E. Any permit, either in connection with a proceeding for the revocation thereof or otherwise, may be suspended by the commission or council upon finding that the operations of the permittee constitute or have become an immediate menace or hazard to commerce, to any public property, to any interest of the city, or to the lives or safety of persons. The suspension and/or revocation of any permit shall be made and accomplished in the following manner.
F. Following a public hearing by the planning commission, or on appeal by the city council, notice of suspension and/or revocation shall be served upon permittee, stating the reasons and grounds upon which the proposed action is based, requiring permittee within fifteen days after the service upon them of such notice, to cure and remedy any fault, noncompliance, or violation of any condition for which suspension or revocation of the permit may be made. Said permit shall, without any further or other action of or by the city, be revoked five days after the time herein provided for the curing of any default, or within any further times as the commission or council may have granted, has expired.
G. At such hearing, the permittee and the public shall be given an opportunity to present information relevant to consideration of suspension or revocation of the permit.
H. It is unlawful to carry on any of the operations authorized by any permit during any period of suspension or after revocation; provided that nothing shall prevent the performance of such operations as may be ordered by CalGEM, necessary for safety, or necessary to cure and remedy the default, noncompliance or violation for which suspension or revocation was ordered.”
IN THE SUPREME COURT OF
CALIFORNIA
CHEVRON U.S.A. INC. et al.,
Plaintiffs and Respondents,
v.
COUNTY OF MONTEREY,
Defendant;
PROTECT MONTEREY COUNTY et al.,
Interveners and Appellants.
S271869
Sixth Appellate District
H045791
Monterey County Superior Court
16CV003978
August 3, 2023
Justice Jenkins authored the opinion of the Court, in which Chief Justice Guerrero and Justices Liu, Kruger, Groban, Evans, and Raphael* concurred.
* Associate Justice of the Court of Appeal, Fourth
Appellate District, Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
1 CHEVRON U.S.A. INC. v. COUNTY OF MONTEREY
S271869
Opinion of the Court by Jenkins, J.
In 2016, Protect Monterey County (PMC) sponsored, and
Monterey County (County) voters passed, “Measure Z,” a local ordinance that bans oil and gas wastewater injection and impoundment and the drilling of new oil and gas wells
throughout the County’s unincorporated areas. Chevron U.S.A.
Inc. (Chevron) and other oil producers and mineral rights holders, among others (collectively, plaintiffs), filed a total of six actions1 against the County challenging Measure Z on various grounds, including state and federal preemption. PMC and its founder and spokesperson, Dr. Laura Solorio (hereinafter collectively, PMC), intervened in the action. The trial court entered judgment in favor of plaintiffs on state and federal preemption grounds. PMC appealed, and the Court of Appeal affirmed. (Chevron U.S.A., Inc. v. County of Monterey (2021) 70 Cal.App.5th 153 (Chevron).)
1 The actions were brought by: (1) Chevron, San Ardo
Union Elementary School District, business owners, and
individual royalty owners, which we will collectively refer to as Chevron; (2) Aera Energy LLC; (3) California Resources
Corporation; (4) National Association of Royalty OwnersCalifornia, Inc. and various individuals and entities; (5) Eagle Petroleum LLC; and (6) Trio Petroleum LLC and other
corporations. The trial court consolidated the six actions for purposes of a Phase I trial in which it resolved what it described as “Constitutional and pre-emption challenges” and “purely legal” challenges to Measure Z, including claims of preemption and facial takings.
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Opinion of the Court by Jenkins, J.
2 We granted review to decide whether Public Resources
Code section 31062 preempts Measure Z. We conclude it does because Measure Z is contradictory to, and therefore conflicts with, section 3106. Accordingly, we affirm the judgment of the Court of Appeal.
FACTUAL AND PROCEDURAL BACKGROUND
The County’s oil fields are in the County’s inland regions and operate under permits issued by the County and Geologic Energy Management Division (CalGEM), 3 the state agency tasked with overseeing the state’s drilling, operation, maintenance, and plugging and abandonment of oil and gas wells. (§§ 3002, 3100 et seq., 3106, subd. (a).) Because of the oil deposits’ viscous nature, oil is extracted using steam injection, whereby new wells are drilled and steam is injected
underground to heat the oil and make it more fluid so that it can be pumped out of the ground.4
Measure Z was a County initiative entitled “Protect Our Water: Ban Fracking and Limit Risky Oil Operations
Initiative.” It was sponsored by PMC and its stated purpose was to protect the County’s “water, agricultural lands, air quality, scenic vistas, and quality of life.” It passed with 56 percent of 2 All further undesignated statutory references are to the Public Resources Code.
3 CalGEM is a division of the Department of Conservation and is led by the “State Oil and Gas Supervisor.” (§§ 3001, 3002, 3004.) Before January 1, 2020, CalGEM was known as the
Division of Oil, Gas, and Geothermal Resources, DOGGR.
(Stats. 2019, ch. 771, § 8.)
4 We set forth these basic background facts relating to oil production in the County in order to elucidate the meaning and effect of Measure Z.
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3 the vote. The measure applies exclusively to oil and gas operations and contains three prohibitions that apply to the County’s unincorporated areas. The first — LU-1.21 — bans well stimulation treatments including hydraulic fracturing (commonly known as fracking) and is not at issue here because none of the plaintiffs use, or have any plans to use, such methods.5
The second — LU-1.22 — provides, “Prohibited Land
Uses: The development, construction, installation, or use of any facility, appurtenance, or above-ground equipment, whether temporary or permanent, mobile or fixed, accessory or principal, in support of oil and gas wastewater injection or oil and gas wastewater impoundment is prohibited on all lands within the County’s unincorporated area.” For purposes of LU-1.22, “ ‘oil and gas wastewater injection’ ” means “the injection of oil and gas wastewater into a well for underground storage or disposal”; “ ‘oil and gas wastewater impoundment’ ” means “the storage or disposal of oil and gas wastewater in depressions or basins in the ground, whether manmade or natural, lined or unlined, including percolation ponds and evaporation ponds”; and “ ‘oil and gas wastewater’ ” means “wastewater brought to the
surface in connection with oil or natural gas production, including flowback fluid and produced water.”
The third prohibition — LU-1.23 — provides, “Prohibited Land Uses: The drilling of new oil and gas wells is prohibited on all lands within the County’s unincorporated area. This . . . does not affect oil and gas wells drilled prior to the Effective 5 For simplicity, we will at times refer to LU-1.22 and LU1.23 together as Measure Z, even though Measure Z also includes LU-1.21, which is not at issue in this appeal.
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Opinion of the Court by Jenkins, J.
4 Date and which have not been abandoned.” For purposes of this prohibition, “ ‘oil and gas wells’ ” are “wells drilled for the purpose of exploring for, recovering, or aiding in the recovery of, oil and gas.”
On December 14, 2016 — two days before Measure Z was
scheduled to take effect — plaintiffs filed against the County petitions for writ of mandate and complaints for declaratory and injunctive relief and inverse condemnation, claiming Measure Z was preempted by state and federal law, constituted a facial taking of their property, and violated their due process rights.
Some of the plaintiffs also claimed that Measure Z was vague, created inconsistencies within the County’s general plan, and violated the single-subject rule for local ordinances because, among other things, it was misleadingly promoted to voters as an anti-fracking initiative even though no fracking was occurring in the County. The County stipulated to an indefinite stay of Measure Z’s implementation.
PMC intervened in the actions. After a bench trial, the trial court dismissed plaintiffs’ action as to LU-1.21 on ripeness and standing grounds because no petitioner was using or proposing to use the fracking process LU-1.21 banned. Plaintiffs did not challenge that decision. Regarding LU-1.22 and LU1.23, the court found them preempted by section 3106 and the federal Safe Drinking Water Act (42 U.S.C. § 300f et. seq.). As to state preemption, the court determined that Measure Z is “contradictory” to section 3106, that the “state oil and gas regulatory scheme fully occupies the area of the manner of oil and gas production,” and that Measure Z “seeks to regulate the manner of oil and gas production by restricting particular oil production techniques, namely wastewater injection and
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5 impoundment” and the drilling of new oil wells. The court rejected PMC’s characterization of Measure Z as a “land use” ordinance entitled to a strong presumption against preemption, stating that the measure’s “prohibition on certain ‘land uses’ is clearly a pretextual attempt to do indirectly what [the County] cannot do directly,” i.e., ban certain methods of oil production in a way that will bring oil production in the County “to a complete halt in five years or less.” The court issued a writ of mandate directing the County to invalidate LU-1.22 and LU-1.23.
PMC and the County appealed. The County abandoned
its appeal shortly thereafter and has not defended Measure Z on appeal. The Court of Appeal affirmed on state preemption grounds. (Chevron, supra, 70 Cal.App.5th 153.)
DISCUSSION
Article XI, section 7 of the California Constitution
provides that a “county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” “ ‘If otherwise valid local legislation conflicts with state law, it is preempted by such law and is void.’ ” (Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897 (Sherwin-Williams), quoting Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985) 39 Cal.3d 878, 885.)
In Sherwin-Williams, we identified three ways in which a preempting conflict may arise: “ ‘if the local legislation “ ‘duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.’ ” ’ ” (Sherwin-Williams, supra, 4 Cal.4th at p. 897.) First, “[l]ocal legislation is ‘duplicative’ of general law when it is coextensive therewith.” (Ibid.) Second, it is “ ‘contradictory’ to general law
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6 when it is inimical thereto.” (Id. at p. 898.) Third, it “enters an area that is ‘fully occupied’ by general law when the Legislature has expressly manifested its intent to ‘fully occupy’ the area [citation], or when it has impliedly done so in light of one of the following indicia of intent: ‘(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the’ locality.” (Ibid.) The party alleging preemption “has the burden of
demonstrating” it. (Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1149 (Big Creek Lumber).)
“Whether state law preempts a local ordinance is a question of law that is subject to de novo review.” (Roble Vista Associates v.
Bacon (2002) 97 Cal.App.4th 335, 339.)
California’s oil and gas operations are governed by
Division 3 of the Public Resources Code (§ 3000 et seq.) and its implementing regulations (Cal. Code Regs., tit. 14, § 1712 et seq.). Division 3 addresses various aspects of oil and gas exploration and extraction, including notices of intent to drill and abandon (§§ 3203, 3229), blowout prevention (§ 3219), repairs (§ 3225), protection of water supplies (§§ 3222, 3228), and well spacing (§§ 3600–3609). The implementing
regulations, in turn, address the process for oil producers and well operators to obtain state approval of “drilling, reworking,
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7 injection, plugging, or plugging and abandonment operations” (Cal. Code Regs., tit. 14, § 1714) and provides instructions and timelines for filing well and safety records with CalGEM (id. at § 1724.1). The regulations are “statewide in application for onshore drilling, production, and injection operations,” and “[a]ll onshore prospect, development, and service wells shall be drilled and operated in accordance with” them. (Id. at § 1712.) Subdivision (a) of the statute here at issue — section
3106 — provides: “The [state oil and gas] supervisor shall so supervise the drilling, operation, maintenance, and
abandonment of wells and the operation, maintenance, and removal or abandonment of tanks and facilities attendant to oil and gas production . . . so as to prevent, as far as possible, damage to life, health, property, and natural resources; damage to underground oil and gas deposits from infiltrating water and other causes; loss of oil, gas, or reservoir energy, and damage to underground and surface waters suitable for irrigation or domestic purposes by the infiltration of, or the addition of, detrimental substances.”
Subdivision (b) of section 3106 provides that the
supervisor “shall also supervise the drilling, operation, maintenance, and abandonment of wells so as to permit the owners or operators of the wells to utilize all methods and practices known to the oil industry for the purpose of increasing the ultimate recovery of underground hydrocarbons and which, in the opinion of the supervisor, are suitable for this purpose in each proposed case. To further the elimination of waste by increasing the recovery of underground hydrocarbons, it is hereby declared as a policy of this state that the grant in an oil and gas lease or contract to a lessee or operator of the right or
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8 power, in substance, to explore for and remove all hydrocarbons from any lands in the state, in the absence of an express provision to the contrary contained in the lease or contract, is deemed to allow the lessee or contractor, or the lessee’s or contractor’s successors or assigns, to do what a prudent operator using reasonable diligence would do, having in mind the best interests of the lessor, lessee, and the state in producing and removing hydrocarbons, including, but not limited to, the injection of air, gas, water, or other fluids into the productive strata, the application of pressure heat or other means for the reduction of viscosity of the hydrocarbons, the supplying of additional motive force, or the creating of enlarged or new channels for the underground movement of hydrocarbons into production wells, when these methods or processes employed have been approved by the supervisor, except that nothing contained in this section imposes a legal duty upon the lessee or contractor, or the lessee’s or contractor’s successors or assigns, to conduct these operations.”
The Legislature passed section 3106 in 1939, at the same time it enacted the Public Resources Code and created CalGEM. (Stats. 1939, ch. 93, § 3106, p. 1112.) As originally enacted, section 3106 required the supervisor “to prevent, as far as possible, damage to underground oil and gas deposits from infiltrating water and other causes, loss of oil and gas, and damage to underground and surface waters suitable for
irrigation or domestic purposes by the infiltration of, or the addition of, detrimental substances, by reason of the drilling, operation, maintenance, or abandonment of wells.” (Stats. 1939, ch. 93, § 3106, p. 1112.) In 1961, the Legislature added subdivision (b) of section 3106, which read then essentially as it reads today and clarified that in order to eliminate waste and
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9 increase recovery, oil leases and contracts that are silent about oil production methods and practices would be “deemed” to allow all practices approved by the supervisor. (Stats. 1961, ch. 2074, § 1.)
In 1970, the Legislature amended subdivision (a) of
section 3106 to require the supervisor to “prevent, as far as possible, damage to life, health, property, and natural resources . . . .” (Stats. 1970, ch. 799, § 1.) Two years later, the Legislature added subdivision (d) of section 3106, which provides: “To best meet oil and gas needs in this state, the supervisor shall administer this division so as to encourage the wise development of oil and gas resources.” (Stats. 1972, ch. 898, § 7; see Resources Agency, Enrolled Bill Rep. on Sen. Bill No. 1022 (1972 Reg. Sess.) August 11, 1972 [the 1972
amendment was meant to “strengthen the role” of the supervisor in overseeing oil and gas production].) As a result of these amendments, the current version of the statute directs the supervisor to administer the state’s regulations in a way that serves the dual purpose of ensuring the state has adequate oil and gas resources, while protecting the environment. (§ 3106, subds. (a), (b), (d).)
Plaintiffs argue — as the trial court and the Court of
Appeal determined — that Measure Z’s ban on “[r]isky [o]il [o]perations” — i.e., wastewater injection and impoundment and the drilling of new oil wells — contradicts section 3106, subdivision (b). As earlier noted, preemption based on
contradiction applies when the local law is “inimical” to state law. (Sherwin-Williams, supra, 4 Cal.4th at p. 898.) We have also stated that local law is preempted as “contradictory” when it “cannot be reconciled with state law.” (O’Connell v. City of
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10 Stockton (2007) 41 Cal.4th 1068.) Applying these definitions, we conclude Measure Z contradicts — and thus is preempted by — section 3106.
As set forth above, section 3106, subdivision (b) provides that the state oil and gas supervisor “shall . . . supervise” oil production “so as to permit” well owners and operators to “utilize all methods and practices” that, “in the opinion of the supervisor, are suitable for th[e] purpose” of “increasing the ultimate recovery of underground hydrocarbons . . . in each proposed case.” The subdivision also provides that, in order “[t]o further the elimination of waste by increasing the recovery of underground hydrocarbons,” “it is . . . declared as a policy of this state that” all oil leases and contracts are deemed to give well operators the authority to use all methods and practices the supervisor has approved, including specifically, the water and steam injection methods that Measure Z bans. (§ 3106, subd. (b).)
By providing that certain oil production methods may
never be used by anyone, anywhere, in the County, Measure Z nullifies — and therefore contradicts — section 3106’s mandate that the state “shall” supervise oil operation in a way that permits well operators to “utilize all methods and practices” the supervisor has approved. In other words, whereas section 3106 directs the supervisor to make decisions about the use of all oil production methods — inclusive of those methods Measure Z identifies — Measure Z authorizes the County to make decisions regarding some of those methods. Thus, were any oil producer to ask the state to decide whether those methods are authorized for use in the County, Measure Z, by banning those methods, has made that decision for — and in lieu of — the supervisor; it
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11 has, in all cases, usurped the supervisor’s statutorily granted authority to decide whether those methods are “suitable . . . in each proposed case.” (§ 3106, subd. (b).)
As we stated in California Fed. Savings & Loan Assn. v.
City of Los Angeles (1991) 54 Cal.3d 1, 17, a conflict is “a genuine one” where it is “unresolvable short of choosing between one enactment and the other.” Here, a “genuine” conflict exists in the sense that the state and local laws provide conflicting instructions as to which entity has the authority to decide what production methods are permissible. We agree with the Court of Appeal’s statement that “[i]t is not possible for the authority to permit these methods and practices to rest in the state’s hands if the local ordinance forbids these methods and practices.
As the two laws conflict with respect to who controls the use of these methods and practices, the local ordinance must yield to the supreme state law.” (Chevron, supra, 70 Cal.App.5th at p. 171.) Because Measure Z “cannot be reconciled with state law” (O’Connell v. City of Stockton, supra, 41 Cal.4th at p. 1068) and is “inimical thereto” (Sherwin-Williams, supra, 4 Cal.4th at p. 898), it is preempted.
In urging us to conclude otherwise, PMC argues that
several statutes that allow local control over some aspects of oil extraction reflect the Legislature’s intent not to preempt local oil-related ordinances. PMC cites to our decision in Big Creek Lumber that “ ‘[p]reemption by implication of legislative intent may not be found when the Legislature has expressed its intent to permit local regulations’ ” or “ ‘when the statutory scheme recognizes local regulations.’ ” (Big Creek Lumber, supra, 38 Cal.4th at p. 1157.)
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12 PMC’s argument fails because the statutes it cites only address the authority of local entities to determine whether and where oil production may occur within their boundaries based on local zoning laws; they do not address oil production methods at existing wells. For example, PMC cites section 3203.5, subdivision (a), which provides that “[CalGEM] shall require a copy of the local land use authorization that supports the installation of a well at the time an operator submits the notice of intention for the well . . . .” PMC also cites section 3012, which references a city’s ability to “prohibit[] . . . [oil] wells.” And PMC cites recently enacted section 3289, subdivision (b), which limits oil and gas exploration in certain “health protection zones” such as in residential areas but “does not prohibit . . . more stringent regulations, limits, or prohibitions on oil and gas development” by localities. Although these statutes may be potentially relevant to whether the Legislature intended to preempt ordinances that restrict the location at which oil may be extracted — a proper concern of zoning measures — they do not impact our analysis of the preemption question before us, which concerns a local ordinance that regulates certain methods and practices of oil extraction in areas where oil production has already been approved and is ongoing.6
6 PMC also cites to section 3690, which provides: “This chapter [(chapter 3.5)] shall not be deemed a preemption by the state of any existing right of cities and counties to enact and enforce laws and regulations regulating the conduct and location of oil production activities, including, but not limited to, zoning, fire prevention, public safety, nuisance, appearance, noise, fencing, hours of operation, abandonment, and
inspection.” Chapter 3.5, however, is limited to “unit
operations” and does not include section 3106. Similarly, PMC’s (Footnote continued on next page.)
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13 PMC seeks to evade this problem by asserting that
Measure Z does in fact “regulate[] where and whether certain operations may occur.” Having described Measure Z as placing locational restrictions, PMC argues that our decision in Big Creek Lumber precludes a finding of implied preemption here.
A review of Big Creek Lumber reveals that it is factually distinct from the issues posed by Measure Z, and is therefore inapplicable. In Big Creek Lumber, we addressed two local land use ordinances that restricted timber harvesting and certain types of timber operations to specified zone districts and parcels. (Big Creek Lumber, supra, 38 Cal.4th at pp. 1145, 1162.) We held that these locational ordinances, which regulated only where commercial logging could occur, were not expressly preempted by a state law that regulated — and prohibited counties from also regulating — “the conduct of timber
operations” because “an ordinance that avoids speaking to how timber operations may be conducted and addresses only where they may take place falls short of being ‘a clear attempt to regulate the conduct’ thereof.” (Id. at pp. 1158, 1152–1153.) Unlike in Big Creek Lumber, where the state and local
laws addressed different subjects — “how” (state) and “where” reliance on sections 3160 and 3161 is misplaced because the statutes relate to well stimulation, which is also not at issue here. At most, section 3160, which provides that CalGEM and other agencies must comply with existing environmental laws, and section 3161, which provides that a local entity may conduct its own environmental review (in addition to CalGEM’s required environmental review), may reflect a legislative intent to carve out well stimulation as an area of shared regulatory authority.
There is no similar language relating to “methods and practices” generally (§ 3106, subd. (b)) that would preclude a finding of implied preemption as to Measure Z’s prohibitions.
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14 (local) timber operations could take place — here, both section 3106 and Measure Z address the same topic of how oil producers and well operators should be permitted to extract oil. By its plain language, LU-1.22 is a ban on oil production methods — i.e., activities in support of “oil and gas wastewater injection or oil and gas wastewater impoundment” — not a locational
restriction. Regarding LU-1.23, its ban on the drilling of all new wells, at first glance, appears to regulate where oil production can take place, i.e., nowhere in the County. But the language of LU-1.23 broadly defines “oil and gas wells” to include any type of well “drilled for the purpose of . . . aiding in the recovery of[] oil and gas.” Thus, the language of LU-1.23 sweeps broadly and extends its ban to any oil production method that requires the drilling of new wells — such as wastewater and steam injection wells — in order to continue extracting oil from existing oil fields. In addition, Measure Z describes water injection and impoundment and the drilling of new oil wells as “[r]isky [o]il [o]perations,” i.e., methods of oil production that should be banned. LU-1.23 therefore constitutes a ban on certain oil production methods in existing oil fields. Accordingly, we reject PMC’s attempt to characterize Measure Z as a zoning ordinance that restricts the location of oil production. Because Measure Z regulates the same conduct that section 3106 addresses — i.e., oil production methods — our decision in Big Creek Lumber is inapposite.
Other cases on which PMC relies are inapposite for similar reasons. (E.g., Higgins v. City of Santa Monica (1964) 62 Cal.2d 24, 28–29; Beverly Oil Co. City of Los Angeles (1953) 40 Cal.2d 552, 558; Pacific Palisades Assoc. v. City of Huntington Beach (1925) 196 Cal.211, 216–217.) Other than Higgins — which discussed whether the state occupies the field of oil production
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15 on tidelands — none of these decisions discusses state preemption principles. Instead, they address a local entity’s police power and authority to restrict or ban oil production based on reasonable zoning restrictions. Here, we do not decide, or express any opinion on, whether local entities may restrict or ban oil production within their boundaries based on proper zoning restrictions. As the Court of Appeal stated, “Our narrow holding does not in any respect call into question the wellrecognized authority of local entities to regulate the location of oil drilling operations, a matter not addressed by section 3106 or Measure Z.” (Chevron, supra, 70 Cal.App.5th at p. 159, italics added.) “Nothing in this opinion should be construed to cast any doubt on the validity of local regulations requiring permits for oil drilling operations or restricting oil drilling operations to particular zoning districts” because “[t]his case involves no such regulations.” (Id. at p. 172, fn. 16.) Thus, we find no support for PMC’s argument in this line of cases, which deals with
locational restrictions or prohibitions on oil production based on zoning laws.
Next, PMC argues that language from City of Riverside v.
Inland Empire Patients Health & Wellness Center, Inc. (2013) 56 Cal.4th 729, 743 (City of Riverside) supports a
nonpreemption finding. PMC’s reliance on City of Riverside is also misplaced. In that case, we held that a local regulation banning medical marijuana dispensaries within city limits did not contradict the Compassionate Use Act (CUA; Health & Saf.
Code, § 11362.5) and the Medical Marijuana Program (MMP; id., § 11362.7 et seq.). (City of Riverside, at p. 742.) As PMC notes, we stated in our opinion that a local ordinance does not contradict state law “unless the ordinance . . . prohibits what the state enactment demands.” (City of Riverside, at p. 743; TPage 135 of 317 CHEVRON U.S.A. INC. v. COUNTY OF MONTEREY
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16 Mobile West LLC v. City and County of San Francisco (2019) 6 Cal.5th 1107, 1121 [quoting the same language and concluding there was no contradiction preemption because it was
reasonably possible to comply with both state and local law where the state statute did not address the same subject matter addressed by the local ordinance].) PMC asserts there is no contradiction preemption here because the oil production methods Measure Z prohibits are methods that the supervisor, pursuant to section 3106, may permit or authorize.
However, as Justice Liu observed in his concurring
opinion in City of Riverside, the demands/prohibits language “should not be misunderstood to improperly limit the scope of the preemption inquiry.” (City of Riverside, supra, 56 Cal.4th at p. 763 (conc. opn. of Liu, J.).) As Justice Liu also noted in his concurring opinion, other statements in our City of Riverside opinion “make[] clear” that “state law may preempt local law when local law prohibits not only what a state statute ‘demands’ but also what the statute permits or authorizes.” (Ibid., italics added, citing maj. opn.’s discussion of Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 293 and Great Western Shows v. County of Los Angeles (2002) 27 Cal.4th 853, 867–868.) For example, in City of Riverside, we acknowledged prior case law stating that if a local ordinance “attempted to prohibit conduct proscribed or permitted by state law[,] either explicitly or implicitly, it would be preempted.’ ” (City of Riverside, at p. 758, quoting Cohen, at p. 293, italics added.) In Great Western Shows, at page 866, we cited with approval Northern Cal.
Psychiatric Society v. City of Berkeley (1986) 178 Cal.App.3d 104, 106 (Northern Cal. Psychiatric Society), which held that a local ban on electroconvulsive therapy contradicted a state law that permits it “in cases which meet . . . stringent regulations”
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17 and ensures mentally ill persons the “ ‘right to treatment services which promote the potential of the person to function independently.’ ”
Of significance to our analysis here, in City of Riverside, we reiterated that a state law does not “ ‘authorize’ activities, to the exclusion of local bans, simply by exempting those activities from otherwise applicable state prohibitions.” (City of Riverside, supra, 56 Cal.4th at p. 758.) We held that the CUA and MMP did not “ ‘authorize’ activities . . . to the exclusion of local bans” because they were “limited and circumscribed” state laws that “merely declare that” certain medical marijuana activities are no longer subject to criminal and nuisance sanctions. (City of Riverside, at pp. 758, 738; id. at p. 760.) They “create[] no comprehensive scheme for the protection or promotion of facilities that dispense medical marijuana” and contain no implied limitations on a local entity’s authority to restrict or prohibit marijuana-related activities within their boundaries. (Id. at p. 760.)
In contrast, section 3106 implicitly limits a local entity’s authority by expressly providing that the state supervisor shall approve all production methods that are, “in the opinion of the supervisor,” “suitable for th[e] purpose” “of increasing the ultimate recovery of underground hydrocarbons.” (§ 3106, subd. (b).) By banning some oil production methods altogether, Measure Z takes those methods off the table and nullifies the supervisor’s express, statutorily-conferred authority to decide what oil production methods are suitable in each case. (See Northern Cal. Psychiatric Society, supra, 178 Cal.App.3d at p. 106 [contradiction preemption where the state law authorized treatment in appropriate cases and the local ordinance
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Opinion of the Court by Jenkins, J.
18 completely banned it].) Accordingly, the mandate/prohibits language from City or Riverside does not preclude a finding of implied preemption here.
Last, PMC relies on our statement in City of Riverside that “no inimical conflict will be found where it is reasonably possible to comply with both the state and local laws.” (City of Riverside, supra, 56 Cal.4th at p. 743.) Seizing upon this language, PMC asserts there is no contradiction preemption here because well operators can comply with both Measure Z and section 3106 by not using the oil production methods Measure Z bans, or by ceasing to produce oil in the County altogether.7 In essence, PMC argues that the theoretical possibility of compliance with both state and local law is sufficient to overcome preemption.
PMC’s argument fails because, as noted above, compliance with both laws must be “reasonably possible.” (City of Riverside, supra, 56 Cal.4th at p. 743, italics added.) Here, we cannot say it is “reasonably possible” for well operators “to comply with both the state and local laws” (ibid.) by requiring them to curb their conduct in a way that conforms to a local ban, without regard to what the state law permits. Carried to its logical extension, PMC’s argument would mean that a local law that contradicts state law would never be preempted, because in almost every case, it is theoretically possible for a party to comply with state and local laws that contradict each other, simply by not 7 As noted, the trial court found that oil production would cease in five years or less were oil producers in the County banned from using the methods specified in Measure Z. PMC denies that Measure Z is “about ending oil and gas operations in the [C]ounty,” but PMC does not identify any methods other than the ones Measure Z bans that oil producers in the County would be able to use to continue producing oil in the County.
CHEVRON U.S.A. INC. v. COUNTY OF MONTEREY
Opinion of the Court by Jenkins, J.
19 engaging in the conduct prohibited by local law.8 Our statement in City of Riverside does not narrow the scope of contradiction preemption in this manner.
Accordingly, we conclude Measure Z contradicts, and
therefore conflicts with and is preempted by, section 3106.9 8 Take, for example, our conclusion in Ex Parte Daniels (1920) 183 Cal. 636, 647–648, that contradiction preemption applies to a local ordinance setting the maximum speed limit lower than that set by state law. (See O’Connell v. City of Stockton, supra, 41 Cal.4th at p. 1068 [characterizing Ex Parte Daniels as a “ ‘ “contradiction” ’ ” preemption case].) It may be possible for a local resident to comply with both laws by driving at or below the lower, local speed limit, or by not driving at all, but this does not mean that compliance with both laws is “reasonably possible” (City of Riverside, supra, 56 Cal.4th at p. 758) such that the local law is not preempted.
9 PMC argues a strong presumption against preemption
applies because Measure Z is a “land use ordinance.” Regardless of whether Measure Z qualifies as a “land use ordinance,” we conclude that any presumption that might apply (see Big Creek Lumber, supra, 38 Cal.4th at p. 1151) is amply rebutted by the fact that the measure clearly contradicts section 3106.
Given our finding of contradiction preemption, we need
not address whether the doctrine of field preemption also applies, which would require us to define a “field” and determine whether state law, in light of its purpose and scope, has “fully occupied” that field. (Sherwin-Williams, supra, 4 Cal.4th at p. 898 [field preemption considerations include whether the subject matter is “ ‘exclusively a matter of state concern,’ ” indicates a “ ‘paramount state concern,’ ” or “ ‘is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the’ locality”].) Nor need we address the parties’ conflicting views on whether and how to apply the federal “obstacle preemption” doctrine.
CHEVRON U.S.A. INC. v. COUNTY OF MONTEREY
Opinion of the Court by Jenkins, J.
20 DISPOSITION
We affirm the Court of Appeal’s judgment.
JENKINS, J.
We Concur:
GUERRERO, C. J.
LIU, J.
KRUGER, J.
GROBAN, J.
EVANS, J.
RAPHAEL, J.*
* Associate Justice of the Court of Appeal, Fourth
Appellate District, Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Chevron U.S.A. Inc. v. County of Monterey __________________________________________________________ Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 70 Cal.App.5th 153
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________ Opinion No. S271869
Date Filed: August 3, 2023
__________________________________________________________ Court: Superior
County: Monterey
Judge: Thomas W. Wills
__________________________________________________________ Counsel:
Robins Kaplan, Michael Geibelson, Bernice Conn, Lucas A. Messenger; Environmental Law Clinic at Stanford Law School, Deborah A. Sivas, Alicia E. Thesing; Center for Biological Diversity, Hollin N.
Kretzmann; Shute, Mihaly & Weinberger, Catherine Engberg, Kevin P. Bundy and Aaron M. Stanton for Interveners and Appellants.
Katherine S. Hoff, Shana D.G. Lazerow, Alison Hahm; Julia K. Forgie; M. Benjamin Eichenberg; Paulina Nicole Torres and Ingrid M.
Brostrom for Communities for a Better Environment, Natural Resources Defense Council, San Francisco Baykeeper and Center on Race, Poverty & the Environment as Amici Curiae on behalf of Interveners and Appellants.
James R. Williams, County Counsel (Santa Clara), and Elizabeth Vissers, Deputy County Counsel, for County of Santa Clara as Amicus Curiae on behalf of Interveners and Appellants.
Noah Garrison for Former State Senator Fran Pavley as Amicus Curiae on behalf of Interveners and Appellants.
Frank G. Wells Environmental Law Clinic, Sean B. Hecht, Benjamin Avi Harris and Gabriel F. Greif for League of California Cities, California State Association of Counties and County of Los Angeles as Amici Curiae on behalf of Interveners and Appellants.
Alston & Bird, Jeffrey D. Dintzer, Matthew Wickersham; Gibson Dunn & Crutcher, Theodore J. Boutrous, William E. Thomson, Dione Garlick; Ragghianti Freitas and Todd Welden Smith for Plaintiff and Respondent Chevron U.S.A., Inc.
Hanson Bridgett, Andrew A. Bassak, Christopher A. Rheinheimer, Gary A. Watt, Patrick Burns; Manatt, Phelps & Phillips, Michael M.
Berger and Benjamin Shatz for Plaintiff and Respondent Aera Energy LLC.
O'Melveny & Myers, Matthew Thomas Kline, Heather A. Welles and Barton H. Thompson for Plaintiff and Respondent California Resources Corporation.
Clifford & Brown and Donald C. Oldaker for Plaintiff and Respondent Eagle Petroleum, LLC.
JRG Attorneys at Law, Johnson, Rovella, Retterer, Rosenthal & Gilles and Jason S. Retterer for Plaintiffs and Respondents Trio Petroleum, LLC, Sunset Exploration Inc., Monroe Swell Prospect, J.V., and Bradley Minderals, Inc.
Hanna and Morton, Edward S. Renwick; and Jacqueline M. Zischke for Plaintiff and Respondent National Association of Royalty Owners— California, Inc.
Manatt, Phelps & Phillips and Michael M. Berger for Western States Petroleum Association and California Independent Petroleum Association as Amici Curiae on behalf of Plaintiffs and Respondents.
Munger, Tolles & Olson, Benjamin J. Horwich and Dila Mignouna for Chamber of Commerce of the United States of America, California Chamber of Commerce, Central Valley Business Federation and Los Angeles County Business Federation as Amici Curiae on behalf of Plaintiffs and Respondents.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Kevin P. Bundy
Shute, Mihaly & Weinberger LLP
396 Hayes Street
San Francisco, CA 94102
(415) 552-7272
Theodore J. Boutrous
Gibson Dunn & Crutcher, LLP
333 South Grand Avenue
Los Angeles, CA 90071
(213) 229-7804
State of California
PUBLIC RESOURCES CODE
Section 3106
3106. (a) The supervisor shall so supervise the drilling, operation, maintenance, and abandonment of wells and the operation, maintenance, and removal or abandonment of tanks and facilities attendant to oil and gas production, including pipelines not subject to regulation pursuant to Chapter 5.5 (commencing with Section 51010) of Part 1 of Division 1 of Title 5 of the Government Code that are within an oil and gas field, so as to prevent, as far as possible, damage to life, health, property, and natural resources; damage to underground oil and gas deposits from infiltrating water and other causes; loss of oil, gas, or reservoir energy, and damage to underground and surface waters suitable for irrigation or domestic purposes by the infiltration of, or the addition of, detrimental substances.
(b) The supervisor shall also supervise the drilling, operation, maintenance, and abandonment of wells so as to permit the owners or operators of the wells to utilize all methods and practices known to the oil industry for the purpose of increasing the ultimate recovery of underground hydrocarbons and which, in the opinion of the supervisor, are suitable for this purpose in each proposed case. To further the elimination of waste by increasing the recovery of underground hydrocarbons, it is hereby declared as a policy of this state that the grant in an oil and gas lease or contract to a lessee or operator of the right or power, in substance, to explore for and remove all hydrocarbons from any lands in the state, in the absence of an express provision to the contrary contained in the lease or contract, is deemed to allow the lessee or contractor, or the lessee’s or contractor’s successors or assigns, to do what a prudent operator using reasonable diligence would do, having in mind the best interests of the lessor, lessee, and the state in producing and removing hydrocarbons, including, but not limited to, the injection of air, gas, water, or other fluids into the productive strata, the application of pressure heat or other means for the reduction of viscosity of the hydrocarbons, the supplying of additional motive force, or the creating of enlarged or new channels for the underground movement of hydrocarbons into production wells, when these methods or processes employed have been approved by the supervisor, except that nothing contained in this section imposes a legal duty upon the lessee or contractor, or the lessee’s or contractor’s successors or assigns, to conduct these operations.
(c) The supervisor may require an operator to implement a monitoring program, designed to detect releases to the soil and water, including both groundwater and surface water, for aboveground oil production tanks and facilities.
STATE OF CALIFORNIA
AUTHENTICATED
ELECTRONIC LEGAL MATERIAL
(d) To best meet oil and gas needs in this state, the supervisor shall administer this division so as to encourage the wise development of oil and gas resources. (Amended by Stats. 1994, Ch. 523, Sec. 3. Effective January 1, 1995.)
State of California
GOVERNMENT CODE
Section 65857
65857. The legislative body may approve, modify or disapprove the recommendation of the planning commission; provided that any modification of the proposed ordinance or amendment by the legislative body not previously considered by the planning commission during its hearing, shall first be referred to the planning commission for report and recommendation, but the planning commission shall not be required to hold a public hearing thereon. Failure of the planning commission to report within forty (40) days after the reference, or such longer period as may be designated by the legislative body, shall be deemed to be approval of the proposed modification. (Amended by Stats. 1973, Ch. 600.)
STATE OF CALIFORNIA
AUTHENTICATED
ELECTRONIC LEGAL MATERIAL
CITY COUNCIL AGENDA ITEM NO. H.1
10/10/2023
SUBJECT: Contra Costa County Animal Services code amendments related to animals being kept outdoors during extreme weather
DEPARTMENT: City Manager’s Office
STAFF: Tim Ogden, City Manager
Margaret Wimberly, City Clerk
TITLE/RECOMMENDATION
That the City Council consider suggestions to share with Contra Costa County for code amendments related to animals being kept outdoors during extreme weather.
FISCAL IMPACT
There is no fiscal impact associated with this action in providing suggestions to the County to consider.
BACKGROUND
On August 22, 2023, the City Council motioned for possible amendments that could be made to Contra Costa County codes related to animals being kept outdoors during periods of extreme weather, including:
• Considering whether a definition of animal cruelty can/should be used • Tethering limits
• Requiring access to cool water
• Requiring access to ground other than concrete
• Limiting outdoor exposure in extreme heat
• County enforcement of County codes
Contra Costa County Animal Services staff will be present at the meeting to discuss the suggestions with the City Council.
CITY COUNCIL STRATEGIC INITIATIVE
Not Applicable.
CITY COUNCIL AGENDA ITEM NO. H.1
10/10/2023
PREVIOUS ACTION
Previous Action by the City Council is included on Attachment 1.
DATE OF NOTICE
Not Applicable.
ENVIRONMENTAL DETERMINATION
Not Applicable.
ATTACHMENT(S)
1. Previous Action
ATTACHMENT “1”
Previous actions related to this agenda item that were taken by the Council are listed below. To view prior actions and materials, and Brentwood Municipal Code references in the staff report, as applicable:
Visit www.brentwoodca.gov/meetings, and select the meeting date(s) desired to see the reference materials and videos.
Visit www.brentwoodca.gov/municipalcode to research references to the Brentwood Municipal Code and search by the code section(s) cited.
On August 8, 2023, Vice Mayor Meyer requested a future agenda item related to suggestions to the County for amendments to Code related to animals being kept outdoors during extreme heat.
On August 22, 2023, the City Council motioned for possible amendments that could be made to Contra Costa County codes related to animals being kept outdoors during periods of extreme heat, including:
• Considering whether a definition of animal cruelty can/should be used • Tethering limits
• Requiring access to cool water
• Requiring access to ground other than concrete
• Limiting outdoor exposure in extreme heat
• County enforcement of County codes
CITY COUNCIL AGENDA ITEM NO. H.2
10/10/2023
SUBJECT: Inclusive and Adaptive Recreation Strategic Initiative Focus 5 Update
DEPARTMENT: Parks and Recreation
STAFF: Bruce Mulder, Director of Parks and Recreation
Thien Nguyen, Recreation Manager
TITLE/RECOMMENDATION
The purpose of this item is to provide an update to the City Council in regards to inclusive and adaptive recreation.
Staff recommends the City Council review and discuss this report, and provide further direction to City staff on the progress on this strategic initiative.
FISCAL IMPACT
There is no fiscal impact associated with this informational update. The cost estimate range provided in this report for a potential Certified Recreation Therapy Specialist of $127,000 - $170,000 is based on existing staff classifications within the City for Recreation Coordinator (low end) to Recreation Supervisor (high end). Additional equipment costs and estimated costs for the City’s Americans with Disabilities Act (ADA) Transition Plan have not been fully itemized, but could cost upwards of several hundred thousand dollars.
The costs associated with new staff and adaptive recreation equipment would be the responsibility of the General Fund. The City would, however, be able to utilize existing funds in the Parks and LLAD Replacement Fund for new adaptive recreation equipment installed as a part of the scheduled replacement of aging equipment, provided costs were not significantly increased.
With final numbers coming in from the recent close of the fiscal year and continued staff vacancies, we estimate the General Fund currently has one-time funding availability for use during the year of approximately $700,000. These numbers will continue to be reviewed as current year financial information comes in. Ongoing costs could be absorbed in the short term; however, deficit spending is already anticipated in the 3+ year timeframe.
CITY COUNCIL AGENDA ITEM NO. H.2
10/10/2023
If staff is directed to move forward with any of the recommendations that will have a fiscal impact, staff will return to City Council for their approval of any necessary General Fund budget adjustments.
BACKGROUND
The City of Brentwood Parks and Recreation Department is providing this informational report to the City Council to further conversations about Inclusive and Adaptive Recreation. As mentioned in Attachment 1 - Previous Action, the City of Brentwood Parks, Trails & Recreation Master Plan Update includes several recommendations regarding program accessibility for individuals with disabilities. The recommendations in Section 2.3 of the Master Plan are as follows:
Develop and receive City Council approval of an Inclusion Policy that is committed to following the guidelines set forth by Title VI and the American with Disability Act (ADA) to ensure that all programs, activities, and services, when viewed in their entirety, are readily accessible to and usable by individuals with disabilities.
Continue to provide opportunities for individuals with disabilities to participate in inclusive programs as well as programs specifically designed for persons with disabilities.
Coordinate with Contra Costa County to explore options for subsidized transportation to future programming for those with special needs. Expand inclusion programming to allow participants the opportunity for more “hands on” job training classes to improve their potential for finding employment. Explore potential cooperative agreements with other Contra Costa County communities to provide programming opportunities for the developmentally disabled including summer programs, after school programs, independent living programs, and job training programs specific to youth with disabilities.
In response to this, the then City Council included in their Strategic Plan FY 2020/21 and FY 2021/22 the following Initiative:
Focus Area 5 – Community and Neighborhood Services: Expand and enhance recreation opportunities by increasing programing for seniors, youth, and teens; implementing adaptive recreation, and expanding cultural arts.
The City has carried over this Strategic Initiative in the current FY 2022-23 and FY 2023-24 Strategic Plan.
CITY COUNCIL AGENDA ITEM NO. H.2
10/10/2023
In addition to the Parks, Trails, and Recreation Master Plan Update and City Council’s Strategic Plan, City staff is aware of two primary programming needs in our community:
1. Programs that are inclusive (i.e., programs that are open to both individuals with and without disabilities); and
2. Programs that are designed specifically for individuals with disabilities.
Definitions to assist in discussion of these items taken from Moore Recreation Therapy & Consulting Inc. - Adaptive and Inclusive Recreation Assessment Study (Attachment 5) are below.
Adaptive or Accessible Recreation: a concept whereby people with disabilities are given the opportunity to participate in recreational activities.
Inclusion: the practice or policy of providing equal access to opportunities and resources for people who might otherwise be excluded or marginalized, such as those who have physical or mental disabilities and members of other minority groups.
Recreational Therapy: (RT) a systematic process that utilizes recreation and other activity-based interventions to address the assessed needs of individuals with illness and/or disabling conditions, as a means to psychological and physical health, recovery and well-being.
Therapeutic Recreation: (TR) the process utilized in the practice of recreational therapy
Please note: Parks & Recreation programs strive to be fully inclusive and adaptive.
Therapeutic Recreation (even if a Certified Recreation Therapy Specialist is added to staff) are programs that are traditionally provided by private and non-profit organizations.
Following the previous discussion of this item with City Council on April 25, 2023, City staff created some benchmarks to address these areas knowing that some items mentioned in the Adaptive and Inclusive Recreation Assessment Study would take longer than others to accomplish. Following are the benchmarks and, where applicable, their status.
Short Term –
Adding more information and resources about inclusive and adaptive recreation to City’s website (now - ongoing)
Inventory programs and equipment - Attachment 4 (now - ongoing) Continue providing reasonable accommodations (now – ongoing) Pursuing partnerships for inclusive and adaptive programs (now – ongoing)
CITY COUNCIL AGENDA ITEM NO. H.2
10/10/2023
Provide regular updates to City Council to further conversations about inclusive and adaptive recreation (now – ongoing)
Mid Term –
Continue short term goals associated with this item (ongoing) Update website/Activities Guide about programs and offerings (Attachment 3) Research applicable training for program areas and inventory Establish Inclusive and Adaptive Statement and supporting information (Attachment 4)
Coordinate and explore options for subsidized transportation to future programming for those with special needs.
Long Term –
Continue short and mid-term goals associated with this item (ongoing) Explore agreements to provide programming opportunities for the developmentally disabled, including summer, after school, independent living, and job training.
Certified Recreation Therapy Specialist Classification or Contracted Assistance - $127,000 - $170,000 annual salary and benefits depending on position classification. This position would work with programs department-wide to bolster services and accommodations offered for programs. Additional duties could include providing ongoing staff training to department staff, implementing best practices, pursuing additional partnerships and program opportunities for inclusive and adaptive programs, pursue grants and funding to expand program offerings or contracted services. This position would add to the City’s inclusive and adaptive offerings, but this would not be designed to create Therapeutic Recreation as this is outside of City offerings. City ADA Transition Plan – Staff is currently working on this plan and reviewing and updating this requires collaboration from multiple City departments and divisions. The plan includes Parks and Recreation facilities, but also City buildings and spaces. This plan is currently planned to be considered by the City Council before the end of the year.
Topics for discussion for the City Council to consider tonight include:
1. Feedback about website (unpublished) – Attachment 3
2. Discussion of Inclusive and Adaptive Statement (see Attachment 4). Staff is looking for direction related to an inclusion/adaptive statement as recommended in the Parks Master Plan and/or direction to continue this discussion with the Parks Commission or alternative direction.
CITY COUNCIL AGENDA ITEM NO. H.2
10/10/2023
3. The Parks, Trails and Recreation Master Plan Update recommends an inclusion policy. Staff is looking for direction related to a single inclusion/adaptive recreation policy, or a separate inclusion policy from the Inclusion & Adaptive Recreation Statement (attachment 4), and/or other direction from City Council.
4. Consider whether to direct staff to cost out and prepare the job classification or budget for contracted assistance with a Certified Recreation Therapy Specialist, and if direction to move forward is provided, staff will return with applicable documentation for Council consideration.
CITY COUNCIL STRATEGIC INITIATIVE
Focus Area 5: Parks and Recreation Services
Item 4. Expand and enhance recreation opportunities by increasing programming for seniors, youth, and teens; implementing adaptive recreation a. Complete carry over strategic initiatives
i. Adaptive Recreation programming
PREVIOUS ACTION
Previous Action by the City Council is included on Attachment 1
ENVIRONMENTAL DETERMINATION
Not Applicable.
ATTACHMENT(S)
1. Attachment 1: Previous Action
2. Attachment 2: Inventory of current inclusive and adaptive programming
3. Attachment 3: Website updates/information DRAFT
4. Attachment 4: Examples of other City policy statements
5. Attachment 5: Moore Recreation Therapy & Consulting Inc.- Adaptive and Inclusive Recreation Assessment Study
PREVIOUS ACTION
Previous actions related to this agenda item that were taken by the Council are listed below. To view prior actions and materials, and Brentwood Municipal Code references in the staff report, as applicable:
Visit www.brentwoodca.gov/meetings, and select the meeting date(s) desired to see the reference materials and videos.
Visit www.brentwoodca.gov/municipalcode to research references to the Brentwood Municipal Code and search by the code section(s) cited.
The City of Brentwood Parks, Trails & Recreation Master Plan Update was adopted by City Council per Resolution 2019-21 on February 26, 2019.
The City of Brentwood Strategic Plan FY 2020/21-FY 2021/22 was adopted by City Council per Resolution 2020-29 on February 25, 2020.
The City of Brentwood Strategic Plan FY 2020/21-FY 2021/22 was amended by City Council per Resolution 2020-96 on July 14, 2020. The amendment included the Funding Deferred Projects Holding List.
On December 15, 2020, then Council Member Meyer requested a future agenda item requesting the Parks and Recreation Department review how programming serves adults with special needs to improve accessibility.
On January 12, 2021, an agenda item was presented by then Council Member Meyer and there was a consensus of the Council to have staff provide an update on programming for individuals with special needs, including adults.
On February 9, 2021, City Council reviewed the current adaptive recreation programming and restored the adaptive recreation Strategic Plan Initiative and funding to engage a consultant and amend the FY 2020/21 General Fund Operating Budget in an amount not to exceed $20,000.
On January 24, 2023, the City Council reviewed the Strategic Plan 2022-2024 and requested an update on the Adaptive and Inclusive Recreation Assessment as shared on August 25, 2022 with the Parks & Recreation Commission.
On April 25, 2023, the City Council received and discussed the Adaptive and Inclusive Recreation Assessment from Moore Recreation Therapy & Consulting Inc. and requested staff bring this item back for further discussion.
BRENTWOOD COMMUNITY CENTER CURRENT SERVICES
Youth Dance Classes
o Internal creative movement and dance classes for ages 16 months- 13 years o Use a multitude of props and sensory toys to explore movement o Utilize Dance to Learn curriculum to meet the needs of various learning styles o Inclusive for all abilities and skill levels
Youth Gymnastics Classes
o Internal gymnastics and tumbling classes for ages 16 months-13 years o Use a variety of sensory toys, props, and equipment to provide support and encourage exploration
o Instructors complete USA Gymnastics Recreational Gymnastics trainings o Inclusive for all abilities
Adventure Classes
o Internal parent participation/preschool enrichment classes o Encourage learning through dramatic play, art, games, crafts, song, and stories o Instructors complete Developmentally Appropriate Practices training through the National Association for the Education of Young Children. o Inclusive for all abilities
Camp Brentwood Day Camp
o Internal Day Camp for grades 1-5, Mini Camp for preschool-kindergarten, Recreation Leader in Training Program for ages 13-16
o Focus on sports, cooperative games, arts and crafts, swimming, and socialization o Staff attend Youth Recreation and Teen Services Annual Summer Leader Institute o Inclusive for all abilities
Art Classes
o Contract classes offered through Created By You Art Studio for ages 3 and up o Inclusive for all abilities
Sports Classes
o Contracted sports classes offered through Lucia Peters, Jump Bunch, Skyhawks Sports Academy, and Kidz Love Soccer for ages 2 years and up
o Inclusive for all abilities
Current Infrastructure
Handicapped Parking in both front parking lot and parking garage Elevator
Visual Signage
ADA restrooms
Accessible front desk counter
Sensory table, tubs, toys and equipment
Various vinyl spot markers to support spatial awareness Fidgets and other tools to re-center and re-focus participants Vestibular swing
Soft play equipment and mats
Art supplies of various shapes and sizes to meet dexterity needs – scissors, markers, crayons, paint brushes
Emotional expression dolls
Variety of inclusive books for circle time
Most common accommodation is parental/one on one aide support in independent classes
BRENTWOOD FAMILY AQUATIC COMPLEX CURRENT SERVICES
Lap Swim
o Internal lap swim program for ages 15+
o Inclusive for all abilities
Swim Lessons
o Internal program for ages 6 months and up
o Private lessons, group lessons, parent participation classes offered o Host Swim Lessons Placement Days to asses skills and help participants register for the correct level
o All instructor must have a valid American Red Cross Water Safety Instructor Certification including Instructor Inclusion training
o Inclusive for all abilities
Public Swim
o Recreation Swim
o Tot Splash – specifically designed for children ages 5 and under o Sensory Splash - Specifically designed for those with sensory sensitivities – no music or water play features, and whistles are only used during emergencies Health and Safety Classes
o Internal First Aid and CPR, Lifeguard, Babysitter’s Training, Junior Lifeguard, Safety Training for Swim Coaches, and Water Safety Instructor training courses o Follow American Red Cross Accommodations Guidelines for Training Programs Water Aerobics
o Internal, low impact water fitness class
o Inclusive for all abilities
Current Infrastructure
Handicapped Parking in parking lot
ADA lift and zero depth entry into pools
Visual Signage
ADA restrooms
Free lifejackets for non-swimmers
Swim diapers available for purchase
Most common accommodation is parental/one on one aide support in independent classes
SUNSET PARK ATHLETIC COMPLEX CURRENT SERVICES
Junior Giants Baseball and Softball
o Inclusive sports program that welcomes kids of all abilities. Parents/ Guardians can specify during registration any disabilities their child may have so they can be provided with the most opportune plan for the season
Tiny Tots
o Internal sports program for ages 3-5
o Inclusive for all abilities
Current Infrastructure
Handicapped Parking in both front and back parking lots Playground with ADA equipment
Visual Signage
ADA restrooms and pathways
BRENTWOOD SENIOR ACTIVITY CENTER CURRENT SERVICES
50+ Chair Exercise Classes
Zumba Gold
o exercise for active Seniors that is not as strenuous as the original Zumba Oldies But Goodies
o Works with the oldest of our senior population on arts and crafts projects, music therapy, music recognition and memory.
o This program is extremely low cost ($5 for 10 weeks) but does not meet cost recovery Gentle Yoga
o Modifications are used to ensure comfort and safety
o Teaches flexibility, breathing and balance
Premiers
o “Grow Younger Fitness” Stretching, light weights, strength and balance exercises to prevent falls. Adapted for those who need to sit and use chairs. 50+ Bocce League Programming
Social Services- We provide access and connect our seniors to find important social and health services. We partner with many organizations who provide a multitude of services some include:
o Contra Costa Senior Legal Services
Provides an opportunity to speak with an attorney pro bono for general legal advice.
o Area Agency on Aging
o Meals on Wheels Diablo Region
Care Management
Café Costa- low priced lunch meals with the option for free bus tickets to and from lunch daily.
Home bound meal services
o Tri Delta Transit Paratransit
Available to individuals with disabilities who cannot use the fixed Tri Delta Transit route and Seniors age 65+
All busses are accessible
o Brown Bag- Contra Costa and Solano Food Bank
Hosted at the Brentwood Senior Center 2 x monthly
Offers free groceries to those low income 55+ individuals o HICAP
Health insurance counseling and advocacy
Current Infrastructure & Inventory
Front door with automatic accessible push door
ADA restrooms
Handicapped parking spaces
ADA picnic bench behind Senior Center
CCTV- Donated around 2019 (this has been used less than one time) Musical instruments
ADA automatic front doors
Inclusive and Adaptive Recreation Resources
ALL ARE WELCOME!
To ensure our programs benefit all who attend, please call our office at (925) 516-5444 if any participant has a disability requiring special accommodations.
PARKS (All Abilities Play Equipment)
Blue Goose Park, 1765 Adams Lane – Specification Sheet
Veterans Park, 3841 Balfour Road - Specification Sheet
OTHER COMMUNITY OPPORTUNITIES
Listed below are other local resources for inclusive and recreation programming:
Tri Delta Transit- Paratransit
https://trideltatransit.com/paratransit.aspx?filename=eligibility Regional Center of East Bay- Developmental Disability Services https://www.rceb.org/
Contra Costa Employment and Human Services
https://ehsd.org/elderly-disabled/information-assistance/ Contra Costa College
https://www.contracosta.edu/student-services/disability-services/ Working Wonders
https://www.letsworkwonders.org/
Be Exceptional
https://beexceptionalprograms.com/
Coco Kids
https://www.cocokids.org/inclusion-resources/
Autism Learning Partners
https://www.autismlearningpartners.com/locations/california/alameda-county/east-bay Contra Costa County Library:
Insiders Program
- https://ccclib.bibliocommons.com/events/64c020d9804cbd28001d568d Accessibility & Assistive Technologies – https://ccclib.org/accessibility/ These links are being provided as a convenience and for informational purposes only; they do not constitute an endorsement or an approval by the City of Brentwood of the opinions of the organizations, corporations, individuals, or any of the products, or services at the links.
The City of bears no responsibility for the accuracy, legality or content of the external site or for that of subsequent links. Contact the external site for answers to questions regarding its content.
City of Concord
Inclusive Recreation | Concord, CA (cityofconcord.org)
It is our goal to ensure that individuals with disabilities have access to our programs and that the experience is successful and meaningful
Cosumnes Community Service District
https://www.cosumnescsd.gov/380/Adaptive-Inclusive-Recreation Cosumnes CSD encourages and supports the participation of individuals with disabilities in all of our programs. In accordance with the Americans with Disabilities Act (ADA), Cosumnes CSD wants to ensure that all individuals have access to our programs.
City of Las Vegas
Adaptive Recreation (lasvegasnevada.gov)
The city of Las Vegas Adaptive Recreation program provides opportunities for youth and adults of all abilities. We offer a wide variety of programs that promote socialization, skill development and physical activity. Staff provides advocacy and inclusion support for individuals with diverse abilities to participate in other recreational activities that the city of Las Vegas has to offer.
City of Oakland
https://www.oaklandca.gov/services/opryd-inclusive-services The City of Oakland Parks, Recreation & Youth Development (OPRYD) Department is fully committed to compliance with the provisions of the Americans with Disabilities Act. Please make accommodation requests at least 10 days prior to an event. Direct all inquiries concerning program modifications to the OPRYD Recreation Program Director of Inclusive Services City of Pasadena
Pasadena Adaptive and Inclusive Recreation - Parks, Recreation and Community Services (cityofpasadena.net)
The City of Pasadena Parks, Recreation and Community Services Department provides Inclusion Services to ensure that individuals with disabilities have an equal opportunity to engage in all recreation programs offered by the department. Inclusion is the process of providing supports, accommodations, and staff training to ensure that the individual needs of program participants are met.
Adult adaptive recreation classes and excursions offer adults with intellectual and developmental disabilities the opportunity to develop social skills, interact with peers, discover talents and interests, and explore the local community.
City of Pleasanton
City of Pleasanton, CA - Disabled Services (cityofpleasantonca.gov) City of Pleasanton, CA - RADD - Adaptive Programs (cityofpleasantonca.gov) RADD is a special recreation program designed for people ages 15 and above with developmental disabilities. RADD’s mission is to provide equal opportunity for personal growth for individuals with developmental disabilities through recreational activities and community involvement.
Pleasant Hill Recreation & Park District
Inclusive Recreation Activities | Pleasant Hill Recreation & Park, CA
City of Portland
Adaptive and Inclusive Recreation (AIR) | Portland.gov
Offering community-based recreation activities and leisure services specially designed for children, teens, and adults who have a disability and/or special needs. Our services are designed to assist people in developing and using their leisure time.
City of Santa Barbara
Adapted Programs and Inclusion Services | Parks and Recreation (santabarbaraca.gov) Our goal is for everyone to have fun, learn new skills, get fit and socialize with friends. Our team can provide recommendations for the most positive and beneficial programs based on your interests Tualatin Hills Park & Recreation District
https://www.thprd.org/activities/adaptive-and-inclusive-recreation Our mission: to promote the power of choice to enhance the quality of life for individuals of all abilities by providing diverse accessible recreation in an environment that promotes dignity, success, and fun.
City of Walnut Creek
Adaptive and Inclusive Programs | City of Walnut Creek (walnut-creek.org) City of Whittier
Adaptive Recreation | Whittier, CA - Parks, Recreation and Community Services (whittierprcs.org) The City of Whittier Adaptive Recreation program provides an opportunity for social interaction, creative expression, emotional release and physical activity for those with developmental disabilities.
Prepared By: Moore Recreation Therapy & Consulting Inc. 1
CITY OF BRENTWOOD ADAPTIVE & INCLUSIVE RECREATION ASSESSMENT
A COMPREHENSIVE ASSESSMENT OF CURRENT POLICIES & BEST PRACTICES Prepared for the City of Brentwood Parks & Recreation Department 150 City Park Way Brentwood, CA 94513
https://www.brentwoodca.gov/
June 2022
Prepared by Moore Recreation Therapy & Consulting Inc.
www.moorertconsulting.com
Tamica Clement Moore, MS, CTRS
Dr. Jamie Hoffman, CTRS
Prepared By: Moore Recreation Therapy & Consulting Inc. 2
ADMINISTRATION
City of Brentwood City Council
Joel R. Bryant
Mayor
Jovita Mendoza
Council Member
District 1
Susannah Meyer
Council Member
District 3
Karen Rarey
Council Member
Johnny Rodriguez
Vice Mayor
City of Brentwood Parks & Recreation
Bruce Mulder
Parks & Recreation Director
Ben Keisic
Recreation Supervisor
Tammy Homan
Management Analyst
Aaron Wanden
Park Maintenance Manager
Prepared By: Moore Recreation Therapy & Consulting Inc. 3
TABLE OF CONTENTS
Page
Title Page...............................................................................................................……1 Administration.............................................................................................................. 2 Table of Contents ......................................................................................................... 3
1. INTRODUCTION …….………………………………….……………………... 5
Moore Recreation Therapy & Consulting Inc. ……………………………......5 Need for the Assessment: Evidence Based Practice..........................................6 Scope of the Assessment .................................................................................. 8 Methodology of Assessment ............................................................................ 8 Definitions ....................................................................................................... 9
2. FINDINGS & RECOMMENDATIONS….……………………………...……....12
Introduction ................................................................................................… 12 Facilities……………………………………………………………...………13
Programs……………………………………………………………………. 17
Preschool (ages 0-4)…………………………………………………24
Prepared By: Moore Recreation Therapy & Consulting Inc. 4 Youth (ages 5-12) .............................................................................. 25 Teens (ages 13-17) ……………………………………………...…...26
Adults (ages 18+) …………………………………………………....26
Adults (50 & better) …………………………………………………27
3. FINDINGS & DATA COLLECTION…………………………………….………28
Staff Focus Group ………………………………………….………..28
Community Agency Focus Group………………………….………..30
Community Participant Survey ……………………………..….....…31
4. RECOMMENDATIONS……………………………………………….….…..….32
Staff Training & Development………………………….….….....….34
Marketing & Administrative Practices................................................35 Partnerships & Collaborations ………………………...……….……37
Adaptive & Therapeutic Recreation Resources……...…………..….. 39
5. SUMMARY ……………………………………………..……...……...….……..40
7. REFERENCES……………………………………………………………....….....41
8. PURCHASING & ESTIMATED BUDGET.……………..………………...….…42
9. RECOMMENDED BEST PRACTICES ….....…………….……………………..46
Prepared By: Moore Recreation Therapy & Consulting Inc. 5
INTRODUCTION
Moore Recreation Therapy & Consulting Inc.
Moore Recreation Therapy & Consulting Inc. have been providing contracted services to various group homes, treatment facilities, and hospitals in Yuba City, Sacramento, Fairfield, Lodi, and Stockton, Ca. since 2011. Our team of certified recreation therapists, implement various services such as leisure education/ awareness, behavioral management, staff in-services/trainings, program development, and activity adaptation. We assess clients based on their abilities and suggest appropriate community-based programs. We partner with local City Special Olympics to integrate adaptive sports programs with client’s and the community. Recommendations are provided on adaptations and materials needed for facilitation of programing within the facilities as well as in the community. This executive summary includes a review and evaluation of current facilities, services and program accessibility, physical and social inclusion within the classes and programs, and community events and activities to include persons with disabilities within the City of Brentwood Parks and Recreation Programs. Within this summary recommendations are provided to ensure inclusive practices are adopted and accommodations requested are satisfied to the best of the department’s ability. Our goal is to ensure that the City of Brentwood Parks and Recreation comply with Civil Rights Title VI and ADA Title II laws and reasonably provide: translation, interpretation, modifications, accommodations, alternative
Prepared By: Moore Recreation Therapy & Consulting Inc. 6 formats, auxiliary aids, and services to the community. It was a pleasure to work with the City of Brentwood on this project.
Need for Assessment: Evidence Based Practice
While the Americans with Disabilities Act (ADA) has been in effect since 1990, municipal parks and recreation programs continue to develop accessibility to meet the needs of individuals with disabilities. Community parks and recreation departments across the country are currently working to address diversity, equity, and inclusion (DEI) initiatives. Given the mission of many agencies to make communities better places to live, learn, work and play, park and recreation agencies are in a unique position to champion efforts that advance DEI. According to the National Recreation & Park Association 2021 DEI study findings, one in three parks and recreation departments across the country have established formalized DEI programming. However, the study indicated that only 40% of agencies are ensuring that all have access to enjoy agency’s parks, facilities, and programming. While this may seem significant, this exemplifies that over half of municipal parks and recreation departments are not providing accessible and inclusive facilities and programs further supporting the need for this comprehensive assessment and executive summary for the City of Brentwood Parks and Recreation Department. The City of Brentwood established a master plan in 2019 which included addressing the needs for DEI focused programming. Therefore, the Request for Proposals (RFP) was established in 2020 and Moore Recreation Therapy & Consulting Inc. was selected to conduct this work.
Like culture, art, recreation, leisure, and sports activities play an essential role in healthy communities. A few of the noteworthy benefits of involvement include improving the health and
Prepared By: Moore Recreation Therapy & Consulting Inc. 7 well-being of individuals, contributing to the empowerment of individuals, and promoting the development of inclusive communities. According to Welk & Blair (2000), active people are better protected against overweight and obese health risks, according to a review of 24 current articles evaluating health outcomes associated with physical activity and body composition.
Obese individuals who were active also had a lower incidence of disease and mortality than did normal-weight men/ women who were sedentary (Welk & Blair, 2000).
Considering the mission of the City of Brentwood Parks and Recreation Department is to “Provide exceptional service to the citizens of Brentwood while implementing Brentwood’s vision and values as determined by the City Council and the community”, it is essential to provide adaptive recreation and inclusive programming to meet the needs of individuals with disabilities as well as creating preventative health and wellness initiatives to serve the larger community. While recreation, sports, and leisure participation have positive health and wellness outcomes due to programmatic offerings, in a study by Brownson et al., (2001), it was found that there was a positive correlation between environmental infrastructure (such as trails and recreation facilities and enjoyable scenery) and physical activity. The national study included 1,818 people, a majority of whom were low income. This provides support for our assessment to not only look at ways to increase programmatic inclusive practices but also physical access and environmental infrastructure. Exceeding the minimum accessibility standards for physical access to accommodate the widest spectrum of users and their various abilities is considered universal design. The city is currently providing programming and services reaching a wide range of individuals however, individuals with disabilities are an underserved population within the city who benefit from participation both from a health and wellness perspective as well as a
Prepared By: Moore Recreation Therapy & Consulting Inc. 8 social aspect. In addition, within the scope of this program, preventative health and wellness initiatives would have an impact on all residents served by the city facilities and programs.
Scope of Assessment
The scope of this assessment included a comprehensive review of current programs, best practices, and facilities as they relate to serving individuals with disabilities. The executive summary will address the specific areas of accessibility of programs and facilities, current inclusivity, and best practices in programming as well as recommendation for future staffing, training, administrative processes, and programming to address the current deficits related to serving individuals with disabilities within the City of Brentwood Parks and Recreation Department.
Methodology of Assessment
The comprehensive assessment included multiple components: focus groups, review of administrative documents, observations of programs, website, facilities, staff training and equipment to ensure inclusive practices, accessibility as well as universal design. The first part of the assessment included physically walking and touring each City of Brentwood Parks and Recreation facility with an administrator. This tour included assessing physical access and barriers as well as the layout of each programmatic space. A thorough review of administrative documents included: registration processes, Parks Trails and Recreation Master Plan 2019, registration forms, staff training, and website review.
In addition to an assessment of the administrative documents, two separate focus groups were conducted to collect data: one with the programmatic staff with the City of Brentwood
Prepared By: Moore Recreation Therapy & Consulting Inc. 9 Parks and Recreation Department including 16 participants, and the second with community partner programs that the city currently works directly with or who currently serve individuals with disabilities within the City of Brentwood including 14 participants. In addition to the focus groups a formal digital survey was sent out to all residents of the City of Brentwood through the Parks and Recreation Department with a total of 184 participants completing the survey.
Definitions
Accommodation: any change to a job, the work environment, or the way things are usually done that allows an individual with a disability to apply for a job, perform job functions, or enjoy equal access to benefits available to other individuals.
Adaptive Recreation: adaptive or accessible recreation, is a concept whereby people with disabilities are given the opportunity to participate in recreational activities.
Attention Deficit Hyperactivity Disorder: (ADHD) is a chronic condition including attention difficulty, hyperactivity, and impulsiveness. ADHD often begins in childhood and can persist into adulthood. It may contribute to low self-esteem, troubled relationships, and difficulty at school or work. Symptoms include limited attention and hyperactivity. Treatments include medication and talk therapy.
Americans with Disabilities Act: (ADA) became law in 1990. The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public.
The purpose of the law is to make sure that people with disabilities have the same rights and opportunities as everyone else. The ADA gives civil rights protections to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national
Prepared By: Moore Recreation Therapy & Consulting Inc. 10 origin, age, and religion. It guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, state and local government services, and telecommunications. The ADA is divided into five titles (or sections) that relate to different areas of public life.
Autism Spectrum Disorder: (ASD) is a developmental disability caused by differences in the brain.
Caregiver: a family member or paid helper who regularly looks after a child or a sick, elderly, or person with a disability.
Certified Therapeutic Recreation Specialist: (CTRS) is a professional who works to improve the mental, emotional, and physical well-being of sick or disabled individuals. A CTRS possesses certification by the National Council for Therapeutic Recreation Certification (NCTRC).
Disability: a person who has a physical or mental impairment that substantially limits one or more major life activities.
Diversity: understanding that each individual is unique and recognizing our individual differences.
Emotional Support Animal: according to the U.S. Department of Housing and Urban Development (HUD), an emotional support animal is any animal that provides emotional support alleviating one or more symptoms or effects of a person’s disability. Emotional support animals provide companionship, relieve loneliness, and sometimes help with depression, anxiety, and certain phobias, but do not have special training to perform tasks that assist people with disabilities and does not have public access.
Equity: the state, quality or ideal of being just, impartial, and fair.
Prepared By: Moore Recreation Therapy & Consulting Inc. 11 Inclusion: the practice or policy of providing equal access to opportunities and resources for people who might otherwise be excluded or marginalized, such as those who have physical or mental disabilities and members of other minority groups.
In Home Support Service (IHSS)- Caregiver funded by Alta Regional Center: program provides in-home assistance to eligible aged, blind and individuals with disabilities as an alternative to out-of-home care and enables recipients to remain safely in their own homes.
Intellectual Disability: (ID) a condition characterized by significant limitations in both intellectual functioning and adaptive behavior that originates before the age of 22.
Mental Health: a person’s condition regarding their psychological and emotional well-being.
Recreational Therapy: (RT) a systematic process that utilizes recreation and other activity-based interventions to address the assessed needs of individuals with illness and/or disabling conditions, as a means to psychological and physical health, recovery and well-being.
Regional Center: regional centers are nonprofit private corporations that have offices throughout California to provide a local resource to help find and access the many services available to individuals with developmental disabilities and their families.
Sensory Processing Disorder: (SPD) is a condition that affects how your brain processes sensory information (stimuli). Sensory information includes things you see, hear, smell, taste, or touch.
SPD can affect all your senses, or just one. SPD usually means you're overly sensitive to stimuli that other people are not.
Service Animal: under Title II and Title III of the ADA, a service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability and has public access.
Prepared By: Moore Recreation Therapy & Consulting Inc. 12 Therapeutic Recreation: (TR)the process utilized in the practice of recreational therapy Therapy Animal/Comfort Animals: Both types of animals, typically dogs, work in situations where stress levels are high. Comfort animals work during active crises. They offer a calming distraction to those impacted in an active disaster or emergency. Therapy animals provide people with healing contact, typically in an institutional or clinical setting, to improve their physical, social, emotional, or cognitive functioning. While these types of animals receive extensive training and may interact with all sorts of people, including an individual with a disability, they are not trained to perform a specific task for an individual with a disability and do not have unlimited public access.
Universal Design: is the design of buildings, products, or environments to make them accessible to all people, regardless of age, disability, or other factors.
Veteran: a military veteran is a person who is no longer serving in a military. A military veteran that has served directly in combat in a war is further defined as a war veteran.
FINDINGS & RECOMMENDATIONS
Introduction
This assessment identified current practices as well as deficits and areas for growth within the City of Brentwood Parks & Recreation Department. Current ADA standards and universal design practices were reviewed, however the lens from a CTRS’s professional perspective will present the findings and recommendations.
Prepared By: Moore Recreation Therapy & Consulting Inc. 13 Facilities
A tour of all City of Brentwood Parks & Recreation facilities was conducted. While this assessment did not include specific measurements for ADA compliance, the facilities were looked at using the lens of accessibility from a programmatic perspective. There were many aspects of the facilities that should be commended for best practices as well as accessibility. A few of these include open spaces within the programmatic rooms, evening and night lighting in facilities exceeded standards, all exterior doors to main facilities included automatic accessible door push opener and closers. When assessing all the facilities signage, it was identified that the signage was either not large enough print/font size or the contrast was not accessible as well as there was not braille throughout all facility signage.
BRENTWOOD SENIOR ACTIVITY CENTER
The first facility assessed was the Brentwood Senior
Activity Center (BSAC). The facility should be commended for the number of accessible parking spaces as well as the large entrance and accessible welcoming front counter. The entrance door included an automatic accessible door push opener and closer to enter and leave the building were present. Automatic accessible door push opener and closers to enter the bathrooms, the main hall, and the back patio were absent as the doors were heavy. The stage in the main hall does not have a ramp or lift to provide accessibility to the stage. On the back patio
Prepared By: Moore Recreation Therapy & Consulting Inc. 14 one of three of the picnic tables were accessible and considering the facility is utilized by seniors this does not lend itself to provide ample accessible outdoor seating.
In the main activity room, there was not an accessible sink to be used for activities as well as sanitation. In the facility resource room with books, there is a CCTV which was donated to the center however the staff do not know how to use the piece of equipment nor is there directions for someone to access it independently.
RECOMMENDATION
•Review all facility signage font size, contrast as well as the addition of accessible signage. •BSAC entrance of main hall installation of an automatic accessible door push opener and closer.
•BSAC installation of an automatic accessible door push opener and closer for each bathroom.
•BSAC installation of an automatic accessible door push opener and closer for back-patio door.
•BSAC in the main hall, installation of a lift or ramp to provide accessibility to the stage. •BSAC installation of additional accessible outdoor picnic tables and seating.
In the main activity room, the installation of an accessible sink to be used for activities as well as sanitation would be an asset. In the facility resource room with books, there is a Closed Caption Television (CCTV) magnifier which was donated to the center, and we recommend all staff be trained on utilizing the piece of equipment. In addition, placing laminated directions attached to the equipment so that users can reference the instructions independently would be beneficial and increase the accessibility and overall use.
Prepared By: Moore Recreation Therapy & Consulting Inc. 15
BRENTWOOD FAMILY AQUATIC COMPLEX
The next facility assessed was the Brentwood Family Aquatic Complex (BFAC). The facility should be commended for having pool lifts to access all areas of each pool as well as having a PVC pipe wheelchair for the zero-entry access to the pool. It was found that in the family bathroom as well as in the main locker rooms there was a lack of accessible changing spaces as the locker rooms had traditional 12” wide benches without a seat back.
Programmatically, the facility offers a wide selection of swimming and aquatic programming.
Providing specialized programs to meet the needs of various populations would enhance the current offerings. This would include training for staff to provide accommodations and specialized programs as well as the purchase of adaptive equipment.
RECOMMENDATIONS
• BFAC installation of a universally designed large padded changing tables in all locker rooms as well as the family bathroom. This space would be used not only by individual users but by family members or caregivers who need additional space to support an individual.
• Providing program specific adaptive swimming and aquatic training to staff would enhance and expand the current programmatic offerings and allow for more inclusive programming to provide accommodations to individuals with disabilities in already existing programs.
Prepared By: Moore Recreation Therapy & Consulting Inc. 16 • Annual BFAC staff training on safety and use of the pool lifts as well as the PVC pipe access chair.
• BFAC purchase of Adaptive aquatics equipment. Examples of adaptive programmatic equipment may include: aqua jogger belts, aquatic bar floats, floatation neck doodle, swim lesion floating and sinking toys, and aquatic floatation cuffs.
BRENTWOOD COMMUNITY CENTER
The Brentwood Community Center (BCC) was assessed as well.
The city should be commended for the current practices in accessibility. One of the factors which presents a welcoming environment is the low wheelchair accessible front counters for registration as well as the welcoming staff. In addition, the facility has an accessible wheelchair evacuation chair placed at the rear stairwell of the facility. At the entrance, the doors were heavy, however there was one automatic accessible door push opener and closer at the main entrance. Once you have entered the facility, to access the main ballroom as well as all bathrooms throughout the facility the doors are heavy and lack automatic accessible door push opener and closers. In the commercial kitchen, there lacked a working space for someone who uses a wheelchair to utilize the counter space, however the commercial kitchen included an accessible sink.
RECOMMENDATIONS
• BCC accessible automatic accessible door push opener and closers for restrooms and main hall/ballroom.
Prepared By: Moore Recreation Therapy & Consulting Inc. 17 • BCC accessible countertop space for someone who utilizes a wheelchair to work in the kitchen.
• BCC space at the main front stairwell for an additional accessible wheelchair evacuation chair to meet the needs of multiple individuals for a safe and effective emergency evacuation.
• BCC in the main hall/ballroom installation of a lift or ramp to provide accessibility to the stage.
Programs
When assessing programs, all staff were prepared, organized, and friendly creating a positive and welcoming environment. When observed, almost all classes included one instructor with various participant to instructor ratios depending on the number of participants. When observed, most of the classes did not have a person with a visible disability participating. When a participate with disability was present, the parent assisted with focus and supported the individual behaviorally adapting when needed. The only program with multiple staff and volunteers which exclusively served individuals with disabilities was the Be Exceptional programs (which is a private company, not a program served by the City of Brentwood) and provided behavioral support for each participant as well as using the natural support of other participants when needed.
When conducting this assessment and communicating with the staff at the various classes, they were receptive to the conservation and willing to share information about their class
Prepared By: Moore Recreation Therapy & Consulting Inc. 18 structure, organization, demographics of class participants, and trainings they have attended or would like to receive. This information will be reviewed and provided as feedback and recommendations in the following section.
We would like to commend the program supervisors for their forward thinking and collection of resources to use for behavioral modification in various children’s program. It should be recognized that at the end of some program’s children are provided with a reward such as a sticker or praise which is an appropriate and effective behavior technique. The staff informed us that this is used as a motivation and reward for participation. Program staff informed us that if a child has a behavioral challenge the parents are brought in to “deal” with the situation and provide the support necessary for the child to participate. These instructors primarily referred to situations with individuals with ASD and ADHD. They referenced situations when the behavior was not corrected, and they would have to ask the child to come back next time, or the instructor would work directly with their supervisor to identify a plan. As it relates to behavior, staff at the BCC informed us that there are “Safe Space” (tents) available for those needing areas and fidget objects for emotional support/calming specifically used in the outdoor camp programs. The camp staff were also provided with a backpack with a “Cool Down” document which describes how to work with someone who is experiencing a behavioral challenge. The staff were provided with these resources however they reported not having received formal training on how to execute the equipment or guidelines. While we were informed of these resources as an accommodation, the staff were unsure where they were and if it was really a great idea to put a child into a tent and how long one should stay in it. In addition, the staff were unable to identify how to find them if it was a necessary resource for a child or how it could be used as a reward or punishment.
Prepared By: Moore Recreation Therapy & Consulting Inc. 19 Everything Sports by the Jump Bunch (an outside provider), staff informed us that they have had a few children with ADHD or ASD but the aids or parents automatically provided the one-on-one support for the individual to participate because they have not received any training on how to work with these populations. If the City will continue to contract with Jump Buch for programs, it is recommended that their staff be provided with support for accessibility, or the City could require that the contracted organization provide appropriate accommodations. In the Camp Brentwood program, staff informed us that they have had a few participants in the past with ASD or SPD. While staff were not trained specifically to “deal” with behaviors and any other issues that arise with the campers they were provided with a “Cool Down Backpack”. The staff said there is a policy in the handbook with a 3 strikes policy for behavior and participation.
They said they usually talk with parents to get information necessary to have the child to participate but there is no additional information on the registration form or provided to them before the camp or program starts such as an assessment so that they can be prepared or ask questions before the first day.
While assessing special events, the city residents enjoy participating in the programs and appreciate the offerings during the holidays. The special events appear to be well attended by the community. We commend the use of closed caption for Movies in the Park. While there were no specific special events for individuals with disabilities or marketing related to accessibility, best practices should be acknowledged to inclusively serve the Brentwood community.
RECOMMENDATIONS
• For special events, include more accessible parking.
Prepared By: Moore Recreation Therapy & Consulting Inc. 20 • For special events provide an optional designated accessible seating area for ease of use, viewing and safety.
• For special events include accessible porta-potties as well as accessible hand washing stations for sanitation (not the foot pump hand washing stations as they are not universally designed).
• Provide a consistent practice and training for programmatic staff to mitigate and modify spaces and program when behavioral challenges arise. It is recommended that a policy and procedure be put into practice to include an accessible space or behavioral technique utilized to attend to the individual’s behaviors safely and appropriately. Examples of this could include: breathing techniques, quite spaces, sensory objects for manipulation, a behavior contract, reward systems, and/or time/out time/in activities.
The Be Exceptional Program, which is a rental group provides a monthly social event, and weekly drama, and exercise class. This class is a specialized class for individuals with intellectual and developmental disabilities. Parents and caregivers can volunteer their time to provide individual support to participants during programs. The program is led by two instructors who adapt the program as needed and the participants naturally provide support for one another in a buddy system. They do not utilize any specific adaptive equipment however this would enhance access to various activities if available. The staff let us know that their program is not regularly publicized in the quarterly City of Brentwood Activity Guide, so it is also populated via word of mouth. While this is a rental group, families and caregivers associate the program as a City of Brentwood’s program.
Prepared By: Moore Recreation Therapy & Consulting Inc. 21 In support of providing specialized and inclusive programming within the current and future programs the following recommendations will support the future work of the CTRS and the program offerings within the Adaptive & Therapeutic Recreation Resources.
RECOMMENDATIONS
• Consistently list inclusive and adaptive programs such as The Be Exceptional Program and any other inclusive/specialized program under the new section on the website and activity guide titled Adaptive & Therapeutic Recreation Resources. • For all contracted or rental programs, if advertised in the City of Brentwood’s marketing materials, the programs must provide accommodations and work directly with the city’s Adaptive & Therapeutic Recreation Program as a city sponsored program. • Allow the expansion of The Be Exceptional Program to increase offerings as well as age groups served in the future. When speaking with parents after the program a few requested additional programs such as: cooking, creative arts, recreation based social skills, sports, and computer. Most of the parents stated that they did not want their children to participate with their typical peers in an inclusive program but preferred the format of the Be Exceptional where the individuals with disabilities are participating with their peers with similar needs continuing with a segregated specialized program. • Expand adaptive programs providing segregated specialized programs as well as continue to offer opportunities to various populations and age groups. • Provide inclusive and specialized adaptive and therapeutic recreation programs where staff are fully trained and feel comfortable with adapting to the various needs of various populations. In addition, having additional staff to assist within the class and provide one-on-one support when necessary.
Prepared By: Moore Recreation Therapy & Consulting Inc. 22 • Hire a CTRS to supervise the overall programming to make sure appropriate assessments and accommodations are implemented and provided.
• Have the CTRS provide training and development for staff to increase their knowledge and skills to implement programs and services to individuals with various abilities. • Have the CTRS collaborate and partner with Brentwood Unified Schools to connect with individuals with disabilities as well as promote volunteer opportunities for high school students.
• Have the CTRS create an internship program where RT students can complete their academic requirements to become a CTRS after graduation.
In addition to specialized and inclusive programming practices, within the scope of practice of a CTRS includes health and wellness programming. Providing preventative health and wellness programming such as the ParksRx National Program would attract individuals of all ages and abilities to promote health and wellness practices. This would utilize outdoor park spaces and indoor community facility spaces to attract those with already existing health conditions as well as create a health and wellness platform to increase the concept of “Healthy Parks Make Healthy People”. This slogan or one similar could create a new partnership with the medical community within the city and increase the use of public spaces for preventative health and wellness initiatives. Many cities across the country have initiated this type of programming and the research available supports the benefits to both the residents and the community related to healthy lifestyle choices and community engagement. Below we will provide recommendations in the various programmatic age groups as well as specific program areas.
Prepared By: Moore Recreation Therapy & Consulting Inc. 23 Considering city resident school age children in the assessment assists in identifying a need especially within the California Department of Education Special Education Services.
According to the California Department of Education Data Quest, (2018-2019) there are 1,366 individuals receiving special education services in the Brentwood Union School District. While this number is low based on the many students that are undiagnosed or do not need accommodations inside the classroom, this specifically identifies a significant need of a population that could benefit from recreation, leisure, and sports participation within the City of Brentwood Parks & Recreation Program. These programs could be specialized for specific populations or inclusive in nature providing opportunities for all to participate regardless of their disability.
RECOMMENDATIONS
• To meet the needs of school aged children additional programming could include:
adaptive swimming lessons, recreationally based social skills programs, streamlined assessment and accommodation practices for camps and all programming, specialized wheelchair sports, and inclusive and specialized sports programming for various populations.
In addition to the school age population, according to the US Census 2019, there are 3,486 Veterans who reside in the City of Brentwood. This is a large population of individuals who may or may not currently participate in programming or utilize facilities and services within the city. The CTRS may create specialized and inclusive programs that are welcoming and accommodating to the specific needs of veterans and their families will broaden the scope of practice and services available better meeting the unique needs of those who reside in Brentwood. In addition, the 2019 Census broke down the population of those who disclosed
Prepared By: Moore Recreation Therapy & Consulting Inc. 24 having a disability. This population was identified as 7.6% (4,900 persons) of the entire population of Brentwood 64,474. This is consistent with the national averages for this population and again lends itself to an opportunity to reach a population that may not currently utilize facilities or programs through the City of Brentwood Parks & Recreation Department.
This population could include the aging who currently utilized the services at the senior center.
In addition to specialized and inclusive programming, preventative health and wellness initiatives such as the “ParksRx” program which is a national initiative providing services and programs to create healthier communities. Expanding programmatic offerings and access to serve all residents within the City of Brentwood would positively impact all populations supporting the continued need for this assessment.
Preschool (ages 0-4): When assessed, the children are engaged and actively participating.
The staff provide kinesthetic learning opportunities and provide consistent verbal praise. Some of the feedback from both the staff and parents included having a lack of “after work” hour classes as well as weekend programming availability.
RECOMMENDATIONS
• Preschool (ages 0-4) area includes an increase in parent/caregiver and me classes. • Create sensory play classes to programming for this population as appropriate sensory stimulation positively affects the developmental stages as children grow and learn.
Prepared By: Moore Recreation Therapy & Consulting Inc. 25 • Increasing class offerings in the evening as well as on the weekends would increase opportunities for community members to engage in programming outside of the “workday” times.
• Create additional tumbling, gymnastics, and creative arts classes for all abilities would increase opportunities and the inclusion of all populations to provide access to physical and social programs.
Youth (ages 5-12): In this age group, the classes were well organized, and the instructors communicated clearly and effectively with the participants. The program staff provided verbal praise as well as “high fives” as a motivation and behavioral reward. The staff spoke of enjoying their work and requesting to have additional training when more participants with disabilities begin to participate in the classes. The staff stated that they occasionally have a participant with ADHD or ASD and the parents would step in to provide the one-on-one support. We commend the program instructors for their work in adapting to the needs of the various participants. When provided with goals from their program supervisors, instructors identified that they created lesson plans and enjoy executing the delivery of programs.
RECOMMENDATIONS
• The CTRS may provide training on activity analysis to create accessibility and modifications to equipment and activities.
• Provide participant rosters to staff at least one week prior to the start of a new class including assessments of individuals with disabilities so the staff may initiate communication with the individual, family or caregiver before the program begins. • Provide training related to behavior analysis and modifications for program staff.
Prepared By: Moore Recreation Therapy & Consulting Inc. 26 Teens (ages 13-17): The assessment primarily included sports programming and camps.
Consistent recommendations from the other age groups include: staff training, behavior modifications, and accessibility.
RECOMMENDATIONS
• Provide additional programs on nights and weekends as well as additional social programs. • Create additional programming: cooking, home mechanics, and social skills programming as a request based on the deficits and current needs of their children. • Create a volunteer and counselor in training (CIT) program where high school students may support senior programs and the Adaptive & Therapeutic Recreation Programs to increase leadership activities for teens to gain “volunteer and work” experiences.
Adults (ages 18+): Participants were actively engaged and appeared to enjoy the programming especially within sports leagues as well as the special programs such as the holiday parade and tree lighting. The adult’s sports leagues were well attended and organized. The staff were engaged and organizing the program implementation. It was observed that there were no individuals with visible disabilities participating inclusively in any of the current city sports programs. The specialized programs provided by Be Exceptional, a community rental, included all the specialized engagement for individuals in this age range to participate in exercise and drama weekly. There were not any program offerings in the areas of adaptive sports or inclusive programming.
RECOMMENDATIONS
• Implement organized hikes and outdoor adventure.
• Create more evening and weekend program options as it relates to creative arts.
Prepared By: Moore Recreation Therapy & Consulting Inc. 27 • Develop adaptive and therapeutic recreation programs that complement and increase opportunities for individuals with disabilities.
• Provide facility rental space for the Be Exceptional program to develop and expand. In addition to providing more rental opportunity for Be Exceptional, having the CTRS offer inclusive and specialized programmatic opportunities would increase the engagement of various populations. This would include consistent additional days of program, times, weekend availability, and the expansion of program offerings.
Adults (50 & better): The Senior Center programs assessed were implemented primarily by seniors themselves, they get together and dance, socialize, arts& crafts, play various board and card games, etc. When observing programs, the participants present extremely engaged and spoke only positively about the programming. Staff were only present for meals and creative arts group and to welcome participants when they enter the facility. Staff in the creative arts activities stated needing additional staffing and training to assist with participants who exhibit cognitive delays or have physical disabilities. Before COVID-19 there were volunteers from the area high school, but the program is no longer available. The staff stated that the participants tend to form natural support systems within one another to create access. Current programs are primarily meeting the social needs of the participants however cognitive and physical engagement are not addressed.
Prepared By: Moore Recreation Therapy & Consulting Inc. 28
RECOMMENDATIONS
• Develop active and more passive recreational and leisure programming including cognitive and physical engagement.
• Increase opportunities for weekend programming and evening programming. • Provide programming for this population throughout the summer to provide social engagement and increase physical activity opportunities. • Develop and implement staff training with topics related to physical disabilities and mobility devices as well as providing accommodations for individuals who are blind or have a hearing impairment.
• Develop and implement staff training related to cognitive impairments including brain injuries, dementia, as well as fall prevention.
• Develop and implement senior sports activities and leagues, adaptive sports programs, senior Olympics, basketball, a bowling league, softball. • Partner or develop convenient and timely transportation needed for all programs and the potential to collaborate with dial a ride.
• Provide magnification and lighted workstations for individual with visual impairments to participate in activities inclusively (creative arts, cards, bingo).
FINDINGS & DATA COLLECTION
Staff Focus Group
This focus group provided an opportunity for staff to share their insights and voice their opinions about current processes and programs and advocate for their current and future needs.
Staff were concerned about providing safe environments and program options without the proper
Prepared By: Moore Recreation Therapy & Consulting Inc. 29 training. They discussed the registration process and lack of information they receive on the rosters before programs start to ensure participants receive appropriate accommodations and that staff are prepared. This concern included health information such as allergies, medications and any disability accommodations that may create an unsafe situation for both the instructor and the participant.
In addition to the registration process, staff were concerned with their lack of training related to specific populations including: ASD, SPD, dementia, intellectual/developmental disability, brain injury, blindness, hearing impairment, and various physical disabilities. These concerns included first understanding the presentation of various disabilities in addition to how to modify equipment, programs, and activities to meet the needs of various populations.
Multiple staff voiced a desire to have training on behavior planning and modifications to serve individuals with ASD, SPD, and ADHD. In addition to disability specific training, staff requested training related to learning about various pieces of adaptive equipment that could be purchased by the city to provide accommodations or create new adaptive sports and recreation programs to serve a more diverse population. They also wanted to receive training on activity analysis and how to modify activities to meet the various physical and behavioral needs of different populations. The staff were concerned about the participant to staff ratios if individuals with disabilities were included in programs as the current model does not include additional staff but requires family members or care givers to provide the one-on-one support for the individual to participate. Overall, the staff were very happy with their current positions and felt encouragement knowing that the city was allocating resources to conduct this assessment and hear and hopefully address their current and future needs.
Prepared By: Moore Recreation Therapy & Consulting Inc. 30 Community Agency Focus Group
This focus group was comprised of community members and leaders of various groups throughout the area who serve individuals with disabilities. The group was very diverse and eager to initiate future partnerships. The current programs throughout the city and outlying area were receptive to provide feedback of current successes and challenges. The group provided basic information about their programs and populations served. They provided ideas for future collaboration and program needs based on their current experiences both in the schools and community agencies representing all age groups. There were various groups representing programs that serve primarily individuals with intellectual and developmental disabilities. These staff were advocates for their populations served and for the community. There were two programs in attendance with current collaborations with the city. This led to dynamic conversations about potential areas for growth and development.
RECOMMENDATIONS
• Create and implement additional programming in adaptive sports, social skills, activities of daily living, home mechanics, physical fitness, and creative arts. While some groups requested specialized programs for specific populations i.e. (programs exclusively for individuals with ASD or ADHD), others preferred new and innovative inclusive programs where the individuals with disabilities will participate with their typical peers with adaptations and modifications to the current programs already offered within the City of Brentwood’s Activity Guide. Both requests are within the scope of the future Adaptive & Therapeutic Recreation program offerings when there is appropriately training for staff and accessible equipment and resources.
Prepared By: Moore Recreation Therapy & Consulting Inc. 31 • Provide weekend, evening, summer programs, and special events serving individuals with disabilities.
Community Participant Survey
The survey was created by Moore Recreation Therapy & Consulting Inc. and was reviewed by the city staff and approved for distribution. The survey included questions related to program needs, accessibility, accommodations, staffing, and community participant suggestions. While minimal demographics were collected, we have compiled a review of the findings below. The community participant survey was sent out to all members of the community by the City of Brentwood Parks & Recreation staff. There were 184 completed surveys. 48 of the respondents (26%) of the survey disclosed as having a disability. The average age of individuals who disclosed having a disability was 51 years old.
Below we provide a graph with the demographic data related to the area of disability:
Specific Disability Disclosed: Percentage of
individuals with the
given disability from the
184 completed surveys:
Average age of
respondent with the
given disability:
Physical Disability 23% 87
Intellectual/Developmental
Disability
15% 24
Autism Spectrum Disorder or
Sensory Processing Disorder
43% 13
Blind 2% 19
Hearing Impairment 6% 81
Unknown or did not disclose 11% 56
Prepared By: Moore Recreation Therapy & Consulting Inc. 32 One of the things we did not ask in the survey was if individuals were military veterans. Given the large veteran population in the City of Brentwood, which was collected by the census, this information may have been able to provide additional evidence that veteran specific or focused programming may have been an appropriate addition to current programs offered or additional future programs through the Adaptive & Therapeutic Recreation Services and guided age-related variables.
RECOMMENDATIONS
• Provide additional training for staff and programming related to specific populations. The (50+ and better) population is one demographic which the city should focus future resources related to programming and staff training. As the average participant that completed the survey was 51, this group clearly is invested and interested in providing feedback to the city based on their interests and needs. • Develop population specific programming directed to serving individuals with ASD or SPD as this was a significant percentage of the populations represented. This population included respondents age ranges from 3 to 39 years of age. • Review below participant feedback and identify which recommendations would be viable to add in the current or future fiscal years as well as evaluate current programs and practices for safety and accessibility.
Participants of the survey provided the following recommendations and feedback: The recommendations below include data directly collected from the survey. This does not include recommendations from Moore Recreation Therapy & Consulting Inc.
Prepared By: Moore Recreation Therapy & Consulting Inc. 33 More open spaces More sensory programs Add pickle ball Add swimming lessons for adults
Add basic needs classes:
cooking, sewing
Add Pinterest craft
classes
Add gardening
classes for 50+
Add salsa dancing
classes
Add computer classes
for the 50+
Add social and cultural
gatherings
Add therapeutic
water exercise
classes
Add chair exercise
classes 50+
Add year-round aquatics
programs
Add Latino focused 50+
programs
Add a place in
registration to ask
for an
accommodation
Need staff training
to accommodate
kids with
disabilities
Add programs specific
for children with Downs
Syndrome
Increase inclusivity on
website (Spanish),
culture, age, low-income
options
Add parent and
me classes on
weekends and
evenings
Add more
concerts in the
park
Add arthritis exercise
classes (PACE)
Add horseshoes Add camps for
kids with ASD
and SPD
Add more day
trips for 50+
Add inclusive
transgender and nonbinary youth and adult
sports
Need Epi pen and allergy
training for staff
Need staff training
for ASD, SPD,
ADD and ADHD
Need staff training
for dementia
Add adult and disability
self-defense classes
Need private swim
instructors who know
how to work with
individuals with
disabilities
Add light of the
fields at night for
safety so the
community can
access them: Oak
Meadow Park
Add specialized
programs for kids
and teens with
disabilities
Lack of transportation to
facilities
Lack accommodations
for the blind and for a
service dog
Medical
considerations for
the 50+
Need cost
effectiveness for
50+ programs
when on a fixed
income
As identified in the table above, participant recommendations include various additions to program offerings, staff training, safety protocol, facility recommendations, marketing, and website recommendations as well as administrative/registration process improvements.
The assessment clearly identifies the needs and recommendations of a select population of the City of Brentwood’s community who completed the survey.
Prepared By: Moore Recreation Therapy & Consulting Inc. 34 Staff Training & Development
In the BCC, it is recommended that all staff both facility and programmatic be provided with training on using the stairway evacuation wheelchair which is kept in the main stairway in the back of the facility. This training should be one component of new-hire training as well as reviewed annually to ensure safety practices and accessibility for all. After having a discussion with a few programs specific staff, they requested training in the following areas: emotional and physical disability training, how to adapt activities to fit the need for a child with a disability, how to speak with someone appropriately using person first language and attaining and learning how to use adaptive equipment to assist individuals with physical disabilities.
From this assessment, it is recommended that all camp and program staff be provided with training as it relates to disability awareness and sensitivity. In addition, it is recommended that content include behavior modifications and planning, activity analysis and modifications as well as an introduction to adaptive equipment and modifications to meet the needs of multiple populations. This training would also include safety training and understanding their roles and responsibilities when providing services to various populations with disabilities. This would also include assessment registration documents and training for working with the (50+ and better) population.
The following trainings and schedule recommendations are provided below:
New Hire Orientation Quarterly Training Annual Training Safety practices and
accessibility
Behavioral modification and
quiet space
Person first language and
effective communication
Disability awareness &
sensitivity (service animals)
Accommodations and
adaptations of program
Activity analysis and
programmatic modifications
Prepared By: Moore Recreation Therapy & Consulting Inc. 35 Accommodations and
adaptations of program
Seasonal program
modifications
Adaptive equipment and
modifications
Inclusive Policies &
Procedures
Value and benefits of
inclusion
Confidentiality
Emergency Procedures:
disability specific and
stairwell evacuation chair
Policies & Scenarios (what
would you do)
Inclusive Policies &
Procedures
Marketing & Administrative Practices
After completing the assessment, the city should be commended for providing many accessible practice and services to the community. The website has been modified since the inception of the assessment and has created clear categories and a more user-friendly look and categories on the main page for ease of navigation and use. The participants were vocal about their appreciation for providing alternative means for enrolling in programs (i.e. walk-in to front desk or calling in). In addition, the forms provided for enrollment are clear and well organized.
Participants appreciate the one-page seasonal special event and programmatic flyers to advertise and market programs. Participants spoke highly about how friendly and helpful the front desk staff were at all facilities.
RECOMMENDATIONS
• Include accommodation needs and medical/health information for the safety of its participants in the registration documents. This would include medication lists, especially for camps and senior programs where children or seniors are with staff for multiple hours in a day and health concerns arise. In addition, the accommodation list
Prepared By: Moore Recreation Therapy & Consulting Inc. 36 should include information about any behavior modifications and physical needs of the individual. This would provide staff the appropriate information to contact the individual or families before the start of the program to make sure they have all the necessary training, staffing, equipment, and accommodations ready for the first day of programming.
• Provide staff with participant rosters with the accommodation requests at least one week before the program begins.
• Provide one-on-one support staff for an individual in a program as a reasonable accommodation required by the ADA.
• Create a policy for participation behavior expectations and a behavior contract which may be signed by all families, care givers and/or participants so that expectations are clear and provided before the individuals participation in programs. • Provide closed captioning at all public meetings to increase inclusivity of all attendees. • Provide sign language interpreter as a best practice. However, when requested by a participant, providing a certified sign language interpreter meets the ADA. • Create language on marketing materials to include: participants must notify the department at least 72 hours prior to the event or program if sign language interpretation is needed as an accommodation.
• Create and implement an assessment and new registration documents and training for working with the (50+ and better) population. Currently if someone in the (50+ and better) population needs assistance to participate in a program they must bring their own care giver or family member to support their participation.
Prepared By: Moore Recreation Therapy & Consulting Inc. 37 • Provide staff with additional programmatic training on modifications and accommodations necessary to support the one-on-one needs of participates to comply with the ADA. • Create and implement policies and procedures related to working with individuals with disabilities to create accountability, consistency, and safety standards. Examples of this could include: inclusion policy, policy goals, staff training policies, organizational support, environmental support, and continuous measure and improvement. • Create and publicize an inclusive or accessibility statement on the front page of the website to market and provide education for participants to identify and then gain all the resources related to the topic.
• On the main website homepage create a button for contacting the Adaptive & Therapeutic Recreation Supervisor to initiate an assessment or request accommodations, review contrast and font size accessibility requirements, and provide welcoming and inclusive language for each program description to include individuals of all abilities. Increase the use of photos of individuals with disabilities or other diverse populations in marketing materials. As an example, within the description of classes, the word inclusive practices or request an accommodation should be in the language.
Partnerships & Collaborations
This assessment identified the relationship the City of Brentwood Parks & Recreation Department maintains with various community service providers of contracted programs and services. While conducting our assessments we met with various staff program instructors as well as those who contract services with the city. The partnerships provide a mutually beneficial relationship for both parties however the instructors would like to receive more information
Prepared By: Moore Recreation Therapy & Consulting Inc. 38 during the registration process to better serve the participants. The contracted instructors identified a need for training related to accessibility, disability awareness, equipment and program modifications and behavior training. After conducting the community focus group, we met with a few groups that currently work/collaborate with the city as a contracted service provider as well as several other organizations that would like to get involved in the future. Be Exceptional currently provides services however they would like to expand their programs to include different age groups as well as various program offerings and to serve additional populations. Working Wonders is another community organization that currently does not collaborate with the city however they are interested in establishing a working relationship in the future to increase the opportunities for individuals with disabilities in the community.
While budgetary constraints may be a current challenge within the department, there are multiple ways to generate funds to supplement resources. Seeking grants from foundations, seeking donations from local organizations or private residents, and government grants are a few avenues to attain funds to support programs. As an example, one organization that provides adaptive cycles to children under the age of 18 is Athletes Helping Athletes. https://www.roadrunnersports.com/rrs/content/content.jsp?contentId=2400098 This would create a functional partnership with an organization to support an adaptive cycling program for youth. AMBUCS is another organization specific to adaptive cycling that has a grants program. https://ambucs.org/ They are willing to provide adaptive cycling clinics or partner with an organization to create programming in a given community. This is one example of a specialized adaptive sports program with resources for both equipment and funds.
Prepared By: Moore Recreation Therapy & Consulting Inc. 39 Adaptive & Therapeutic Recreation Resources
In the area of Adaptive & Therapeutic Recreation Resources, the assessment lead to needs in the area of program development, staff training, staff hiring, equipment purchasing, and training on equipment and other modifications. As an example of a programmatic recommendation within a specific area, in the aquatics programs, it is recommended that a policy be created to ensure the safety of participants of staff and patron when providing transferring assistance. It is recommended that programmatic staff who work with populations who will utilize the lifts have programmatic specific training to support an individual to transfer and access the pool/program. Depending on the departments risk management, it is either recommend that lifeguards support but not provide the transfer for an individual or provide a transfer based on appropriate standardized training.
After conducting this assessment, it is recommended that the City of Brentwood hire a fulltime recreational therapist (CTRS) to supervise and administer the Adaptive & Therapeutic Recreation Programs and Services. The benefits of having this specialized staff member would not only expand and enhance program offerings but also provide someone to assess participants, provide individualized adaptive modifications as well as create programs and policies associated with serving individuals with disabilities and support staff in all areas. The CTRS would have the ability to develop and implement ongoing staff training and establish administrative practices to meet the needs of the City of Brentwood Parks & Recreation Department in serving diverse populations. In addition, having this professional expertise will allow the city to serve a greater and more diverse population creating specialized and inclusive programs to meet the needs of the residents of the City of Brentwood.
Prepared By: Moore Recreation Therapy & Consulting Inc. 40 The CTRS would establish and develop relationship with community partners to increase participation and collaborative opportunities. Creating a volunteer program for teens as well as creating relationships with local colleges would enhance learning opportunities and support leadership development and program needs. The CTRS could provide direct supervisor for a student who is studying to become a CTRS. As a recreational therapy student, the culminating experience in acquiring a degree is a 560-hour internship. This internship could be housed under this program and provide the opportunity for at least one student throughout the year on a semester basis to complete their academic requirements. This will contribute to the success of the program in attaining the latest trends that academic institutions are providing to students as it relates to evidence-based practice in the field of recreational therapy. The CTRS would also be able to provide best practices, assessment, planning, implementation, and evaluation in all areas of programs in addition to the inclusive and specialized therapeutic recreation programs.
SUMMARY
The City of Brentwood should be commended for their commitment to the need for this assessment. While budgetary concerns are at the heart of municipal parks and recreation programs, addressing the needs of a specialized group which includes military veterans, the aging and individuals with disabilities, making this assessment and then a strategic plan for moving forward should be celebrated. With the addition of a CTRS to the staff of the City of Brentwood Parks & Recreation Department, specialized and inclusive programs and services addressing the needs of individuals with disabilities as well as preventative health and wellness programs serving the larger Brentwood population will address the current health and wellness needs of the community. Having this charge within the cities strategic plan exemplifies the cities
Prepared By: Moore Recreation Therapy & Consulting Inc. 41 commitment to serve its citizens and continue as a model of excellence within municipal parks and recreation in the state of California. As the City of Brentwood takes on this endeavor it is the recommendation that Moore Recreation Therapy & Consulting Inc. provide ongoing contractual support to ensure a productive and fluid transition in service, programs, trainings, and the hiring of a CTRS.
REFERENCES:
Miller, K., Schleien, S., & Lausier, J. (2009). Search for best practices in inclusive recreation:
Programmatic findings. Therapeutic Recreation Journal, 43(1), 27-41.
Parks Rx Program - https://www.parkrx.org/
Prepared By: Moore Recreation Therapy & Consulting Inc. 42 PURCHASING & ESTIMATED BUDGET:
•Updated ADA signage:
Restroom Exit Route Accessible Parking
Accessible
•Accessible automatic door open and closed button
•Accessible picknick tables
•Accessible lift for stage
•Accessible changing table for locker rooms
• Adaptive Aquatic Exercise Equipment: Exercise floatation belt •Accessible wheelchair stairwell evacuation chair
Prepared By: Moore Recreation Therapy & Consulting Inc. 43 •Accessible kitchen counter working station
•Sensory stimulation mat
•Weighted Gel Pad
•Wrist ribbon
•Small puffer ring
•Fidget spinners
•Adaptive scissors
•Jumbo paint brushes
•Colours Multi-sports wheelchairs
•Full Page Illuminated Desktop Magnifier
Prepared By: Moore Recreation Therapy & Consulting Inc. 44 Item Number Cost Total
ADA restroom
signage
20 $28.00 $560.00
Exit route signage 20 $23.00 $460.00
Accessible signage 20 $17.70 $354.00
Accessible
automatic door
open and closer
12 $5,000.00 $60,000.00
Accessible picknick
tables
4 $1423.88 $5,695.52
Accessible lift for
stage
2 $8495.00 $16,990.00
Accessible
changing table
3 $7335.00 $22,005.00
Adaptive water
exercise belt
50 $52.95 $2,647.50
Accessible
wheelchair
stairwell evacuation
chair
1 $3325.42 $3325.42
Accessible kitchen
counter work
station
1 $695.99 $695.99
Sensory stimulation
mat
10 $28.83 $288.30
Weighted gel lap
pad
10 $40.94 $409.40
Wrist ribbons 20 $30.44 $608.80
Small puffer rings 2 $41.19 $82.38
Fidget spinners 10 $9.95 $99.50
Adaptive scissors 10 $9.95 $99.50
Melissa & Doug
Jumbo Paint
Brushes
10 $7.49 $74.90
Colours in Motion
Multi-sports
wheelchair
25 $3,799.00 $94,975.00
Full Page
Illuminated
Desktop Magnifier
10 $99.95 $999.50
Hiring of a CTRS
staff member
1 $75,000.00 $75,000.00
TOTAL: $285,370.71
Prepared By: Moore Recreation Therapy & Consulting Inc. 45 This estimated budget is based on minimal purchasing related to adaptive programming equipment and emphasizes facility modifications and the hiring of one CTRS to begin the assessment, planning, implementation, and evaluation of the Adaptive & Therapeutic Recreation Programming.
Prepared By: Moore Recreation Therapy & Consulting Inc. 46
RECOMMENDED BEST PRACTICES
1. ENSURE POLICIES AND PROCEDURES STRATEGICALLY INCLUDE PEOPLE
WITH DISABILITIES
Brentwood’s Parks & Recreation agency policies and procedures will include inclusive language and clearly state that parks and recreation programs, facilities and services are available to people of all abilities.
2. INVOLVE PEOPLE WITH DISABILITIES IN DEVELOPMENT &
IMPLEMENTATION
Diverse populations including individuals with various disabilities will have representation on various city boards and will be involved in the development, implementation and evaluation of the City of Brentwood’s Parks & Recreation programs, facilities, park improvement projects, and other services.
3. PROMOTE PROGRAM ACCESSIBILITY
The City of Brentwood’s Park and Recreation programs, facilities, special events, and services will be accessible to people of all abilities. The physical environment, program/class structure, communication methods and social components will be accessible for people with disabilities to participate fully and successfully.
4. PROVIDE ACCOMMODATIONS FOR
PARTICIPANTS WITH DISABILITIES
The City of Brentwood’s Parks & Recreation programs,
facilities, special events and services will address the individual needs of participants with disabilities. These accommodations will be addressed in a respectful and
strategic manner.
5. TARGET OUTREACH AND COMMUNICATIONS TO PEOPLE WITH
DISABILITIES
The City of Brentwood’s Parks & Recreation Department will use inclusive language and imagery, a variety of dissemination methods such as video and audio and consider partnering with organizations with similar values and visions when devising program outreach materials as needed.
Prepared By: Moore Recreation Therapy & Consulting Inc. 47
6. ACCOUNT FOR COST CONSIDERATIONS AND FEASIBILITY
The City of Brentwood’s Parks & Recreation Department will address potential fiscal implications of inclusive practices including: staffing, ongoing training, adaptive equipment, and additional resources needed to create, promote and sustain successful inclusive practices and specialized programming.
7. IMPLEMENT PROCESS EVALUATION AND PARTICIPANT FEEDBACK The City of Brentwood’s Parks & Recreation programs, special events, facilities, and services will implement a process for effective evaluation that includes feedback from participants with disabilities and family members, personal assistants, caregivers, or other representatives.
Feedback and additional accommodations will be reviewed and strongly considered in the future development and implementation for all programming.
8. EVALUATE OUTCOMES
The City of Brentwood’s Parks & Recreation Department will collect data on outcomes attributed to inclusive practices within programs, facilities, special events and services that benefit community members. As part of this data collection, an ongoing community focus group of persons with disabilities and their representatives will meet annually to discuss and review the accessibility and inclusion of individuals with disabilities within programs and facilities.
Tips to Increase Usability & Accessibility
1. Person first language
People with disabilities are people first.
Humans vary in many ways, from physical appearance to personality. One way we vary is our ability level. Each individual has a unique personality, strengths, and abilities. Focusing on what people can do instead of what they can’t do is important. In current practice, many organizations are in fact, dropping the “dis” and focusing instead on ability of individuals.
People are people first. Our variations make us unique from each other, but also make our individual needs different. These differences are not cause for exclusion but are factors to consider as we plan and deliver recreation experiences.
Person-first philosophy is a way of thinking about people’s abilities first and foremost. Never assume you know about a person with a disability based on a label or diagnosis. Find out what a person’s abilities are and use them to facilitate full inclusion in recreation. Avoid labels, discover abilities! This can be done through an assessment as well as appropriate registration forms that collect necessary accommodation requests.
Prepared By: Moore Recreation Therapy & Consulting Inc. 48 Person-first language is a respectful, sensitive, and the accurate way to write and talk about people with disabilities. In person-first language, the person is first, then the disability. In oral and written communication, a recreation agency that embraces inclusive practices will use person-first language and train all staff to do so as well.
The word HANDICAPPED is outdated and disrespectful of people’s abilities.
2. Communicate clearly: use clear language and alternative forms of communication Use alternative forms of communication: Communication needs can be met in a wide variety of ways, from providing alternative forms of communication to assistive listening devices to apps on a smart phone that facilitate interaction. The key is to let the public know what forms of communication you have available, how they can be accessed or arranged, and an openness to explore new ways to communicate.
• Use clear and concise language: Clear and concise language is communication your audience can understand the first time they read or hear it. Written material is in clear and concise language so that your audience can:
• Find what they need.
• Understand what they find; and
• Use what they find to meet their needs. There are many writing techniques that can help you achieve this goal.
• Ensure accessible signage: signs should be clear with large, accessible contrast, raised lettering, braille, and pictorial information, including the universal symbol of accessibility. Ensure signs are mounted at a height and angle so they are readable by all people.
Clear Language Writing Techniques
• Use clear and simple text (plain English) with short sentences, simple punctuation, and no jargon.
Prepared By: Moore Recreation Therapy & Consulting Inc. 49 • Use larger print (at least 12 point), a clear typeface and plenty of spacing. • Use bullet points or story boxes and fact boxes to make the main points clear. • Use images such as photos, drawings, or symbols to support your text. • Aim to make the subject of your material clear, even to a non- reader. • Choose one or two simple, pictorial symbols and put them to the side of the words.
• Make sure there is appropriate contrast between type and paper.
3. Make sure everyone feels welcomed and is invited
Inclusive practices in your marketing and outreach will increase accessibility of materials. Take a critical look at your marketing materials - they should include images of people with disabilities and other diverse populations playing alongside one another.
The materials should let people with disabilities and their families know what programs and services you have available. On your website, have an easily found page that provides detailed information about physical access, safety guidelines, available adaptive equipment, availability of quiet spaces, policies you have that facilitate participation, an invitation to call ahead for individual consultation and accommodations, and other information you feel will help people enjoy your entities to the fullest.
Appoint a CTRS as your point person to create a streamlined approach for communication with the public about assessments and accommodations is essential. This professional will have the expertise and a positive attitude to be the point of contact for inclusive practices and accessibility to facilitate communication and proactive problem-solving, as well as advocate for improved services.
Website accessibility: ensure your website is usable by all people and meets guidelines for accessibility by the ADA.
Prepared By: Moore Recreation Therapy & Consulting Inc. 50 Inclusive Practices and Therapeutic Recreation Point of Contact (CTRS) o A One-Stop Shop: Having a CTRS as your point of contact provides a single person for individuals who need accommodations to access facilities, services, or programs.
Identifying the contact person in public notices and publications allows individuals with disabilities to contact one person with the knowledge and responsibility to handle assessments and accommodation requests.
o Information Dissemination: The CTRS serves as a central resource on disability issues for the agency. The CTRS should be familiar with the agency’s responsibilities under the law and should have access to the resources needed to respond to inquiries, assessments, and accommodation requests.
o Effective Communication: The CTRS knows how to access auxiliary aids and services to promote effective communication.
o Support: The CTRS provides training and technical assistance for employees in responding to requests for assessments, accommodation, instructs employees on disability awareness issues, and takes a leadership role in ensuring the agency embraces inclusive practices and is welcoming to all.
Website Accessibility Checklist
o Provide a translator so that the website can be accessed by diverse populations in multiple languages
o Uses headings, list, and consistent structure throughout the site. As you move through page-to-page on the site, the banner and navigation bar stay the same. Navigation should be clear and consistent.
o Clean Visual Layout: the website is clear of clutter, uses ample white space, and high contrast.
o Images, graphs, charts, tables, and animations used alt text: Uses the” alt” attributes to describe the function of each picture, graphic, or visual. When the mouse rolls over the picture or graphic, the text description is displayed.
o Links: use text that makes sense when read out of context for links. Avoids “click here” as it provides no information about the link.
o No flickering words or images, no unnecessary sounds, or animations: may induce seizures in some users: highly distracting for users with learning or attention differences. o Information for access features is provided: Example accessibility information o Multimedia provides captioning and/or transcripts for audio content and descriptions of video.
o The Website Has Been Checked: the website indicates that it has been validated by one of the many online accessibility tools. One example is WAVE, available at http://wave.webaim.org/.
Prepared By: Moore Recreation Therapy & Consulting Inc. 51
4. Create a clear and accessible path
A clear path of travel ensures that people of all sizes and abilities can approach, enter, and use your recreation sites and facilities. The route of travel should be unobstructed, well-lit, have a firm and stable surface, be wide enough, and have a gradual incline usable by all people.
Parking is an important aspect of a clear path of travel. Accessible parking includes designated signs, spaces that are 96 inches wide, access aisles for wheelchair lifts on vehicles, a reasonable distance from the entrance, and a continuous route of travel including curb cuts and ramps if needed.
Entrances also make up part of the clear path of travel. Entrances should be clearly marked as accessible, be wide enough, open easily (e.g., light weight or automatic, handles that are usable without grasping), and have a level ramp landing area that is large enough for wheelchair maneuvering.
Ask yourself, “Can all people approach, enter, and use this recreation site? How clear is the path of travel?”
Checklist for a Clear Path of Travel
o Unobstructed: there are no barriers in the route of
travel, and it can be used by a person using a
wheelchair or by persons with other disabilities.
o Wide enough: most of the path of travel should
ideally be 60 inches wide so that people can pass
each other comfortably
o Firm: it should not noticeably compress with the passage of a device or give way under foot.
o Stable: for the route of travel to be stable, the surface does not shift from side to side and endures a typically weather condition. The surface retains its original condition. o Well lit: the lighting along a route of travel should be bright enough to sufficiently navigate the area
5. Know your business: policies about inclusive practices and access are developed and shared
Policies and procedures, developed to address access and inclusion, are clearly written, and shared in staff training.
Prepared By: Moore Recreation Therapy & Consulting Inc. 52
Service Animals
The ADA defines a “service animal” as any dog (or miniature horse) that is individually trained to do work or perform tasks for the benefit of an individual with a disability. Other animals and dogs that are not trained to assist with a disability or who merely provide emotional support are excluded from this definition. The rule also clarifies that individuals with mental disabilities who use service animals that are trained to perform a specific task are protected by the ADA.
To determine if an animal is a service animal, a public entity or a private business may ask two questions: 1) Is this animal required because of a disability? 2) What work or task has this animal been trained to perform? A public entity or private business may not ask about the nature or extent of an individual’s disability. It also may not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal, or require the animal to wear an identifying vest.
Wheelchairs and Other Assistive Mobility Devices
The ADA adopts a two‐tiered approach to mobility devices, distinguishing between wheelchairs and “other power‐driven mobility devices,” which include a range of devices not specifically designed for individuals with mobility impairments (e.g., Segway products). Wheelchairs and other devices designed for use by people with mobility impairments must be permitted in all areas open to pedestrian use. “Other power‐driven mobility devices” must be permitted unless such use would fundamentally alter the entity’s programs, services, or activities, create a direct threat, or create a safety hazard.
Personal Care Attendants
Personal care attendants accompany an individual with a disability for the express purpose of aiding in daily living, transferring, and the like. Personal care attendants are often not charged full admission because they are attending a recreation venue solely in their work capacity as an assistant to the person with a disability. Many recreation agencies offer “membership plus one” or “caregiver cards” that allow the personal care attendant to enter the recreation venue without question about fees and charges.
Prepared By: Moore Recreation Therapy & Consulting Inc. 53
6. Bridge the gap between ability and activity: customers’ needs and a satisfying experience
Bridge any gap that may exist between the customer’s needs and abilities and a satisfying recreation experience.
All people want fun-filled recreation experiences in their lives. Differences in a customer’s functional level may make it necessary to change the activity or the place where the activity is done. Find out a customer’s abilities in relation to the demands of the recreation activity or environment and use that information to figure out how to bridge the gap between the two if needed. You can learn about your customers through your registration or check-in process.
Registration practices: the first point of contact in any kind of recreation experience is often some form of registration or check-in. Whether it is a formal or informal check-in process, it is a chance to start a conversation about what will be needed for a successful and fun-filled experience. Asking if any additional assistance is needed on your registration or promotional materials is the first step. You are inviting potential customers to dialogue with you about what they need to successfully participate in the recreation program or activity.
Bridge the gap with accommodations, modifications, and adaptations. There is a wealth of adapted equipment available to help people with disabilities enjoy your services or programs.
Equipment ranges from wheelchairs, to assisted listening devices, to balance aids. A source to find adapted equipment is www.abledata.com. You can connect with your local independent living center for additional ideas. Activity adaptation and modifications, like changing the rules or skill level may allow people with varying abilities to participate more fully.
7. Support each customer’s unique needs
A best practice is to provide a quiet or “take a break” space. People vary in their ability to handle the noise, stimulation, and activity level of a recreation environment. A best practice to support all people is to provide a “quiet space,” “quiet room,” or “take a break space.” Your calming places might be a separate room in an indoor setting or a cave in an outdoor playground. It can even be the corner of a quiet lounge area or a vacant office you repurpose. It is a place where children or even adults can be apart from the chaos of the recreation environment. For children with sensory integration disorders and autism spectrum disorders, this need can be acute (from www.Kaboom.org).
You can also offer and advertise “quiet times,” where the noise and activity level are calmer and less busy. Many families will choose to recreate at these times rather than peak times.
Another best practice is to offer the additional support of extra staff or volunteers who help the main recreation staff provide the additional attention or communication that some customers may need to participate in programs or services.
Prepared By: Moore Recreation Therapy & Consulting Inc. 54 Identify a good quiet space including: few windows or openings, quiet but accessible to the flow of play or the recreation area, insulated from outside sounds, natural or white colors, soft surfaces, floor mats, calming lighting, calming music, etc.
8. Your staff are your ambassadors
Staff must understand what inclusive practices
include and how to make it happen.
Staff, from permanent to seasonal, must
understand what inclusion is and how to make it
happen.
Staff hiring and training: Be sure that all staff
members, from permanent to seasonal,
understand what inclusive practices include and
how to provide accommodations.
Advertise for staff with a willingness to provide
inclusive recreation experiences. Job descriptions can include the importance of inclusion.
Interviews include questions about experience and knowledge of working with people with disabilities.
Staff training on inclusion and accessibility should be conducted for every new staff member, and for each new program session. Staff training should be ongoing, consistent, and comprehensive.
Staff training topics: Provide routine staff training on disability awareness and inclusion strategies, such as activity and equipment adaptations and positive behavioral supports.
Here are some examples of staff training topics:
• Value and benefits of inclusion
• Disability awareness
• Person-first language
• Confidentiality
• Policies & Scenarios (i.e. “What would you do in this situation?”)
Prepared By: Moore Recreation Therapy & Consulting Inc. 55 A staff member who is welcoming and inclusive:
1. participates in disability awareness training
2. knows who the inclusive point of contact is at your agency (CTRS)
3. knows and enforces the policy for service animals
4. knows and enforces the policy for power and other mobility devices
5. knows and executes the plan for safe evacuations of persons with disabilities
6. knows the policy for personal care attendants.
7. uses person first language
8. treats people with respect and in a welcoming manner
9. seeks out additional training and experience related to disability and inclusive practices
10. knows about the agency's adaptive equipment
11. knows and implements the procedure for accommodations with extra staff or volunteers when needed
12. knows the policy and requests arrangement of sign language interpreters
13. uses alternative forms of communication when needed
14. believes that inclusion of all people is important
The City of Brentwood Parks & Recreation Department will work to continuously improve equity and inclusive practices, increase accessibility for all through health and wellness initiatives to increase the quality of life of the community.
Brentwood Parks & Recreation will monitor the following indicators to track progress of inclusive practices and efforts:
• Does our agency communicate a vision that values the participation of all people as members of the community?
• Does our agency’s improvement plan include inclusive practices with action steps to support implementation?
• Is there adequate, regularly scheduled, ongoing planning time for agency staff to collaborate on inclusive and adaptive programs and events? • Does our agency engage the whole community by providing multiple opportunities and modes for participating?
• Are there professional development opportunities for staff regarding inclusive strategies and supports?
• Are community members from targeted populations engaged in programing, utilizing facilities, and taking part in future planning conversations?
Prepared By: Moore Recreation Therapy & Consulting Inc. 56 References:
National Recreation & Parks Association www.nrpa.org
Inclusive Recreation Resource Center and Adirondack North Country Association
CITY COUNCIL AGENDA ITEM NO. H.3
10/10/2023
SUBJECT: Review of City Council and Commission process for public comments and the use of virtual platforms for public comments; and consider a resolution amending the City Council Meeting Rules and Procedures Policy
DEPARTMENT: City Manager’s Office
STAFF: Darin Gale, Assistant City Manager
Tim Ogden, City Manager
TITLE/RECOMMENDATION
Provide direction to staff regarding the process for public comments made at City Council and Commission meetings and the use of virtual platforms for public comments; and adopt a resolution amending the City Council Meeting Rules and Procedures Policy pertaining to Section 3.2 Duties of the Mayor and Section 5.2, Decorum Generally - Public.
FISCAL IMPACT
There is no fiscal impact associated with this action at this time.
BACKGROUND
During an increasing number of City Council meetings throughout the State, and at the September 26, 2023, Brentwood City Council meeting, those in attendance were subjected to vile, racist, and offensive comments from anonymous public participants virtually through what is described as a “zoom attack” or “zoom bomb.” The City of Brentwood unequivocally condemns these attacks and stands united in speaking out against any form of hate. Such hateful speech has no place in our community and the City is committed to fostering a safe, inclusive, and respectful environment.
Brentwood is a diverse and supportive community for all living and working here. Our community will not stand idly by, tolerating any form of discrimination based on race, religion, faith, sexual orientation, gender identity, political affiliation, immigration status, or any other group.
CITY COUNCIL AGENDA ITEM NO. H.3
10/10/2023
It is important to note that the First Amendment to the U.S. Constitution protects most forms of speech or expression in a public forum such as City Council meeting.
The United States Supreme Court has found that “speech on public issues occupies the ‘“highest rung of the hierarchy of First Amendment values”’ and is entitled to special protection.” (Snyder v. Phelps (2011) 562 U.S. 443, 452.) According to the Court:
Speech deals with matters of public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community,” [citation omitted] or when it “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” [Citations omitted.] The arguably “inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.” In addition, the Brown Act (the State’s open meeting law) specifically protects speakers at public meetings who wish to criticize the body’s policies, procedures, programs, or services of the agency, or the acts or omissions of the legislative body. (Government Code § 54954.3(c).) Finally, the Brown Act does not define ‘hate speech.’
Working within this legal framework, cities are left with a limited array of tools to combat hate speech. Cities can encourage speakers to engage in constructive, rather than abusive, dialogue. Councils can also model good behavior by remaining civil and constructive, even when there are disagreements. What the Council cannot do is entirely stop or stifle constitutionally protected speech it disagrees with, even if that speech is inconsistent with the Council’s norms for civil discourse.
At the September 26, 2023 Council meeting, hate speech occurred virtually during the public comment period for a particular item on the agenda. Since the comments from the public were not related to the agenda item being discussed, staff was able to mute the speakers. However, if the same virtual participant were to speak during public comments for items not on the agenda, staff would be unable to mute the virtual participant without exposing the City to serious legal peril.
Currently, the City Council allows public comment to occur both in person and virtually through Zoom. The vast majority of these recent verbal attacks across the state and country have occurred virtually, not in person. The City is not required to offer public participation via Zoom or any other virtual platform when public meetings are taking place in person. Virtual participation was instituted during the early days
CITY COUNCIL AGENDA ITEM NO. H.3
10/10/2023
of the pandemic, when it was judged unsafe to meet in person and the public needed a way to participate; it has been carried over as a courtesy as public meetings have resumed and the pandemic has waned.
Public Participation Options
Below is a list of public participation options for the City Council to consider in this current climate.
Time
Limit
Public
Comments
Additional Measures Impact
A 5
minutes
or less
In person &
virtual
- No Change
B Limit
time to
less than
5 minutes
In person &
virtual
1. Read prepared statement
regarding hate speech
2. Move public comments
for items not on the agenda
to end of meeting
3. Limit public comment at
beginning of meeting to 30
minutes for items not on the
agenda, remaining speakers
moved to the end.
4. Request participants have
a verified Zoom account
- Does not eliminate
the risk of virtual hate
speech
- Speakers will need
to be more succinct
- Speakers have to
remain in the meeting
until late into the
evening for items not
on the agenda
- Verified Zoom
accounts would not
eliminate the risk of
hate speech
C 5
minutes
or less
In person
only
- Protects City from
virtual hate speech
- Speakers unable to
provide comments
virtually
D 5
minutes
or less
In person &
suspend
virtual
comments
for a
specified
time
- Protects City from
virtual hate speech
- Speakers unable to
provide comments
virtually for the
specified time
Option A keeps the status quo, and will not stop or restrict a virtual participant from sharing hate speech.
CITY COUNCIL AGENDA ITEM NO. H.3
10/10/2023
Option B, without any additional measures, will not stop or restrict a virtual participant from sharing hate speech. The purpose of this option is to try to mitigate the impact of hate speech on residents and others participating in a council meeting.
A variety of mitigation measure can be instituted, but it will not eliminate the risk.
Options C and D are the only two options that would protect the City from hate speech shared over Zoom during a Council meeting. The City Council is not required by law to allow virtual comment, and the current process was established as a courtesy to allow other options for public participation during COVID.
Although options C and D would mitigate virtual hate speech, a participant could still attend in person to express their views and opinions. Just in the last month, the cities of Walnut Creek, Concord, Sacramento, Ceres, Modesto, Livermore, Redwood City, Santa Rosa and County of Santa Rosa all eliminated virtual comments due to its abuse and many more jurisdictions are considering similar measures. All of the options, including C and D, would not restrict a resident or any other individual from providing written comment to the City Council if they were unable or did not want to attend in person. Residents would still be able to view the meeting on Zoom, YouTube, and the City’s website.
Any change to the current public comment process will affect those seeking to participate in Brentwood’s public meetings, but this agenda item allows the City Council to discuss and consider changes. Regrettably, once a community is targeted by these vile attacks, it has not been a one-time occurrence. Based upon events in other jurisdictions, staff suspects it will occur again in the future.
Meeting Rules and Procedures Policy
Following the City Council’s September 26, 2023, meeting, staff reviewed the City Council’s Meeting Rules and Procedures Policy (110-1) and determined that two clarifying revisions would assist in responding to future Zoom attacks. The first proposed revision pertains to the Duties of the Mayor in Section 3.2 (a), and clarifies that the agenda order may be changed pursuant to Section 4.3 (i.e. by the Mayor, Vice-Mayor (in the Mayor’s absence), City Manager, or a majority vote of the City Council).
The second proposed revision (to Section 5.2, Decorum Generally – Public) pertains to public speaking times, and allows the Mayor to reduce public speaking times for reasons other than an anticipated large number of speakers. This revision is content neutral, and is not dependent on a particular type of speech. A copy of the Meeting Rules and Procedures Policy is attached.
CITY COUNCIL AGENDA ITEM NO. H.3
10/10/2023
Any changes recommended or adopted would be implemented the following day going forward for City commissions, committees, and future Council meetings.
CITY COUNCIL STRATEGIC INITIATIVE
Not Applicable.
PREVIOUS ACTION
No previous action taken
ENVIRONMENTAL DETERMINATION
Not Applicable.
ATTACHMENT(S)
1. Resolution
2. Synder v. Phelps
3. Government Code § 54954.3
4. City Council Meeting Rules and Procedures Policy (110-1)
Attachment 1 to Item H.3
CITY COUNCIL RESOLUTION NO. 2023-______
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
BRENTWOOD APPROVING AMENDMENTS TO SECTIONS 3.2 AND
5.2 OF THE CITY OF BRENTWOOD MEETING RULES AND
PROCEDURES
WHEREAS, on November 13, 2001, the City Council adopted Resolution No. 2399, approving Policy 110-1 governing meeting rules and procedures; WHEREAS, on April 27, 2004, the City Council adopted Resolution No. 2004-97, amending Rules 1-27 and adding rules 28-36; and
WHEREAS, on May 25, 2005, the City Council adopted Resolution No. 2005-260, deleting Rule 8; and
WHEREAS, on April 11, 2006, the City Council adopted Resolution No. 2006-73, deleting Rule 36; and
WHEREAS, on January 23, 2007, the City Council adopted Resolution No. 2007-15, adding Rule 13A; and
WHEREAS, on October 9, 2007, the City Council adopted Resolution No. 2007-225, amending Rule 13A; and
WHEREAS, on May 24, 2011, the City Council adopted Resolution No. 2011-67, deleting a portion of Rule 32 and amending Rule 28H; and
WHEREAS, on January 22, 2013, the City Council adopted Resolution No. 2013-11, amending Rule 26; and
WHEREAS, on December 10, 2013, the City Council adopted Resolution No. 2013-174, amending Rule 35 in its entirety; and
WHEREAS, on December 9, 2014, the City Council adopted Resolution No. 2014-182, amending Rule 13A; and
WHEREAS, on June 6, 2014, the City Council adopted Resolution No. 2016-74, comprehensively amending Policy 110-1 and adopting new Meeting Rules and Procedures; and WHEREAS, on December 12, 2017, the City Council adopted Resolution No. 2017-162; and
WHEREAS, the City Council considered further amendments to the Meeting Rules and Procedures at its regular meeting of October 10, 2023.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Brentwood hereby:
A. Approves the following amendments to Rule 3.2 of the Meeting Rules and
Attachment 1 to Item H.3
Procedures as set forth below (additions underlined, deletions struckthrough):
“3.2 Duties of Mayor. The Mayor has the power, authority, and discretion, without a vote of the majority of the Council (except as noted) to:
a. Preside over Council meetings:
1) maintain order and proper decorum (See Rule 5 below); 2) announce the business before the Council in the order set forth in the agenda (or as such order may be changed per Rule 4.3 below); 3) call for votes on each matter requiring a decision, and announce the results. The Mayor may make a motion, second and debate matters, subject only to the same limitations of debate as are imposed upon all members.);
4) when requested, make these Rules known and decide questions of order, subject to an appeal of the Council;
5) set time limits on Council discussion (subject to Council concurrence) and on communications from members of the public, consistent with the Brown Act; and
6) open public hearings.”
B. Approves the following amendments to Rule 5.2 of the Meeting Rules and Procedures as set forth below (additions underlined, deletions struckthrough):
“5.2 Decorum Generally - Public. Members of the public wishing to speak during the public discussion are requested to fill out the speaker form provided and hand the card to the City Clerk at the beginning of (or during) the meeting. Comments by members of the public are generally limited to five minutes, or less time if a large number of speakers is anticipated or if approved by the Mayor. A speaker may not allocate his or her time to another speaker. The Mayor will invite public testimony on each item at the appropriate time. Written documents or messages to the City Council or any Council Member while the City Council is in session, which pertain to the Council’s business, shall be made only through the City Clerk.
A member of the audience must come forward to the lectern so that their remarks may be accurately recorded. All remarks shall be addressed to the Mayor, except that answers to questions posed by a City Council Member recognized by the Mayor may be addressed to the questioner. No person other than a member of the City Council and the person having the floor shall enter into any discussion, either directly or through a Council Member, without the permission of the Mayor.
The comments must be pertinent to the agenda item under discussion. A member of the public may not ask a question of a Council Member or staff member, except through the Mayor. Speakers are urged to avoid unnecessary repetition in their remarks and instead simply indicate agreement with previous speakers.
If a meeting is willfully interrupted by any individual, group or groups of people so as to render the orderly conduct of the meeting unfeasible, the Mayor may recess the meeting and require the removal of individuals who are interrupting the meeting, or clear the room and continue the meeting allowing only members of the press to remain. (Gov’t. Code §§ 54957.9.)”
Attachment 1 to Item H.3
C. Requests that the City Clerk cause the revised language in Sections A and B of this Resolution to be included in the City Council Meeting Rules and Procedures Policy (No. 110-1) and posted on the City’s website.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 10th day of October 2023 by the following vote:
AYES:
NOES:
ABSENT:
RECUSE:
Snyder v. Phelps, 562 U.S. 443 (2011)
131 S.Ct. 1207, 179 L.Ed.2d 172, 79 USLW 4135, 39 Media L. Rep. 1353... © 2023 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment
Declined to Extend by United States v. Ackell, 1st Cir.(N.H.), October 24, 2018
131 S.Ct. 1207
Supreme Court of the United States
Albert SNYDER, Petitioner,
v.
Fred W. PHELPS, Sr., et al.
No. 09–751
|
Argued Oct. 6, 2010.
|
Decided March 2, 2011.
Synopsis
Background: Father of deceased military service member
brought action against fundamentalist church and its
members, stemming from defendants' anti-homosexual
demonstration near service member's funeral, and asserting claims for intentional infliction of emotional distress (IIED), invasion of privacy by intrusion upon seclusion, and civil conspiracy. Following jury's verdict for father, the United States District Court for the District of Maryland, Richard D. Bennett, J., 533 F.Supp.2d 567, remitted aggregate
punitive damages award, but otherwise denied post-trial motions. Defendants appealed. The United States Court of Appeals for the Fourth Circuit, King, Circuit Judge, 580 F.3d 206, reversed. Certiorari was granted.
Holdings: The Supreme Court, Chief Justice Roberts, held that:
in light of content, form, and context, speech of church members who picketed near the funeral of military service member was of public concern and therefore was entitled to special protection under the First Amendment, and
father was not a captive audience at the funeral, for purposes of captive audience doctrine.
Court of Appeals affirmed.
Justice Breyer filed a concurring opinion.
Justice Alito filed a dissenting opinion.
Procedural Posture(s): On Appeal.
**1210 Syllabus *
For the past 20 years, the congregation of the Westboro Baptist Church has picketed military funerals to communicate its belief that God hates the United States for its tolerance of homosexuality, particularly in America's military. The church's picketing has also condemned the Catholic Church for scandals involving its clergy. Fred Phelps, who founded the church, and six Westboro Baptist parishioners (all
relatives of Phelps) traveled to Maryland to picket the funeral of Marine Lance Corporal Matthew Snyder, who was killed in Iraq in the line of duty. The picketing took place on public land approximately 1,000 feet from the church where the funeral was held, in accordance with guidance from local law enforcement officers. The picketers peacefully displayed their signs—stating, e.g., “Thank God for Dead Soldiers,” “Fags Doom Nations,” “America is Doomed,” “Priests Rape Boys,” and “You're Going to Hell”—for about 30 minutes before the funeral began. Matthew Snyder's father (Snyder), petitioner here, saw the tops of the picketers' signs when driving to the funeral, but did not learn what was written on the signs until watching a news broadcast later that night.
Snyder filed a diversity action against Phelps, his daughters —who participated in the picketing—and the church
(collectively Westboro) alleging, as relevant here, state tort claims of intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. A jury held Westboro liable for millions of dollars in compensatory and punitive damages. Westboro challenged the verdict as grossly excessive and sought judgment as a matter of law on the ground that the First Amendment fully protected its speech.
The District Court reduced the punitive damages award, but left the verdict otherwise intact. The Fourth Circuit reversed, concluding that Westboro's statements were entitled to First Amendment protection because those statements were on
matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric.
Held: The First Amendment shields Westboro from tort
liability for its picketing in this case. Pp. 1215 – 1221.
Snyder v. Phelps, 562 U.S. 443 (2011)
131 S.Ct. 1207, 179 L.Ed.2d 172, 79 USLW 4135, 39 Media L. Rep. 1353... © 2023 Thomson Reuters. No claim to original U.S. Government Works. 2 **1211 (a) The Free Speech Clause of the First Amendment can serve as a defense in state tort suits, including suits for intentional infliction of emotional distress. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50–51, 108 S.Ct. 876, 99 L.Ed.2d 41. Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. “[S]peech on public issues occupies the ‘ “highest rung of the hierarchy of First Amendment values” ’ and is entitled to special protection.” Connick v. Myers, 461 U.S. 138, 145, 103
S.Ct. 1684, 75 L.Ed.2d 708. Although the boundaries of what constitutes speech on matters of public concern are not well defined, this Court has said that speech is of public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community,” id., at 146, 103 S.Ct. 1684, or when it “is a subject of general interest and of value and concern to the public,” San Diego v. Roe, 543 U.S. 77, 83–84, 125 S.Ct. 521, 160 L.Ed.2d
410. A statement's arguably “inappropriate or controversial character ... is irrelevant to the question whether it deals with a matter of public concern.” Rankin v. McPherson, 483 U.S. 378, 387, 107 S.Ct. 2891, 97 L.Ed.2d 315. Pp. 1215 – 1216.
To determine whether speech is of public or private concern, this Court must independently examine the “ ‘content, form, and context’ ” of the speech “ ‘as revealed by the whole record.’ ” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761, 105 S.Ct. 2939, 86 L.Ed.2d 593.
In considering content, form, and context, no factor is dispositive, and it is necessary to evaluate all aspects of the speech. Pp. 1216 – 1217.
The “content” of Westboro's signs plainly relates to public, rather than private, matters. The placards highlighted issues of public import—the political and moral conduct of the United States and its citizens, the fate of the Nation, homosexuality in the military, and scandals involving the Catholic clergy— and Westboro conveyed its views on those issues in a manner designed to reach as broad a public audience as possible. Even if a few of the signs were viewed as containing messages related to a particular individual, that would not change the fact that the dominant theme of Westboro's demonstration spoke to broader public issues. Pp. 1216 – 1217.
The “context” of the speech—its connection with Matthew Snyder's funeral—cannot by itself transform the nature
of Westboro's speech. The signs reflected Westboro's
condemnation of much in modern society, and it cannot
be argued that Westboro's use of speech on public issues was in any way contrived to insulate a personal attack on Snyder from liability. Westboro had been actively engaged in speaking on the subjects addressed in its picketing long before it became aware of Matthew Snyder, and there can be no
serious claim that the picketing did not represent Westboro's honestly held beliefs on public issues. Westboro may have chosen the picket location to increase publicity for its views, and its speech may have been particularly hurtful to Snyder.
That does not mean that its speech should be afforded less than full First Amendment protection under the circumstances of this case. Pp. 1217 – 1218.
That said, “ ‘[e]ven protected speech is not equally
permissible in all places and at all times.’ ” Frisby v.
Schultz, 487 U.S. 474, 479, 108 S.Ct. 2495, 101 L.Ed.2d 420.
Westboro's choice of where and when to conduct its picketing is not beyond the Government's regulatory reach—it is
“subject to reasonable time, place, or manner restrictions.” **1212 Clark v. Community for Creative Non–Violence,
468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221. The
facts here are quite different, however, both with respect to the activity being regulated and the means of restricting those activities, from the few limited situations where the Court has concluded that the location of targeted picketing can be properly regulated under provisions deemed content neutral. Frisby, supra, at 477, 108 S.Ct. 2495; Madsen
v. Women's Health Center, Inc., 512 U.S. 753, 768, 114 S.Ct. 2516, 129 L.Ed.2d 593, distinguished. Maryland now has a law restricting funeral picketing, but that law was not in effect at the time of these events, so this Court has no occasion to consider whether that law is a “reasonable time, place, or manner restrictio[n]” under the standards announced by this Court. Clark, supra, at 293, 104 S.Ct. 3065. Pp. 1217 – 1219.
The “special protection” afforded to what Westboro said, in the whole context of how and where it chose to say it, cannot be overcome by a jury finding that the picketing was “outrageous” for purposes of applying the state law tort of intentional infliction of emotional distress. That would pose too great a danger that the jury would punish Westboro for its views on matters of public concern. For all these reasons, the jury verdict imposing tort liability on Westboro for intentional infliction of emotional distress must be set aside. Pp. 1219 – 1220.
Snyder v. Phelps, 562 U.S. 443 (2011)
131 S.Ct. 1207, 179 L.Ed.2d 172, 79 USLW 4135, 39 Media L. Rep. 1353... © 2023 Thomson Reuters. No claim to original U.S. Government Works. 3 (b) Snyder also may not recover for the tort of intrusion upon seclusion. He argues that he was a member of a captive audience at his son's funeral, but the captive audience doctrine —which has been applied sparingly, see Rowan v. Post
Office Dept., 397 U.S. 728, 736–738, 90 S.Ct. 1484, 25
L.Ed.2d 736; Frisby, supra, at 484–485, 108 S.Ct. 2495— should not be expanded to the circumstances here. Westboro stayed well away from the memorial service, Snyder could see no more than the tops of the picketers' signs, and there is no indication that the picketing interfered with the funeral service itself. Pp. 1219 – 1220.
(c) Because the First Amendment bars Snyder from recovery for intentional infliction of emotional distress or intrusion upon seclusion—the allegedly unlawful activity Westboro conspired to accomplish—Snyder also cannot recover for
civil conspiracy based on those torts. P. 1220.
(d) Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. It did not disrupt Matthew Snyder's funeral, and its choice to picket at that time and place did not alter the nature of its speech. Because this Nation has chosen to protect even hurtful speech on public issues to ensure that public debate is not stifled, Westboro must be shielded from tort liability for its picketing in this case. Pp. 1220 – 1221. 580 F.3d 206, affirmed.
ROBERTS, C.J., delivered the opinion of the Court, in which
SCALIA, KENNEDY, THOMAS, GINSBURG, BREYER,
SOTOMAYOR, and KAGAN, JJ., joined. BREYER, J., filed
a concurring opinion, post, pp. 1221 – 1222. ALITO, J., filed a dissenting opinion, post, pp. 1222 – 1229.
Attorneys and Law Firms
Sean E. Summers, York, PA, for petitioner.
Margie J. Phelps, Topeka, KS, for respondents.
Craig T. Trebilcock, Shumaker Williams, York, PA, Sean E.
Summers, Counsel of Record, Alex E. Snyder, Barley Snyder LLC, York, PA, for Petitioner.
Margie J. Phelps, Esq., Counsel of Record, Topeka, KS, for Respondents.
Opinion
Chief Justice ROBERTS delivered the opinion of the Court. *447 A jury held members of the Westboro Baptist Church liable for millions of dollars in damages for picketing near a soldier's funeral service. The picket signs reflected the church's view that the United States is overly tolerant of sin and that God kills American soldiers as punishment. The question presented is whether the First Amendment shields the church members from tort liability for their speech in this case.
*448 I
A
Fred Phelps founded the Westboro Baptist Church in Topeka, Kansas, in 1955. The church's congregation believes that God hates and punishes the United States for its tolerance of homosexuality, particularly in America's military. The church frequently communicates its views by picketing, often at military funerals. In the more than 20 years that the members of Westboro Baptist have publicized their message, they have picketed nearly 600 funerals. Brief for Rutherford Institute as Amicus Curiae 7, n. 14.
Marine Lance Corporal Matthew Snyder was killed in Iraq in the line of duty. Lance Corporal Snyder's father selected the Catholic church in the Snyders' hometown of Westminster, Maryland, as the site for his son's funeral. Local newspapers provided notice of the time and location of the service.
Phelps became aware of Matthew Snyder's funeral and
decided to travel to Maryland with six other Westboro
Baptist parishioners (two of his daughters and four of his grandchildren) to picket. On the day of the memorial service, the Westboro congregation members picketed on public land adjacent to public streets near the Maryland State House, the United States Naval Academy, and Matthew Snyder's funeral.
The Westboro picketers carried signs that were largely the same at all three locations. They stated, for instance: “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don't Pray for the USA,” “Thank God for IEDs,” “Thank
God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You're Going to Hell,” and “God Hates You.”
Snyder v. Phelps, 562 U.S. 443 (2011)
131 S.Ct. 1207, 179 L.Ed.2d 172, 79 USLW 4135, 39 Media L. Rep. 1353... © 2023 Thomson Reuters. No claim to original U.S. Government Works. 4 The church had notified the authorities in advance of its intent to picket at the time of the funeral, and the picketers complied with police instructions in staging their demonstration. The picketing took place within a 10–by 25–foot plot of public land adjacent to a public street, behind a temporary *449 fence. App. to Brief for Appellants in No. 08–1026(CA4), pp. 2282–2285 (hereinafter App.). That plot was approximately 1,000 feet from the church where the funeral was held.
Several buildings separated the picket site from the church.
Id., at 3758. The Westboro picketers displayed their signs for about 30 minutes before the funeral began and sang hymns and recited Bible verses. None of the picketers entered church property or went to the cemetery. They did not yell or use profanity, and there was no violence associated with the picketing. Id., at 2168, 2371, 2286, 2293.
The funeral procession passed within 200 to 300 feet of the picket site. Although Snyder testified that he could see the tops of the picket signs as he drove to the funeral, he did not see what was written on the signs until later that night, **1214 while watching a news broadcast covering the event.
Id., at 2084–2086. 1
B
Snyder filed suit against Phelps, Phelps's daughters, and the Westboro Baptist Church (collectively Westboro or the *450 church) in the United States District Court for the District of Maryland under that court's diversity jurisdiction. Snyder alleged five state tort law claims: defamation, publicity given to private life, intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. Westboro moved for summary judgment contending, in part, that the church's speech was insulated from liability by the First Amendment. See 533 F.Supp.2d 567, 570 (2008).
The District Court awarded Westboro summary judgment on Snyder's claims for defamation and publicity given to private life, concluding that Snyder could not prove the necessary elements of those torts. Id., at 572–573. A trial was
held on the remaining claims. At trial, Snyder described the severity of his emotional injuries. He testified that he is unable to separate the thought of his dead son from his thoughts of Westboro's picketing, and that he often becomes tearful, angry, and physically ill when he thinks about it.
Id., at 588–589. Expert witnesses testified that Snyder's emotional anguish had resulted in severe depression and had exacerbated pre-existing health conditions.
A jury found for Snyder on the intentional infliction
of emotional distress, intrusion upon seclusion, and civil conspiracy claims, and held Westboro liable for $2.9
million in compensatory damages and $8 million in punitive damages. Westboro filed several post-trial motions, including a motion contending that the jury verdict was grossly
excessive and a motion seeking judgment as a matter of law on all claims on First Amendment grounds. The District Court remitted the punitive damages award to $2.1 million, but left the jury verdict otherwise intact. Id., at 597.
In the Court of Appeals, Westboro's primary argument was that the church was entitled to judgment as a matter of law because the First Amendment fully protected Westboro's speech. The Court of Appeals agreed. 580 F.3d 206,
221 (C.A.4 2009). The court reviewed the picket signs and concluded that Westboro's statements were entitled to First *451 Amendment protection because those statements were on matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric. Id., at 222–224.
2 **1215 We granted certiorari. 559 U.S. 990, 130 S.Ct. 1737, 176 L.Ed.2d 211 (2010).
II
To succeed on a claim for intentional infliction of emotional distress in Maryland, a plaintiff must demonstrate that the defendant intentionally or recklessly engaged in extreme and outrageous conduct that caused the plaintiff to suffer severe emotional distress. See Harris v. Jones, 281 Md. 560, 565– 566, 380 A.2d 611, 614 (1977). The Free Speech Clause of the First Amendment—“Congress shall make no law ... abridging the freedom of speech”—can serve as a defense in state tort suits, including suits for intentional infliction of emotional distress. See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50–51, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988).
3 Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by
Snyder v. Phelps, 562 U.S. 443 (2011)
131 S.Ct. 1207, 179 L.Ed.2d 172, 79 USLW 4135, 39 Media L. Rep. 1353... © 2023 Thomson Reuters. No claim to original U.S. Government Works. 5 all the circumstances of the case. “[S]peech on ‘matters of public concern’ ... is ‘at the heart of the First Amendment's *452 protection.’ ” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758–759, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985) (opinion of Powell, J.) (quoting First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 776, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978)). The First Amendment reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wideopen.” New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). That is because “speech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U.S. 64, 74–75, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964).
Accordingly, “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (internal quotation marks omitted).
“ ‘[N]ot all speech is of equal First Amendment importance,’ ” however, and where matters of purely private significance are at issue, First Amendment protections are often less rigorous. Hustler, supra, at 56, 108 S.Ct. 876 (quoting Dun & Bradstreet, supra, at 758, 105 S.Ct. 2939); see
Connick, supra, at 145–147, 103 S.Ct. 1684. That is
because restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest: “[T]here is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas”; and the “threat of liability” does not pose the risk of “a reaction of self-censorship” on matters of public **1216 import.
Dun & Bradstreet, supra, at 760, 105 S.Ct. 2939 (internal quotation marks omitted).
We noted a short time ago, in considering whether public employee speech addressed a matter of public concern, that “the boundaries of the public concern test are not well defined.” San Diego v. Roe, 543 U.S. 77, 83, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) (per curiam). Although that remains true today, we have articulated some guiding principles, principles that accord broad protection to speech to ensure that courts themselves do not become inadvertent censors. *453 Speech deals with matters of public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community,” Connick,
supra, at 146, 103 S.Ct. 1684, or when it “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public,” San Diego, supra, at 83–84, 125 S.Ct. 521. See Cox Broadcasting Corp. v.
Cohn, 420 U.S. 469, 492–494, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975); Time, Inc. v. Hill, 385 U.S. 374, 387–388, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967). The arguably “inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.” Rankin v. McPherson, 483 U.S. 378, 387, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987).
Our opinion in Dun & Bradstreet, on the other hand, provides an example of speech of only private concern. In that case we held, as a general matter, that information about a particular individual's credit report “concerns no public issue.” 472 U.S., at 762, 105 S.Ct. 2939. The content of the report, we explained, “was speech solely in the individual interest of the speaker and its specific business audience.” Ibid. That was confirmed by the fact that the particular report was sent to only five subscribers to the reporting service, who were bound not to disseminate it further. Ibid. To cite another example, we concluded in San Diego v. Roe that, in the context of a government employer regulating the speech of its employees, videos of an employee engaging in sexually explicit acts did not address a public concern; the videos “did nothing to inform the public about any aspect of the [employing agency's] functioning or operation.” 543 U.S., at 84, 125 S.Ct. 521.
Deciding whether speech is of public or private concern requires us to examine the “ ‘content, form, and context’ ” of that speech, “ ‘as revealed by the whole record.’ ” Dun & Bradstreet, supra, at 761, 105 S.Ct. 2939 (quoting Connick, supra, at 147–148, 103 S.Ct. 1684). As in
other First Amendment cases, the court is obligated “to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ ” *454 Bose Corp. v. Consumers Union of United States,
Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (quoting New York Times, supra, at 284–286, 84
Snyder v. Phelps, 562 U.S. 443 (2011)
131 S.Ct. 1207, 179 L.Ed.2d 172, 79 USLW 4135, 39 Media L. Rep. 1353... © 2023 Thomson Reuters. No claim to original U.S. Government Works. 6 S.Ct. 710). In considering content, form, and context, no factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said.
The “content” of Westboro's signs plainly relates to broad issues of interest to society at large, rather than matters of “purely private concern.” Dun & Bradstreet, supra, at
759, 105 S.Ct. 2939. The placards read “God Hates the
USA/Thank God for 9/11,” “America is Doomed,” “Don't
Pray for the USA,” “Thank God for IEDs,” “Fag Troops,”
“Semper Fi Fags,” “God Hates Fags,” “Maryland Taliban,” “Fags Doom Nations,” “Not Blessed Just **1217 Cursed,”
“Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “You're Going to Hell,” and “God Hates You.” App. 3781–3787. While these messages may fall short of refined social or political commentary, the issues they highlight— the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import. The signs certainly convey Westboro's position on those issues, in a manner designed, unlike the private speech in Dun & Bradstreet, to reach as broad a public
audience as possible. And even if a few of the signs—
such as “You're Going to Hell” and “God Hates You”—were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro's demonstration spoke to broader public issues.
Apart from the content of Westboro's signs, Snyder contends that the “context” of the speech—its connection with his son's funeral—makes the speech a matter of private rather than public concern. The fact that Westboro spoke in connection with a funeral, however, cannot by itself transform the nature of Westboro's speech. Westboro's signs, displayed on public land next to a public street, reflect the fact that the church finds much to condemn in modern *455 society. Its speech is “fairly characterized as constituting speech on a matter of public concern,” Connick, 461 U.S., at 146, 103 S.Ct. 1684, and the funeral setting does not alter that conclusion.
Snyder argues that the church members in fact mounted
a personal attack on Snyder and his family, and then
attempted to “immunize their conduct by claiming that
they were actually protesting the United States' tolerance of homosexuality or the supposed evils of the Catholic Church.” Reply Brief for Petitioner 10. We are not concerned in this case that Westboro's speech on public matters was in any way contrived to insulate speech on a private matter from liability. Westboro had been actively engaged in speaking on the subjects addressed in its picketing long before it became aware of Matthew Snyder, and there can be no
serious claim that Westboro's picketing did not represent its “honestly believed” views on public issues. Garrison, 379 U.S., at 73, 85 S.Ct. 209. There was no pre-existing relationship or conflict between Westboro and Snyder that might suggest Westboro's speech on public matters was
intended to mask an attack on Snyder over a private matter.
Contrast Connick, 461 U.S., at 153, 103 S.Ct. 1684
(finding public employee speech a matter of private concern when it was “no coincidence that [the speech] followed upon the heels of [a] transfer notice” affecting the employee).
Snyder goes on to argue that Westboro's speech should be afforded less than full First Amendment protection “not only because of the words” but also because the church members exploited the funeral “as a platform to bring their message to a broader audience.” Brief for Petitioner 44, 40. There is no doubt that Westboro chose to stage its picketing at the Naval Academy, the Maryland State House, and Matthew Snyder's funeral to increase publicity for its views and because of the relation between those sites and its views—in the case of the military funeral, because Westboro believes that God is killing American soldiers as punishment for the Nation's sinful policies.
*456 Westboro's choice to convey its views in conjunction with Matthew Snyder's funeral made the expression of those views particularly hurtful to many, especially to Matthew's father. The record **1218 makes clear that the applicable legal term—“emotional distress”—fails to capture fully the anguish Westboro's choice added to Mr. Snyder's already incalculable grief. But Westboro conducted its picketing peacefully on matters of public concern at a public place adjacent to a public street. Such space occupies a “special position in terms of First Amendment protection.” United States v. Grace, 461 U.S. 171, 180, 103 S.Ct. 1702, 75
L.Ed.2d 736 (1983). “[W]e have repeatedly referred to public streets as the archetype of a traditional public forum,” noting that “ ‘[t]ime out of mind’ public streets and sidewalks have been used for public assembly and debate.” Frisby v.
Schultz, 487 U.S. 474, 480, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988).
4
Snyder v. Phelps, 562 U.S. 443 (2011)
131 S.Ct. 1207, 179 L.Ed.2d 172, 79 USLW 4135, 39 Media L. Rep. 1353... © 2023 Thomson Reuters. No claim to original U.S. Government Works. 7 That said, “[e]ven protected speech is not equally permissible in all places and at all times.” Id., at 479, 108 S.Ct. 2495 (quoting Cornelius v. NAACP Legal Defense & Ed. Fund,
Inc., 473 U.S. 788, 799, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985)). Westboro's choice of where and when to conduct its picketing is not beyond the Government's regulatory reach— it is “subject to reasonable time, place, or manner restrictions” that are consistent with the standards announced in this Court's precedents. Clark v. Community for Creative Non– Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). Maryland now has a law imposing restrictions on funeral picketing, Md.Crim. Law Code Ann. § 10–205
(Lexis Supp.2010), as do 43 other States and the Federal Government. See Brief for American Legion as Amicus
Curiae 18–19, n. 2 *457 listing statutes). To the extent these laws are content neutral, they raise very different questions from the tort verdict at issue in this case. Maryland's law, however, was not in effect at the time of the events at issue here, so we have no occasion to consider how it might apply to facts such as those before us, or whether it or other similar regulations are constitutional. 5
We have identified a few limited situations where the location of targeted picketing can be regulated under provisions that the Court has determined to be content neutral. In Frisby, for example, we upheld a ban on such picketing “before or about” a particular residence, 487 U.S., at 477, 108 S.Ct. 2495. In Madsen v. Women's Health Center, Inc., we approved an injunction requiring a buffer zone between protesters and an abortion clinic entrance. 512 U.S. 753, 768, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994). The facts here are
obviously quite different, both with respect to the activity being regulated and the means of restricting those activities.
Simply put, the church members had the right to be where they were. Westboro alerted local authorities to its funeral protest and fully complied with police guidance on where the picketing could be staged. The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; **1219 there was no shouting, profanity, or violence.
The record confirms that any distress occasioned by
Westboro's picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself. A group of parishioners standing at the very spot where Westboro stood, holding signs that said “God Bless America” and “God Loves You,” would not have been subjected to liability. It was what Westboro said that exposed it to tort damages.
*458 Given that Westboro's speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989).
Indeed, “the point of all speech protection ... is to shield just those choices of content that in someone's eyes are misguided, or even hurtful.” Hurley v. Irish–American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 574, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995).
The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro's picketing was “outrageous.” “Outrageousness,” however, is a highly malleable standard with “an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression.” Hustler, 485 U.S., at 55, 108 S.Ct. 876 (internal quotation marks omitted). In a case such as this, a jury is “unlikely to be neutral with respect to the content of [the] speech,” posing “a real danger of becoming an instrument for the suppression of ... ‘vehement, caustic, and sometimes unpleasan[t]’ ” expression. Bose Corp., 466
U.S., at 510, 104 S.Ct. 1949 (quoting New York Times,
376 U.S., at 270, 84 S.Ct. 710). Such a risk is unacceptable; “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Boos v. Barry, 485 U.S. 312, 322, 108 S.Ct. 1157, 99
L.Ed.2d 333 (1988) (some internal quotation marks omitted).
What Westboro said, in the whole context of how and where it chose to say it, is entitled to “special protection” under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous.
*459 For all these reasons, the jury verdict imposing tort liability on Westboro for intentional infliction of emotional distress must be set aside.
Snyder v. Phelps, 562 U.S. 443 (2011)
131 S.Ct. 1207, 179 L.Ed.2d 172, 79 USLW 4135, 39 Media L. Rep. 1353... © 2023 Thomson Reuters. No claim to original U.S. Government Works. 8 III
The jury also found Westboro liable for the state law torts of intrusion upon seclusion and civil conspiracy. The Court of Appeals did not examine these torts independently of the intentional infliction of emotional distress tort. Instead, the Court of Appeals reversed the District Court wholesale, holding that the judgment wrongly “attache[d] tort liability to constitutionally protected speech.” 580 F.3d, at 226.
Snyder argues that even assuming Westboro's speech is
entitled to First Amendment protection generally, the church is not immunized from liability for intrusion upon seclusion because Snyder was a member of a captive audience at
**1220 his son's funeral. Brief for Petitioner 45–46. We do not agree. In most circumstances, “the Constitution
does not permit the government to decide which types
of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer.
Rather, ... the burden normally falls upon the viewer to avoid further bombardment of [his] sensibilities simply by averting [his] eyes.” Erznoznik v. Jacksonville, 422 U.S. 205, 210– 211, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975) (internal quotation marks omitted). As a result, “[t]he ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is ... dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.” Cohen v. California, 403 U.S. 15, 21, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971).
As a general matter, we have applied the captive audience doctrine only sparingly to protect unwilling listeners from protected speech. For example, we have upheld a statute allowing a homeowner to restrict the delivery of offensive mail to his home, see Rowan v. Post Office Dept., 397 U.S. 728, 736–738, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970), and an ordinance prohibiting picketing *460 “before or about” any individual's residence, Frisby, 487 U.S., at 477, 484–485, 108 S.Ct. 2495.
Here, Westboro stayed well away from the memorial service.
Snyder could see no more than the tops of the signs when driving to the funeral. And there is no indication that the picketing in any way interfered with the funeral service itself.
We decline to expand the captive audience doctrine to the circumstances presented here.
Because we find that the First Amendment bars Snyder
from recovery for intentional infliction of emotional distress or intrusion upon seclusion—the alleged unlawful activity Westboro conspired to accomplish—we must likewise hold
that Snyder cannot recover for civil conspiracy based on those torts.
IV
Our holding today is narrow. We are required in First
Amendment cases to carefully review the record, and the reach of our opinion here is limited by the particular
facts before us. As we have noted, “the sensitivity and significance of the interests presented in clashes between First Amendment and [state law] rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case.” Florida Star v. B.J. F., 491 U.S. 524, 533, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989).
Westboro believes that America is morally flawed; many
Americans might feel the same about Westboro. Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local
officials. The speech was indeed planned to coincide with Matthew Snyder's funeral, but did not itself disrupt that funeral, and Westboro's choice to conduct its picketing at that time and place did not alter the nature of its speech.
Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict *461 great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.
**1221 The judgment of the United States Court of Appeals for the Fourth Circuit is affirmed.
It is so ordered.
Snyder v. Phelps, 562 U.S. 443 (2011)
131 S.Ct. 1207, 179 L.Ed.2d 172, 79 USLW 4135, 39 Media L. Rep. 1353... © 2023 Thomson Reuters. No claim to original U.S. Government Works. 9 Justice BREYER, concurring.
I agree with the Court and join its opinion. That opinion restricts its analysis here to the matter raised in the petition for certiorari, namely, Westboro's picketing activity. The opinion does not examine in depth the effect of television broadcasting. Nor does it say anything about Internet
postings. The Court holds that the First Amendment protects the picketing that occurred here, primarily because the picketing addressed matters of “public concern.”
While I agree with the Court's conclusion that the picketing addressed matters of public concern, I do not believe that our First Amendment analysis can stop at that point. A State can sometimes regulate picketing, even picketing on matters of public concern. See Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). Moreover, suppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern.
The constitutionally protected nature of the end would not shield A's use of unlawful, unprotected means. And in some circumstances the use of certain words as means would be similarly unprotected. See Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (“fighting words”).
The dissent recognizes that the means used here consist of speech. But it points out that the speech, like an assault, seriously harmed a private individual. Indeed, the state *462 tort of “intentional infliction of emotional distress” forbids only conduct that produces distress “so severe that no reasonable man could be expected to endure it,” and which itself is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Post, at 1222 – 1223 (opinion of ALITO, J.) (quoting Harris v. Jones, 281 Md. 560, 567, 571, 380 A.2d 611, 614, 616 (1977); internal quotation marks omitted). The dissent requires us to ask whether our holding unreasonably limits liability for intentional infliction of emotional distress —to the point where A (in order to draw attention to his views on a public matter) might launch a verbal assault upon B, a private person, publicly revealing the most intimate details of B's private life, while knowing that the revelation will cause B severe emotional harm. Does our decision leave the State powerless to protect the individual against invasions of, e.g., personal privacy, even in the most horrendous of such circumstances?
As I understand the Court's opinion, it does not hold or imply that the State is always powerless to provide private individuals with necessary protection. Rather, the Court has reviewed the underlying facts in detail, as will sometimes prove necessary where First Amendment values and stateprotected (say, privacy-related) interests seriously conflict.
Cf. Florida Star v. B.J. F., 491 U.S. 524, 533, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989); Bose Corp. v. Consumers
Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). That review makes clear that Westboro's means of communicating its views consisted of picketing in a place where picketing was lawful and in
compliance with all police directions. The picketing could not be seen or heard from the funeral ceremony itself. And Snyder testified that he saw no more than the tops of the picketers' signs as he drove to the **1222 funeral. To uphold the
application of state law in these circumstances would punish Westboro for seeking to communicate its views on matters of public *463 concern without proportionately advancing the State's interest in protecting its citizens against severe emotional harm. Consequently, the First Amendment protects Westboro. As I read the Court's opinion, it holds no more.
Justice ALITO, dissenting.
Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.
Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss:
to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew's funeral into a tumultuous media event. They then appeared at the church, approached as closely as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional
vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury. 1 The Court now holds that the First Amendment protected respondents' right to brutalize Mr.
Snyder. I cannot agree.
Snyder v. Phelps, 562 U.S. 443 (2011)
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Respondents and other members of their church have strong opinions on certain moral, religious, and political issues, and the First Amendment ensures that they have almost limitless opportunities to express their views. They may write and distribute books, articles, and other texts; they may create and disseminate video and audio recordings; they may circulate petitions; they may speak to individuals and groups in public forums and in any private venue that *464 wishes to
accommodate them; they may picket peacefully in countless locations; they may appear on television and speak on the radio; they may post messages on the Internet and send out e-mails. And they may express their views in terms that are “uninhibited,” “vehement,” and “caustic.” New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate. To protect against such injury, “most if not all jurisdictions” permit recovery in tort for the intentional infliction of emotional distress (or IIED).
Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 53, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988).
This is a very narrow tort with requirements that “are rigorous, and difficult to satisfy.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 12, p. 61 (5th ed.1984). To recover, a plaintiff must show that the conduct at issue caused harm that was truly severe. See Figueiredo– Torres v. Nickel, 321 Md. 642, 653, 584 A.2d 69, 75 (1991) ( “[R]ecovery will be meted out sparingly, its balm reserved for those wounds that are truly severe and incapable of healing themselves” (internal quotation marks omitted)); Harris v. Jones, 281 Md. 560, 571, 380 A.2d 611, 616 (1977) (the distress must be “ ‘so severe that no reasonable man could be expected to endure it’ ” **1223 (quoting Restatement (Second) of Torts § 46, Comment j (1963–1964))).
A plaintiff must also establish that the defendant's conduct was “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” Harris, supra, at 567, 380 A.2d, at 614
(quoting Restatement (Second) of Torts § 46, Comment d).
Although the elements of the IIED tort are difficult to meet, respondents long ago abandoned any effort to show *465
that those tough standards were not satisfied here. On appeal, they chose not to contest the sufficiency of the evidence. See 580 F.3d 206, 216 (C.A.4 2009). They did not dispute
that Mr. Snyder suffered “ ‘wounds that are truly severe and incapable of healing themselves.’ ” Figueiredo–Torres,
supra, at 653, 584 A.2d, at 75. Nor did they dispute that their speech was “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” Harris, supra, at 567, 380 A.2d, at 614.
Instead, they maintained that the First Amendment gave them a license to engage in such conduct. They are wrong.
II
It is well established that a claim for the intentional infliction of emotional distress can be satisfied by speech. Indeed, what has been described as “[t]he leading case” recognizing this tort involved speech. Prosser and Keeton, supra, § 12, at 60 (citing Wilkinson v. Downton, [1897] 2 Q.B. 57); see also Restatement (Second) of Torts § 46, Illustration 1. And although this Court has not decided the question, I think it is clear that the First Amendment does not entirely preclude liability for the intentional infliction of emotional distress by means of speech.
This Court has recognized that words may “by their very utterance inflict injury” and that the First Amendment does not shield utterances that form “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky v. New Hampshire, 315 U.S. 568,
572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); see also Cantwell v. Connecticut, 310 U.S. 296, 310, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) (“[P]ersonal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution”). When grave injury is intentionally inflicted by *466 means of an attack like the one at issue here, the First Amendment should not interfere with recovery.
Snyder v. Phelps, 562 U.S. 443 (2011)
131 S.Ct. 1207, 179 L.Ed.2d 172, 79 USLW 4135, 39 Media L. Rep. 1353... © 2023 Thomson Reuters. No claim to original U.S. Government Works. 11 III
In this case, respondents brutally attacked Matthew Snyder, and this attack, which was almost certain to inflict injury, was central to respondents' well-practiced strategy for attracting public attention.
On the morning of Matthew Snyder's funeral, respondents could have chosen to stage their protest at countless locations.
They could have picketed the United States Capitol, the White House, the Supreme Court, the Pentagon, or any of the more than 5,600 military recruiting stations in this country.
They could have returned to the Maryland State House or the United States Naval Academy, where they had been the day before. They could have selected any public road where pedestrians are allowed. (There are more than 4,000,000 miles of public roads in the **1224 United States. 2) They could have staged their protest in a public park. (There are more than 20,000 public parks in this country. 3) They could have chosen any Catholic church where no funeral was taking
place. (There are nearly 19,000 Catholic churches in the United States. 4) But of course, a small group picketing at any of these locations would have probably gone unnoticed.
The Westboro Baptist Church, however, has devised a
strategy that remedies this problem. As the Court notes, church members have protested at nearly 600 military
funerals. Ante, at 1213. They have also picketed the funerals of *467 police officers, 5 firefighters, 6 and the victims of natural disasters, 7 accidents, 8 and shocking crimes. 9 And in advance of these protests, they issue press releases to ensure that their protests will attract public attention. 10
This strategy works because it is expected that respondents' verbal assaults will wound the family and friends of the deceased and because the media is irresistibly drawn to the sight of persons who are visibly in grief. The more outrageous the funeral protest, the more publicity the Westboro Baptist Church is able to obtain. Thus, when the church recently announced its intention to picket the funeral of a 9–year– old girl killed in the shooting spree in Tucson—proclaiming that she was “better off dead” 11—their announcement was national news, 12 and the church was able to obtain *468 free air time on the radio in exchange for canceling its protest. 13 Similarly, **1225 in 2006, the church got air time on a talk radio show in exchange for canceling its threatened protest at the funeral of five Amish girls killed by a crazed gunman. 14
In this case, respondents implemented the Westboro Baptist Church's publicity-seeking strategy. Their press release stated that they were going “to picket the funeral of Lance Cpl.
Matthew A. Snyder” because “God Almighty killed Lance
Cpl. Snyder. He died in shame, not honor—for a fag nation cursed by God .... Now in Hell—sine die.” Supp.App. in No. 08–1026(CA4), p. 158a. This announcement guaranteed that Matthew's funeral would be transformed into a raucous media event and began the wounding process. It is well known that anticipation may heighten the effect of a painful event.
On the day of the funeral, respondents, true to their word, displayed placards that conveyed the message promised in their press release. Signs stating “God Hates You” and “Thank God for Dead Soldiers” reiterated the message that God had caused Matthew's death in retribution for his sins. App. to Brief for Appellants in No. 08–1026(CA4), pp. 3787, 3788.
Others, stating “You're Going to Hell” and “Not Blessed Just Cursed,” conveyed the message that Matthew was “in Hell— sine die.” Id., at 3783.
Even if those who attended the funeral were not alerted in advance about respondents' intentions, the meaning of these signs would not have been missed. Since respondents chose to stage their protest at Matthew Snyder's funeral and not *469 at any of the other countless available venues, a reasonable person would have assumed that there was
a connection between the messages on the placards and
the deceased. Moreover, since a church funeral is an event that naturally brings to mind thoughts about the afterlife, some of respondents' signs—e.g., “God Hates You,” “Not
Blessed Just Cursed,” and “You're Going to Hell”—would
have likely been interpreted as referring to God's judgment of the deceased.
Other signs would most naturally have been understood as suggesting—falsely—that Matthew was gay. Homosexuality
was the theme of many of the signs. There were signs
reading “God Hates Fags,” “Semper Fi Fags,” “Fags Doom
Nations,” and “Fag Troops.” Id., at 3781–3787. Another
placard depicted two men engaging in anal intercourse. A reasonable bystander seeing those signs would have likely concluded that they were meant to suggest that the deceased was a homosexual.
Snyder v. Phelps, 562 U.S. 443 (2011)
131 S.Ct. 1207, 179 L.Ed.2d 172, 79 USLW 4135, 39 Media L. Rep. 1353... © 2023 Thomson Reuters. No claim to original U.S. Government Works. 12 After the funeral, the Westboro picketers reaffirmed the meaning of their protest. They posted an online account entitled “The Burden of Marine Lance Cpl. Matthew A.
Snyder. The Visit of Westboro Baptist Church to Help the Inhabitants of Maryland Connect the Dots!” Id., at 3788. 15 Belying any suggestion that **1226 they had simply made general comments about homosexuality, the Catholic Church, and the *470 United States military, the “epic” addressed the Snyder family directly:
“God blessed you, Mr. and Mrs. Snyder, with a resource
and his name was Matthew. He was an arrow in your
quiver! In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to
serve the LORD his GOD—PERIOD! You did JUST THE
OPPOSITE—you raised him for the devil.
.....
“Albert and Julie RIPPED that body apart and taught
Matthew to defy his Creator, to divorce, and to commit
adultery. They taught him how to support the largest
pedophile machine in the history of the entire world,
the Roman Catholic monstrosity. Every dime they gave
the Roman Catholic monster they condemned their own
souls. They also, in supporting satanic Catholicism, taught Matthew to be an idolater.
.....
“Then after all that they sent him to fight for the United States of Sodom, a filthy country that is in lock step with his evil, wicked, and sinful manner of life, putting him in the cross hairs of a God that is so mad He has smoke coming from his nostrils and fire from his mouth! How dumb was that?” Id., at 3791.
In light of this evidence, it is abundantly clear that
respondents, going far beyond commentary on matters
of public concern, specifically attacked Matthew Snyder because (1) he was a Catholic and (2) he was a member of the United States military. Both Matthew and petitioner were private figures, 16 and this attack was not speech on a matter of public concern. While commentary on the Catholic Church or the United States military constitutes speech on matters of public concern, speech regarding Matthew Snyder's purely private conduct does not.
*471 Justice BREYER provides an apt analogy to a case in which the First Amendment would permit recovery in tort for a verbal attack:
“[S]uppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A's use of unlawful, unprotected means. And in some circumstances the use of certain words as means would be similarly unprotected.” Ante, at 1221 (concurring opinion).
This captures what respondents did in this case. Indeed, this is the strategy that they have routinely employed—and that they will now continue to employ—inflicting severe and lasting emotional injury on an ever growing list of innocent victims.
IV
The Court concludes that respondents' speech was protected by the First Amendment for essentially three reasons, but none is sound.
First—and most important—the Court finds that “the overall thrust and dominant theme of [their] demonstration spoke to” broad public issues. Ante, at 1217. As I have attempted to show, this portrayal is quite inaccurate; respondents' attack on **1227 Matthew was of central importance.
But in any event, I fail to see why actionable speech
should be immunized simply because it is interspersed
with speech that is protected. The First Amendment allows recovery for defamatory statements that are interspersed with nondefamatory statements on matters of public concern, and there is no good reason why respondents' attack on Matthew Snyder and his family should be treated differently.
Second, the Court suggests that respondents' personal attack on Matthew Snyder is entitled to First Amendment protection because it was not motivated by a private grudge, *472 e ante, at 1217, but I see no basis for the strange distinction that the Court appears to draw. Respondents' motivation—“to increase publicity for its views,” ibid.—did not transform their statements attacking the character of a private figure into statements that made a contribution to debate on matters of public concern. Nor did their publicity-seeking motivation soften the sting of their attack. And as far as culpability is concerned, one might well think that wounding statements
Snyder v. Phelps, 562 U.S. 443 (2011)
131 S.Ct. 1207, 179 L.Ed.2d 172, 79 USLW 4135, 39 Media L. Rep. 1353... © 2023 Thomson Reuters. No claim to original U.S. Government Works. 13 uttered in the heat of a private feud are less, not more, blameworthy than similar statements made as part of a cold and calculated strategy to slash a stranger as a means of attracting public attention.
Third, the Court finds it significant that respondents' protest occurred on a public street, but this fact alone should not be enough to preclude IIED liability. To be sure, statements made on a public street may be less likely to satisfy the elements of the IIED tort than statements made on private property, but there is no reason why a public street in close proximity to the scene of a funeral should be regarded as a free-fire zone in which otherwise actionable verbal attacks are shielded from liability. If the First Amendment permits the States to protect their residents from the harm inflicted by such attacks—and the Court does not hold otherwise—then the location of the tort should not be dispositive. A physical assault may occur without trespassing; it is no defense that the perpetrator had “the right to be where [he was].” See ante, at 1218 – 1219. And the same should be true with respect to unprotected speech. Neither classic “fighting words” nor defamatory statements are immunized when they occur in a public place, and there is no good reason to treat a verbal assault based on the conduct or character of a private figure like Matthew Snyder any differently.
One final comment about the opinion of the Court is in order.
The Court suggests that the wounds inflicted by vicious verbal assaults at funerals will be prevented or at least mitigated in the future by new laws that restrict picketing *473 within a specified distance of a funeral. See ante, at 1217 – 1218.
It is apparent, however, that the enactment of these laws is no substitute for the protection provided by the established IIED tort; according to the Court, the verbal attacks that severely wounded petitioner in this case complied with the new Maryland law regulating funeral picketing. See ante, at 1218, n. 5. And there is absolutely nothing to suggest that Congress and the state legislatures, in enacting these laws, intended them to displace the protection provided by the wellestablished IIED tort.
The real significance of these new laws is not that they obviate the need for IIED protection. Rather, their enactment dramatically illustrates the fundamental point that funerals are unique events at which special protection against emotional assaults is in order. At funerals, the emotional well-being of bereaved relatives is particularly vulnerable. See
**1228 National Archives and Records Admin. v. Favish,
541 U.S. 157, 168, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004).
Exploitation of a funeral for the purpose of attracting public attention “intrud[es] upon their ... grief,” ibid., and may permanently stain their memories of the final moments before a loved one is laid to rest. Allowing family members to have a few hours of peace without harassment does not undermine public debate. I would therefore hold that, in this setting, the First Amendment permits a private figure to recover for the intentional infliction of emotional distress caused by speech on a matter of private concern.
V
In reversing the District Court judgment in favor of petitioner, the Court of Appeals relied on several grounds not discussed in the opinion of this Court or in the separate opinion supporting affirmance. I now turn briefly to those issues.
First, the Court of Appeals held that the District Court erred by allowing the jury to decide whether respondents' speech was “ ‘directed specifically at the *474 Snyder family.’ ” 580 F.3d, at 221. It is not clear whether the Court of Appeals thought that this was a question for the trial judge alone or a question on which the judge had to make a preliminary ruling before sending it to the jury. In either event, however, the submission of this question to the jury was not reversible error because, as explained above, it is clear that respondents' statements targeted the Snyders.
Second, the Court of Appeals held that the trial judge went astray in allowing the jury to decide whether respondents' speech was so “ ‘offensive and shocking as to not be entitled to First Amendment protection.’ ” Ibid. This instruction also did respondents no harm. Because their speech did not relate to a matter of public concern, it was not protected from liability by the First Amendment, and the only question for the jury was whether the elements of the IIED tort were met.
Third, the Court of Appeals appears to have concluded that the First Amendment does not permit an IIED plaintiff to recover for speech that cannot reasonably be interpreted as stating actual facts about an individual. See id., at 222. In reaching this conclusion, the Court of Appeals relied on two of our cases— Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), and Hustler, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41—but neither supports the broad proposition that the Court of Appeals adopted.
Snyder v. Phelps, 562 U.S. 443 (2011)
131 S.Ct. 1207, 179 L.Ed.2d 172, 79 USLW 4135, 39 Media L. Rep. 1353... © 2023 Thomson Reuters. No claim to original U.S. Government Works. 14 Milkovich was a defamation case, and falsity is an element of defamation. Nothing in Milkovich even hints that the First Amendment requires that this defamation element be engrafted onto the IIED tort.
Hustler did involve an IIED claim, but the plaintiff there was a public figure, and the Court did not suggest that its holding would also apply in a case involving a private figure.
Nor did the Court suggest that its holding applied across the board to all types of IIED claims. Instead, the holding was limited to “publications such as the one here at issue,” namely, a caricature in a magazine. 485 U.S., at 56, 108 S.Ct.
876. Unless a caricature of a public figure can reasonably be interpreted *475 as stating facts that may be proved to be wrong, the caricature does not have the same potential to wound as a personal verbal assault on a vulnerable private figure.
Because I cannot agree either with the holding of this Court or the other grounds on which the Court of Appeals relied, I would reverse the decision below and remand for further proceedings. 17
**1229 VI
Respondents' outrageous conduct caused petitioner great injury, and the Court now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he suffered.
In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner. I therefore respectfully dissent.
All Citations
562 U.S. 443, 131 S.Ct. 1207, 179 L.Ed.2d 172, 79 USLW
4135, 39 Media L. Rep. 1353, 11 Cal. Daily Op. Serv. 2774, 2011 Daily Journal D.A.R. 3307, 22 Fla. L. Weekly Fed. S 836
Footnotes
* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
1 A few weeks after the funeral, one of the picketers posted a message on Westboro's Web site discussing the picketing and containing religiously oriented denunciations of the Snyders, interspersed among lengthy Bible quotations. Snyder discovered the posting, referred to by the parties as the “epic,” during an Internet search for his son's name. The epic is not properly before us and does not factor in our analysis. Although the epic was submitted to the jury and discussed in the courts below, Snyder never mentioned it in his petition for certiorari. See Pet. for Cert. i (“Snyder's claim arose out of Phelps' intentional acts at Snyder's son's funeral ” (emphasis added)); this Court's Rule 14.1(g) (petition must contain statement “setting out the facts material to consideration of the question presented”). Nor did Snyder respond to the statement in the opposition to certiorari that “[t]hough the epic was asserted as a basis for the claims at trial, the petition ... appears to be addressing only claims based on the picketing.” Brief in Opposition 9. Snyder devoted only one paragraph in the argument section of his opening merits brief to the epic. Given the foregoing and the fact that an Internet posting may raise distinct issues in this context, we decline to consider the epic in deciding this case. See Ontario v. Quon, 560 U.S. 746, 759 – 760, 130 S.Ct. 2619, 2629–31, 177 L.Ed.2d 216 (2010). 2 One judge concurred in the judgment on the ground that Snyder had failed to introduce sufficient evidence at trial to support a jury verdict on any of his tort claims. 580 F.3d, at 227 (opinion of Shedd, J.). The Court of
Snyder v. Phelps, 562 U.S. 443 (2011)
131 S.Ct. 1207, 179 L.Ed.2d 172, 79 USLW 4135, 39 Media L. Rep. 1353... © 2023 Thomson Reuters. No claim to original U.S. Government Works. 15 Appeals majority determined that the picketers had “voluntarily waived” any such contention on appeal. Id., at 216. Like the court below, we proceed on the unexamined premise that respondents' speech was tortious. 3 The dissent attempts to draw parallels between this case and hypothetical cases involving defamation or fighting words. Post, at 1226 – 1227 (opinion of ALITO, J.). But, as the court below noted, there is “no suggestion that the speech at issue falls within one of the categorical exclusions from First Amendment protection, such as those for obscenity or ‘fighting words.’ ” 580 F.3d, at 218, n. 12; see United States v. Stevens, 559 U.S. 460, 468 – 469, 130 S.Ct. 1577, 1585, 176 L.Ed.2d 435 (2010). 4 The dissent is wrong to suggest that the Court considers a public street “a free-fire zone in which otherwise actionable verbal attacks are shielded from liability.” Post, at 1227. The fact that Westboro conducted its picketing adjacent to a public street does not insulate the speech from liability, but instead heightens concerns that what is at issue is an effort to communicate to the public the church's views on matters of public concern.
That is why our precedents so clearly recognize the special significance of this traditional public forum. 5 The Maryland law prohibits picketing within 100 feet of a funeral service or funeral procession; Westboro's picketing would have complied with that restriction.
1 See 580 F.3d 206, 213–214, 216 (C.A.4 2009).
2 See Dept. of Transp., Federal Highway Administration, Highway Statistics 2008, Table HM–12M, http:// www.fhwa.dot.gov/policyinformation/ statistics/2008/hm12m.cfm (all Internet materials as visited Feb. 25, 2011, and available in Clerk of Court's case file).
3 See Trust for Public Land, 2010 City Park Facts, http:// www.tpl.org/content_documents/ CityParkFacts_2010.pdf.
4 See United States Conference of Catholic Bishops, Catholic Information Project, http://www.usccb.org/comm/ cip.shtml# toc4.
5 See http://www.godhatesfags.com/fliers/20110124_St-Petersburg-FLDead-Police.pdf. 6 See http: //www.godhatesfags.com / fliers/20110120_Dead-Volunteer-Firefighter-Connecting_the_DotsBaltimore-MD.pdf. 7 See http://www.godhatesfags.com/fliers/20110104_Newburg-and-Rolla-MO-Tornado-Connecting-theDots.pdf. 8 See http://www.godhatesfags.com/fliers/20101218_Wichita-KS-Two-Dead-Wichita-Bikers.pdf. 9 See http://www.godhatesfags.com/fliers/20110129_Tampa-FL-God-Sent-Military-Mom-Shooter-to-KillKids.pdf. 10 See nn. 5–9, supra.
11 See http://www.godhatesfags.com/fliers/20110109_AZ–Shooter–Connecting–the–Dots–Day–2.pdf. 12 See, e.g., Stanglin, Anti–Gay Church Group Plans To Picket Tucson Funerals, USA Today, Jan. 10, 2011, http://content.usatoday.com/communities/ondeadline/post/2011/01/anti-gay-church-group-plansto-picket-tucstonfunerals/1; Mohanani, Group To Picket 9–Year–Old Tucson Victim's Funeral, Palm Beach Post, Jan. 11, 2011, http://www.palmbeachpost.com/ news/nation/group–to–picket–9–year–old–tucson– victims–1177921.html; Mehta & Santa Cruz, Tucson Rallies To Protect Girl's Family From Protesters, L.
Snyder v. Phelps, 562 U.S. 443 (2011)
131 S.Ct. 1207, 179 L.Ed.2d 172, 79 USLW 4135, 39 Media L. Rep. 1353... © 2023 Thomson Reuters. No claim to original U.S. Government Works. 16 A. Times, Jan. 11, 2011, http://articles.latimes.com/ 2011/jan/11/nation/la–na–funeral–protest–20110112; Medrano, Funeral Protest: Arizona Rallies To Foil Westboro Baptist Church, Christian Science Monitor, Jan. 11, 2011, http://www.csmonitor.com/USA/2011/ 0111/Funeral–protest–Arizona–rallies–to–foil–Westboro– Baptist–Church.
13 See Santa Cruz & Mehta, Westboro Church Agrees Not To Take Protest to Shooting Victims' Funerals, L. A.
Times, Jan. 13, 2011, http://articles.latimes.com/2011/jan/13/nation/la–na–funeral–protest–20110113; http:// www.godhatesfags.com/fliers/20110112_AZ-Shooter-Mike-Gallagher-Radio-Exchange.pdf. 14 See Steinberg, Air Time Instead of Funeral Protest, N.Y. Times, Oct. 6, 2006, p. A14. 15 The Court refuses to consider the epic because it was not discussed in Snyder's petition for certiorari. Ante, at 1214, n. 1. The epic, however, is not a distinct claim but a piece of evidence that the jury considered in imposing liability for the claims now before this Court. The protest and the epic are parts of a single course of conduct that the jury found to constitute intentional infliction of emotional distress. See 580 F.3d, at 225 (“[T]he Epic cannot be divorced from the general context of the funeral protest”). The Court's strange insistence that the epic “is not properly before us,” ante, at 1214, n. 1, means that the Court has not actually made “an independent examination of the whole record,” ante, at 1216 (internal quotation marks omitted).
And the Court's refusal to consider the epic contrasts sharply with its willingness to take notice of Westboro's protest activities at other times and locations. See ante, at 1217. 16 See 533 F.Supp.2d 567, 577 (Md.2008).
17 The Court affirms the decision of the Fourth Circuit with respect to petitioner's claim of intrusion upon seclusion on a ground not addressed by the Fourth Circuit. I would not reach out to decide that issue but would instead leave it for the Fourth Circuit to decide on remand. I would likewise allow the Fourth Circuit on remand to decide whether the judgment on the claim of civil conspiracy can survive in light of the ultimate disposition of the IIED and intrusion upon seclusion claims.
End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.
State of California
GOVERNMENT CODE
Section 54954.3
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) (1) 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.
(2) Notwithstanding paragraph (1), when the legislative body of a local agency limits time for public comment, the legislative body of a local agency shall provide at least twice the allotted time to a member of the public who utilizes a translator to ensure that non-English speakers receive the same opportunity to directly address the legislative body of a local agency.
(3) Paragraph (2) shall not apply if the legislative body of a local agency utilizes simultaneous translation equipment in a manner that allows the legislative body of a local agency to hear the translated public testimony simultaneously. (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. (Amended by Stats. 2016, Ch. 507, Sec. 1. (AB 1787) Effective January 1, 2017.)
STATE OF CALIFORNIA
AUTHENTICATED
ELECTRONIC LEGAL MATERIAL
COUNCIL/ADMINISTRATIVE POLICY
CITY OF BRENTWOOD
Subject:
Meeting Rules and Procedures
Policy No: 110-1 Date: 12/12/2017
Resolution No: 2017-162 Page 1 of 10
CITY OF BRENTWOOD
MEETING
RULES AND PROCEDURES
TABLE OF CONTENTS
Page
1. PURPOSE; APPLICABILITY ...........................................................................................2
2. MEETINGS: GENERAL RULES ......................................................................................2
3. ELECTION OF CITY COUNCIL OFFICERS; DUTIES .....................................................4
4. MEETING AGENDA: PREPARATION AND CONTENTS..................................................6
5. DECORUM .......................................................................................................................7
6. VOTING AND DECISION; RECONSIDERATION .............................................................8
COUNCIL/ADMINISTRATIVE POLICY
CITY OF BRENTWOOD
Subject:
Meeting Rules and Procedures
Policy No: 110-1 Date: 12/12/2017
Resolution No: 2017-162 Page 2 of 10
1. PURPOSE; APPLICABILITY
1.1 Purpose. The purpose of the Council Meeting Rules and Procedures (these “Rules”) is to establish protocols that will be convenient for the public and contribute to the orderly conduct of City business. These Rules apply in addition to:
• the Ralph M. Brown Act Open Meeting Law (Brown Act, Gov’t. Code §55950 and following);
• the Political Reform Act (Gov’t. Code §81000 and following); and • any other California laws that govern the conduct of City Council meetings.
1.2 Applicability. These Rules apply to meetings of the City Council and all City Commissions (unless: a provision is clearly not applicable, stated otherwise in the ordinance establishing a particular commission, or stated otherwise in state law). Reference to Mayor, Council, Council Member, and City Clerk shall respectively mean Chairperson, Commission, Commissioner and Secretary, when applicable to a City commission.
1.3 Effect. Failure to observe these Rules does not invalidate any otherwise lawful action.
2. MEETINGS: GENERAL RULES
2.1 Meeting – Definition. The term meeting means the gathering together of three or more members of the City Council (or a majority of the total members of any commission) to hear, discuss, deliberate, or take action on any matter within its jurisdiction. (Gov’t. Code §54952.2(a).)
1 2.2 Meetings Open to the Public. Unless otherwise authorized by law to be held in closed session, all City Council meetings are open and public. (Cal. Const. art I, §3(b)(1); Gov’t.
Code §54953(a).)
2.3 Time and Place of City Council Meetings. The City Council shall hold regular meetings at the dates, time, and location set forth in Municipal Code Chapter 2.04 and any related resolutions, or as modified by the Council.
2.4 Quorum. A majority of the total members of the Council shall constitute a quorum and is sufficient to transact regular business. A Council Member present but abstaining is counted for purposes of constituting a quorum. A Council Member disqualified from voting by law is not counted for purposes of constituting a quorum. (See Section 3.4a below.) If there is no quorum, the Mayor or City Clerk shall adjourn the meeting to a stated time and place.
2.5 Presiding Officer. The Mayor is the presiding officer of the Council. In the absence of the Mayor or in case of conflict under Section 3.4a, the Vice-Mayor shall preside. In the absence 1 The Brown Act prohibits a majority of a city council, outside an open and noticed meeting, from using a series of communications of any kind (including telephone or email, or through intermediaries) to discuss, deliberate or take any action on city business. (Gov’t. Code §54952.2(b)(2).)
COUNCIL/ADMINISTRATIVE POLICY
CITY OF BRENTWOOD
Subject:
Meeting Rules and Procedures
Policy No: 110-1 Date: 12/12/2017
Resolution No: 2017-162 Page 3 of 10
of the Mayor and Vice-Mayor, the City Manager shall preside over the election of a temporary chair. The temporary chair will preside until the return of one of the officers.
2.6 Types of meetings.
a. Regular meetings. This is the regular City Council meeting generally held twice per month, as established by the Municipal Code (Chapter 2.04) and City Council Resolution. b. Special Meetings. A special meeting may be called by the Mayor or by a majority of the City Council. Notice must be given in conformance with Government Code §54956 at least 24 hours before the special meeting.
c. Closed Sessions. The City Council may meet in closed session (not open to the public), as provided by California law. No member of the City Council, City employee or person present during a Closed Session may disclose to anyone not present at the Closed Session the content or substance of any confidential written materials or confidential discussions which took place during the session, unless the City Council votes to authorize disclosure of such information by a majority vote, except as otherwise required by law. (Gov’t. Code § 54956.5.) d. Adjourned Meetings. The City Council may adjourn a regular or special meeting to a specific time and place. (If there is less than a quorum at any scheduled meeting or if all members are absent, the Mayor or City Clerk may declare the meeting adjourned to a stated time and place and post notice of that fact consistent with Government Code § 54955. e. Continued Hearings. The City Council may continue any hearing to a subsequent meeting, stating the specific date, time, and place. (Government Code § 54955.1). f. Emergency Meetings. The City Council may hold an emergency meeting under Government Code section 54956.5 if a majority of the members of the City Council determine that there is 1) a work stoppage or other activity which severely impairs public health, safety, or both, or 2) a crippling disaster which severely impairs public health, safety, or both. Notice shall be given as provided in Government Code section 54956.5. g. Teleconferences. The City Council may use teleconferencing for any City Council meeting. Each teleconference location must be open to the public, and an agenda posted at each location. Each teleconference location shall be identified in the notice and agenda of the meeting. At least a quorum of the Council Members must be present at locations within the City. All votes taken during a teleconferenced meeting shall be by roll call vote. (Gov’t. Code § 54953.)
h. Meetings with City Commissions. The City Council may hold a joint meeting with a City Commission, or with another public agency, in conformance with the Brown Act.
2.7 Minutes; Record-keeping. The City Clerk or his or her designee will take action minutes, consisting of the names of individuals speaking about an item, and the action taken by Council on each item including the motion and the vote. City Council and Planning Commission meetings are generally broadcast live and are also available for viewing later on the City‘s website. The City maintains audio recordings for other commission meetings. Copies or transcripts are available upon request, with prior payment of fees established by City Council resolution.
COUNCIL/ADMINISTRATIVE POLICY
CITY OF BRENTWOOD
Subject:
Meeting Rules and Procedures
Policy No: 110-1 Date: 12/12/2017
Resolution No: 2017-162 Page 4 of 10
3 ELECTION OF CITY COUNCIL OFFICERS; DUTIES
3.1 Election of Vice Mayor. The City Council shall elect a Vice Mayor for a two-year term, at the meeting when new Council Members are sworn in after a general municipal election. If the office of Vice Mayor becomes vacant for any reason (including resignation, incapacity, death, recall, municipal election, or removal by majority vote), the City Council shall elect one of its members to fill the vacancy at the next regular meeting. The election or removal of the ViceMayor requires three affirmative votes.
3.2 Duties of Mayor. The Mayor has the power, authority, and discretion, without a vote of the majority of the Council (except as noted) to:
a.
1)
Preside over Council meetings:
maintain order and proper decorum (See Rule 5 below);
2) announce the business before the Council in the order set forth in the agenda; 3)
4)
call for votes on each matter requiring a decision, and announce the results. The Mayor may make a motion, second and debate matters, subject only to the same limitations of debate as are imposed upon all members.); when requested, make these Rules known and decide questions of order, subject to an 5)
appeal of the Council;
set time limits on Council discussion (subject to Council concurrence) and on 6)
communications from members of the public, consistent with the Brown Act; open public hearings.
b. Agendas. Work with the City Manager in the preparation of agendas, and place items on a future Council meeting agenda, under Rule Sections 4.2 and 4.4 below. c. Signing. Sign all documents as authorized by the City Council, and ceremonial documents.
d. Subcommittees. Create subcommittees, with a concurrence of the Council, under Section 3.4b.
e. Appointments. Make appointments to a public office or position, with the confirmation of a majority of the City Council.
f. City Spokesperson. Serve as the chief spokesperson and representative for the City and City Council for matters concerning public policy.
g. Other duties. Perform other duties as are required by law or as pertain to the office of Mayor.
3.3 Duties of Vice Mayor. The Vice Mayor has the power and authority to:
a. Exercise the duties and powers of the Mayor, in the Mayor’s absence. b. Serve with the Mayor as spokesperson and representative for the Council.
COUNCIL/ADMINISTRATIVE POLICY
CITY OF BRENTWOOD
Subject:
Meeting Rules and Procedures
Policy No: 110-1 Date: 12/12/2017
Resolution No: 2017-162 Page 5 of 10
c. Assist the Mayor in anticipating an issue that may warrant a special meeting.
3.4 Duties of all Council Members. It is the duty of each Council Member to attend Council meetings, adhere to these Rules, and to cast votes as outlined below. a. Abstention from voting. A Council Member must abstain from voting if:
1) the Council Member has a personal or financial interest in the matter as defined in the California Political Reform Act (Government Code §§ 81000 et seq.) 2 ; or
2) the law otherwise declares the Council Member's participation to be a conflict of interest (e.g., Government Code §§ 1090, 1126, 81000 et seq.; or case law); or 3) the member is disqualified as to a particular matter because of his or her absence from a prior public hearing and inability or failure to review the prior testimony and evidence presented.
If a Council Member is disqualified, he or she shall declare this fact and the reason for it on the record, and shall leave the room until the matter is concluded. However, if the matter on which the Council Member is disqualified is on the Consent Calendar, and is not pulled from the Consent Calendar, the Council member does not need to step down from the dais during the vote. Rather, before the Consent Calendar vote, he or she should declare this fact and the reason for it on the record and state that he or she is not voting on that item. b. Committees and Boards. The business of the City Council will from time to time require work in Council committees (either a standing committee or ad hoc committee), and through Council Member participation on boards of other governmental agencies.
The Mayor, a majority of the Council, or staff may recommend formation of a committee. A committee assists in the resolution or study of issues arising from a specific area of Council concern. All communications and advice from a committee shall be made to the Council. A committee serves until discharged by a majority of the Council.
It is the duty of any Council Member sitting on such a committee, or outside board, to make periodic reports to the City Council as a whole and to the general public at regular City Council meetings. It is also the duty of a Council Member to timely advise his or her alternate, if any, if the Council Member will be absent from any committee or board meeting.
3.5 Absences. A Council Member should endeavor to give notice to the Mayor, City Manager, or City Clerk in advance if he or she will be absent or late to a Council meeting. If a Council Member is absent without permission from all regular city council meetings for 60 days consecutively from the last regular meeting he or she attended, his or her office becomes vacant and shall be filled as any other vacancy. (Gov’t. Code §36513.) 2 A Council Member may not make, participate in making, or in any way attempt to use their official position to influence a governmental decision in which they know (or have reason to know) they have a financial interest. (Gov’t. Code § 81000.)
COUNCIL/ADMINISTRATIVE POLICY
CITY OF BRENTWOOD
Subject:
Meeting Rules and Procedures
Policy No: 110-1 Date: 12/12/2017
Resolution No: 2017-162 Page 6 of 10
4 MEETING AGENDA: PREPARATION AND CONTENTS
4.1 General. The City Council will not discuss any item of business not appearing on the written agenda, except as provided in Government Code section 54954.2.
If other matters (not on the agenda) are raised by the public, the City Council or staff may refer the matter to staff or to a subsequent meeting.
3 (Gov’t. Code §54954.2.)
4.2 Agenda Preparation; Distribution. There shall be a written agenda for each City Council meeting. The agenda shall contain a brief general description of each item of business to be transacted or discussed and shall include other matters as set forth in this Section 4. The City Clerk shall prepare the agenda in conjunction with the City Manager’s office. Anonymous communications will not be considered nor placed on the agenda. Only the City Manager, City Attorney, the Mayor and Council Members may add items to a Council agenda. If a member of the public wishes an item to be added, he or she must have a Council Member sponsor the item. The agenda will be posted and distributed as required by the Brown Act. (Gov’t. Code §§54954.2, 54954.1.)
4.3. Agenda Contents; Order of Business. The agenda shall include general information, a brief description of items of business, and the order of business (See Government Code § 54954.2).
The order of business is as follows, subject to change by the Mayor, Vice-Mayor (in the Mayor’s absence), City Manager or a majority vote of the City Council:
Call to Order and Roll Call
Pledge of Allegiance
Presentations (and Proclamations) (these may also be included on the Consent Calendar.)
Public Comments (for items not on the public hearings or business items portions of the agenda, or requests for future agenda items)
Informational Reports from Council Members, committees, liaisons, and staff Consent Calendar
Public Hearings4
Business Items
Request for Future Agenda Items (by Council Members)
Adjournment
3 No action or discussion shall be undertaken on any item not appearing on the posted agenda, except that members of a legislative body or its staff may briefly respond to statements made or questions posed by persons exercising their public testimony rights, ask a question for clarification, or provide a reference to staff or other resource for factual information. (Gov’t. Code §54954.2) 4 Public Hearings. Public hearings are those having specific notice requirements by state law or City ordinance. At the hearing, the Council shall afford any interested person (and his or her representative) the opportunity to speak, present witnesses and evidence, subject to these Rules.
Public hearings will be conducted in the following order: (1) Staff Reports and Council Member questions to staff; (2) Public hearing opened by Mayor; (3) Public testimony; (4) Mayor closes the public hearing, by majority vote; (5) Discussion among Council Members; and (6) Action by majority vote.
COUNCIL/ADMINISTRATIVE POLICY
CITY OF BRENTWOOD
Subject:
Meeting Rules and Procedures
Policy No: 110-1 Date: 12/12/2017
Resolution No: 2017-162 Page 7 of 10
4.4 Adding Future Agenda Items.
An item may be added to a future agenda, and staff time authorized, in either of the following ways:
a. Standard agenda process for agenda preparation, under Rule Section 4.2 above, including:
1) by the City Manager, City Attorney, or staff; or
2) by written request to the City Manager by the Mayor or two Council Members at least one week before the publication of the next agenda (Thursday by 5:00 p.m.) and the City Manager determines that there is adequate staff time to prepare discussion and recommendation materials; or
b. By an individual Council Member making:
1) a written request to the City Manager at least one week before the publication of the next agenda to place the item under Request for Future Agenda Items on the next agenda; or
2) a verbal request at a Council meeting to have an item placed on the next agenda under Request for Future Agenda Items.
In either case (b.1 or b.2), the listed item will identify the Council Member making the request and briefly describe the nature of the request. Council discussion will be limited to whether staff time and City resources should be spent on the item and the time period for scheduling. Staff will not spend time on the requested item unless and until the Council wishes additional information, except that if staff has already worked on a matter or the City Manager deems an item to be urgent, he or she may place it on the next agenda as an action item.
5 DECORUM
5.1 Decorum Generally - City Council Members. The Mayor and Council Members shall preserve order and decorum at City Council meetings. Council Members shall confine their remarks to the agenda item under consideration and speak only when recognized by the Mayor, except as otherwise provided in these Rules. Once a Council Member is recognized, he or she will not be interrupted unless called to order by the Mayor. A Council Member may not, by conversation or otherwise, disturb or disrupt the proceedings or the peace of the City Council in any way, nor disturb any other Council Member or member of the public while speaking, nor refuse to obey the instruction of the Mayor or City Council.
During a quasi-judicial hearing5
, an applicant or appellant is entitled to due process of law, including a meaningful opportunity to be heard. Council Members should not receive 5 A quasi-judicial hearing is one that involves the application of rules to a specific project or set of existing circumstances. Examples include land use matters (but not legislative decisions such as General Plan or zoning amendments, or development agreements), employee disciplinary proceedings, and proceedings for the revocation, suspension, or reinstatement of permits, licenses, and franchises.
COUNCIL/ADMINISTRATIVE POLICY
CITY OF BRENTWOOD
Subject:
Meeting Rules and Procedures
Policy No: 110-1 Date: 12/12/2017
Resolution No: 2017-162 Page 8 of 10
information outside of the hearing on the matter unless they disclose the nature of the communications. Council Members will give full attention to speakers at the hearing.
Council meetings will be governed by common sense and good taste. In case of a dispute concerning a procedural matter not specifically covered in these Rules, the majority vote of the Council will control.
5.2 Decorum Generally - Public. Members of the public wishing to speak during the public discussion are requested to fill out the speaker form provided and hand the card to the City Clerk at the beginning of (or during) the meeting. Comments by members of the public are generally limited to five minutes, or less time if a large number of speakers is anticipated. A speaker may not allocate his or her time to another speaker. The Mayor will invite public testimony on each item at the appropriate time. Written documents or messages to the City Council or any Council Member while the City Council is in session, which pertain to the Council’s business, shall be made only through the City Clerk.
A member of the audience must come forward to the lectern so that their remarks may be accurately recorded. All remarks shall be addressed to the Mayor, except that answers to questions posed by a City Council Member recognized by the Mayor may be addressed to the questioner. No person other than a member of the City Council and the person having the floor shall enter into any discussion, either directly or through a Council Member, without the permission of the Mayor. The comments must be pertinent to the agenda item under discussion. A member of the public may not ask a question of a Council Member or staff member, except through the Mayor. Speakers are urged to avoid unnecessary repetition in their remarks and instead simply indicate agreement with previous speakers.
If a meeting is willfully interrupted by any individual, group or groups of people so as to render the orderly conduct of the meeting unfeasible, the Mayor may recess the meeting and require the removal of individuals who are interrupting the meeting, or clear the room and continue the meeting allowing only members of the press to remain. (Gov’t. Code §§ 54957.9.) 6 VOTING AND DECISION; RECONSIDERATION
6.1 Voting and Decision. Ordinances, resolutions and other matters submitted to the Council must be adopted by a majority vote of the total membership of the Council unless a greater number of votes is required by law. A majority means three votes for the City Council (and for each City commission with a total of five members). If one or more Council Members is absent and a majority vote cannot be obtained, and no additional action is taken, the matter shall automatically be added to a future agenda, to be considered at least once with all Council Members present.
If a member (qualified to vote) does not vote in the affirmative or negative, the member shall be deemed to have voted in the affirmative.
A tie vote means the motion is not approved.
After a vote is taken on a matter, if an appropriate resolution is not already prepared, the
COUNCIL/ADMINISTRATIVE POLICY
CITY OF BRENTWOOD
Subject:
Meeting Rules and Procedures
Policy No: 110-1 Date: 12/12/2017
Resolution No: 2017-162 Page 9 of 10
Council may direct the staff to prepare a resolution reflecting the City Council’s findings and decision. A resolution brought back to the Council may be placed on the Consent Calendar. (No public comments can be received or considered unless a public hearing is re-noticed.) The vote is not considered final until the City Council reviews and approves the resolution at a later meeting.
6.2 Reconsideration. This section 6.2 does not apply to City Commissions. a. Reconsideration of Quasi-Judicial Actions. (See footnote 5.) A motion to reconsider any quasi-judicial action taken by the City Council may be made by any Council Member who voted with the majority on a question, and may be seconded by any Council Member. The motion must be approved by a majority vote of the entire City Council. The City Clerk shall provide notice to all interested parties as soon as possible when a matter becomes the subject of a motion to reconsider.
1) Timing. The motion must be made at the same meeting at which the action was taken (including an adjourned or continued meeting), at the next regular meeting, or at any intervening special meeting. If a request for reconsideration is communicated to the City Manager by any Council Member who voted in the majority, at least 24 hours before the state law deadline for posting the City Council meeting agenda, then the request shall appear on the posted agenda for the next regular meeting or intervening special meeting. Otherwise, no City Council discussion or action on reconsideration may occur unless the item is appropriately added to the agenda under Government Code section 54954.2(b) which addresses adding items that are not listed on a posted agenda, when immediate action is necessary. (See Rule Section 4.1b.) 2) Effect of Approval of Motion; Notice. If the motion to reconsider is made and approved at the same meeting at which the initial action was taken and all interested persons (including applicants, owners, supporters, and opponents) are still present, the matter may be reconsidered at that meeting or at the next regular meeting or intervening special meeting (subject to the discretion of the maker of the motion) and no further public notice is required.
If the motion to reconsider is made and approved at the same meeting at which the initial action was taken but all interested persons are not still present, or if the motion is made and approved at the next regular meeting or intervening special meeting, the item shall be scheduled for consideration at the earliest feasible City Council meeting and shall be re-noticed in accordance with state law and the Municipal Code. In certain circumstances, a right may have vested after the initial decision, precluding reconsideration.
b. Reconsideration of Legislative or Other Non-Quasi-Judicial Actions. The City Council may rescind, repeal or amend its prior legislative or other non-quasi-judicial actions (unless precluded from doing so under applicable laws) at any regular or special meeting of the City Council. Noticing and scheduling of such actions shall be consistent with Rule Section 4 (Meeting Agenda: Preparation and Contents) and any required notice provisions.
COUNCIL/ADMINISTRATIVE POLICY
CITY OF BRENTWOOD
Subject:
Meeting Rules and Procedures
Policy No: 110-1 Date: 12/12/2017
Resolution No: 2017-162 Page 10 of 10
Revision History
Date Resolution
11/13/2001 2399 adopted policy
04/27/2004 2004-97 amended Rules 1-27 added rules 28-36 05/25/2005 2005-260 deleted Rule 8
04/11/2006 2006-73 deleted Rule 36
01/23/2007 2007-15 added Rule 13A
10/09/2007 2007-225 amended Rule 13A
05/24/2011 2011-67 deleted a portion of Rule 32 & amended Rule 28H 01/22/2013 2013-11 amended Rule 26 Priority of Business 12/10/2013 2013-174 amended Rule 35 in its entirety
12/09/2014 2014-182 amended Rule 13 A
6/14/2016 2016-74 Re-adopting new Meeting Rules and Procedures 12/12/2017 2017-162 Quorums and reconsideration of matters by City commissions
CITY COUNCIL AGENDA ITEM NO. H.4
10/10/2023
SUBJECT: Review of City Council/Administrative Policy Ethics and Conduct Policy 110-5
DEPARTMENT: City Manager’s Office
STAFF: Darin Gale, Assistant City Manager
TITLE/RECOMMENDATION
That the City Council discuss and provide direction to staff on potential amendments to City Council/Administrative Policy 110-5, Ethics and Conduct
FISCAL IMPACT
There is no fiscal impact associated with this action, however, utilizing a consultant with expertise in this area, as well outside legal counsel for a review of the enforceability of State and Federal law violations, could cost approximately $25,000 depending on the final scope and time commitment involved. Any costs incurred will be funded by the General Fund.
BACKGROUND
In response to Council Member Mendoza’s future agenda request on October 11, 2022, later deferred with her permission until September 2023, and continued from the September 26th meeting, this request is seeking City Council direction about amendments to the City Council Ethics and Conduct policy (the Policy). At the October 11, 2022 meeting, the City Council authorized the following direction:
Update the City of Brentwood Ethics & Conduct Policy:
Benchmark other cities ethic and conduct policies, include copies of the policies in a future staff report and highlight best practices
Benchmark policies from Cities that might have recently updated their policy or dealt with recent violations
Review City Council option to discuss possible violations of State & Federal Law during regular council meetings and to refer to the appropriate legal agencies Specifically consider Council options for possible Brown Act Violations Once information is collected as mentioned above, hold a workshop for Council and Public discussion to recommend updated Council Ethics & Conduct Policy.
CITY COUNCIL AGENDA ITEM NO. H.4
10/10/2023
Staff is seeking authorization to hire a consultant to prepare amendments to the Policy, and outside counsel to review questions associated with the ability to discuss and/or enforce State and Federal law violations. Staff will return with their assistance in providing benchmark policies, as well as determinations on whether there are alternatives and options about addressing Federal and State law. If authorization is received, the additional General Fund budget request required for this assistance will be included in a future agenda item on this matter.
To look into how best to provide the City Council with baseline information related to the Policy, staff contacted, JoAnne Speers of S2, Ethics Strategies, an expert on ethics issues and policies. Ms. Speers provided a broad review of the Policy, and her thoughts are included in the attached letter. Ms. Speers did not charge the City for her review. She stated that the Policy “benchmarks well” and recommended four areas to consider:
1. Length and Relevance: “Extensiveness” (or length) can be a double-edged sword. Longer documents—particularly those with less relevant information-- are more difficult for busy elected officials to keep top of mind.
2. Terminology: The code has language that may be ambiguous or overly broad.
3. Process: To be maximally effective, it can be helpful for those whose conduct is to be guided by the document to have the opportunity for input into its content. A good practice is to give Councilmembers the opportunity to review, revise and refine ethics codes periodically.
4. Implementation: Most of the time, implementation is a staff function. This is less so with policies that pertain to the Council’s values and behaviors, since Councilmembers in their words and actions are the policy’s implementers.
There are some additional practices the Council can consider in enhancing its implementation processes.
As Ms. Speers’ review was a broad overview of the Policy, a more in-depth analysis could result in additional recommendations. Such recommendations would be brought forward when the matter is again considered by the Council.
Finally, the current Ethics and Conduct Policy does not apply to violations of State and Federal law. When this matter was discussed in 2022, questions were raised about this applicability issue. If the Council is still interested in exploring this issue, with your direction staff would engage the services of special counsel to prepare an opinion memo.