Was Law Broken at Napa Pipe Meeting?

A copy of the following letter, dated Feb. 22, 2012, was sent to Napa Patch by John L. Poole:

Dear Mr. Lieberstein,

The Napa County Planning Commission convened yesterday at the and conducted a public meeting.  I was not present.  I understand that microphones for public testimony were not available and the members of the public were instructed to write down their questions instead of publicly addressing the commission.  My understanding is, and you would need to verify this, that members of the public attending were not allowed to speak despite the Notice inviting them to attend and do so.

The notice of meeting provides in part:

PERSONS WISHING TO SPEAK CONCERNING AN AGENDA ITEM:
If you wish to speak on an item on the Agenda and under discussion by the Commission, you may do so upon
receiving recognition from the Chairperson. After being recognized by the Chairperson, please step to one of
the microphones and state your name and address and make your presentation. No comment or testimony
shall be shouted from the audience. All comments are to be directed to the Commission, including inquiries
requiring staff response. Time limitations shall be at the discretion of the Chair or Commission.

See http://services.countyofnapa.org/AgendaNetDocs/Agendas/PlanningAgenda/2-21-2012-Spe/Agenda.pdf

For reference (portion of the Brown Act):

54954.3. (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, 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. Every notice for a special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that item. (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. (c) The legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body. Nothing in this subdivision shall confer any privilege or protection for expression beyond that otherwise provided by law. [emphasis added]

I believe the act of instructing members of the public that they may not address the commissioners and instead must write their statement down on paper is a violation of the public's right to "directly address" the deliberating body.  I have not researched the matter, it's just my gut reaction that a public agency cannot gag public comment.  The public could have been allowed to speak without microphones, or a microphone of a commissioner borrowed, if they really wanted to allow public testimony.

Your office is empowered to prevent and stop violations. Gov. Code §54960.

However, if the County is the possible defendant, is your office precluded from considering and/or pursuing the matter?  I'm not clear on what your relationship with the County may be when then County may be in violation of the Brown Act.

Does your office investigate Brown Act violations?

There will be another hearing in March and I think your office could do some public good to address this matter provided there is no conflict of interest. If you agree limiting participants to writing their comments down when attending a public hearing is a violation of the Brown Act, then advising the Commission and its staff of such conclusion would go a long way to ensure public participation in one of Napa's most controversial public projects. 

It would go a long way to transparency of our government if commissioners and staff were keenly aware of the public's rights vis-a-vis their meetings. Why they would not allow testimony and yet proceed with the hearing concerns me. Even if you disagree about the right to publicly address means the right to speak rather than write notes, you cannot deny that the Notice is in conflict with what was actually allowed and therefore vitiates the proceeding ab initio due to lack of invalid notice.

Cordially,

John L. Poole

Editor's notes: Poole, an attorney, is married to Juliana Inman, a Napa City Council member, Napa County supervisorial candidate and opponent of the Napa Pipe development proposal. According to the , Lieberstein's office will review his assertion, which county planning director Hillary Gitelman denies.