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August 25, 2020

City Council Violated the Brown Act by Restricting Public Access to Meetings

BAKERSFIELD — In the battle over the establishment of a proposed 1,400-bed U.S. Immigration and Customs Enforcement (ICE) detention center in the city of McFarland in Kern County, hundreds of protesters showed up at meetings and rallies to make their opposition known.

And they had successes, including at a planning commission meeting during which the project — backed by well-monied corporate interests — was rejected. But in April, when the McFarland City Council held two meetings crucial to the project, the protesters were almost entirely shut out. And with opposition voices suppressed, the project was approved.

Last night the American Civil Liberties Union Foundation of Southern California and attorney Paul Nicholas Boylan filed a lawsuit in Superior Court in Bakersfield against the city of McFarland and its city council.

The council, in severely limiting public participation in its proceedings, violated not only the Brown Act — also known as the open meetings law — but also the California Constitution.

“While technology can be a tool to ensure wider government transparency, in the middle of a pandemic McFarland used technology to do just the opposite,” said Julia Gomez, staff attorney at the ACLU SoCal. “A pandemic, however, does not void Californians’ right to attend, observe, and provide comment during the meetings of their public bodies, and we are confident that the court will agree.”

The suit was filed on behalf of three residents of Kern County, Stephanie Padilla of Bakersfield and two residents of McFarland who wish to remain anonymous because they fear unwarranted scrutiny and backlash from officials.

The nationwide private prison company GEO Group Inc., which had earnings of nearly $2.5 billion last year, wanted to convert and expand two prisons it owned in McFarland into the ICE detention center. The company established itself as a powerful force among officials in the city, but community members organized to get out their message that the proposed facility would lead to family separations, racial profiling, and well-documented abuses by ICE.

This is especially critical during the pandemic because of ICE’s horrific mismanagement of the crisis in its facilities. For example, more than half of the people detained in the Mesa Verde ICE Processing Center in Bakersfield have tested positive for COVID-19.

"The purpose of California's Brown Act is to protect and expand every person's constitutional rights to attend, observe and speak during public agency meetings," said attorney Boylan, who specializes in open government law. "The McFarland City Council knowingly violated the public's rights when it prevented interested people from participating in decisions vital to the public welfare. I have no doubt the court will invalidate the city's unlawful acts."

The April 9 McFarland City Council meeting was crucial in that a new council member would be named to take the place of one who had resigned. At the meeting, the candidate they chose was Eric Rodriguez, a former employee of GEO. In addition, prior to the proceedings the city staff met privately with GEO representatives.

No such access for community members. The April 9 meeting was virtual because of the pandemic and the only access given to the public was through a telephone conference line that was plagued with with technical difficulties. Many community members couldn’t sign on to the line at all. Those who did get on could not hear much of the proceedings. In addition, public comment, a requirement of the Brown Act, was not allowed during the meeting.

A video link was provided for the April 23 city council meeting, but it maxed out at 100 participants, far fewer than those who wanted to virtually attend. Padilla, for example, could not get throug to the video link and when she tried accessing a telephone conference line she received the message, “The meeting is full. Goodbye.”

For people who were able to access the meeting, public comment was difficult, especially for Spanish speakers who were not allotted the amount of additional public comment time the Brown Act requires for translation.

At that meeting the city council gave GEO what it wanted: the approvals needed to establish the detention center.

Because the meetings were unlawful, the lawsuit asks that the court declare the actions taken by the McFarland City Council on April 9 and April 23 null and void.

Read the lawsuit here: