HomeMy WebLinkAbout08.0- Public Comment Bob pefso, C �—
µ Ephemeral Press, May 5,2014 May 5,2014
Open letter to Mayor Carey Davis
City of San Bernardino
San Bernardino City Council Meeting 300 North"D"Street
San Bernardino,CA 92418
May 5, 2014 Copy to: Virginia Marquez,Council Member,Ward 1
Public Comments Benito Barrios,Council Member,Ward 2
John Valdivia,Council Member,Ward 3
Fred Shorett,Council Member,Ward 4
Bob Nelson,Hesperia Henry Nickle,Council Member,Ward 5
Good afternoon County neighbors,council members,Mr Rikke Johnson,Council Member,Ward 6
Mayor. James L.Mulvihill,Council Member,Ward 7
Five points for your consideration:
First,according to the preamble to the Ralph M.Brown Act, Dear Mayor Davis,
quote,"It is the intent of the law that our public servants' actions In your Commentary printed in the Sun of April 27th,you made
be taken openly and that their deliberations be conducted openly reference to a"promise of transparency"in city government,
... The people insist on remaining informed so that they may presumably made in your campaign for mayor.
retain control over the instruments they have created." Bravo for that promise.As Victorville City Council Member Angela
An essential part of being informed at these meetings is Valles pointed out in a letter printed in the Hesperia Resorter of May 21,
having a copy of the meeting agenda in hand.How can the public 2013:"Transparency is the key to good government.Without it elected
p leaders aren't accountable for their actions and the public is left in the
know what you folks are doing on the Consent Calendar,for dark about important decisions that affect their quality of life and their
example,which contains the bulk of the public's business, pocket books... Creating a transparent local government requires that
without an agenda in hand?And frankly,judging by the items on we provide context for the decisions that are being made."
your last Consent Calendar,playing musical chairs with money I was prompted to attend my first San Bernardino City Council
transfers, small wonder you keep the public in the dark about meeting in several years by that Sun article on your closing Public
what you are actually doing. Comments at the April 7th meeting before all wishing to be heard had
It scarcely helps that copies of the agenda are available from the opportunity to speak.This was a misdemeanor violation of the
the City Clerk's Office on the second floor. Brown Act's Section 54954.3(a),a felony violation of Section 182 of the
California Penal Code and a breach of the First,Fifth and Fourteenth
Don't keep the public in the dark about the public's business. Amendments to the United States Constitution and Article I Sections
Make copies of the agenda available in the Hearing Chambers 2(a),7(a)and 15,and Article XX,Section 3 of the California
before each meeting begins. Constitution.
Second,begin respecting the meeting sovereign,the public. In preparation for attending the April 21'meeting,I made a trip to
Don't make us wait to begin the meeting while you folks finish San Bernardino to inspect the submitted Request to Speak slips for the
up your closed session business. Start earlier if you must,but April 7th meeting.My intent was to obtain the addresses of those who
finish promptly. Servants do not keep their sovereign waiting. spoke regarding the city's unsavory animal shelter,and those who had
To do so is a gross insult. been denied the opportunity.
Third,I was shocked at your item Number 4 on your last I was told by a polite Ms Shook,a city employee,that the documents
meeting agenda."Comments from the Chamber of Commerce had been deemed to be restricted and that I would have to fill out a
formal request to inspect them,and that the documents submitted to me,
and elected officials."The Chamber of Commerce has interests at a later date,would have the addressees redacted.
often in direct conflict with the general public. Making money And in the mail,ten days later,I received a letter from the City
off the public is the sole purpose of this organization's members. Attorney's Office suggesting that it would two more weeks before
If they have a message to deliver,let them fill out a request to copies would available because the documents were stored in"field
speak slip,like one else. facilities"and"two offices had P P� everyone d an interest in the Y
request." A co of
You would much better serve the public,if you must give an that letter is on page 5 of this pamphlet.
agenda position to private organizations,to allow the League of At the April 21'meeting,I was told that agendas were not distributed
Women Voters speaking time at each meeting.Their at City Council meeting,but that I could obtain a copy at the City
membership's sole interest is better government. Clerk's Office,on the second floor. I have attended many formal
meetings in my lifetime,public,private,corporate and religious.And
Fourth. Regarding your unconstitutional,unlawful,and without exception each time a meeting agenda was made available at the
insulting requirement that individuals speaking at these meeting entryway--excepting for your meetings.
must take an oath to tell the truth before being allowed to speak. And so much for transparency in city government,to date.
As the California Supreme Court pointed out in it's Professor James Mulvahill,25 years ago,was quoted in the Sun of
touchstone case on First Amendment protection of the public March 25, 1989 as pointing out a critical factor about the actual
meeting process,In re Kay, 1 Ca1.3d 930,speech"not in accord operation of a government agency:the intent of those in control.
with fact,truth,or right procedure"is still an exercise of First Commenting on the update for the 1989 County General Plan then in
Amendment protected speech." progress he stated that"A very good document,if not rigorously
Fifth. The First Amendment does not demand a Request to enforced,can result in poor planning. On the other hand a poor
Speak slip be completed as a condition of exercising free speech document,with proper concern,can result in good planning."
at a public meeting.It is a courtesy on our part to do so. So why The sprit of the Brown Act,enforced,assures transparency in
does your City Clerk deem Request to Speak slips to contain government. Unfortunately,as a Daily Press editorial of January 14th,
privileged information not available for direct inspection by the 1990 pointed out,"Unhappily,the Brown Act is violated constantly by
public?
California Public bodies of every stripe."
Notes continued on Page 2
Continued on next page '
that,consistent with the statutory language and purpose,eliminates
Public Comments notes,continued from page 1 doubts as to the provision's constitutionality.
Accordingly,we now explicitly recognize that,in light of the
Preamble,Ralph M.Brown Act:"In enacting this chapter,the purposes of the provision and the competing First Amendment interests
Legislature finds and declares that the public commissions,boards and at stake,section 403 authorizes the imposition of criminal sanctions
councils and the other public agencies in this State exist to aid in the only when the defendant's activity itself—and not the content of the
conduct of the people's business. It is the intent of the law that their activity's expression—substantially impairs the effective conduct of the
actions be taken openly and that their deliberations be conducted openly. meeting.
The people of this State do not yield their sovereignty to the To effectuate section 403 within constitutional limits we interpret it
agencies which serve them... The people insist on remaining informed to require the following to establish its transgression:that the defendant
so that they may retain control over the instruments they have created." substantially impaired the conduct of the meeting by intentionally
committing acts in violation of implicit customs or usages or of explicit
California Supreme Court,In re Kay, 1 Cal.3d 940: "Audience rules for governance of the meeting,of which he knew,or as a
activities,such as heckling,interfering,harsh questioning and booing, reasonable man should have known."
even though they may be impolite and discourteous,can nonetheless
advance the goals of the First Amendment. For many citizens such Letter to Mayor Davis,continued from page 1:
participation in public meetings,whether supportive or critical of the
speaker,may constitute the only manner in which they can express their If you truly wish to bring transparency to City Government,the key
views to a large number of people;the Constitution does not require that to good government,a fine place to start would be making agenda
the effective expression of ideas be restricted to rigid and predetermined copies available at the entryway into the City Hall Hearing Chambers.
patterns. And if you were serious in pledging your honor oath,as a condition
A cogent remark,even though rudely timed or phrased,may of assuming office,to"protect and defend"the public's First
contribute to the free interchange of ideas and the ascertainment of Amendment protected right to meaningfully attend and participate in the
truth. An unfavorable reception,such as that given Congressman public meeting process,you will cease enforcing that illegal and
Tunney in the instant case,represents one important method by which unconstitutional three minute rule repudiated by the jury's Not Guilty
an officeholder's constituents can register disapproval of his conduct verdict in People v Larry Singleton,MSB-022220(1994),filed on a
and seek redress of grievances. May 17, 1994 breach of your three-minute rule by well over two
The First Amendment contemplates a debate of important public minutes.
issues;its protection can hardly be narrowed to the meeting at which the Then-City Attorney James Penman warned that your three-minute
audience must passively listen to a single point of view. The First rule was"possibly illegal"as quoted in the Sun of February 7, 1995.
Amendment does not merely insure a marketplace of ideas in which And our County DA Michael Ramos explicitly repudiated this three
there is but one seller. minute limit by dismissing the case filed on a breach of the three-minute
The very possibility of adverse audience reaction may aid in the rule at the Board of Supervisors June 29,2004 meeting by near two
correction of evils which would otherwise escape opposition ... minutes because,as reported in a Sun editorial of September 18,2004,
Although a public official usually occupies a far better position than the "essentially"the defendant did nothing wrong"by refusing to yield the
ordinary citizen to publicize his views by the communications media, speaker's podium after his three minutes were up."
those who disagree with an official may be able to proclaim For a better City of San Bernardino,
disagreement by criticism to his face. Audience response,moreover, 1-3 L%
may force a speaker to discuss a difficult issue that he may wish to Bob Nelson
avoid,or to explain some past conduct that he hopes will be forgotten. 15381 Wells Fargo St
The public interest in an active and critical audience has long been Hesperia,CA 92345
recognized. The heckling and harassment of public officials and other
speakers while making public speeches is as old as American and California Constitution:
British politics;here,as in Great Britain,such protestant conduct has
been thought to lie outside the realm of legal regulation except in the "A law may not restrain or abridge liberty of speech or press."
most egregious of cases.... In Payroll Guarantee Assn. v Board of Article I,Section 2(a).
Education(1945)27 Cal.3d 197,we stated: `Speakers who express their "A person may not be deprived of life,liberty,or property without due
opinions freely must run the risk of attracting opposition;they cannot process of law."—Section 7(a). [Including the intangible property
expect their opponents to be silenced while they continue to speak right to speak freely during a public meeting.]
freely.' In Landry v.Daley 280 F.Supp.968,the court commented: "Persons...may not be deprived of life,liberty,
`Political campaigns,athletic events,public meetings and a host of other or property without due
activities produce loud,confused or senseless shouting not in accord Process of law"—Section 15.
with fact,truth,or right procedure to say nothing of not in accord �h ,do solemnly swear or affirm that I will support and
with propriety,modesty,good taste or good manners. The happy defend the Constitution of the United States and the Constitution of the
cacophony of democracy would be stilled if all `improper noises'in the State of California against all enemies,foreign and domestic;that I will
normal meaning of the term were suppressed. ... bear true faith and allegiance to the Constitution of the United States and
On its face,section 403 applies to`every person who... willfully the Constitution of the State of California;that I take this obligation
disturbs or breaks up any assembly or meeting',and if the section were freely,without any mental reservation or purpose of evasion:and that I
literally applied with the breadth of coverage that its terms could will well and faithfully discharge the duties upon which I am about to
encompass,the statute would be constitutionally overbroad and could enter." —Article XX,Section 3:
not stand.... The right to free expression articulated through United States Constitution:
`disturbances'that are no more than announced differences in ideology
"Congress shall make no law respecting an establishment of religion,or
or beliefs lies at the heart of the First Amendment;government
prohibition of such activity,under any statutory scheme,could not prohibiting the free exercise thereof;or abridging the freedom of speech,
constitutionally be countenanced. or of the press;or the right of the people peaceably to assembly,and to
We must,however,presume that the Legislature intended to enact a Petition the government for a redress of grievances."—First
valid statute;we must,in applying the provision,adopt an interpretation Amendment.
[Continued next page]
Ephemeral Press,May 5,2014 page 2
UNITED STATES CONSTITUTION,Continued from page 2
"No person shall...be deprived of life,liberty,or property,without due
process of law... °' —Fifth Amendment.
"No state may make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States;nor shall any
Bob Established 1894 r � state deprive any person of life,liberty,or property,without due process
Balzer,Publisherand.CEO of law." —Fourteenth Amendment.
September 18, 2004 Editorial CALIFORNIA GOVERNMENT CODE:
"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... ." —Section 54954.3 of the Brown Act.
FREE SPEECH
CALIFORNIA PENAL CODE:
Q
Supervisors: �Loo "Conspiracy Defined-Punishment. If two or more people ons ire...
...to commit any act injurious to the public health,to public P
e . injurious P p c morals,or
c _ to pervert or obstruct justice,or the due administration of the laws...
a,I they are punishable...by imprisonment... for not more than one year,
or by a fine not exceeding ten thousand dollars($10,000),or both."—
OUR VltW.P'rosecutors find no room to craek down Section 182.
'on those'wdio:violate the three-m nute tle.
recluent county critic Bob Nelson was to go to trial,
MISCELLANEOUS QUOTES
FMonday for disrupting a Board of Supervisors meeting REGARDING FREEDOM OF SPEECH
in June.But prosecutors have conceded Nelson com-
mitted no crime by refusing to yield the speaker Is podium WHY WE NEED THE FmsT AMENDMENT: "You are welcome to use the
after his three minutes were`.up. schoolhouse to debate all proper questions in,but such things as
Nei- are impossibilities and rank infidelity.The decisior�ito drop the misdemeanor case against Iyel- P There is nothing in the
soil,who has numetous similar arrests,is notso much a free Word of God about them. If God designed that His intelligent creatures
pass to.interrupt public meetings,as if is vindication of bis should travel at the frightful speed of 15 miles an hour by steam,He
right.ta free speech would have clearly foretold it through His holy prophets. It is a device
.The board has a right to exercise control over its meet to lead immortal souls down to hell."—Lancaster Board of Education,
.in just as.Nelson has aright to exptess his opinions of caster'Ohio, 1826. Reprinted in the Cleveland Press in 1920.From
"Union Now,a proposed Federal Union of the Leading.board policies.And the board-liar an'obligation to make sure , g Democracies";
public discourse doesn't get out of Band just as Nelson has-a Clarence K.Striet.Harper, 1939.
light to,register his opposition:.. FIRST STEP: "Whoever would overthrow the liberty of a nation must
After reviewing a.:videotape of the meeting,Deputy begin by subduing the freeness of speech.Benjamin Franklin.
District A tome y TimflthyDixon said Nelson essentially had
done nothing wrong L COERCED SILENCE: "What is to be guarded against,in[Justice]
Nelsba did not leave the lectern after Chairman Dennis Brandeis memorable phrase,is the ugliness of`silence coerced by law."'
Hansbergel told him his three minutes too speak had elapsed —"A Worth Tradition,"
Neither-did Nelson resist the deputy who escorted him out of y �" any Kalven,Jr,on Whitney v. California.
the meeting, OVERBREADTH:"A law which is overbroad for purposes ofthis
It is Sheriffs Department policy to book anyone for amendment is completely unconstitutional on its face,even thought it is
disrupting a meeting who has been arrested for the.sanoe capable of application in a constitutional manner on the theory that the
thing in the past:Thus;Nelsori was booked into WeSt.Valley very existence of laws,which can be applied to protected speech
Retention:Center in Rancho Cucamonga ' exercises an unacceptable inhibiting effect upon free debate." —Collins
The same policy also requi es,deputies to arrest sus- v.Smith,D.C.111.1978,447 F.Supp.676.
pects for resisting arrest But prosecutors never filed that
charge against Nelson GovERNMENT's BURDEN: "The Government's argument...implies that
1. One would think that the board,which has been striving there is a presumption of non-protection applied to the expressions and
to re-establish*credibility,after a coiruption-riddled past, ., associations involved in this case and that the witness are obliged to
would take pains to be more re.ceptive.pf public discourse.. overcome it before they can rely on the First Amendment. The
It should not be so quick to have the cuffs slapped on Government has it backwards. All speech,press,and associational
those who opposelheir policies yet do,not otherwise create a relationships are presumptively protected by the First Amendment;the
disturbance. ' . burden rests on the Government to establish that the particular
The DA's Office is to be commended for its validation expressions or relationships are outside its reach." —"The American
of Nelson's legitimate right to•dissent. Legal System,Its dynamics and limits".Stephen D.Ford;West,2nd
Edition, 1974.
ESSENCE OF FIRST AMENDMENT: "Essence of forbidden censorship is
content control;any restriction on expressive activity because of its
content would completely undercut the profound national commitment
to the principle that debate on public issues should be uninhibited,
robust and wide open."Police Department of Chicago v.Mosley,Ill.
92 S.Ct.2286.
Ephemeral Press,May 5,2014 Page 3
RECIPE FOR AN ENLIGHTENED PEOPLE: "A free press that is alert, completely natural;for individuals,then and now,normally form into
s
aware,and free most vitally serves the basic purpose of the First like-minded groups interest groups)more effectively to seek a change
Amendment. For without an informed and free press there cannot be an in government policy.
enlightened people."Justice Potter Steward,The New York Times v The right to petition,guaranteed in the Constitution,is a primitive
United States•'403 U.S.713,S.Ct 2140. form of communication between the citizen and his government. It is a
guarantee that the subject will be heeded when he addresses a specific
IGNORED AT OUR PERIL: "The legal right inherent in the First request to his ruler. It was a right established before rulers were
Amendment carries with it a moral obligation,a kind of moral compact democratically elected." —"The People,Maybe",Karl A.Lamb.
between press and people. This is not something that can be enforced; HEAVY JUSTIFICATION: "Prior restraints require an unusually heavy
but it is something that the press will ignore at its own and the country's justification under the First Amendment." —Justice Potter Steward,
peril." —John B Oakes,New York Times. The New York Times v United States 403 U.S.713, S.Ct 2140.
FREE PRESS RESPONSIBILITY: "Commissions may be within their rights CALIFORNIA SUPREME COURT SAYS "We note that criminal
to conduct closed hearings,but its our responsibility to keep those limits provisions similar to section 403 have generally been held inapplicable
as narrow as possible,and...pressing for access serves notice to public to one who breaches a meeting rule in the good faith belief it is invalid.
officials that they will have a fight on their hands unless they do their Courts have reasoned that the Legislature could not have intended that
Long Beach Press--
business publicly —Larry Theon,Senior Vice President,Editor, disputes about meeting or organizational rules or the power or authority
Telegram,"The First Amendment Handbook." of a chairman or other official be resolved by means of a criminal
ERODING FENCES: "As the years pass,the power of government prosecution."—In re Kay, 1 CAL.3d 930.
becomes more and more pervasive.It is a power to suffocate both IN ABSOLUTE TERMS: "The New York Times,whose reporting
people and causes.Those in power,whatever their politics,want only to functions are at issue here,takes the amazing position that First
perpetuate it. Now that the fences of the law and the tradition that has Amendment rights are to be balanced
protected the press are broken down,the people are the victims.The other needs or
conveniences
First Amendment,as I read it,was designed precisely to prevent that t government.
tragedy." —Justice Potter Steward,dissenting,Branzburg v.Hays. My belief is s that all of the`balancing'was done by those who wrote
the Bill of Rights.By casting the First Amendment in absolute terms,
UNORTHODOXIES: "The First Amendment is directed at preserving they repudiated the timid,watered down,emasculated version of the
minority viewpoints,dissenting opinions,the individual's right to speak First Amendment which both the Government and the New York Times
his own mind.Unorthodoxies are the stuff of which a First Amendment advance in the case. —Justice William O.Douglas, United States v.
society is made." —"The role of the press in a First Amendment Caldwell,quoted in "Law,Power,and Personal Freedom." West.
society", remarks by The Honorable Rose Elizabeth Bird, SCALPEL,NOT AN AXE: "When First Amendment interests are at stake,
Chief Justice of California. the Government must use a scalpel,not an ax."Bursey v. United
GADFLY SHEMEI: "And when king David came to Bahurim,behold, States. 1972 466 F.2d 1059; from"The American Legal System Its
thence came out a man of the family of Saul,whose name was Shimei, dynamics and limits", Stephen D.Ford;West, 1974.
the son of Gera. He came forth and cursed still as he came. UNNECESSARY IMPACT: "Principally relied upon are prior cases
And he cast stones at David,and at all the servants of King David;and emphasizing the importance of the First Amendment guarantees to
all the people and all the mighty men were on his right hand and his left.
And thus said Shimei when he cursed,come out,come out,thou blood individual development and to our system of representative government,
man,and thou man of Belial. The Lord hath returned upon thee all the decisions requiring that official action with adverse impact on First
Amendment rights be justified
blood of the house of Saul,in whose stead thou hast reigned;and the by a public interest that is`compelling'
Lord bath delivered the kingdom into the hand of Absalom the son:and, °r`paramount,'and those precedents establishing the principle that
Justifiable government goals may not be achieved by unduly broad
behold,thou art taken in thy mischief,because thou art a bloody man.
Then said Abishai the son of Zeruiah unto the king,Why should this means having an unnecessary impact on protected rights of speech,press
dead dog curse my lord the king? let me go over,I pray thee,and take associatione .FThe American Legal System Its dynamics and
limits",
off his head. And the king said,What have I to do with you,ye sons of lmits",Stephen D.Ford;page 674. West.
Zeriah?So let him curse,because the Lord hath said unto him,Curse NO CLOSED DOORS: "No government door can be closed against the
David. Who shall then say,Wherefore hast thou done so? And David [First]Amendment. No governmental activity is immune from its
said to Abishai and to all of his servants,Behold,my son,which came force." —"The American Legal System Its dynamics and limits",
forth of my bowels,seeketh my life: how much more now may this Stephen D.Ford;Page 662.West, 1974.
Benjamite do it? Let him alone,and let him curse;for the Lord hath
bidden him. It may be that the Lord will look on mine affliction,and UNNECESSARY IS UNCONSTITUTIONAL:"Any statute,regulation,or
that the Lord will requite me good for his cursing this day. official act that unnecessarily chills or impinges on the exercise of First
And David and his men went by the way,Shimei went along the hill's Amendment rights is unconstitutional." Melton v. Young,93 S.Ct.
side,over against him,and cursed as he went,and threw stones at him,
and cast dust. And the king,and all the people that were with him,came FREE AND FAIR: "We in the media...must realize that to remain a Free
weary and refreshed themselves there." —11 Samuel, 16 5-14. Press,we must have a Fair Press. The First Amendment guarantees the
former. The public demands the latter... "Fairness"and"freedom"
RIGHT TO PETITION FOR REDRESS OF GRIEVANCE—"The British stand side by side. Both need to be exercised regularly." —Allen H.
Parliament built its power as an institution upon this privilege of Neuharth,Eastlow Lecture, University of Denver,Colorado,April 14,
individual citizens.As Parliament grew in authority,it claimed the 1998. Reported in "Vital Speeches of the Day,June 15, 1998.
power of the purse: the king could not raise money for whatever
projects he had in mind without the permission of Parliament.It became
the custom that,before Parliament granted his monies,the king was first Bob Nelson,publisher
required to heed a number of petitions and respond to the complaints 15481 Wells Fargo St
they contained. Hesperia,CA 92345
The right to petition came to be considered a fundamental right. Its
linkage in the First Amendment with the right of assembly was
Ephemeral Press,May 5,2014 Page 4
1 �
OFFICE OF THE CITY ATTORNEY
CITY OF SAN BERNARDINO
GARY D. SAENZ
CITY ATTORNEY
April 24,2014
Bob Nelson
15381 Wells Falgo
Hesperia,CA 92345
Re: California Public Records Act Request of Bob Nelson on
April 14,2014/GOS#: OTC.04.14.2014
Dear Bob Nelson:
This office received your Public Records Request on the date noted above.
Because the requested records are from field facilities or other establishments separate
from the office processing the request and two or more offices have an interest in the request,we
are advising you that the time for initial evaluation will be no later than 5/8/2014 as authorized
by Gov.Code§6253(e).
If you have any questions,please contact the undersigned.
Sincerely,
Johanna Uiloa
Legal Secretary to Steven P. Graham;
Deputy City Attorney
cc: Jackie Shook,City Clerk's Office
PRA-1 1
300 NORTH"D"STREET. SAN BERNARDINO,CA 92418-0001 • (909)384-5355 - FAx(909)384-5238
Ephemeral Press, May 5,2014 page 5