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To:         City Manager Karen Deimer, Mayor Sarah Schaefer

              Community Development Director David Loya
              Planning Commission Chair Scott Davies, Vice-Chair Dan Tangney
              Planning Commissioner Judith Mayer

From:      Fred Weis

Date:      March 28, 2023

Subject:  New Planning Commission “framework” for meetings unfortunately violates the Brown Act

Summary:  

The new “Framework” for conducting Planning Commission meetings involves “Serial Meetings.”
For the Commissioners to be sending their thoughts to David, and David compiling and sending the thoughts of the many Commissioners back to them, in writing, outside of public view — that is a violation of the Brown Act open meeting laws regarding serial discussions outside of a meeting.

There are solutions to this.  Even having material posted on-line in a timely manner might be good enough.
I’m not trying to get in the way in terms of getting things done. But procedures do have to be open to the public view.

—————————————–

I am in favor of having the Planning Commission meetings be more efficient and having it be easier to make decisions. However, it is my view that the “Framework” that is intended to be used at every Planning Commission meeting is in direct and clear violation of California’s Brown Act.

The Framework is outlined the the Memorandum from Scott Davies and David Loya to the Planning Commissioners, dated March 10, 2023, and sent to to the “Long-Range Planning & Community Visioning” e-mail list on March 13. It was on the agenda and discussed extensively at the March 14 Planning Commission, but was not in the Agenda Packet for that meeting.

The Framework includes the provision that, quote:

  1) Commissioners will provide a ranked priority list of the policies they wish to discuss by Monday 10 a.m. in advance of the meeting. 

  2) Staff will collate the responses to facilitate discussion and send the compiled list out to Commissioners by 5 p.m. Monday.

The actual days prior to a meeting that the sending of materials takes place is not important. (The day of the week was changed at the March 27 meeting.) The point is that this interaction among the Commissioners occurs outside of a Planning Commission meeting.

This action constitutes a “Serial Meeting” under the definition of the Brown Act. To preempt a possible question, it does not matter that the names of the Commissioners are not included on the document with the compilation that is sent to the Commissioners.

To help understand this, here are some statements from the March 14 meeting regarding this framework:

Matt Simmons  March 14, 2023  1:32 on the video

Something I like about this is that we’ll see each other’s thoughts before the meeting, because I think often, you know, we’re all hearing each other’s thoughts for the first time at a meeting. And so it takes a little while to like understand what’s being said, and come to consensus in that sense of what everyone agrees that we’re talking about the same thing. And I think hopefully — like when you gave your notes on the Land Use Element, and all that, which was really helpful — we can all figure that out.

Scott Davies  1:32:45

And it may not always work for all of us at one time for one reason or another. And it doesn’t preclude items being raised in meetings. But to the extent that we can bring things up ahead of time, I think the idea is that it gets us into our meeting further down the road, where we’ve already seen each other’s thoughts, have considered it, and can enter into more sort of meaningful discussions right out of the gate.

David Loya  1:35:19

Okay, so this is an over-simplification of the process that’s outlined in the memo. But I just wanted to start with this as a way for us to wrap our brains around what it is that we’re doing. So it has a couple of different stages. We [the Commissioners] do some preliminary work, some work before the meeting. We’ve just been talking about this, including getting drafts out early, putting our [the Commissioners’] thoughts together on paper, submitting that [the Commissioners’ thoughts] to staff, staff compiling it, working from the draft policy that’s in the packet, those kinds of issues. So there’s pre-work [i.e. outside the Commission meetings] that will rank and organize the policies. We’ll [Staff] go through a process ahead of time and get that back out [to the Commissioners] before your meeting.

Later:
But the idea here is that we won’t spend time in the meeting, discussing what we should be discussing. Instead, we’ll spend our time in the meeting discussing that material. 

I am including in this message (below) material from the California League of Cities on serial meetings and material from the law firm Best Best & Krieger, who write extensively about the Brown Act.

There are solutions to this. The Framework, as it exists, will be tried at one further Planning Commission meeting, with the topic of the Circulation Element of the General Plan, scheduled for April 11, 2023. It could be the case that it is modified after that meeting.

In the interests of expediency, and in terms of getting the Planning Commission out of what can be regarded as a stagnant situation, I personally am willing to accept some of this. But it is not entirely up to me. The Brown Act is the law. There are consequences to acting outside of the Brown Act, mainly that it exposes those decisions — and recommendations — made while in violation of the Brown Act open to suspension, as well as the actions which took place subsequent to the violations.

As I said, there are solutions. Unfortunately, almost anything other than this current serial communication will add to the time of the meeting. I think that a slight modification to this Framework could be done, and would add perhaps 10 minutes of time to a meeting — and maybe even less. But to do that involves following the rules.

To conclude:  I and many citizens have been extremely vexed by the “discussions about what is needed to be discussed” that has gone on at the Planning Commission meetings over this past year. I chalk it up to the management style — a little bit here, a little bit there, with nothing ever remotely approaching a conclusion. There is a big question as to why the General Plan was not done to completion first — but that is part of the past now. Even one of our newest Planning Commissioners, Peter Lehman, has spoken on the folly of doing things as they are currently set.

Please get in touch with your thoughts on this.

Thank you.

— Fred Weis

707-822-4400

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Two sources on Serial Meetings, from the Internet.
There are dozens of articles on this. Highlighting has been added.

From the California League of Cities

https://www.calcities.org/docs/default-source/city-attorneys/essential-hour-your-first-public-meeting—brown-act-basics-paper-.pdf?sfvrsn=82a6ab89_3

Further, substantive staff briefings are permitted to answer questions and provide information to individual members of a legislative body
if staff does not serve as an intermediary and communicate to members of the body the comments or positions of other members.

 

The Brown Act also prohibits use of a series of communications, of any kind, among a majority of members of a legislative body,
 directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction
of the legislative body. These are commonly referred to as serial or seriatim meetings.  Unlawful seriatim meetings can occur through

• In-person contacts among a majority of members of a legislative body;
• Technological contacts (such as fax, email, text message, telephone, or social media) among a majority; or
• Contacts with a majority through staff members or others acting on behalf of the body or one of its members.

However, the ban on seriatim meetings does not prevent a staff member from engaging in separate conversations or communications, outside of a meeting, with members of a legislative body to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency, if the staff member does not communicate to members of the legislative body the comments or position of any other member of the legislative body.

 

——————-

Best Best & Krieger – Attorney at Law

https://www.bbklaw.com/bbk/media/library/pdf/major-provisions-and-requirements-of-the-brown-act.pdf

 

1. Meetings

The central provision of the Brown Act requires that all “meetings” of a legislative body be open and public.
The Brown Act definition of the term “meeting” (Section 54952.2) is a very broad definition that encompasses almost every gathering
of a majority of Council members and includes:

“Any congregation of a majority of members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item
that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains.”

In plain English, this means that a meeting is any gathering of a majority of members to hear or discuss any item of city business
 or potential city business.

 

1. Serial Meetings

In addition to regulating all gatherings of a majority of members of a legislative body, the Brown Act also addresses some contacts
between individual members of legislative bodies. On the one hand, the Brown Act specifically states that nothing in the Act is intended to impose Brown Act requirements on individual contacts or conversations between a member of a legislative body and any other person (Section 54952.2(c)(1)). However, the Brown Act also prohibits a series of such individual contacts if they result in a “serial meeting” (Section 54952.2(b)).

Section 54952.2(b)(1) prohibits a majority of members of a legislative body outside of a lawful meeting from directly or
indirectly using a series of meetings to discuss, deliberate or take action on any item of business within the subject matter
jurisdiction of the body. Paragraph (b)(2) expressly provides that substantive briefings of members of a legislative body by staff are permissible,
as long as staff does not communicate the comments or positions of members to any other members.

A serial meeting is a series of meetings or communications between individuals in which ideas are exchanged among a majority of a legislative body (i.e., three council members) through either one or more persons acting as intermediaries or through use of a technological device
(such as a telephone answering machine, or e-mail or voice mail), even though a majority of members never gather in a room at the same time.
Serial meetings commonly occur in one of two ways; either a staff member, a member of the body, or some other person individually contacts
a majority of members of a body and shares ideas among the majority (“I’ve talked to Councilmembers A and B and they will vote ‘yes.’ Will you?”)
or, without the involvement of a third person, member A calls member B, who then calls member C, and so on,
until a majority of the body has reached a collective concurrence on a matter.

We recommend the following guidelines be followed to avoid inadvertent violation of the serial meeting rule.
These rules of conduct apply only when a majority of a legislative body is involved in a series of contacts or communications.
The types of contacts considered include contacts with local agency staff members, constituents, developers, lobbyists and other members of the legislative body.

1. Contacts with staff

Staff can inadvertently become a conduit among a majority of a legislative body in the course of providing briefings on items of local agency business.
To avoid an illegal serial meeting through a staff briefing:

1. Individual briefings of a majority of members of a legislative body should be “unidirectional,” in that information should flow
   from staff to the member and the member’s participation should be limited to asking questions and acquiring information.

   Otherwise, multiple members could separately give staff direction thereby causing staff to shape or modify its ultimate recommendationsin order to reconcile the views of the various members, resulting in an action outside a meeting.

2. Members should not ask staff to describe the views of other members of the body, and staff should not volunteer views
   [the views of another member] if known.
3. Staff may present its viewpoint to the member, but should not ask for the member’s views and the member should avoid providing his or her viewsunless it is absolutely clear that the staff member is not discussing the matter with a quorum of the legislative body.

 

These suggested rules of conduct may seem unduly restrictive and impractical, and may make acquisition of important information more difficult
 or time-consuming. Nevertheless, following them will help assure that your conduct comports with the Brown Act’s goal of achieving open government.