HomeMy WebLinkAbout03-01-2017 PRC Item 3, Dietrick-Mourenza-Schmidt
From: Dietrick, Christine
Sent: Monday, February 27, 2017 5:53 PM
To: Lydia Mourenza <
Cc: Stanwyck, Shelly <sstanwyCk@slocity.org>
Subject: RE: Parks & Recreation commission Brown Act Violation please post P/R 3/1 item 3
Bcc: CC & Advisory Bodies
Dear Mr. Schmidt & Ms. Mourenza,
9 2017
SLD CITY CLERK
Thank you for conveying your concerns about discussions at a recent Parks & Recreation Commission (PRC)
and giving my office the opportunity to look into the matter.
You raised concerns that the PRC committed a Brown Act violation at its February 1, 2017 meeting by
approving a letter from the PRC to the City Council requesting that $200k of $900k of earmarked funds in the
City's Parkland Fund account be used to update the City's Parks and Recreation Element of the City's General
Plan. The $900k of funding was designated by the prior City Council to build a park to serve the north Broad
Street area. First, there seems to be some confusion on what action took place by the PRC on February 1. My
office's review of the meeting didn't disclose formal approval of any letter. There was a comment on the issue
by the Chair, some direction to staff, and a request for staff to bring back a letter for the PRC's subsequent
consideration. My understanding of what occurred is as follows:
' - During the "Communications" portion of the PRC agenda, Chair Whitener talked about attending the
Council's goal setting meeting and being encouraged about the fact that an update to the Parks and
Recreation Element was included as one of the City's major city goals.
Chair Whitener talked about the designation of $900k by the prior Council to fund acquisition or
construction of a park in the Palomar area (north Broad Street) and wondered if that was the best use of
that money and whether a portion of it should be used to fund the update to the Parks and Recreation
Element.
Chair Whitener talked about having a new Council in place that is supportive of parks and, wanting to
continue that momentum, asked the other Commissioners if there was general support to send a message
to the Council somehow.
- Another member of the PRC said "how would we do that?"
Director Stanwyck responded by saying that the PRC could write a letter to the City Council and
provided feedback on what that letter could say. She provided some additional context about how much
the update might cost, funding sources, various resources available and necessary steps to perform the
work.
- Ms. Stanwyck then said that, if the PRC so directed, the next step would be for staff to draft a letter for
the PRC to consider.
- The PRC members indicated that they were interested in reviewing such a letter to the City Council. Ms.
Stanwyck specifically advised them "...because you can't take action tonight, you're in support of us
returning with a letter for your review and final approval on this concept." The PRC said yes.
As you both note, the Brown Act prohibits a legislative body from discussing or taking action on any item not
appearing on the posted agenda. Gov. Code § 64954.2 does however, allow for some limited exceptions. These
exceptions include the following:
Gov. Code § 64954.2(a)(3): No action or discussion shall be undertaken on any item not appearing on
the posted agenda, except that members of a legislative body or its staff may briefly respond to
statements made or questions posed by persons exercising their public testimony rights under Section
54954.3. In addition, on their own initiative or in response to questions posed by the public, a member
of a legislative body or its staff may ask a question for clarification, make a brief announcement, or
make a brief report on his or her own activities. Furthermore, a member of a legislative body, or the
body itself, subject to rules or procedures of the legislative body, may provide a reference to staff or
other resources for factual information, request staff to report back to the body at a subsequent meeting
concerning any matter, or take action to direct staff to place a matter of business on a future agenda.
Here, the PRC did not take any formal action other than directing staff to return to the PRC to consider a letter
to send to the City Council requesting that they allocate certain earmarked funds to pay for the Parks and
Recreation element update. The basis for this action is a combination of Chair Whitener making a brief report
on his activities and an announcement, which then evolved into direction from the PRC to staff to place a matter
of business on a future agenda. With the exception of Chair Whitener asking if there was general support to
send a message to the Council and one other PRC member asking "how would we do that," the discussion
during this time was either a report on the Chair's attendance at another meeting and reaction thereto from the
Chair or communication from Ms. Stanwyck in response to a question regarding how the PRC might convey a
position to the Council. Any PRC discussion or consensus appeared to be limited to whether the PRC wanted to
move forward with formally considering such an item on a later agenda. To the extent that such communication
amongst the PRC members constituted an action to concur in Chair Whitener's comments, either impliedly or
indirectly, such action is not final and any lack of notice or opportunity for public comment is "cured" under the
Brown Act by the fact that the PRC formally agenized this item in its March 1, 2017 meeting and included a
draft letter in the agenda packet for the PRC's consideration and for the public review and comment during that
meeting. See Gov. Code § 54960.1.
I appreciate that members of the public are engaged and providing us with input that can help us better advise
our advisory bodies and staff. We always encourage direction on future agenda items to be as constrained as is
possible to convey the nature and scope of the direction to staff and we encourage that any non-agendized
communications, such as those referenced above, remain brief and limited to that information necessary to
provide clear direction, but human interaction is not an exact science. We will certainly discuss your concerns
with staff and our advisory body members, but it would appear that any concerns over the lack of public notice
or opportunity for public comment are squarely addressed by the March 1, 2017 agenda item in this case.
Best regards,
Christine
Christine Dietrick
City Attorney
CITY OF
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City Attorney's Office
990 Palm Street, San Luis Obispo, CA 93401-3249
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slocity.org
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From: Lydia Mourenza [
Sent: Monday, February 27, 2017 3:55 PM
To: Harmon, Heidi ; Gomez, Aaron ; Pease, Andy; Rivoire, Dan ; Christianson, Carlyn ; City_Attorney
Cc: Advisory Bodies
Subject: Parks & Recreation commission Brown Act Violation please post P/R 3/1 item 3
Ms. Heidi Harmon, Mayor
City Council Members
San Luis Obispo, CA
Dear Mayor and Councilmembers
This letter is to call your attention to what I believe was a substantial violation of a central provision of
the Ralph M. Brown Act, one which may jeopardize the finality of the action taken by your Parks and
Recreation Commission.The nature of the violation is as follows: In its meeting of February 1 the Parks
and Recreation Commission took action at the request of its Chair, Jeff Whitener, under "Commission
Communications" to "unanimously support" "a recommendation to Council that it use funds from the
Park Land Fund that were placed there during the 2016-17 budget adoption for potential park
acquisition in the area North of Broad Street as updating the element and having a master plan makes
sense to come first. "
This action was not in compliance with the Brown Act because there was no adequate notice to the
public on the posted agenda for the meeting that the matter acted upon would be discussed, and there
was no finding of fact made by the Parks and Recreation Commission that urgent action was necessary
on a matter unforeseen at the time the agenda was posted.
In the event it appears to you that the conduct of the Parks and Recreation Commission specified herein
did not amount to the taking of action, I call your attention to Section 54952.6, which defines "action
taken" for the purposes of the Act expansively, i.e. as "a collective decision made by a majority of the
members of a legislative body, a collective commitment or promise by a majority of the members of a
legislative body to make a positive or negative decision, or an actual vote by a majority of the members
of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or
ordinance."
As you are aware, the Brown Act creates specific agenda obligations for notifying the public with a
"brief description" of each item to be discussed or acted upon, and also creates a legal remedy for
illegally taken actionsnamely, the judicial invalidation of them upon proper findings of fact and
conclusions of law.
Pursuant to that provision (Government Code Section 54960. 1), I demand that the City Council cure and
correct the illegally taken action as follows: Instruct the Parks and Recreation Commission to formally
and explicitly withdraw from any commitment made, and to disclosure at a subsequent meeting why
individual members of the legislative body took the positions — by vote or otherwise — that they did,
accompanied by the full opportunity for informed comment by members of the public at the same
meeting, notice of which is properly included on the posted agenda.
As provided by Section 54960.1, you have 30 days from the receipt of this demand to either cure or
correct the challenged action or inform me of your decision not to do so. If you fail to cure or correct as
demanded, such inaction may leave me no recourse but to seek a judicial invalidation of the challenged
action pursuant to Section 54960. 1, in which case I would also ask the court to order you to pay my
court costs and reasonable attorney fees in this matter, pursuant to Section 54960.5.
Respectfully yours,
Lydia Mourenza
cc Christine Dietrick, City Attorney
Sent from my Wad
5
From: Richard Schmidt [
Sent: Friday, February 24, 2017 5:10 PM
To: Dietrick, Christine <cdietrick@slocity.org>; E-mail Council Website <emailcouncil@slocity.org>
Subject: Surely a Brown Act violation
Dear Ms. Dietrick,
Lq
FEB 2 8 2017
It seems that the letter below, from the P&R Commission to the City Council, is on a matter discussed at their recent
meeting without that item being on the agenda.
In other words, the commission just decided to raid a park acquisition fund residents had fought like the dickens to get
created, and funded by the Council with far less than the ultimate cost of land acquisition in the North Broad area. This
section of town is the ONLY neighborhood specifically called out in the P&R Element as lacking and needing a park, and
it's been that way for at least 40 years as other project after other project takes "priority."
Since this item was not agendized, nobody knew about it till this letter appeared.
Surely this is a Brown Act violation.
I'm asking you to shut it down, pull it from Council consideration, and tell the commission if they are even remotely
considering raiding a fund set up at public behest they must agendize the item, and properly notify the entire North Broad
neighborhood. You might also educate the P&R Director for her role in this travesty. (She was non -supportive of the
Council action creating the fund, by the way.)
You should also be aware that the Chair and some other P&R Commissioners spoke in terms that are disgustingly
disparaging and disrespectful of the North Broad area residents, thus indicating that this action is punitive and taken with
malice and forethought.
Thank you for enforcing the law.
Sincerely,
Richard Schmidt
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March 1, 1017
Dear Council:
For many years, the Parks and Recreation Commission has advocated for an update of the
City's Parks and Recreation Element of the General Plan. The components needed to
achieve this policy update include an assessment of our community's parks and
recreational needs, a policy review, and a master plan. This objective was included as part
of the advisory body input to Council for consideration during the goal setting process for
the 2017-19 Financial Plan.
After careful consideration and discussion tonight, the Parks and Recreation Commission is
recommending the use of a portion of the Parkland Fund to pay for this much needed
assessment, element update, and master plan. During the adoption of the 2016-17
budget, a majority of the then City Council approved the placement of $900,000 into this
fund for the future acquisition of parkland in the neighborhood North'of Broad Street. As
your Parks and Recreation Commission, we believe a portion of this money, no more than
$200,000, should be moved into the General Fund for the express purpose of
accomplishing this project. We believe that an update of this plan should occur prior to the
acquisition and design of new parks, We believe that the foundational aspects of this
update, a citywide parks and recreation needs assessment and companion master plan, will
provide the pathway to continued success in meeting our residents' recreational needs.
As you begin to provide direction to staff regarding the major work efforts to be included in
the 2017-19 Financial Plan we urge that you allocate the funds to accomplish this long
needed project.
Sincerely,
Jeff Whitener
Chair of the Parks and Recreation Commission