Has Gail Eastman’s Threat to Smack Speakers to Anaheim Council for Incivility GONE MISSING?

Gail Eastman is preparing to throw the etiquette book at Anaheim City Council mwwting speakers — or IS she? Find out this afternoon!

“Hello?  Anaheim Police Department?  I’d like to file a Missing Policy Report.  Yes, I’ll hold.”

[The hold music is from Anaheim’s Gwen Stefani.  Nice touch!  Except that it’s “Hollaback Girl.”  Need to think through implications of that choice in the context of –]

“Missing Policy Department, Detective Charming.  When was your policy last seen and when did you see it?”

“I think that it was May 20, in the Orange County Register.”

“What page?”

“Page 1.  ‘Council Seeks Model Behavior,’ by Art Marroquin.  Gail Eastman says that ‘the better we can educate our citizens, the more productive meetings we’ll have.'”

“So this is an educational policy?”

“No, it’s a decorum policy.”

“A what?”

“Decorum.  Here, let me read from the article:  ‘The taunts reached a vociferous crescendo May 14, when the Anaheim City Council voted 4-1 to approve a $158 million tax break for the developer of two luxury hotels at the GardenWalk outdoor mall.  Several people shouted over the council’s length debate.  Others mimicked council members –“

“Just a second.  ‘Vociferous crescendo.’  OK, now people ‘mimicked’ council members?  Do you know if this was misdemeanor mimicry or felonious fun-of-making?”

“It doesn’t say.  Maybe you can tell me.  ‘One person pointed at each member, accusing them of not paying attention during the public comments portion that kicks off the meeting.'”

“Doesn’t sound like a felony.  But I don’t hear a policy there.”

“Well, a little bit above it says that during Council meetings, pamphlets will be distributed ‘reminding attendees that they may be asked to sit down or leave the room for using — and this is a quote — “personal, threatening, abusive, slanderous or profane remarks to any member of the Council, staff, or general public.”  Those refusing to leave the meeting peacefully or voluntarily may be removed by a police officer and face misdemeanor charges of disruption, according to the City Charter.'”

“OK, now that’s the policy.  And you say that it’s missing?”

“Yeah, so far as I can tell.”

“Why?”

“Well, there was this flyer drawn up that says that cites ‘rules of decorum’ in the Anaheim Municipal Code 1.12.017 with the above language, and it all says that it applies to remarks which ‘disrupt, disturb, or impede the orderly conduct of the council meeting.’  And it says that anyone making such remark or that impede orderly conduct ‘shall, at the discretion of the presiding officer or a majority of the Council, be barred from further addressing the Council during that meeting.'”

“Well, there’s your answer.  It’s not missing, it’s in the Municipal Code!”

“I don’t think that it’s that’s simple, Detective.  The May 28 Council Agenda came out, with a third of the page describing the process of public comments — and there’s no discussion of this policy at all!”

“Well, that may be slightly suspicious — but it doesn’t mean that foul play is involved.  Maybe the policy is just out for a while and will  just show up later if you wait.”

“My concern, officer, is that they may have changed their minds and decided not to pursue the policy.”

“You want them to implement the policy?”

“No, I just want to know if it is implemented.  You see, I plan to speak at the City Council meeting on May 28 and I may say some things that are ‘personal’ and ‘abusive’ about Council members and possibly staff.  I want to know if I might get in trouble.”

“Well, let me look at that list again.  Do you plan to say anything ‘slanderous’?”

“No, I know that I have no right to do that.”

“What about ‘threatening’?”

“Maybe.  Probably.  But only lawful threats.  Political consequences, everlasting shame, undermining of the democratic system — that sort of thing.”

“What about ‘profane’?”

“Not intentionally, but if they try to toss me out of the room I have no idea what words might come out of my mouth.”

“I can see why you’re concerned.  Let me point out, though, that the policy only applies if the remarks ‘disrupt, disturb, or impede the orderly conduct of the meeting.’  Doesn’t that protect you?”

“I’m really not sure.  It seems both vague and overbroad.   I’m sure that my comments would disrupt and disturb what they’d like the meeting to be — one where no one challenges them on being sellouts and petty tyrants at all.  But I don’t think that they have the right to squelch uncivil community comments.”

“So why not just speak your mind?”

“Well, this is called the ‘chilling effect’ on free speech.  Even though I think that they’re wrong — and even if they are wrong — the fear that they’re going to try to enforce their rule anyway may lead people not to exercise their right to free speech, because they don’t want trouble.  That’s bad for our democratic system.  In fact it’s illegal and unconstitutional.”

“But what does this have to do with a missing policy?”

“It’s like this, detective: if they want to enforce this policy, they should have to say so.  Gail Eastman blowing off steam in the Register is informal — no one can sue over that.  Once they say, officially, ‘this is what we’re going to do in Council meetings,’ then they can be sued so that they will have to stop.  But if one Council member releases the policy informally, without ever intending to enforce it because that would be unconstitutional, then they get the benefit of the “chilling effect” on speech without risking spending even more of the taxpayer money on lawsuits due to their misbehavior.”

“OK, but I’m still a little unclear.  You want to know now whether the policy is in effect — why, exactly?”

“So that they’ll have to put up or shut up!  A lot of speakers may want to put the Council on the hot seat at the meeting; it’s only fair that they know whether the policy is truly gone or whether they’re just hiding it until they whip it out and beat someone over the head with it.  I want to know whether they’ve realized that, within very broad bounds, it’s unenforceable — at least during public comments.”

“I’ll tell you what: let’s see if they pass out these supposed flyers at the Council Meeting along with the agenda again, along with implementing the new Speaker Card system.  If they do, then we’ll know that the policy isn’t missing.  If they don’t, then I’ll file your report.”

“OK, but by that point, I’m afraid that it may be too late.”

“What do you mean?”

“If people think that an unconstitutional and illegal ‘decorum policy’ is in place, they’re going to want to test it.”

“So you’re saying that, by implementing a policy like this, they’re inviting people to see how disruptive and disturbing they can get away with being?”

“Pretty perverse, isn’t it?”

“Yeah.  Hey, I notice that you haven’t even mentioned the Brown Act.”

“Well, I have to have something new to say for the meeting itself, don’t I?”

APPENDIX: ANAHEIM MUNICIPAL CODE, § 1.12.017:  “RULES OF DECORUM.”

.010     Rules of Decorum for Persons Addressing the Council.

.0101     Each person who addresses the City Council during any meeting of the City Council shall refrain from personal, threatening, abusive, slanderous or profane remarks to any member of the Council, staff or general public which remarks disrupt, disturb or impede the orderly conduct of the Council meeting. Any person who makes such disruptive remarks, or engages in any conduct which disrupts, disturbs or 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 addressing the Council during that meeting.

.0102     For purposes of this section, conduct which disrupts, disturbs or impedes the orderly conduct of the meeting shall include, but shall not be limited to: (a) continuing to speak after having been advised by the presiding officer that the time limit for such comments as set by the City Council or the presiding officer has expired, or (b) unduly repetitious comments as determined by the presiding officer, or (c) comments regarding any matter not within the subject matter jurisdiction of the City Council, or (d) comments which are irrelevant or otherwise not related to a specific agenda item for which public comments are then being received.

.020     Enforcement of Decorum. The rules of decorum set forth above shall be enforced in the following manner:

.0201     The presiding officer may request that a person who is breaching the rules of decorum set forth in subsection .010 above be orderly and otherwise comply with the applicable rule of decorum being breached. If, after receiving a warning from the presiding officer, a person persists in disrupting, disturbing or impeding the meeting, the presiding officer may order him or her to refrain from further speaking at such meeting. If such person fails or refuses to be and remain silent, the presiding officer may order such person to leave the meeting room. If such person does not remove himself or herself in an orderly and expeditious manner, the presiding officer may order any law enforcement officer on duty at the meeting to remove that person from the meeting room.

.0202     Any person who resists removal from the meeting room by any law enforcement officer shall be guilty of a misdemeanor. (Ord. 5830 § 1; October 15, 2002.)

Pay special attention to the section in red.  Just saying.