Han"IMS
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: OFFICE OF THE CITY ATTORNEY
BY: Lauren Langer, Interim City Attorney
DATE: September 12, 2023
SUBJECT: CITY COUNCIL RESPONSE TO BROWN ACT COMPLAINT
EXECUTIVE SUMMARY
The City Council will consider a report regarding a letter alleging that the City violated the Brown Act in connection with the September 22, 2023, City Council meeting, and whether to direct the City Attorney to send a response on behalf of the City stating that no Brown Act violation occurred.
RECOMMENDATION
That the City Council:
1. Receive and file report.
2. Direct the City Attorney to send letter pursuant to section 54960.2, communicating the City Council's determination that no Brown Act violation occurred and therefore that the City Council will not take further action regarding this matter.
BACKGROUND
On or about August 23, 2023, Mr. Juan Martinez ("Mr. Martinez") transmitted an email to the City Clerk, City Attorney, and a number of other City officials that purported to be a cease -and -desist letter ("Letter") pursuant to Government Code' section 54960.2 relating to alleged actions by Mayor Claudia M. Frometa ("Mayor") in connection with a speaker — Mr. Armando Herman —during public comment at the September 22, 2023, meeting of the City of Downey's ("City") City Council.
The Letter is attached hereto as Attachment 1. This report summarizes the City Attorney's analysis and recommended action in response to the Letter pursuant to section 54960.2.
All further section references are to the Government Code unless otherwise stated. 65186.00200\41630104.1
HONORABLE MAYOR & MEMBERS OF CITY COUNCIL
SEPTEMBER 12, 2023
ANALYSIS
A. The Brown Act
To promote transparency and to comply with the Brown Act, City Council meetings are open and public. All business items taken up by the City Council generally must be included on a publicly posted agenda, which promotes public participation. To further promote the Brown Act's overarching value of accountable government, several statutes, including section 54960.2, also allow interested persons to "demand" the City make a commitment to not repeat a past violation of the Brown Act (to the extent the Act was violated). This procedure allows the City to account for its actions so that the City Council can reinforce community confidence that the council is governing in an open and transparent manner. The City takes every Brown Act allegation seriously, even when it would appear on its face to be without merit.
These written demands must be filed within a statutorily defined time period. The Brown Act dictates that the City Council determine within 30 days of receipt of a demand whether it will cease and desist from the challenged action. If the City Council does not act within 30 days, it is deemed to have determined not to take any action. Pursuant to section 54960.2, the Council must determine whether a violation occurred and if so, whether to make an unconditional commitment to cease, desist from, and not repeat the past action that is alleged to violate the Brown Act.
Mr. Martinez's Letter alleges violations of subdivisions (a) and (c) of section 54954.3, which respectively provide that at each public meeting the City Council "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" and that the City Council "shall not prohibit public criticism of the policies, procedures, programs, or services of the [City Council], or of the acts or omissions of" the City Council.
However, those provisions are balanced against the Brown Act's section 54957.95.
Generally, that code section provides a mechanism by which a community member may be removed for disrupting a City Council meeting after the community member first receives a warning.2
B. Martinez's Cease and Desist Letter
Although the Letter is attached as Attachment 1, the factual basis as Mr. Martinez reports in his letter demanding to cease and desist is reproduced in its entirety below:
2 See § 54957.95, subds. (a)(1)-(2).
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HONORABLE MAYOR & MEMBERS OF CITY COUNCIL
SEPTEMBER 12, 2023
"Speaker #2 Mr. Herman spoke at the August 22, 2023
Meeting to raise concerns about expenditures related to Agenda Items # 6,7,8, and 9. According to the video of the Meeting, before Speaker #2 Herman began to speak during the public comment period, he waited patiently and quietly before having his number card called for him to speak. Once called to speak Mr. Herman began his comments by saying "first 6 and 7, 10 years, account 10 dash four dash 43 22, f[-- ]king 8 thousand 15 thousand dollars for street closers. Simply for a six -hundred -dollar sales tax for parks and recs. F[--]k you". As soon as Mr. Herman mentioned "F[--]k you" which Herman has been known for using as a regular attendee of Downey City Council Meetings, Mayor Claudia Frometa
responded with "Okay, can we please stop the time, can we please stop the time" ordering staff to stop the time allotted for Mr. Herman's public comment. Mr. Herman attempted to
continue his public comment moving on to items 8 and 9 when Mayor Frometa ordered staff to "please cut the mic" thereby preventing Mr. Herman from being able to feasibly convey his public comment. As Herman continued his attempt to make his public comment without sound or an active microphone Mayor Frometa repeated "Can you please cut the mic"
ordering staff. Frometa then directed her speech at Herman and told him "I need you to stop, Mr. Herman 1 need you to stop". To which Mr. Herman patiently and respectfully to his surprise asked her "What?" Inquiring as to why she had
stopped him from making his public comment. To which
Frometa responded "Your choosing of language, your choice of words does not add Mr. Herman to what you are wanting to say. What it does is your language and your use of words is offensive to me, and its offensive to this council, and it is offensive to the members of the audience, you are welcome to continue your public comment and you would be more
effective utilizing your words without profanity". Mr. Herman then proceeded with his public comment in which he then responded to Mayor Frometa and City Attorney Lauren
Langer by informing them that Mayor Frometa needed to stop interrupting the public in order to censor their speech. He then reminded the council that he has a constitutional right to exercise his opinion. "If the mayor and this city continue to harass me, violate my constitutional rights, and my civil rights, for the record I plan to bring a lawsuit against the city of Downey in violations of my Brown Act, my Bane Act for threats by the mayor to accost me. Miss Langer, and you know what's 3 65186.00200\41630104.1
HONORABLE MAYOR & MEMBERS OF CITY COUNCIL
SEPTEMBER 12, 2023
going to happen Ms. Langer when you have to appear before the state bar of California to explain this nonsense, you need to get involved and protect my civil rights. Otherwise, you are going to be like to 1600 attorneys that lost their bar license and like that jackass Peter Thomas from DWP, the former head honcho attorney for that dickhead Mike Fuer 42 sc 1983, for the record and politely, F[--]k You B[ --- ]h, that's the last time I have". To which Mayor Frometa responded, I need you to sit down and that is your last warning, that was your 1 and final warning"".
On that basis, the Letter suggests that the Mayor violated section 54954.3, subdivisions (a) and (c) by not permitting Mr. Herman to speak on a topic within the subject matter of the City Council, which includes his right to criticize the City Council and the Mayor. On that same basis, the Letter also claims that the Mayor violated Mr. Herman's right to freedom of expression under the First Amendment to the United States Constitution.3 C. The Mayor Did Not Violate the Brown Act
Turning to the merits of the Letter, the Mayor did not violate the Brown Act. Boiled down to its factual core, the Letter alleges the following foundational facts as the basis for the Mayor's alleged violation of the Brown Act:4
• Mr. Herman began speaking during public comment on several topics on the City Council's agenda.
• When commenting on potential expenditures by the City that Mr. Herman disagreed with, he stated, apparently at the City Council, "F--k you." • The Mayor initially tried to interject and speak, but Mr. Herman attempted to continue his public comment.
• The Mayor requested that staff shutoff Mr. Herman's microphone, staff complied with that request, and the timer on Mr. Herman's comment was stopped. 3 The Letter raises other issues beyond the scope of the City Council's review under section 54960.2.
The Letter alleges violations of (i) the Brown Act, and (ii) the First Amendment to the United States Constitution. The latter, however, is not covered by section 54960.2 and outside the scope of this response. Notably, Mr. Herman did get to say everything he wanted to say, including profanity. In other words, he was not prevented from speaking and the minor interruption did not impair his expression.
Nevertheless, this response focuses only on the Brown Act allegations. 4 The City merely summarizes the allegations in the Letter and does not concede the truth of the allegations in the Letter or the characterization of the events therein. 4 65186.00200\41630104.1
HONORABLE MAYOR & MEMBERS OF CITY COUNCIL
SEPTEMBER 12, 2023
• The Mayor then said the following:5
"Your choosing of language, your choice of words does not add Mr.
Herman to what you are wanting to say. What it does is your language, and your use of words is offensive to me, and its offensive to this council, and it is offensive to the members of the audience, you are welcome to continue your public comment and you would be more effective utilizing your words without profanity." • Afterward, Mr. Herman was permitted to continue his public comment with the time remaining for his public comment.
When Mr. Herman again began to speak during public comment, and shortly before the time ran out on Mr. Herman's public comment, Mr. Herman addressed the Mayor, City Council, and City Attorney regarding the Mayor's previous interruption and concluded by stating, "for the record and politely, F[--]k You B[--- ]h, that's the last time I have."
Based on these facts, the Letter alleges that the Mayor violated section 54954.36 of the Brown Act by:
• Interrupting Mr. Herman during his public comment so that the Mayor could speak; and
5 This is a reproduction from the Letter.
6 Subdivisions (a) and (c) in section 54954.3 are reproduced in full below:
(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.
(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.
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HONORABLE MAYOR & MEMBERS OF CITY COUNCIL
SEPTEMBER 12, 2023
• Turning off Mr. Herman's microphone so that the Mayor could speak.
As will be set forth below, the above summarized allegations fail to show that the Mayor violated the Brown Act.
1. Mr. Herman Was Neither Prevented From Speaking on a Topic Within the Subject Matter Jurisdiction of the City Council nor Criticizing the City Council
First, Mr. Herman was not prevented from saying exactly what was on his mind in the full time allotted to him under the City Council's rules. After all, even after the Mayor interrupted him he was permitted to speak utilizing his full time and was not removed from the meeting. The Mayor's interruption was de minimis and intended to request that Mr.
Herman comply with the City Council's rules of decorum and refrain from using profane language out of respect for others both in the room and viewing the meeting at home as a courtesy. The fact that the Mayor stopped the time on his comment and after her interruption let him continue shows that his right to speak under the Brown was not curtailed.
2. The Mayor's Actions Were Authorized by Section 54957.95 Second, both actions alleged by the Letter to be violative of the Brown Act were authorized by section 54957.95. Section 54957.95 provides that, after the Mayor or presiding City Council member "warn[s] the individual," the City Council "may remove, or cause the removal of, [the] individual for disrupting the meeting."' "Disrupting" means "engaging in behavior during a meeting of [the City] that actually disrupts, disturbs, impedes, or renders infeasible the orderly conduct of the meeting and includes[] .... [%] [a] failure to comply with reasonable and lawful regulations adopted by a legislative body pursuant to Section 54954.3 or any other law."8
Thus, while section 54954.3, subdivisions (a) and (c) do generally provide that every community member has the right to speak at an open meeting of a legislative body before action is taken and such speech may be critical of the agency's action(s) or inaction(s), when the City Council intends to enforce rules related to potential disruptions by a community member that may be grounds for removal, section 54957.95 is the specific statute that applies. The statutes must coexist and be read together to serve the purpose of fostering open and public meetings where the public can contribute and that are free from disruption. The specific statute also prevails over any conflicting language in section 54954.3.9
§ 54957.95, subds. (a)(1)-(2).
8 § 54957.95, subds. (b)(1)(A).
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HONORABLE MAYOR & MEMBERS OF CITY COUNCIL
SEPTEMBER 12, 2023
A reasonable reading of the record demonstrates that the Mayor was acting pursuant to section 54957.95. Downey Municipal Code section 2105, subdivision 0) provides:
"Members of the audience shall respect the rights of others and shall not create noise or other disturbances so as to disrupt or disturb persons who are addressing the City Council, Council Members who are speaking, or otherwise impede the orderly conduct of the meeting. All persons addressing the City Council shall speak in a civil and courteous manner and shall not yell, scream, or use foul language. Speakers shall address the agenda topic to which they are speaking on and shall not be repetitive." The Mayor stopped Mr. Herman after he had commented on potential City expenditures, and included an isolated, stand-alone sentence that stated, "F[--]k you." On this record, the Mayor could have reasonably determined that an isolated sentence stating, "F[--]k you" was not related to the "agenda topic to which" Mr. Herman "was speaking on" and otherwise irrelevant.10
Thus, since the Mayor could have reasonably determined that Mr. Herman was "disturbing" the meeting by failing to comply with the City's duly enacted ordinance governing community members' conducts at an open City Council meeting," the Mayor could reasonably issue a warning for what she determined to be disruptive behavior. 12 Moreover, the record reflects that the Mayor's decision to shutoff Mr. Herman's microphone was not itself a violation of section 54957.95. Indeed, the Mayor first tried to interject and speak before shutting off the microphone, but Mr. Herman did not stop to give the Mayor an opportunity to address him. The right to speak at a public meeting does not provide a community member with an absolute right to filibuster and prevent the Mayor from enforcing (or even reminding a speaker of) the City Council's rules of decorum. Mr.
Martinez appears to object to the Mayor's approach of interrupting the speaker and he is free to raise that criticism of the timing and approach. However, since Mr. Herman was still given his full time to speak and was not removed from the meeting, Mr. Herman was provided an opportunity to directly address the legislative body as required by section 54953.
All of the above points highlight why the Letter is incorrect when it characterizes the Mayor's actions as "censoring" or "silencing" Mr. Herman to "prevent him from using protected speech under the Constitution's 1 st Amendment." To the contrary, the record 10 See Downey Municipal Code, § 2105, subd. 0); see also White v. City of Norwalk (9th Cir. 1990) 900 F.2d 1421, 1425 ["While a speaker may not be stopped from speaking because the moderator disagrees with the viewpoint he is expressing, [citation], it certainly may stop him if his speech becomes irrelevant or repetitious."]; Youkhanna v. City of Sterling Heights (6th Cir. 2019) 934 F.3d 508, 520-521 [finding restriction on irrelevant speech as applied constitutional].
11 See § 54957.95, subds. (b)(1)(A).
12 See § 54957.95, subds. (a)(1)-(2).
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SEPTEMBER 12, 2023
reflects that before Mr. Herman was briefly interrupted by the Mayor, the time on his public comment was stopped. And after the Mayor's interruption, Mr. Herman was permitted to conclude his public comment with the remainder of that time and make whatever comments he desired to make.13 Thus, while his public comment was interrupted, Mr.
Herman was not silenced or removed from the City Council Chamber, and the Mayor's warning was contemplated by section 54957.95.
While the Brown Act includes important protections to the public process, this issue does highlight the complexity and challenges present in trying to maintain order and decorum in public meetings. This has been a challenge throughout the state and led to the recent adoption of section 54957.95. Enforcement and management of a public meeting is not a perfect science, especially in light of the rapid nature of public comment at an open city council meeting. When speakers like Mr. Herman have a practice of mixing potentially disruptive behavior with arguably relevant public comment, it creates a very challenging enforcement situation for the presiding officer, Mayor, and City Council, making it difficult to interject with warnings at the appropriate time. While the complaint might take issue with the Mayor's approach at the last Council Meeting, the Mayor is trying hard to maintain decorum and civility and manage very challenging situations in Council Chambers in order for the City Council to conduct its business.
CONCLUSION
Based on the foregoing, Mr. Martinez has not stated a Brown Act violation and no unconditional commitment is required. Accordingly, it is recommend that the City Council receive and file this report and direct the Interim City Attorney to send a letter notifying Mr. Martinez of the same.
CITY COUNCIL PRIORITIES
Efficiency & Adaptability
Public Engagement
FISCAL IMPACT
13 The Mayor's patience with Mr. Herman's additional, disruptive conduct at the City Council meeting also belies any notion that the Mayor targeted Mr. Herman because of what he said. Indeed, Mr. Herman's other disruptions during the meeting were not always captured on the meeting video feed. Mr. Herman appeared to be making animal noises from his seat (like a sheep), noisily coming in and out of the City Council Chambers with his dog, muttering under his breath, walking up to staff and recording them with his cell phone in their face, and walking out of his way down to the staff area to leave the chamber during the proceedings when it is much more direct to walk straight to the back of the room. The antics and disruptions are far too frequent for the Mayor to provide a verbal warning each and every time while still conducting business efficiently, and in light of Mr. Herman's right to be present at the meeting, the Mayor could have reasonably decided not to enforce the rules of decorum during those other instances, which she would have had the right to do.
S
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HONORABLE MAYOR & MEMBERS OF CITY COUNCIL
SEPTEMBER 12, 2023
No fiscal impact.
ATTACHMENTS
Attachment A — September 23, 2023, email from Mr. Juan Martinez 65186.00200\41630104.1
From: Juan Martinez
Sent: Wednesday, August 23, 2023 7:42 AM
To: City Clerk; Mario Trujillo; City Attorney; Claudia M. Frometa; - Rodolfo Cortes Barragan; Martha Camacho-Rodriguez; Lee Squire Subject: Complaint of Violation of Freedom of Speech and Ralph M. Brown Act As a Delegate of the 64th District which represents in part the city of Downey and the entirety of its constituents, I am writing on behalf of Speaker #2 Herman to report and notify Members of the Council, the City Clerk Alicia Duarte, and the City Attorney Lauren Langer of violations of the Brown Act of public comment during a regularly scheduled In -person meeting on August 22, 2023, of the Downey City Council and to seek the Council's and its City Attorney's commitment to preventing similar attempts at censorship and violations going forward. The Council violated the Brown Act, Government Code §§ 54950et seq., by stopping Speaker #2 Mr. Herman ) during his allotted time for public comment, by Interrupting his speech, stopping his time, and cutting off his microphone in order to censor and prevent him from using protected speech under the Constitution's 1 st Amendment.
Summary of Events
Speaker #2 Mr. Herman spoke at the August 22, 2023 Meeting to raise concerns about expenditures related to Agenda Items # 6,7,8, and 9. According to the video of the Meeting, Before Speaker #2 Herman began to speak during the public comment period, he waited patiently and quietly before having his number card called for him to speak. Once called to speak Mr. Herman began his comments by saying "first 6 and 7, 10 years, account 10 dash four dash 43 22, fucking 8 thousand 15 thousand dollars for street closers. Simply for a six hundred dollar sales tax for parks and recs. Fuck you". As soon as Mr. Herman mentioned "Fuck you" which Herman has been known for using as a regular attendee of Downey City Council Meetings. Mayor Claudia Frometa responded with "Okay, can we please stop the time, can we please stop the time" ordering staff to stop the time allotted for Mr. Herman's public comment. Mr. Herman attempted to continue his public comment moving on to items 8 and 9 when Mayor Frometa ordered staff to "please cut the mic" thereby preventing Mr.
Herman from being able to feasibly convey his public comment. As Herman continued his attempt to make his public comment without sound or an active microphone Mayor Frometa repeated "Can you please cut the mic" ordering staff. Frometa then directed her speech at Herman and told him "I need you to stop, Mr. Herman I need you to stop". To which Mr. Herman patiently and respectfully to his surprise asked her "What?" Inquiring as to why she had stopped him from making his public comment. To which Frometa responded "Your choosing of language, your choice of words does not add Mr. Herman to what you are wanting to say. What it does is your language and your use of words is offensive to me, and its offensive to this council, and it is offensive to the members of the audience, you are welcome to continue your public comment and you would be more effective utilizing your words without profanity". Mr. Herman then proceeded with his public comment in which he then responded to Mayor Frometa and City Attorney Lauren Langer by informing them that Mayor Frometa needed to stop interrupting the public in order to censor their speech. He then reminded the council that he has a constitutional right to exercise his opinion. "If the mayor and this city continue to harass me, violate my constitutional rights, and my civil rights, for the record I plan to bring a lawsuit against the city of Downey in violations of my Brown Act, my Bane Act for threats by the mayor to accost me. Miss Langer, and you know what's going to happen Ms. Langer when you have to appear before the state bar of California to explain this nonsense, you need to get involved and protect my civil rights. Otherwise, you are going to be like to 1600 attorneys that lost their bar license and like that jackass Peter Thomas from DWP, the former head honcho attorney for that dickehead Mike Fuer 42 sc 1983, for the record and politely, Fuck You Bitch, that's the last time I have". To which Mayor Frometa responded, "I need you to sit down and that is your last warning, that was your 1 and final warning".
Brown Act Violations
The Council violated the Brown Act by interrupting and cutting off Mr. Herman's microphone in order to censor his speech which is protected by the constitutions 1 st Amendment. Mr. Herman was speaking on a matter of public interest within the Council's authority. The Brown Act requires that, during a regular meeting of a legislative body, members of the public "must be allowed to speak ... 'on any item of interest to the public, ... that is within the subject matter of the legislative body." Gov't. Code § 54954.3. Because the Mayor provided an explanation for the decision to silence and censor Mr. Herman due to his use of language which the Mayor declared was personally offensive to her, its rationale is clear to be unconstitutional. It is abundantly clear that the Council had no legitimate or legal basis for its actions, which violated the Council's obligation to allow protected speech under public comment. As a threshold matter, the council cannot justify the decision to silence and censor Mr. Herman by claiming he was in any way disruptive to the meeting through his use of language generally protected by the 1 st Amendment. As is clear from the video, he was calm, patient, and cooperative at the outset of his presentation to the council. He engaged in no behavior that "actually disrupts, disturbs, impedes, or renders infeasible the orderly conduct of the meeting" nor did his use of profanity rise to the definitions of libel, slander, obscenity, copyright violation, sedition, inciting violence, fighting words, or imminent threats before he was issued a final warning from Mayor Frometa. It is therefore apparent that it was the content of Mr. Herman's speech rather than actual disruptive conduct that led to him being censored and silenced. The ability for members of the public to be able to discuss any agenda item without fear of punishment for personal reasons arbitrarily decided upon by a member of the legislative body on censorship clearly outside of the law is a matter of great concern to the public and an attack on Civil Rights and Constitutional Rights. Brown Act does not grant public bodies "authority to silence or censor public speech" but instead requires them to allow the public to speak "'on any item of interest to the public ... that is within the subject matter jurisdiction' of the Council, without exception." Finally, the Brown Act prohibits the council from silencing and censoring Mr. Herman simply because the mayor did not like his choice of words. Public bodies like the City Council "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." Gov't Code § 54954.3(c).
Conclusion and Cease and Desist Demand
The Council's decision to silence and censor Mr. Herman violated the Brown Act and the 1 st Amendment of the Constitution. Mr. Herman and all members of the public now fear that people will be shut down, silenced, censored, and prevented from engaging in public comment simply because the mayor at any time may arbitrarily declare that she is offended by the content or the terminology of a speech, regardless of whether that speech or terminology is lawful or protected by the constitution under Freedom of Speech. Pursuant to Government Code section 54960.2(a), I hereby notify the Council, the City Clerk Alicia Duarte, and the City Attorney Lauren Langer that the Council and Mayor Frometa must immediately cease and desist from preventing Mr. Herman or others from making public comments by silencing and censoring speech, content, and terminology regardless of whether Mayor Frometa or any council member or staff find those comments to be personally offensive.
Delegate of the 64th District Juan Martinez
Cc: Claudia Frometa, Mario Trujillo, Hector Sosa, Timothy Horn Best Best Krieger Lauren Langer
11111 Brookshire Ave
Downey, CA 90241