Bane

Face coverings are essential during uncertain times.

Matthew Leslie

An important item appears on the agenda for the Fullerton City Council’s April 21 meeting requesting direction to city staff “regarding mandatory face covering guidance within the City of Fullerton” and, potentially, “for essential businesses, employees, customers and residents outside of their residence.” The agenda’s Recommendation section includes an option that the council’s direction could take the form of an “issuance of a Director of Disaster Services proclamation,” suggesting that a decision could be made that evening. One hopes so. With the numbers of people in the city known to be infected by the COVID-19 virus rising daily, an immediate decision critical if such a measure is to be effective. 

To date, four cities in Orange County have passed measures requiring that workers in essential businesses wear face coverings to help prevent the spread of the COVID-19 coronavirus. The cities of Laguna Beach, Costa Mesa, Irvine, and Buena Park now each require the wearing of face coverings by workers and patrons in grocery stores, restaurants, pharmacies, gas stations, and other businesses remaining open during California’s mandated Stay at Home order.  Fullerton has yet to take any such action, despite having met for a special meeting on March 26 and a regularly scheduled one on April 7.

The city issued a press release on April 9 instructing residents to call the Fullerton Police Department to report individuals not complying with the County of Orange’s recommendation “strongly encouraging” the wearing of face coverings, but with no actual requirement in place, one had to wonder how Fullerton police were supposed to respond to such a complaint, other than with their own strong suggestions.

The unfolding patchwork adoption of laws across the county is a result of the failure of the Orange County Board of Supervisors to adopt one that would apply countywide. Although there was some support on the Board for such a measure earlier this month, 4th District Supervisor and Fullerton resident Doug Chaffee, among others, opposed it. The counties of Los Angeles and San Bernardino have both adopted rules requiring face coverings in essential businesses. One wonders why Orange County has dragged its feet, leaving OC’s 34 cities to deal with the problem individually when viruses don’t respect city boundaries.

There is no reasonable way for a significant number of Fullerton residents to avoid close proximity to people who may be carrying the virus, even if they show no signs of it. Shopping in a store, visiting a gas station, picking up medications, among other sometimes unavoidable errands, have become perilous experiences, both for customers and for workers. Though many—increasingly most—shoppers wear face coverings, some still do not. And neither do many in the businesses that serve them, needlessly putting others at risk. Requiring people to keep their faces covered to avoid sharing a sometimes deadly virus is justified, even if some will claim it to be an infringement of their rights.

If we really want to do all we can to stop the spread of COVID-19, we should support requiring people to wear face coverings when they leave their residences too (although the way the report is written, it isn’t clear whether or not it would apply to someone standing in the yard of their own house). Some will consider it a draconian response, but in the midst of a pandemic, the council should at least discuss it. A second wave of infections is a real possibility, even as we’re still experiencing the first.

A city council that takes the unprecedented step to meet virtually from their own residences because it is too dangerous to meet in person shouldn’t consider a face covering requirement in businesses too extreme for everyone else.

And, fear not, the agenda promises that “The City Attorney’s office will opine on legal issues surrounding potential direction as such direction is discussed by the City Council.”

Richard-Jones-2018

City Attorney: Pinin’ to opine…

 

 

Matthew Leslie

Last night the City of Fullerton sent an email notice of a Special City Council Meeting to be held tonight, Thursday, March 26, along with instructions for how to access the meeting online and how to submit comments on agenda items. PUBLIC COMMENTS MUST BE RECEIVED BY 5:00 P.M., TODAY IN ORDER TO BE READ AT THE MEETING. You cannot attend this meeting in person.

I have reproduced the instructions sent by the City below, including the appropriate links to the agenda and instructions on submitting comments.

City of Fullerton

We’ve posted the latest City Council Special Meeting Agenda on our website.  Follow this link to view the agendaand related materials: www.cityoffullerton.com/agendas.

PUBLIC PARTICIPATION: Pursuant to Executive Order N-29-20 and given the current health concerns, members of the public can access meetings streamed live online at https://fullerton.legistar.com, on Spectrum Cable Channel 3 and AT&T U-Verse Channel 99.  Members of the public may not attend the meeting in person.

In addition, members of the public can submit comments electronically for City Council consideration by clicking on the eComment link accompanying the agenda posted online at https://fullerton.legistar.com until the close of the public comment period for the item.

The public can also email comments to cityclerksoffice@cityoffullerton.com with the subject line “PUBLIC COMMENT ITEM #” (insert the item number relevant to your comment) or “PUBLIC COMMENT NON-AGENDA ITEM”.  Staff will read aloud comments received by 5:00 p.m. during the applicable agenda item at the meeting, provided that such comments may be read within the normal three minutes allotted to each speaker.  Any portion of your comment extending past three minutes may not be read aloud due to time restrictions.  Staff will not read email comments received after 5:00 p.m. at the meeting but the official record will include email comments received after 5:00 p.m. until the close of the meeting.  Contact the City Clerk’s office at cityclerksoffice@cityoffullerton.com or (714)-738-6355 with any questions.

The only item on the meeting’s agenda is a temporary moratorium on evictions due to COVID-19. Other cities in Orange County have already passed similar measures intended to protect workers suddenly thrown out of work by State of California orders to causing the shut down of businesses that employ them. The eviction ban would apply to commercial or residential tenants and owners whose income has decreased or whose medical expenses have increased due to “COVID-19-Related Financial Impacts.” The ban would take effect immediately following adoption of the ordinance by council, and would extend until the expiration of Governor Gavin Newsome’s Executive declaring a State of Emergency in California.

I anticipate a unanimous vote in support of the eviction moratorium. It is a sad commentary on our medical system that such legislation is necessary to prevent people from being evicted because they have no money for rent or a mortgage owing to medical expenses that would be free in any otherwise civilized country.

 

Agenda-40_Page_4

My comment would be to suggest that when a notice of a City Council  meeting is sent out, the date of the meeting should be included somewhere in the body of the email and in the title. Anyone reading the email and not checking the agenda link might have assumed that the meeting date would be next Tuesday, since notices of meetings regularly held on Tuesdays are generally sent out on Thursdays of the prior week.

City Hall

Representing the City of Fullerton in court, attorney Kim Barlow argued that city staff said they had tried “very hard” to protect files uploaded to a city Dropbox account, with no password protection, that later turned up on the FFFF blog.

Matthew Leslie

On Thursday, March 12 in Santa Ana Orange County Superior Court Judge James L. Crandall rejected a motion to dismiss the City of Fullerton’s lawsuit against bloggers from the Friends for Fullerton’s Future (FFFF) blog over alleged illegal downloading of files from a city Dropbox folder. Judge Crandall also issued a preliminary injunction prohibiting the blog from publishing any more of the files in question. A similar injunction, issued last year by a different judge, was later thrown out by the 4th District Court of Appeal.

During the same session, the court also denied the FFFF blog’s motion to dismiss the City of Fullerton’s civil case, which names bloggers Joshua Ferguson and David Curlee as defendants. FFFF counsel considers the case to be a “SLAPP,” or Strategic Lawsuit Against Public Participation. Judge Crandall allowed the case to move forward because it appeared to him that there was illegal activity involved in the accessing of the city files, and that the city could prevail in the case.

The city contends that Mr. Ferguson was sent a link to specific files in a city Dropbox folder, but that FFFF bloggers illegally accessed and downloaded other files also found there, including files containing private information about city employees. Last year the blog published stories about the city’s questionable handling of the drunk driving incident involving now former City Manager Joe Felz and one about what appeared to be a deliberate attempt by the city to circumvent new police reporting laws.

The case has raised concerns about restricting 1st Amendment guarantees of free speech by intimidating reporters by suing them and by filing for injunctions against publishing materials that might be embarrassing to municipalities. Courts have generally held that prohibiting news organizations from publishing information constitutes prior restraint.

Despite acknowledging that  some of the documents were “of significant public interest,” Judge Crandall reasoned in his Tentative Ruling that the injunction would not constitute prior restraint because it would be a “content-neutral restriction on defendants based not on their speech, but on their own prior unlawful conduct,” evidently finding credibility in the city’s contention that its civil case is based on the theft of city materials, in the form of its files, and not an attempt to silence critics. “We are trying to get our property back,” argued City of Fullerton’s counsel Kim Barlow, insisting that she wouldn’t be there if the case was about free speech.

During the evidentiary hearing to determine whether or not to allow the case to move forward, FFFF attorney Kelly Aviles argued that accessing files in the city’s Dropbox folders without authorization did not constitute an illegal act, and that, in any case, the city had no proof that the bloggers named in the lawsuit were responsible for downloading the files because the IP addresses detected were anonymous and could not be tied to either Mr. Ferguson or Mr. Curlee.

Ms. Aviles also argued that, although the city claims that the files were private, they posted them to the Dropbox account without any barriers to their access, noting that user folders set up on Dropbox are, by default, private, but that city staff had chosen to make them public by proactively removing any barriers to access. Ms. Barlow, in turn,  cited the 2017 Equifax file breach that exposed private information about millions of people, arguing that inadequate security on a website did not mean that accessing information there did not constitute criminal activity.

Judge Crandall likened the situation to theft from a house whose front door had been left open, but Ms. Aviles countered that routine application of theft laws did not apply the same way to the press. Earlier in the hearing, Ms. Aviles differentiated between files found on a city computer and those found in folders hosted by Dropbox, which exists on the inherently public medium of the internet, reasoning that the files found on the internet are public, whether their location has been specifically advertised or not. Because no password was required to access them, FFFF’s attorney contends that the files were not private, despite the city claiming that they were. (At one point Judge Crandall expressed frustration with internet passwords, relating his trouble using them to access his own court files, and stated that he calls his grandson when he has trouble doing so).

Ultimately, Judge Crandall refused to grant a stay to the preliminary injunction and denied FFFF’s anti-SLAPP motion, allowing his published Tentative Ruling to stand. He set a trial date in January, 2021. Ms. Aviles indicated of behalf of Mr. Ferguson and Mr. Curlee that she would appeal the judge’s rulings before that time.

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