San Diego council guilty of limiting access?

A government watchdog group that sued the city for denying citizens a chance to speak on non-agenda items during San Diego City Council hearings should have their day in court, ruled a panel of appellate judges on May 31.

The Center for Local Government Accountability filed its lawsuit in September 2014. The lawsuit centered on a 2001 council decision to consolidate Monday and Tuesday council hearings into one meeting. By doing so, the council was allowed to limit public comment to just one of the two council hearings. The purpose, according to former councilmember Ralph Inzunza, was to grant additional time for residents who wished to speak on docketed items more opportunity to speak.

The policy was in place until 2014, when the group's attorney, Craig Sherman, alleged that the practice violated California's Brown Act. City attorney Jan Goldsmith subsequently took a look at the issue in a October 2014 memo. The memo concluded that both sides had viable arguments.

"...[I]t can be argued that the council is charged...with ensuring 'the intent' of the Brown Act's provision for public comment 'is carried out,' read the memo. "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."

Despite Goldsmith's warning, the council opted to litigate the matter. Then, in January 2015, the council decided to change course and allow for public comment during both days; at the same time, the council refused to settle the lawsuit with a guarantee that the policy would not be reinstated.

In May 2015 a San Diego Superior Court judge dismissed the case due to a procedural error. The group appealed. On May 31 their ruling was officially published.

"...[T]he city's counsel acknowledged the change in the city's practice for handling non-agenda public comment periods did not equate to a change in the city's legal position. The city still consider its two-day regular weekly meetings to be one continuous meeting, rather than two separate meetings, for Brown Act purposes. The city also has not conceded its former practice of allowing only one non-agenda public comment period violated the Brown Act. Thus, the [Center for Local Government Accountability] may be able to at least plead a viable claim for declaratory relief."

The ruling sends the issue back to the trial court.

In a statement, attorney Sherman said, "The City is supposed to be the guardian of the public’s rights, not advocate and find ways to quash and limit them. Time and time again local agencies need to be reminded by the courts and groups like the [Center for Local Government Accountability] that they must diligently and proactively ensure compliance with all of the Brown Act. The public enforcement provisions of the Brown Act are meant to be a deterrent, not a safe harbor provision that reads: ‘catch me if you can; if you do, send me a letter and I will fix it.'”