According to Arcata’s Municipal Code, the Planning Commission shall hold regular meetings twice monthly. In violation of this Code, the Commission has not been holding regular meetings.
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1. The Planning Commission has not been holding their regular meetings in violation of the municipal code.
2. David Loya states all of the meetings are now “special meetings” to Commissioner Tangney.
3. It was not a vote to have special meetings. The Commissioners voted to have the starting time be 5:30 pm.
4. The Planning Commissioners were not told they were voting for special meetings.
5. The Brown Act prohibits the withholding of information. It appears Mr. Loya did withhold information that he knew, in not telling the Planning Commissioners just what — in his view — they were voting for.
6. What is a “special meeting” and how is a special meeting called for? What does “special” mean?
7. The vote was “to change the meeting time to 5:30.” So state the minutes. Not a vote for special meetings. The minutes are incorrect in other ways, and an attempt to correct them was ignored.
8. Mr. Loya says he reached out to Commissioners Lehman and Figueroa before the meeting — outside of the meeting — and introduces what they said as support for this meeting time change. Can he introduce their individual comments to him at an open meeting in this way — not in writing, and as a “they told me” statement? Probably not okay.
9. The actual motion.
10. Commissioner Mayer’s “Point of Order” at the April 11, 2023, meeting.
11. Links to other articles on this matter on Arcata1.com
12. The Planning Commission’s calendar, showing the “cancelled” meetings and the “special meetings.”
The City of Arcata Municipal Code, in “Chapter 3 – Boards, Commissions, Committees and Task Forces” and under “Article 2 – Planning Commission” states the following:
Sec. 2209. Meetings.
The Planning Commission shall hold regular meetings twice monthly as set by schedule established by the Commission. (Ord. 1505, eff. 6/15/2018)
The Commissioners are well-trained to know the meaning of the word “shall.” When “shall” is used (as differentiated from “should”) the meaning is: This must happen as stated.
In the calendar shown here, there are no regular meetings in April, May, and June. The calendar can be viewed in larger scale here below.
Later at that March 14, 2023, meeting of the Planning Commission:
Commissioner Dan Tangney:
David, could you briefly identify which meetings are not just regularly scheduled Planning Commission meetings?
Community Development Director David Loya:
Yeah, the only one on the list right now is the 4/22 meeting. The rest of these are regular meeting dates. With the action that you took earlier these will all be special meetings, because they don’t conform to your standard regular meetings. So they’ll all be special meetings, but they’re on the regular meeting dates.
Let’s get one thing completely clear. “With the action that you took earlier” refers to the vote by the Planning Commissioners earlier that evening. The Planning Commission did not take action to declare the meetings as special meetings. The action was to make the meetings be earlier in the day. The motion was “I’ll make a motion for 5:30.”
The motion was not: “I’ll make a motion to establish special meetings that are held at 5:30.”
Chair Davies said “Yes, we’re looking for a motion. And these would be special meetings that would last through our June-July report to the City Council.” But no one made that motion.
Planning Commissioners: Did you know what you were voting for? Were you informed that you were creating special meetings? Was there a discussion, a motion, and a vote for creating special meetings?
The clear and obvious answers to those questions are: No, you did not know. There was no discussion about “special meetings.” Yes, it was mentioned. But not discussed. And there was no vote on “special meetings.”
I propose that there were two people in the Chambers who knew that the Commission was, in effect, voting on creating “special meetings” — and that those two persons were Community Development Director David Loya and Planning Commission Chair Scott Davies.
And thus I propose that Commissioners Tangney, Simmons, and Mayer did not know. How could they? Special meetings were not discussed. In fact, the vote was described as “to adjust the times temporarily.”
And look at the staff report for that March 14 meeting:
“Vice-Chair Davies requested the Commission consider starting its meetings earlier on the regular second and fourth Tuesdays to provide additional time for Commission deliberations on the Strategic Infill Redevelopment Program documents.”
The staff report goes on, under Recommendations:
“Staff further recommends the Commission consider voting to establish a series
of special meetings to provide earlier start times for the Commission meetings.”
And the staff report conclusion:
The Commission may set meeting start times by majority vote.
a) The issue of these earlier (e.g. at 5:30 pm rather than 6:00 pm) was discussed.
b) The issue of “special meetings” — and what the ramifications of what a special meeting is — was not discussed.
c) The motion, second, and vote were not for creating special meetings.
d) The minutes do not show the Commission voting on special meetings.
The writers of the Brown Act transparency law saw fit to include this sentence in the very first paragraph of the law:
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.
IF:
We assume that Community Director David Loya knew — at the time of the Planning Commissioners’ discussion of changing the meeting times from 6:00 to 5:30 pm — that, in his view, the change to an earlier time could have the effect of then labeling these meetings as “special meetings” and, in consequence, allow a lessening of public comment.
THEN:
It would be the case that Mr. Loya acted in violation of the Brown Act, in withholding that information and determining himself what is good for the people to know and what is not good for them to know.
Supported by:
Mr. Loya’s statement in response to a Commissioner’s query, over an hour after the vote to start the meetings earlier.
“With the action that you took earlier these will all be special meetings, because they don’t conform to your standard regular meetings. So they’ll all be special meetings, but they’re on the regular meeting dates.”
From the Humboldt County documents on “Brown Act – Regular & Special Meetings”
Updated January 2013.
Special meetings
The presiding officer or a majority of a legislative body, including an advisory or
standing committee, may call a special meeting at any time.
We will note the use of the singular “may call a special meeting.” Not: “May call special meetings” — plural.
The Brown Act does not in itself specify just what a “special meeting” is. In a basic sense, it is a meeting that is not scheduled. “Regular meetings” are meetings occurring at the standard dates, times, and location. So, by logic, any meeting that is not a standard date or time can be termed as a “special meeting.” But what constitutes a non-regular date or time? A non-regular date is easily known. A non-regular time might be 10:00 AM rather than a regular meeting time of 6:00 PM.
But to have a meeting at 5:30 PM on the same date as a regular meeting would not be seen by the courts as substantially different from a 6:00 PM meeting time on that same date. That instance would be regarded as a change of time, but not as a “special meeting.”
The minutes read:
“A motion by Commissioner Simmons and second by Commissioner Tangney to change the meeting time to 5:30 p.m. was approved.
AYES: Davies, Simmons, Tangney. NOES: Mayer. ABSENT: Figueroa, Simmons. ABSTENTIONS: None.
The vote was 3 to 1. We can note that the minutes are incorrect, as it shows Commissioner Simmons as both voting Aye and being absent. At the subsequent meeting on March 27, Chair Davies removed the minutes from the consent calendar and he read the necessary changes into the record (that he did this is in the 3/27 minutes, and is, of course, on the video of the meeting) but the changes spoken by Chair Davies did not “take” and the 3/14 minutes were not changed. At the 4/11 meeting there was an attempt to correct this error, but that attempt was ignored. The minutes, as they stand, are incorrect.
Dan Tangney (Commissioner) 51:02
Respecting Judith’s position, I like the idea of waiting for other Commissioners to weigh on it. I’d like to hear from them.
David Loya – Community Development Director 51:13
I do actually have some feedback on that, if you’re interested in knowing. Because I did reach out to — knowing that Christian and Peter weren’t going to be here. And anticipating that this action might be taken, I reached out to them beforehand. I think Peter addresses in his letter here. Maybe he doesn’t address it specifically, actually.
[Note: David Loya misspoke, and then waffled. This issue is not addressed at all in Peter Lehman’s letter. Further, to have “reached out to them beforehand” and then to bring this into the Planning Commission open meeting as hearsay — in order to sway the “I’d like to hear from them” comment from Commissioner Tangney — is of dubious from a legal Brown Act perspective.]
But he did tell me in person that he was in favor of moving the meetings earlier in the day. In fact, he’d like that to be a permanent change. And Christian said that he could do five at the very earliest. I’m also getting information from our IT that 5:30 would be the earliest that we could start with IT. So if you did want to amend the timeframes, you know, 5:30 might be, you know, appropriate for now.
Matt Simmons 52:59
I’ll make a motion for 5:30.
Scott Davies (Chair) 53:02
Is there a second?
Dan Tangney (Commissioner) 53:03
Yeah, I’ll second 5:30.
At the April 11, 2023, Planning Commission meeting, Commissioner Judith Mayer asked the question:
“Point of Order. I’m wondering why this is listed as a Special Meeting. This is the regularly scheduled second Tuesday of the month.”
David Loya replied:
“That’s because the Commission decided to take 5:30 meetings instead of 6:00. So your regular scheduled meetings are at 6:00. And so even though they’re on the same day, they’re at a different time. So they’ll be Special Meetings from here.“
The 6-minute segment of the video of the March 14, 2023, meeting where this vote was taken — along with a full transcription of what was said — can be seen at How and why did the Planning Commission change their meetings from 6:00 PM to 5:30?
As I wrote a month ago, in the article Calling it a “Special Meeting” does not make it a Special Meeting, “As just about everyone knows, just by saying something is true — that does not make it true.”
What happened at the April 11 Planning Commission meeting? A 6-minute video and transcription. The Chair first announced that there would be just a single period for public comment. Then, after a one-minute private discussion with David Loya, the Chair relented and allowed additional public comment at the conclusion of the main topic of the night.
Discarding the democratic process even further: The Planning Commission meeting – April 11, 2023. Calling this a special meeting allowed, by law, an allowable reduction in the manner in which input from the public is taken.
But far more people were in the audience at this Planning Commission than at prior Planning Commission meetings, and they did not like the Chair’s announcement. At a typical meeting, there are 4 or 5 speakers. At this meeting, there were 21 members of the public who spoke.
