Politicians and agency staff will go a long way to avoid public debate and conflict. Last month, the San Diego Association of Governments went too far.
While the city of San Diego debates how to improve its adherence to the Brown Act, Sandag appeared to violate it directly in their haste to avoid the conflicts of doing the public's business in public.
The Brown Act sets forth the rules requiring public noticing of all items on any California agencies' agenda and includes key provisions requiring a minimum noticing for new action items of 72 hours.
Thus it was with some interest at the March 19 Sandag board meeting when 2004 Chair Ron Morrison of National City proceeded to open the meeting and announce a "new action item to the agenda, Item 3A."
Adding items to a publicly noticed agenda is out of order under any interpretation of the Brown Act. You are not supposed to add items without making a declaration of an emergency. There were no emergencies about this.
There were six noticed items on the agenda, and for some reason they decided, in essence to make Item 3 -- a noticed Information Item on recent polling for increasing the TransNet sales tax -- into an Action Item. This made no sense, since the action they'd concocted would have been in order under Item 6, an Action Item noticed on the proposed TransNet ordinance itself.
But instead of taking the agenda as legally noticed, Morrison announced they were adding this "New Item 3A." Morrison then recognized the Vice Chair Mickey Cafagna of Poway, who made a motion to increase the proposed sales tax by an additional $5.5 billion by extending the term of the tax from 30 years to 40 years. San Diego Mayor Dick Murphy made a quick second, limited debate took place and the board took action, directing staff to change the TransNet proposal based upon the outcome of the polling.
Good planning -- and a good process was buried.
Then things got really confusing when the board decided that this made Item 6 moot. And since the public had been unable to submit speaker slips on the "New Item 3A," the board pulled up public testimony for Item 6 and sat through it. But the action had already been taken and any debate in response to public testimony was precluded.
That's the problem with manipulating the process. It's unfair because you prevent the business of the public from really being done in public. In this case, they prevented any wider board debate in response to issues raised by the public -- because by the time they took testimony, the action was already decided.
For the record, sitting around this board table were 20 local elected officials and various agency reps, and not one of them said a peep. They could have just claimed it was a noticing error. They could have simply pulled Item 6 up and taken it out of order. But this is not what they did.
It appears to be a clear and blatant violation of the law for a public agency to announce the addition of a "New Action Item" at the beginning of a meeting without making a declaration of an emergency and requiring a two-thirds vote.
Sandag's legal counsel should have intervened right after Morrison's addition of a "New Action Item." That is after all, the legal counsel's job -- to ensure the laws are being followed.
Sandag board and staff owe the public an apology in addition to any appropriate legal remedies to cure their conduct. But they have achieved what they intended and there is no cure for that. They have diminished the public debate that should have happened on that date on the matter of raising our taxes by an estimated $15.5 billion.
Note: After the meeting, San Diego's Mayor Murphy sent a letter to Sandag "to express my concern with the manner in which the board agenda was modified," and to recommend they re-notice the item for the next agenda. The board did so.
But remedying the problem procedurally is not the same as running the process fairly and openly as required by law to begin with -- and that, this Sandag board and their general counsel, did not do.
Chase is a Planning Commissioner for the City of San Diego and member of Sandag's Regional Comprehensive Plan Stakeholder's Working Group.