Tom Butt E-Forum: To Clap or Not to Clap


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blogimage.jpgRe-posted from Tom Butt E-Forum: At last night’s City Council meeting, the Open Forum began with 28 speakers, mostly construction trades representatives and other advocates urging a fair and speedy certification of the Draft EIR for the Chevron Modernization Project.  The chamber was packed, so much so that police officers had to ask some people to leave the room because the maximum occupancy limit had been exceeded, and the exit aisles were blocked.

So far, so good.

Then the speakers started up, allowed only one minute each because of the large number signed up. As has now become customary for Richmond City Council meetings, each speaker was followed by applause from the audience. Sometime, the applause spilled over into whoops and hollers.

We had a long agenda, including a major item dealing with a proposed minimum wage ordinance, and for the last few months we have not been able to complete our agenda, leaving items trailing not only to the next meeting, but sometimes for weeks.

Routine applause in city council meetings anywhere is the exception rather than the rule, but it has become an entrenched custom in Richmond. Although the applause for a single speaker doesn’t take much time, it adds up. It interrupts the flow of the meeting and increases the time required overall. I’m not sure it really adds anything.

In a point of order, I asked the mayor if she would try to persuade the audience to hold their applause so that we could get on with the meeting and try to finish the night’s business. Both my request and the mayor’s plea were met with voluminous boos, whoops and hollers that persisted until the mayor finally ordered the room to be cleared.

After the room was cleared, some members of the City Council moved to overturn the mayor’s order, and in a majority vote were ultimately successful. The audience was allowed to come back into the chamber, after which they observed relative decorum for the remainder of the meeting.

Of the event, Nat Bates later wrote:

It appears Mayor McLaughlin, Vice Mayor Beckles and Councilman Butt need a history lesson review in the US Constitution First amendment rights which is listed below

“Freedom of speech in the United States is protected by the First Amendment to the United States Constitution and by many state constitutions and state and federal laws.

Criticism of the government and advocacy of unpopular ideas that people may find distasteful or against public policy are almost always permitted. There are exceptions to these general protections, including the Miller test for obscenity, child pornography laws, speech that incites imminent lawless action, and regulation of commercial speech such as advertising.

Despite the exceptions, the legal protections of the First Amendment are some of the broadest of any industrialized nation, and remain a critical, and occasionally controversial, component of America”

What occurred last night was a travesty of justice and a clear violation of the First Amendment rights when the mayor ordered everyone to vacate the council chambers because they were applauding speakers after they had spoken. A standing room only group of labor union workers and several citizens applauded speakers in the “open Forum” agenda item after they indicated support for the Chevron Modernization project.

The mayor ordered the removal from the chambers included at least one senior citizen on walkers, several elderly and disabled, a few youth and many citizens who had absolutely nothing to do with the Chevron Modernization project. They were thrown into the city council lobby with few chairs while many had to stand while the council argued for in excess of 30 minutes trying to make a decision to overturn or support the mayor’s dictatorial position. Finally after a heated discussion, Council members Booze, Rogers, Myrick and I voted to overturn the mayor’s decision and to allow the audience back into the chambers.

What prompted this unusual demand by the mayor was crystal clear in that she and Beckles continues to be obsessed in their dislike and anger toward Chevron USA. With respect to the applause before the city council, almost every meeting we have individuals and groups applauding a recognition award, RPA speakers, Anti-RPA speakers, during recent Housing Authority special meeting, etc. without criticism from the mayor. In my opinion, Richmond California continues to be in the United States of America and we live in a democratic society and neither this mayor nor any mayor should have the arbitutary right to take away citizens freedom of speech. I do not care if the mayor garner seven votes; it still does not make it right.

Thanks to the common sense of a majority of the council, Rogers, Booze, Myrick and I, democracy was able to prevail. Guess what, once the mayor ruling was overturned, the meeting continued smoothly with the same level of applause and without any problems.

Nat Bates

First of all, Bates’ take on this was totally wrong. It was not about Chevron at all, it was about an overly demonstrative audience. Second, under the Brown Act, a council chamber can be emptied, as it has on at least one other occasion in 2013.

This is what the Brown Act says:

54957.9. In the event that any meeting is willfully interrupted by a group or groups of persons so as to render the orderly conduct of such meeting unfeasible and order cannot be restored by the removal of individuals who are willfully interrupting the meeting, the members of the legislative body conducting the meeting may order the meeting room cleared and continue in session. Only matters appearing on the agenda may be considered in such a session. Representatives of the press or other news media, except those participating in the disturbance, shall be allowed to attend any session held pursuant to this section. Nothing in this section shall prohibit the legislative body from establishing a procedure for readmitting an individual or individuals not responsible for willfully disturbing the orderly conduct of the meeting.

Both the Brown Act and the courts have supported the public’s right to broad discretion in what they say when they are speaking at the podium, but this discretion narrows considerably once they take their place back in the audience.

Decorum, like art, is in the eye of the beholder, and whether or not applause is disruptive is being debated in cities all over the US. What is pretty clear, however, is the right of a legislative body to set reasonable rules and enforce them. See below from Western Cities:

Court-Approved Rules of Decorum

A municipality need not reinvent the wheel when adopting rules of decorum for its meetings. Sixteen years ago, the Ninth Circuit Court of Appeals upheld the validity of the following ordinance in the landmark case of White v. City of Norwalk:

Each person who addresses the council shall not make personal, impertinent, slanderous or profane remarks to any member of the council, staff or general public. Any person who makes such remarks, or who utters loud, threatening, personal or abusive language, or engages in any other disorderly conduct which disrupts, disturbs or otherwise impedes the orderly conduct of any council meeting shall, at the discretion of the presiding officer or a majority of the council, be barred from further audience before the council during that meeting.8

Norwalk had construed the ordinance as allowing ejection only if a person’s speech actually disrupted, disturbed or otherwise impeded the meeting. Based on that narrow interpretation, the court ruled that the ordinance was not too vague or overbroad in scope.

Conclusion

A city council has considerable latitude to establish and enforce rules of decorum to control disruptive public speakers at open meetings. The cornerstones of enforceable rules of decorum are reasonableness and viewpoint neutrality — that is to say, the rules cannot favor either side. Even with rules of decorum in place, city council members must be prepared to tolerate coarsely phrased criticism of themselves and of the city’s policies, procedures, programs, services and employees.

Of course, no city council should ever be confronted with a situation where a person or group of people willfully interrupts a meeting such that orderly conduct of the meeting is unfeasible and order cannot be restored by their removal. Should that worst case scenario occur, however, the city council has Brown Act authority to “clear the room” and continue in session.13

This column is provided as general information, not as legal advice. The law is constantly evolving, and attorneys can and do disagree about what the law requires. Local agencies interested in determining how the law applies in a particular situation should consult their local agency attorneys.

[1] White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990) (citations omitted).

2 Cal. Govt. C. § 54954.3(a).

3 Id.

4 Id.

5 Id. § 54954.3(b). Cf. Kindt v. Santa Monica Rent Control Bd., 67 F.3d 266, 271 (9th Cir. 1995) (“The Board regulations restricting public commentary to three minutes per item at the end of each meeting are the kind of reasonable time, place and manner restrictions that preserve a board’s legitimate interest in conducting efficient, orderly meetings.”) (citations omitted).

6 Id. § 54954.3(c).

7 Id. § 36813.

8 White, supra note 1 at 1424 (quoting Norwalk Municipal Code § 2-1.1(b)(3)).

9 Baca v. Moreno Valley Unified School Dist., 936 F. Supp. 719 (C.D. Cal. 1996).

10 Leventhal v. Vista Unified School Dist., 973 F. Supp. 951 (S.D. Cal. 1997).

11 McMahon v. Albany Unified School Dist., 104 Cal. App. 4th 1275 (2002).

12 Id. at 1288.

13 Cal. Govt. Code §54957.9. Note that only agenda matters could be considered in such a session, and representatives of the press or other news media must be allowed to attend the session.

Also, see: http://www.rwglaw.com/pdf/BogaArticle.pdf and http://www.uclalawreview.org/?p=1151.

If you Google “clap,” “applaud” and “city council,” you will turn up hundreds of stories about city council that struggle with whether or not to allow routine applause. Following is a sampling:

Here is my take on it:

  • I have been on the City Council nearly 20 years, and routine applause is a relatively new phenomenon that to the best of my knowledge dates from the inception of the RPA and has now been embraced by everyone.
  • Routine applause serves no constructive purpose.
  • Applause is acceptable at presentations, and may play a useful role if someone asks all supporters or opponents of an issue to stand, but applauding every single speaker simply   prolongs meetings and provides no real information.
  • Unlike speech at the podium, applause is not a protected First Amendment right.
  • Routine applause is a slippery slope that often devolves into verbal expressions that feed on each other as well as contests between rival factions.
  • Most city councils do not allow or at least discourage it.
  • City council meetings are not talk shows, talent shows or game shows. They deserve a higher level of public decorum. They are serious business. You don’t see applause allowed in Congress, the state legislature, courtrooms and many other public hearing venues. It diminishes the importance and adds a level of frivolity to city council meetings that is inappropriate for the serious business that takes place there.

It is apparent that the City Council majority cherishes the tradition of routine applause. What is your opinion?

Re-posted from the Tom Butt E-Forum

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  • commented 2014-03-26 19:50:39 -0700
    Maybe if Butt discontinued his long winded, boring rhetoric because he cant get way ,throws down his usual child like antics and storms off and leaves the council chambers, maybe Council business could get done. Many people in the community have NO respect for him, he just needs to be put out to pasture once and for all. He really has NO business being a council member anymore!
  • commented 2014-03-20 21:07:25 -0700
    It’s unfortunate that the issue is one of “to clap or not to clap”. The real opportunity here is supporting a major project in the City of Richmond which provides economic development, a safer community through a safer modern refinery and jobs for local residents. I guess that silencing people seems to be bigger priority.
  • commented 2014-03-20 10:41:53 -0700
    If, as Councilman Butt claims, it is purely a time issue that was the reason for his outburst and request for a point of order, it begs the question as to why it was timed to coincide with the show of support for the EIR to be approved?
    If it is a time issue then Councilman Butt, Vice Mayor Beckles and the Mayor have, in the past, had more than ample opportunity to exercise their right to this point of order and to clear the chambers at previous council meetings.
    All it takes is a cursory glance at the video library of previous meetings to see that far worse outbursts by pro PRA audience members have gone unsanctioned by the mayor, and her cronies, not too mention the lack of sanction of council members who actively ‘disrupt’ these meetings.
    It further begs the question, was the hand-clapping ‘disrupting’ the meeting in any way and did the well mannered and polite actions of audience members, between speakers, disrupt the meeting in contradiction of the Brown Act?
    The audience was, in my opinion, so far from infringing on the list of transgressions in the above ‘Court-approved rules of Decorum’ that when Councilman Butt made his ridiculous and uncalled request for a point of order it was rightly met with jeers from the audience.

    What must NOT be forgotten in all of this are the three Council members who voted AGAINST allowing the audience back in the chambers namely, McLaughlin, Beckles and Butt.
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