The Planning and Transportation Commission voted 4-2, with Arthur Keller and Susan Fineberg dissenting and Eduardo Martinez absent, to revise a commission policy discouraging its members from holding private meetings with developers whose applications are undergoing city reviews.
The four commissioners who supported the change — Chair Samir Tuma, Vice Chair Lee Lippert, Daniel Garber and Greg Tanaka — argued that meeting with applicants allows commissioners to gather more information about the project and reach a better decision.
They also argued that permitting ex parte communications would bring the commission's policy on private meetings in alignment with the council's. The two decision-making bodies were previously at the opposite ends of the spectrum, with commissioners discouraged from such communications and council members permitted to engage in them.
This week's policy changes would delay the council's ability to meet with applicants until after commissioners do so.
Garber, Lippert and Tanaka wrote a colleagues' memo in late October arguing that existing city policies, which allow council members to speak to applicants but discourage commissioners from doing so, "short circuit" the development process. The problem, the memo stated, is that some developers ignore the commission's recommendations and appeal directly to the council, which has the final say over development projects.
"Applicants appear to have used this loophole to gauge their need to heed or ignore the direction and action of the Planning and Transportation Commission regarding their application," the memo stated.
On Tuesday, the council's Policy and Services Committee took a major step toward closing this loophole by unanimously recommending a revision of the council rules. The proposed policy, which the full council is expected to take up next month, would "discourage" council members from speaking to project applicants until after the planning commission and the Architectural Review Board complete their own reviews.
Keller and Fineberg both argued Wednesday that council approval of the proposal would close the loophole and, in doing so, remove much of the planning commission's rationale for revising its own policy. Fineberg said the council's proposed changes make the commission's memo "very weak."
"That doesn't leave this body in a position where there is appearance of operating with ethical behavior and beyond reproach," Fineberg said.
Last year, the commission considered scrapping the policy banning ex parte communications last year but did not muster enough votes to do so. Since then, former Commissioner Karen Holman joined the City Council and was replaced by Tanaka, a supporter of the policy change. The commission reintroduced the subject with the Oct. 20 memo and discussed the memo on Nov. 10.
At that meeting, the commission agreed not to vote on the proposal until the memo's authors came up with rules for disclosing any private meetings between commissioners and developers.
The policy adopted Wednesday directs commissioners to disclose verbally their private meetings with applicants but does not require them to put the disclosures in writing or to submit any records from the meeting. Garber said he considered adding a requirement for a written disclosure after the Nov. 10 meeting but later decided that additional safeguards aren't necessary.
"The disclosure requirements we have that are already part of the memo already raise us above the bar," Garber said.
Among the memo's stipulations is a requirement that the commissioners "disclose any information that he or she learned that may have an impact on how that commissioner decides the matter." In addition, any documents submitted by the developer in a private meeting are to be made public.
In all private meetings, commissioners are not to communicate their positions on the application, either by stating their opinions or asking questions that would reveal an opinion.
Garber was one of several commissioners who argued Wednesday that the new policy would promote openness and transparency by breaking down the wall separating the commission from the community.
"For me, the value of having open access and not having hurdles to our appointed and elected officials is the issue," Garber said.
Fineberg maintained her long-standing position that private meetings between commissioners and developers would reduce transparency and raise questions in the community about the commission's ethics and conduct.
"Avoiding the ex parte contacts protects commissioners from unwittingly developing a bias," Fineberg said. "Furthermore it protects commissioners from the public appearance of having a bias, even if there isn't one."
Keller and Fineberg both urged the authors to revise the memo to provide a new justification for the policy change. Keller urged his colleagues not to vote on the policy.
"It would be a travesty to do so under this rationale," he said.
Martinez didn't attend the meeting but sent in a letter stating his opposition to the policy change. The commission had already rejected the policy change in 2009 and nothing has changed since that time, he said.
But the majority decided to go ahead with the change. Tuma, who co-authored the 2009 memo, denied that the commission's revised policy runs counter to the changes being considered by the council. He noted the council's change doesn't discourage ex parte communications with developers unless these developers have projects that are undergoing reviews by the local boards and commissions.
The commission's revised policy also specifies that the commissioners are not required to meet with applicants or members of the public.
TALK ABOUT IT
Is it a breach of ethics or an act of "open access" for City Council members and planning commissioners to meet with developers whose applications are under city review? Share your opinion on Town Square, the online community forum, on Palo Alto Online.