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Date: Monday, July 24, 2023
To: Council, Commissioners, City Manager, Staff, City Attorney (forwarded to)
From: Fred Weis
Please be aware of the multiple Brown Act Violations committed in connection with material in the July 25, 2023, Planning Commission agenda packet.
Summary:
The July 25, 2023, PC agenda packet contains a version of the “Other Considerations” table that was made available to the Commissioners and not to the public. This is a distinct violation of California’s Brown Act. There have been other Brown Act violations connected with this “Other Considerations” table as well.
Details:
Pages 162-169 contain a new version of the “Other Considerations” table. (As is typically the case, there is no date on this document.) The document has new items on it, relative to the July 11 or June 27 versions.
Until the Planning Commission packet came out, on Friday, July 1, the public had not seen this document. But clearly the Commissioners had seen the contents of it, as their comments on the contents were already included in this document. As you are aware, the Brown Art requires that documents sent to Commission members be made available to the public at the same time.
In other words, the Planning Commissioners were privy to a document that was not available to the public. In addition, the Commissioners took action on it outside of a public meeting.
Furthermore, two columns of information have been removed from this July 25 table. The columns for the “Source” of the recommendation, as well as the column showing “Policy Implications / Staff recommendation” — which were present in all previous versions of the “Other Considerations” table — have both been removed. Without these columns, the public does not know where this recommendation came from, and the public does not even know what the Staff recommendation is that the PC is concurring with. That is to say, the public cannot tell from this document what it is that the Planning Commissioners are saying “Concur with staff” to. The table says “Concur with staff” but what does that mean? Not only is this absurd in itself, it is also a further violation of California’s Brown Act transparency laws.
As the Commissioners and Staff know, I have been highly critical of this “Other Considerations” document from the start. At the beginning, the table was said to include the proposed changes that were in conflict with the draft plan. “Recommendations for changes to the Plan that are either in conflict with the draft or have competing recommendations are available for review here.” The implication describes an intentions that this be all-inclusive. But that is far from true.
At the June 27, 2023, meeting, the Community Development Directory finally acknowledged: “There absolutely, I will acknowledge, there absolutely are things that folks have said that are not included in this table that they’ve recommended. We have not captured everything. That was not the intent to capture everything. The Gateway Plan, we tried to do our best to capture what, you know, public members wrote, and what Committees decided in their formal decisions.” And what I say is: “We tried to do our best” — really? This table does not look like the results of someone trying to do their best. All those months of public comment and detailed letters to the Planning Commission — and this table purports to include that? That is hardly true.
Even the Chair of the Planning Commission is ignored
As I have brought up before, the Recommendation that is summarized as “Create new zone type surrounding Creamery District” is shown as coming from a “Public Member.” In actuality this came from the former Chair of the Planning Commission Julie Vaissade-Elcock, as well as a letter signed by 23 members of the community.
I ask the Mayor; I ask the Planning Commission Chair, Scott Davies; I ask the City Manager: How would you feel if you had brought up a recommendation, and your words were mischaracterized as coming from a “public member”?
The fourth sentence of California’s Brown Act: “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.”
Other Brown Act Violations, and a request for a remedy
While we are here, I request the City Manager arrange to provide some education to the Community Development Director on the elements of the Brown Act and specifically what constitutes putting a document into the public record. As he should know, any document that is made available to the Planning Commission or is made available during a meeting MUST be made available to the people who may be watching that meeting but who are not physically present — at the same time.
A memo submitted by Commissioner Lehman was available in public at the March 14 PC meeting. But it was not available to the non-present viewing public. Mr. Loya seems to feel that something is part of the public record just because he says so. “Commission Lehman’s comments are part of the public record” he said — even though no action was taken to put into the public record. Four months after the fact, Commissioner Lehman’s comments are still not in the public record.
I have given the Director an easy way to partially make up for the original error, by attaching Commissioner Lehman’s memo to the minutes. That does not solve the issue of the comments not being available to the viewing public at the March 14 meeting, but is a partial remedy. This suggestion has been ignored. The accurate minutes for that March 14 meeting have still not been approved — over four months later. It shows under “Correspondence / Communications” the draft minutes show “None.”
Partial remedy: Include mention of Commissioner Lehman’s comments in the “Correspondence” on the minutes. Include and note Commissioner Lehman’s comments as an attachment with the minutes of the March 14 meeting. Or: Include Commissioner Lehman’s comments as an attachment for a future PC meeting, with an explanation that this should have been included with the March 14 meeting.
Some other history about this “Other Considerations” table
In the June 27, 2023, version of this table, the Community Development Director took it upon himself to enter “Concur with Staff” in 13 places, even though the Commission had not discussed the contents of this table. When I asked about this at the June 27 meeting,
Councilmembers, I sincerely hope you find this cavalier approach to the truth to be disturbing. The Director has inserted, as fact, statements attributed to the Planning Commissioners that had not occurred. Because this table would be part of the material offered to the City Council as part of the PC’s interim draft working documents, I requested that a separate properly-labeled column be put utilized, labeled as: “How Staff expects the Commissioners will view this recommendation.” To do otherwise would be factually invalid.
Why this is bothersome
The Community Development Director has shown disregard for the California open meetings and transparency laws on many occasions. Perhaps he knows the law and acts in disregard of the law anway, or perhaps he does not know the law. Either situation is disturbing.
There was an instance where there was a technical glitch resulting in people watching the meeting by video not having any sound. At the meeting Mr. Loya said that was not a problem, that what went on in the room was sufficient, and wanted to continue with the meeting. That response indicates a misunderstanding of the law.
What is bothersome is that with just a small amount of effort, the Brown Act conditions could be followed. But our Director refuses, again and again, to abide by the simple and clear directives of existing laws.
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