Appellate Court Finds That Solar Energy Project Was Not Exempt From City’s Zoning Ordinance

November 2019
Number 75

A recent California appellate court ruling has clarified the requirements for a local agency’s compliance with city or county zoning ordinances. In City of Hesperia v. Lake Arrowhead Community Services District, the Fourth Appellate District held that a community services district did not qualify for zoning compliance exemptions as provided in sections 53091(e) and 53096(a) of the Government Code, after the district had adopted a resolution finding the exemptions applicable in preparation for constructing a solar energy facility.

Background

In City of Hesperia, the Lake Arrowhead Community Services District (District), sought to overturn a trial court’s decision that construction of a solar energy facility did not qualify for exemption from the City of Hesperia’s (City) zoning ordinances. The solar energy facility (Project) was to be constructed on property owned by the District within City limits. The property, which was already in use as a water reclamation facility, was zoned “Rural Residential.” The City’s municipal code provided that “solar farms” were only allowed on nonresidential and nonagricultural property with a conditional use permit and could not be located within 660 feet of agricultural or residential property. Over the City’s objections, the District passed a resolution finding that the City’s zoning ordinances did not apply to the Project, as it was both absolutely exempt and qualifiedly exempt under Government Code provisions specific to energy projects. The City filed suit and prevailed at the trial court level, and the District appealed.

Analysis

Government Code section 53091(a) provides generally that a local agency must comply with “all applicable building ordinances and zoning ordinances of the county or city in which the territory of the local agency is situated.” This case considers two exemptions from this general rule.

Government Code section 53091(e) provides an absolute exemption from local zoning ordinances for the “the location or construction of facilities… for the production or generation of electrical energy” unless the facilities are used for storage or transmission of electrical energy. While the Project was designed to produce energy, that energy was intended to be transmitted to the local utility’s electrical grid. The court concluded that because section 53091(e) does not exempt “transmission” of electrical energy from local zoning ordinances, the Project was not exempt from those ordinances under section 53091(e).

Government Code section 53096(a) provides a qualified exemption to local zoning regulations for a local agency that holds a public hearing and adopts a resolution determining that “there is no feasible alternative to its proposal.” In order to use this exemption, the local agency must properly determine through substantial evidence that no feasible alternatives exist for the location of the proposed facility. The court concluded that the District’s determination that there was no feasible alternative location for the Project was not supported by substantial evidence, and that the District had failed to provide evidence that it had considered “economic, environmental, social, or technological factors associated with an alternative location.” Thus, the Project was not exempt under section 53096(a).

Since the Project did not did not meet the requirements for exemption from the City’s zoning ordinances under either section 53091(e) or section 53096(a), the court ruled that it was not exempt from the City’s zoning ordinances.

Takeaways

The court in City of Hesperia took a narrow view of a local agency’s ability to exempt itself from local zoning ordinances in order to proceed with energy projects. In particular, this ruling makes clear that a local agency’s finding that “there is no feasible alternative to its proposal” must be supported by substantial evidence that the agency had carefully considered alternative locations for its project.

If you have any questions about the City of Hesperia v. Lake Arrowhead Community Services District decision or building and zoning issues in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Claudia P. Weaver

Partner

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

The United States Supreme Court Again Confronts The Reach Of The Establishment Clause

September 2019
Number 40

In American Legion, et al. v. American Humanist Association, et al., the United States Supreme Court, by split decision, ruled that a World War I memorial in Prince George’s County, Maryland, consisting of a cross, did not violate the Establishment Clause of the First Amendment of the United States Constitution, which prohibits the government from establishing an official religion or favoring one religion over another.

In 1918, residents of Prince George’s County formed a committee to erect the memorial for County residents who had fallen during World War I. The committee decided a Latin cross would be an appropriate memorial, as it had become a central symbol of the war and “row after row of plain white crosses” marking the graves of the fallen overseas was a central image on the minds of many Americans. When the Committee ran out of money, the local American Legion completed the memorial’s construction, whose emblem is featured at the center. During the dedication ceremony, a Catholic priest and a Baptist pastor engaged in religious ceremonial activities. The memorial has since been used regularly for patriotic events. In 1961, the Maryland-National Capital Park and Planning Commission acquired the memorial and the land where it sits, but the American Legion retained the right to use the memorial for patriotic events. The memorial has been maintained with public funds since the commission took possession of the memorial. In 2012, a group of local residents filed a lawsuit arguing the memorial violates the Constitution’s Establishment Clause. The case ultimately made its way to the Supreme Court.

For context, in 1971, the Supreme Court established the “Lemon test” in Lemon v. Kurtzman. Under the Lemon test which was intended to determine whether a governmental practice violates the Establishment Clause, a court analyzes a governmental practice’s constitutionality based by reviewing whether: (1) the practice has a secular purpose, (2) the practice’s principal effect advances or inhibits religion, and (3) the practice creates an excessive government entanglement with religion. Over time, various members of the Court, past and present, have criticized the Lemon test.

In his opinion in American Legion, Justice Alito declined to apply the Lemon test to the instant case, reasoning that although the cross is historically a Christian symbol and continues to have that meaning today, it has become secular in other contexts. As such, in this instance, the cross’ status as a “central symbol” of World War I explains the choice to use a cross as the memorial. Justice Alito further observed that the Lemon test attempted, but failed, to “bring order and predictability to Establishment Clause decision making.” In reaching this conclusion, the Court noted that “retaining established, religiously expressive monuments” was different than creating new ones, primarily because: established, religiously expressive monuments are often old, and it is difficult to determine the monument’s original intent; over time, the purposes and intent associated with a particular monument increase or, even if the monument was originally associated with religion, the passage of time diminishes that sentiment and the monument is retained for its historical significance; the message of a monument may evolve; and when the passage of time gives a particular monument familiarity, the removal of the monument may not appear neutral.

The Court also found that the memorial clearly had, at least, the secular purpose of memorializing the fallen, which also became important from a historical perspective. The memorial reminds local residents of the heroism of area soldiers. The Court also noted there is no evidence that Jewish soldiers were either “deliberately left off the list on the memorial” or “included on the Cross against the wishes of their families.”

In Justice Breyer’s separate concurring opinion, joined by Justice Kagan, he concluded that the most important consideration in each case is “the basic purposes that the Religion Clauses were meant to serve: assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its separate sphere.” Justice Breyer’s words could potentially have the effect of narrowing the impact of the decision by making it clear that these cases must be decided on a case-by-case basis.

A majority of the Court seems to agree that the Lemon test’s applicability to all Establishment Clause cases is no longer (and has not been) an absolute. The Court also made clear that the Lemon test does not fit well with cases involving long-established, religiously expressive monuments.

Local governments should take note of this opinion as it will have an impact on what type of religiously-themed monuments are allowable under the Establishment Clause and whether any existing religiously expressive monuments are in violation. Under American Legion, it appears monuments which are established, have assumed a role in history and/or society beyond religious symbolism, and provide some sort of community function aside from religion, are more likely to be allowed under the Establishment Clause.

For more information about the American Legion case, the Establishment Clause, or other constitutional questions common to governmental entities, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Sloan R. Simmons

Partner

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

The California Court of Appeal Has Spoken, Not Just Anyone Can Be Elected County Sheriff—So Says County Clerk

April 2019
Number 20

In 2017, basketball Hall-of-Famer Shaquille O’Neil was sworn in as a deputy sheriff of Henry County, Georgia. The momentous occasion concluded with a moment levity at the end of the swearing-in ceremony when Mr. O’Neil announced his candidacy for County Sheriff in 2020. His wit was fueled by the tacit understanding that county sheriff is a position requiring the qualification of sufficient prior law enforcement experience. World-class basketball skills, although highly important, are woefully insufficient to inform the leadership of a county’s most powerful elected official. Needless to say, Shaq’s announcement was not taken seriously. The ceremony was, for the most part, a publicity stunt. However, the case ofBruce Boyer v. Ventura County (2019) was not.

On February 22, 2018, Mr. Bruce Boyer, a citizen of Ventura County, who had no prior law enforcement experience, submitted his application to be placed on the ballot for county sheriff. Unlike Shaq, Mr. Boyer was serious. As is required by law, upon review of Mr. Boyer’s application, the County Clerk requested documentation of his qualifications for the office of county sheriff.

Importantly, this case illustrates the role of a county and city clerk as a critical gatekeeper charged with the fundamental and important duty to review documents for statutory compliance. In many cases, a vigilant clerk can avert serious and costly problems. In other cases, a seemingly benign mistake can metastasize into a constitutional crisis. The case of Mr. Boyer is an ode to vigilant clerks.

Mr. Boyer, having neither sufficient documents nor sufficient qualifications, took the matter to court where he argued the qualifications requirement was unconstitutional and the Clerk’s refusal to place his name on the ballot denied citizens of their First Amendment right to vote for elected officials of their own choosing. The trial court disagreed with Mr. Boyer and he appealed the case to the California Court of Appeal, where he made the same arguments a second time.

According to the California Elections Code, no person shall be considered a legally qualified candidate for sheriff unless their declaration for candidacy is accompanied with documentation showing they meet the statutory qualifications. The minimum qualifications are either of the following:

  • An advanced certificate issued by the Commission on Peace Officer Standards and Training;
  • One year of prior full-time law enforcement experience and possession of a master’s degree;
  • Two years of prior full-time law enforcement experience and possession of a bachelor’s degree;
  • Three years of prior full-time law enforcement experience and possession of an associate’s degree; or
  • Four years of prior full-time law enforcement experience and possession of a high school diploma or equivalent.

To support his case, Mr. Boyer argued a prior appellate case ruling unconstitutional Legislative predeterminations for Superior Court judge candidate qualifications similarly applied to, and rendered unconstitutional, the Legislative statute establishing the minimum qualifications for county sheriff. In rejecting Mr. Boyer’s argument, the Court of Appeal held the California Constitution expressly directs the state Legislature to provide for the election of a sheriff for each county, which means the Legislature can determine the qualifications for that office. No such delegation of constitutional authority existed for Superior Court judge. Therefore, the precedent Mr. Boyer relied upon did not apply for his situation.

Mr. Boyer then argued the minimum qualifications requirement violated the First Amendment in that it restricted the pool of sheriff candidates to law enforcement personnel only, thereby excluding civilian viewpoints from being heard. Mr. Boyer went even further to argue “candidacy for public office is a fundamental constitutional right.” The Court of Appeal relied on well-settled United States Supreme Court precedent to reject that argument. Candidacy for public office is not a fundamental constitutional right.

California Court of Appeal precedent also informed the court’s opinion. In 2003, a staunch gun rights advocate with no prior law enforcement experience attempted to run for Sheriff of Santa Clara County on the promise that he would approve the majority of concealed weapons permit applications. There, the plaintiff argued his First Amendment rights were violated because the qualifications requirement impaired access to the ballot. The Court of Appeal rejected this argument. The court maintained this position again in Mr. Boyer’s case.

According to the California Court of Appeal:

“There can be no doubt that the state has a strong interest in assuring that a person with aspirations to hold office is qualified to administer the complexities of that office. And the authority of the state to determine the qualifications of their most important government official is an authority that lies at the heart of representative government.”

Perhaps Shaquille O’Neal will have better luck in 2020.

For more information on Bruce Boyer v. Ventura County, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

William P. Curley III

Partner

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Brown Act’s “Committee Exception” Does Not Apply To Special Meetings

March 2019
Number 18

A California appellate court has focused on the distinction between a regular meeting and a special meeting of the local legislative body when considering an exception to public comment under the Ralph M. Brown Act (Brown Act). In Preven v. City of Los Angeles (Preven), the Second District Court of Appeal found that the City of Los Angeles had improperly relied on the Brown Act’s “committee exception” to stop public comment during a special meeting regarding a topic that had properly been addressed by a committee composed of City Council members.

Background Information

The Brown Act requires that public agencies provide the public with an opportunity for participation in the legislative process. At a regular meeting, the public has the opportunity to comment on not only agenda items, but also any item within the subject matter jurisdiction of the public agency. During a special meeting, on the other hand, the governing body may limit public comment to only the items described on the agenda.

The Brown Act’s public comment requirement is found at Government Code section 54954.3. Subdivision (a) of that statute sets forth the “committee exception” and specifically references regular meetings:

However, the agenda need not provide an opportunity for members of the public to address the legislative body on any item that has already been considered by a committee, composed exclusively of members of the legislative body, at a public meeting wherein all interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee’s consideration of the item, unless the item has been substantially changed since the committee heard the item, as determined by the legislative body.

Preven specifically focused on whether the exception applies to special meetings as well as regular meetings. The appellant in Preven filed a lawsuit against the City of Los Angeles after the City, citing the “committee exception,” had denied appellant the opportunity to comment at a special city council meeting because he had already spoken at a regular meeting of the City Council’s Planning and Land Use Committee the night before. The trial court ruled that the committee exception applied to both special meetings and regular meetings. The trial court reasoned that appellant had been afforded the opportunity to discuss the agenda item at the committee meeting the night before, and therefore could be barred from comment at the special meeting addressing the same agenda item.

On appeal, the appellate court found the trial court’s holding in error. It held that, pursuant to the plain language of Government Code section 54954.3(a), the “committee exception” does not apply to special meetings at all. The public is entitled to comment at special meetings even where the agenda item was covered at a prior committee meeting.

Takeaways

In light of this decision, a public agency subject to the Brown Act must take care in denying public comment pursuant to the “committee exception.” This exception only applies to regular meetings, and only applies to items which were previously discussed by a committee made up of board or council members, where the public was allowed to address the committee on those same items. The purpose of the Brown Act is to facilitate public participation with local government decisions, and improperly denying public comment could produce an adverse result.

If you would like more information about the decision in Preven or have any questions relating to exceptions to the Brown Act generally, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

William P. Curley III

Partner

Matthew M. Lear

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

PERB Decision Provides Guidance Addressing “Public Hearing” Requirement

March 2019
Number 17

In a recent decision, the Public Employment Relations Board (PERB) addressed the public hearing requirement an agency must satisfy before implementing its last, best, and final offer (LBFO), after completing applicable impasse procedures. In City of Yuba City (2018) PERB Dec. No. 2603-M, PERB upheld an administrative law judge decision dismissing an unfair practice charge brought against the City of Yuba City (City) by Public Employees Union Local 1 (Local 1) alleging violation of the Meyers-Milias-Brown Act (MMBA).

Background

Local 1 alleged that the City unlawfully failed to hold a public hearing before imposing a LBFO in violation of section 3505.7 of the MMBA. Government Code section 3505.7 provides that after completing any applicable impasse procedures, and no earlier than 10 days after the parties receive the factfinding report, the agency “may, after holding a public hearing regarding the impasse, implement its [LBFO]….” This case marks the first time PERB has considered violation of the public hearing requirement as a potential standalone violation of the MMBA.

Local 1’s allegations specifically charged that, by identifying the item on the City Council’s agenda as “Local 1 imposition,” rather than as a public hearing regarding the impasse, and by focusing on the need to impose terms rather than on the disputed issues, the City failed to follow the statutory procedures prescribed by the MMBA.

In rejecting this argument, PERB noted that the agenda and staff report described the parties’ bargaining history, and notified the public that the parties had reached impasse and exhausted impasse procedures. Additionally, the union admitted it had the opportunity to prepare for the Council meeting and had received the agenda and staff report. Further, the Mayor “opened up the public hearing” during the public portion of the meeting. Based upon these facts, PERB concluded that the City had satisfied section 3505.7’s requirement to conduct a public hearing regarding the impasse.

Local 1 also argued that the City did not intend to hold a public hearing regarding the impasse because (1) the “Local 1 imposition” item did not appear on the agenda where public hearings were required to be listed per the City’s local rules and (2) the City failed to provide adequate notice required under the Brown Act of a public hearing regarding the impasse. PERB also rejected this argument on the basis that the City had adequately informed the public that the City Council would be considering imposing the LBFO and the opportunity for public comment had been provided.

In other words, the fact the item was not described as a “public hearing” on the agenda at a particular location on the agenda did not establish a violation of section 3505.7’s public hearing requirement under the facts. Rather, PERB clarified that section 3505.7’s public hearing requirement is satisfied when the agency (1) provides adequate notice to the public that it intends to consider imposing terms and conditions on employees (the LBFO) and (2) allows public comment concerning the proposed imposition of the LBFO.

Takeaways

While the PERB’s decision was dependent upon the facts in this case, there are some important takeaways:

  1. After completing impasse procedures and before imposing an LBFO, agencies should ensure that section 3505.7’s public hearing requirements are met. To reduce exposure to similar claims, the agenda should clearly describe the item as a “public hearing regarding impasse pursuant to Government Code section 3505.7,” or words to that effect. Local rules pertaining to agenda requirements (e.g. location of hearings on agenda and timely posting, etc.) should be followed. Please note the Educational Employment Relations Act does not appear to have a similar public hearing requirement.
  2. The staff report should describe the parties’ bargaining history, impasse, and compliance with applicable impasse procedures.
  3. The item should be considered and deliberated upon in open session during a regular meeting in which public comment is invited.
  4. The government agencies should ensure the union is provided with sufficient time to prepare for the public hearing by ensuring the agenda is timely posted and all documents supporting the agenda item are timely provided to the union.

For more information about this decision or about labor law questions in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Jenell Van Bindsbergen

Partner

Meera H. Bhatt

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Supreme Court To Decide Whether Local Agencies Can Recover Costs Associated With Redacting Video Footage Under The Public Records Act

February 2019
Number 8

Rarely are state and local government agencies permitted to charge for the labor that goes into responding to a California Public Records Act (CPRA) request. In National Lawyers Guild v. City of Hayward (2018) 27 Cal.App.5th 937, the First District Court of Appeal held that the City of Hayward was entitled to reimbursement of costs associated with necessary redactions of body camera footage to produce the non-exempt portions of footage requested under the CPRA. This case is now pending before the California Supreme Court, which will be deciding this case in light of the increased availability of law enforcement records under Senate Bill 1421. For more information on SB 1421, please see 2018 Client News Brief No. 60. The outcome of the Supreme Court’s decision will likely establish significant rules regarding the accessibility of public records in video
format.

Background

Historically, the bulk of the costs to comply with the CPRA are borne by the local agency. As technology advances and the ability to retain and access information advances with it, the cost of producing documents has increased in many cases. Under previous case law, public agencies were allowed to charge requestors for an extremely narrow subset of their direct costs. Under the Court of Appeal decision, the City of Hayward would have been able to recover “the City’s actual expenditures to produce a copy of the police body camera video recordings.” This rule would have represented a significant change in the scope of costs that can potentially be recovered. This rule is now on hold until the California Supreme Court decides the issue.

National Lawyers Guild v. City of Hayward

The National Lawyers Guild requested six hours of police body camera footage from a protest in the City of Hayward. In order to comply with the request, the City determined that it needed to purchase a special program to redact confidential sections of the footage, and asked the National Lawyers Guild to bear the cost of the software; this litigation ensued. In the end, the court required the National Lawyers Guild to pay for the costs associated with the redactions. The court explained that:

“For electronic records… the statute allows an agency to recover specified ancillary costs in either of two cases: (1) when it must “produce a copy of an electronic record” between “regularly scheduled intervals” of production, or (2) when compliance with the request for an electronic record ‘would require data compilation, extraction, or programming to produce the record.’ (§ 6253.9, subd. (b)(1), (2); see 88 Ops.Cal.Atty.Gen., supra, at p. 164.) Under those circumstances, the agency may charge the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record. (§ 6253.9, subd. (b).)”

In reviewing the legislative history of the statute, the Court of Appeal reasoned that when an agency “must incur costs to acquire and utilize special computer programming…to extract exempt material from otherwise disclosable electronic public records” the public agency could be reimbursed. The court recognized that lawmakers made a special exemption for processing electronic records because the efforts needed to redact electronic records would greatly exceed those associated with paper records.

Interestingly, the court did not limit cost recovery to extracting exempt material but stated that allowable costs under Government Code section 6253.9, subdivision (b), include the “City’s actual expenditures to produce a copy of the police body camera video recordings” along with the ability to recover costs for extracting exempt material. If the Court of Appeal decision is allowed to stand, the court’s reasoning could theoretically be expanded to support the recovery of costs whenever an electronic record must be altered to comply with a request.

Takeaways

The decision by the Court of Appeal highlights the importance of informing requesting parties that they may be responsible for the costs associated with video footage, and to work out the terms of payment for such work before the redactions are made.

Pending the outcome of the California Supreme Court’s decision, agencies impacted by costly requests for electronic records in need of redaction should consult with legal counsel to evaluate potential cost recovery.

We will issue an update once this case is ultimately decided. If you have any questions about the National Lawyers Guild decision or the California Public Records Act in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Manuel F. Martinez

Partner

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Court Reaffirms Governing Board’s Ability to Impose Reasonable Limits on Public Comment

September 2018
Number 51

A California appellate court recently reaffirmed the limitations a governing board of a public entity can impose on public comments during a board meeting (Ribakoff v. City of Long Beach).

Background

As was his frequent practice, Joe Ribakoff attended a Long Beach Public Transportation Company (LBTC) board meeting as an interested citizen. LBTC’s lone shareholder is the City of Long Beach, and LBTC operates as a public entity. During the public comment period, Ribakoff spoke for the three minutes that an LBTC board ordinance grants members of the public to address the board. When Ribakoff attempted to speak a second time, after the close of public comment, he was denied the opportunity to speak further and his microphone was cut off. An LBTC representative testified that Ribakoff became argumentative and appeared to approach the dais where the board was seated. A police officer was summoned and told Ribakoff that if he disrupted the meeting again, he would be arrested for violation of a city ordinance prohibiting disturbance or interruption of a board meeting.

Ribakoff sued the board, arguing that the board meeting disturbance ordinance violates the First Amendment, and that its three-minute speaking limit violates the Brown Act and the First Amendment.

To support his argument that the ordinance’s prohibition on disturbance or interruption of a board meeting violated the First Amendment, Ribakoff pointed to precedent that says an ordinance is unconstitutional if interpreted to allow an arrest based on the content of the disruption. However, that precedent also found that an ordinance is constitutional if it is construed to be a content-neutral “time and place” restriction. The court construed the challenged ordinance to be a legitimate “time and place” regulation that only penalized speech based on whether it was disrupting the meeting, not on what was being said.

The Brown Act permits a public agency’s governing board to adopt reasonable time limitations to ensure adequate opportunity for public comment, but prohibits the board from censoring public criticism of it. Ribakoff argued that the three minute limit is not reasonable because the board used it for a purpose other than time limitation-it allowed the board to censor his criticism. However, the court found no evidence to support this argument. The board did not stop Ribakoff from speaking during his initial three minutes, despite his critical statements. It was only when he attempted to speak after his three minutes had expired that he was restrained from speaking further.

Ribakoff also claimed that the time limit is unreasonable because the three-minute limitation applies only to public comment and not the board or its invited speakers. The court disagreed, pointing out the difference in purpose between public comments and board or invited presenter speech. When the board or its invited presenters speak, it is for the benefit of the public. The board regulates the number and length of these presentations, and ensures that they do not take more time than necessary. Conversely, public comment is potentially unlimited depending on how many members of the public are at the meeting, so a reasonable time limitation is justified.

The court recognized that board meetings are open to the public, yet are still governmental processes with an agenda and a purpose. Therefore, limitations for the purposes of keeping the board meeting on schedule and on topic are justified.

Takeaways

  • Boards are generally not permitted to adopt rules that limit public comment based on the content of the comment. But it is not a free speech violation to limit comments to the topic at hand.
  • Cities or other entities with police power may adopt ordinances that authorize penalties for members of the public when their behavior-and not the content of their expression-impairs the conduct of the meeting.
  • Boards may adopt reasonable time limitations on public comment.
  • Boards may have different time limitations for public comment versus board members or invited speakers.

For questions regarding the Ribakoff decision or about public comment or board meetings in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Harold M. Freiman

Partner

Jordan R. Fong

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.