To the reader:

There is a lot here. You can, to save time, read the sub-headings and highlighted phrases, and skim. 

 

• It is recent, and fresh in memory.
• There was a decision made, with a vote. Other City Brown Act violations have been part of long-duration or on-going processes.

• It was quick. The staff report came out in the agenda packet on the previous Friday, and the discussion and vote occurred on Wednesday, just five days later.
• The issues are clear and unambiguous.
• The new City Attorney was physically present and involved.
• And, gladly, the City Council made what can be regarded as a correct and lawful decision.

 

Thank you.

 

— Fred Weis

 

—————————————————–

Douglas White
Arcata City Attorney
White Brenner LLP
Sacramento CA

 

Mr. White —

 

Your presentation and a discussion on the Brown Act is scheduled for the Arcata City Council meeting on December 6, 2023. I look forward to this agenda item and I thank you for coming before the City Council on this matter. I hope that Arcata’s Community Development Director, David Loya, will be present at this meeting.

 

Your presentation is the fifth agenda item out of six on that evening’s full schedule. While certainly the formation of the agenda was not at all up to you, it seems that including this important matter on a crowded agenda might limit the time or attention devoted to it. One question for you, then, would be: If a presentation on the Brown Act could be rescheduled to another regular meeting, or scheduled to be a part of a special meeting, would that be feasible for you?

 

There is no written report of the contents of this presentation. I would think that at least an outline, at a minimum, of what you intend to cover would have been appropriate. Perhaps you can send me a summary of what you intend to discuss.

 

I would be very pleased if you can comment at the meeting on some of the Brown Act issues that we have experienced here in Arcata — in my view and in the view of others. Not that you can comment on all of this — there’s too much — but perhaps on certain aspects, such as agenda title and description issues, or the deciding what is good to know and not good to know issue.

 

From what I see, Brown Act violations lead to a lowering of public trust in our government and a decrease in the willingness of the public to be involved.

 

As we know, I am not a lawyer and do not present myself as one. I have learned about the Brown Act and how it is implemented through reading. In this message here I want to acquaint you with my thoughts and observations on the Brown Act, as well as inform you of some of what we’ve seen here in Arcata over the past two years. On Arcata1.com there are more than twenty articles and letters related to Brown Act issues here in Arcata. “The Brown Act — Selected Articles“ is at arcata1.com/brown-act-selected-articles.  I do not expect you to read through all of these articles, but you may wish to click on a handful or so and skim through their contents. (Because links may not show up in a PDF or printed copy of this message, the URLs of all links are included at the end of this document.)

 

Some of this message is written specifically for you, and other parts are written for the benefit of others who will be reading this. As such, there will be material here that is already known to you about the Brown Act, and material about things that have gone on in Arcata that may be known to those of us here.

Known as California’s transparency or “sunshine” law, the Brown Act was enacted in 1953 to help put an end to backroom dealings that were inaccessible to the public. But it involves much more than that.

 

Among what it includes are the “nuts and bolts” matters of:

• Creating an agenda; 
• Not taking action on items not on the agenda; 
• Times and procedures for providing notice for public meetings; 
• Restrictions and definitions of contact among members of the legislative body, including “serial meetings”;
• Directives on how public comment is handled;
• Distribution of public records, and the requirement that materials available to the legislative body also be made available the public at the same time;
• Closed session meeting specifics;
• Special meetings definition and specifics;
• Rules to be followed during a meeting;
• Instructions on teleconference (video) meetings;
• and more.

I started Arcata1.com because it was very clear to me that the Community Development Department was not supplying the information that is required to make good decisions. I thought Arcata1.com would be an adjunct for additional information — maps and such. I did not anticipate that information would be withheld, mischaracterized,misstated or falsely presented.

 

Some of the lack of full information relates to not having enough time or human resources to do what’s necessary — for instance, better maps or more clear videos and writings. But, as time went on, it became clear that the Community Development Director seemed to be purposely omitting information, skewing information, and mischaracterizing existing information so as to bias or negate what’s needed for the decision-making process.

 

A large example that all of us here are aware of is the decision on the K-L Street couplet and the designation of the L Street Corridor full-width linear park. After the City Council made their decision to not create a new road on L Street and instead create the full-width linear park, a variety of alternatives about how to have bike lanes and safe pedestrian crossings on a K Street that had two-way traffic began to enter the conversation. How is it that those ideas were not presented as a viable alternative a year earlier?  Why was this alternative left out of the K-L Street presentation at the August 23, 2022, joint study session?

The presentation by Todd Tregenza from the consultant GHD on August 23, 2022, was misrepresentational in many ways. (If you want to read a full transcription of the presentation and commentary on the mistruths in it, see the links below.)  What I wrote in my opinion at the time was:  “It is intolerable that a consultant to the City would make a statement like this to the City Council, and it is unacceptable that the Council should hear this without a rebuttal response.” I also consider it upsetting that our Community Development Director pushed for what he apparently thought was best for Arcata, rather than, as the Brown Act requires, recognize that “The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.” The Transportation Safety Committee had a view that differed from that of the Community Development Director, and their views were very much minimized.

 

By offering misrepresentational material to the City Council and Planning Commission, the Community Development Director robbed us of months of forward progress.  (I will add that the details of the Gateway form-based code to include and accommodate the L Street full-width linear park have yet to be discussed.) This is why the Brown Act exists. 

 

Here are some examples — and there are many, many more. Anyone is welcome to disagree with me on how I see these examples, of course. But from the public’s perspective, the public and in very many cases the City Council and Planning Commission have been deprived of receiving unbiased information. And this is considered a violation of the Brown Act as well as a violation of the public trust.

• The Gateway Area Plan discussion at the November 15, 2023, City Council meeting.
  The issue was whether the policies developed for the Gateway plan should be folded into the General Plan and be applicable city-wide, and then retain or dissolve the Gateway Area Plan. From the staff report:  “Staff recommends the Council provide direction whether to retain the Gateway Area Plan as a standalone Element of the General Plan applicable only in the Gateway Area or distribute the new policy into the other General Plan Elements to be applicable citywide, as well as any other direction the Council wishes to provide.”

  But under “Policy Implications” it says, in entirety: “The decision will affect whether the policies developed for the Gateway Plan extend to other areas of the City.”

  In actuality, the Policy Implications of this decision would be far more vast than what was stated. The Planning Commission recognized this and discussed this at their November 14, 2023, meeting, the day before. This is not a minor issue — the implications would be very large. The staff report minimized how crucial this decision would be. This is a withholding of information and as such a violation of the Brown Act provision.

• The K-L Street Couplet alternatives video.
  Throughout the decision-making process on the K-L Street Couplet situation, Arcata Committee and Commission members and the public asked the Community Development Director for maps, evaluations, analyses, etc. of alternatives to the K-L Street Couplet. This started with the Transportation Safety Committee’s request, in January, 2022 — immediately after the first draft Gateway Area Plan came out — and in multiple requests after that. It was not until seventeen months later, in August 2023, that the Community Development Director came out with the video  “Gateway Area Plan Proposed Circulation Network Changes and Evaluated Alternatives.”

  For each of the alternate options to the K-L Street Couplet, on the screen image there is an inset box that lists the drawbacks of that alternative. For example, on the “M Street Southbound” alternative there is “Coastal wetlands, Planned Open Space, Considerable private easements needed, significant impact to development on a few parcels.”
  On the image for the L Street alternative, there is no inset box with these details. And in the discussion on the video, there is no mention of any noted drawbacks of putting a new through-road on L Street. And yet, in fact, a new road on L Street would have much the same drawbacks and complications as shown on other alternative routes — including not having the legal rights-of-way to build a new road on L Street. This was omitted.

  The video also omits the recommendations of Arcata’s Transportation Safety Committee on the couplet — to remove the couplet from consideration, entirely. It presents the alternatives to the couplet and states explicitly that those alternative routes were vetted by the Planning Commission, when, in fact, this video is the first time these alternative routes have been made available to the public, the Transportation Safety Committee, or the Planning Commission. In the video, it’s stated “The Planning Commission reviewed these alternatives” when they did not. There was no discussion and no vetting by the Planning Commission.

  By excluding information necessary to the decision-making process and putting in as facts things that were not true, the Community Development Director seems to want to “decide what is good for the people to know and what is not good for them to know.” This is a violation of the actual words of the Brown Act.

• Typically in dealings with Committees and the Planning Commission, the Community Development Director serves as a go-between in communicating the choices coming from the Committees to the Commission. In the case of the development of the Gateway Area Plan, the intended process included the Community Development Director collecting and assembling information from the Committees.

  In April, 2023, both the Chair of the Transportation Safety Committee (TSC) and the most senior member of the Planning Commission were requesting that the decisions of the TSC not go through the Community Development Director and instead be presented directly by the TSC Chair to the Planning Commision. Why? Because the Community Development Director had on a regular basis mischaracterized and reworded the TSC’s decisions. (To list how many times this occurred is outside the scope of this message.) Once again, “The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.”

Arcata’s agenda titles and descriptions:  Further violations of the Brown Act

A proper title and description for agenda items is key for public involvement. If an agenda is unclear, the public will not be able to discern what the matter is that’s being discussed. For virtually all agenda items other than Community Development items, this does not seem to be a problem. For Community Development agenda items, it is a regular and continuous problem.

 

In lawsuits and rulings on this, the courts have maintained again and again: The title and description must be understandable and able to be followed by an ordinary person. A vague title, even when followed by a description, is not adequate. A description needs to get to the point quickly and not ramble. To see the case law on this, see the link below on case law.

 

More specifically, the court has ruled that if the title and description can indeed be made more clear with little or no effort on the part of the agenda-writer, then it must be more clear.  The operative word is “MUST.”  If it can easily be written with less ambiguity, it must be done so. To do otherwise is viewed as an attempt to deceive or mislead the public. The court has ruled that unclear titles and descriptions are counter to the Brown Act. Where this exists, it is required to cease.

• For what I regard as a somewhat bizarre example of this, there was a discussion on the rezoning of several specific parcels that took place at the April 27, 2023, Planning Commission meeting. (For more on this, see below.)  In this case, a discussion on the rezoning of specific parcels was called “bike rack land use map questions.” How in the world is the public supposed to know that those words refer to the rezoning of specific parcels?

• In the agenda for the most recent Planning Commission meeting, on November 14, 2023, there’s this as an agenda item:

“Consider a Recommendation to the City Council on the General Plan Updates”

What the Commission discussed was the Community Benefits Program and Inclusionary Zoning considerations. Both of those are part of the Gateway Area Plan, and have been listed since the start of this process as being Gateway Area Plan programs. It is true that, strictly speaking, the Gateway Area Plan is an Element of the General Plan, but to this point in time if there’s a discussion on Gateway issues then it is done under the title of Gateway. This was not a typographical error. I suggested that to the Community Development Director and the Commission. They had the opportunity to note that for the record, and they declined to comment.

• For a recent example, I will again return to the November 15, 2023, City Council agenda item on the Gateway Area Plan.

  The title was:   “Consider Direction to Staff on the General Plan 2045 Comprehensive Update.”
  
  This title discloses nothing of what the discussion is to be about. The ordinary reader, in viewing this title, learns absolutely nothing. Essentially it is a meaningless title. This is what we have experienced from the Community Development Director throughout this Gateway Process.

  Brown Act court cases have ruled against this type of title, considering it a form of deceit against the public.

  A more appropriate title would be something on the order of:  “Consider Direction to Staff on adding some or all Gateway Area Plan policies to the General Plan. Consider whether to retain the Gateway Area Plan as a standalone Element of the General Plan.“

  That may be wordy, but it gets the job done. There are other alternatives to a good title.

  The agenda reader can rely on the description. In this instance, the title could be more concise if a statement (such as what’s above) is included as the first sentence of the agenda description. But in the November 15 agenda, the description is rambling and verbose. For purposes of being clear to the public, the very last sentences should have been first. Here’s how it appeared. It is not until after reading 142 words of the description (plus the 11 meaningless words of the title) that we learn what the agenda item is about. The court has ruled that this is not acceptable.

“Consider Direction to Staff on the General Plan 2045 Comprehensive Update.

The City is working on updating its General Plan, which is the overarching policy document for City decisions, including growth and development, conservation and management, budget, mobility and circulation, public services, and a host of other decisions the City makes. General Plans are typically used for 20-year planning periods, laying out the vision for the City for that term. The City included an area plan, the Gateway Area Plan, as one of the new Elements, or chapters, in the General Plan. The purpose of the area plan was to encourage redevelopment of the Gateway Area, one of four areas targeted for infill in the new General Plan. As the policy developed for the Gateway Area Plan, several decision makers and community members saw benefit in not restricting this new body of policy to just the Gateway Area but rather incorporate it City-wide. This item is to discuss expanding the policy in the Gateway Area Plan to be effective Citywide. The Council will provide direction whether to pivot the planning effort to extend the policy to a citywide scope and, if so, how to implement this action.”

Here’s an improvement, using much the same language, but arranged so that a citizen can understand what the agenda item is about:

“Consider direction on expanding the policies in the Gateway Area Plan to be effective Citywide.

This item is to discuss expanding the policy in the Gateway Area Plan to be effective Citywide, and whether to retain or dissolve the Gateway Area Plan as a stand-alone Element of the General Plan.

The City is working on updating its General Plan, which is the overarching policy document for City decisions, including growth and development, conservation and management, budget, mobility and circulation, public services, and a host of other decisions the City makes. General Plans are typically used for 20-year planning periods, laying out the vision for the City for that term. The City included an area plan, the Gateway Area Plan, as one of the new Elements, or chapters, in the General Plan. The purpose of the area plan was to encourage redevelopment of the Gateway Area, one of four areas targeted for infill in the new General Plan. As the policy developed for the Gateway Area Plan, several decision makers and community members saw benefit in not restricting this new body of policy to just the Gateway Area but rather incorporate it City-wide. The Council will provide direction whether to pivot the planning effort to extend the policy to a citywide scope and, if so, how to implement this action.”

 

Having this rezoning not be on the agenda was unfortunate in a number of ways. First, at their April 22, 2023, special meeting the Planning Commissioners had to practically beg — and then demand — that the Community Development Director put the rezoning item on the agenda. As it turned out, he did not do what he was told to do. Second: At that time the Commission was holding extra meetings. As a result, the Community Development Director was advised in in person at the meeting on April 22, in writing on April 24, and in person on April 25 that this item had to be placed on the agenda. And yet he did not do so. He also said that he’d send a message out through the e-notifications about the rezoning. And he did not do that either.

 

This was a violation of the Brown Act, which specifically prohibits discussion and action on items not on the agenda.

Deliberate Obfuscation — and avoiding clarity by using words and phrases in non-standard ways