Darkness in the Afternoon: City Council Poised to Gut Sunshine Ordinance, Sharply Restrict Public Comments

At its meeting at 4:00pm next Tuesday, March 22, the City Council will consider a proposal by Mayor Farrah Khan and Councilmember Mike Carroll to drastically change Irvine’s Sunshine Ordinance. Agenda Item 5.1 proposes an ordinance that would shorten the time required for publication of Council and commission agendas by nearly 50%. It would also drastically change the current rules for public comments, limiting each resident to one comment of as little as 90 seconds per meeting, and would schedule all public comments near the beginning of the meeting. Additionally, it would impose content restrictions on public comments that raise questions of constitutionality under the First Amendment and legality under California’s Ralph M. Brown Act.

The Way it Is Now

  • Under the Sunshine Ordinance, the agenda must be published 12 days before a regular meeting. Thus, the agenda for the March 22 meeting was published Thursday, March 10.
  • A supplemental agenda may be published up to five days prior to the meeting. The supplemental agenda has been used often to add new items to the agenda and for staff to provide additional background materials.
  • Special meetings require publication of the agenda at least five days in advance.
  • Any member of the public may comment for up to three minutes during discussion of each agenda item, with limited exceptions.
  • Any member of the public may also comment for up to three minutes on matters not on the agenda. In recent years, the practice has been to hold the general public comment period at approximately 6:30 p.m.
  • There is no overall time limit for public comments. The comment period remains open until all wishing to speak have been heard, and every speaker gets up to three minutes, whether there are three speakers or thirty.

How Things Would Change

  • The current 12-day requirement for advance publication of regular meeting agendas would be slashed to seven days.
  • The agenda could be supplemented or amended up to three days before the meeting instead of the present five days.
  • For special meetings, the agenda could be published as little as 24 hours in advance (the bare minimum required by the Brown Act) instead of the current five days.
  • There would no longer be separate public comment periods for individual agenda items. Instead, there would be a single period for all public comments, regardless of their subject matter.
  • All public comments would be heard early in the meeting, after the Pledge of Allegiance, invocation and presentations, but before reports and announcements. This would likely occur around 4:30-5:00 p.m. at most Council meetings, while many residents are still at work or commuting from work.
  • Each person would have only one opportunity per meeting to speak, regardless of the number of agenda items the speaker wished to address.
  • The amount of time permitted each speaker would depend on the total number of speakers. The current three-minute limit would apply only if there were 20 or less speakers. If there were 21 to 30 speakers, the individual time limit would shrink to two minutes. If there were more than 30 speakers, each individual would get only 90 seconds.
  • Thus, the total time for all public comments on all issues would be no more than 40 to 60 minutes at most meetings. However, the Mayor and the Council would have discretion to expand or reduce time limits on public comments.
  • Exception: There would still be separate public comments for items designated on the agenda as public hearings.
  • The Municipal Code would be amended to ban commenters from making “personal, impertinent, slanderous or profane remarks to any member of the City Council, staff or general public.” Anyone deemed to have violated this provision could be barred from further addressing the Council at the meeting, and under some circumstances, ejected.

Why It Should Matter to You

Notice and an opportunity to be heard are hallmarks of due process and are fundamental to participatory democracy. Thus, the Ralph M. Brown Act declares:

“The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.” Gov’t Code § 54950.

In the fall of 2018, the Irvine City Council enacted the Sunshine Ordinance, setting higher standards for Irvine than the minimums required by the Brown Act. Molly McLaughlin, who was then City Clerk, explained the reasons for the Sunshine Ordinance as follows:

“California’s open meeting law, the Brown Act, requires an agenda be posted 72 hours in advance of a regular meeting. … However, the Irvine Sunshine Ordinance … would expand the agenda review time to 12 days, along with several elements that include staff reports and supplemental information that are part of the decision-making process. While there are exceptions, a 12-day window provides every community member the logistical and timely opportunity to thoroughly review agenda items. The chances for all interested parties grow exponentially for pre-meeting discussions, sharing of information, and asking of questions. The pulse of an entire community can be felt across 12 days.”  (Emphasis added.)

Molly McLaughlin’s words are as true today as they were in October 2018. What has changed is the composition of the Council. The 2018 Council valued transparency and public participation; the 2022 Council, not so much. The City Manager’s memorandum explaining the proposed changes is couched in terms of efficiency and clarity. While it claims that they would “continue to allow robust opportunities for public review of agenda materials and participation in City Council meetings,” the indisputable truth is that the changes would deliberately and drastically reduce such opportunities.

The changes proposed in Item 5.1, in short, would greatly diminish both your ability to be timely informed of what your city government is up to and your opportunity to effectively make your voice heard.

What You Can Do

  • Email the Mayor and Councilmembers at irvinecitycouncil@cityofirvine.org
  • Attend the March 22 Council meeting and make a public comment, either in person or via Zoom. Instructions can be found here.  If you can’t participate in the meeting, submit an e-comment before the meeting here.
  • Get the word out. Share this article with your friends and neighbors.

Further Information