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ACLU slams Montebello for allegedly violating public comment law; here's why

Whittier Daily News logo Whittier Daily News 8/9/2022 Mike Sprague, The Whittier Daily News, Calif.

Aug. 8—The American Civil Liberties Union in an Aug. 5 letter has accused Montebello City Council members of violating the state's open-meeting law by not allowing the public criticism of city employees at council meetings.

ACLU of Southern California also said the city illegally requires the public to specifically address the mayor during the public comment period, said ACLU Southern California's chief counsel Peter Eliasberg and Zoe McKinney, staff attorney at First Amendment and Democracy, in the letter to Mayor Kimberly Cobos-Cawthorne and the city's four council members.

It impermissibly restricts free speech, including speech of matters of public concern, Eliasberg and McKinney wrote.

"We are prepared to go to court for relief on the two matters," McKinney said in a Monday, Aug. 8, telephone interview. "You should be able to address your comments to anyone on the board."

Montebello Councilwoman Angie Jimenez in a Monday, Aug. 8 email, said the ACLU is mischaracterizing a local matter that is "legitimate, conforming, transparent and legal."

"This stunt is just another way to create negativity for political gain as we enter election season," Jimenez said.

"Ordinance No. 2443 is similar — if not identical — to the policies and procedures that other municipalities in the surrounding region and LA County either follow or have in place," she wrote. "The policy adopted in this ordinance pertains to the behaviors of professional decorum and respect only among councilmembers so that meetings are conducted efficiently with personal attacks left off the dais.

In an email, Alex Gilman, city spokesman, in essence, declined to comment.

"The city's statement is: "The City of Montebello can confirm it received correspondence from the ACLU on August 5, 2022 and is reviewing it at this time.

The ordinance — No. 2443, under "Procedure for addressing the city council/agency" — the city law says :

"Any person making personal, impertinent or slanderous remarks about members of the body, staff, or the public, or who shall become boisterous or threatening or personally abusive of the body, staff or members of the public shall be asked by the mayor/chairperson to cease and desist such activity, and may be requested or required to leave the meeting in the event the behavior continues to disrupt the meeting proceedings."

It also warns "members of the public" to "direct all comments to the mayor and not to staff, individual members of the body, or the public."

The ordinance, which passed in October 2021, also directs that all critical comments about staff performance should only be made to the city manager through private correspondence or conversation, the ACLU attorneys said.

"Thus we read the provision to prohibit both city employees and elected members of the City Council from publicly criticizing a city employee," their letter said.

This suggests "an attempt to silence dissent and criticism in violation of California law and the constitution," they wrote. "As such, we urge the City Council to repeal or substantially alter the ordinance."

The ordinance in question did more than deal with public comment but also established rules for the meeting.

"This ordinance is intended to maximize the efficiency of City Council meetings and provide general policies and rules pertaining to the operations of the City Council meetings," City Manager Rene Bobadilla said in the staff report.

"The most significant changes being proposed are establishing a new meeting start time, amending the dark meetings, establishing general meeting requirements, establishing procedures for the conduct of meetings and a proposed meeting length," Bobadilla wrote.

Meetings are supposed to end by 11 p.m.

The ordinance was approved on a 3-2 vote. Council members Scarlet Peralta and David Torres opposed the measure.

In Monday telephone interviews they said the ACLU letter "legitimizes" and "vindicates" their negative position on the ordinance. The other three council members didn't respond to phone messages, other than by email or text to say they were in meetings or at work.

"We're becoming less and less transparent," Torres said. "They're allowing less and less time to speak and making illegal certain kinds of comments in order to paint a rosy picture of the city,"

"This letter legitimizes those concerns that have fallen on deaf ears when we have a discussion of the council," Peralta said.

The ACLU attorneys have previously sued over similar issues, such as the requirement to address the mayor or chairman.

In an Orange County case, a superior court judge enjoined Orange County Board of Supervisors from enforcing a similar provision, which required that all comments be directed to the board as a whole rather than to individual board members, they wrote.

The ACLU has had issues with other cities.

During the pandemic, the organization threatened Whittier with a lawsuit when the city didn't allow the public to speak during its meetings, even virtually or on the phone. It later allowed public comment over a Zoom-like program.

In Cypress, its city attorney recently suggested a resident libeled the city by her Facebook post criticizing a recently signed city contract — which involved the hiring of a law firm with connections to council members — as "illegal."

(c)2022 The Whittier Daily News, Calif. Distributed by Tribune Content Agency, LLC.

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