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HomeImportant TopicsThe Brown ActPotential Brown Act violations: December 12, 2023 Planning Commission meeting
Gateway PlanMisinformationImportant TopicsThe Brown Act

Potential Brown Act violations: December 12, 2023 Planning Commission meeting

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Estimated reading time:  9 minutes. Can easily be skimmed using highlights and color.
Companion articles:
The Brown Act State law in California — Selected Articles
The Brown Act presentation to the City Council — December 6, 2023
     Video and slides. 1 hour 10 minutes.
Brown Act violations – A letter to our City Attorney

To:           Douglas White, White Brenner LLP — Arcata City Attorney 
From:       Fred Weis
Subject:   
Potential Brown Act violations at the upcoming Tuesday Planning Commission meeting
 
Mr. White —
 
Thank you for the presentation on the Brown Act by Nubia Goldstein and yourself at the December 6, 2023, Arcata City Council meeting. A video and all of the slides in the presentation can be seen on Arcata1.com at The Brown Act presentation to the City Council — December 6, 2023  (arcata1.com/brown-act-presentation-city-council-12-6-2023) or at the City Council portal page at arcata1.com/council.
 
I find particularly noteworthy are those portions of the slides which state:
  • Agenda items “Should contain enough description to adequately inform the public about the item to be discussed (so they can attend or comment if interested).”
  • Types of Penalties for Brown Act Violation:  
    Damage to reputation and public perception.
Previously I sent a message that outlined some (not all) of the variety of what I see as Brown Act violations that we’ve experienced here in Arcata over these past two years. 
 
As I see things, any words or wording that by its use makes it difficult for the public to understand something is, in the implementation, an attempt to mislead the public. I’m not saying that there is necessarily a conscious or deliberate attempt to deceive. But that is the result. Where things can be clear, they should be clear. 
 
On a more immediate basis, I request a response to the issues listed below. Just a sentence or two on each would be sufficient, unless you wanted to elaborate further. 
 
Items 1-5 are pertinent to the Planning Commission meeting taking place this Tuesday, so there is some immediacy here. I’ve put the actual questions for you in bold green for ease in reading.
 
Thank you.
 
— Fred Weis
 
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1. The agenda for the upcoming (December 12, 2023) Planning Commission meeting reads as follows.

A. Consider a Recommendation to the City Council on the General Plan Updates
The Commission has been refining its recommendation to Council based on input from the Council at Joint Study Sessions held August 22, September 26, October 24, and November 28, 2023. Specifically, the Council requested additional input on the Community Benefits program and which Gateway Area Plan policies should be moved into other Elements of the General Plan so they would be effective Citywide. This item allows the Commission to finalize its recommendations on the General Plan updates.
 

The question is:  Do you consider this to be an adequate agenda title and description?

Based on the simple guideline — “Should contain enough description to adequately inform the public about the item to be discussed (so they can attend or comment if interested)” — I don’t see this as adequate. What is being discussed? What does “This item” in the last sentence refer to?  Is the assumption that “this item” refers to what the Council requested additional information on? Will the Planning Commission be finalizing all its General Plan updates recommendations?

A far more clear description would be:
A discussion and recommendation on: Which Gateway Area Plan policies might be moved into the General Plan; The Community Benefits program; Recommendations from Environmental Services staff on changes to policies of the Resource Conservation & Management Element of the General Plan.
Then, if more information is desired to be included, the first two sentences from the original agenda description could be added to that.
 

We can note that a discussion of recommendations from Environmental Services staff is in the Staff Report in the agenda packet but is entirely missing from the agenda item description. As such, that should not be discussed at all at the meeting.

I bring this up because this type of agenda description is very typical of what we’ve been experiencing over these past two years — or worse.

2.  Agenda title that consists of more than one actual agenda item. 

Question:  Is this “Business Item A” one single item, or is it three or four?

The title is “Consider a Recommendation to the City Council on the General Plan Updates.” The staff report states there will be consideration on:
    1. Gateway Policies to be included in the General Plan;
    2. The Community Benefits program for the Gateway Area Plan;
    3. Additional cleanup (on the Resource Conservation & Management Element of the General Plan — this is not specified in the agenda description however); 
    4. “The Commission may wish to make a recommendation on any other aspect of the General Plan update as well.”
So:  Is this one agenda item, or should it be three or four?  By having it be one item, there is one public comment period for everything included in the one item. That is, a person would be required to speak, in this case, on the Gateway policies, on the Community Benefits program, on the additional cleanup, and on whatever else the Commission might choose to talk about — in the same single 3-minute period.
 
Having three or four topics be included in one item is conducive to getting things done. But it’s not conducive to affording proper public input.
 
Up through the January 24, 2023, Commission meeting, if there were two or three topics for discussion, they were listed as two or three agenda items. Starting with the February 14, 2023, meeting, two or more topics were put under a single agenda item.
 
Unlike the Arcata City Council meetings, which as you are aware go through to cover what is on the agenda despite the late hour of the evening, the Planning Commission meetings have a pattern of ending after right around three hours or close to it. Yes, the Council and the Commission have different functions and so will operate differently. The durations of Commission meetings this year were: 2 hours 56 minutes, 3:27, 2:10, 3:02, 3:20, 3:10, 2:53, 2:48, 3:16, 3:11, 2:27, 3:02, 4:02 (a Saturday special meeting), 3:20, 2:53, 3:17, 3:01, 2:19, 3:01, 3:32.
 
If these agenda items were split into actual topics, there would be additional periods for public comment, which could add perhaps 20 minutes or so to the overall length of the meeting. But by placing what would be several topics under a single agenda item, the Planning Commission avoided that public comment.

3. Gateway Area Plan matters are now called “General Plan” in the agenda titles and in text.

The first draft of the Gateway Area Plan came out in December 2021. For all of 2022, when a business item dealt with a Gateway Area Plan matter, it was called Gateway Area Plan and the agenda item had Gateway Area Plan in the title. On a gradual basis, Gateway Area Plan matters on an agenda became listed in the title as “General Plan” matters. Gateway Area Plan matters became described as “General Plan” matters both in the current tense and when referring to items from the past. That is to say, matters that were called one thing previously have been renamed.
 
The question:  If GAP-oriented matters that had been called Gateway Area Plan discussions and now are called General Plan discussions, is this something that understandable to the public? Is this transparent, or is it obscure? 
 
Strictly speaking the Gateway Area Plan (GAP) is a component of the General Plan. It could be said that when talking about the General Plan, a discussion of the GAP could be included. But this would be misleading, and I believe the court has ruled on similar circumstances in Brown Act cases.
 
As an example: If there had been a year of board discussions on the budget for Arcata High School, and those agenda items were titled “Considerations for the budget of Arcata High School” — and then, after that time and that public involvement, the title became “Considerations for the budget of the Northern Humboldt Union High School District” for the same discussion of the Arcata High budget — would that be misleading?
  • October 10 and November 14, 2023 Planning Commission agenda title. “Consider a Recommendation to the City Council on the General Plan Updates.” What was discussed were Gateway Area Plan matters.
  • December 12, 2023 Planning Commission agenda title. “Consider a Recommendation to the City Council on the General Plan Updates.” What is proposed to be discussed includes a Gateway Area Plan matter, namely the Gateway Community Benefits program.

  • In the agenda packet for the December 12, 2023 Commission meeting, page 29: “…there were four Joint Study Sessions with the City Council to discuss the Commission’s recommendation on the General Plan update.” In the agenda for the November 28, 2023, City Council meeting as “The Council and Commission have held three study sessions to discuss various aspects of the General Plan.“
    In reality, prior to the November 28 study session, there had been two study sessions devoted to the Gateway Area Plan and one to the General Plan.

    If there is any question about what those earlier study sessions were, the New Business agenda items for the August 22 and the September 26, 2023, meetings were titled “Consider the Gateway Area Plan Planning Commission Recommendation.” That is what they were called, and that is how the Planning Commission, the City Council, and the public saw and knew those meetings. The City Council members who must recuse themselves from Gateway discussions and votes were absent from the Gateway-oriented joint study sessions, as required.

    We will note that the August 22 and the September 26, 2023, the study session meetings that had been regularly called Gateway Area Plan study sessions are now designated as being “General Plan“ study sessions. In other words, they’ve been renamed.

4. Lack of distinction between what is opinion and what are facts in statements by staff.
 
The question is: Should the staff report be written so as to make clear to the reader — the public — what it is that is the opinion of staff and not fact?
In my view, the staff reports often portray matters of opinion as though they were facts of evidence. I regard this as misleading to the public.
 
The paragraph of the Staff Report on Community Benefits ends with the following sentence:
 
“But it ensures a simple program that achieves projects that reflect the community values.”
 
I regard this as an opinion, not a fact. I disagree with the statement that this Community Benefit program will achieve projects that reflect the community values. I view it as a program that developers will “game” so as to minimize their cost. In my opinion, developers will seek out the smallest and least costly of the listed benefits, with the result that benefits that have been singled out as being of the greatest value to the community (such as home ownership) will likely never be pursued by the developer.
 
That is my opinion. The staff report presents staff’s opinion. I believe to have an opinion presented as though it were fact is misleading to the public.
 

5. Does the “Planning Commission Annual Report for 2023” need to be factually accurate?

This is a general question for the City Attorney.  A draft of this report is included in the agenda packet for the December 12, 2023, Planning Commission meeting. It has, in my view, numerous statements that are either misleading or decidedly factually inaccurate.
 
The question is:  Is it a requirement that the “Planning Commission Annual Report for 2023” to the Arcata City Council be factually accurate and to properly portray events as they actually occurred? Is it permissible, either ethically or by law, for this report to contain assertions that simply are not true?
 

6.  In 2023, seven regular meetings of the Planning Commission were cancelled and replaced with “special meetings,” including all regular meetings previously scheduled for April, May, and June.

Question:  At such time as the City Attorney has a chance, he is asked to review the matter of “special meetings” during 2023.
 
The Brown Act has clarification on calling “a” special meeting. It says nothing about calling for a series of special meetings. 
 
The Planning Commission voted on March 14, 2023, to change the starting times of its regular meetings to change from 6:00 PM to 5:30 PM. They did not vote to have special meetings — merely to change the starting time of the meetings. The regular meetings of the Planning Commission start at 5:30 PM at the current time.
 
At a regular meeting of the Planning Commission, there is, at a minimum, one opportunity for the public to speak on matters not on the agenda and one opportunity for the public to speak on each agenda item. At a “special meeting” there would be only one opportunity for members of the public to speak.
 
According to Arcata’s Municipal Code, the Planning Commission shall hold regular meetings twice monthly. This did not take place.
 
At the April 11, 2023, this conversation took place:
Commissioner Judith Mayer:
“Point of Order. I’m wondering why this is listed as a Special Meeting. This is the regularly scheduled second Tuesday of the month.”
 
Community Development Director David Loya:
“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.“
 
I regard the statement from the Community Development Director to be a false statement. The Commission had already voted to have their regularly scheduled meetings start at 5:30. The obvious difference between the regular meetings and what were then called “special meetings” is that there were fewer opportunities for public comment at the “special meetings.”
 
For more details on this, see these articles on Arcata1.com regarding the replacement of regular meetings with special meetings. 
 
URL links:
 
 
———————————————————–

Attached:

12/12/2023 Planning Commission agenda, pages 1-10 PDF
 
 
 

Additional source material. This was not a part of the letter to the City Attorney.

 
A guide to the Ralph M. Brown Act
League of California Cities
 
The Brown Act
California Legislative Information
 
First Amendment Coalition

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