---

 

Note:  What is shown below is a copy of the original letter.

 

Hello, David —

Thank you for writing. Much of what you wrote as an initial response is factually correct. However what you wrote is not pertinent to my original message. I’ll spell it out here again, so you might understand.

To the Commissioners and Councilmembers:  If this does not concern you, please feel free to not read further. The Community Development Director removed the e-mail addresses of all but the City Manager, the Mayor, and the Planning Commission Chair. I believe it should be your choice if you want to read this or not.

To the Director:  Your response does not indicate that you comprehend what I wrote. Perhaps you may wish to read the original message again, read what’s below, and respond again.

If I am incorrect, I will gladly issue an apology. As it stands, there is information missing in the new “Other Considerations” table that any normal person would require in order to understand the decisions of the Planning Commissioners. And some of that missing information must have been provided to the Planning Commissioners — otherwise they could not have responded as they did.

Putting this more strongly, there is necessary information missing from this table — and there is information in the table that is incorrect or falsely portrayed.

To make reading and referencing easier, I have used numbers for each section.

1. The Director’s response included:  “And the new information that was included is being released to the public and the Commission simultaneously.”

   Regarding the first two items on the table (the two new items):  How can the Commissioners have said “Concur with staff” unless they had some knowledge of what the “Staff Recommendation” was? And where did these two new items come from? That information is missing on this table. 

   The “Other Considerations” table that is in the July 25 PC packet is missing the column for “Source” and, more critically, is missing the column for “Policy Implications / Staff recommendation.” Thus, when a member of the public looks at this table and reads “Concur with staff” it is impossible to know what that Commissioner is concurring with. Because the staff recommendation is not there.

2. Simple item: Commissioner Lehman’s March 14th memo. Is this considered to be in the public record or not?
   To the Director:  Just say — Yes, I consider this memo to be in the public record.  Or — No, it’s not there yet.

3. Simple question: Is the Director not aware that if there is a technical problem so that viewers not at the meeting are deprived of audio or video, then the meeting must stop? The viewers at home are just as important as the viewers in the room. This is a recent part of the Brown Act, enacted as a result of the onset of the pandemic.

   Here are the Director’s words at the July 26, 2022, Planning Commission meeting:
   “Chair, if I may, just a point of order. I think what I understand you’re attempting to do is to allow people to be recorded on to the record. I believe they’re in the record. It may be a little muffled. But we’ve, you’ve taken the public comment. So certainly up to your discretion, but there’s no requirement that you, that people are actually recorded on YouTube into the record to satisfy the public comment requirements.”

   A) The sound was not “a little muffled.” According to a call-in speaker, there was no sound. At the time when he spoke, the Director would have absolutely no idea whether the sound was muffled or absent, or whether the sound was recorded at all. (As the call-in user had told us, the sound was 100% absent — and indeed there is a gap in the audio at that point.) In other words, the Director had no direct knowledge, and was bluffing.
   B) There is indeed a requirement that people’s comments be heard — to satisfy the Brown Act.

4. Simple item:  There were 8 topics missing in the July 11 version of the “Other Considerations.” They just vanished. The July 25 version has those 8 topics restored, and also has 2 new topics, with no explanation. 
5. As mentioned, the June 27 version had “Concur with staff” inserted in 13 places even though the Commission had not discussed the contents of this table.  “We’ve inserted what we expect you’re going to say, as a Commission — that you concur with staff on this issue, for example” is what the Director said. That table cannot be regarded as a true depiction of the facts. That is a violation of the Brown Act.

   Councilmembers:  Does it not bother you that the Director would insert that the Commission “concurs with staff” — even when the table hadn’t been discussed? Do you think this behavior is okay?

6. Certainly the Commissioners knew what they were responding to. Therefore, I am assuming that the Commissioners received this material in some form that is different from what is shown. Regardless, those missing columns make this table useless to the public, because of information that is withheld. That is a violation of the Brown Act.
7. The three more recent members of the Planning Commission cannot be expected to know this, but Chair Davies, Vice-Chair Tangney, and Commissioner Mayer will. (As will former Commissioner, current Councilmember Kimberley White.) The topic “Zone Boundaries – Create new zone type surrounding Creamery District” was not suggested by a “Public Member.” It is a topic brought up by the former Chair of the Planning Commission, Julie Vaissade-Elcock, and discussed at the September 13, 2022, PC meeting (about 1:55 on the video).

   This key information has been withheld in every version of this “Other Consideration” table since the first one, February 1. I have brought this matter up to the Director for correction, many times. For the Director to withhold information from the public is a violation of the Brown Act.

8. Not mentioned in my first message:  On the spreadsheet that was used to make up this table, there is another column which has been kept hidden from the public. It shows the name of the person or persons as the source of the comment and the date. From this information it seems to be the case that where the public was involved these comments came from letters only, and not from oral comments, and specifically not from the January 2022 Open House, nor from other public engagement. Only from letters — and not from all of the letters; just from some of the letters.
   1. From looking at the name and the date of the Source, we can see even more errors of fact contained in this “Other Solutions” table. For example “Circulation – Decrease driving speed on K and 11th” from HCAOG is shown as from Oona Smith on July 19, 2022.

      The response from Staff is “Speed on K and 11th is currently 25 mph. Staff recommends no change.” This is a mischaracterization of what Oona Smith wrote. Her letter on that date says much, but does not say that the speed on K or 11th should be reduced below 25 mph. In fact, 11th Street is not mentioned at all in her letter.

   2. We learned from this table that the “Architects Stakeholder Group” had a recommendation of “Limit to 6-stories.” Who is in the “Architects Stakeholder Group” and when did they meet or submit this recommendation?  The public does not know.
9. A small item, but worth pointing out. Not mentioned in my first message: The column heading for the number of Commissioners who disagreed with the staff recommendation is titled “PC Recommendation.” This is misleading. It should be called “Commissioners against the Staff Recommendation” or such. 

The Director’s reply was:

“This is not a brown act violation. It is literally in the packet under the agendized topic, which was released to all interested parties at the same time last Friday. The information in the table was collected prior to the last meeting by staff and released to the Commission and public in the public meeting (i.e., at the same time). No Commissioners had prior knowledge of any other commissioner’s vote before its release. And the new information that was included is being released to the public and the Commission simultaneously. I hope this helps clear up your confusion.”

David, if you are unwilling to reply individually to the nine items above, at least answer this: The Staff Recommendations are not in this table. How could the Commissioners say “concur with staff” unless they received different information from what the public has received here?

— Fred Weis

======================================

David Loya	Tue, Jul 25, 1:01 PM (12 days ago)		Reply
to Sarah, Fred, Scott, Karen, Jennifer, Delo

Thank you, Fred.

 

As you are no doubt aware, email communications with a majority of the members of a Brown Act body is a Brown Act violation, which is why I did not perpetuate the violation by including the other members in my response then and now.

 

Thank you for your input and please note that it is included in the record. If any decision makers wish to explore the questions you’ve raised in more detail, I am certain they will inquire.

 

Regards,

Fred <[email protected]>	Tue, Jul 25, 2:31 PM (12 days ago)		Reply
to David, Scott, Sarah, Karen, Jennifer, Delo

David:

It appears that you are refusing to respond to even the simplest of questions. 

At the close of my earlier message I wrote:

David, if you are unwilling to reply individually to the nine items above, at least answer this: The Staff Recommendations are not in this table. How could the Commissioners say “concur with staff” unless they received different information from what the public has received here?

I’ll repeat:  The Staff Recommendations are not in the table in this July 25 packet. That’s what the public is seeing. Yet the Commissioners are clearly responding to something when their entry reads “Concur with staff.” What were they responding to?

And can you please, please change the source of the topic “Zone Boundaries – Create new zone type surrounding Creamery District” from “Public Member” to be the former Chair of the Planning Commission, Julie Vaissade-Elcock, as she discussed at the September 13, 2022, Planning Commission meeting. The topic is shown on the spreadsheet from which this table is derived as being from me on 9/14/2022. That’s not correct. It was not me. It was the Chair, on 9/13. Yes, it makes a difference to be misrepresenting the input from the Chair of the Planning Commission. Thanks.

On a more personal level — and I don’t expect you to reply on this — why is it so difficult for you to say “I made a mistake”? Why is it that you feel the need to bluff and attempt to deceive when you don’t know the answer to something, or when a truthful answer would result in something you don’t want to say?

As stated, I feel that the Gateway Plan would be much farther advanced, and with results more likely feasible for the production of housing, if the process were occurring in a more straightforward fashion.

Cheers,

 — Fred

 

On Tue, Jul 25, 2023 at 1:01 PM David Loya <[email protected]> wrote:

Thank you, Fred.

 

As you are no doubt aware, email communications with a majority of the members of a Brown Act body is a Brown Act violation, which is why I did not perpetuate the violation by including the other members in my response then and now.

 

Thank you for your input and please note that it is included in the record. If any decision makers wish to explore the questions you’ve raised in more detail, I am certain they will inquire.

 

Regards,

 

David Loya (him)

Community Development Director

City of Arcata

1. 707-825-2045

 

I acknowledge my residence in Goudi’ni (Arcata), part of the ancestral territory of the Wiyot peoples. I offer my reconciliation and respect to their elders past and present.

https://www.wiyot.us/162/Wiyot-Placename-Video

 

 

To grow opportunity and build community equitably.

READ THE GATEWAY PLAN     

Learn More About Public Meetings and Planning

 

Some services, such as water bills and police services, are available on-call. Please check our website www.cityofarcata.org for the latest information on accessing City services.

 

 

 

 

From: Fred <[email protected]>
Sent: Tuesday, July 25, 2023 11:57 AM
To: Scott Davies <[email protected]>; Dan Tangney <[email protected]>; Judith Mayer <[email protected]>; Matthew Simmons <[email protected]>; Peter Lehman <[email protected]>; Joel Yodowitz <[email protected]>; Sarah Schaefer <[email protected]>; Meredith Matthews <[email protected]>; Stacy Atkins-Salazar <[email protected]>; Alex Stillman <[email protected]>; Kimberley White <[email protected]>; David Loya <[email protected]>; Karen Diemer <[email protected]>; Jennifer Dart <[email protected]>; Delo Freitas <[email protected]>
Subject: Re: Brown Act Violations – the July 25th Planning Commission Packet

 

CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Hello, David —

 

Thank you for writing. Much of what you wrote as an initial response is factually correct. However what you wrote is not pertinent to my original message. I’ll spell it out here again, so you might understand.

To the Commissioners and Councilmembers:  If this does not concern you, please feel free to not read further. The Community Development Director removed the e-mail addresses of all but the City Manager, the Mayor, and the Planning Commission Chair. I believe it should be your choice if you want to read this or not.

 

 

To the Director:  Your response does not indicate that you comprehend what I wrote. Perhaps you may wish to read the original message again, read what’s below, and respond again.

 

If I am incorrect, I will gladly issue an apology. As it stands, there is information missing in the new “Other Considerations” table that any normal person would require in order to understand the decisions of the Planning Commissioners. And some of that missing information must have been provided to the Planning Commissioners — otherwise they could not have responded as they did.

 

Putting this more strongly, there is necessary information missing from this table — and there is information in the table that is incorrect or falsely portrayed.

 

To make reading and referencing easier, I have used numbers for each section.

 

1. The Director’s response included:  “And the new information that was included is being released to the public and the Commission simultaneously.”

   Regarding the first two items on the table (the two new items):  How can the Commissioners have said “Concur with staff” unless they had some knowledge of what the “Staff Recommendation” was? And where did these two new items come from? That information is missing on this table. 

   The “Other Considerations” table that is in the July 25 PC packet is missing the column for “Source” and, more critically, is missing the column for “Policy Implications / Staff recommendation.” Thus, when a member of the public looks at this table and reads “Concur with staff” it is impossible to know what that Commissioner is concurring with. Because the staff recommendation is not there.

2. Simple item: Commissioner Lehman’s March 14th memo. Is this considered to be in the public record or not?
   To the Director:  Just say — Yes, I consider this memo to be in the public record.  Or — No, it’s not there yet.
3. Simple question: Is the Director not aware that if there is a technical problem so that viewers not at the meeting are deprived of audio or video, then the meeting must stop? The viewers at home are just as important as the viewers in the room. This is a recent part of the Brown Act, enacted as a result of the onset of the pandemic.

   Here are the Director’s words at the July 26, 2022, Planning Commission meeting:
   “Chair, if I may, just a point of order. I think what I understand you’re attempting to do is to allow people to be recorded on to the record. I believe they’re in the record. It may be a little muffled. But we’ve, you’ve taken the public comment. So certainly up to your discretion, but there’s no requirement that you, that people are actually recorded on YouTube into the record to satisfy the public comment requirements.”

   A) The sound was not “a little muffled.” According to a call-in speaker, there was no sound. At the time when he spoke, the Director would have absolutely no idea whether the sound was muffled or absent, or whether the sound was recorded at all. (As the call-in user had told us, the sound was 100% absent — and indeed there is a gap in the audio at that point.) In other words, the Director had no direct knowledge, and was bluffing.
   B) There is indeed a requirement that people’s comments be heard — to satisfy the Brown Act.

4. Simple item:  There were 8 topics missing in the July 11 version of the “Other Considerations.” They just vanished. The July 25 version has those 8 topics restored, and also has 2 new topics, with no explanation. 
5. As mentioned, the June 27 version had “Concur with staff” inserted in 13 places even though the Commission had not discussed the contents of this table.  “We’ve inserted what we expect you’re going to say, as a Commission — that you concur with staff on this issue, for example” is what the Director said. That table cannot be regarded as a true depiction of the facts. That is a violation of the Brown Act.

   Councilmembers:  Does it not bother you that the Director would insert that the Commission “concurs with staff” — even when the table hadn’t been discussed? Do you think this behavior is okay?

6. Certainly the Commissioners knew what they were responding to. Therefore, I am assuming that the Commissioners received this material in some form that is different from what is shown. Regardless, those missing columns make this table useless to the public, because of information that is withheld. That is a violation of the Brown Act.
7. The three more recent members of the Planning Commission cannot be expected to know this, but Chair Davies, Vice-Chair Tangney, and Commissioner Mayer will. (As will former Commissioner, current Councilmember Kimberley White.) The topic “Zone Boundaries – Create new zone type surrounding Creamery District” was not suggested by a “Public Member.” It is a topic brought up by the former Chair of the Planning Commission, Julie Vaissade-Elcock, and discussed at the September 13, 2022, PC meeting (about 1:55 on the video).

   This key information has been withheld in every version of this “Other Consideration” table since the first one, February 1. I have brought this matter up to the Director for correction, many times. For the Director to withhold information from the public is a violation of the Brown Act.

8. Not mentioned in my first message:  On the spreadsheet that was used to make up this table, there is another column which has been kept hidden from the public. It shows the name of the person or persons as the source of the comment and the date. From this information it seems to be the case that where the public was involved these comments came from letters only, and not from oral comments, and specifically not from the January 2022 Open House, nor from other public engagement. Only from letters — and not from all of the letters; just from some of the letters.

1. 1. From looking at the name and the date of the Source, we can see even more errors of fact contained in this “Other Solutions” table. For example “Circulation – Decrease driving speed on K and 11th” from HCAOG is shown as from Oona Smith on July 19, 2022.

      The response from Staff is “Speed on K and 11th is currently 25 mph. Staff recommends no change.” This is a mischaracterization of what Oona Smith wrote. Her letter on that date says much, but does not say that the speed on K or 11th should be reduced below 25 mph. In fact, 11th Street is not mentioned at all in her letter.

   2. We learned from this table that the “Architects Stakeholder Group” had a recommendation of “Limit to 6-stories.” Who is in the “Architects Stakeholder Group” and when did they meet or submit this recommendation?  The public does not know.

1. A small item, but worth pointing out. Not mentioned in my first message: The column heading for the number of Commissioners who disagreed with the staff recommendation is titled “PC Recommendation.” This is misleading. It should be called “Commissioners against the Staff Recommendation” or such. 

 

The Director’s reply was:

“This is not a brown act violation. It is literally in the packet under the agendized topic, which was released to all interested parties at the same time last Friday. The information in the table was collected prior to the last meeting by staff and released to the Commission and public in the public meeting (i.e., at the same time). No Commissioners had prior knowledge of any other commissioner’s vote before its release. And the new information that was included is being released to the public and the Commission simultaneously. I hope this helps clear up your confusion.”

 

David, if you are unwilling to reply individually to the nine items above, at least answer this: The Staff Recommendations are not in this table. How could the Commissioners say “concur with staff” unless they received different information from what the public has received here?

 

— Fred Weis

======================================

 

 

On Mon, Jul 24, 2023 at 4:04 PM David Loya <[email protected]> wrote:

Fred,

 

This is not a brown act violation. It is literally in the packet under the agendized topic, which was released to all interested parties at the same time last Friday. The information in the table was collected prior to the last meeting by staff and released to the Commission and public in the public meeting (i.e., at the same time). No Commissioners had prior knowledge of any other commissioner’s vote before its release. And the new information that was included is being released to the public and the Commission simultaneously. I hope this helps clear up your confusion.

 

Sincerely,

 

David Loya (him)

Community Development Director

City of Arcata

1. 707-825-2045

 

I acknowledge my residence in Goudi’ni (Arcata), part of the ancestral territory of the Wiyot peoples. I offer my reconciliation and respect to their elders past and present.

https://www.wiyot.us/162/Wiyot-Placename-Video

 

 

To grow opportunity and build community equitably.

READ THE GATEWAY PLAN     

Learn More About Public Meetings and Planning

 

Some services, such as water bills and police services, are available on-call. Please check our website www.cityofarcata.org for the latest information on accessing City services.

 

 

 

 

From: Fred <[email protected]>
Sent: Monday, July 24, 2023 2:01 PM
To: Scott Davies <[email protected]>; Dan Tangney <[email protected]>; Judith Mayer <[email protected]>; Matthew Simmons <[email protected]>; Peter Lehman <[email protected]>; Joel Yodowitz <[email protected]>; Sarah Schaefer <[email protected]>; Meredith Matthews <[email protected]>; Stacy Atkins-Salazar <[email protected]>; Alex Stillman <[email protected]>; Kimberley White <[email protected]>; David Loya <[email protected]>; Karen Diemer <[email protected]>
Subject: Brown Act Violations – the July 25th Planning Commission Packet

 

CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

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, the Director said: “We’ve inserted what we expect you’re going to say, as a Commission — that you concur with staff on this issue, for example.”  That is a direct quote.

 

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.

===============================================