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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?