Oceano board squelches public comment

July 2, 2012

By KAREN VELIE

The public comment period during last week’s Oceano Community Services District Board meeting was squelched after the board inaccurately determined rules barring elected officials from speaking about personnel issues also extended to members of the public.

Public comment audio:

Board President Matt Guerrero shut down comments from Los Osos resident Jeff Edwards during the June 27 meeting by stopping the meeting and calling the San Luis Obispo County Sheriff’s office for assistance. Three deputies detained Edwards for about 10 minutes and prohibited him from speaking during the the public comment period.

Edwards was attempting to address his concerns about the management of the district and a supervisor who was on paid administrative leave after firing a disabled employee, an item slated to be discussed by the board in closed session.

The Ralph M. Brown Act, which established rules for public comment at government meetings, permits members of the public to speak on personnel issues slated for discussion in closed session. Board member Mary Lucey argued that speakers could not discuss personnel issues in front of her regardless of what the law says.

“Sir, you are not going to talk about people right to privacy,” Lucey said. “I don’t care what you think the laws is you are not going to disclose people’s right to privacy in front of me.”

Lucey and Edwards argued throughout much of the three minutes allotted to public speakers prior to each agenda item. During the exchange, Edward’s microphone was cut off, deputies were called and he was escorted from the board room.

Several board members said that Edwards had disrupted the meeting prior to public comment by speaking out of turn while not at the podium. In addition, board members voiced their concerns that Edwards often comments on district issues even though he does not live in Oceano. These comments, board members contend, extend the meetings at a cost to the district.

Nevertheless, the Ralph M. Brown Act does not allow board members to bar people who live out of area from commenting during meetings.

In addition, following the removal of Edwards from the building, the board reopened public comment and allowed former board member Barbara Mann to speak for four minutes on her respect for the board and displeasure with Edwards.


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Cicero

Mr. Guerrero may want to read the California Constitution before he takes an appointment as Superior Court Judge … if Governor Brown selects him. Article 1, Section 3, (a) provides much more than the U.S. Constitution’s First Amendment in authority for people to tell their elected representatives what to do. And this is true even where what they say is uncomfortable and snarly. The text reads: (a) The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good.


The authors of this section did not think that passively petitioning was enough. Instead they reinserted language that had been discussed but omitted from the First Amendment during drafting in the first Congress about “instructing their representatives” and took out the word “peaceably” before the “right to assemble” and inserted the phrase “freely to consult for the common good” after the word assemble. The California Constitution authorizes a more muscular right of the People to tell their local and state representatives what they should be doing than the U.S. Constitution provides. One would hope that a candidate for a judicial appointment would know that and act as a presiding officer of a public elected body in a manner consistent with the State Constitution that he has several times in his life taken an oath to support.


Kevin Rice

Incredible information on our state constitution, Cicero! Thank you.


Kevin Rice

The Board incorrectly uses the term ‘adjourn’ when they suspend the meeting to call the Sheriff. Adjournment means the meeting is over. The correct term is ‘recess’.


blacksmith

First off Mr. Guerro, Do you have a copy of these bylaws that say you can remove someone that is being disruptive? Let’s see them! They don’t exist and I know it.


How about the bylaw that lets people speak uninterupted for their alloted time without being harrassed by a board member? I know that one. Isn’t that your job? Guerro deserves an F- for his handling of the meeting, especially since he is an attorney. Mary Lucey should be apologizing for her disrutptions. Why can’t she shut up?


Heres the law:


54957.9. In the event that any meeting is willfully interrupted by

a group or groups of persons so as to render the orderly conduct of

such meeting unfeasible and order cannot be restored by the removal

of individuals who are willfully interrupting the meeting, the

members of the legislative body conducting the meeting may order the

meeting room cleared and continue in session. Only matters appearing

on the agenda may be considered in such a session. Representatives of

the press or other news media, except those participating in the

disturbance, shall be allowed to attend any session held pursuant to

this section. Nothing in this section shall prohibit the legislative

body from establishing a procedure for readmitting an individual or

individuals not responsible for willfully disturbing the orderly

conduct of the meeting.


Calling the Sheriff is not part of this law. Nor did I hear any conduct on the audio that would suggest such action would be necessary. It appeared that the audio on this site was edited however, and I cannot base my opinions on such. I do believe that Tacker and Edwards viewpoints are being purposely stifled, and that bothers me.


Let me make it clear. I don’t know these people. (Tacker & Edwards)


Isn’t this how it goes through history These “troublemakers” are told to shut up or go along, or suffer the consequences. How soon before the “troublemaker” is you. Read your history..


Progress my ass. This district is going to the dark ages.


Kevin Rice

I listened to the original audio which is available on http://www.slo-span.org and the fade-outs are on that copy also. The only audio edits in this article is the silent sections have been shortened. In my opinion, meeting audio should not be redacted while the Board is in session. One of the redacted sections was during the recess while the Sheriff was summoned, but there was no recess during the first redacted section and that should have been left intact. I wonder what was cut from the recording?


Bored Watcher

OCSD Bylaws located on the “About us” page;


1:10 Dealing with Dissension. The Chairperson cannot stop speakers from expressing their opinions or their criticism of the body. If an individual or group willfully interrupts a meeting and order cannot be restored, the room may be cleared. Members of the media must be allowed to remain and only matters on the agenda discussed.


Looks like OCSD owes Edwards an apology. Think he’ll get one? Ha!


Guerrero’s day job is a Public Defender/Criminal Defense Attorney, but at night he is no longer champion for the public (not if your Edwards or Tacker). Jekyll & Hyde.

Where was the District Legal Counsel when all this was going on? Oh, that’s her voice telling Guerrero to adjourn and the tape goes dim, Guerrero doesn’t adjourn, Edwards continues and DLC tells Guerrero to adjourn again, this time Edwards mic is off and the Sheriff’s arrive.


Combine this interpretation of Bylaws with the new meeting procedures CCN reported on Wed. and blacksmith is right…dark ages.


CONCERNEDINPR

If you think the on-going shenanigans at the OCSD is the epitome of utter nonsense at taxpayer expense, you should take a look at what’s going on in Templeton. I honestly wish someone would rein in the inept management practices and associated integrity-challenged decision making amongst these CSD’s and their respective boards.


As an example, the guy running Templeton, who is compensated well into the six figures, finds it somehow appropriate to operate a CSD consulting business on the side.


Yep, even flys his own plane to visit clients while “on the clock” in Templeton. Simply unbelievable. Check it out: http://www.hodge-enterprises.com.


Kevin Rice

First of all, it is up to YOU to watchdog your own government. Find like-minded people, learn the rules and start looking into things. Ask for a copy of the agency’s “Conflict of Interest Code”, then obtain a copy of individual FPPC 700 filings (http://www.fppc.ca.gov/forms/700-11-12/RefPamphlet11-12.pdf). Next, you need to closely watch if decisions or recommendations occur which are a conflict.


This stuff isn’t easy. You practically need to become an expert yourself to judge situations and know what to watch for. Ensure that you read every meeting agenda, but don’t stop there. You need to scrutinize the staff reports that accompany agenda items and watch board meetings, or at least read the meeting minutes.


Learn how to make a Public Records Act request so that you can obtain information which might point to being “on the clock” or otherwise shed light on questionable issues. Learn the Brown Act and make sure meetings are held properly. Build relationships with board members and learn from them and provide them with feedback and input.


MaryMalone

QUOTING ARTICLE: “Sir, you are not going to talk about people right to privacy,” Lucey said. “I don’t care what you think the laws is you are not going to disclose people’s right to privacy in front of me.”


If Lucy doesn’t want to hear the discussion, she can excuse herself while it is being conducted.


She does not have the right to forbid discussion by the public of matters that have to do with the governing of the OCSD, in or out of board meetings.


It is true that, usually, employee issues are not discussed with the public at board meetings.


Perhaps the OCSD might want to do what other CSDs do: they adopt a policy where the public is allowed to comment for their 3 minutes, and the board members do not reply (other than “thank you”).


blacksmith

This is very interesting. People’s right to privacy? How did the story about Langstaff and Silvieria ever make light if these people had a right to privacy? Which insider told about these firings and why If this breaking news?


This is a typical Lucey manuever. “In Luceys MInd”: Let’s pretend this is private employee information after this makes front page news in several newspapers, and then become outraged and try to become the peoples champion through the pretense of outrage.


Lucey is such a fraud.


Kevin Rice

Lucey is mistaken; I wouldn’t at all call her a fraud.


Disgusted

Lucey is known for being outspoken, and in this case, it appears that it may cost the district. As a public servant, board members should listen to all comments, however disparaging or inappropriate they are. It comes with the job. Some are better as members of the audience than serving in an elected position. Too bad the district has to deal with this unfortunate scenario, but the rules are the rules, imho.


surfdawg

As irritating and irrational Tacker and Edwards are, I don’t believe the CSD board has the purview to disallow public comment pertaining to personnel issues. I believe a decorum policy should be adopted, but the beauty of being American is that you can say whatever you want to. While I feel for the board and their inability to respond to incorrect or inflammatory comments about personnel issues, there isn’t much they can do. It is sad that these two lost the ear of Los Osos and are now bugging South County. We don’t want to develop the airport area Mr. Edwards, go home please.


falconbh

We need to get our focus back on the “real” business of the Oceano CSD. Providing services at a resonable cost to the citizens.


Lets focus our energy and time on the budget, audits, reducing future water rate increases, fire tax,

five cities fire authority negotiations, improving highway 1 corridor, expand code enforcement, continue

to work together for the common good.


cathy

We residents would love to focus our time and energy on these things instead of listening to endless speaking on the sale of the airport and constant negativity.


A correction. The first time the deputies were called Mr. Edwards and the deputies were asked to step down the hall to continue the heated discussion between them. I don’t believe he was forcibly removed. They had their discussion and he returned.


At a point later in the meeting he was asked to quit making distruptive remarks from the audience or the sheriff’s deputies would have to be called again. This was not during his public comment this is while he was sitting as a member of the audience. He and Ms. Tacker have been requested several times to please not make disruptive remarks while others are speaking. He told the board go ahead and call them. When the board adjourned to call them Mr. Edwards told them never mind they were leaving and he and Ms. Tacker got up and left the room. The deputies did not return and no one removed him.


It does not matter whether the board asks them or other members of the audience ask them to please not make nasty remarks during the proceedings or other people’s public comments they continue to make them. It is extremely disruptive to others trying to listen to the meeting.


Kevin Rice

Not “forcibly removed”, just “removed”, as correctly reported.


The board needs to educate themselves as to the limits of their authority to protect the District. Speakers should strive to be courteous, but have every right to criticize the district, board and employees in regards to conduct or performance.


“It is difficult to imagine a more content-based prohibition on speech than this policy, which allows expression of two points of view (laudatory and neutral) while prohibiting a different point of view (negatively critical) on a particular subject matter (District employees’ conduct or performance).” (Baca v. Moreno Valley Unified School Dist., 936 F.Supp. 719 (1996)).


cathy

Everyone will interpret as suits them. CCN encourages people to be civil as stated below. No off-topic rants, personal attacks. Citizens attending and watching the meetings are asking for the same courtesy.


The comments below represent the opinion of the writer and do not represent the views or policies of CalCoastNews.com. We encourage civil, engaged on-topic conversation as if you were in a crowded cafe. Please No ad-hominen attacks, repeat comments, off-topic rants, personal attacks, flogging dead livestock, hateful language, noise or spam.

(moderator@calcoastnews.com Comment Guidelines )


Kevin Rice

The 9th Circuit Court opined in Rodriguez v. Maricopa Co. Comm. College(2010):


“The Constitution embraces such a heated exchange of views, even (perhaps especially) when they concern sensitive topics like race, where the risk of conflict and insult is high. Without the right to stand against society’s most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most disquieting and orthodoxy most entrenched.


The right to provoke, offend and shock lies at the core of the First Amendment.”


Moreover:


“Intellectual advancement has traditionally progressed through discord and dissent, as a diversity of views ensures that ideas survive because they are correct, not because they are popular. […] But that role in our society will not survive if certain points of view may be declared beyond the pale.”


Bored Watcher

Listen to the audio provided in the article. Edwards doesn’t mention the airport at all. Edwards often mentions the airport when speaking about the flooding of 2010. Wallace had better start pointing the finger away from the SSLOCSD, toward SLO Co. and the airport he has no E&O insurance to cover his mistakes. The flap gates and the airport water were instrumental in what happened at SSLOCSD causing sewage to flow through the streets of Oceano and into many homes.


In the recording provided by CCN, Edwards announces he is reading directly from the “Friday Report.” How was anything he said a violation of the rules of decorum or the Brown Act? It’s Lucey that goes off the reservation. Edwards changes subjects when she’s the one who is uncomfortable, more than one Director, Geaslen and the attorney can be heard interrupting him (talk about disruptive). It’s when he started reading the old adage, “Any fool can criticize, condemn and complain and most fools do” by Ben Franklin that Guerrero adjourns the meeting. The audio evidence doesn’t warrant a call to THREE Sheriff Deputies. What a waste of public resources.


On occasion I’ve heard Edwards speak about the airport in open public comment, that’s when he’s allowed to talk about things that aren’t on the agenda; fair game. The Board cannot stop him and he is protected by the Brown Act to say whatever he wishes during that time period (its his 3 minutes, does it really drag out the meeting?). He is allowed his opinion. I’d hate to be chastised for my opinions, wouldn’t you defend your rights to share your opinion? Wouldn’t you expect your district to defend your right to speak from the podium and express your opinion, even if it differs from others?


This is a classic case of the Board not liking what they hear and overstepping their authority to limit ones right to speak freely. The OCSD is on a slippery slope in so many ways.


Kevin Rice

The U.S. Supreme Court has ruled that limitations must be viewpoint/content neutral.


“In White v. City of Norwalk, the case cited by defendants, the court held that although city officials properly could restrict public speakers to the subject matter at hand, i.e., the particular agenda item being discussed, and could stop speech which was unrelated to the subject matter and hence irrelevant, the [b]city officials could not cut off speech because the moderator disagreed with the view expressed.[/b]


Moreno School District’s policy clearly contains content-based prohibitions on speech, despite defendants assertions to the contrary. It forbids, at the risk of expulsion from the forum, speech which contains any “charges or complaints against any employee of the District, regardless of whether or not the employee is identified by name or by any reference which tends to identify the employee.” [b]It is difficult to imagine a more content-based prohibition on speech than this policy, which allows expression of two points of view (laudatory and neutral) while prohibiting a different point of view (negatively critical) on a particular subject matter[/b] (District employees’ conduct or performance). Burson v. Freeman, 504 U.S. 191, 197, 112 S. Ct. 1846, 1850, 119 L. Ed. 2d 5, 13 (1992) (“The First Amendment’s hostility to content-based regulation extends …

to a restriction on a particular viewpoint …. [Citations]”); see also Lamb’s [**22] Chapel, 508 U.S. at 392-393, 113 S. Ct. at 2147, supra. In fact, [b]policies which attempt to suppress or burden only critical speech are regularly held to be content-based.[/b] See, e.g., Westbrook v. Teton County School Dist. No. 1, 918 F. Supp. 1475, 1494, (D.Wyo. 1996), holding that a school [b]district’s policy, which limited and restricted teachers’ speech criticizing other staff members, administrators or school board members by restricting the audience to which such criticisms could be directed, was content-based because it distinguished between favored and disfavored speech on the basis of the views expressed;[/b] Rubin v. City of Santa Monica, 823 F. Supp. 709, 713 (C.D.Cal.1993), holding that an ordinance granting greater First Amendment rights to “speakers who support the human services objectives of the City'” (emphasis added) was impermissibly content-based. Cf. Feminist Women’s Health Center v. Blythe, 32 Cal. App. 4th 1641, 1662, 39 Cal. Rptr. 2d 189, 199 (1995): “A restriction against activities within a given area is content neutral, as it makes no reference to the issues or viewpoints raised. [Citations.]”


Kevin Rice

MORE QUOTES FROM:


Baca v. Moreno Valley Unified School Dist., 936 F.Supp. 719 (1996)

http://www.firstamendmentcoalition.org/handbook/cases/Baca_v_Moreno.pdf


“Even assuming for the sake of argument that District were to characterize its interest in protecting its employees’ right to privacy as compelling, such interest cannot be used to justify the policy for two reasons:


District’s interest in protecting its employees’ right of privacy is an interest it holds only as an employer, not as a government entity, e.g., a legislative body charged with permitting public comment at its meetings. Thus, its interest as an employer in protecting its employees’ right to privacy cannot be characterized as a compelling governmental interest.


When a school board holds open sessions of its meetings and is addressed by members of the public pursuant to the Brown Act, it is not functioning as an employer, but as a legislative body.


Second, even if District’s interest in protecting its employees’ right to privacy could be characterized as a governmental interest, District’s reliance on such interest presupposes that District’s interest in asserting its employees’ constitutional right to privacy is so compelling that it trumps the public’s First Amendment right to make public comments, negative or otherwise, about such employees’ behavior. This is a questionable supposition. See, e.g., Carey v. Brown, 447 U.S. 455, 466-467, 100 S. Ct. 2286, 2293, 65 L. Ed. 2d 263 (1980), noting that there is a hierarchy of First Amendment values, and that “‘The maintenance of the opportunity for free political discussion to the end that

government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.’ [Citations.]” With due respect to the District’s employees’ right to privacy under both the California and federal constitutions, under these circumstances such right must give way to the more fundamental constitutional right of freedom of expression under both constitutions.


“‘[A] crucial ingredient of the tort [of invasion of privacy] is a public disclosure of private facts [citations], that is, the unwarranted publication of intimate details of one’s private life which are outside the realm of legitimate public interest [citation]. . . . there can be no privacy with respect to a matter which is already public [citation] or which has previously become part of the public “domain” [citation]. Moreover, . . . there is no liability when the [speaker] merely gives further publicity to information about the [person who is the [*733] subject of discussion] which is already public or when the further publicity relates to matters which the plaintiff leaves [**30] open to the public eye”


Paperboys

Jeff Edwards disrupt a public meeting? Heavens to Betsy, Jesus Marimba, Good Golly Miss Molly… why does that not surprise me?

Jeff has an angle for even being in Oceano, you can bet on that. Wasn’t he the guy who wanted to close the Oceano airport and turn it into a huge development with houses and stores, etc…?

He put out a plan similar to that years ago for the old Sunnyside Elementary School in Los Osos. Didn’t fly, though it was an interesting concept and would have brought some things that Los Osos lacks, like a movie theater, a center piece for downtown, and affordable senior housing.

As for the CSD, they shouldn’t even try and stop the public from speaking, even Edwards. The only instance when a council/board can stop comments on a personnel matter, is if the speakers are singling out a particular employee for criticism, name calling, that sort of thing. Most boards have a policy against personal attacks on individual members or the employees.

Clearly, Oceano CSD needs a lesson in the Brown Act and maybe Robert’s Rules of Order, too. That’s the job of their attorney (do they even have one?).


Kevin Rice

Paperboys wrote: “The only instance when a council/board can stop comments on a personnel matter, is if the speakers are singling out a particular employee for criticism, name calling, that sort of thing. Most boards have a policy against personal attacks on individual members or the employees.”


ABSOLUTELY WRONG. Please read:


Baca v. Moreno Valley Unified School Dist., 936 F.Supp. 719 (1996)

http://www.firstamendmentcoalition.org/handbook/cases/Baca_v_Moreno.pdf


“[U]nder the California Constitution, District’s Board may not censor speech by

prohibiting citizens from speaking, even if their speech is, or may be, defamatory.


The court’s conclusion therefore closes the possibility left open by the California

Attorney General that a legislative body might be able to prohibit remarks ‘which it

believes to be slanderous or which might invade an individual’s personal privacy.'”


“Even if the policy proscribed only defamatory speech, it would still contain a fatal flaw.

Under either the United States or California constitutions, the government may not

restrain speech before there has been a judicial determination (in connection with which

determination the speaker received all proper procedural safeguards) that the speech is

actually harmful.”


“District’s policy would leave the determination of what is “slanderous” or “false” up to

one person — in this case, West as president of the Board — apparently without regard for

such niceties as whether the statement, though critical, is true, or whether, though false, is

privileged, or whether, though couched as fact (e.g., “X is a racist”), is legally an

expression of opinion rather than a statement of fact and hence not actionable as slander.

This is the very evil the rule against censorship and prior restraint of speech seeks to

prevent. Dailey v. Superior Court, 112 Cal. 94, 98, 44 P. 458, 460, supra (Article I,

section 2, subdivision (a) of the California Constitution forbids prior restraint or

censorship, even by judges, because this “‘subject[s] all freedom of sentiment to the

prejudices of one man, and make[s] him the arbitrary and infallible judge of all

controverted points in learning, religion, and government.'”).”


MaryMalone

Absolutely correct, SloRider. The public has the right to discuss employees. The government body’s own policies may forbid board members from making comments publicly on personnel and personnel matters.