The City of San Diego's policy of allowing only one day for the public to address city council on matters not on the agenda may be in violation of state open government laws. Currently, according to an October 7 memo from city attorney Jan Goldsmith's office, San Diego is the only municipal government that does not allow citizens a chance to speak at each meeting.

The policy originated in 2001; that year, former city councilmember Ralph Inzunza proposed consolidating the Monday and Tuesday council agendas in order to free up time during council hearings to allow residents who attended to speak on a docketed item.

Inzunza's logic: regular attendees at city-council hearings took up too much time speaking on non-agenda items, quite possibly preventing those residents who wished to speak on docketed items from spending the entire day waiting for their item to be heard.

"Many citizens who do not regularly attend the council meetings have to wait, sometimes for hours, to address the council on items that have been docketed and noticed for a particular day. This is due primarily to a small group of public speakers who attend council meetings on a regular basis and speak on topics that are not on the agenda of the council for a given day. Many times the speakers speak day after day on the same topic and seek no specific action from the Council on any of the items they are speaking about."

Former city attorney Casey Gwinn sided with Inzunza. He concluded that one day of non-agenda public comment was sufficient if council consolidated the two weekly meetings.

After more than 13 years, that legal opinion was put to the test. Craig Sherman, attorney for the Center for Local Government Accountability open-government group, filed a lawsuit challenging the policy.

"The Brown Act specifically requires an opportunity for non-agenda public comment for each meeting and agenda of a local agency such as the city council. [The Center for Local Government Accountability] seeks a Superior Court judgment and declaration of law that [Center for Local Government Accountability] is correct in its interpretation and application of the Brown Act applied to the city and its Monday and Tuesday agendas, and a permanent injunction preventing the city from excluding non-agenda public comment from Monday agendas in the future."

The lawsuit forced Goldsmith and his attorneys to give the policy a closer look. In a move that upset some councilmembers, Goldsmith entered into an agreement with Sherman to put the lawsuit on hold to allow some time for his attorneys to look into the matter.

"When publishing two separate agendas for separate regular meetings on Mondays and Tuesdays, must the council provide for public comments at each meeting?" Was the question in the October 7 memo from the city attorney's office.

"On the one hand, it can be argued that the Council has the right to reasonably control its agenda and is not restricting content or volume of speakers under public comment. It is only designating a time at which the public comments may be made. A two day consolidated meeting is no more than organizing the agenda...and protects other speakers who spend hours waiting to be heard on their matters. There is compliance with the Brown Act, the argument would go, with the Council simply exercising control over timing which it is entitled to do.

"On the other hand, it can be argued that the Council is charged...with ensuring 'the intent' of the Brown Act's provision for public comment 'is carried out.' This provision must be 'broadly construed' in favor of greater public access. Creating a two-day consolidated meeting in order to limit access, the argument would go, does not carry out a law that is intended to facilitate access. What's more, the argument would continue, if the council wants to protect other speakers, it could schedule public comments at the end of the agenda."

Goldsmith concluded that the council could continue to follow its policy and it could win in court. It could also lose.

"Both sides on this issue would have viable arguments. This would be a relatively simple 'test' case that might have statewide impacts. Although the County of San Diego and City of Los Angeles have multiple-day meetings, they provide for public comment on each day."

The council will consider the item at an upcoming hearing. If they continue the policy then the lawsuit will likely resume.