Huntington Beach Complies With ACLU City Council Demand

Without admitting any violation of the Brown Act, the Huntington Beach City Council unanimously agreed to comply with a cease-and-desist letter issued by the American Civil Liberties Union (ACLU) last month.

The May 22 letter, signed by ACLU attorney Jonathan Markovitz, alleged that Mayor Pat Burns had prevented residents from speaking about aspects of the city’s library policies during the May 6 council meeting.

“These are matters that are clearly within the subject matter of the City Council, and there can be no question that they are matters of immense public interest,” Markovitz wrote. “None of the speakers that Mr. Burns silenced or warned was engaged in disruptive conduct as contemplated by Section 54957.95.”

The Brown Act requires that local legislative bodies maintain open and transparent governments, prevent secret meetings and allow for public access to government proceedings, according to the California Department of Justice.

Section 54957.95 of the Brown Act allows a presiding member of a legislative body to remove an individual from a meeting if they are disruptive after first warning the individual to cease the conduct in question.

A Veiled Threat of Legal Action

However, Markowitz claims in the 7-page letter that the speech was not disruptive and issued a veiled threat of legal action if the City did not respond to the cease and desist demand within 30 days.

“I hereby notify Mayor Burns and the City Council that the Mayor and the Council must immediately cease and desist from: 1) warning members of the public that they may not “make crude gestures” or use “foul language” when they provide public comment; 2) warning members of the public that they may not address individual councilmembers by name when they provide public comment; 3) silencing, muting, or ordering the removal of members of the public who “make crude gestures,” use “foul language,” or refer to individual councilmembers by name when they provide public comment; or 4) enforcing the portion of the Council’s “Meeting Decorum” rules that prohibits purportedly “abusive” language, “whistling, clapping, stomping of feet, repeated waving of arms” as inherently and automatically ‘disruptive,’” Markowitz wrote.

Huntington Beach’s new city attorney Mike Vigliotta, who was appointed to replace former firebrand city attorney Michael Gates, did not hesitate to comply.

Gates left the city attorney position in February to serve as Deputy Attorney General in the U.S. Department of Justice Civil Rights division. He had served as city attorney since 2014.

“I don’t think I have a different philosophy at all from Michael Gates, but I think we definitely approach things a little bit differently,” Vigliotta said in a telephone interview. “I probably approach things on a more subdued level.”

As the ACLU had requested, Vigliotta delivered a response within the 30 day timeframe and the city council voted to comply on June 17, which was just days before the June 22 deadline that the ACLU had set.

The ACLU’s Markowitz did not respond to requests for comment.

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“The issue should be over as far as we’re concerned,” Vigliotta told OrangeCountyLawyers.com. “We took the action required by the Brown Act, which essentially says that before you can sue a public entity over a Brown Act violation, you have to send cease and desist letter and then if the city or the public agency takes action and agrees to not do what you’re asking them not to do, then I believe they’re precluded from a lawsuit.”

Vigliotta formerly was the attorney for the city of Orange. He said he plans to campaign for election after he finishes serving Gates’ term.

“Huntington Beach is a bigger city,” Vigliotta added. “We have more events, more hotels, and miles and miles of beaches and harbors and protected wetlands than Orange.”

*Photos courtesy https://www.huntingtonbeachca.gov/