For more than 30 articles and letters on Arcata1.com on Brown Act violations and the lack of transparency here in Arcata see The Brown Act — State law in California — Selected Articles.
For one specific other Arcata violation of the Brown Act, see Did the Planning Commission violate the Brown Act — again — at their April 27th meeting? Yes, they did, currently with over 350 views.
For other examples of case law (court cases) that relate to Arcata violations of the Brown Act, see Case Law on the Brown Act — regarding wording, brevity, and effect of the posting of agenda items.
November 15, 2023, City Council agenda —
Another attempt to deceive the public
The agenda new business item for the November 15, 2023, Arcata City Council meeting — on adding Gateway plan policies to the General Plan as city-wide policies, and possibly not retaining the Gateway Area Plan — included a variety of improprieties and falsehoods. Among them were distinct Brown Act violations.
The Brown Act requires that the titles and descriptions of all agenda items for a meetings shall be written so that an interested member of the public can understand what it is that will be discussed at the meeting.
On an agenda, the title in itself should be clear. It should not be overly vague. A short description of the agenda item, if required for clarity, does not need to exceed 20 words and should contain essential information about the item to members of the public. The description can be longer. But — very specifically by law — the title and description should in no way be written as an attempt to mislead or deceive the public.
Further, the court has ruled that where it is “relatively little effort” to provide an easy-to-understand title or description of an agenda item, the agenda must be written so as not to give the appearance of an attempt to deceive or mislead the public.
An overly vague title, where it would not be much effort to provide a clear and understandable title, is considered by the court as a violation of State law.
In the example of the agenda listing for this item, neither the title not the description matched the staff report that indicated what agenda item was actually about.
How this agenda item could have been written for greater clarity
On page 118 in the agenda packet, in the first sentence of the staff report for this item, we can learn what this agenda item is all about. Highlights are added.
“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.
In no way is this expressed in the agenda item title, or, for that matter, in the agenda item description.
Here’s the actual agenda item title. This is under “XI. NEW BUSINESS” as agenda item “C.”
“Consider Direction to Staff on the General Plan 2045 Comprehensive Update.”
This title can be regarded as misleading, as it contains nothing of what the Council will actually be discussing — namely, “whether to retain the Gateway Area Plan as a standalone Element of the General Plan applicable only in the Gateway Area” etc.
The title could easily have been written as:
“Consider Direction to Staff on whether to retain the Gateway Area Plan as a standalone element of the General Plan.”
Or:
“Consider Direction to Staff on whether to retain the Gateway Area Plan as a standalone element of the General Plan and/or to incorporate some or all Gateway Area Plan policies into the General Plan.”
Or:
“Consider putting policies developed for the Gateway Plan into the General Plan, and possibly removing the Gateway Plan as a separate Element of the General Plan.”
Even “”Consider putting policies developed for the Gateway Plan into the General Plan,” while incomplete, would convey a more accurate account of what was going to take place as opposed to what was there, “Consider Direction to Staff on the General Plan 2045 Comprehensive Update.”
“Consider Direction to Staff on the General Plan 2045 Comprehensive Update” is a fairly meaningless statement and conveys practically no information to the reader. While it is true that the reader can refer to the description for clarity, the court has ruled that where it is not much trouble to write a more informative title or description, the legislative body must indeed do that.
The description below the agenda item title is 186 words. It is not until after 142 words that we learn “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.”
And this description, even in 186 words, does not tell us what is on the agenda item for discussion at that Council meeting.
In the description is a partial relating of this staff recommendation. It is misleading as to the scope of the full agenda item, and as such is deceitful. The staff report recommendation involves whether or not to retain the Gateway Area Plan. This is not mentioned in any shape or form in the agenda description.
The omission meant that a member of the public was given no notice of the item of business — that the Council might or would be considering whether or not to dissolve the Gateway Plan.
The original agenda and the staff report from the November 15, 2023, city council agenda packet are below, here.
And a further, even larger violation of the Brown Act
The staff report, under “Policy Implications” contains this sentence:
“The decision will affect whether the policies developed for the Gateway Plan extend to other areas of the City.”
While this statement is true, it is but one implication of many. And the other implications are of great legal and planning consequence.
The staff report discusses the Council’s “decision on retaining or dissolving the Gateway [Plan]” and “direction whether to retain the Gateway Area Plan as a standalone Element of the General Plan applicable only in the Gateway Area.”
Setting up the Gateway plan as an “area plan” and as a standalone Element within the Arcata General Plan was a decision that was made after much consideration of alternatives.
The single sentence under “Policy Implications” has nothing on the legal and planning consequences of the potential of not retaining the Gateway Area Plan as an Element in the General Plan.
Here’s one major aspect:
With the Gateway Area Plan as an “area plan” that is separate from the overall policies of the City of Arcata, the matter of a City Councilmember having any potential financial gain must be considered. This is commonly recognized among the members of the City Council, the Planning Commissioners, the local media, and the interested public. We are aware that the California Fair Political Practices Commission (FPPC) has ruled that Councilmembers Stacy Atkins-Salazar and Alex Stillman must recuse themselves from discussion and voting on the Gateway Area Plan because of the possibility of conflict of interest and financial gain.
In the current situation, with Councilmembers Atkins-Salazar and Stillman recused, it will take a vote of all three remaining Councilmembers — unanimously, as it were — in order to approve the Gateway Area Plan. The agreement of all of the three Councilmembers who’d be voting on it would be necessary. One person cannot vote against it or it would not pass.
If one or two of the two recused Councilmembers were no longer recused……….
When an “area plan” is not utilized, and the policies that might be in an area plan are instead incorporate on a city-wide basis, the FPPC rulings on conflict of interest can be different. There is what is called “The Public Generally Exception.” This states:
” A public official is not disqualified from a decision if the effect on the official’s interests is indistinguishable from the effect on the public.” (FPPC website)
In other words, if everyone who lives in Arcata could have their interests affected, then the public official is not disqualified. If a policy is in the General Plan, and then is put into effect as a result of codes and zoning in a specified geographic area, it is not a certainty that the FPPC would rule that a councilmember would have to recuse themselves.
Suppose, for example, a councilmember owned a deli and convenience store in a shopping center in an area where new apartments were going to be built. The new apartments would bring more local customers, and it would be likely that sales at the deli and convenience store would go up. But sales would also likely go up for every store in the area — and so the councilmember’s interests are not distinguishable from everyone’s interests.
I am not saying that the FPPC would — guaranteed and without doubt — change their ruling, and that, should the Gateway Area Plan be not set up as an “area plan” and as a separate standalone Element within the General Plan, the two Councilmember currently required to be recused would not have that recusal requirement.
What I am saying is that this is something to considered. It is likely. There is precedent to not requiring recusal when policies are part of a General Plan. And, very distinctly, this matter is omitted from the Policy Implications section of the staff report.
There is a strong case to be made if the Gateway Area Plan were not to be retained, as the staff report brings up, that by folding those policies into the General Plan then the two councilmembers would not have to recuse themselves. And this is not brought up in the staff report at all.
At the November 14, 2023, Planning Commission meeting, on the previous night, Commissioner Judith Mayer brought this up. She said:
“I was frankly quite distressed to read David’s recommendation that the Gateway Plan’s conditions be folded into the General Plan, eliminating the Gateway Area Plan as a separate Element. This could be done and retain many of the recommendations that we’ve already made. But, frankly, it’s a slap in the face to the Planning Commission and the public, who have already put in such effort to create the Area Plan as an entity unique to the Gateway area. What folding these items into the General Plan and eliminating the Gateway Area plan as a separate Element would do is that it would allow all five councilmembers to vote on it, in effect, vote on those policies — despite the conflicts of interest that the Fair Political Practices Commission staff have already identified, which is the reason that two of the members of the City Council have recused themselves from the Gateway.”
Couldn’t one or both of the currently-recused City Councilmembers simply promise that they would continue to recuse themselves?
Or couldn’t the City of Arcata simply promise that they would not pursue a change in the recusal?
No. That would not be sufficient. Any citizen can request a ruling from the Fair Political Practices Commission. The request does not have to come from a councilmember or from the City. Any individual councilmember may, at her option, continue to recuse herself. But if the FPPC ruled that recusal was not needed, then it would be up to the individual elected official.
There are two very major items here.
One is whether there would be three councilmembers or five councilmembers who would be voting on the Gateway policies and implementation of those policies.
The second is that this was not brought up — one little bit — in the staff report, even though it is of major consequence as an implication of this action.
The first would be determined by the FPPC. The second is a direct violation of the Brown Act, which states in its opening paragraph “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.“
This issue will be covered in another article here on Arcata1.com
What is the Brown Act
The Brown Act, with us as State law since 1953. It is California’s open meetings “sunshine” transparency law, and dates back to when local officials were conducting meetings designed to avoid public knowledge or participation. In the seventy years of its existence, the courts and legislature have resolved the interpretation of this law. The first sentence of the Brown Act indicates its intent:
“In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business.”
For other articles and letters on Arcata1.com on Brown Act violations and the lack of transparency here in Arcata see The Brown Act — State law in California — Selected Articles.
The original agenda and staff report
References
California Fair Political Practices Commission website
Conflicts of Interest Rules
https://www.fppc.ca.gov/learn/conflicts-of-interest-rules.html
The Brown Act: Open Meetings for Local Legislative Bodies
California Attorney General’s Office, 2003. Document pages 16-17, PDF page 30.
https://oag.ca.gov/system/files/media/the-brown-act.pdf
Brown Act Handbook, 2020
Summary of the Major Provisions and Requirements of the Ralph M. Brown Act
Richards Watson Gershon Law. Document pages 8-9, PDF page 12.
https://www.sealbeachca.gov/Portals/0/Documents/CityClerk/2020%20Brown%20Act%20Handbook.PDF?ver=2020-08-25-102601-910
https://arcata1.com/docs/2020-Brown-Act-Handbook_Richards-Watson-Gershon Law_ver2020-08-25.pdf
San Joaquin Raptor Rescue Center v. County of Merced. May 31, 2013
https://www.meyersnave.com/appellate-court-clarifies-agenda-requirements-under-brown-act/
This decision reaffirms the importance of agendas that include sufficient specificity. While each individual agenda item need only include a “brief general description” of the item, an agenda must at least mention each separate matter to be considered. As in this case, courts will look to whether the policy of the Brown Act to facilitate public participation is fulfilled, and they may award fees and costs to a successful petitioner, even if an agenda item is renoticed and properly voted on at a subsequent meeting.
From the Brown Act Handbook, 2020
Richards Watson Gershon Law.
San Diegans for Open Government v. City of Oceanside, 4 Cal. App. 5th 637 (2016).
Courts will not uphold a challenge to the sufficiency of an agenda item description when the description provides fair notice of what the agency will consider. The San Diegans for Open Government case provides an example of a sufficient agenda description that provides fair notice. In San Diegans for Open Government, the Oceanside City Council approved a subsidy agreement with a hotel developer using the following agenda item description:
Adoption of a resolution to approve: 1. An Agreement Regarding Real Property (Use Restrictions) between the City of Oceanside and SD Malkin Properties Inc. to guarantee development and use of the property as a full service resort consistent with the entitlements for the project; 2. An Agreement Regarding Real Property to provide a mechanism to share Transient Occupancy Tax (TOT) generated by the Project; 3. A Grant of Easement to permit construction of a subterranean parking garage under Mission Avenue; 4. A report required by AB 562 prepared by Paul Marra of Keyser Marston and Associates documenting the amount of subsidy provided to the developer, the proposed start and end date of the subsidy, the public purpose of the subsidy, the amount of the tax revenue and jobs generated by the project; and 5. A License Agreement to permit construction staging for the project on a portion of Lot 26.
The court ruled that this agenda description complied with the requirements of
Government Code Section 54954.2 because the agenda description expressly gave the
public notice that the council would consider a fairly substantial development of publicly
owned property as a hotel, that the City would share the transient occupancy tax
generated by the project and that the transaction would involve a subsidy by the City.
Additional information, while helpful, was not necessary to provide fair notice of the
essential nature of the action under state law. The court found that the language of the
agenda, considered as a whole, provided more than a “clue” that the City planned to
provide the developer with a substantial and ongoing financial subsidy in exchange for
the project.
Hernandez v. Town of Apple Valley, 7 Cal. App. 5th 194 (2017)
The court held that the Apple Valley Town Council’s agenda description was insufficient. There, the Apple Valley Town Council adopted three resolutions that called for a special election related to an initiative to adopt a commercial specific plan and the filing of arguments and rebuttal arguments for and against the initiative. In addition, the Town Council adopted a Memorandum of Understanding (“MOU”) that authorized the
acceptance of a gift from an interested party, Wal-Mart, to pay for the special election. The agenda description for the matter read “Wal-Mart Initiative Measure” and included a recommendation for action that read “[p]rovide direction to staff.” The court reiterated that the Brown Act requires that each item of business be placed on the agenda. Specifically, the court highlighted that nothing in the agenda description, or even in the agenda packet, indicated that the Town Council was going to consider
an MOU to accept a gift from Wal-Mart to pay for a special election to pass the initiative. The court concluded that the City violated the Brown Act by omitting the MOU from the agenda description because the omission meant that the plaintiff was given no notice of the item of business.
For more than 30 articles and letters on Arcata1.com on Brown Act violations and the lack of transparency here in Arcata see The Brown Act — State law in California — Selected Articles.
For one specific other Arcata violation of the Brown Act, see Did the Planning Commission violate the Brown Act — again — at their April 27th meeting? Yes, they did, currently with over 350 views.
For other examples of case law (court cases) that relate to Arcata violations of the Brown Act, see Case Law on the Brown Act — regarding wording, brevity, and effect of the posting of agenda items.