Attorney General’s Office declines to take further action on Santa Ana Brown Act complaint

I received an email Wednesday from Senior Assistant Attorney General Gary Schons regarding the complaint I filed last week regarding the possible violation of the Brown Act which had occurred at the August 2, 2010 meeting of the Santa Ana City Council. As we have previously reported, Council member Claudia Alvarez had interrupted and then terminated the speaking privileges of Albert Castillo because he was “personally attacking” the mayor. Alvarez had also added; “We all know that you’re supporting a contender that is running for mayorship that is not this mayor, I am not stopping you from freedom of speech, I’m stopping you from personal attacks; Because next thing you know you are going to start talking to him saying that he is self interested.

Schons wrote,

Based on our review, we do not believe that a legal action, authorized by section 54960, is necessary or justified. First, it does not appear that Council Member Alvarez’s conduct was clearly a violation of section 54954.3. Appropriately, the rules of the Council direct that public comment be limited to matters within the jurisdiction of the Council or a committee of the Council or City. In the incidents cited in your complaint, the speakers arguably were attempting to comment on matters or issues not related to the jurisdiction of the Council, a committee, its members or the City. For example, the Mayor’s vote or support in 1994 for Proposition 187 is not related to the governance of the City of Santa Ana or the Mayor’s role or duties as a city official. If Council Member Alvarez’s conduct of the chair in any way infringed on the opportunity for public comment provided for by section 54954.3, it was de minimus, and you have referenced but two instances of such conduct. This does not justify the filing a legal action. 

Schons further stated that he had spoken with the City Attorney who advised him “that the Mayor has asked the City Clerk and City Attorney to carefully review the language of the speaker’s advise card related to the City’s rules for addressing the council, and that is being done. Finally, the City Attorney has advised the members of the council that public speakers should have the opportunity to address and criticize the positions of the council and its members on matters relating to the governance of the city. We believe that the actions which have been and are being taken by the City, in large part, in reaction to your complaint, have redressed any possible past transgressions of section 54954.3 and are appropriate to ensure future full compliance with that section. Accordingly, the Attorney General will not be taking any further action on your complaint.”

This opinion from Mr. Schons is far from a binding or even advisory opinion. It is simply the decision of the Attorney General’s office that they are not willing to take further action. I do have to differ with Schons’ interpretation that Ms. Alvarez interruption of Mr. Castillo was because he was “attempting to comment on matters or issues not related to the jurisdiction of the Council, a committee, its members or the City.”  In citing Castillo’s reference to the Mayor’s support of Prop 187 in 1994 as justification for stopping him from addressing the Council, he ignores the context of the of Castillo’s comments. Castillo was pointing out the hypocrisy of an action that the mayor had taken at a previous meeting, his reference to Prop 187 was not his reason for speaking nor was it the topic of his remarks. Council member Alvarez specifically stated that she was terminating Castillo’s opportunity to speak because of what he might say. At no time did Ms. Alvarez indicate that she was terminating his speaking opportunity because he was not speaking on a topic within the subject matter jurisdiction of the city council. Alvarez specifically indicated in her warnings to the speaker that he was making comments critical of the mayor and that such comments disrupted the decorum of the meeting as outlined in the council rules for public comment. Schons conclusions are simply not supported by the facts clearly evident in the video.

At the meeting of August 16, 2010 Council member Alvarez offered Mr. Castillo the opportunity to speak. Mr. Castillo was not prepared to speak and was not informed in advance that he would be provided a special opportunity to speak. In her comments at that meeting, Councilwoman Alvarez refused to accept any responsibility or admit any error. She insisted that she had allowed Mr. Castillo all his time, and had not prevented him from speaking, thus she had not violated his rights.  The bottom line is that a judge could be asked to rule through a civil suit, brought by an interested party, as to whether or not the city violated the Brown Act in terminating Castillo’s right to address the Council and whether or not the remedy offered was sufficient to address the violation. The judge could also be asked to determine whether the city should effect other actions to ensure future compliance with the Brown Act.

I believe that if it wasn’t for this complaint, the City Council, including Ms. Alvarez, would have continued its narrow interpretation of the Brown Act. Now that the Council is aware that people are watching what they do, they are more likely to avoid future apparent violations of the Brown Act. The fact that people are watching is one that every government body should be aware of. In an environment where the actions of a board can be spread rapidly over the internet, attention to detail, as well as appearances, should be a priority. So keep up the pressure on all public boards and committees to be open and transparent in what they do. Be sure to remind them at every opportunity, that they work for you and it is your right to be critical of their official actions.

Below are a few helpful rules to follow when giving public testimony:

1. Confine your remarks to their official actions or business pertaining to the agency.
2. Keep it civil and do not use offensive language or make defamatory comments.
3. Direct all of your comments through the presiding officer such as; Council member X said this, or Commissioner Y did that.

Stick to these parameters and you should be able to speak your mind with out intimidation.