the way, Bryant's new procedures if followed in the future gag speakers by setting new rules for public comment on Consent Agenda items
For those who want the short version, go to http://www.indybay.org/newsitems/2013/05/26/18737433.php?show_comments=1#18737550 and scroll down to "Public Comment in Freefall". For the long version, keep reading.


THE STEADY MARCH TO CUTTING BACK PUBLIC COMMENT DURING CONSENT AGENDA ITEMS

In the last decade there has been a steady erosion of the public's right to speak.

The Consent Agenda comes shortly after the afternoon session of the meeting opens. It including numerous big ticket items. These are supposedly those that are "non-controversial", but may simply be those the Council doesn't want close public scrutiny on.

Prior to 2007, as at most other local city councils and our own Board of Supervisors, any member of the public could remove an item from the Consent Agenda, have it heard individually, and given (a small amount of) time for individual public comment.


ROTKIN CHANGES THE RULES

In 2005, Mayor Rotkin changed this process (some say as a specific response to my regular discussion of several Consent Agenda items) to allow only 5 minutes total discussion on all Consent Agenda items. See "Having Your Say At City Council Meetings Is a Right, Not A Privilege" at http://santacruz.indymedia.org/newswire/display/18359/index.php and the extended comments for a discussion of this attack on free speech as well as my (rejected) Brown Act complaint at that time.


COONERTY MAKES THINGS WORSE

IN 2007 Mayor Coonerty adopted any even more repressive process. A detailed account is "Mayor Ignores Latest Brown Act Violations " at http://www.indybay.org/newsitems/2008/05/31/18503244.php

His process, adopted without discussion or vote, further abbreviated public comment—this time requiring a Councilmember's approval for an item to be pulled from the Consent Agenda..

Since then members of the public have no longer been able to remove items from the Consent Agenda for individual discussion and vote unless they can persuade a Councilmember to agree either beforehand, or in a 2-minute "persuasion" period. In addition to being a "Persuade Us to Remove An Item For Discussion" period this brief 2-minute period has also become the "Public Comment" period for Consent Agenda items.

This was Coonerty's dodge (and that of subsequent measures) to appear to conform to the Brown Act by allowing members of a token public "comment time" instead of giving them time to speak on each item.. Of course, this simply gags the public. It would require a fast talker or very short comments if one were talking on more than one or two items. The other option--getting a Council member to agree to pull the item to allow an addition 2 or 3 minutes (the usual time allowed for public comment on an individual agenda item) requires explaining why. Which takes up the 2 minutes and prevents discussion on other items.


BRYANT'S HAMMER COMES DOWN

I summarize what happened at http://www.indybay.org/newsitems/2013/05/26/18737433.php?show_comments=1#18737550 (scroll down to "Public Comment in Freefall") and the Brown Act Complaint that follows gives a fuller description.

Essentially Bryant decided that those who request to have an item pulled from the agenda cannot speak on that item if they've discussed it at all when making that request. How is one to persuade the Council to pull an item without discussing it?


MY BROWN ACT COMPLAINT.

Mayor Hillary Bryant
Santa Cruz City Council
809 Center St.
Santa Cruz, CA

Dear Mayor:

At the 5-28 meeting of the City Council, Councilmember Posner pulled Item #1 [Commission for the Prevention of Violence Against Women Bylaws Revision] off the Consent Agenda for staff report and public comment.  Before I had a chance to address that item,  you specifically barred me from speaking in spite of my repeated attempts to do so.  When I attempted to explain, you repeatedly interrupted and overrode me, demanding I not speak.

Your excuse for doing so was that I had made some prior remarks in requesting to have the item pulled from the agenda during the brief two minute period specifically allotted to allow the public to "persuade" the Council to "give permission" to address the item individually, that is, to allow the public (including myself) the normal time to address the item (usually 2-3 minutes) as well as to get a staff report on the item, which is otherwise skipped.   

My previous remarks to the Council were an attempt to persuade the Council open a hearing so I could speak on the item.   I thought I was successful, since the item was indeed removed for a Public Hearing.   I've repeatedly denounced this "begging" procedure required of the public which virtually every other local legislative body state-wide does not require.   However, I followed the peculiar Santa Cruz process which severely limits public comment in place since it was unilaterally declared by then-Mayor Coonerty some years ago.

However, when I approached the microphone, I was not permitted to speak.    You allowed NO time for me to speak on the item, rudely cutting off my microphone, and ignoring my attempt to remind you of your Brown Act obligations under section 54954.3a which provides "Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body..."

The system imposed by former Mayor Coonerty and continued by you is a bizarre and chilling restriction on the public trying to speak on Consent Agenda items---essentially muzzling the public unless they have the permission of a Council member.  But once that permission is granted, you violate section 54954.3a by not allowing me speaking time on the specific agenda item.

This you repeatedly refused to do.

You compounded this error by refusing to answer my simple repeated question "are you refusing my right to speak?", turning off my microphone, drowning me out, and then moving on to the next item as though no member of the public were standing at the podium waiting to speak, as I was.  I believe the City Council tape will document this sequence of events.

I encourage you to review the tapes of earlier Council meetings wherean item has been pulled from the agenda by a Council member.  You will find that even if a member of the public referred to that item during the 2 minute period for discussion of all Consent Agenda items as a lump/requests to pull of items, they were allowed, indeed authorized, to speak for 2 minutes along with any other speakers.

I understand this is your first year as Mayor.  But it is important that your error not be allowed to stand as a precedent.  Nor do I feel my right to speak was respected, little as you may like what I have to say.  Since I indicated I was likely to be critical of your and the Council's action, I think it's also the case that a prejudicial content-based motivation was involved here--which violates another provision of the Brown Act--54954.3c which states the Council "shall not prohibit public criticism of the policies, procedures, programs, or services of the agency."
 
Accordingly I demand that this item be revisited at the next City Council meeting, that any action taken on it at this meeting be declared null and void, and that I and other members of the public be allowed speaking time as provided for. 

It is not a matter of discretion for the Mayor to "allow" public comment time, as you incorrectly asserted.  It is mandatory under section 54954.3a requiring public comment time for each agenda item.    This is particularly the case when a member of the City Council (under the authoritarian rules you are following) removes an item for discussion by the public, as happened here.

This is not simply a matter of rules, but of common sense.   You only allow members of the public a 2 minute period for all the Consent Agenda items as a mass.  If we use this time, to urge you to remove an item from the Consent Agenda for the regular discussion (though other legislative bodies allow this as a matter of right not permission), will you then tell us--as you told me--that we have "already discussed the item" and cannot speak on it further?  Does that mean all we can say when we initially approach the  Council is "I wish to pull an item" but give no further argument lest you censor them if the item is actually pulled in order to speak further on the item?   This not only defies common sense, but also the original process.

To reiterate:  Members of the public are put in the position of having to say nothing during the short period of time you allow them to request that items be pulled from the agenda except that they want that item pulled---or such seemed to be your standard with me.   The result is they got no comment time at all on the item if no Councilmember agrees to pull it.  What it means in practice is that folks won't attempt to pull items, but will cram any and all comments they have on 5-20 Consent Agenda items into a total time of 2 minutes--a severe restriction on Public Comment.

This is an impermissible double bind which violates section 54954.3a and unfairly burdens the public, particularly since many matters of financial importance are often on the Consent Agenda.

As someone who respects the state Open Meetings Act, I'm sure you will take the necessary steps to correct this error by annulling any action taken and revisiting the item next Council meeting to restore the Public Time you cut off.    Please advise me where on the next Council meeting agenda this particular agenda item will be revisited--this time with full legal compliance.

Sincerely,

Robert Norse
(831-423-4833)


THE MAYOR'S RESPONSE

From: Hilary Bryant [mailto:HBryant [at] cityofsantacruz.com]
Sent: Wednesday, May 29, 2013 3:19 PM
To: 'Robert Norse'
Cc: John Barisone
Subject: RE: Brown Act Complaint

Robert,
I am confident that I complied with the Brown Act yesterday in connection with your ability to substantively comment to the Council relative to the agenda item you reference. However since you question whether you were accorded your legal rights, I am forwarding your email to the City Attorney for any further response he might deem advisable. Thank you. Hilary


THE CITY ATTORNEY'S RESPONSE

From: JBarisone [at] abc-law.com
To: rnorse3 [at] hotmail.com
CC: hbryant [at] cityofsantacruz.com
Date: Thu, 30 May 2013 08:42:02 -0700
Subject: FW: Brown Act Complaint
With respect to regular City Council meetings, the Brown Act requires that members of the public be accorded the opportunity to comment on an agenda item before or during the Council’s consideration of that item.

You were accorded that opportunity and addressed the Council for approximately three minutes concerning Agenda Item 1 prior to the Council’s discussion, consideration and vote on that item.

Specifically you seconded the comments of Ms. Greensite who, like you, addressed the Council for about three minutes and objected to the CPVAW reduced meeting schedule being proposed to the Council.

You further based your objection to the proposal on your contention that rapes in the community are inadequately investigated citing a poor closure rate for such investigations. You also based your objection on the fact that less CPVAW meetings would result in fewer opportunities for members of the public to publicly register their concerns relative to CPVAW issues to the Commission.

You argued that Ms. Greensite should be accorded more time to complete her comments and that the Council should not approve the CPVAW agenda item as part of its consent agenda but rather, as was subsequently done by the Council in accordance with your suggestion, pull the item and discuss it publicly before voting on it.

In addition to addressing the item at hand you used the time you had to speak, as you regularly do, to criticize the Council for the manner in which it conducts the consent agenda portion of its regular City Council meetings, this time contrasting the Council’s procedure with that of the City of Monterey.  

Based upon the foregoing, it is my opinion you were accorded your Brown Act commentary rights. Accordingly, I will not be advising the Mayor to comply with any of the demands you make in your May 29th correspondence to her.  

Thanks, JGB


COUNCILMEMBER POSNER'S RESPONSE TO THE CITY ATTORNEY'S OPINION

From: MPosner [at] cityofsantacruz.com
To: JBarisone [at] abc-law.com; HBryant [at] cityofsantacruz.com; rnorse3 [at] hotmail.com
Date: Fri, 31 May 2013 11:30:35 -0700
Subject: RE: Brown Act Complaint

Dear John and Hilary,
I entirely agree.
Micah


MY RESPONSE TO THE CITY ATTORNEY, THE MAYOR, & POSNER

From: rnorse3 [at] hotmail.com
To: jbarisone [at] abc-law.com
CC: mposner [at] cityofsantacruz.com; hbryant [at] cityofsantacruz.com; dlane [at] cityofsantacruz.com; ....
Subject: RE: Brown Act Complaint
Date: Fri, 31 May 2013 12:08:57 -0700
John: 

So, to be clear at future Council meetings,  a member of the public can either

(a) make a request that an item be removed from the Consent Agenda, but not argue for why that should happen in terms of the specific concerns they have (and risk not being able to say anything about it no Councilmember agrees to remove it).  or
(b) speak about the item and request it be removed, but then not be able to speak during the Public Hearing time. or (perhaps)
(c) at the whim of the Mayor at the moment, a, b, or some mixture of the two depending on her feelings towards the speaker.  ?

I think it's important the public know what the process is.

Thanks, Robert


MY LETTER TO DON LANE (unanswered as of yet)

From: rnorse3 [at] hotmail.com
To: dlane [at] cityofsantacruz.com
CC: ...
Subject: FW: Brown Act Complaint
Date: Fri, 31 May 2013 12:00:23 -0700
Don:

I may already know your answer, but just wondering if you agree with this new assessment of Consent Agenda process.  That is, that one can either say nothing about an item and simply request it be pulled from the agenda, or say something and then be silenced when the item is heard individually.

I'm sure you know that was not the original process, since you were around enough to know that public comment (even by those asking that an agenda item be pulled and making some initial comments on it) was allowed on those few items that were pulled from the agenda. 

Or do you have a different recollection?  I found it telling that you--who's probably had more experience on City Council than any other member--were silent as this abuse of process went down.

R

Comments  (Hide Comments)

by G
Sunday Jun 2nd, 2013 7:54 AM
The 'representative' that would spend 4x time, complaining about speakers going over time?

Classic bureaucratic stalling technique.

"It used to be said there were two kinds of chairs to go with two kinds of Ministers: one sort that folds up instantly, the other sort goes round and round in circles." -- Yes, Minister
by Dan
Sunday Jun 2nd, 2013 9:02 AM
Robert doesn't realize how forbearing the City of SC is, compared to Fresno. Here in Fresno, folks like Robert are regarded as being one step short of being terrorists according to our local paper. We routinely have armed police officers at our City Council meetings, to enforce the rules of decorum. He'd hate Fresno in about 30 seconds.
by deep cover
Monday Jun 3rd, 2013 8:33 AM
The pawns on the board will only follow the queen of course.

Arguing Brown act and getting complaints on board are good for documentation but you're not going to win this. It's not like the city council or attorney are going to go...OMFG he makes a GREAT point, we're going to be more open now. They have their marching orders/agenda. there new guard is in place, old style protests and complaints won't work. New paradigms need to be explored.

Now what is curious about this event is this...why is the city council cutting in half a project regarding women?


I know the City council hates poor and homeless people, but is there now a war on women despite all the claims of supporting women's services?

by Dan
Monday Jun 3rd, 2013 9:21 PM
Would be: what does the commission accomplish? Does it advise the city on how best to allocate funds on women's programs or is it simply a feel good committee set up to provide a venue to vent. If the latter, I can understand why it might be better to use some of the funding for its meetings elsewhere.
The Commission is a watchdog group for starters. They also provide self defense classes as well as education in various venues as to the nature of sexual assault whether it be date rape or stranger rape, prevention, counseling, etc.

When filled with members who care, they ask questions, hard one's which no one else seems to ask or want to work on.


For instance, for all the complaints about property crime in the city, there are a number of sexual assault each year where no arrests are made and convictions even fewer.

SCPD has a HORRIBLE record on closing sexual assault cases. Prosecutions are worse. There seems to be an institutional issue regarding this crime and I suspect the reason why SC City council wants to reduce funds to the group is because they don't like the daylight being shined on the city's attempt to coverup the ineptitude of the SCPD regarding these cases.


Far worse than the property crime that TBSC is always complaining about are the number of rapes, public exposure, groping, molestation incidents and attacks that occur both in the city and up on UCSC. As you probably know Dan, reporting rates are much lower than actual events but even with reports SC ranks as a city with a high incidence of sexual crimes.


UCSC dealt with this issue by getting rid of the Rape Prevention Education Center (and Jillian Greensite) and then creating a new position hidden in the Student Health Center.


So yeah, I guess maybe SC City is going to follow UCSC's lead. I suppose I'm not surprised that the City Council wants to limit comments and reduce watchdogs on how poorly the city is doing on this issue I'm just surprised they are so blatant about this.

Also surprised there is not ANY outcry from the public about this.
by John Brown
Tuesday Jun 4th, 2013 9:43 AM
You have a point that the city council's procedure for deciding whether to remove an item from the consent agenda to be discussed separately is more confusing than the procedure of the county board of supervisors, but that doesn't rise to the level of violating the Brown Act. It really doesn't matter how many neighboring communities have a different procedure. You were afforded three minutes to address the item, which is reasonable and customary and seems to comply with section 54954.3. Your quotation of that section left out the part which says, "before or during the legislative body's consideration of the item".

You might want to look at Coalition of Labor, Agriculture, and Business, et al v. County of Santa Barbara Board of Supervisors, 129 Cal.App.4th 205 (2005), which says: "After trial, the court determined that the Brown Act did not compel the Board to allow the public to speak on what items would be placed on the agenda... The judgment is affirmed. Costs are awarded to respondents." Of course every case is different and in that case members of the public wanted an item added to an agenda.

You misspelled Mayor Bryant's given name. It is Hilary. To Dan, the Santa Cruz city council often has a sergeant-at-arms.
"Also surprised there is not ANY outcry from the public about this."

When law enforcement came by to harrass PeaceCamp2010, I was the one asking them (often loudly, for months) why they fail when it comes to rape crimes in Santa Cruz. Not a single one seemed to care, at all. One of the motivations for PeaceCamp2010 was to create a safe place for women to sleep (which is why Norse was such an irritant). Perhaps that isn't the 'public' to which you refer?

Local walled people, on campus and off, have gathered and made noise, from time to time. Sometimes politicians will too, when trolling for money or votes. Law enforcement is where the rubber breaks. Not an easy fix, for those gangsters are allowed to suppress with force, and rapists aren't on their radar.

Back to the topic: Of course public comment is under attack. Ideological dissent is dangerous to authoritarian settings. There are some simularities between monopolizing the microphone and non-consensual acts, so it isn't surprising to find both co-existing...
Full disclosure---Greensite wrote me afterwards that she felt we both had been given adequate comment time, and that there was no violation of the Brown Act.

I think the new Bryant process does require either not asking for a Councilmember to pull the item and commenting on it, or commenting on it and not asking that it be pulled. My letter to Lane elaborates on this--though I thought it was quite clear that it creates an impossible double bind.

The issue of low rape closure is one Greensite has spoken of at numerous times on my show--and those shows are archived. See http://www.indybay.org/newsitems/2008/02/10/18478155.php for a listing of past shows where she discussed CPVAW failings, the SCPD wretched rape investigation record, and related issues.



GREENSITE'S LETTER TO COUNCIL

Mayor and Council members,

You've already voted on this item but that vote may have been partly based on incorrect information communicated by a council member.

CPVAW does NOT do most of its work in sub-committees. It does most of its work in ad hoc committees. Ad hoc committees are not agendized, are NOT open to the public except by invitation and the meeting site is not available. There is no publicly posted agenda nor are minutes taken. The only CPVAW sub-committee is the police sub-committee which meets 3 times a year ( it used to meet monthly).

The monthly meetings are the only public forum for public participation. To cut the meeting numbers in half effectively reduces public participation by half. If that is your goal, it is achieved by your vote.

Respectfully,

Gillian Greensite



LANE'S REPLY TO MY LETTER

From: dlane [at] cityofsantacruz.com
To: rnorse3 [at] hotmail.com
CC: HBryant [at] cityofsantacruz.com
Date: Wed, 5 Jun 2013 15:48:21 -0700
Subject: RE: Brown Act Complaint

Hi Robert

Thanks for writing.

I found it telling that you found my stance telling. You always seem to know my thoughts and motives so much better than I know them myself. Frankly, I’m not sure why you bother to ask-- especially when we both know ahead of time that you will likely dismiss my comments on a subject or interpret those comments to fit into your own view of reality as you provide an unnecessarily nasty jab accompanying your interpretation.

Even knowing that this is where you are likely headed, I’m happy to answer your question.

1) I believe Hilary was in compliance with the Brown Act.

2) When I chaired council meetings I used the approach you described as past practice. I understood that to be “the way we do it” but sometimes thought it did lead to a repetition of comments.

I did not criticize Hilary for how she handled this because I thought you did have a solid opportunity to comment.

Just because Hilary does not chair council meetings exactly as I did is hardly a reason for me to criticize her or interrupt her. She generally chairs the meetings better than I did.

Thanks

Don

Don Lane
City Councilmember
City of Santa Cruz
831-420-5022
by Robert Norse
Thursday Jun 6th, 2013 9:56 AM
Gillian Greensite has clarified in a subsequent e-mail that her comments of more than five years ago regarding rape closure rates for the SCPD may not be current. My concern in making the comments I did at City Council to have the item shrinking the CCPVAW down to half as many meetings was to get her further comments--which she did not stay to make, feeling she had "used up her time".

As I repeatedly noted above and as Don Lane confirmed, this was not the past process, which clearly allowed those individuals to speak for another 2-3 minutes on those rare occasions when a Council member could be coaxed to pull an item from the Consent Agenda.

It may seem almost irrelevant to express concern about Public Comment time since Council--in the absence of huge public pressure--seems simply a ratifying body for the staff. And on a morning when we now hear that Fuhrer Obama has been surveilling all of our phone calls under secret (still undisclosed) provisions of the Patriot Act. according to Amy Goodman's guests on today's Democracy Now!

But, I still think acting locally requires holding local officials accountable and letting the local community know what's up. There will probably be more discussion on this issue during my show tonight (6-8 PM).

I'll also be discussing the final reading next Tuesday of the two Public Safety Scare anti-homeless laws (No First Amendment on Medians and Roundabouts Law and Parks for the Privileged Ordinance--a year in jail for refusing to leave a park when told to do so). Tune in at 101.3 FM, stream in at http://tunein.com/radio/FRSC-s47254/, call in at 831-427-3772, and/or check the archive subsequently at http://www.radiolibre.org/brb/brb130606.mp3 .
by RazerRay
Thursday Jun 6th, 2013 10:17 AM
In Santa Cruz one can only imagine they typically meet their victims at the skanky yet lucrative 'bar scene' downtown. Like the one who met the underage girl at Rosies and raped her on the levee.

SOMEHOW, Rosie's managed to keep it's license to sell liquor... As did the Red Room, which has seen two murders in it's field of view in the last decade.

The local bars are also great places to find someone to stalk. Just ask the female employees of many of the bars who are escorted to their vehicles after work by bar security.

But aside from those pitfalls.

The typical Santa Cruz rapist

Has: Money
Is: Housed
Does: Support Downtown businesses.

I mean, what's not to like about them?

A historical note. Decades ago, a young woman (whose name I know, still lives locally, and will not be divulged here) was raped in the bathroom of the bar that was attached to the now non-existent Greyhound station (The Caravan). That pit was closed the very next day and NEVER reopened under ANY management.
by Robert Norse
Saturday Jun 15th, 2013 5:24 AM
At the June 9th City Council meeting, Mayor Bryant explicitly allowed one speaker (Ed Davidson) to speak at length about an item he wanted removed from the agenda and then again speak on that item after it was removed. (See video at http://sire.cityofsantacruz.com/sirepub/mtgviewer.aspx?meetid=464&doctype=AGENDA --39 minutes into the meeting).

Immediately thereafter she would not allow me to do the same, refusing to clarify whether I would be allowed to speak on the item in asking the Council to remove it for a Public Hearing without sacrificing my right to speak on the item at that Public Hearing as Davidson had. So I felt unable to explain--as Davidson had--why I wanted my item removed for fear that if they removed it, I would not then be able to speak on it.

Since no Council member removed it (Councilmember Posner, in fact, supported Bryant's selective censorship), I had no opportunity to speak on the item at all. This violates the Public Meetings Act that protects the public's right to speak on each agenda item.

Davidson himself commented critically on this muzzling later in the meeting during the 5 PM Oral Communications period, explaining it was not merely unfair on its face, but also precluded the possibility of later court challenge, since one had to speak on an item to have standing in court later. (See http://sire.cityofsantacruz.com/sirepub/mtgviewer.aspx?meetid=464&doctype=AGENDA 2 hours and 16 minutes into the video file).

The whole process of cutting short public access to and debate on Consent Agenda items (which usually take up the lion's share of the Council's business) has been a way of muzzling homeless civil rights activists. When we bring these matters to the City Council, they devise new ways of silencing the public. They move items six hours ahead to late at night, cram everything onto rushed afternoon sessions, interrupt speakers with threats of removal, end public comment on individual agenda items unless a council member agrees, circumvent public commissions, shoehorn public comment into a segregated 5 PM period, and malign members of the public without right of reply.

I'm likely to be filing a second Brown Act demand soon on this.

This all sounds very technical and at some level irrelevant (since regardless of what you say to this Council, it's unlikely they will alter their staff's agenda), however public exposure via the tv cameras can be helpful and ultimately force changes. Or, at least, alert the public to the nature of the beast. That, perhaps, is more important than anything else in setting the stage for the kind of mass movement that will prompt real change.
by Robert Norse
Wednesday Jul 10th, 2013 3:29 AM
BROWN ACT COMPLAINT

From: Robert Norse [mailto:rnorse3 [at] hotmail.com]
Sent: Sunday, June 23, 2013 8:00 AM
To: Hillary Bryant
Cc: David Beauvais; lioness [at] got.net; John Barisone; Ed Davidson; Becky Johnson; J.M. Brown
Subject: Brown Act Complaint re: 6-11


Mayor Hillary Bryant
Santa Cruz City Council
809 Center St.
Santa Cruz, CA

To the Mayor and the Council:

At the 6-11 afternoon meeting of the City Council, Ed Davidson spoke for several minutes describing his concerns about items #6 and 7 on the Consent Agenda, asking that they be pulled for a public hearing. Mayor Bryant then pulled both items and allowed Mr. Davidson to speak on it at the Public Hearing for several minutes. This was after Mr. Davidson had spent several minutes discussing the items (to persuade a Councilmember to pull them for public hearing, and/or provide his opinion on them if they were not pulled).

This procedure would not have been unusual nor worthy of any comment except for Mayor Bryant's response. Allowing members of the public to comment on items to urge they be given a separate public hearing and then additionally speak on them at that public hearing has been standard policy since 2007.

However, at the regular City Council meeting immediately prior (on 5-28), Mayor Bryant used a different procedure, which specifically and uniquely silenced me in my attempt to speak at a Public Hearing held on an item which Councilmember Posner pulled at my request. I discussed this situation in a 5-29 rown Act demand. Without warning, discussion, or public input, the Mayor refused to let me speak on the item pulled at my request for a Public Hearing. She said I'd given comments urging that it be pulled in what seemed to be a new--if unannounced and unexplalned-- policy of further limiting speaking periods for members of the public (or, at least, for me).

This new policy (if it was a policy rather than simply a personal silencing) was apparently to allow no discussion on an item, after it was pulled, if one had spoken on the item in requesting that it be pulled. The rationale was that the member of the public silenced "had already spoken" on the item by arguing that it should be pulled to allow the public to speak on it (an absurd claim, of course, but one which City Attorney improperly upheld in his 5-30 response).

This policy as I've mentioned gives anyone two choices: One: not to speak on an itemat all before it is pulled (other than asking it be pulled) and then speaking on it at the subsequent Public Hearing if a Councilmember deigns to pull it Two: To speak on the item in detail explaining why it should be pulled, but then (following the Mayor's new policy) say nothing on it at all during the Public Hearing. Obviously this muzzles the very speaker trying to pull the policy for discussion at a Public Hearing and flies in the face of all City Council precedent.

This procedure would also seemingly defeat the purpose of the Public Hearing which usually includes a the staff report, Council discussion, and other public input, as well as (prior to the Mayor's new policy) a chance to speak. Unless, of course, the point of the policy was to selectively limit public discussion on Consent Agenda items at the whim of the Mayor and Council in defiance of the Brown Act. This unfortunately seems to be the case.

The very process of not allowing members of the public to pull items for Public Hearings as is done most everywhere else is an undemocratic and arbitrary process that itself violates the Brown Act. Nonetheless it has been standard since 2007 when it was decreed by former Mayor Coonerty without Council or public debate, apparently targeting certain members of the community whose comments on Consent Agenda items he waned to shut down. The Coonerty procedure has not been tested in court, but Mr. Davidson himself at the 6-11 meeting denounced it as clearly violating the Brown Act.

Based on the fact that this policy denies the public the chance to speak at a Public Hearing--and denied me the chance to speak on the items I pulled at both the 5-28 and 6-11 meetings, I demand rehearings on the item and a restoration of the right of the Public to individually pull items from the Consent Agenda and speak on them. Denying the public the chance to speak on an individual item in a noticed Public Hearing violates two sections of the Brown Act: 54954.3a on its face & in my case violates 54954.3c as applied.

Mr. Davidson noted an additional concern. In order to have standing to challenge an agenda item subsequently in court, it is important if not essential to have have made a record by commenting on the item in a Public Hearing.

Above and beyond the impropriety of this "public disallowed from pulling Consent agenda" procedure, Mayor Bryant's new policy of requiring a person trying to pull an item not explain why or else forfeit that opportunity if the item is actually pulled is clearly hamstrings any public speaker trying to do so.

To make matters worse, at the 6-11 meeting, Mayor Bryant pursued an even more discriminatory process that violated both sections 54954.3a & 54954.3c. She allowed Mr. Davidson to return to the old Coonerty-era policy of speaking both to urge an item be pulled, and then, when it was, to speak on it again (which I had no objection to).

I then took my turn at the podium to ask item #3 be given a public hearing, I needed to know whether I would be allowed to speak on the item during the Public Hearing as Mr. Davidson did during his items, as well as make an argument during what I've termed the "begging and pleading" section. (That brief period where members of the public get to speak to ask "permission" to have a Public Hearing).

My dilemma, as I outlined in a prior (5-28) Brown Act demand, was that I needed to know if I had to remain silent other than asking that my item be pulled for Public Hearing. This was because I didn't want to sacrifice my speaking time during the Public Hearing as I'd been forced to do by Mayor Bryant on 5-28.
But my repeated request that Mayor Bryant clarify the situation, clearly indicated by the City Council's videotape, was ignored, leaving me (and the public generally in confusion as to whether I would be allowed to speak.

Mayor Bryant refused to clarify the procedure, in essence, forcing me to remain silent other than requesting the item be pulled--for fear of abandoning my right to speak on the item.

Section 54954.3a of the Brown Act provides "Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body..." Section 54954.3c states the Council "shall not prohibit public criticism of the policies, procedures, programs, or services of the agency."

Mayor Bryant's action was arbitrary, confusing, and denied me my Brown Act rights. It was also clearly discriminatory in that it was not applied to Mr. Davidson.

Accordingly I demand that this item be revisited at the next City Council meeting, that any action taken on it at this meeting be declared null and void, and that I and other members of the public be allowed speaking time as provided for.

I also renew my request that items passed at the 5-28 meeting that I was not allowed to speak on during the Public Hearing also be nullifed and revisited for a fair and legal Public Hearing.

To reiterate: Members of the public are put in the position of having to say nothing during the short period of time you allow them to request that items be pulled from the agenda except that they want that item pulled---or such seemed to be your standard with me. The result is they got no comment time at all on the item if no Councilmember agrees to pull it. What it means in practice is that folks won't attempt to pull items, but will cram any and all comments they have on 5-20 Consent Agenda items into a total time of 2 minutes--a severe restriction on Public Comment.

This is an impermissible double bind which violates section 54954.3a and unfairly burdens the public, particularly since many matters of financial importance are often on the Consent Agenda.

As someone who respects the state Open Meetings Act, I'm sure you will take the necessary steps to correct this error by annulling any action taken and revisiting the item next Council meeting to restore the Public Time you cut off. Please advise me where on the next Council meeting agenda this particular agenda item will be revisited--this time with full legal compliance.

Sincerely,

Robert Norse
(831-423-4833)




CITY ATTORNEY BARISONE'S RESPONSE
[Note: I've broken Barisone's response up into readable paragraphs. His original response was one long paragraph.]

From: JBarisone [at] abc-law.com
To: rnorse3 [at] hotmail.com
Date: Mon, 24 Jun 2013 12:08:16 -0700
Subject: RE: Brown Act Complaint re: 6-11

Since you are once again alleging that Mayor Bryant and the City Council have violated the Brown Act in the manner in which the Mayor and Council allowed public comment on consent agenda items at the June 11, 2013 Council meeting, your email complaint has been forwarded to me for response on behalf of the Mayor and Council (as was your May 29th complaint concerning the Council’s Brown Act compliance at its May 28th meeting to which I responded to you on May 30th).

You once again allege that the Council violated Brown Act (Government Code) Section 54954.3(a) by only allowing you to address items on the City Council’s consent agenda before Councilmembers heard any consent agenda items that they elected to pull from the consent agenda for further consideration.

In doing so you quote a portion of one sentence in Section 54954.3, the entirety of which reads “Every agenda for regular meetings shall 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, provided that no action shall be taken on any item not appearing on the agenda unless the action is otherwise authorized by subdivision (b) of Section 54954.2.”

You omitted to quote the italicized portion of the sentence, most conspicuously that provision which simply requires that the public be allowed to comment on an item “before or during the legislative body’s consideration of the item”. The Council’s practice of allowing members of the public to comment on the consent agenda items before the consent agenda is considered by the Council fully complies with this provision of the Brown Act.

The Brown Act does not contain a requirement that members of the public be allowed to pull items from the consent agenda and does not mandate that a member of the public who has already commented on a consent agenda item be allowed to comment a second time if and when that item is pulled from the consent agenda.

The other Brown Act section you cite, Section 54954.3(c) prohibits the City Council from prohibiting a member of the public from criticizing the local agency or the local agency’s legislative body when the member of the public comments on an agenda item. You have not been prohibited from doing so during your public comment opportunities.

With regard to your complaint of discrimination, you fail to include the category of persons who are legally protected from discrimination that you contend you belong to. I will therefore not be responding to that allegation.

Thank you, JGB
by Robert Norse
Wednesday Jul 10th, 2013 3:33 AM
REQUEST FOR CLARIFICATION ON CITY POLICY AFTER 2ND BROWN ACT COMPLAINT DENIED

From: rnorse3 [at] hotmail.com
To: hbryant [at] cityofsantacruz.com
CC: e-davidson [at] sbcglobal.net; lemasterhearth [at] hotmail.com; lioness [at] got.net; pscheer [at] firstamendmentcoalition.org; jammbrow [at] gmail.com; citycouncil [at] cityofsantacruz.com
Subject: Consent Agenda Policy
Date: Sun, 23 Jun 2013 07:32:09 -0700


Mayor Bryant:


I am puzzled by your current Council rules.

On 5-28, you stopped me from speaking on an item Councilmember Posner pulled for a Public Hearing, saying I had already spoken on that item in the process of arguing for it to be pulled.

On 6-11, you allowed Mr. Davidson to do exactly what you had banned me from doing.

At the same meeting, I requested to know what the procedure was so I should know whether my speaking in favor of pulling an item would ban me from talking about it subsequently if it were pulled.

I also asked for clarification of this issue in my Brown Act complaint of 5-29. Your response was to send the matter to City Attorney John Barisone.

Since what I need to know is what your current rules are--the same question I repeatedly asked you from the podium.

Is it your new policy that you have the discretion to refuse to take testimony from members of the public who have argued specifics in trying to get a councilmember to remove a Consent Agenda item for a separate Public Hearing even if that item is then "granted" a Public Hearing and the person requesting it be pulled then attempts to speak on the item?

Or is this a matter of deciding on a case-by-case basis?

On 5-28, you asserted that it was a matter of your "discretion". But as someone who speaks regularly on Consent Agenda items, I need to know specifically and clearly what the policy is. I also think this is a matter of general concern. You may recall Ed Davidson also noted his concerns at the last meeting.

What's the policy?

Thanks,

Robert Norse


2ND REQUEST FOR CLARIFICATION

From: Robert Norse [mailto:rnorse3 [at] hotmail.com]
Sent: Tuesday, July 02, 2013 9:31 PM
To: Hilary Bryant
Cc: J.M. Brown; Blair of Good Times; scw [at] santacruz.com; edavidson938 [at] gmail.com; Micah Posner; Becky Johnson; Gail (!) Page; Ed Frey
Subject: Consent Agenda Question Still Unclear


Mayor Bryant:

On June 23rd, I e-mailed you an inquiry regarding your policy on Public Comment during the Consent Agenda portion of the City Council meeting.

In it, I requested clarification given rulings that were confusing to me at the June 11th and May 28th meetings, so that I can effectively and knowledgeably participate in future meetings. Others have also asked me just what the policy is, so they can be clear as to what they are allowed to say without sacrificing their opportunity to speak during a subsequent Public Hearing. I include a copy of the June 23rd e-mail for reference.

I realize you may not be happy with my concern about this issue (or about the two Brown Act complaints that you have apparently rejected).

Still, I'm sure you understand that clarifying the policy on this matter both saves time at City Council meetings and serves the broader community as well as the Council itself in facilitating Public Comment during this period (in so far as you allow it).

So please let me and the community know whether one can make arguments for pulling an item from the Consent Agenda for Public Comment without sacrificing one's right to speak on the issue at a subsequent Public Hearing if one is granted through a Councilmember's pulling an item off the agenda for separate discussion and vote.

Apologies, by the way, for the misspelling of your name in the e-mail format--it was an early error and I've been unable to remove it.

Thanks,

Robert Norse
(831-423-4833)


MAYOR BRYANT'S RESPONSE

From: HBryant [at] cityofsantacruz.com
To: rnorse3 [at] hotmail.com
CC: JBarisone [at] abc-law.com; MPosner [at] cityofsantacruz.com
Date: Wed, 3 Jul 2013 10:20:38 -0700
Subject: RE: Consent Agenda Question Still Unclear

Robert:

At my request, John Barisone responded to your inquiry shortly after you submitted it.

Members of the public will continue to be offered the opportunity to substantively comment on consent agenda items prior to the Council’s consideration and vote on the consent agenda. Council Members can then consider these substantive comments in deciding whether to pull consent agenda items. Each member of the public is given a single opportunity to comment on any agenda item. Hence if a member of the public comments on a consent agenda item before it is pulled, he or she does not receive a second opportunity to comment on that item should a Council Member subsequently pull it from the consent agenda.
F

Regards,

Hilary



STILL IN SEARCH OF CLARITY: MY LATEST LETTER

From: rnorse3 [at] hotmail.com
To: hbryant [at] cityofsantacruz.com
CC: jbarisone [at] abc-law.com; e-davidson [at] sbcglobal.net; pscheer [at] firstamendmentcoalition.org; smccord [at] santacruzsentinel.com; jammbrow [at] gmail.com; spleich [at] gmail.com
Subject: RE: Consent Agenda Question Still Unclear
Date: Sat, 6 Jul 2013 03:44:52 -0700

Hilary:

Thanks for your clarification.

What remains unclear is why you allowed Ed Davidson to clearly violate this rule at the 6-11 meeting, as the video file clearly shows?

He spoke at length before the items were pulled and spoke substantively again during the subsequent public hearing after the items were pulled. More to the point, you refused to allow me to do this--which went specifically to content-discrimination as well as ignoring the fact that you had a noticed Public Hearing.

At a more basic level, as Ed Davidson later explained in his subsequent Oral Communication remarks, you were ignoring the right to speak on an item at a noticed Public Hearing. Allowing time to ask an item to be pulled, is not giving the public time to speak on that item.

You can't really have it both ways.

The more important question I have is whether you will at your own pleasure allow some members of the public to speak "twice" (as you describe it) in subsequent meetings?

Incidentally I do renew my Brown Act demand that you redo the items I attempted to pull at the next meeting to comport with both the spirit and the letter of the Brown Act.

I also also ask you to make it clear to members of the public in the future that they will be able to speak on items at a public hearing, whatever they've said in the prior process of begging, urging, or cajoling the Council.

As Mr.. Davidson has suggested, your continued refusal to allow members of the public to do what is accepted, standard, and lawful practice at other local legislative bodies violates the Brown Act by denying members the right to speak at a noticed Public Hearing. Having a pre-Hearing "Begging Session" is not the same thing, nor is it a fair or adequate substitute.

Thanks again for your prompt response.

Robert
by John Smith
Sunday Sep 8th, 2013 9:12 PM
It's a limited public forum so they can regulate time, place, and manner, but they can't restrict speech on the basis of the speaker's viewpoint, as in Good News Club v. Milford Central School, 533 U.S. 98 (2001). Not exactly a Brown Act violation, but could be another federal case for lioness.