ACLU of Santa Cruz County, CA

April 21, 2009 Dear Santa Cruz County Assistant District Attorney Walker, Please find attached a recording of the Scotts Valley City Council meeting of April 15, 2009. In particular I ask you to review the recording (at the time into the meeting of 1:00.47). In particular I ask you to evaluate this section regarding a violation of section 54954.3 of the California Brown Act by Scotts Valley Mayor Randy Johnson. During the public comment period regarding Title II, I was attempting to make the case that both the current Mayor Randy Johnson and previous Mayor Dene Bustichi should recuse themselves from the active discussion and from a possible vote because of a conflict of interest. It was during the making of this point that Mayor Johnson threatened police action if I continued with my comments. In the recording Major Johnson can clearly be heard as stating: "Believe me, we're not going there and if you wish to proceed we have an officer that can handle that." At the time that I was prohibited from continuing, I was making the point that both Dene Bustichi and Randy Johnson had a potential conflict of interest because each had received political contributions from a paid consultant to Title II (Mr. Vic Morani or Vic Marani and his wife collectively). Despite the fact that my points were germane to the discussion of Title II, Major Randy Johnson threatened to have an officer intervene if I continued with my comments. The effort of intimidation and refusal to allow comments, even comments that are critical of the Mayors is a clear violation of the California Brown Act of 2003. Quoting directly from the California Attorney General’s Office publication: Open MEETINGS FOR LOCAL LEGISLATIVE BODIES: "When a member of the public testifies before a legislative body, the body may not prohibit the individual from criticizing the policies, procedures, programs or services of the agency or the acts or omissions of the legislative body. (§ 54954.3(c).) This provision does not confer on members of the public any privilege or protection not otherwise provided by law. Public meetings of governmental bodies have been found to be limited public fora. As such, members of the public have broad constitutional rights to comment on any subject relating to the business of the governmental body. Any attempt to restrict the content of such speech must be narrowly tailored to effectuate a compelling state interest. Specifically, the courts found that policies that prohibited members of the public from criticizing school district employees were unconstitutional. (Leventhal v. 20 Vista Unified School Dist. (1997) 973 F.Supp. 951; Baca v. Moreno Valley Unified School Dist. (1996) 936 F.Supp. 719.) These decisions found that prohibiting critical comments was a form of viewpoint discrimination, and that such a prohibition promoted discussion artificially geared toward praising (and maintaining) the status quo, thereby foreclosing meaningful public dialogue. In 78 Ops.Cal.Atty.Gen. 224, 230 (1995), this office opined that the body could prohibit a speaker from making comments that were outside the body’s jurisdiction. However, when applying this opinion, the body must take into account the court’s broad decisions as discussed above." I am asking you to investigate this gross violation of the Brown Act which was specifically enacted to protect public right to comment and to insure transparency in our local government. I sincerely thank you for your attention to this matter. Respectfully, Paul Bach, Scotts Valley Responsible Local Development PAC www.rldpac.org 831-430-9655