Untitled California Attorney General Opinion ( 1992 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 92-212
of :
: MAY 7, 1992
DANIEL E. LUNGREN :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE PATRICK JOHNSTON, MEMBER, CALIFORNIA STATE
SENATE, has requested an opinion on the following question:
May the legislative body of a local public agency limit public testimony on particular
issues at its meetings to five minutes or less for each individual speaker, depending upon the number
of speakers?
CONCLUSION
The legislative body of a local public agency may limit public testimony on particular
issues at its meetings to five minutes or less for each speaker, depending upon the circumstances
such as the number of speakers.
ANALYSIS
The Ralph M. Brown Act (Gov. Code, §§ 54950-54962; hereafter "Brown Act")1
generally requires that the legislative bodies of cities, counties, and other local public agencies
conduct their meetings in public. Although the Brown Act was enacted in 1953 (Stats. 1953, ch.
1588), it was not until 1986 (Stats 1986, ch. 641) that it authorized members of the public to address
the legislative body of a public agency on matters of general interest.2 Section 54954.3 currently
provides:
1
All section references are to the Government Code unless otherwise specified.
2
We are not concerned in this opinion with agenda matters in which a member of the public
would be testifying concerning a subject individual to him or her, such as a zoning permit or
variance, where constitutional due process rights would govern.
1. 92-212
"(a) Every agenda for regular meetings shall provide an opportunity for
members of the public to directly address the legislative body on any item of interest
to the public, before or during the legislative body's consideration of the item, that
is within the subject matter jurisdiction of the legislative body, provided that no
action shall be taken on any item not appearing on the agenda unless the action is
otherwise authorized by subdivision (b) of Section 54954.2. However, in the case
of a meeting of a city council in a city or a board of supervisors in a city and county,
the agenda need not provide an opportunity for members of the public to address the
council or board on any item that has already been considered by a committee,
composed exclusively of members of the council or board, 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 council or board.
"(b) The legislative body of a local agency may adopt reasonable
regulations to ensure that the intent of subdivision (a) is carried out, including, but
not limited to, regulations limiting the total amount of time allocated for public
testimony on particular issues and for each individual speaker."
The question presented for analysis concerns the language of subdivision (b) of
section 54954.3. Under this subdivision, may the legislative body of a local public agency limit to
five minutes or less the time allocated for each individual speaker, depending upon the number of
speakers? We conclude that the legislative body may reasonably do so.
Subdivision (b) of section 54954.3 represents in part a legislative recognition of the
right of a deliberative body, such as a city council or county board of supervisors, to adopt
reasonable rules concerning the conduct of its business. Even without this particular statutory
authorization, such legislative bodies may adopt regulations under more general statutes contained
in the Government Code. A city council, for example, is authorized in section 36813 to "establish
rules for the conduct of its proceedings." As for a county board of supervisors, section 25003
provides:
"The board may make and enforce regulations necessary for the government
of the board, the preservation of order, and the transaction of business."
It has been held that sections 25003 and 36813 vest a city council and county board of supervisors
with wide discretion in adopting rules concerning the conduct of their proceedings (see Dry Creek
Valley Assn., Inc. v. Board of Supervisors (1977) 67 Cal.App.3d 839, 846; Williamson v. Payne
(1938) 25 Cal.App.2d 497, 503; 38 Ops.Cal.Atty.Gen. 52, 53 (1961); 19 Ops.Cal.Atty.Gen. 49, 51
(1952)), so long as such discretion is exercised reasonably and not in an arbitrary or capricious
manner (see Nevens v. City of Chino (1965) 233 Cal.App.2d 775, 778). It is well established that
a court will not substitute its judgment for that of a board or commission which has been authorized
to do a particular act in its discretion absent "``convincing evidence of fraud, arbitrary action or an
abuse of discretion.'" (See 74 Ops.Cal.Atty.Gen. 89, 94 (1991).)
With respect to the agenda of a public agency meeting, a single item or several items
may not reasonably be permitted to monopolize the time necessary to consider all agenda items. If
the legislative body is to complete its agenda, it must control the time allocated to particular matters.
This is precisely what the Legislature has recognized in subdivision (b) of section 54954.3,
authorizing the adoption of "reasonable regulations."
2. 92-212
In White v. City of Norwalk (9th Cir. 1990) 900 F.2d 1421, a person addressing a city
council was prevented from continuing to speak because of being "unduly repetitive" under a city
ordinance prohibiting "conduct which disrupts, disturbs or otherwise impedes the orderly conduct
of any Council meeting." (Id. at p. 1424.) The court upheld the city's refusal to let the speaker
continue, stating:
"City Council meetings like Norwalk's where the public is afforded the
opportunity to address the Council, are the focus of highly important individual and
governmental interests. Citizens have an enormous first amendment interest in
directing speech about public issues to those who govern their city. It is doubtless
partly for this reason that such meetings, once opened, have been regarded as public
forums, albeit limited ones. [Citations.]
"On the other hand, a City Council meeting is still just that, a governmental
process with a governmental purpose. The Council has an agenda to be addressed
and dealt with. Public forum or not, the usual first amendment antipathy to content-
oriented control of speech cannot be imported into the Council chambers intact. In
the first place, in dealing with agenda items, the Council does not violate the first
amendment when it restricts public speakers to the subject at hand. [Citations.]
While a speaker may not be stopped from speaking because the moderator disagrees
with the viewpoint he is expressing [citations], it certainly may stop him if his speech
becomes irrelevant or repetitious.
"Similarly, the nature of a Council meeting means that a speaker can become
``disruptive' in ways that would not meet the test of actual breach of the peace
[citation], or of ``fighting words' likely to provoke immediate combat. [Citation.] A
speaker may disrupt a Council meeting by speaking too long, by being unduly
repetitious, or by extended discussion of irrelevancies. The meeting is disrupted
because the Council is prevented from accomplishing its business in a reasonably
efficient manner. Indeed, such conduct may interfere with the rights of other
speakers." (Id. at pp. 1425-1426; fns. omitted.)
What is a "reasonable" period of time for public discussion will, in our view,
necessarily vary with the facts and circumstances in each case. The time allocated for the meeting,
the number of agenda items, the complexity of each item, and the number of persons wishing to
address the legislative body on each item of general public interest would require consideration.
We conclude that section 54954.3 vests the legislative body of a local public agency
with wide discretion concerning the adoption of regulations limiting the time at its meetings for
public testimony on each issue and for each speaker. A limitation of five minutes or less for each
speaker would be valid, depending upon the particular circumstances.3
*****
3
In so concluding, we note that if the time limitation is formally adopted as a general rule of
procedure, the limitation may be waived where necessary or appropriate pursuant to the usual rules
governing deliberative bodies. (See Robert's Rules of Order (Rev. 1970) § 61, subd. (c), p. 114;
Mason, Manual of Legislative Procedure (1975) § 23, pp. 43-44.)
3. 92-212