The City of Ontario is being told it must repeal recently adopted restrictions on citizen speech at city council meetings or face a lawsuit to have them invalidated. Cory Briggs, attorney for the civic watchdog Inland Oversight Committee, warned the city today that a July 15 resolution on “City Council Rules of Conduct” transgressed public speech guarantees in both the the Brown Act and the state and federal constitutions. Briggs stated in his  notice of intent to sue:

In particular, the Resolution states that “[m]embers of the public attending City Council meetings shall observe the same rules of order and decorum applicable to the City Council.” Meanwhile, the rules applicable to the City Council provide, for example, that “Council Members [and thus members of the public] shall never express concerns about the performance of a City employee in public, to the employee directly, or to the employee’s manager.” The Resolution goes on to prohibit Council Members and thus members of the public from “attempt[ing] to influence City staff” on a variety of items concerning the public’s business. These are the very issues that the public’s constitutional and statutory rights allow them to address government on.

The rules of conduct during City Council meetings also impermissibly interfere with other legal rights of the public. For instance, elsewhere the rules mandate that “Council Members . . . [and thus members of the public] refrain at all times from rude or derogatory remarks, reflections as to integrity, abusive comments, and statements as to motives and personalities.” Apart from being extremely vague, questions about a City official’s oremployee’s integrity are certainly open to public comment and criticism, as are issues related to motives and personalities when they relate to the public’s business. Indeed, one could make a good argument that robust public comment on such matters might have prevented or at least minimized problems like those that took place in the City of Bell (which, it is worth noting, was represented by the same law firm representing Ontario).

As if these rules were not bad enough, the section of the Resolution prescribing the sanctions and procedures for violations of the rules recognizes that Council Members cannot be punished for exercising their First Amendment rights, but there is no such recognition for members of the public. The Resolution requires members of the public attending City Council meetings to abide by the same rules that apply to Council Members without so much as mentioning the public’s First Amendment rights. Even if the Resolution did recognize the public’s First Amendment rights, the Resolution ignores the public’s rights under the California Constitution, the Brown Act, and other applicable laws that protect the public from the very sort of government intrusion that the Resolution imposes.

Briggs further warns  that since the resolution contains no severance clause,

if the Resolution is not rescinded in its entirety at the City Council’s next meeting, or if any forthcoming agenda of any body of the City in any way even suggests that the City or any public official may be taking action pursuant to the Resolution, my client will have no choice but to file suit under federal and state law (and seek to recover its attorney fees and costs upon winning the suit).