BL Special Report

BL Special Report: Legal group says Hollister Mayor violated Brown Act and resident’s First Amendment Rights

The First Amendment Coalition says the city attorney should have advised Velazquez to stop telling the public they cannot criticize him or other council members.
Councilwoman Delores Morales said people have the right to speak and be heard. Photo by John Chadwell.
City Attorney Jason Epperson told the council May 2021 the ordinance possibly could not be enforced. Photo by John Chadwell.
City Attorney Jason Epperson told the council May 2021 the ordinance possibly could not be enforced. Photo by John Chadwell.
Former Councilwoman Honor Spencer wanted to know if the ordinance was legal. The city attorney told her it was. Photo by John Chadwell.

During the March 7 Hollister City Council meeting, resident Mia Casey accused Mayor Ignacio Velazquez of violating California’s Ralph M. Brown Act. According to David Loy, legal director of the San Rafael-based First Amendment Coalition, the mayor not only violated the Brown Act, but he also violated Casey’s First Amendment rights.

Casey claimed Velazquez specifically violated the subsection of the Brown Act that states: “The legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body,” when he repeatedly interrupted her public comments during the Feb. 22 meeting as she was trying to claim that he and Councilman Rolan Resendiz had attacked her verbally.

During the Feb. 22 public comment period she said, “Because my views differ from theirs, I have become a target and repeatedly attacked on a personal level by the mayor and Councilman Resendiz.”

That was as far as she got when the mayor interrupted Casey to say: “What we don’t want public comment to become again is what happens every election year where it becomes an opportunity to make comments about different council people.”

When Casey tried to tell Velazquez that he and Resendiz had violated the section of the Brown Act related to conduct of elected officials with the public, he stopped her again. She insisted she had a right to bring the possible violation before the council.

Velazquez said, “People would make an accusation. Claim something was wrong. Make it seem it really was wrong. In reality, it’s something else.” Casey responded by asking him if it wasn’t important to honor the city’s code of conduct.

At this point Councilman Rick Perez tried to interject: “Maybe we can get some clarification.” His statement appeared to be dismissed by the mayor and he did not continue with his thoughts. The mayor then asked Casey again if she had something else to say. She responded, “Not if I’m not allowed to speak about this.”

On March 8, Perez told BenitoLink, “People are going to get up and eventually talk about me and it’s tough. It’s hard. It sucks, but they have the right to say what they want. I’m going to be calling for point-of-order from now on. I understand the mayor’s intent, to keep things peaceful, but this is the City Council and people are passionate.”

“The Brown Act can be interpreted so many different ways,” Velazquez said in response to a BenitoLink March 8 request for comment. Then he added, “If someone wants to come in here and scream and yell, at the end of the day, they probably can.”

This is a direct contradiction to what he said during the March 7 meeting. While he admitted to BenitoLink that people do have a right to speak, he has stopped some from doing so.

“The mayor is absolutely violating the First Amendment,” Loy told BenitoLink. “These rules against so-called personal and improper remarks are clearly unconstitutional. It is the very essence of political and protected speech to criticize elected officials by name.”

Loy said when a member of the community is speaking during the public comment portion of the meeting and they are within their time limit, “They have the absolute right to criticize and call out the mayor or any other city official by name and critique their official conduct. That is the most protected political speech under the First Amendment.”

Loy also said the mayor’s language and the way he applied it are violations of both the First Amendment and the Brown Act. “It’s censorship of her speech,” he said, “state law and the First Amendment supersede local ordinances.”

The constitutionality of a city ordinance adopted in May 2021 was questioned at the time by former councilwoman Honor Spencer when she asked City Attorney Jason Epperson if it was legal. He responded that it was, but it was most likely unenforceable. Loy said even though the council passed the ordinance, it is not constitutional and the city attorney should know it isn’t.

“One would hope the mayor is getting in-house legal advice to cease violating peoples’ First Amendment rights,” he said.

Loy went on to address the same section of the Brown Act that Casey read during the March 7 meeting that spelled out that a local agency cannot prohibit public criticism. He said, “The First Amendment, most importantly, prohibits the mayor or anyone on the City Council from silencing public criticism. If he can’t take that as an elected official, he shouldn’t be in office.”

Casey told the council March 7 that she had filed a complaint with the San Benito County district attorney and had asked Perez to investigate her claims of violations of the city’s code of ethics and conduct by Velazquez and Resendiz. On March 30, she told BenitoLink, “I am hopeful District Attorney [Candice] Hooper will hold them accountable.”

Perez did not respond to BenitoLink’s March 30 request for comment on Casey asking him to investigate. Hooper told BenitoLink, “The matter is under investigation.”

Handling alleged violations

Loy said the district attorney has general civil enforcement powers in the Brown Act. In addition, there is one criminal portion in the act that he couldn’t immediately comment on, but he read from the act: “‘Each member of a legislative body who attends a meeting of that legislative body where action is taken in violation of any provision of this chapter, and where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled under this chapter, is guilty of a misdemeanor.’”

Loy continued: “‘The district attorney or any interested person may commence an action by mandamus [a judicial writ issued as a command to an inferior court or ordering a person to perform a public or statutory duty], injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of this chapter by members of the legislative body of a local agency.’ 

“And, of course,” Loy said, “individuals may take civil legal action to protect their First Amendment rights.”

Casey told BenitoLink, “While I am aware of my right to file a civil suit, I am focused on seeing these current investigations through, in the hope we can resolve this unacceptable situation and prevent anyone else’s rights from being violated.

BenitoLink sought comment from the council and City Attorney Jason Epperson on the issue of the violation of First Amendment rights. Epperson did not respond to BenitoLink.

Councilwoman Delores Morales told BenitoLink on March 31, “I did not support the ordinance violating people’s freedom of speech. I strongly believe that people have the right to speak and be heard. This includes speaking without fear of being attacked, retaliated or humiliated. The ordinance needs to be revised to protect people’s freedom of speech. The council must create and provide an environment where our community can speak freely.” 

Councilman Tim Burns, a strong proponent of the ordinance, responded on March 30, “As I recall, the ordinance was reviewed by city legal during its development and prior to being codified. With regard to the possibility that council members could be prosecuted for violating the ordinance, that is a question best answered by the city attorney or the district attorney.”

The Institute of Nonprofit News (INN), which supports more than 360 independent news organizations, provides free legal services to its members such as BenitoLink. The First Amendment Coalition is a nonprofit organization dedicated to advancing free speech, an open and accountable government and public participation in civic affairs. David Loy lives in San Diego. 

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John Chadwell

John Chadwell is a BenitoLink reporter and an author. He has many years' experience as a freelance photojournalist, copywriter, ghostwriter, scriptwriter, and novelist. He is a former U.S. Navy Combat Photojournalist and is an award-winning writer who has worked for magazine, newspapers, radio and television. He has a BA in Journalism and Mass Communications from Chapman University and underwent graduate studies at USC Cinema School. John has worked as a script doctor and his own script, God's Club, was released as a motion picture in 2016. He has also written eight novels, ranging from science fiction to true crime, which are sold on Amazon. To contact John Chadwell, send an email to: [email protected]