Planning Commissioners Accused of Breaking Public Meetings Law

Six of seven Pacifica Planning Commissioners stand accused of Brown Act violations that local residents and an expert on public meetings law say they committed at a Sept. 19 meeting.

The San Mateo County District Attorney's Office has been notified and may be investigating the claims.

The alleged violations occurred when the Planning Commission got on the subject of Caltrans’ plan to widen Highway 1 in Pacifica—a topic that was not on the agenda for that meeting but has lately.

At length, commissioners shared their thoughts on the project and took three votes, one of which was to recommend that the public comment period for a Draft Environmental Impact Report (DEIR) on widening the highway be extended. This vote came after residents urged them to become involved in the DEIR review process during the public comment period of the meeting.

In order for the discussion to be legal on Sept. 19, said Terry Francke, general counsel for Californians Aware, a public disclosure law watchdog organization, and expert on public disclosure law, it would have needed to be placed on the agenda at a prior date.

In order for the vote to recommend an extension of the public comment period to be legal, write Mark Stechbart and Jim Wagner in a letter they sent to the San Mateo County District Attorney Steve Wagstaffe's office on Sept. 29, it would need to have been agendized and the public would have needed at least ten days notice.

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For a commissioner to contribute color, input or opinions to an issue that is not on a meeting’s agenda is contrary to the Brown Act, said Francke.

The Brown Act governs meeting access for local public bodies and says that the public must have ample notice before a government body takes an action or even discusses an issue in depth.

“Any kind of extended discussion of the substance of a matter not on the agenda where there is a supporting vote that action must be taken is certainly inconsistent with the Brown Act,” Francke said.

Doing so is problematic, Francke said, because it does not allow the public to participate in the discussion before commissioners make their opinions known about a subject or actually vote to take action.

“A discussion that takes place that’s at all extended and substantial under circumstances likes this, it escapes the notice of members of the public who might be very interested in, let’s say, enriching the discussion and either calling immediate attention to inaccuracies, false impressions, mistaken assumptions and so forth, or in adding their own either contributory statements,” he said.

Additionally, Francke explained, if the Planning Commission discusses the issue again, there will already be expressed opinions and policy, as it were, from commissioners when there shouldn’t be.

“The reality is that this now comes to the Planning Commission agenda with a bit of policy history, and it may not be that much, but it’s a bit of a policy history that escaped public attention at the time it was created,” he said.

Stechbart and Wagner have asked District Attorney Steve Wagstaffe to investigate the alleged Brown Act violations.

“During the Sept. 19 meeting, four speakers under oral communications discussed items not on the agenda and asked the Planning Commission (PC) to take a formal policy position,” They wrote in the letter to the D.A. "Three unagendized votes were taken based on oral communication testimony. One specifically asked the City council to engage on a policy issue…By its action, the Planning Commission violated all standards of open government.”

Wagstaffe has not yet returned a phone call about whether his office is currently investigating the matter, but Mayor Mary Ann Nihart said that City Manager Stephen Rhodes was contacted by an investigatory agency about the alleged Brown Act violations. Rhodes himself denies ever being contacted, however, stating that it would be the city attorney representative that would have received such a call.

A representative of the city attorney did not return a phone call.

The City Council will meet about the complaint in its next closed session.

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