San Diego city attorney weighs in on limiting public comment at council meetings

San Diego city councilmember Scott Sherman's proposal to reduce the time residents are allowed to speak at council meetings and cut the television feed during non-agenda public comment has hit a road block.

In an April 24 memo from the city attorney's office, chief deputy city attorney Prescilla Dugard said Sherman's proposal would not only deviate from city council procedure but could result in Brown Act violations, thus opening the door for potential lawsuits.

Sherman first proposed the rule changes in a January 2017 memo, http://sdcitybeat.com/news-and-opinion/spin-cycle/giving-the-finger-to-public-comment/ In his proposal Sherman questioned the need for city staff and councilmembers to sit around and listen to the same "ten individuals speaking on the same topic each meeting."

Continues Sherman's memo, "This usage of non-agenda public comment is a subversion of the intent of the legislation. I would request a review of requirements for non-agenda public comment, including but not limited to the ability to only provide audio of the comments.”

The second part to Sherman's proposal included cutting off the television feed during non-agenda public comment. Doing so, surmised Sherman, could potentially save city staff and other citizens from having to sit through meaningless comments from citizens whose only aspiration was to make it on television.

Chief deputy city attorney Dugard, however, said city officials should use "discretion" when deciding whether to limit public comment, regardless of whether the item is on the agenda or for non-agenda comments.

"We concluded that Council has wide discretion in limiting public testimony, but that the exercise of discretion must not be arbitrary or capricious," reads Dugard's memo.

Dugar added that councilmembers could potentially change the policy to limit public comment at council meetings if the public had already had a chance to comment during a committee hearing, assuming that the proposed legislation did not undergo any significant changes.

As for Sherman's call to cut the television feed, Dugar warned that there must be a "reasonable basis for doing so. Any proposed limitation on the city’s audio broadcast of non-agenda public comment would need further legal review of constitutional issues, including potential First Amendment and Equal Protection clause issues."

As reported by the Reader, a local non-profit sued the city for a 13-year-old policy of only allowing non-agenda public comment on only one of two weekly council meetings. The city opted to change the policy instead of fighting the policy in court. In January 2017 the city paid $70,000 in legal fees to dismiss the case.

It is unclear whether councilmember Sherman or his colleagues will pursue the proposed changes. Sherman's office declined to comment for this article.