News

In zeal to hear appeal, council butts up against state law

Palo Alto council majority found to have discussed procedural matter outside a public meeting

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."

Comments

4 people like this
Posted by BQtodd
a resident of Midtown
on Feb 3, 2015 at 2:52 pm

I totally "Get" that this article concerns this serious procedural matter. And, I understand the neighbors concerns. That property is currently an empty lot - I wish the neighbors would have banded together, bought it, and kept it empty - like a tiny little park. I think it adds to the character of that little corner to have this nice grassy spot.


6 people like this
Posted by Agenda
a resident of Another Palo Alto neighborhood
on Feb 3, 2015 at 4:43 pm

So it looks like the weekly is trying to sugarcoat the fact that 5 members of the council have broken the law.
Will they be prosecuted? Perhaps a recall is in order


4 people like this
Posted by Oh Please
a resident of Green Acres
on Feb 3, 2015 at 11:44 pm

The last council did this but with intention, as opposed to inadvertently like this council did. It was clear if you attended CC meetings with contentious topics that every council member knew how they were going to vote before the meeting even started, irrespective of public comments and opinions. Most likely, the last council was practiced enough in deception to use the phone to circumvent the Brown Act.

The real issue here is that council members "check in" with each other before deciding how they will vote. It means they are not voting their opinion and conscience, they are looking to vote along with the "popular vote."

There should be no private communication between council members at all. Period.

Just disgusting.


4 people like this
Posted by Stop the Trolls
a resident of Mountain View
on Feb 4, 2015 at 6:15 am

I agree. The real disturbing part of this story is the seemingly casual way the council member just got a nice little(private) email thread(meeting) going about this before they were in front of the public.
It makes me wonder how many other issues have gone this route. The Brown Act is no joke!


13 people like this
Posted by Tom DuBois
a resident of Midtown
on Feb 4, 2015 at 10:53 am

Tom DuBois is a registered user.

I was part of this and at fault, for which I apologize. While it was inadvertent, I take the Brown Act seriously - it's there for a very good reason, to avoid decision making prior to meetings. Council can talk about process and non-agendized items. The Brown Act is not a ban on ever communicating with fellow councilmembers. But in this case, messages passed in the ether before we ascertained which four people were in communication. Mea culpa.

The process for taking a residential property off consent to hear the appeal takes four people and a request to alert the city manager. We've clarified the process that instead of having four and then going to the city manager, we can individually alert the city manager.


1 person likes this
Posted by Peter Carpenter
a resident of Atherton
on Feb 4, 2015 at 11:02 am

Peter Carpenter is a registered user.

"We've clarified the process that instead of having four and then going to the city manager, we can individually alert the city manager."

That is still a violation of the Brown Act because it constitutes a serial meeting with the city manager serving as the go-between.

Why not, as the Brown Act requires, just conduct the public's business in public?

In this case that would mean that at the time of consideration of the consent calendar in public session those council members who wished to take an item off the consent calendar could vote to do so - what is so hard about that?


4 people like this
Posted by Cheryl Lilienstein
a resident of Barron Park
on Feb 4, 2015 at 11:04 am

And so it is left up to the city manager to tally the number of council members who have contacted the manager's office to take something off the consent calendar?

And I imagine there is no way for the public (or the city council, deterred by the Brown Act) to track what communications have gone to the city manager's office...or is there?




10 people like this
Posted by Timothy Gray
a resident of Charleston Meadows
on Feb 4, 2015 at 11:10 am

Tom's response demonstrates total dedication to transparency.

I am pleased to see the Council leadership in increased transparency, and in gaining trust. As a long-standing critic of historical "back-room-deals", I see a new set of ethics emerging from this Council that will earn the trust of the community and that in turn will increase civic engagement.

Tim Gray


2 people like this
Posted by Peter Carpenter
a resident of Atherton
on Feb 4, 2015 at 11:18 am

Peter Carpenter is a registered user.

"Tom's response demonstrates total dedication to transparency. "

Wrong, Tom's response describes an illegal serial meeting regardless of his good intentions.

Here are the facts regarding the Brown Act and the illegal Palo Alto Council workaround:

"The Act expressly prohibits serial meetings that are conducted through direct communications,
personal intermediaries or technological devices for the purpose of developing a concurrence
as to action to be taken. (§ 54952.2(b); Stockton Newspapers, Inc. v. Redevelopment Agency
(1985) 171 Cal.App.3d 95, 103.) "

What about "for the purpose of developing a concurrence as to action to be taken" does the Council not understand?

Do the public's business in public as the Brown Act requires:
“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. It is the intent of the law that their actions be taken openly and that their deliberations
be conducted openly.”
“The people of this State do not yield their sovereignty to the agencies which serve them. 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. The people insist on remaining
informed so that they may retain control over the instruments they have created.”

The people reconfirmed that intent fifty years later at the November 2004 election by adopting Proposition 59, amending the California Constitution to include a public right of access to government information:
“The people have the right of access to information concerning the conduct of the people’s
business, and, therefore, the meetings of public bodies and the writings of public officials and
agencies shall be open to public scrutiny.”


2 people like this
Posted by jm
a resident of Barron Park
on Feb 4, 2015 at 11:38 am

How is the initial decision to put an item on the consent calendar made? Looks like someone influential in city hall tried to circumvent a council discussion by slipping this item onto the consent calendar.

Whoever puts the draft council agenda items and text together in the first place, before it is even discussed with the mayor, has enormous behind the scenes power. Once again you have to wonder who had the desire and influence or bias to try to suppress this appeal.


Like this comment
Posted by Peter Carpenter
a resident of Atherton
on Feb 4, 2015 at 11:53 am

Peter Carpenter is a registered user.

Having something on the consent calendar is no hindrance to having a full discussion of that its.The consent calendar has to be approved in public session. Any item on the consent calendar can be moved to the regular agenda by action of the council - but that decision must be made in public.


1 person likes this
Posted by Peter Carpenter
a resident of Atherton
on Feb 4, 2015 at 12:19 pm

Peter Carpenter is a registered user.

I would also note that in a properly run elected body any ONE member can and should be able to remove any item from the consent calendar.


2 people like this
Posted by Neilson Buchanan
a resident of Downtown North
on Feb 4, 2015 at 12:41 pm

Thanks, Peter

Your solution addresses the core issue and it is time for Palo Alto staff and Council to adopt a process that works. Council! Move on to more pressing issues!


3 people like this
Posted by Joe
a resident of Barron Park
on Feb 4, 2015 at 12:41 pm

I'm a little puzzled by the outrage. Neighbors opposing a new development next door paid $406 dollars to appeal approval by the Planning Department. The Planning Department writes a staff memo justifying the approval, and according the procedure outlined in the municipal code, places approval of the development on the Council's consent calendar. Since items are routinely approved without debate on the consent calendar, the neighbors contact Council members knowing this is the only way to get their appeal heard in front of Council. Palo Alto doesn't have district council representatives, so the neighbors contact several council members knowing that they need 4 votes to move their appeal from the consent calendar to open discussion.

The Palo Alto City Attorney claims the contact of the between members of Council is a violation of the Brown act because it constituted a serial meeting. But, in fact, Shmid contacted DuBois IN PARALLEL and INDEPENDENTLY. So, there was no quorum and the City Attorney is incorrect in calling this a violation of the Brown Act.

Furthermore, if the City Attorney believed that the violation of the Brown Act occurred, her remedy is wrong. The City Manager is responsible for the Council Agenda. The City Attorney should have directed to the City Clerk to place the appeal back on the consent calendar and made Council redo their vote. But, the City Attorney is bluffing. Because if the City Attorney moved the appeal back to the consent calendar, the neighbors filing the appeal could file suit against the City for violating their rights to due process in handling the appeal. The City Attorney can't, of course, justify the Brown Act violation, so she chose instead to pretend that the "violation" was remedied by releasing e-mail between various council members.

Folks have to realize that, while the City Attorney is allowed to express a legal opinion, that opinion is not necessarily correct. The final determination is up to a court of law.


Like this comment
Posted by Peter Carpenter
a resident of Atherton
on Feb 4, 2015 at 12:49 pm

Peter Carpenter is a registered user.

Joe - When a non public serial meeting, even through an intermediary, is used to develop a concensus that is a violation of the Brown Act - period.

Here is the guidance from the League of Cities:
"The problem with serial meetings is the process, which deprives the public of
an opportunity for meaningful participation in legislative body decision-making.
Except for teleconferencing discussed below, the Brown Act specifically prohibits
“any use of direct communication, personal intermediaries, or technological
devices that is employed by a majority of the members of the legislative body
to develop a collective concurrence as to action to be taken on an item by the
members of the legislative body.”
The serial meeting may occur by either a “daisy-chain” or a “hub-and-spoke”
sequence. In the daisy-chain scenario Member A contacts Member B, Member B
contacts Member C, Member C contacts Member D and so on, until a quorum and collective concurrence has been established. The hub-and-spoke process involves, for example, a staff member (the hub) communicating with members of a legislative body (the spokes) one-by-one for a decision on a proposed action, or a chief executive officer briefing a majority of redevelopment agency members prior to a formal meeting and, in the process, information about the members’ respective views is revealed. Each of these scenarios violates the Brown Act.
A legislative body member has the right, if not the duty, to meet with constituents to address their concerns. That member also has the right to confer with a colleague or appropriate staff about local agency business. However, if several one-on-one meetings or conferences leads to a “collective concurrence as to action to be taken” among a majority, the Brown Act has been violated. "

Is that clear enough?


Like this comment
Posted by We are watching
a resident of Adobe-Meadow
on Feb 4, 2015 at 12:55 pm

Cory, be careful to not get sucked in by the anti growth mafia! They will no doubt try to kill this project, or at a minimum put constraints on the homeowners that are not contemplated by the codes. Cant say I am surprised by this "backroom" dealing by them after what we saw in the election.


1 person likes this
Posted by Need a new rule
a resident of South of Midtown
on Feb 4, 2015 at 1:06 pm

Mr Carpenter said something we can agree on:

"I would also note that in a properly run elected body any ONE member can and should be able to remove any item from the consent calendar. "

Because the City Manager and the Planning Dept. seem always to lean toward the developer.


Like this comment
Posted by Peter Carpenter
a resident of Atherton
on Feb 4, 2015 at 1:21 pm

Peter Carpenter is a registered user.

The MPFPD Board allows any one Board member to remove an item from the consent agenda.

And this appears to be both the standard and the best practice:
"A "Consent Agenda" is a grouping of non-controversial agenda items that are expected to be approved without discussion. (Robert's Rules, 11th ed., pp. 361). As such, it can be a significant time saver for board meetings.

Consent Process. Routine items can be grouped together on the agenda with a heading of "Consent Calendar" or "Consent Agenda." When the board reaches that portion of the agenda, the Chair asks if any member wishes to remove (or pull) any item from the consent agenda. They may do so by stating "I pull item #____." Pulling an item does not require a second. After all the "pulls" are made, the Chair states, "Without objection, the remaining items (or all the items if none have been pulled) are adopted by general consent."

Silence is Consent. If any director wants to vote against an item, he/she must pull it from the consent agenda. This is a case where silence not only implies consent, silence is consent. If any items are pulled, the board can either take them up immediately for discussion and vote or put them in their appropriate place in the agenda.

Minutes. Unanimous consent actions are action items and must be reflected in the minutes. Sometimes they are overlooked because the don't bear the traditional "motion by Smith and second by Jones" or frequently abbreviated "M/S/C." When it comes to approving minutes, it is appropriate to place minutes on the consent agenda unless, of course the board has failed to do its duty to review and offer ministerial corrections in advance of the meeting."


Read more: Consent Agendas Web Link
from Davis-Stirling.com by Adams Kessler PLC. If your association needs legal assistance, call us at (800) 464-2817.


2 people like this
Posted by Marie
a resident of Midtown
on Feb 5, 2015 at 12:38 am

Marie is a registered user.

Since all the emails have been disclosed, and the discussion public, I am satisfied. Is it still a violation if the discussion is disclosed? This seems like a tempest in a teapot.

And thanks to Tom Dubois, for posting in this forum. I really feel the new council is so much more responsive to the public.


Like this comment
Posted by Peter Carpenter
a resident of Atherton
on Feb 5, 2015 at 7:46 am

Peter Carpenter is a registered user.

Unfortunately the one Council member who has posted here on this matter does not properly understand the Brown Act and the Council's procedures for removing an item from the consent calendar appear to be inappropriate.


Like this comment
Posted by move on
a resident of Another Palo Alto neighborhood
on Feb 5, 2015 at 8:31 am

Peter Carpenter,

Is there something in the rules that says, correct and move on if a mistake is made inadvertently?

You seem like you would never miss a beat with the Brown Act, but that is not the only reason one elects a Council person. I am satisfied that we have the right people for the job, and would not hold this as a make or break situation.
I think this mistake will likely never happen again, and probably a better system will be in place to avert such a situation.

Letting the public know how this will be averted in the future will be good too.

This being said, is there a document which describes what type of things go on a consent calendar?

Why is any development issue on consent right now?


Like this comment
Posted by Peter Carpenter
a resident of Atherton
on Feb 5, 2015 at 9:27 am

Peter Carpenter is a registered user.

"Is there something in the rules that says, correct and move on if a mistake is made inadvertently? "

Yes. The problem here is that the Council appears to have adopted a corrective measure that is still a violation of the Brown Act. So the 'correct' step has been missed.

"This being said, is there a document which describes what type of things go on a consent calendar?"

Yes - I have posted it above.

"Why is any development issue on consent right now?"
Simply because the individuals who formulate the agenda believe that some development issues have been sufficiently well studied and revised that no further revision is necessary - clearly a judgment call and one that can easily be challenged at the time the consent calendar is voted on.


1 person likes this
Posted by Deep Throat
a resident of another community
on Feb 5, 2015 at 1:48 pm

Cory Wolbach initiated the email thread about this issue and was apparently the person who made the email thread available to the City Manager so that the City Attorney was then able to make her comments, but Wolbach was absent from the meeting. If Wolbach was so interested in pulling the item from the agenda and went so far as soliciting the participation of three residentialist Council Members, whey did Wolbach then decide to not attend the meeting?


Like this comment
Posted by Cheryl Lilienstein
a resident of Barron Park
on Feb 6, 2015 at 9:07 am

As Mr. Carpenter notes, in OTHER CITIES it only takes one council member to pull an item off the consent calendar. If Palo Alto had this policy, this entire conversation would be moot.

Our LAST city council DECREASED the public's capacity to be heard by INCREASING the number of city council member votes required to allow a public discussion of items on the consent calendar.
Even when an appellant paid $400 to file an appeal. The city council did not even deign to read or hear the arguments!

Which begs the question: What kind of democracy is this when a citizen can file an appeal and pay for the appeal and then have the majority on the council choose to ignore the appeal?

The Brown Act may be there for a good purpose, but if the council does not have rules that support democracy in the first place, invoking the Brown Act to support good behavior falls a bit flat.





Like this comment
Posted by Peter Carpenter
a resident of Atherton
on Feb 6, 2015 at 9:21 am

Peter Carpenter is a registered user.

There is NO excuse for the Palo Alto City Council having such restrictive rules regarding its agenda.

Here is what the Menlo Park Fire Protection District does regarding its agenda setting process:
both individual Board members and members of the public may submit items for the Board's agenda.

Agenda Item Requests - Board Members
As stated in Policy 4.2, the Fire Chief in collaboration with the Board President shall prepare an agenda for each regular, committee and special meeting of the Board of Directors. Any Board member may request the placement of any item related to District business on the agenda of an upcoming scheduled regular Board Meeting in one of four ways:
1. By voicing a request during the open session of a Board Meeting that an item be placed on the agenda for the following meeting;
2. By submitting a request, outside of a Board Meeting, to the Board President or the Fire Chief with a copy to the Clerk of the Board;
3. By submitting a request, outside of a Board Meeting, to the Fire Chief.
4. By the Board member adding agenda items directly by submitting a form.
All requests for agenda items are subject to the requirements and limitations of the open meeting laws of the State of California, must be within the subject matter jurisdiction of the Board and shall be consistent with these rules governing Board roles and responsibilities. Issues in this regard will be resolved by the Board President. Barring emergencies or other exigent circumstances, all agenda requests shall be made at least two weeks prior to the Board meeting at issue. The Fire Chief and the Board President shall honor all agenda requests that meet the requirements of this policy and state law. Agendas should be finalized and sent to the Clerk of the Board 14 days prior to the scheduled regular meeting, whenever possible. If appropriate, requested agenda items may be combined with one another or other items of similar subject matter for purposes of parliamentary convenience.

Agenda Item Requests - Members of the Public
Any member of the public may request that a matter directly related to District business be placed on the agenda of a regularly scheduled meeting of the Board of Directors. The request may be made during the public comment portion of any Board meeting, but unless the requirements of the Brown Act can be met, the agenda item may only be added to a future meeting agenda. If the request is made outside of a Board meeting, the procedure is as follows:
1. The request must be submitted, in writing, to the Fire Chief at least one week prior to the Board meeting, and
2. The Board President, upon consultation with the Fire Chief, will determine whether the public request is a "matter directly related to the District Business" and if so, it may be placed on the Board's next scheduled meeting agenda."
*************************************
As elected officials we are doing the public's business and we have no right to bar the public from meaningful participation. A frivolous agenda item can be voted and dismissed in minutes - after having given the public the right to speak on the item.


Sorry, but further commenting on this topic has been closed.

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