Issue #11 
10/22/2001


                                              
Nevada City Still in the Twilight Zone

by

Ellen del Valle

 

City Attorney Jim Anderson and District Attorney Michael Ferguson recently attempted to persuade Nevada City to pass legislation limiting the public's First Amendment right to free speech. Of course, they didn't come right out and present it quite that way. They attempted to convince the city council that, while free speech is already a well protected right, the practical application of free speech--that is, actually letting people do it--is so transcendentally confounding that Nevada City should adopt its own special law on the subject. This way, if anyone again becomes confused as to whether or not a citizen has the right to think negatively of a city official and then say so out loud, there will be a formal document on file addressing the matter which can be referenced at a moment's notice. Mr. Anderson and Mr. Ferguson have spoken of the Brown Act, a state law protecting various aspects of civic participation, as though it were the most incomprehensible jargon ever devised to confound legal scholars. Accordingly, they have twice placed on the city council's agenda their request that Nevada City adopt a resolution which would effectively replace state and federal free speech laws with a unique new rule they drafted themselves. That resolution, which they repeatedly stated was designed to "clarify" free speech law, would instead have given the chairperson or mayor the right to prohibit any public comment they might wish to by finding it "disruptive" by a vote of the governing body. The resolution proposed by Mr. Ferguson and Mr. Anderson reads in its entirety as follows: The public can comment at public meetings of the City Council, Planning Commission and other noticed hearings and may criticize the policies, procedures, programs and services of the City and the acts or omissions of the City Council, Planning Commission, employees and contractors of the City as long as such criticism is not disruptive. If the Chairperson believes that such criticism is causing a disruption of the meeting, the Chairperson shall inform the person speaking to rephrase the form of his or her remarks so as not to disrupt the meeting. If the speaker continues to disrupt the meeting he or she may be refused further comment or removed from the meeting, upon a majority vote of the members present, if necessary to restore order in the meeting. Ordinarily, this year's "Nevada City vs. the Brown Act" shenanigans would seem downright amusing, and it would be easy to convey some of its innate absurdity. For example, there is something ironic to say the least in Mr. Ferguson confirming that Mr. Anderson did violate a citizen's free speech rights and then requesting Mr. Anderson himself to draft a resolution advising the city on how to prohibit such occurrences in the future. A rueful twist might be given to the fact that, after receiving a complaint about Nevada City's Brown Act violations, Mr. Ferguson allowed the 60 day statute of limitations to pass before presenting this ludicrous redress, thereby preventing any citizen from further pursuit of the matter. Nevada City politics are at times laughably transparent. These are, however, suddenly unfunny times. American flags fly everywhere, like a flood of get well messages to a nation fallen ill, and we begin to feel the vulnerability of our most fundamental freedoms. A global emergency rages, and one suddenly grows weary of the small-mindedness of very small towns. Mercifully, the City Council of Nevada City unanimously rejected this resolution at both meetings where it was presented. It's hard to understand, though, why we should further tolerate the failure of Mr. Anderson to properly serve Nevada City. In their joint effort to create more legal loopholes with which to strangle a vocal public, he and Mr. Ferguson appear beholden to some other cause entirely. Brown Act violations are not new in Nevada City. Ten years ago, the Union published a statement by Mr. Anderson to the effect that he was "unfamiliar" with the Brown Act. As absurd a statement as that is for a governmental lawyer to make, it's now ten years later and he continues to offer this same excuse for a wide variety of city errors. It has fallen to the citizens themselves to research law and present it to our governing bodies, while Mr. Anderson backpedals and makes excuses on the sidelines. In this present year alone there have been numerous allegations of wrongdoing by the city in which the city attorney was apparently actively involved, either by error or omission. Though Mr. Ferguson acknowledges only the one incident which was recorded on videotape, at least three Brown Act violations were committed by planning commissioner Ruth Poulter. The city violated the California Public Records Act by attempting to keep citizens from copying public records. When that didn't work, i.e., when citizens presented the city with the law on the subject, free access was again permitted, but a huge amount of documents pertaining to controversial development disappeared. City Planner Paul Cogley, whose employment application to Nevada City states he is an expert on the California Environmental Quality Act, has violated CEQA many times through his incorrect insistence that all residential property is exempt from review under this act. There is inadequate public noticing of meetings. Written minutes of public meetings often differ significantly from the taped records. Procedural violations are approved time after time by the city attorney, creating confusion, delays, reversals of decisions and leaving the city wide open to further litigation. And on it goes. In lieu of the resolution proposed by Mr. Anderson and Mr. Ferguson, Councilman Steve Cottrell persuaded the city council to adopt a simple statement which will grace every city agenda henceforward. It is to read as follows: "All citizens will be afforded the opportunity to speak, consistent within their constitutional rights." Mr. Cottrell proposed this powerful spotlight on the obvious, but he has repeatedly stated he will never remove his personal appointee, Ruth Poulter, from the planning commission. During the October 8 council meeting, Mr. Cottrell sought to create the impression in the public that Ms. Poulter had not, in fact, committed violations of the Brown Act by asking the District Attorney to confirm that "no one had in fact been found guilty of any crime." To this phrasing Mr. Ferguson agreed, clearly aware that he was walking a thin semantic line. No city official could have been found guilty of committing a "Brown Act crime," because the Brown Act is a purely civil, not criminal, law. Mr. Ferguson has put in writing, however, his finding that Ms. Poulter and Mr. Anderson did indeed violate a citizen's free speech rights, and was less than forthcoming by not stating so outright. Clearly, it is time for Nevada City to seek new leadership. More growth is certainly coming. We still have time to choose thoughtfully designed growth over the back-door, big-development deals that are being thrown at the citizenry. If these developments are so good for this town, if they so adequately and compassionately address the real needs of this area, why does the city consistently conduct business as if it has something to hide? It is the job of the city attorney to properly advise city officials of the law, not to circumvent, overlook or personally rewrite it for the benefit of a few developers. And, to quote a broadcast I heard recently on our local radio station, it is the job of every citizen to keep an open mouth.