At the Nevada City Council meeting, full attendance approved the Sept. 24 minutes, accepted a donated 1880 hydraulic mining gate valve, and heard department reports on post‑9/11 events, security, meeting recordings, emergency preparedness, and a disaster‑relief fundraiser. The council debated Brown Act training and advanced Resolution 2001‑23 to formalize the public’s right to comment, amid background references to prior incidents, AG guidance, and Baca v. Moreno, while considering a controversial 14‑word amendment about ensuring speech rights. The discussion treated Brown Act violations as civil matters and stressed re-posting/re-agendizing if mishandled. The meeting also approved unrelated public‑works actions under Resolution 2001‑24 (Spring Street sewer work and railroad‑museum road/sidewalk funding), with all votes in favor, and adjourned.

Full Transcript of the Video:

Session of the Nevada City Council meeting for Tuesday, October 9th 2001.

Let the record reflect that all council members are present.

Council people, staff, would you like to join us for the Pledge to the Flag?
I pledge allegiance to the flag of the United States of America and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all.

Thank you.

For those of you who missed it, we earlier this evening dedicated the 1880 hydraulic gold mining gate valve in Kalinan Park that was generously donated to the city by Ken and Sharon Brady from the Yubet Diggins.

And Mr.
Brady's father operated the monitor which is also in Kalinan Park that was attached to the gate valve for many years through 1935.

Though once again, council would like to express sincere thanks to the Brady family for their kind donation.

We have before us the minutes from the September 24th meeting.

Any questions, comments or corrections?
Move for adoption.

Second.

Okay, it's been moved and seconded that we adopt them as presented.

Any further discussion?
All those in favor?
Aye.

Opposed?
Motion carries.

Department reports.

Administration.

I just wanted to take two or three minutes and give a verbal report of the city manager's conference that I attended in Salt Lake.

It was September 22 through the 26th.

It was the first major conference that occurred after the September 11th situation in New York and at the Pentagon.

There was 3,117 at the conference.

The city manager's represented from 21 other nations.

The opening, the major opening session took place at the Mormon Tavern Ackel.

Certainly I had never, frankly, I drove from Reno to Salt Lake.

I think many people probably chose to drive, but that was an option, which at any rate, there was a lot of security.

I think perhaps because at the Tavern Ackel, because the governor of Utah also spoke.

It was about a two-hour session.

It's having never been in Salt Lake other than at the airport, has changed airplanes going somewhere.

If one hasn't been to the Tavern Ackel, it's simply awesome.

The Oregon, I'll just make a few comments here.

The Oregon has 11,623 pipes.

The choir is 325 members.

It's the oldest building of the buildings in Salt Lake that are owned by the Mormons.

It was built between 1863 and 1867.

The president, Gordon Hinkley, of the Church of Jesus Christ of the Latter-Day Saints, he's 91, sharp as attack.

He delivered about a 25-minute talk in addition to the governor and etc.

All events at the city manager's meetings are both audio taped and videotaped.

They videotaped this, but so far you cannot buy the videotape of it because of copyrights that the choir has on it.

I could say that it was an event that was just awesome to be there, very patriotic, very just a very.

.

.

It was hard to listen to all of the songs, the presentations, etc.

, and not have a little tear in your eye.

It was just an awesome thing.

They did change the agenda somewhat through the event.

They brought in a gentleman.

I never heard of the gentleman before, but he is the head of management emergency preparedness for the city of Los Angeles.

A gentleman by the name of Alice Stanley.

His presentation followed immediately behind the opening session on the Sunday.

His credentials were he's done security for playlist two Super Bowls, one Republican National Convention, three Democratic National Conventions, and a number of other large gatherings throughout the country.

It was excellent, very friendly.

People were extremely friendly.

Wherever you went, business was certainly down.

As we drove through the state of Nevada, flags were on.

.

.

I went off the freeway for each of the communities.

Flags were up on the city streets, be it Elko or be it Wendover or whichever communities, and certainly in Salt Lake the flags were just simply everywhere.

They do.

The convention is big enough, and I haven't indicated this before, but they have a daily newspaper for the event and report each day on the proceedings that happened the day before.

I attended a lot of sessions, and I just felt very lucky to be there at that moment in time.

Thank you, Earl.

Glad we got our money's worth out of it.

Okay.

See, the Chief is not here, so we'll move on to Council Committee Reports.

I just have one briefly that I received a letter of interest from a resident of Nevada City expressing his desire to serve on the Finance Committee.

So, Mr.
George Foster is now a member of the Finance Committee and will be meeting with us with the exception of Meet and Confer.

So, thank him very.

.

.

I thank Mr.
Foster very much for his interest and dedication of time.

I have one brief report, and I thank you for appointing Mr.
Foster.

I think that's a trend I'd like to see.

.

.

hope to see it continue.

I'll be very brief, which is great news to the District Attorney.

I'm at the tail end of a hacking cough, so I'll be speaking very little tonight, Mike.

As you may recall, at the last meeting, we set up a very, very quickly.

.

.

we set up a Park Committee meeting for last Tuesday, and David had a family emergency.

He had to tend to, and when we set it up that night, I was unaware the Police Chief was going to be out of town.

So, we had a fairly brief committee meeting of about 15 minutes in the hallway, and we will.

.

.

now the Chief is back, we will reconvene again as the Park Committee very soon and have a report to make at that time.

We did have a private citizen show up that morning, and she gave some very good input, and would anticipate that she would return when we rescheduled.

Thank you, Steve.

Hearing from the public, comments on items not on the agenda are welcome at this time.

However, action or discussion by the Council may not occur at this time.

Comments are limited to three minutes.

Is there anyone in the audience that would like to address the Council on an item not on this evening's agenda?
I would like to just take a real brief moment to.

.

.

just to thank the schoolchildren of Nevada City, there was a small article in the paper recently, that between the three schools, Nevada City Elementary, Deer Creek Elementary, and the Seven Hills Middle School, their combined efforts raised $10,500 for disaster relief for the New York, Washington DC, and Pennsylvania.

The children of Deer Creek Elementary in four days raised $4,650, which I just think is phenomenal, which they presented to their Red Cross representative.

They had a nice ceremony out on their playing field with the whole school attended, and I presented them with a proclamation declaring September 26th as Deer Creek Student Appreciation Day in Nevada City.

And it just really makes me feel good that the young people of our community are so.

.

.

got so motivated and so behind this, to raise that kind of money in such a short period of time, I think they're definitely a tribute to our town.

Okay, at this time we'll close the public hearing.

Correspondence.

We have a letter from the Mayor of Penzance, Michael Cotton, dated September 19th to the Mayor and City Councilors, offering their deepest sympathy following the terrible events which occurred in America last week.

And he also says through our special friendship that you and the citizens of Nevada City will continue to be in their thoughts and prayers over the coming weeks and months.

And that's all.

Very nice.

Thank them for that kind thoughts.

Old Business, the Brown Act Workshop, a report backed by the City Manager on costs.

I did contact two individuals, Brian Bishop and Jim Curtis.

Brian had also, way back, had given a presentation on the Brown Act.

However, Jim is the one who, I'll give the report as to what his suggestions were.

He said he would offer it at no cost to the city.

And he said he had recently given a similar presentation, so he felt he was pretty well up on it.

It's said that it would probably, in his opinion, depending, it'd take him about 45 minutes to make the presentation as he would understand how to go over the issues that he thinks would be logical for him to present.

And then as a matter of how many questions, et cetera, he said he would assume that a two-hour time frame would be adequate to go through it.

And for what it's worth, he did, in our discussions, discuss the fact that there are five Mondays in this month, and should the council want, he would be available on the 29th.

Or any other date that the council, if they want, would like him that doesn't conflict with his schedule.

But since we meet on Mondays, I asked him about Mondays.

He understood it.

It was in the context of, although we haven't resolved anything, I understand, but it was in the context of a request for me that it would be a joint meeting of both the council and the commission.

Yeah.

Okay.

Well, any comments?
Suggestions, comments?
I suggest we take him up at his offer.

At our last council meeting, we discussed this.

It was brought up that it might be a good time to also maybe talk about, because we do deal with conflict resolution things that we -- Conflict of interest.

Conflict of interest, yes, right.

Yeah.

Well, again, the only hesitation that I have on this is that it seems to me that in 45 minutes, it's going to be painting with a very, very broad brush.

And I'm not certain how much -- I mean, it's going to be very, very much a highlights of the Brown Act, I would think.

You're not going to be able to get into the details of that.

That seems to be what everybody that has spoken previously have been after.

So that's my only hesitation is I've attended the California League of Cities conferences, and they always have a Brown Act workshop, which are run between 60 and 90 minutes.

And they are very, very general.

They just kind of skim over the whole concept of the Brown Act.

So that was my only concern is that we're going to have a joint meeting, and yet it's not going to be as detail-oriented as some people might want it to be.

Well, according to what I heard the city managers just say was that Jim anticipated a 45-minute presentation and a two-hour meeting.

That's an hour and 15 minutes for as many detailed questions as you'd like to throw at him, Kerry.

I'd say that's a pretty good specific discussion, an hour to get 45-minute overview and an hour and 15 minutes of questions and answers by the council, the commission, staff, and the public.

Is this time for public comment, Mr.
Mayor?
Thank you very much.

J.

Lon Cooper, 524 East Broad Street, Nevada City.

I know Mr.
Curtis.

He is the Sierra County Council.

He was previously the Nevada County Council.

He's a very competent attorney and very competent county council.

It's great that he would do this at no cost.

I agree with the mayor as far as 45 minutes for a presentation.

It might require a little bit more than that, I think, to adequately cover even the basics of the Brown Act.

There may be some in the community who, I think it's been expressed before, would like to ensure that perhaps an outsider, he is a Sierra County Council, but he has been certainly part of the local government structure or the legal system here.

Some have suggested that it might be better to inquire further as to an outside person from outside this county to conduct such a workshop.

So rather than rushing into it's a great offer, it's a generous offer, I have a lot of respect for Mr.
Curtis, but let's not take the first offer that comes along here.

Perhaps we might inquire further as to someone who is truly outside of our local community and see if a similar presentation could be made by someone who has not been part of this community.

Thank you.

Well, I have been playing telephone tag with Mr.
Gabler at the county, the CAO, on the possibility of the county putting on a Brown Act workshop.

There are a lot of agencies that function under the Brown Act, whether it's the school boards or the conservation districts or fire districts or so on and so forth.

And I'm sure that they've had a change of personnel over the past few years and might be able to benefit from something of that nature.

But I was envisioning more of an extensive, maybe three quarters of a day type of thing with lunch, and that way the costs, should there be costs, could be divided amongst all the agencies that participated.

And I think that would give us, if we want to really learn the ins and outs of the Brown Act, I think that would be a much better venue than the one that is currently being suggested.

But I've not actually spoken with Mr.
Gabler on the subject as far as in person, so I'm still waiting to hear back on that.

My comment on that carried me that I think that we need to do it ourselves because I think it's important that the ten decision makers sit at the table at one time and have that opportunity for free and open exchange with whoever the facilitator is.

And that by, in fact I attended the last one at the county, Jim Curtis conducted it by the way, and so did the city manager.

And it took a couple hours, three hours, maybe it was a stand up, sit down, break in the middle, two and a half, three hours.

But there were 75, 80 people there.

We've often been criticized as a council and as a commission for perhaps being on the edge of being dysfunctional.

And so I think it would be important that we conduct our own workshop so that the ten of us begin to work a little bit better as a team, each of us understanding the parameters of the law, and I think it would be a big step forward to do it as a county workshop, which the way it was done last time with fire agencies and all kinds of people there, it would not be a meeting.

And I have a hunch I could almost circle the names of the ten people who wouldn't even bother going.

So I think that if we are to do this, we need to do it right, we need to do it as a team, and we need to be together in this room one time, one place, so that all of us have a little better understanding of the law that we're sworn to uphold, and that we all know it at one time, at one place as a team.

Well, as far as your reference to how we've been accused, as I've been on this council for a year and a half, the main accuser seems to be our local newspaper, and I know you would have to agree with me, Steve, that this is the most public-friendly council of probably any council in this county.

I mean, we just had something in May, in June, where we had three nights that we made available to the public, to the developer, to the staff, for three hours a night.

I have not myself seen where we're real strict on the three minutes at the mic and lets us pack towels, and we have a limited amount of time, or a lot of on our agenda.

So just because the local newspaper accuses us of not abiding by the Brown Act, that doesn't make it so, and I would refute that wholeheartedly.

Have violations been made at times?
Well, this came back from this instance in May, that yeah, perhaps a violation was made by the planning commissioner and our city attorney.

We've had the people that were violated come here and say they didn't feel that they didn't feel we need to do this.

But, you know, and yet there are people who have said, from the public, they said, gee, I would like to have this.

You know, it's, you and I have been both working with the Brown Act for a long time.

Before I came on this, I was on lots of nonprofit boards where I had to know the Brown Act because I was working with the public.

And I stay up to date on the newest publications on the Brown Act that come out by the state, down at the California League of Cities.

So I'm not sure what we would all sit around and talk about because I don't have myself any major questions.

I pretty much know if you're denying the public to speak and that are within the rules of their right to speak, that's an obvious violation.

And that, to me, stands up like, you know, Brown Act 101.

Well, as I commented at the last meeting, the public's ability to speak is but one part of a comprehensive act.

It's just but one part.

That's the part that's been run up the red flag.

And that's just but one part.

Let me, if I could, first of all, I am not influenced by the union, as we all will know, and Jim will know, this is the third time in six years I've been asking to do this.

So I'm certainly not influenced by a union editorial.

Nor do I happen to agree with some of the specifics of the editorial.

Let me ask this question of Carrie and Dave since you've indicated that maybe you don't think this is the way to do it.

Let me ask you this question.

What is the downside of a joint meeting workshop?
What is the downside?
I guess the downside is what I mean, first of all, we've already been told by planning commissioners that they themselves didn't feel this was necessary.

So we're going to get 10 of us in the room here.

And is it going to be finger pointing?
Is it going to be grandstanding or see, I told you I'm right and you're wrong.

I mean, you know, when you if I thought that people are going to get something really good out of this, I don't have any questions.

I'd go to this and I don't have any questions for this.

You go to this?
I go to this and I go to the Brown Act, the actual documentation.

Are you aware of a federal court decision six years ago that voided the attorney general's opinion on a key phrase within that book?
And if you're not, we need a workshop.

And what was that key phrase we're referring to?
Relative to the public's ability to speak freely at meetings.

Are you aware of that federal court decision of six years ago?
No, I'm not.

But you could tell me now and I know it.

Well, we need a workshop.

Well, as far as I know, the only planning commissioner who said he didn't want to attend is yours.

No, he was passing the word forward for others, too.

I have not heard that from my commission.

Okay.

Well, I'll speak for your commissioner.

I don't see the harm in having a workshop.

There's a conflict on the table.

The public is concerned that we're perhaps not obeying the Brown Act.

The workshop's been offered.

It's been encapsulated in a brief and perhaps overview summary.

I, for one, do not intend to become an attorney on the Brown Act and a brief overview I'm sure I could benefit from.

And if there's enough concern in the public's opinion that perhaps we're not operating fully with knowledge or under it, then I don't see any harm in having a workshop, even though perhaps it's abbreviated and truncated, perhaps not as in-depth as it could be.

I don't have any problem attending a couple of hours' meeting to get brushed up on it, brought up to speed.

I think we handle ourselves pretty well.

Am I an expert on it?
No.

Have I read it recently?
No.

But I feel that we handle our citizens pretty well, and in most cases give everybody a chance to speak.

Cathy brought up the conflict of interest statements that we fill out every year, and do we know exactly if we're filling them out properly?
No, I don't.

I follow the instructions, and I think I'm doing it right.

I wouldn't mind having a little more information about it, and I don't -- it's not going to be an end-all, cure-all kind of a meeting, but I think the public wants to see it happen, and if there's something to be learned from it, I can spend the two hours.

And I think part of what Cathy was indicating, a conflict of interest, is not just the form.

I believe she was wanting clarification of when is there a conflict of interest?
In general.

When should a public official step down with a conflict of interest?
So I think that was part of her thrust.

I think all of that could be valuable information.

Tom, you got any thoughts?
Would you like perhaps to get this off dead centers to entertain a motion?
Certainly.

With all due respect, Mr.
Cooper, I have a tentative workshop with Jim.

I think Jim Curtis not only is impartial to this council and this city, I think he is, if anything, is one of the most conservative interpreters of the Brown Act that I'm aware of.

I think he would be a great service to the community.

I would move that there be a joint meeting of the City Council and the Planning Commission at 7 o'clock in this room on September 31st, the fifth Monday of this month, for the purposes of a-- It's October 29th.

Oh, October-- I'm sorry.

October 29th, fifth Monday of this month, for the purposes of a workshop on the Brown Act facilitated by Mr.
Jim Curtis.

Second.

The committee has been moved and seconded.

Is there any further discussion?
Roll call.

Will we-- so are we going to clarify that this is going to be for both the Brown Act and the conflict of interest?
And the conflict of interest, yeah.

And as we would ask-- And do you promise to ask that question you ask me?
Handle that portion as well.

Well, I think-- It'll be answered later.

I'm going to say that I specifically discussed that portion.

I'm telling him what the issues were, so I'm going to say that I believe he will be able to handle that.

The conflict of interest, yes.

[ [ [ ]] Carrie, my only problem is that I am attending a LAFCO conference starting Tuesday, and I had to negotiate schedules around, and I will try to further negotiate to be here on that night, but I can't be positive.

But I will support it.

I just can't guarantee for this moment.

Well-- That's a huge step forward.

I appreciate the support.

I'm ready to vote before you change your mind.

[laughter] Yes, that's right.

Since it doesn't have to be there.

Well, I don't know.

I just feel that are we-- are we having this joint session because it will be truly beneficial to us or because we're worried about the public's pressure?
We're worried about the public's perception that we're not doing things right, even though I think in most people's minds we are doing things right.

So I don't agree with the reasoning behind it, but whatever.

We'll roll call, please.

Councilman Hake?
Yes.

Call?
Yes.

Dyer?
Yes.

Patrell?
Yes.

Mayor Arnett?
Yes.

Five days.

We're finally going to do it.

There's your belated birthday present.

There you go.

Okay, new business.

Resolution 2001-23 regarding the public's right to comment.

Jim, you want to take a lead on this, please?
Yes.

You'll recall this was at our last meeting, and essentially what this resolution would do would put into writing what is basically the law which would allow citizens to come in and do what they want to do.

It would allow citizens to criticize the city and its employees as long as they don't disrupt the meeting.

If the mayor or the chairperson feels the person is disrupting the meeting, the mayor or chairperson would ask that person to rephrase their comments.

If they continue, the chairperson could then request a roll call vote, and if two-thirds of the people felt the person was disrupting the meeting, that person could be removed.

And essentially, you've seen the letters from Mike Ferguson, the district attorney, and he's requested this.

I agree with it.

I think it's a good idea to have it on file.

10 years from now, maybe none of us will be here, but the resolution will still be here, and if there is a concern, people will know how to deal with it rather than have to try to field it on the fly, so to speak.

So I think it's a good idea how the district attorney is here.

I know he wants to make a few comments, so I think that's what we should hear from him and then decide what to do.

Thank you.

Mr.
Ferguson?
Mike Ferguson, Nevada County District Attorney.

Good evening.

What precipitated this was an incident that occurred at a city planning commission on May 10th, where an individual named Mr.
Pemberton wanted to speak on an issue involving the low-cost housing project that was being proposed out, I believe, on West Broad.

And in the course of making his comments, he wanted to address what he believed was the maybe bias or lack of objectivity of a city employee that was involved in the planning process.

As a matter of fact, some of his comments might be characterized as being caustic, vehement, and arguably slanderous.

He was not allowed to make these comments.

The decision of the person presiding at the meeting was concurred in by Mr.
Anderson.

As a result of this, I did receive a Brown Act complaint and looked into it.

And when I initially looked into it, one of the first things I went to was a 1994 guide put out by the Attorney General's office.

And when you look at this guide, it supports the actions of Mr.
Anderson and Chairman Poulter, because arguably, according to the AG's office at that time, the Brown Act would not allow slanderous comments or caustic comments or maybe even critical comments of employees.

However, and this is a big however, in 1996, that opinion was trumped by a federal district court decision called Baca versus Moreno School District.

In that case, a school district had rules that prohibited criticism of school district employees and prohibited the criticism at open meetings during the public comment session.

Various plaintiffs sued and they won in the district court on free speech issues.

One of the arguments that the defendants asserted was, "Hey, don't we have a right to prohibit slander and libel?"
And the court said, "No.

Slander and libel is something that in a way is recognized under the First Amendment.

Because something may be slanderous or libelous, you cannot censor the speech.

Censored may be other remedies that the party, libel or slander, may be able to take, but you cannot censor the speech.

"
And the court commented on the fact that, "Hey, the First Amendment protects speech that is caustic, vehement, that might be offensive.

And the First Amendment has nothing to do with the merits of the speech.

"
And after reading the Baca opinion more than once, I concluded that, yes, we did have a Brown Act violation based on Baca because the comments would have been relative to the process.

Regardless of the merits, they were relevant.

I took action by writing to Mr.
Anderson and giving him the facts that I was aware of and asking for his response and sharing him the law.

And he and I came to an agreement that this resolution would be a good way to resolve this matter.

And I concur in 100% in his attempt to get the City Council to adopt this resolution.

Matter of fact, I think every local legislative body should have a similar resolution.

We pay homage to the flag at the beginning of every single meeting.

I see no reason why we can't pay homage to the First Amendment by having a resolution like this.

Thank you.

Mr.
First, are you going to also present this to the Grass Valley City Council for their adoption?
Well, there's been no incident that's precipitated at such an event, but I would have no objection to doing so.

That's what you want me to do.

And the Board of Supervisors have adopted such a resolution as well?
I check it out.

I mean, I haven't looked in.

There's been nothing to precipitate me looking into this, but I think it would be a good resolution for all bodies to have.

Well, what happened at the last meeting is that many members of the public got up and spoke against it on various different grounds.

And I think that was part of the motivation for the reason why it was not adopted.

To me, it's kind of like motherhood.

How can you be against it?
Well, you don't legislate motherhood.

That's a good point.

Mike, is it fair to say that your office is complaint driven?
On this matter, yes.

To be honest with you, yes.

That's what germinated the whole thing.

And I felt this would be a resolution short of having to go to court and ask for declaratory relief action.

Because you agree in the bottom line.

There's no reason to have a court ask you to do something that you agree to do.

And would you suggest then that every time since you're complaint driven, every time we get a complaint about the Brown Act, that we write another resolution?
No, I think we have to address each case as it comes in.

What made this case interesting and made me proceed in the manner I did was how it got complicated by the attorney general's guideline and how people could be led, people in the city employment, could be led down the wrong road by reliance on that guideline.

I saw nothing malicious in what the city council and Mr.
Anderson did.

Like I said, in fact, when I first looked into this, I thought they did the right thing until I delved deeper and found the Baca case.

I'm confused.

Are you saying by following the Baca case, we could be led down the wrong road?
No, I was saying that the 1994 AG guide, since it came out in 1994, the Baca case trumped an opinion in that guide.

Yes, it did.

And because in my opinion, everybody was relying on the guidelines and the AG's guides, I didn't see any reason to run out and file an action for declaratory relief.

I chose to proceed in the manner I did.

And I think for the record, I'd like to point out that at our last meeting when this was discussed, Mr.
Pemberton did get up and address the council.

And as far as I know, was able to state the opinions that he was trying to express at the May meeting.

So he did have his day at the microphone.

I understand.

And matter of fact, that was one of the arguments that the defense made in Baca, that, hey, we have other procedures set up for them to make their point.

And the court said that doesn't make any difference.

They were not allowed to make their point at that particular meeting.

I think, Mike, for myself, I take a back seat to no one in fighting for the Brown Act.

In fact, before we're done, I'm going to make a particular reference to that.

Certainly in my case, and it appears in the city attorney's case, that we were hanging our hat on about eight or ten words in the attorney general's not legal opinion.

That's a different in his guide, his guidelines.

And based upon that, I thought that the chair handled the situation correctly, and I felt the city attorney did the correct thing in supporting her.

Had I known that five years ago that was thrown out, I wouldn't be hanging my hat on it.

Nor would the city attorney.

I don't know where it's through the communication chain of a legal opinion.

I read that we get a league magazine every month, and it has two or three pages of legal opinions.

I read that thoroughly.

I've been doing that for ten years.

I don't ever recall this case ever being referenced by the League of California Cities.

Apparently it's something that didn't work its way through the food chain to the city attorney.

Had I known that, we wouldn't be here tonight.

Had the city attorney known that, we wouldn't be here tonight.

In reading, in fact, the city attorney would have said, "I'm sorry, Ms.

Poulter, but this man has the right to vilify anyone he wishes.

"
Which is what the phrase that the federal judge used, vilifying.

But when I look at the minutes of the last meeting, one thing that Jim said, and we just approved the minutes, so it must be right, said Anderson indicated that this resolution is an attempt to give the council guidance.

Man, I don't know how much more guidance we can get, Mike.

Your letter to him says, this is the year letter of August 14th, you concede that the word disrupt can mean many different things to different persons.

I'm not sure what a resolution policy is for that.

I can recall a meeting, because this takes three votes.

Three votes, you're out of order.

Leave the room.

I can recall a meeting a few years ago over in Pioneer Park when several people were objecting to another constitutional question, the right of free assembly on the streets of Nevada City, where we filled Seaman's Lodge and people poured out, so I must have had 200 people there that night.

And during the course of that meeting, as part of the public's right to speak, a woman went to the microphone and sang a song to us.

Now, you remember that one, Beryl.

The woman went and sang a song.

We let her sing her song.

Then we moved on.

But under this guideline, if someone at that table had said, point of order, point of order, we don't entertain singers here, and three people had said, singing is disruptive, that woman would have been removed.

That's why in the cover letter, I talked about making reference to the Distribute the Peace statutes.

But you can see that disrupt can mean different things to different persons.

And that's your letter, Mike.

Yeah, I know.

That's why I suggested that instead of one person deciding, they have a majority vote to decide.

It's not a perfect world.

No, it isn't.

I do have a suggestion, though.

And I -- first of all, I think we have a policy.

And it's the oath of office.

We swear to uphold the laws of the United States, the state of California, the Constitution of each entity.

Everything that is in that federal opinion that I read -- and I appreciate you forwarding copies here.

Carrie and I -- as far as I know, Carrie and I have only two that received copies of it for Brown Act reasons -- that the only thing -- as I recall, what the federal judge said was short of a civil rights violation, which would be an ethnic or racial slur, a person can essentially stand at that microphone based upon the guidelines of time and can say anything they want about anyone -- public employee, about us, about someone that's not even in this room.

But essentially, in my opinion, the policy is our oath of office, to uphold the laws of this country.

At the top of the agenda is a statement about any member of the audience desiring to address the council on any item.

And it talks about the process by which you're recognized.

I put that on, Mike, one of the very first things I did.

I got elected in June of '92, and this went on agendas in July of '92.

It had never been on a city council agenda.

I used to sit in the audience as a newspaper editor and listen, you know, year after year to people being discouraged from speaking.

And so when I got on the council, I asked if this language would be out, and it was.

If I have no other legacy at this table after 12 years, it will be that we encourage public participation rather than discouragement.

Here's my suggestion, Mike.

Let me see what you think about this.

And I know you don't have this sitting in front of you, but there is a clause that says, "Please limit your comments to the specific item under discussion.

"
The final sentence is, "Time limits shall be at the mayor's discretion.

"
I suggest the following 14 words.

Very simple.

Because the problem you indicated yourself, or Jim did, is it will have a policy.

It will be this piece of paper, and it will be filed away.

And that's exactly what happens.

They get filed away.

Five, six years from now, somebody says, "We've got a policy.

What year was that?
2001, 2002?
What year did we do that?"
And then we hunt around for the policy.

I suggest that it stare right at people every time they walk into this room.

And I think the Board of Supervisors in Grass Valley should do the same thing, frankly.

But between those two sentences, I suggest the following 14 words.

"All citizens will be afforded an opportunity to speak consistent with their constitutional rights.

"
It satisfies your objective.

It satisfies the objective of those who opposed your objective by us even having a policy.

Because that's all that it is.

We're sworn to uphold the Constitution of the United States.

That federal opinion talks about the Constitution, First Amendment, and civil rights.

We're all sworn to uphold that.

That's our policy.

Excuse me, Steve, could you repeat those 14 words, please?
"All citizens will be afforded an opportunity to speak consistent with their constitutional rights.

"
And I'm curious as to what you might think about that.

That way, Mike, that policy is staring at people every time they come to a meeting.

It's not filed away somewhere where five years from now we don't even know where it is or what year it was passed.

The sections in the Brown Act dealing with public meetings and the public right to talk specifically allow for guidelines and rules for the bodies to enact.

And I see no reason you can't be more specific than you want to be.

I have no problem with what you suggest for your announcements.

But I still think you need to go further in view of what happened.

You need to specifically make a statement that the public has a right to criticize employees.

I think that's inherent in the Constitution and everything we've said.

I think what you're trying to enact is a legitimate way that a body can stop a person from talking.

And at this point, we don't need a way to stop them from talking.

Let them talk.

The Constitution lets them talk.

If there's a problem with someone stopping them, they take it to the appropriate authorities, as happened this time.

If what you proposed was the solution, then what happened on the 10th of May wouldn't have happened, but it did.

But that's not true.

You have different people, and even people who know the Brown Act.

I mean, our attorney who didn't know that something had been changed in '96 gave a recommendation.

So there's never going to be the perfect.

The Brown Act gets -- I don't think that most people that violate the Brown Act do it maliciously or on purpose.

And most courts of law are going to look at that and say, okay, if you made a decision based on someone -- which is the things we deal with the most, is if we start talking about someone that's not on our agenda, and then we make a decision based on that, you better believe that's a major violation.

And what are we asked to do?
We're asked to repost it, re-put it on our agenda, and re-discuss it, and re-vote on it.

And that's it.

There's no Brown Act jail.

I mean, this is something about making sure people have their right to speak.

And they did, as the mayor just said.

Mr.
Pepperton came and did finally say what he started -- meant to say at that meeting in May and said it here to us.

But you can't get around the fact that his right to speak on the 10th of May was violated in view of the Boca decision.

We don't have a time machine.

And so, you know -- And I think you need to acknowledge that.

Mike -- We have acknowledged it.

Mike, I absolutely acknowledged that, but only as a result of you forwarding over the Boca decision that I now understand why you're so persistent and why you're doing this.

I understand that now.

And that's what the city attorney said was, we need to be aware.

Well, boy, we are aware.

The community is aware.

The people -- Mr.
Pepperton is aware.

The commission is aware.

I think we have fulfilled that part of it.

And I think in fairness, although to what David said, is that there are really -- to do it again is a remedy.

But there's also a criminal remedy.

Is that correct, Michael?
So that it isn't just the fact that a legislative body can hear it again.

There's also a criminal remedy available.

This case was never looked at as a criminal case.

What I looked at it as a civil case, and there are the sections in the Brown Act that would authorize me to bring an action for declaratory and injunctive.

And basically argue that a court should tell you what we're trying to tell you tonight.

And, Mr.
Ferguson, thank you very much for clarifying the difference between the criminal and the civil.

Because as you saw in the opinion of the union, they referred to that -- I said that basically, you're not our DA.

And you work for the county.

And we would defer.

The question that was asked that prompted that was, aren't you afraid that you're going to be sued for criminal behavior?
For not adopting the resolution that you recommended.

And I said, well, this isn't a criminal act.

There's no charges been brought towards this body.

And it wasn't this body that violated the Brown Act.

So that's where this statement came from in the newspaper, if you read that.

Even if you adopted the resolution, and I was satisfied and took no further action, that doesn't prohibit any other interested party under the Brown Act from trying to get the same relief.

But it would be a civil case.

It would not be a criminal case.

Correct.

And that's all.

I was just trying to explain to the reporter at that time.

It was not a criminal case, but it was a civil case.

So thank you.

One more thing while you're there, Mike.

Is it fair to say that despite all of the controversy, the newspaper editorials, the rent and the raven, and all the people who have gone to that microphone over the past couple of months, no one has been found guilty of anything.

Including the chair of the Planning Commission and the city attorney in Nevada City.

No one has been found guilty of anything.

Now, guilty implies a criminal action.

And that is not correct.

There has been no criminal action filed.

That's right.

But we have had people suggest that the violations of the law, but no one has been brought to trial, and no one has been found guilty.

And any suggestion that the chair of the commission is guilty of violating the law, or the city attorney is guilty, is an embellishment upon the known facts.

There is a section that does provide for criminal violations of the Brown Act.

It's a rather technical violation, and I can only think of maybe one instance in the 20 years that I've been doing this where a DA in any of California's 58 counties even filed a criminal case for a Brown Act violation.

Much less brought action against the city attorney.

Yeah.

All I'm saying is, if anything, this is a civil case.

Okay, does anyone have any more questions for Mr.
Ferguson at this time?
Thank you very much.

I'm going to open the microphone to public comment at this time.

Please give your name and address for the record.

Lee Pemberton, 16414, Queenville Place.

First of all, I appreciate the city and Mr.
Ferguson, Mr.
Anderson, everybody who's taken the interest in the speech issues.

I mean, to use Mr.
Robinson's terminology earlier this evening, I think the first, you know, our First Amendment rights are awesome.

You know, they're worth talking about, they're worth protecting, they're worth worrying about.

I don't believe necessarily we need a resolution, but inasmuch as it's your decision, that's my opinion.

What happened May 10th, you know, was a night that I had an opinion, Ms.

Poulter had an opinion, Mr.
Anderson had an opinion.

I didn't necessarily agree with Ms.

Poulter's actions, but truly, if I had intended to be disruptive, there would have been no doubt in anybody's minds that I was going to be disruptive.

And the rights of that large republic that night were more important than me being on stage with my little dialogue against the city planner.

So I had to respect the setting that I was in, respect the public's right to continue speaking, and not have it cleared.

That would have been my greatest fear that a meeting would be closed down, you know, for public participation.

So, you know, again, I thank the council and the city and the district attorney for paying attention to this.

I do not believe it's a necessary resolution.

We have a fine umbrella right in the First Amendment, and the state has gone to the degree of, you know, breaking down open meeting policy in the Brown Act.

And I obviously have spoken my piece, and hopefully I'll continue to speak my piece as time goes on.

Thank you.

Thank you.

Jaylon Cooper, Sierra County Public Defender, this time up.

I agree with my colleague, Mr.
Ferguson, as to the first half of his comments about the state of the law.

My problem is how he goes from that holding in that federal case to the need to draft this sort of ordinance that's been proposed, a resolution.

I would agree with some of the comments that have been made.

I don't see how it fosters the interest that BACA stands for.

If anything, it gives a subjective concept of disturbance or disruption and places the power to define that at any given moment in any public meeting with either the chair or a majority of the body that's sitting that evening.

That I don't think that disturbs me that First Amendment rights can be so subjectively interpreted by a local body or one person.

This hasn't been addressed this evening, but Penal Code Section 415, I'm sure Mr.
Ferguson is aware, if there's truly a disturbance of the public peace, it provides three different ways that that can be dealt with.

It would be a criminal proceeding, that's correct.

The police do not have to attend every meeting for that to occur.

We have citizens' arrest if it comes to that.

But I think it should come to that.

It should be that serious of a disruption to have someone silence or excluded from a public meeting.

I think when it gets to that point, yes.

But to express your opinions that may be offensive to someone sitting up there or maybe slanderous, clearly BACA protects that.

So I think it has to reach a pretty strong level of disturbance.

And under the Brown Act, the concept of disturbance is also interpreted.

And there's case law existing, as Mr.
Ferguson has indicated, that interprets the Brown Act.

So we have existing law out there to create this.

With all due respect, Mr.
Ferguson, I've known him many years.

As a matter of fact, I have my first case with him in this county.

I don't see how this action springs from the desired interests.

I don't see how it's consistent.

So I would certainly oppose further resolutions.

I don't know why the city would want to put itself in a position of some kind of constitutional challenge.

Thank you very much.

Candace Hansen, 437 Zion Street.

Good evening.

Before you make any decision on this, I would really like to have the opinion of Gus Del Valle, who brought the original complaint.

And he's out of the country.

And that would be one wish that I would have, that you guys would at least allow him to make a written response to his wife, I understand, is trying to contact him and let him know that he spoke at the last meeting and this is back on the agenda.

I object to the resolution also.

And you might be interested to know that I was up at the county today at the Board of Supervisors.

And they mentioned the Brown Act up there.

So I think it's really a good thing too that the discussion is there and there's an interest by you and the public.

That's a good thing.

And also I wanted to say that no one that I know of has suggested that there was any criminal action in this.

I cannot recall reading anything at all.

There was a violation that was admitted.

But on Thursday, at the last Planning Commission meeting, Harry Stewart asked for a clarification of variances.

He asked that Jim Anderson be president at the next meeting.

And as with the Ralph M.

Brown Act, one needs only to read.

The subject of variances that Mr.
Brown has spelled out very clearly, if one wishes to enlighten themselves by reading the law, is there application that appears to have been misinterpreted or disregarded by members of the Planning Commission, not the public.

Very early on in my study and research in the City Hall, I went to Jim Anderson and I asked him about a ruling that had been made by the Planning Commission.

He stated to me, that's 90-01, the municipal code, read it.

Number one, did he suggest that it should be laid out in the public and explained to me or anybody else, go read it.

You can read it.

Very similar to clarification of the Brown Act, which Mr.
Anderson and Ms.

Polter did not understand, I don't think it's necessary to further waste the resident voters precious time and swelling in patience by subjecting them to yet another display of our elected officials and representatives publicly clarifying what they seem unable to understand, not the public.

And it's already well defined for us.

When with all due respect -- What are you referencing here, all of a sudden -- Well, I'm just trying to -- Are you saying variances?
No, I'm trying to compare the -- people are saying, why do we need to clarify what already exists?
All you need to do is read the law, whether it's variances or whether it's the Brown Act.

And with all due respect to Mr.
Ferguson and Mr.
Anderson, I think this would be a ridiculous thing to record Mr.
Anderson and Ms.

Polter violated the Brown Act.

So it seems quite odd that Mr.
Anderson now wants to clarify that document.

Rather than creating resolutions, I think it would be much more appropriate for Mr.
Anderson to study the Brown Act.

So in the future, he can advise city officials according to the law, not concurring with the violation of it.

And I would be very curious to know how many other municipalities have a resolution on their book to define some portion or particle of the Brown Act or of their own ordinances.

Anyway, I thought, well, what would be my solution?
The way this reads, the resolution reads, is it insinuates that it was the public that should be clarified on what their behavior is.

I think the resolution ought to read something like, if the chairperson or any other planning commissioner violates the public's right to comment at public hearings, according to the Brown Act and the First Amendment, that any member of the public can request that the official apologize immediately and then they can proceed.

If they persist in the obstruction of the public's right to exercise free speech, they should be removed from the meeting upon a majority vote of the public present.

Further, if any commissioner, council member, or city employee is cited more than once, they should be removed from office.

And I'd really like you to think about Gustelle Valle's statement.

I think that he certainly deserves to add to the discussion.

Thank you.

Are there any further comments?
Okay, we'll close the public hearing at this time.

Well, I have no objection to the insertion of the 14 words that Councilman Cottrell suggested in the beginning of each of our agendas, and that's both the Planning Commission and the council.

But I'm still not 100% certain that this is the best this resolution would be in the best interests of the city.

And I concur.

I think that the resolution takes rights away from the public instead of giving them more.

And I don't know why it's not obvious that it's going against the First Amendment.

And I think it can be challenged and challenged quite easily, not being a lawyer, but just being a person of common sense.

I don't mind Steve's proposal of those 14 words.

I like that.

I think it's very concise.

I think it points to the document that we all do take an oath to uphold, and I would support that and that only.

Well, I appreciate Steve's 14 words, and I think they're appropriate.

I'd like to see them added to the heading.

And, Steve, thank you for bringing me up to date on history.

I wasn't aware that this part of it already was also your doing.

So thank you for that.

July '92, yeah.

Okay, I happen to be between elected terms at that point.

But I think it's fairly well understood that the meeting of the 10th constituted a Brown Act violation and that the Planning Commissioner violated the Brown Act in curtailing free speech.

And now we're being asked to essentially add two more voices to that and thereby make it okay.

And I don't think that's the appropriate thing to do.

I think the First Amendment says we can talk, and if we don't like, you know, if us who are being talked to don't like what we're hearing, then we need to respect the First Amendment and not find the support from two other peers at this table to use to silence that person.

So I see this as a way to bolster support for the suppression of free speech, and we just don't need it.

So I think the 14 words are great, and the rest of the resolution should just be dropped.

I agree with the 14 words.

Let's add them in.

I had looked at this as just a tool that if the situation had arise where the chairperson could ask someone that they felt was being disrupted, to just rephrase their comments.

Not to deny anyone's speech, but maybe I didn't read it the way the rest of you did.

But that can already be done.

Well, yeah.

But we've all been to meetings when it's been a real job to run.

I think fortunately for us, we have been able to, during the large meetings that we have had, that we set out with the idea of there will be an order and let's hear everybody.

And I think, I don't see where we've done that, and we have not done that.

So I think Nevada City has done a good job, especially this council.

So I don't think anybody has really been denied any type of speech.

If the rest of you, like I said, that's the way I was looking at it.

If, obviously, from no one else would go for it.

So I can certainly be swayed on that, and I'm glad Steve added his words.

And I think probably the resolution will die for a lack of a second.

Steve, or first.

Not your word.

You'll have to do those.

Well, I appreciate the support for that.

And I certainly understand the predicament that Mike was in.

I think it was important, one of the first questions I asked him, he's complaint driven.

He's just like the city planner.

We can walk around this town.

I take anybody that wants to go for a walk.

I can show you so many zoning violations, but they're complaint driven.

One thing, I do understand the council's concern about whether they think or not they think this resolution would promote free speech or actually go the other direction.

I want to say that that word "disruptive" came out of the Boca opinion.

There was language in the Boca opinion that would be allowing for the ejection of somebody if they were disruptive.

Thank you.

I will put the motion on the table then, and I would say just as an aside not to belabor the issue, but I've sat here -- I've sat out in those chairs, literally, those are new.

But I have sat in the audience for years as a newspaper editor covering meetings, and I've been at this table for almost 10 years, and I couldn't count on my fingers and toes all the violations of the Brown Act that I witnessed and had been a victim of in some cases.

Those, to me, although no complaint was filed with the district attorney, so no action was taken, were far more serious because they affected public policy.

They affected decisions made outside of the sunlight the Brown Act has been written for.

So of all the Brown Act violations that I have seen come and go through this building over the past 10 years, this one wouldn't even rate a one on a scale of one to 10 because it did not affect public policy.

It was done in full public view, and everyone is aware of what happened.

The Brown Act violations, the serial meetings, the phone calls, and the manipulation of the process that I have been fighting against and have been called a whiner and a moner and a complainer and all kinds of things by some of my [inaudible] over the years and staff who one time told me, "You take your damn Brown Act and you know what you can do with it.

"
That's fine.

They're entitled to their opinion.

I'm entitled to mine.

I've been fighting for the Brown Act harder than anybody at this table because of things that happened in secret, not things that happened in full public view.

So this one didn't merit too much on my scale, and particularly with the comments of the Attorney General, I felt very comfortable that the Chair had acted appropriately and so had the City Attorney.

We all learned, I learned within the past week that my assumption was wrong.

I would move that at the head of all agendas of this city, of all public meetings of this city, whatever the agency might be, that between the word "discussion" and the word "time," there be inserted the sentence, "All citizens will be afforded an opportunity to speak, consistent with their constitutional rights.

"
Second.

Okay, it's been moved and seconded that we add those 14 word for a sentence to the headers of all public meetings.

Further comments?
I would just like to say that, Steve, I really do take exception to those kind of statements that, you know, over the past 10 years you've seen numerous Brown Act violations.

If you've seen Brown Act violations and you haven't mentioned them to anyone, then that's something but to sit here and make a sweeping generalization that, you know, there have been countless Brown Act violations.

Well, that offends me.

Well, I should clarify that, that the reason you haven't seen any memos is that I haven't written any since you were elected.

So, we've seen a manager and city attorney have seen plenty of memos from me about Brown Act violations.

All right, well, I just don't like these sweeping generalities.

I could fill a file with all the times I've commented on them, but that has not occurred since you were elected, and that should be clarified, yes.

Any further discussion?
Okay, all those in favor?
Aye.

Opposed?
Motion carries.

Copy that, certainly.

Uh, new business.

Spring Street sewer line rehabilitation.

Possible award of contract and authorization for the mayor to sign.

Uh, note it is recommended that the mayor be authorized to sign a contract subject to the county approval of funding.

And that would be in the amount of $82,296.

Move.

Okay.

Bob's going to move that the mayor be authorized to sign.

Second.

Okay, moving seconded.

Further discussion?
All those in favor?
Aye.

Opposed?
Motion carries.

New business resolution 2001-24.

Requesting that the Nevada County Transportation Commission release funds for road and sidewalk improvements.

And I believe this is in conjunction with the railroad museum in Bose Avenue?
Yes.

Okay.

Move for adoption.

I'll second that.

Moved and seconded to adopt resolution 2001-24.

Any further comments?
All those in favor?
Aye.

Opposed?
Motion carried.

Are there any announcements this evening?
None at this time.

Is there an executive session?
It might be a few weeks, but not enough.

Okay.

Well, entertain them.

Boy.

Okay.

That's an ominous statement.

Moved to adjourn.

Moved to adjourn.

I'll second that.

All those in favor?
Aye.

This meeting stands in adjourn.

Thank you very much.

Thank you.

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