News

Attorneys say MLPAI public meeting bans are illegal

Frank Hartzell April 29, 2010

0 10 minutes read

The Marine Life Protection Act Initiative (MLPAI) has violated California law by banning filming and photography at meetings and by forbidding any public input at a meeting last week, two top public access attorneys say.

The pre-stated ban on public comment at an April 21 Regional Stakeholders Group meeting led to the arrest of Fort Bragg Internet journalist David Gurney after he spoke publicly, in defiance of the rules.

Gurney has been a vocal critic of the process and there are different versions of the arrest. But attorneys James Ewert and Terry Francke agree MLPAI”s rules used to justify the arrest don”t have legal justification.

MLPAI staff maintain that the private organization is exempt from all state open meeting laws. But the attorneys say the restrictions on speech and comment violate the Bagley-Keene Open Meeting Act and probably the California Constitution.

“Sorry, they can try to contort themselves however they want, but based on the information they are providing, they are subject to Bagley-Keene,” said Ewert, legal counsel for the California Newspaper Publishers Association.

Gurney”s arrest has created active discussions on state and local listserves. Several locals have pledged to show up at subsequent MLPAI official meetings with their own video cameras. Others have said they may ask the state Attorney General”s office to investigate the legality of the public access restrictions.

MLPAI staff craft and enforce many rules for three MLPAI boards now holding public meetings as part of their mission to create new areas of the ocean to be closed to fishing; the Regional Stakeholders Group (RSG), the Science Advisory Team (SAT) and the Blue Ribbon Task Force (BRTF).

The staff, led by Executive Director Ken Wiseman, created the filming and speaking bans for meetings held by the boards. Department of Fish and Game wardens, who are on-duty and being paid by the state to act as armed and uniformed security personnel at the meetings, enforce the laws as defined by the MLPAI staff.

This reporter briefly attended the April 21 RSG study meeting but missed the arrest of Gurney by a DFG warden.

Gurney”s arrest

“Today at the RSG meeting, towards the close of the day, I raised my hand and was called upon. I asked my question as to whether or not the arrays were going to address the issue of ocean industrialization, such as oil drilling, wave energy and fish farming. As the facilitator was answering my question, I was approached by a DFG warden and escorted out of the room and arrested,” Gurney reported after the meeting.

Gurney reported he was handcuffed after being removed, then was cited and released.

Gurney said he was charged with disturbing a public assembly and being unable to follow commands. He could not locate the ticket he received.

“Mr. Gurney was removed from the MLPA work session by DFG wardens for being disruptive,” MLPAI spokeswoman Annie Reisewitz wrote in an email.

“He was repeatedly asked not to disrupt or film during the NCRSG work session. After numerous attempts by MLPA Initiative staff to verbally reason with Mr. Gurney, he showed his inability to respect the process and comply with the NCRSG work session ground rules and was escorted home by DFG wardens; he was not taken to jail,” she wrote.

Gurney openly films the meetings using a large and visible camera. He says he is creating a historical record of how marine parks were created.

But anyone could easily record meetings without detection.

“Banning recording devices in this day and age of most cell phones and many pen points containing video cameras is a ridiculous and haughty expectation,” said Beth Bosk, New Settler Interview publisher.

This reporter attended a meeting Tuesday night where about a dozen people were on hand who had been at the meeting where Gurney was arrested.

All who spoke thought it was goofy the MLPAI staff was bothering to forbid photography and videotaping. Some thought it was important Gurney was making the only effort to record all meetings.

“I think everyone should be held accountable for what they say. I don”t think anything should be done in secret in this process. Why would anybody want that?” said Tom Trumper, a local sea urchin businessman who has been involved in the process throughout.

RSG member Dave Wright felt the photography bans were a silly waste of time. RSG members Skip Wollenberg and Larry Knowles said they would suggest a vote by the advisory group to remove the video restrictions.

“We shouldn”t be there if we don”t want what we say to be public,” said Knowles.

At a public meeting in January, this reporter observed MLPAI staff attempt to remove Gurney, who was quietly standing against a wall videotaping. The staff had posted four rules for required behavior at the meeting, which did not include anything about photography. Instead, the attempt to kick Gurney out came after two people said they were not comfortable being filmed.

“The right to take photos or film is protected by California laws. You can”t ban filming just because somebody is uncomfortable being on camera,” said Francke, counsel for the Californians Aware project, and a nationally-known public interest expert.

Gurney was only allowed to stay at the January meeting on the promise he would not film audience members, who were participating in the event (which he objected to as an illegal condition).

Public meeting law

This week”s email from Reisewitz claims there are no restrictions on photography at public meetings like that January event, only at work sessions like the April 21 event. It is unclear if that is a recent change or not.

The MLPAI website defines two kinds of public meetings, one for the general public and the other being work sessions where public attendance, but not public input, is allowed.

Francke said there is no place in California law that allows such differing definitions of a public meeting. Under Bagley-Keene, a time for the public to speak must be part of any public meeting.

“In view of these provisions, and given the state constitutional mandate to interpret laws that provide access to public meetings broadly, I would conclude that the stakeholder groups are required by law to hold official meetings, and are therefore subject to the Bagley-Keene Act, and that accordingly the restricted public access and participation levels in the work sessions” are unlawful,” said Francke.

When Ewert heard that the director of the Department of Fish and Game appoints members of the Regional Stakeholders Group (assisted by MLPAI staff and the Blue Ribbon Task Force), that closed the discussion for him.

“If [state officials appoint RSG members], this is no doubt a public meeting under Bagley-Keene and no doubt they are in violation of the law,” Ewert said.

Banning photography as MLPAI has done is simply illegal, even if MLPAI is not subject to state open meeting laws as argued, Ewert said.

“That”s the easy part. Even if this was a private setting and no agreement was made preceding his entry not to film, he can film and take photos, that”s the default,” said Ewert.

The way to ban photography at a California public meeting is when there are persistent physical (not psychological) obstacles, such as inappropriate blinding flashes or lack of room for camera equipment.

Any deliberative body has the right to eject someone who is disrupting a meeting, according to pre-stated rules of that body. But by all accounts, Gurney”s arrest arose out of confrontations over the filming ban and the ban on public comment and thus may depend on the legality of those restrictions.

“Neither the BRTF or the regional stakeholder group are created under the authority of state law; they are created under an MOU … Neither of these bodies is subject to California”s Bagley-Keene Act,” Reisewitz wrote.

Ewert says because state officials signed the MOU and transferred their responsibilities under the 1999 Marine Life Protection Act to the MLPAI through that document, it means the MLPAI groups are in fact created under authority of state law and subject to Bagley-Keene.

MLPAI”s interpretation of what Bagley-Keene says seemed bizarrely backwards after this reporter waded through the entire act.

“The MLPA Initiative makes every effort to abide by the spirit of the Bagley-Keene Open Meetings Act; Bagley-Keene does not require that every gathering of members of a group be publicly noticed, that the public be allowed to participate or observe, or offer a public comment opportunity,” Reisewitz wrote.

The MLPAI response also stunned Ewert, who barked out a laugh when he read the response.

“That”s exactly what it requires,” he said, also feeling the statement completely reversed what the act says.

Ewert pointed out that Bagley-Keene requires all meetings to be noticed by public posting of the agenda and notification of any member of the public who asks to be notified. The act also requires a public comment opportunity and that “bodies covered by the Act are prohibited from imposing any conditions on attendance at a meeting,” as the act states.

Ewert said the MLPAI is clearly attempting to craft a narrow definition of state law, which in itself would be a violation of the California Constitution.

“If a [law] allows access to a meeting or to documents, they must broadly construe that statute in favor of greater public access. If it limits public access, they must interpret that narrowly,” said Ewert.

Singled out?

There are also claims that MLPAI has singled out the nettlesome Gurney.

“I videoed the March meeting in Fort Bragg without incident and without permission. I just walked in, turned on my camera, said Bosk.

“I videoed both what was projected on the screen, and the reaction of the panel sitting around the table to the public input … David as an advocacy journalist is clearly being discriminated against. Advocacy journalists have the same rights as members of the paid press,” said Bosk.

Gurney, who argued he is an advocacy journalist, has publicly pressed several issues he feels make the MLPAI process illegal, such as the focus solely on fishing instead of other threats to the ocean and his idea that information was illegally gathered for MLPAI.

His first publicly reported confrontation with the MLPAI came on Nov. 9, when three Department of Fish and Game wardens removed him from the podium during a Blue Ribbon Task Force meeting in Eureka.

“My statement was going slightly over the two-minute [limit] when [MLPAI Executive Director] Ken Wiseman interrupted me and told me to stop at precisely two minutes. I told him that I had driven 250 miles that day to speak for two minutes and wanted to finish my closing paragraph. Wiseman instead had me forcibly removed from the podium,” said Gurney.

Gurney”s approach is sometimes affable and at other times argumentative, which grates on some other participants, even those who agree with his points. Several people interviewed said Gurney is certainly among the most contentious people at the meetings.

“Although Dave Gurney”s points regarding transparency, accountability, and public access to the MLPA meetings are relevant to this process (and represent issues that many of us have raised over the past eight months), the way he chose to bulldog” his points distracted from his message,” said Jeanine Pfeiffer, who is Mendocino County outreach coordinator for MLPAI and has been involved in the entire process.

Gurney publishes accounts of the meetings on local Internet Listserves, the Indymedia site and has produced and disseminated two YouTube videos about his arrest.

In an age when virtually everything is filmed, the MLPAI”s own ban means there is only old-fashioned argument over the controversial arrest.

“It”s doubly ironic we don”t have a film of what happened to you because they had ordered all cameras to be off,” Allan Jacobs told Gurney at Tuesday”s Mendocino Ocean Community Alliance (MOCA) meeting.

MLPAI process

The claim of a special exemption from state open meeting laws illustrates much about the new ground being walked by the MLPAI”s innovative privatized approach to natural resources protection.

California twice failed to implement the 1999 Marine Life Protection Act, then crafted a legal document called an MOU to hire the Resources Legacy Foundation Fund (RLFF) to take public input and identify new areas of the ocean to protect. The RLFF is paying most of the bill for the MLPAI”s privatized process.

With the pizzazz of a corporate marketing campaign, MLPAI facilitators and public relations consultants have masterfully sought to create consensus among parties interested in the ocean. This corporate consensus strategy differs from the government”s approach, which would be to identify the problems with the environment and solve them through habitat or species protections.

While MLPAI has been able to get new ocean parks created by the California Fish and Game Commission where the state itself failed, the process is often accused of being ahead of the science and disinterested in potential legal issues such as Native American rights and existing legal claims, such as wave energy permits.

The MLPAI process is all about negotiation and compromise and keeping the maximum number of relevant people engaged. The request to exclude cameras was made by just two people, but MLPAI staff crafted the compromise of not filming the audience in an effort to keep them in the room.

Some critics say the environment suffers from corporate privatization strategies that please all human constituencies and the needs of the more popular flora and fauna, but not necessarily the ecosystem.

Fishermen and other ocean users dominate the local MLPAI process, trying to win a tug-of-war over offshore lands, with little ecological evidence about what problems the effort seeks to solve. The MLPAI is led by the Blue Ribbon Task Force, dominated by business leaders from outside the fishing industry, who have led a process that targets fishing but not other ocean-based industries.

Reisewitz pointed out that the MLPAI has an adopted policy for an open and transparent process (available online at www.dfg.ca.

gov/mlpa/pdfs/brtf_transparency_sc.pdf).

She noted that all BRTF meetings, SAT meetings, and NCRSG meetings and work sessions are noticed on the MLPA website at www.dfg.ca.gov/mlpa/meetings_n.asp#ncrsg.

“The MLPA Initiative makes every effort to ensure that public meeting agendas are released to the public with at least 10 days” notice; meeting dates and locations are generally posted a month or more in advance (for instance, almost all meeting dates and locations for the remainder of 2010 are already posted to the MLPA website), Reisewitz said.