Members of the Palo Alto City Council accidentally ran afoul of state law late last week when they attempted to discuss over email an item that was to come before them on Monday night involving the construction of a two-story home on Corina Way.
The council was set to consider an appeal by Corina Way residents of a recently approved home at 3864 Corina, a building that several neighborhood residents said is too tall for the block and would violate their privacy. The appeal was listed on the council's "consent calendar," which means the city planning department's approval would have been automatically affirmed unless four council members agreed to take the item off consent.
In an attempt to gather these four votes, council members engaged in an email discussion that ultimately included five council members. This violated the Brown Act's provision against "serial meetings," which happens when a quorum of the legislative body communicates outside a meeting about an item of business. In this case, the external conversation involved members Cory Wolbach, Eric Filseth, Tom DuBois, Vice Mayor Greg Schmid and Mayor Karen Holman, according to emails that City Attorney Molly Stump released to the public Monday so as to comply with the Brown Act.
The email thread began Jan. 29 with Wolbach reaching out to Filseth and DuBois to gauge their interest in pulling the appeal from the consent calendar. He noted in the email that three votes are needed to remove the item from consent for a full discussion and asked Filseth whether he would join him and DuBois in "making sure this item gets some discussion."
Filseth agreed and said in his response that he had already discussed the idea of taking the appeal off consent with Holman, who told him that she would "support pulling it."
The fifth member of the council to join the discussion was Schmid, who was not on the original email chain but who on Friday, Jan. 30, independently emailed DuBois to ask him if he would favor removing the item from consent.
"Are you interested in pulling the item so the council can have a discussion about IR (Individual Review) process and any changes that might be effective as we move down the road?" Schmid asked, quickly receiving an affirmative response.
Sure enough, the item was pulled from consent on Monday night and will now get a special hearing on Feb. 23. But in recognizing that the process butted up against the Brown Act, Stump released a memo that included all the email communications and noted the "inadvertent serial communication involving a quorum of the council on the procedural matter of pulling Item No. 6 (the Corina Way appeal) from the consent calendar."
"The involved council members are disclosing these communications in accordance with the Brown Act," Stump wrote in the memo. "Council members and staff have clarified that council member notifications to the city manager of interest in pulling an item from consent may be made on an individual basis."
The Brown Act provision intends to safeguard the public's right to participate in legislative decision making. In this case, the hiccup followed the pattern known as a "daisy chain" sequence. A League of California Cities primer on the Brown Act defines the scenario as one in which "Member A contacts Member B, Member B contacts Member C, Member C contacts Member D and so on, until a quorum has discussed, deliberated or taken action on an item within the legislative body's subject matter jurisdiction."