The following is from a letter sent on Wednesday, March 22, 2023, to Arcata City Manager Karen Diemer, Community Development Director David Loya, the Planning Commission, the City Council, Assistant City Engineer David Caisse, and the Transportation Safety Committee. The original letter was titled “Transportation Safety Commission Meeting cancellation / Upcoming Sea Level Rise Meeting recording / Brown Act violations” and can be seen in its entirety here.
Brown Act Violations
The Brown Act requires that material provided to a majority of an agency be also made available to the public at the same time they are distributed to the governing body. This can mean having copies available to the members of the public who are in physical attendance, and also online on the agency’s website, at an easy-to-find location that is identified in the agendas of all meetings.
This is specified explicitly in the 2nd paragraph of each and every City Agenda — that these materials are to be placed in the agenda binder and on the City’s website.
Pursuant to Government Code section 54957.5, all writings or documents relating to any item on this agenda which have been provided to a majority of the Planning Commission, including those received less than 72 hours prior to the Planning Commission meeting, will be made available for public inspection in the agenda binder located on the counter in the lobby at Arcata City Hall, 736 F Street, during normal business hours, and on the City’s website at www.cityofarcata.org.
A key element here is the phrase “at the same time they are distributed to the governing body.”
I have been attending City meetings for over a year now — mostly in person and sometimes via Zoom. I am going on record as saying that I have not once seen this done. I check the binder frequently. I have not once seen the specified material in this binder. And if it is on-line it certainly is not in a place where it can be found.
A recent example is the 1-1/2 page memo from Commissioner Peter Lehman that was distributed to the Commissioners at the March 14, 2023, meeting. Paper copies of this memo were made available to the public in attendance at that meeting. But, by law, the memo should have been available on-line, at the time it was distributed to the Commissioners. By law, if a member of the governing body or staff of the local agency prepared the materials, and the governing body received the materials during the meeting, the public must have access to the materials during the meeting.
If members of the Transportation Safety Committee were notified of the March 21 cancellation, and the public was not, this would also qualify as an infraction.
By my estimate, there have been dozens of infractions over this past year.
A possible solution
Designate a specific webpage for this purpose, and specify this webpage on the agenda listings. Anything that staff has even a small suspicion of being required per Code § 54957.5, AB 2647, and other pertinent legislation should be simultaneously posted to that webpage, as soon as it is received or distributed. It should have a recognizable, useful, date-oriented title such as “2023-03-14 Planning Commission – Peter Lehman memo.pdf” and would just be added in the list, so to be in close-to chronological order. And anything added to this page during or prior to the meeting must be mentioned at the beginning of the meeting or at such time as appropriate, and also specifically included in the minutes.
This, I think, will allow the City to comply with these State laws in a thorough and complete manner — and in a simple, easy-to-accomplish manner.
I will note that letters sent to the agency from the public are included by definition of “a public record related to an agenda item for an open session of a regular meeting of the legislative body of a local agency and is distributed to all, or a majority of all, of the members of a legislative body of a local agency by a person in connection with a matter subject to discussion or consideration at an open meeting.”
Thus, I regard the removal of letters from the public from the Agenda Packets, as has been done after May, 2022, and placing them away from the agenda packet at a later time, ranging from 2 weeks to 3-1/2 months later, to be against the wishes and interests of the public, and a continuous, gross violation of State law — and one which, since it can be remedied with only a small amount of effort on the part of Staff, represents a clear, obvious, and evident disregard for applicable law and for recognition of public engagement.
As I have said to the City Manager, to the City Council, and to the Planning Commission:
This process of developing a Gateway Plan is difficult enough. Why augment a legal risk when to do things in accordance with State law involves such a relatively minor amount of effort?
On a risk / reward basis, current City actions make no sense to me.
See:
California School Boards Association website.
Requirements when materials are provided less than 72 hours prior to a regular meeting.
Board members should note a new ruling regarding timing and document access
https://publications.csba.org/california-school-news/july-2022/requirements-when-materials-are-provided-less-than-72-hours-prior-to-a-regular-meeting/
and many other sources.
There are three timeframes that may apply:
- If board members receive the materials more than 72 hours before the scheduled meeting, then the materials are deemed public records and must be made available upon request and without delay.
The location where the documents can be publicly inspected must be included in the posted agenda. (Gov. Code, §§ 54954.1 and 54957.5, subd. (a).)
If a member of the governing body or staff of the local agency prepared the materials, and the governing body received the materials during the meeting, the public must have access to the materials during the meeting. (Gov. Code, § 54957.5, subd. (c).) If someone outside of the local agency prepared the materials and gave them to the governing body during the meeting, the public must receive access to the materials after the meeting. (Gov. Code, § 54957.5, subd. (c).)
If governing body members receive the materials less than 72 hours before a regular meeting, then the materials must be made available for public inspection at the same time they are distributed to the governing body. (Gov. Code, § 54957.5, subd. (b)(1) and (2).)