Cotati settles free speech lawsuit with longtime gadflies for $80,000

Laurie Alderman was in fine spirits the morning of Feb. 23.

“The check cleared yesterday,” reported Alderman, a paralegal who lives in Cotati.

She was referring to the $80,000 settlement the city of Cotati paid to her and George Barich, like Alderman a Cotati resident and fixture at city council meetings.

Both take pride in their roles as gadflies — holding elected officials to account, closely monitoring the actions and decisions of the council.

Over the last 24 years, as Barich noted in a “declaration” for this case in U.S. District Court, he has often engaged in “spirited debate” with members, “offering praise as well as healthy constructive criticism.”

Familiarity, in this case, bred a certain level of animosity, followed by litigation.

Alderman and Barich sued the city and then-mayor John Dell’Osso in federal court in 2021, alleging that their civil rights had been violated. By not allowing Alderman to read a statement from Barich during the public comment period at two city council meetings in 2019, the city and mayor had violated Barich’s First Amendment right to free speech, the plaintiffs claimed.

Their suit also contended that the city violated the Americans with Disabilities Act by failing to provide Barich with sufficient accommodations for his progressive hearing loss and tinnitus at March 2019 meeting.

After failing to have the case dismissed outright, lawyers representing the city of Cotati filed a motion for summary judgment in August, 2022. That is, they claimed that all necessary factual issues had been settled, or were so one-sided they need not be tried.

U.S. District Court Judge Edward Chen disagreed, rejecting that motion on Dec. 22, 2022. A trial was scheduled for February.

Three weeks before the trial was to begin, the city settled with Alderman and Barich.

While he would not speak on the record, Cotati city manager Damien O’Bid released a statement explaining that “the City’s insurance company made a business decision to settle the lawsuit now to avoid spending close to the same amount of money to defend this case in court.”

While Alderman, Barich and their attorneys will receive $80,000, the statement adds, “the plaintiffs will provide a release of claims that they may have prior to Jan. 5, 2023. There is no finding of any City liability and it eliminates the possibility of any new lawsuits being brought by the same plaintiffs for any old unknown grievances.”

2nd settlement for Barich

This is the second five-figure settlement Barich has won from the city of Cotati.

In 2015, he sued the city and its longtime police chief, Michael Parish, for alleged civil rights violations.

That suit stemmed from an incident at a 2014 City Council meeting.

At the end of that meeting, Barich criticized the city’s planning commissioner and called him a liar. Barich was then summoned outside by Parish.

The chief asked Barich if he was making a secret recording of him and told him he would arrest him if he was, court papers said. Also, Parish warned Barich he would arrest him if he ever called anyone a liar at a City Council meeting again, according to court documents.

Barich routinely records city business. For the last several years, he has used a body-worn camera while attending council meetings.

Barich wasn’t taping Parish during their 2014 encounter, but maintained his right to do so. California law requires the consent of all parties involved when recording private conversations, but makes an exception in the case of police officers, who can be recorded in public places.

When his requests for an apology from the chief and council members were met with silence, Barich decided to sue.

At an October, 2015 hearing, U.S. District Judge Vince Chhabria signaled his support for Barich’s claims, saying “the briefs the city of Cotati and the police chief have submitted … show a real lack of respect for the First Amendment in a way I find pretty disturbing.”

The judge said Parish needed to “go back to school on the First Amendment.”

The city paid Barich $50,000 in damages, but admitted no wrongdoing.

Polarizing figure

Barich became a lightning rod for criticism shortly after his election to the city council in November 2008. He was rebuked for using city letterhead without permission to write to then-President Barack Obama, denouncing the federal stimulus package.

Barich also drew widespread condemnation for posting a picture of himself in blackface on his personal website. He was recalled in a special election on Nov. 17, 2009.

He was out of town for the council’s Jan. 8, 2019 meeting. Wishing to be heard, however, he asked Alderman to read a written statement into the record, arguing for assistance to the city’s homeless population.

That statement, said Barich in an email to the Press Democrat, “clearly reminded the council that for many years our homeless, including homeless [Sonoma State University] students, are nearly freezing to death during the coldest nights of the year in Cotati. This simply broke my heart.”

In a follow-up email, Barich railed against Parish and the City Council for “whitewashing the homeless problem in Cotati for the sake of economic development” and “tourism.”

During the public comment period at that 2019 meeting, according to court records, then-mayor John Dell’Osso “indicated he would not allow Ms. Alderman to read Mr. Barich’s statement aloud,” although he would admit it into the into the written record.

At the next meeting, two weeks later, Alderman — whom Barich had appointed as his attorney-in-fact, to “present his testimony at the meeting” — once again sought to read his statement.

Dell’Osso asked the advice of city attorney Robin Donoghue, who confidently stated that city council rules “do not allow for speakers to present a power of attorney and comment for someone else.” The existing rules “do not permit this.”

Alderman voiced her disagreement, noting that this was “a matter of civil rights versus city council rules.” Donoghue was “incorrect,” she added.

Reviewing that exchange in federal court, Judge Chen sided with Alderman.

If such a rule existed, Alderman and Barich also pointed out, it had only ever been applied to them. They provided the court with 13 examples of meetings where persons spoke on behalf of others during the open comment period.

Donoghue is no longer the city’s attorney. Reached by phone, she said she had no comment. Dell’Osso did not reply to emailed requests for comment.

Failed accommodations

Barich’s ADA claim stemmed from a March 2019 special council meeting, held in the community room of the Cotati police station. While the city provided him with two hearing-assist devices, neither worked.

Dell’Osso suggested Barich raise his hand to interrupt the meeting whenever he had trouble hearing the discussion, according to court documents. Barich found that unreasonable, and left the meeting.

The city’s lawyers argued that the ADA claim should also be tossed, according to court documents, “because no evidence suggested that the City or Mayor Dell’Osso acted with deliberate indifference … and because Mr. Barich rejected Mayor Dell’Osso’s proposed reasonable accommodation.”

“This court disagrees,” Chen wrote, in rejecting that request for summary judgment, thus clearing the way for a trial.

Instead, the parties settled.

One reason for that decision, said Alderman in a statement, was to “prevent more taxpayer dollars being used to litigate the case through trial.”

The two-year court battle cost taxpayers approximately $200,000, according to that statement.

O’Bid would not comment for the record on that $200,000 estimate, referring to the separate statement released by the city.

“The City disagrees with much of the information in the statement provided by plaintiffs in their press release,” it said. “The City Council and city staff continually strive to go beyond the legal requirements for open and transparent meetings and accommodations for all residents.”

Alderman estimated that it would’ve cost “another $50,000 or $60,000 in legal fees” to go to trial, where they might have won $200,000, depending on the jury, she believes.

But Alderman is caring for her ailing, 85-year-old mother. Barich was coming off a bout of pneumonia.

They settled, she said, “because we wanted it to end.”

You can reach Staff Writer Austin Murphy at austin.murphy@pressdemocrat.com or on Twitter @ausmurph88.