An entire seven-member park district board was put under citizen’s arrest for refusing to let the public speak at a meeting—and the sheriff said the arrest had been made responsibly and would be pursued with an investigation and report to the attorney general. The arrest took place in Clark County in downstate Illinois on May 12, after a warning by the arresting citizen was disregarded by the board’s attorney, reportedly the daughter of the board president. The event, which occurred when the board at a special meeting refused to allow public comment on the status of the executive director and other issues by some 30 assembled citizens after a two-hours-plus closed session, is reported here, video recorded here and applauded here.
In California as in Illinois, a local government body member can be prosecuted for a misdemeanor violation of the open meeting law. The Brown Act makes the prosecutor’s burden of proof quite difficult, however. Government Code Section 54959 provides:
Each member of a legislative body who attends a meeting of that legislative body where action is taken in violation of any provision of this chapter, and where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled under this chapter, is guilty of a misdemeanor.
The requirements for making a citizen’s arrest in California are set forth in some detail in an article provided by the Alameda County District Attorney’s office. Apparently this enforcement procedure has never been used in connection with a perceived Brown Act violation, but there are frequently enough layman’s misunderstandings of what the Brown Act requires and prohibits that making a citizen’s arrest in such circumstances should not be considered impulsively, The Illinois episode is a good example of about the most obvious violation that can occur in the arresting party’s presence (a requirement of the California Penal Code)—denial of the right to address the body at its meetings. And yet it is quite possible that a prosecutor might find it hard to show that preventing the public from addressing the board was done with the specific intent “to deprive the public of information to which the member knows or has reason to know the public is entitled,” although it could be argued that the public is entitled to know not only what the officials say but what is said to or about them by their constituents—to their faces.
In any event, as it happens, a bill introduced in the Legislature last year would have provided, in its initial version, that “A member of a legislative body who, while acting as the chairperson of that legislative body, prohibits public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body, as protected under subdivision (c) of Section 54954.3, shall be guilty of a misdemeanor.” Local government concerns with the perceived harshness of this approach led to about a year and a half of modifications and negotiations between them and the proponents of some more specific protections for public speech at meetings—the ACLU of Northern California, the California Newspaper Publishers Association and Californians Aware. The result in the latest amended version of AB 194 by Assembly Member Nora Campos (D-San Jose), nearing final votes, states:
(b) The legislative body of a local agency may adopt reasonable regulations to ensure that the intent of (the citizens’ speech right) 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, and the procedure for public comment on agenda items.(c) (1) Subject to reasonable regulations promulgated pursuant to subdivision (b), the legislative body of a local agency, or its presiding officer or staff, acting in their official capacity on behalf of the legislative body, shall not prohibit, limit, or otherwise prevent any of the following:(A) Public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body or its officers or employees acting in their official capacity.(B) Comment by a member of the public during presentation of an agenda item who has not provided notice of his or her desire to comment prior to consideration of the agenda item by the legislative body.(C) Comment by a member of the public based on his or her viewpoint where the comment is within the subject matter jurisdiction of the legislative body.(2) If a legislative body limits the total amount of time allocated for public testimony on a particular issue or for each individual speaker, the questioning or interrupting of the speaker by the legislative body, its officers or employees, and the speaker’s response to questioning shall not reduce the total time allocated for public testimony on the particular issue or allocated for an individual speaker.