Credit to Joe Dworetzky,and Bay City News – February 23, 2023
COTATI, CA — In the long-winded world of city council meetings, the time for a speaker to read a 3-minute statement would seem trivial, but the City of Cotati will have to pay $80,000 to settle the civil rights claims that resulted from refusing to allow a speaker to proceed.
Plaintiffs George Barich, a former member of the Cotati City Council, and Laurie Alderman, a local resident, announced Tuesday that they have settled their federal court case against the city and former Mayor John Dell’Osso.
The dust-up will cost Cotati not only the settlement amount, but the plaintiffs estimated the city paid another $200,000 to an outside law firm to defend the case.
The lawsuit was filed April 23, 2021, and challenged the defendants’ conduct at three public meetings held during the winter of 2019.
In the first, Alderman attempted to read a statement of Barich in support of providing help to residents who were experiencing homelessness. Barich was traveling at the time and asked Alderman to read the statement on his behalf during the period allocated for 3-minute public comments. Council, then headed by Dell’Osso, refused to let her read Barich’s statement, although in the past others were allowed to read statements on behalf of people who did not attend.
At the second meeting, about two weeks later, Alderman made a similar request, and this time presented a notarized copy of a power of attorney signed by Barich authorizing her to speak on his behalf. Once again Alderman was not allowed to present Barich’s statement.
The third incident occurred at a special meeting of the council titled “Strategic Planning Meeting.” Barich, who says he is disabled as a result of progressive hearing loss and tinnitus, attended the meeting, but the electronic hearing assist device provided by the city did not work. Barich made a request for an accommodation that would have allowed him to hear the meeting, but his request was not honored.
The lawsuit asserted claims relating to the first two incidents under the free speech provisions of the 1st Amendment and the equal protection provisions of the 14th Amendment. With respect to the third incident, Barich asserted claims under the Americans with Disabilities Act.
The complaint and subsequent pleadings are rich with the back story to the controversy.
Barich, according to the filings, has been “religiously attending” council meetings for 24 years. He frequently offers “praise as well as healthy criticism.” The complaint notes that he “often disagrees with policies advanced by the current Council… and over the years has engaged in spirited debate with several Council members.”
The complaint notes proudly that “Barich has been called both a ‘gadfly’ and a ‘watchdog’ by the local press.”
Plaintiffs allege that during the majority of council meetings in 2019, they were the only citizens who attended the entire meetings, though others might come in from time to time for a particular issue and then leave. According to Alderman, council approves the items on the meeting agenda 99 percent of the time.
The complaint says that plaintiffs have been “singled out for criticism at meetings as well as on social media” and recounts that plaintiffs have been characterized as being “poisonous to community meetings.”
Adding fuel to the fire, the complaint alleges that in 2014, Barich won a $50,000 settlement from the city in another federal court suit, that one alleging that he was threatened with arrest for exercising his 1st Amendment rights.
The new litigation was hotly contested. U.S. District Judge Edward Chen wrote three separate opinions along the way, first granting the city’s motion to dismiss the case because of lack of specificity in the plaintiffs’ pleadings, and then denying dismissal when the pleadings were amended to add concreteness to the allegations.
In August 2022, the city moved for summary judgment, asking that the case be dismissed without a trial because, based on the allegedly uncontested facts, plaintiffs could not prevail.
Judge Chen rejected that motion in its entirety, reasoning that the plaintiffs had raised allegations that a jury could find reasonable. Accordingly, on Dec. 9, 2022, he denied the motion and cleared the way for a trial on Feb. 6, 2023.
On Jan. 5, after meeting with Chief Magistrate Judge Joseph Spero, the parties reached a settlement, subject to approval of council.
Alderman alleges that during the period in question, council “bullied” citizens with opposing voices and as a result “nobody will come to the meetings anymore.” She said that if you do raise an opposing point of view, “you’re going be shamed in social media.”
She said that at the two meetings where she attempted to read Barich’s statements, there were no others waiting to speak and all that council would have needed to do in each meeting was to let a 3-minute statement be read aloud.
When asked why she thought council acted that way, she said “they hate us.”
In an agreement dated Feb. 9, Alderman and Barich released all claims against the city and Dell’Osso in return for the settlement payment.
A request to counsel for the city for comment was not immediately returned.
