ACLU Claims Orange County Is Censoring Public Comments

The Orange County board of supervisors meet in Santa Ana, Calif., on March 27, 2018.  (AP Photo/Amy Taxin)

SANTA ANA, Calif. (CN) – Attorneys for Southern California housing advocates told a state court judge Wednesday that Orange County officials are unlawfully stifling public comment during open meetings on the homelessness crisis and have moved to destroy public records without creating accessible copies.

At Orange County Board of Supervisors meetings, rules of procedure grant the chair authority to arbitrarily place time limits on public comment while also requiring the public to ask the chair for permission to address individual supervisors.

In their lawsuit against the county, attorneys with the American Civil Liberties Union Foundation of Southern California and the firm Kirkland & Ellis said the rules – adopted in 2009 – are designed to shield supervisors from criticism from residents who are concerned about the growing homelessness crisis.

The complaint – filed on April 4 in Orange County Superior Court on behalf of the People’s Homeless Task Force, a group that advocates for the county’s homeless – asked the court to force the board to permanently eliminate the rules from future hearings.

In a hearing Wednesday, ACLU attorney Brendan Hamme told Orange County Superior Court Judge Sheila Fell that an injunction would be appropriate because the county’s rules violate California’s Brown Act as well as both the state and U.S. Constitution

“If the law stands for anything, it is to hold public officials accountable,” Hamme told Fell. “Rules have to be reasonable in light of the purpose of the forum.”

Hamme called the county’s rule requiring permission to address supervisors – Rule 46 – an example of a “classic prior restraint.”

The People’s Homeless Task Force – whose members regularly attend county board meetings – also claims in its lawsuit that the county is recategorizing public documents in order to destroy them and refusing to release video recordings of the board hearings.

“These documents – requested by, but never produced to, the People’s Homeless Task Force – potentially reflect the Board’s action and inaction in addressing the homelessness crisis,” the complaint said

The county said in a May 30 court filing opposing the motion that the Brown Act has no requirement on when public comment should begin during a meeting or how long members of the public can speak.

“Moreover, to the extent the Brown Act elaborates on the contours of public comment, it emphasizes board discretion,” the county’s opposition said, adding that the task force has no standing to bring a complaint under the Brown Act since it’s an organization and not an individual resident.

Adam Clanton, an attorney for the county, told Fell that the rules reflect public hearing standards found in cities and counties across California and they are designed to facilitate speedy action on government business.

“The rules are geared towards addressing comments to the board as a whole, not to individual members,” Clanton said, adding that the request to make all county staff documents public would turn staffers’ “recycling bins into bankers’ boxes.”

The Orange County Sheriff’s Department has said the release of some security videos of board hearings could expose “security holes” in the county building where meetings are held, Clanton said.

Kirkland & Ellis attorney Zachary Byer told Fell that the Brown Act “places the thumb on the scale in favor of disclosure” because security videos of board hearings would be deemed public records.

Judge Fell did not indicate how or when she would rule on the injunction request, saying only that the motion is under submission.

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