May 12, 2011 City Council Meeting Agenda Excerpt
At the end of the April City Council meeting, City Attorney Sandi Levin asked that everyone leave the room immediately and that all recorders and cameras be turned off. She said California is a two party state and any recording needs to be agreed to by both parties.
This was to be the new policy for all future Council meetings.
The time after meeting adjournment has customarily been used as an opportunity for residents or members of the press to ask Council or staff members questions, not only in La Habra Heights, but across the country.
Leila Knox of the Law Firm Holme Roberts & Owen LLP was contacted through the First Amendment Coalition about the new Policy and cited California Penal Code 632(c) which says:
A "confidential communication" is defined as "any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded."
Ms. Knox added, "However, in the situation you describe, it seems that, even after the meeting has adjourned, anybody remaining in the council chambers could consider themselves at a "public gathering," and therefore communications made in this setting would be excluded from the definition of "confidential communication" under the statute. Even if post-meeting activities are not a "public gatherings," it would seem that under the circumstances, anyone who chooses to hang around council chambers after the meeting is adjourned could easily observe the recording equipment (which they were probably aware of during the meeting itself). Therefore, individuals remaining in city council chambers are arguably reasonably aware that any conversation that may be held could potentially be recorded. "
Indeed, the City provides a live webcast of City Council meetings, after the adjournment of which the City has broadcast "open mike", allowing anyone in the world to listen in on, and potentially record, conversations occuring in the Council Chambers for up to one half hour after the adjournment.
Ms. Knox addressed the exclusion of the public saying, "Furthermore, it does not seem that the city can require members of the public to leave council chambers upon adjournment while other staff and/or city council members are permitted to remain. Although the paragraph at the end of the agenda you provided does not explicitly state who is permitted to remain in council chambers upon adjournment, the fact that it states that "members of the public" are asked to leave the room, and that "conversations that take place from this point forward may be private" would indicate that city council members and/or staff members are allowed to stay. Any post-meeting discussions between a majority of the members of the city council may technically constitute a "meeting" under the Brown Act (California's open meeting law), and thus would be required to be properly noticed and open to the public (unless there is some justification for a closed session, which still requires that certain agenda and notice requirements be met). The Brown Act provides that: "All meetings of the legislative body of a local agency shall be open and public, . . . ." Gov. Code § 54953. The Brown Act defines a "meeting" as "a congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains." Gov't Code § 549523.2(a).
Even if there are no post-meeting meetings that may violate the Brown Act, it would still seem that members of the public should be entitled to remain until the room is officially shut down to all for the night. "
Removing all residents, press, and recording equipment from the room, but leaving City Council and Staff members allows the opportunity for discussions and direction that should be open to the Public and raises the question, what is the City trying to hide from residents and the press?
The City was asked to comment on the purpose of asking the public to leave, cessation of recording, authority to do so, and what other cities use this procedure, but no response was received by posting time. Should the City respond, the story will be updated.
|December 27, 2010 - City Posts armed Deputy so residents and press can not get close enough to hear proceeding.||February 17 - Park & Rec Chair Vipperman says she was sitting in her car because she didn't want to hear Public Comments||April 4, 2011 - City Cameraman Joe Geissinger turning camera off during Public Comments at direction of Parks & Rec Chair Karen Vipperman.||April 7, 2011 - Councilmember Vipperman summoning his henchmen to block a camera at Parks & Rec Meeting
See Video of henchmen !! Viewer Warning !! - A Vipperman associate uses foul language. Do not view if you don't want to hear it.