Save the California Delta Alliance members chartered a bus to the 2017 Delta Stewardship Council meeting considering adoption of regulations amending the Delta Plan to incorporate Delta Conveyance.
On Thursday, May 22, the Delta Stewardship Council is planning to adopt regulations on public participation in council meetings. The draft regulations include the following:
Section 5000.15. Public Comment.
(a) A person may submit a comment in writing on any agenda item. A person submitting a comment shall provide the council with a copy of the comment no later than noon, Pacific Time, the business day before the meeting at which it is to be considered.
(b) Members of the public present at the meeting shall be given an opportunity to make relevant oral comments on any agenda item.
(c) Notwithstanding subsection (b), the chair or other presiding member may limit or preclude comments as necessary for the orderly conduct of business.
Note: Authority cited: Section 85210, Water Code. Reference: Section 11125.7, Government Code; and Section 85200, Water Code.
The proposed § 5000.15(c) allows “the chair or other presiding member of the Council” to limit or preclude oral comments. On its face, this would empower the chair to entirely shut down public testimony on an item under the subjective justification of keeping order.
This regulation appears to directly conflict with Section § 11125.7(a) of the Bagley-Keene Open Meeting Act, which mandates an opportunity for the public to address each agenda item. The wholesale preclusion of public comment on a controversial agenda item would violate the Act’s core requirement, even if done in the name of efficiency or order. Reasonable time, place, and manner controls (like per-speaker time limits, or rules against disruptive behavior) are one thing; but a blanket ban on comment crosses a line. Bagley–Keene already provides a mechanism to address actual disruptions of order: if a meeting is willfully interrupted such that it’s unfeasible to continue, the body may clear the room of those causing the disturbance and continue (Govt Code § 11126.5). That narrow remedy for disorder does not authorize a state body to dispense with public input entirely, but rather to remove disruptors and then continue business with public comment from those not responsible for the disturbance. By contrast, § 5000.15(c) as drafted could be read to let the chair prevent any comment on an item even absent a clear disruption – a power inconsistent with the letter and spirit of Bagley–Keene.
The Council’s claimed authority for § 5000.15(c) is also sketchy. The Initial Statement of Reasons for the rule cites Bagley–Keene § 11125.7 and Robert’s Rules as support for granting the chair this power. However, § 11125.7 only authorizes time limitations and similar regulations to facilitate public input – it does not sanction a rule that public comment can be entirely “precluded” at the chair’s discretion. Nor do Robert’s Rules of Order override a statutory right of the public to be heard. The Council’s enabling law (Delta Reform Act) gives it authority to adopt necessary procedures (Water Code § 85210(i)), but explicitly not in conflict with other state laws. In short, Bagley–Keene’s public comment mandate prevails over any internally-adopted rule; the Council cannot regulate around a statutory requirement. If § 5000.15(c) were applied to bar comment on an item, the Council’s action on that item would be legally vulnerable – members of the public could seek to invalidate the action or enjoin the Council for violating the Open Meeting Act.
Relevant Precedents and Opinions: Although there is no reported case of a state body attempting to entirely suspend public comment on an item (underscoring how extreme such a step would be), open meeting authorities strongly indicate it would be improper. The Attorney General’s 1995 opinion on open meetings affirmed that while a state body may stop comments that are off-topic (e.g. outside the body’s jurisdiction), it may not forbid comments on subjects within its purview (78 Ops.Cal.Atty.Gen. 224, 230 (1995), cited in the California Department of Justice’s 2024 Bagley-Keene Open Meeting Act Guide.) By extension, forbidding comment on an agenda item squarely within the Council’s jurisdiction would contradict the Act. Courts have upheld time limits but expect that every speaker gets at least a chance to address the body. In Chaffee v. San Francisco Library Commission (2005), the court found a 2-minute per person rule per agenda item to be a lawful “reasonable regulation,” but did not approve denying anyone the chance to speak . Indeed, a 45-minute total cap that left many unheard was flagged as potentially unreasonable. (First Amendment Coalition)
In rather Orwellian fashion, the Council’s February 28, 2025 notice circulating the proposed regulations for comment stated only
The Delta Stewardship Council is proposing to adopt procedures related to Council meetings to facilitate, coordinate, and implement a range of actions and policies in support of the coequal goals of the Sacramento-San Joaquin Delta Reform Act of 2009 (Wat. Code, § 85000 et seq.) in a forum accessible to the public consistent with Bagley-Keene Open Meeting Act (Gov. Code, § 11120 et seq.)
The agenda item for adopting the draft regulations notes that no comments were received, and the item is on the consent calendar, so it is planned that no oral comments on the proposed regulations will be allowed at the meeting.
