D.2_Brown Act Conflicts Public HearingBrown Act,
Conflicts of Interest,
and Public Hearing
Procedure
February 18, 2021
Ralph M. Brown Act: The “Open Meeting Law”
(Gov. Code §54950 et seq.)
Basic idea: The Brown Act requires all meetings of legislative bodies
and advisory bodies to be open and public, including meetings of the
Planning Commission.
Purpose
Facilitate public participation
Prevent secret decisions by legislative bodies
The Brown Act (cont.)
“All meetings of the legislative body of a local agency shall
be open and public, and all persons shall be permitted to
attend any meeting of the legislative body of a local
agency.” (Gov. Code §54953)
Open Meetings
A majority may not consult outside an agency-convened meeting
Key concept: what constitutes a meeting
A “meeting” takes place if a quorum of the legislative body receives information
on and discusses or deliberates on any item on which the body may legally act.
Quorum = 3 of 5-member Planning Commission
No need for Commission to take action for gathering to be a “meeting”
Exceptions for certain kinds of events
As long as a majority does not consult among themselves
“Meetings” and Related Rules
Serial Meetings are Prohibited
These are meetings that at any one time only involve
less than a quorum of the legislative body, but
eventually result in the development of a collective
concurrence without any formal meeting that satisfies
the requirements of the Brown Act.
Social gatherings are permitted if the business of
the legislative body is not discussed.
Examples of Serial Meetings
“Chain” –Member A speaks with Member B, Member B
speaks with Member C on same subject.
“Hub and Spoke” –Member A speaks with Member B,
Member A later speaks with Member C on same subject.
“Intermediary” –Agency Manager speaks with Member
A.She later speaks with Member B and then to Member
C, sharing with Member C Member’s A and B’s
comments/positions.
Means of Communication is Irrelvant
A meeting includes any use of direct communication,
personal intermediaries, or technological devices which
are employed by a majority of the members of the
legislative body to develop a collective concurrence on
action to be taken by members of the legislative body.
(Gov. Code §54952.2)
Example: E-mails: DO NOT REPLY TO ALL!
Agendas and Related Rules
An agenda must include all matters to be transacted or
discussed.
No action may be taken if an item is not on the agenda
(unless it is an emergency item).
Agenda and Related Rules (cont.)
A written agenda must be prepared for each regular or adjourned regular
meeting of each legislative body.
Must be posted at least 72 hours in advance for regular meetings; 24 hours in
advance for special meetings.
Must specify the time and place of meeting and general description of each item of
business
Must provide a public comment period for public to address the legislative body
before or during consideration of an item on the agenda
Action or discussion on any item not appearing on the agenda is generally
prohibited
Agenda Exceptions
No discussion of any item not on agenda … except
examples such as:
Brief responses.
Questions for clarification; providing reference to staff or other
resources for factual information;
Request staff to report at a subsequent meeting.
Public Participation at Meetings
Anyone can attend open meetings
Brown Act requires the public be given certain
opportunities to address the Commission during its
meetings
Cannot require names, questionnaires, or conditions to
attendance
Public may record proceedings by video, film or audiotape
Public Participation at Meetings (cont.)
May not prohibit public criticism of policies or program of
City; or of acts or omissions by Commission
Commission can control conduct of meeting by:
Time restrictions on speakers
Need not entertain matters outside Commission’s
jurisdiction
If meeting willfully interrupted or if order cannot be
restored by removing only the disrupting individuals,
body may order room cleared
Consequences of Brown Act Violations
Nullification of decision
Criminal Misdemeanor –for intentional violations; very
rare and extreme
Challenger must demand corrective action within 90 days
of action --or 30 days if agenda issue
30 days to correct action before suit
Intense adverse media attention
Conflicts of Interest
Political Reform Act
Basic idea: Generally, the Political Reform Act prohibits a
public official from participating in or attempting to use
influence to affect decisions which affect financial
interests.
Individual responsibility of each Commissioner to avoid
conflicts.
City Attorney’s Role in Conflicts
The City Attorney as the City’s legal advisor can provide
legal opinion on potential conflicts.
Very fact intensive inquiry.
Submit questions in writing to the City Attorney as early
as possible.
Last minute conflict of interest inquiries will usually result
in conservative advice that member should announce
conflict and disqualify himself or herself.
Disclosure of Conflicts of Interest
Purpose is to alert public officers of personal interests
that might be affected in performing duties
Public Officials (as defined by PRA) required to Fill out
Form 700 issued by Fair Political Practices Commission
Filed annually and
Filed w/in 30 days of taking or leaving office
Public Records
How do you know if you have a conflict?
General Rule:A public official has a conflict of interest if
the decision will have a reasonably foreseeable material
“financial effect” on his or her “economic interests,” or
that of an immediate family member, unless:
The effect is indistinguishable from the effect on the public
generally, or
The official’s participation is legally required.
Six Basic Types of Financial Interests
An investment of $2,000 or more in a business entity, including
investments owned by spouse, dependent children,or trust
Serve as an officer, director, employee, or hold any business position
in a business.
Real property interest of $2,000 or more, including property owned
by spouse and dependent children. Location of real property is also
important.
Source of income of $500 or more in the prior 12 months.
Source of gifts of $520 or more in the prior 12 months.
Personal finances including you expenses, income, assets, or
liabilities, as well as those of your immediate family.
Common Example: Real Property
500 Foot Rule
Property located within 500 feet is disqualifying
500 feet to 1000 feet
It is not disqualifying unless the decision changes the property’s development
potential, income producing potential, highest and best use, character (e.g.,
altering traffic intensity), or market value.
Greater than 1000 Feet
Presumed to be not disqualifying unless there is clear and convincing evidence that
the decision would have a substantial effect.
What happens if you have a conflict of
interest?
Not voting is not enough.May not make, participate in, or
influence . . . any decision that will have a foreseeable and
material financial effect on you, your immediate family, or
any of your economic interests.(Gov. Code §87105)
What steps must you take?
Publicly identify the financial interest or potential conflict
of interest while at the meeting and before the item.
Do not attempt to influence the decision in any way
including pre-meeting discussions with staff or colleagues.
Ask that item be considered separately if on the consent
calendar.
Leave the room until after the discussion, vote, or any
other disposition of the matter.
Violations
Prosecution: Various criminal and/or civil actions can be
brought by district attorney, California Attorney General,
FPPC, any person residing in City, and local agency.
Fines:Knowing and willful violation is misdemeanor
punishable by fine or imprisonment.
Loss of Reputation
Family Impacts
Fair Political Practices Commission
Primary responsibility for administering and implementing Political Reform Act
Resources offered by FPPC include
Informal assistance at (866)ASK-FPPC
Review materials on www.fppc.ca.gov
Request formal written advice letter
Good faith reliance on formal advice letter from FPPC can provide protection
from liability
Opinion from City Attorney does not provide this kind of protection.
Common Law Conflicts
The common law doctrine against conflicts of interest
prohibits public officials from placing themselves in a
position where their private, personal interests may
conflict with their official duties. (64 Ops.Cal.Atty.Gen.
795, 797 (1981).)
“A public officer is impliedly bound to exercise the powers
conferred on him with disinterested skill, zeal, and
diligence and primarily for the benefit of the public. “
(Noble v. City of Palo Alto (1928) 89 Cal.App. 47, 51.)
Public Hearing Procedures
What requires a public hearing?
Planning Commission decisions can be either legislative or adjudicative in
nature.
Legislative Decisions = Adoption of generally applicable rules of universal
application on the basis of general public policy. Examples:
General plan amendment
New zoning regulations (e.g. wireless communication ordinance, text changes to
zoning ordinance)
Designation of a new zone (e.g. specific plan area)
Amendment of zoning development standard (e.g. greater set-back requirement in
commercial zone)
What requires a public hearing (cont.)
Adjudicative (“Quasi-Judicial”) Decisions = Application of
generally adopted standards (e.g. the City’s zoning and
land use standards) to specific situations (e.g. an
application before the Commission), much as a judge
applies the law to a particular set of facts
Wearing the “judge” hat –Must be fair, unbiased and
make decisions at fair hearing based on the record of
evidence before you
This requires a public hearing.
Examples of Quasi-Judicial Items
Approval/denial of conditional use permits (CUP)
Variances
Site plan and design reviews
Interpretation of zoning ordinances
Extensions of a non-conforming privilege
Requests for reasonable accommodations and revocations
Most items before the Commission will be quasi-judicial
Quasi-judicial Decisions
Quasi-judicial findings must be supported by
“substantial evidence”
Substantial evidence include information contained in staff
reports, written and oral testimony from both lay and expert
witnesses, expert's fact-based opinions, the contents of an
environmental impact report, exhibits and similar items.In
addition, relevant personal observation also may be evidence.
Substantial evidence is not made up of argument, speculation,
inaccurate information or unsubstantiated opinion.
Public Hearing Procedure: Fairness
Rule: Commission must avoid bias or perception of bias in
quasi-judicial decision-making
Examples of Impermissible Bias
Personal Interest in the Decision’s Outcome
Actual Bias
Note: Rules re ex parte contacts
What are ex parte contacts?
In quasi-judicial proceedings, meetings by a member of the Planning
Commission and the developer or residents can give the appearance of
impropriety as you should not gather evidence outside of the hearing.
Avoid initiating contact with a developer or citizen.
If you are contacted, be polite and avoid stating your viewpoint.Recommend
the person submit their comments in writing or state them at the hearing so
they can be considered by everyone.
At the hearing, prior to the staff presentation, state for the record any
information which is relevant to the hearing (that you made a site visit, had a
conversation with an applicant and what was stated, etc.).
General Public Hearing Format
Announce the item
Declare any ex parte contacts, conflicts, recusals
Staff presentation
Commissioners ask questions of staff
Open public hearing
Presentation from Applicant/Questions of Applicant
Public testimony by persons for/against item
Rebuttal by Applicant (last word)
Close public hearing
Commission discusses and debates its decision
The Commission makes its decision
Questions?