Planning Commission - Special Meeting

Okay.

I am showing 6PM. It is now 06:00, and I hereby call this special meeting of the San Bernardino County Planning Commission to order. If, we could have the pledge of allegiance led by commissioner please. And now the roll call, please.

Absolutely. District one, Vincent Ringhaden. Present. District two, Richard Way.

Present.

District three, Robert Scaglotti.

Present.

District four, Robert Gibson.

Present.

District five, Bobby Thomason. Present. All commissioners are present.

Thank you. Now the consent agenda. And, before we vote on that, I believe that there is correction to be made. Stephanie?

Yes, chair. I made a slight error in the posting. It says on here that it was posted on August 30. I made a mistake. It was actually posted July 30. So it was available and posted to the public in the correct time frame.

Okay. So if we can stipulate that, when we make the vote, I believe that will be, acceptable, legally. Is that correct? That's fine. That's fine. Okay. Can we have a motion? Okay.

So moved.

Is there a second? Second. All those in favor?

Aye. Aye.

Any opposed? Kate, consent agenda carries five to zero. There are no items on the public hearing tonight. So moving on to the regular agenda item 6.1, training for planning commissioners on Brown Act regulations. So please proceed with that.

Please.

Hello. Thank you so much for having us. So I'm Rebecca Mojica, deputy county council here, and I'm here with Sean Cameron who's your typical your your regular every meeting, assistant county council here, and we're gonna be going over a training that will review some land use and environmental law as well as an intro to the brown act overview and ethics law for public officials. So to start us off with the land use and environmental law, I'm gonna welcome Sean to start us off.

Hello, Planning Commission. So, yeah, we're gonna start with land use and environmental law. So here is just sort of general categories of the sources of law that you should be considering when you take up an item. The middle column is sort of the top of the list. So federal and state constitutions are sort of the overarching law that you need to consider.

And that includes laws regarding property rights, police power, due process and equal protection, freedom of speech, religion, association, privacy, and travel. And then sort of combined with that is the statutory law. So there's federal statutes and regulations as well as state statutes and regulations. And then sort of below that is local ordinances, resolutions and orders. And then we also need to deal with the common law.

So common law is law that's made by courts and is interpreting that statutory law and that constitutional framework. Then we also have decisional law which is sort of a common law is actually underneath the decisional laws of decisions by courts, but it also includes administrative agencies. So the federal government or the state government will have an administrative agency sort of promulgate rules. They'll set sort of general rules and then the agencies themselves will set specific sort of guidelines underneath that. Consider.

So the role of local officials. Your role is to understand, apply and comply with the law. That sort of as I was speaking to you before is one of the ways is the legislative authority. So the making of laws. So you create policies and rules of general applicability.

Examples of that include the general and specific plans, zoning ordinances and development agreements. The Planning Commission's role in that is that you recommend to the Board of Supervisors and then the Board of Supervisors actually adopts. And you guys have been involved with that of course previously. And then there's also quasi adjudicatory authority and that's applying the law. So applying existing rules and standards to specific properties.

Examples of that are variances, use permits, subdivision maps, and design review. Due process around that requires notice and a fair hearing and due process is basically, we'll talk some more about that later, but depending on the rights involved, it's balanced with notice and hearing requirements. So the more significant the right being the right at issue, the more sort of due process you need to have in place to make sure that those rights are not violated. And so the role planning commission reviews with the right to appeal to the board of supervisors. So for instance, yeah, if you guys hear use permit, somebody wanting to subdivide their property, the applicant of course can always appeal that to the board of supervisors.

And then actually if it goes, it can actually go beyond that. The applicant could potentially bring a claim to the superior court, the local court across the street here. If they wanna continue to challenge that. And it will be based on sort of the administrative record that you guys have set up. And so that's why it's important that the administrative record that this body creates is solid so that if it ever was challenged in the spirit court that we would be able to uphold our decision.

So as I sort of spoke to before, procedure depends on the type of authority being exercised. So here's a general outline of the California land use hierarchy. These are just sort of agencies that you should be familiar with. So there's state planning agencies, the Office of Planning and Research, OPR, and it promulgates CEQA and general plan guidelines and also maintains the CEQA clearinghouse. So as staff probably knows they deal with these sort of CEQA and general plan guidelines regularly.

And so anything that comes in needs to be sort of checked against those guidelines and to make sure it's in conformance with those. And then there's the secret clearinghouse which handles the sort of the notices and other materials that staff finalizes and sends to the clearinghouse to sort of gives notice to the general public to be able to see what's going on. And then there's state agencies, there's Caltrans and the Transportation Commission. There's the Department of Fish Health are And working then we a of Human Community Development. You guys may be familiar with these agencies agencies and already because we deal with them regularly.

And so local agencies, there's LAFCO, which is the local agency formation commission that deals with sort of boundaries. And then of course there's the county and the city that make and enforce ordinances and regulations. And then there's special districts as well. There's also those regional agencies that I won't name off, but you should be aware that they exist. So and then here's the general plan.

So the general plan is the constitution for land use. It sets the framework for decisions and the land use decisions that you're making as a body need to be in conformance with the general plan. It is the constitution for land use for your jurisdiction. So all government decisions, I. E.

The decisions that you make as a body affecting the use of land must be consistent with the general plan. It's a long term plan covering twenty to thirty years. So the idea is that it's setting a general framework that the county is putting forth to be able to plan and make good decisions with respect to the development of the county. It is supposed to take a long term view and is relatively general as the name implies as a general plan.

We'll post about that.

But as I said, acts as the constitution. So we need to make sure that the zoning and everything that falls underneath that general plan is consistent with it. If it's not an applicant, a member of the public could challenge a decision made here and overturn that potentially. So it states the policies with diagrams, objectives, principal standards, and proposed implementation measures. And also includes annual progress reports to make sure that the county is meeting those sort of standards and those plans that we put forth.

So the general plan, adoption or amendments. So travel consultation is one of the things that the county engages in needs to do whenever a product not deal with certain kinds of projects. It's required early in the planning process for general plan updates and certain amendments. And then we have the planning commission which conducts workshops and noticed public hearings and makes a recommendation to the Board of Supervisors by resolution once that sort of happens reaches that stage. Of supervisors then holds notice public hearings.

If new changes not considered by the planning commission are made, then they need to refer that back to this body. So if there's a general plan update, you guys make a recommendation to the board. It goes up to the board. Board says, we do not like what you put forth and makes material changes to that. Then it should come back to this body for sort of the redoing that process.

It's important that these things are done methodically and in steps. And we're not rushing through these things. Like I spoke to before, there should be a long term plan and it functions as the constitution. And so to change that, to make any sort of updates or amendments to that, it needs to go through a rigorous process to make sure that we're doing that correctly and that we're intentional with the effects that we're making to that document. So additional notes may be combined with other land use approvals to provide consistency.

You guys have dealt with that where there's a project that comes in and they need very they may need a CUP and then also need a general plan amendment as aligned with that to make the project work underneath that general plan. Because the project itself has to, of course, comply with the general plan. And so if it doesn't, then you need amend the general plan. And it's subject to initiative or referendum by petition of registered voters. So we've dealt some with that.

Of course, we've had measures that have passed and made changes to our general plan. And so it doesn't just have to originate from the county itself, it can come from the public. So zoning basics. Zoning regulates compatibility and intensity of land uses. It's traditionally implemented by classifying and separating uses into zoning districts with uniform development standards.

Examples of standards are minimum lot size, height, bulk, which I'm not sure exactly what that's referring to and setbacks, parking sidewalks and utility undergrounding, etcetera. So basically you have the general plan and it sets a general framework and then underneath that you have specific. So general plan, very general zoning, more specific. So as I spoke to you before, zoning must be consistent with the general plan and it also needs to prove that sort of when you guys make findings as you'll as you've probably seen or should have seen that the decisions you're making are based on a finding that the amendment or what have you is promoting the public health, safety and welfare. The decisions you're making here apply to the county as a whole.

And so the idea is that you're not making decisions one off or just for any sort of you need be thinking about it in a general sense, in a general sense to promote the public health, safety, and welfare. And then zoning ordinances and amendments follow subject to voter initiative and referendum. Implementation tools. Zoning amendments can be processed along side general or specific plan amendments, subdivision map approvals, and development agreements. Zoning districts include permitted uses by right or conditional use permits for discretionary approval.

Variances may be granted when strict application of standards would create an unnecessary hardship due to the unique circumstances of that particular property. So if the zoning district has certain rules and conditions around it, an applicant can apply for a variance and we have that in our code and there's certain requirements around that. But the general idea is that if it's an unnecessary hardship on that particular property then they can get a variance for that in order to carry that project forward. We also have minor modifications that are good for aerial. And then here we are at this Subdivision Map Act.

The Subdivision Map Act, its purpose is to regulate improvement of land subdivisions for sale, lease or financing. It ensures orderly development consistent with local plans and infrastructure standards. Typical requirements, street and frontage improvements as we've dealt with before, utilities, drainage and stormwater management, landscaping, parks and school site dedication, as well as development impact fees. So yeah, we deal with of course subdivisions on a regular basis and the Subdivision Map Act is the governing act. And it's just state statute that governs up.

So under that there's different types of maps. So you've heard I'm sure major and minor subdivisions. This is basically what that is. So for a fewer lots is what they call a minor subdivision. And it requires a tentative and parcel maps.

Whereas a major subdivision is five or more lots, and that involves a tentative and final subdivision maps. The legal standards is that it must be consistent with the general plan, zoning, and the general welfare requirement. And it's a quasi adjudicatory process so it's not subject to initiative or referendum. This is under the as spoken about before, basically it's a legislative decision that you guys are dealing with or a quasi judicial subdivision. If somebody comes in a subdivision, major or minor, it's a quasi adjudicatory process as opposed to the legislative one.

So approval. Prostomab for Firo Lassa Minor subdivision is approved. The county engineer needs to review it and make sure it comports with the requirements of the county. And it's subject to appeal if discretionary review is required. So if county makes a discretionary decision on that, then it can be appealed.

And that's generally true of the things you guys are hearing. When you guys are making discretionary decisions, people can appeal those things to the board of supervisors. A tentative map, five or more lots, discretionary approval by the planning commission and is subject to appeal by the board of supervisors. And of course, you guys add conditions of approval to those or you can't do that. And then there's the final map which is reviewed for technical compliance with the approved tentative map.

Basically the stages are tentative map sets the tentative rules and then final map is the final one that sort of puts those in place. And it also includes acceptance of dedications, for example streets and easements. Those are subject to mandatory timelines for review, approval, and appeals. So here is just sort of a list of other planning laws that you guys should be privy to. There's the Permit Streamlining Act and that establishes deadlines for local agencies to act on development applications.

There's Mitigation Fee Act, which governs how local agencies oppose, justify, and use development impact fees. Development agreement law, which we've talked about some here, allows contracts between public agencies and developers to best development rights. Basically the developer in exchange for locking in those the ordinances and the laws at that time will give concessions or benefits to the county. Otherwise they may be subject to things that change, I. E.

Measure A. You have a project, you're looking to get it in place, these things take a long time to do. And in the meantime, the laws change. And so you will be subject to those changes in laws unless you have a vested tentative map, you have a development agreement or you have a common law basis which is difficult to establish. So basically you need a vested tentative map or a development agreement.

Otherwise you need to get it in under common law, which like I said is very difficult. And then we have accessory dwelling unit and density bonus laws. So those facilitate increased housing supply approvals and incentives. And so we deal with those on a regular basis here as well. The ADUs is obviously something that the state is pushing to hopefully address at least some of our housing need in California.

And they continue to sort of expand those. And I mean, yeah, it seems like every year they keep coming out with new rules that expand the abilities to do ADUs. So I would expect to see more of that. There's financing district laws. So you guys, I don't think deal too much with that, but it enables the creation of CFDs to finance public infrastructure and services.

So it's essentially a specialized district that subjects those properties payments so that they fund the things that they're using. Then there's affordable housing laws. So we have an inclusionary housing act, inclusion ordinance here and we do deal with that and they're trying to push that and and, you know, we put that into effect and have put forth projects that include the inclusionary housing stuff. So then there's also SMARA, which I'm not sure if I've dealt with that stuff in here with this body, but there's the Surface Mining and Reclamation Act, and it regulates surface mining operations. And the main piece that we deal with is it requires reclamation plans.

So if you're doing mining, there's state rules that require you to put a reclamation plan in place, which is triggered upon essentially once the usefulness of the site is accomplished or you're looking to end that sort of mining operation. And once you do that, you need clean it up. There's requirements you need to get it back to essentially the state it was before the mining took place. And so to do that, there's money that the developer needs to put down and that sort of thing just to guarantee that. Otherwise you run into problems at the end if trying to figure out who's gonna pay for this. Sure.

So the way it works is that there's financial assurance costs and that is actually re estimated every year. Every year the state requires, the Department of Conservation, they require that there is, an inspection report and a new, base insurance cost report done. And they look at every piece of equipment and every cost for acclamation. And so that is done on an annual basis and consistently updated. Its reclamation plans are only required after, I believe, 1975 when SMARA Act went in place.

Prior to that, there are mines that predated that. They had to then get a reclamation plan in place because they predated that requirement. And so that was kind of the transition in that period by the hour. So

now we are at CEQA,

which I believe. Yes. So

switching from planning to environmental, the California Environmental Quality Act or CEQA.

Can I interrupt real briefly? The the section on CEQA, is

this going to include the very recent changes to CEQUA that have gone Just very briefly, but, yes, it does.

Okay. Great. Thank you. Of course. Okay.

The we can find the governing authority here in public resources code section 21,000, with further detail in the CEQA guidelines at 14 CCR 15,000. So what does CEQA do? It applies to all discretionary governmental actions that may have a significant effect on the physical environment. So it requires agencies to do three key things. Identify potential environmental impacts, disclose those impacts publicly, and avoid or mitigate significant effects whenever it's feasible to do so.

So the environmental impact report or EIR is the most thorough type of review. So even if there are significant unavoidable impacts, the agency may still approve a project, but it must adopt a statement of overriding considerations. The when it comes to the application of CEQA, so CEQA applies to discretionary product projects. Examples would include use permits, zoning amendments, general plan changes. So but it does not apply to ministerial actions like issuing a building permit where there's no judgment involved.

Then we have exemptions. So aside from the general, okay, maybe it applies and there's exemptions to it. Statutory exemptions are built into state law for things like emergency repairs or some transit projects. And then there are categorical exemptions which are established by regulations. So projects that are generally considered to have no no significant impact like small infill or minor alterations.

One other important early step is tribal consultation. So both AB 52 and SB 18 may require you to consult with California Native American tribes depending on the project. So here's a basic overview of the review process. So first, you're gonna determine whether or not CEQUA applies. Is the project discretionary? Is is there an exemption? If it's applicable, then you would initiate your tribal consultation and prepare an initial study. So this looks at how the project may change existing environmental conditions depending on the findings. There are three three possible paths. You can either have a negative if there are no significant impacts, you can file a negative declaration.

Or if there are significant impacts, but they can be mitigated, then you can prepare a mitigated negative declaration. But if the significant impacts are voidable, then you must prepare the full EIR. Now we're gonna go through a bit of a flow chart that provides kind of a visual representation of the process we just talked about. So you're gonna determine, yes, it's a project or not a project. And if it's a project, then there's different exemptions that could apply to it if it's ministerial or there's no significant effect or if there's an exemption.

If it's not exempt, then you'll evaluate and determine if there's that impact. If there's a possible significant impact, you'll determine which lead lead agency if there's more than one lead agency involved, and then those responsibilities responsibilities will will break break out. Out. So So if if there's there's a responsible agency and the lead agency, you can see here how those can, break down where the lead agency, which likely be the county, would work with helping prepare the initial study while the responsible agency would respond to those informal consultations side by side kind of throughout the process. Then it would go on to an EIR or a negative declaration.

And if you see here, the negative declaration kind of just breaks off and streams it all the way to the bottom. But going back through the EIR, there's a lot more steps that that involve entails. So notice of preparation to the responsible agencies, and they prepare the draft of the EIR. They file the notice of completion, and that needs to also have public notice. There's a public review period, which is required and set by statute or regulation.

And then after that and the comments are incorporated, there's a final EIR, and then they also respond to comments on that before it goes forward for consideration or approval of the final the declaration, is not on the chart, but it does follow that same process as the negative declaration.

Sorry, just a few more quick notes. Really some of the main differences that you see in the public process between whether it's a NEG deck or MND or it's an EIR is, two key things really. One is, you have notice of preparation that's done for an EIR and a scoping process, and so that's published and, there's a timeline. In addition, one of the other key differences is when you post a public draft of an EIR, there's a forty five day review period unlike the MND where there's only a thirty day review period. So it allows for, additional, public, input, for an EIR compared to an M and D or in NECDEP.

Yes,

yes. Yes, exactly.

And that's done all in the beginning of, project, review. Thank you. Okay.

So moving on to CEQA standards. So CEQA decisions are reviewed under two different legal standards depending on the document. So for negative declarations and mitigated negative declarations, the courts apply a fair argument standard. So this is a fairly low threshold. If there is any substantial evidence that the project might have a significant environmental impact, the EIR is required.

But for EIR's, courts apply substantial evidence standard. So they usually defer to the agency's decision as long as it's supported by substantial evidence in the record. So importantly, the decisions are limited to the administrative record. So no new evidence can be introduced in courts after the agency makes its decision. Moving on to some emerging issues, we can wrap up, so sequel litigation is common and carries a lot of real risks.

It's but some factors on this is there's a very short timeline to file a lawsuit. Sometimes it's limited to as little as thirty or forty five days after a notice is posted. There's a mandatory early settlement meeting that's required, and attorney's fees can be awarded to successful petitioners, which is something that adds a lot of pressure to sequel litigation because those can come at very high costs when it comes to the detail that comes with the fast timelines of sequel litigation. Also, projects can be delayed for years because of SQL challenges. Even if it's not even if sorry.

So even if the project is ultimately upheld, the cost and delay can be so substantial that it has an impact on that project moving forward. And Ariel was also mentioning that the notice of the decision has be filed within five days, otherwise it extends their period in order to appeal it and bring cause of action. Okay, so some emerging changes and this is what was asked about a moment ago, so there's a b one thirty, which was passed this year. So it represents a significant modernization of sequence that relates to housing. So it focuses on facilitating infill housing development in locations by setting clear eligibility criteria.

So projects that are relatively small in scale and it outlines, 20 acres for general projects and five acres for builders remedy projects can now move forward without the traditional CEQA delays so long as they check all the right boxes, including things like the urban location, their density aligns with the statute. There's no demolition of historical buildings. There's no sensitive land disturbances and other, factors listed. Also, so the bill includes, strong labor standards and introduces, statewide VMT mitigation bank to help projects meet climate goals. So it's a strategic, more of a a surgical approach to sequel reform aimed at, clearing some of the red tape for responsible housing development.

Another recent, change in the sequel landscape is s b one thirty one, which was also passed this year and has nine new exemptions, and then one of them is a near miss kind of exemption. So it introduces two major ideas. So expanded CEQA exemptions and the near miss provision. So the new exemptions target common sense community needs like daycares, rural clinics, wildlife risk mitigation, and the more innovative concept that came with this is the near miss. So if you're only missing one of the require of the areas to almost qualify for CEQA, you just fall short due to one specific issue, it gets a narrowed review.

So instead of triggering the full SQL review of the project, you only have to study the issue that disqualify them. So I just wanna apply to every project, and there are carve outs for industrial uses and protected lands, like pine farmland. But in many cases, it could mean months or years of saved time for certain projects, but still having to meet or that still meet high environmental standards. Okay.

Can I interrupt for just one more moment? Yes. This is more for staff, actually. Could we get after this meeting, can we get copies of the slides for AB 130 and SB 131, which are not included in our packet?

Yes. Totally published in this. Great. Okay. Thank you.

So if there's any changes to the slides, after the meeting, we repost the publication. The request had come to add that information, so we

just made sure it was part of tonight's presentation. Great. Thanks. So, yeah,

I just noticed that those two particular slides are not in what we have yet. Thank you.

Okay. So some other environmental laws, we're just gonna quickly go through these. So there's NEPA which is the federal counterpart part to CEQA. So it applies to federal agencies or federally funded projects. So if that's federal funding, it may be subject to NEPA requirements. There's the clean water act, which governs discharge or fill into waters, including wetlands. There's the porticlone Water Quality Act, which is California's version of the, water quality control. There's the federal and state endangered species acts, which require protection of listed species and their habitats as well. And there's California Fish and Game Code, which specifically

there's the

stream bed alteration permits, which are within that. And there's a Clean Air Act with both state and federal levels, which are often triggered by traffic emissions is when we interact with those. S p 32, which is a global warning solution act that mandates statewide, GHG reductions. The National Historic Preservation Preservation Act, which applies to historic or cultural resources, the Resource Conservation and Recovery Act, which addresses hazardous waste management. And then depending on the project, multiple permits or consultations may required in addition to that CEQA compliance.

And now I'm going to hand it over to Sean to introduce us to the Brown Act.

Okay, so now on to the Brown Act. So as you can see by this little cartoon here, the Brown Act didn't always used to exist. And prior to its existence, there was a concern that bodies such as yourself may be doing things behind closed doors and having meetings outside of the public meetings that the public wasn't privy to. And the public should be privy to those things because we work for them. So here's the here's the historical overview.

I believe that is mister Brown, or maybe senator Brown. I'm not sure. The Brown Act was enacted in 1953 in response to allegations that local elected officials were skirting meeting notice requirements by conducting secret workshops or study sessions. So I. Having meetings behind closed doors that the public was not privy to.

So the the Brown Act's purpose was to remedy that. And as stated by the Brown Act Brown Act, public commissions exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly. It goes on to say that the people people of this state do not yield their their sovereignty to the agencies which serve them. The people in delegating authority do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.

The people insist on remaining informed so that they may retain control over the instruments they have created. So again, that argues back to this body is of course a public body and is underneath the public in that sense. So applicability, the Brown Act is broadly applicable. It governs cities, counties and special districts. It also governs standing committees, which is a permanent committee that meets regularly as opposed to an ad hoc.

Is ad hocs are meant to be short indirect, relatively short duration and confined to a particular sort of item, meaning that they won't go on forever. We to talk about a particular item. And so we're gonna do that at an ad hoc, but it's gonna end at a certain time and it's gonna be relegated to that specific topic. And of course is made up of less than a quorum of the body. Yeah. Actually,

one of the things just recently through Shirley, County Council's office is that ad hocs actually can only be made up of two members. After that, it needs to be a standing committee. They can invite people to an ad hoc, to, attend, but the members can only be two. After that, it's for Kite to actually be a standing committee. That is thinking through Dave. Oh, yeah.

Sorry. So can't be two board of supervisors and two planning commissioners. Think more than two members. Two members at all. Right. Okay. Right. Yeah. I was a governor. Oh, wow. Yeah. Before my time, but yeah. Interesting. Okay. And so the Brown Act does apply to newly elected officials.

As soon as you're elected, the act applies to you. It doesn't pend your becoming part of the body necessarily formally. The Brown Brown Act has as we talked to sort of mentioned before, there are certain exempt entities. It's an ad hoc. Ad hocs are exempt and they're an advisory committee of a governing body comprised of less than a quorum of members of the body.

And they could have meetings with staff comprised of less than a quorum of planning commissioners. So what is a meeting? Again, make these very broad so that they're trying to scope in a lot of things. So quote unquote meeting is any gathering of a majority of the governing members of a covered body to hear, discuss, deliberate or take action on matters within the covered bodies jurisdiction. So this is very broad and can include meeting up in public.

You run into each other at the coffee shop. If three of you happen to show up at the same time at the same coffee shop, you cannot discuss things within the purview of the planning commission. You cannot hear them, discuss or deliberate. It's not just limited to actions. It includes just even just talking about stuff within the jurisdiction of the body.

So what about non meetings? So there are certain things that are not meetings under the Brown Act and those include things, they're actually specific things. And one of them is a social function party or ceremony. So if there's a funeral, something to that effect and you guys all wanted to attend, you could do that. The idea is just that at any of these things you won't again discuss, deliberate things within the purview of the planning commission.

You can of course go to those sort of things. You wouldn't have to choose who would go. And then it also applies to conferences. The Brown Act wouldn't want you not to continue to learn learn and to have access to conferences. So that's also something you can do. So an open and publicized meeting organized by another organization to address a topic of concern to the community. So if there's sort of a general topic of concern to the community, you could do the same sort of thing, right? You're not restricted from attending those things and you probably should so that you know what's going on in the community. And you guys are obviously active members of the community. And so you shouldn't be restricted from doing those things as well.

So you can also go to an open and notice meeting of another governing body like the board of supervisors. And you can go to an open and notice meeting of a standing committee of the governing body. So the standing committees essentially, operate much the same way as they have to have noticing, they operate very much the same way you guys would. And so you guys could attend those things the same way. So again, provided that a majority of the commissioners do not discuss among themselves business within the subject matter of the planning commission.

Meeting. So these meetings are still subject to the Brown Act. They are still subject to the regular Brown Act requirements, transparency, public access, and notice still applies. Of difference is that every vote must be done by roll call, meaning names are read out loud loud and votes are recorded individually. The teleconference location must be listed on the agenda, and it must be available for the public to see, hear, and address the legislative body members.

One key point is a quorum of the members must participate from within the jurisdiction of the body. So for example, if it's a planning commission, at least a quorum needs to be dialing in from locations within the county limits. Related to teleconference meetings, a b two four four nine is a temporary alternative for remote participation. So it gives limited flexibility for remote participation without having to post your address. So if you're appearing from home, you wouldn't need to give your home address and allow people to show up to your home to address their concerns.

However, it can only be used under two specific conditions. So if you have just cause, things like, caregiving needs, illness, disability, or official travel, but you can't use it more than twice per calendar year. Or second would be emergency circumstances, so something urgent or unforeseen like a family emergency that prevents you from attending in in person. So members using this provision must disclose the region reason at the beginning of the meeting, just a general description. You don't need to give personal details.

And an important note is that this alternative option expires 01/01/2026 unless it's extended by legislation. So moving on to something that's prohibited under the Brown Act is serial meetings. So they are a common and often accidental Brown Act violation. So a serial meeting happens when a majority of members, so in this case, three or more, engage in a series of communications resulting in a collective commitment or discussion on an issue within your jurisdiction. So even if no formal meeting takes place, it's just if a majority of you deliberate outside of a public meeting.

That's a problem. It's not just about avoiding legal violations. It's also about maintaining public trust. People need to know decisions are made in the open, not behind the scenes. Like Sean explained in the beginning, that's the intent behind the Brown Act and why it was brought forward. So talking more about serial meetings and kinda making more sense of them. So there's here's some examples of serial meetings. So there's the daisy chain, which if member a contacts member b and talks about their impressions on an item, and then member b talks to member c and talks about their impressions and what they have heard and what they're agreeing on. Until a quorum is reached, that's the type of serial meeting, and it may amount to a violation of the Brown Act. There's also the hub and spoke.

So if a staff person or a developer or community member acts, as a go between sharing information and positions between a majority of the members, it creates kind of a virtually meeting. So it includes electronic communication as well. So if there's three of you replying all on a chain and you're responding and deliberating together electronically, that's still the meeting. So the bottom line is if you're deliberating with the majority of the members, it needs to be in a public meeting. Even if you're doing it indirectly, it can trigger trigger a Brown Act violation.

Okay. So more on electronic communication. So electronic communication is convenient, but it's also risky under the Brown Act. So a b nine twenty two, which went into effect in I'm making sure. Yes.

I'm on the right slide. Sorry.

Has been effective since January 2021. So officials are subject who are subject to the Brown Act can communicate with members of the public on social media, but they should not directly respond or react, meaning that includes emojis or just liking something. That's enough to say, okay, when two people liked it and one person commented, you have a quorum. So you should not directly respond or react to anything posted or shared on social media regarding agency business by another member of the same legislative body. So be careful when you're emailing your fellow commissioners, especially about agenda items or your position on an issue.

It's it's if you're going to try to reach out to everyone, that's why the BCC or stock would say, you know, council members or commissioners or BCC to avoid a Brown Act violation. It is to avoid creating creating that quorum outside of a public meeting. So if you want to share something, you can send it to staff such as the clerk here and another administrator and, have them send it out. It would be a way to Okay. And on to some meeting meeting rules.

So meetings must be within the local jurisdiction unless there are unless they don't, unless there's an exception. So some of those exceptions are would be when it's necessary to comply with state or federal law or court order, to inspect real property that's within your jurisdiction, and it would only be related to that review of that real property, to participate in a multi agency meeting provided the meeting is properly noticed by all the agency and it takes place in at least one of the agency's jurisdictions to meet with federal or state officials when meeting would when a local meeting location would be impractical. It could be to meet at the closest meeting facility for a principal office if there's no meeting facility within the jurisdiction, which isn't applicable here, or to meet at a legal counsel's office to discuss pending litigation when it would reduce fees. So this can't prohibit the public or any protected class like race or national origin from attending. You cannot require a fee.

You can't charge people for them to come into the meetings, and the agendas must describe everything that is you're going to discuss. Notice the date, notice the time, notice the location of meetings. Okay. So types of meetings. So there are regular meetings, special meetings, and emergency meetings, which are not quite as common in planning commission, but still could occur.

Regular meetings are the standard recurring meetings that are scheduled. They're formally established usually through a resolution. And to comply with the Brown Act, regular meetings have to have their agendas posted seventy two hours in advance in a location accessible to the public for twenty four hours a day. So it can't be, yeah, we put it inside the lobby that's available during business hours. It needs to be outside somewhere that the public can see it for twenty four hours of the day for those seventy two hours in advance.

Special meetings are used when you need to meet outside of normal schedule to discuss a specific topic. It can be called by either majority of the body or the chair and require at least twenty four hours instead of the seventy two, and they must stick strictly to the items noticed on the agenda. You can't just surprise to add or decide to add something unless, it's an urgency item which we'll talk about separately. So the meetings must stick strictly to the items on the agenda and it requires that special meetings provide an opportunity for members to address members of the public to address items on the special meeting. But unlike regular meetings, doesn't require a general public comment on things not on the agenda, which is a distinction between the two.

Then lastly, there are emergency meetings, which I mentioned are less common, but they are only allowed in more extreme situations like a crippling disaster or public health threats or a work stoppage. So you must give at least an hour notice if it's feasible, and you must justify bypassing usual notice requirements. Okay. When it comes to agenda language, the content is just as important as the timing it's posted. The Brown Act requires that each agenda item has a brief general description and it it that includes closed session items.

It's not just a formality. It's about transparency so they know what's gonna be discussed. They can decide the members of the public can decide whether or not they want to attend and participate in those items. It doesn't require lengthy narratives. In fact, the past, there used to be a section that said it was limited to 20 words, but that's no longer there.

But again, it's brevity or the length isn't the crux of it. It's whether or not it the public is able to understand what is going to be discussed, and they get notice on that. Nonagendized items. So you can only talk about items on the agenda, but you can respond to comments or questions. So for example, directing staff to follow-up or referring to staff or even directing to place something on a future agenda.

You can ask questions for clarification or just, like, council reports or updates are also not required to have those specific agenda as details. And as I mentioned, be discussed or urgency items. So if once the agenda is already posted, you generally can't add new items for discussion unless you can. So to add an urgency item to an agenda, you need two thirds of counsel to support you. And if you have fewer than two if fewer than two thirds are present, then it must be a unanimous vote of people who are present.

So three specific findings must be made in open session. There's an immediate need to take action, not just a conclusion. You need to actually give a factual explanation of what the urgency is. For example, if there's a a newly discovered safety issue or a time sensitive sensitive funding opportunity. Second would be the need for the action arose after the agenda was posted.

You couldn't have put it before. It wasn't just inconvenient to put it before it was posted, and you found out after. And third, that the agenda was posted on whatever date showing that the time frame lines up for what you're saying is urgent. This helps balance between ensuring transparency and and preventing surprises while still allowing flexibility to respond to time sensitive issues. For public participation, so the Brown Act protects the public's right to meaningfully participate in local government.

They cannot be required to give their name or sign in in order to attend. They have the right to record the meeting as long as they're not being disruptive. Like, if there's a silent link camera, there's no reason to make them shut that down. But if it's a camera that, for some reason, requires really loud audible beeping that's distracting, that that would be a distinction.

They are also allowed to comment

and criticize government policies and actions. So even if it's uncomfortable to receive the feedback, it's part of maintaining open government. So when it comes to public comment, two rules apply. First, the public must be allowed to speak on each agenda item either before or during its discussion. And second, they must be also given be given time to speak on any issue within the body's jurisdiction even if it's not on that day's agenda, usually during a public comment period.

And, again, that's the distinction between special meetings where it's not required. So now public comment specifically. So when it comes to public comment, the Brown Act allows you to adopt fair and reasonable rules. So imposing limits on the time and manner of the public comment. For example, a two or three minute time limit per speaker is common.

What's not allowed is regulating the content of what's what people are allowed to say. So even if it's critical, even if it's uncomfortable, you're not allowed to keep them from saying it. If someone uses a translator, they get twice the amount of time unless there's a simultaneous translation feature available. In rare cases of actual disruption, then the chair has authority to clear the room and continue the meeting, but still allowing members of the press to be present. It's important to remember public comments, not a debate.

So commissioners should listen and not engage in back and forth responses during public comment. Another note, and I've already mentioned it, but for public for special meetings, there's no requirement for generalized public comment. So SB, speaking of kicking people out, SB 1,100 created a clear legal process for handling when things are truly disruptive, during public meetings. So before anyone could be removed, you need to give a warning that their behavior is disruptive and a failure failure to stop may lead to removal. If they don't stop, then they can be removed, but only for conduct that actually disrupts the meeting.

So the law defines the disruptive behavior broadly, including refusal to follow meeting rules, making threats, or engaging in conduct that makes it infeasible for the meeting to proceed. The bill includes a definition of true threat of force, meaning it's not just rude or loud behavior, but there's a reasonable person would see it as a a real threat of harm. This helps balance the public's right to participate with the body's need to conduct business in an orderly way. Okay. Closed session.

So briefly, I'll cover closed session. These are the exceptions to the open meeting requirement. So there are the law is very strict about when this can happen and it's very narrowly outlined in statute. So there for planning commission, it usually would be in times of potential litigation, where in instances where public discussion could harm the agency's legal position or, like, real property negotiations. Again, where if we're disclosing the price or the terms that we're wanting to negotiate with, would impact our ability to negotiate.

So only those who are legally necessary to for the discussion may participate. So members of the body, legal counsel, sometimes consultants or negotiators, but no one else. And also, and possibly most importantly, anything happening in closed session is confidential. Confidentiality is mandatory. Anything discussed in closed session must stay confidential unless the body formally votes to disclose it. So even casual conversations with colleagues, staff, or friends outside of the meeting, outside of the closed session are not allowed. The idea is to protect the agency's position. So whether that's in a lawsuit or in a high stakes negotiation.

I'm sure Rebecca? Yes. I I note that it's 07:00, and I also note that the machine is gonna need to be rebooted at some point real soon now. So I'm thinking this might be a a good opportunity to take a brief recess. Sounds good. Okay. Let's let's recess for ten minutes. Will that be enough time to reboot the machine? If not, we'll switch it over

to something else. Yes. Ten minutes.

Okay. We're on recess for ten minutes. Thank you. We're ready? We're good?

No? Okay.

Okay.

It is 07:13, and I call this special meeting of the San Benito County Planning Commission back to order. And please proceed with the Brown Act training. Thank you very much.

Absolutely. Okay. So we were just talking about closed session. Confidentiality is mandatory. If it's in closed session, don't talk about it outside of closed session unless there's a vote by the people in the group to release that information. Moving on to violations. So when the Brown Act is violated, the consequences can be serious. So both for the legislative body and the individual council members involved. So a member of the public, must may submit a request to cure or correct, giving the public body a chance to acknowledge a violation and fix it. So generally, if they come to you and say, hey.

We you're doing this wrong. And you say, okay. If if you recognize that that was done in error, you would go back and correctly notice it, agendize it, and correct the action that way to remedy the violation. And beyond that, there are several types of enforcement. So there can be criminal charges if a member intentionally violates the act.

So knowing their actions are unlawful. It's a misdemeanor under the government civil action may be brought by a private party party or the district attorney to stop or prevent ongoing violations. And if a lawsuit is successful, they the city or entity or agent or county may be ordered to pay costs and attorney's fees, which may be significant.

So I I have a question. Yes. How many people have been successfully convicted of violating the Brown Act?

I do not know. Sean, do you have an idea of a number? I've never heard of one.

Don't be the first. Good point. Good Okay.

So some, quote, unquote, new, but just general updates of how the Brown Act has sort of evolved over time. So in 2014, SB seven fifty one came along. So before my time, but the number it used to be the number of people voting. Now it's how each member voted. So it requires meeting minutes reflect how each member voted on the agenda item for approvals, denials, and abstentions.

So for any vote that's not unanimous, the public must be able to see who voted for or against the motion. Another one is the Castaic Lake Water Agency, which was a 2015 case. So clerical errors are not Brown Act violations if if there's that intent to substantially comply. So if you miss number of quote section that you meant to properly put on there and it's a clerical error, that's not something that they're gonna say, yes, this is an absolute violation. The courts recognize where it's a clerical error and wasn't an intentional omission or or error.

Okay. Then another is attorney general opinions have covered posting on websites. So it's required, but if there are technical issues that didn't allow you to post, they're not gonna say that the entire thing was an error when it was a technical issue. They recognize that. Government code 54960.2, that's similar to what we were talking about for curing a Brown Act violation.

So once they send that letter to that request to cure letter, you have thirty days to respond to them, that section outlines that procedure for how to remedy those. The San Diegans for open government versus the Diegans for open government versus the city of Oceanside. So this case focused on land use approvals approvals by by a a city city that includes subsidies, and they didn't notice that they were including those subsidies. And it just really makes clear that you are required to provide public notice if you are going to be subsidizing any projects. So if an action involves a subsidy, the agency is also required to prepare a special report describing it and conduct a public hearing with proper notice for that hearing.

Okay. Moving along to ethics for public officials. We're gonna walk through a few different pitfalls. We're gonna let Sean start us off.

Would it help to

pause

so

that we can the slides up on this? Cool.

So ethics law for public officials. Pitfall number one, and it's a major one, personal financial game. So ethics pitfall number one, do not commit a crime. Accepting special favors or money for official actions is indeed a crime. These can be classified under bribery, extortion, or selling of the public office.

Do not take money to make decisions. That is patently illegal. And then, so avoid conflicts of interest. A planning commissioner has a financial conflict of interest with regard to a particular decision of the planning commission if it is reasonably foreseeable that the decision will have a material financial effect distinguishable from its effect on the public generally, on the planning commissioner, or their immediate family, as

well as certain business interests, real property, or other monetary income interests. Sean? Yes. So that basically means that if your decision affects everybody else, all the neighbors regarding a particular project that it's not really a conflict of interest because it doesn't affect just you, is that?

Correct, yeah. We're gonna go into that exception in a couple of slides, but yeah, essentially you guys would be conflicted out of everything because you are a citizen and a resident of the county. And so the decisions you're making here will also affect your property and it will potentially affect the financial position of that property. The question is whether it's so closely related to that, that it conflicts you out. So conflicts public official conflicts.

So public official is broadly defined and includes every member, officer, employee, or consultant of a state or local agency. So you are public officials. So the FPPC puts out guidance on these things and they are sort of the body that you would go to to reach or to get an official determination as to whether you have a financial or any other sort of conflict of interest. Along those lines, county council can give you guidance as we are now around conflicts of interests, but the financial conflict of is actually a personal conflict of interest. The body itself does not have the conflict.

It's you as an individual that has the conflict. In that sense, along the same lines, county council represents the body. It does not represent you as individuals. So if you want protection for a conflict of interests, sort of legal protection, you need to go to the FPPC to do that. Again, county council and myself, right, could give you guidance.

But if you want something to protect you, something formal, then you need to go to the FPPC for that. And that takes time. So here's sort of their rubric of, hey, I have a potential conflict of interest. What should I what were the sort of the steps I should ask myself? So a public official with a financial interest has a conflict if the answers to all of the following questions is yes.

So is the financial interest reasonably foreseeable? Is it material? So reasonably foreseeable is really broad, right? So it sorta scopes that in a little bit more with is it material? And is the effect as commissioner Gibson was mentioning, is the effect is the effect on the official different than on the public generally?

If after applying the three steps, the public official determines that they have a conflict of interest, he or she may not make participate in making or in any way attempt to use his or her official position to influence the governmental decision unless some exception of less. So here are sort of categories of things you might not think about unless they're specifically mentioned. So financial interests include decisions that affect business entity with that you have that interest you have in a business entity with $2,000 or more. A decision affects real property that you have with constitutes $2,000 or more which is really low. Decision affects a business entity that you're on the board of, right?

So you're on the board of some business entity and making decision a as to some application they put forth. A gift of $500 or more or within twelve months of a decision that you made or of course a direct interest in a business which owns the property. So here's a sort of a more of a breakdown with respect to what is reasonably foreseeable. So is it a realistic possibility that the that the decision will actually affect the official's financial interest or is it too remote or theoretical? Foreseeability is, of course, presumed if the real property at issue is explicitly owned by the planning commissioner.

If the real property is not owned by the planning commissioner, the question is whether there is a realistic probability of a financial interest. And then so here's talking about materiality. There are many rules and many exceptions. So numerous, we can't discuss them all here at this meeting. But at a big picture level, remember, in most cases, if the financial interest is directly or explicitly involved decision, the materiality standard is met.

This is because an interest that is directly or explicitly involved in a governmental decision presents a more obvious conflict. On the other hand, if the financial interest is not directly or explicitly involved, the materiality standard is generally based on a reasonable person standard. So here is your public generally exception. So there is no conflict if the effect on the official is indistinguishable from the effect on the public generally. And the decision affects a significant segment of the jurisdiction.

This is generally defined. These are sort of guidelines. They're not specific or strict rules in that sense, but they should give you some guidance as to what is a significant segment. So it's generally defined as at least 25% of all businesses or nonprofit entities in the jurisdiction, all real property, commercial or residential in the jurisdiction or all individuals in the jurisdiction. So let's say you that you indeed have a conflict.

So you need to disclose that conflict at the earliest opportunity in the meeting, definitely before the item is heard and then you need to get out of the room. You should not sit in the room. You should not remain at any sort of visible. So I you could show your consternation at the decisions, evidence some sort of being disgruntled with what's going on, that sort of thing. So you wanna make it so that there's no absolutely no possibility of a conflict.

So you leave the room. There are exceptions to this, of course, as many areas of the law have. So if you're legally required to participate or if it's necessary that you participate. So for instance, if you're the only person that could speak to this item, right, then you could speak to it, that sort of thing. Or there's some sort of legal requirement that you participate, then you can do. Sean? Yes.

Does that also include needing a quorum?

I'm not sure I understand. If you need if

you only have two planning commissioners or if you have three and you have to recuse yourself, then you lose a quorum. Would that be legally required participation as well?

It can. Yeah. It can. So next is contracts without conflict. Next, I'm gonna pass it

back over to Sean to wrap this up. But I know this is really riveting stuff, and this is keeping everyone super excited. I don't have enough questions at the end, and I'm not sure if we're gonna have time for how many hypotheticals, but I did bring candies. So we're just gonna pass this around to help us stay awake. Do you mind passing? We're gonna pretend we got all a bunch of questions correct. Okay? Okay. So conflict with or contract without conflict. So pitfall number two comes out of government code ten ninety.

So it says, you shall not be financially interested in any contract made in your official capacity capacity or or by by any any body or board which you are a member. Again, government code section ten ninety. So you there are no workarounds to this, requirement. So unlike other conflicts where you can recuse yourself, section ten ninety does not allow disqualification as a solution. If you're financially interested in a contract that and, again, you're sitting on the body that's making this contract with, you cannot negotiate it.

You cannot vote on it, and you cannot even plan, discuss, or solicit it. It's not allowed. It's prohibited. When it comes to evaluating this, FPBC has a six step analysis. So to help clarify how ten ninety works and applies. So it walks through, are you a public official? You are. Is the contract involved? Are you involved in making or participating in that contract? Do you have a financial interest in that contract?

And again, that could be positive or negative. Are there any exceptions, and does the rule of necessity apply? So we'll go through each of these briefly so you can spot red flags early if you have an issue that you think could fall under section ten ninety. Okay. So public official, that includes the legislative body, certain employees, and consultants who act like employees.

So for example, those with advisory roles or the ability to influence decisions. So even if someone is a contractor or adviser, they may still fall under ten ninety if they help shape that agency's decisions. Making. So whether you're involved in making that contract, that is outlined to include negotiations, discussions, reasoning, planning, and even just the give and take that goes before the decision is made. All of that is included in what would be prohibited under ten ninety.

So step again, step one is straightforward. Are you a public official? So next, when it comes to step three, what does it mean to make or participate in making a contract? We also covered. And step four, so asks whether you have financial interest in the contract. If yes, you need to stop there. But step five asks whether you fall under a remote interest or a non interest exception. So a narrow escape hatch if you go in in narrow circumstances or certain cases. So if you own less than 3% of a company and it's less than 5% of your income, then that may qualify. So again, really narrow circumstances.

Or if you receive public services like everyone else, say water or trash services at the same rate, then it's not considered a disqualifying interest. So if you qualify under one of those, you public you would still publicly disclose it though even if you fell under one of the narrow exceptions. So step six is the rule of necessity. So in general, this is also very narrow, but applies in exceptional cases. It allows an agency to proceed if there's truly no other way to, to obtain an as absent essential service or product.

So classic example is a commissioner owns the only plumbing company within 500 miles, so there's no other option that's feasible. And there's an emergency that you need to get that fixed now, and there's no way that you can wait for someone to come travel over the 500 miles to make this work, that would be it it there's a necessity for us to move forward with this contract. Exception. So or a public official is the only person legally authorized to act. So, like, issuing permits and no one else can step in to issue that permit.

So this rule is a last resort and requires very strong justification if you're going to use it. So as far as consequences, it's criminal. So the consequences of violating section ten ninety are extremely serious. So the contract isn't just voidable, it's automatically automatically void. Void. It It has no legal effects. And, yes, criminal penalties apply, so it could be up to felony charges depending on the contract. So this is why section 90 is considered a a bright line rule. When in doubt, do not engage and get legal advice like Sean mentioned. Reach out to the FPPC and get specific advice for your issue before going into any sort of contracting.

Moving on to pitfall number three, it's failing to be transparent. So transparency is where accountability and the public come into play. So as a public official, commissioners must ensure they're fully disclosing their activities and complying with open government laws. So including disclosing all your financial interests, so like filling out your form 700 every year and and disclosing anything you have or your statement of economic interest. So disclosing charitable fundraising activities, especially if they involve or they benefit from your public role, following the brown act, which we covered earlier, and ensuring easy access to public records under the Public Record Act.

So the bottom line is your role comes with a duty to operate transparently so the public has confidence in this in the decisions being made. A key part of transparency is compliance with the Brown Act. So all agency business must be done in open notice meetings, meaning you posted agendas, clear topics, and public access to attend and to participate as we previously discussed. The public has a right to be involved whether they're offering input, asking questions, or just observing. So for any official action, a quorum of the legislative body must be present.

So without a quorum, the legislative body can't meet or make decisions. As we discussed before, serial meetings are also not allowed. So if a majority of members are deliberating outside of a notice meeting in person, by phone, by email, that's a Brown Act violation. When it comes to its interaction with the public records act so public record is any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics, meaning your emails, your emails about your work, whether they're on your personal device or on a county device, either if they're related to your work for the county on behalf of the county, that is a public record. So transparency includes ensuring public access to documents and records.

So the CPRA or California Public Records Act, the public public has a right to inspect any record related to the conduct of public business regardless of format. So as stated in the government code section, it doesn't matter whether it's on a government server or a personal device. It's about if it's about public business, it's disclosable. So be mindful of where and how you communicate, especially if you use personal phones or emails. So when in doubt, you can ask staff or legal counsel before deleting or withholding a record or if there's a request related to them.

It's also just good practice to take a phone call, meet with people in person. You don't have records that you have to go through and find or worry about disclosing or not having disclosed if you just don't need them. And now Sean is is gonna talk a bit about Sorry.

Going going back to pitfall three. Yes. Does that include our disclosures of having meetings with people outside of public hearings?

Yes. And I feel like that plays highly into here of being transparent and also into the next of fair hearings of also disclosing if there's anything that factors into those relations, but absolutely. Thank you. Thank you.

Okay, pitfall number four, failing to keep the process fair. So next we're gonna talk about common law bias and due process. So outside of that, those sort of financial in addition to the financial conflicts prohibited by statute, there are also common law bias and due process considerations. So this is sort of harkening back to the beginning of the presentation statutory law, there's the constitution legislative sort of things, but then there's also common law bias which common law which is court made law. And among that is bias.

So the planning commission acts as a quasi judicial body when considering certain matters, for example, appeals or CUPs and commissioners must be fair and impartial in both appearance and action. Even the appearance of bias can be legally problematic. So bias could be actual or perceived. For example, statements suggesting prejudgment, personal hostility, or favoritism. So the classic court example of bias is where somebody put forth an article prior to hearing the item.

So it was pretty extreme, right? They had published an article in the local newspaper, basically putting forth their position. And when things come before this body, you need to be objective, right? You need to be fair and balanced like a judge would be, right? You can't have predetermined the matter before it came before you.

We all have certain biases, right? We wanna protect the environment. We want to have safe streets. Those are fine biases to have, but you can't be so predisposed to a certain outcome that you're not willing to consider the matter before you. So as I sort of speaking to you, having general opinions or philosophies, pro development or environmentally focused is not disqualified unless the official shows unwillingness to consider evidence presented at the hearing.

So bias may be inferred from public statements indicating a fixed opinion before the hearing, a close personal relationship with parties involved, or conduct that suggests prejudgment or hostility. So the the sort of the standard is recusal may be required if a reasonable person would doubt the commissioner's ability to be impartial. And it, of course, applies even in the absence of a financial interest.

Can you go back to that slide? I'm curious. Who is the judge of the recusal may be required? Because we've had packed

said in that moment, it's you as the individual commissioner, right? Making that judgment. A reasonable person think that I believe that I was too biased to make a judgment, a fair and impartial decision of the item. Constitutional due process. So there's common law bias and then in addition to that, there's also due process procedures.

And so the constitution requires that due process applies whenever government action may result in the deprivation of life, liberty, or property. Right? There are certain categories of things in America where if the government wants to act on those things, then they need to have due process, meaning notice and a hearing. The extent of that notice and hearing is basically countenance against the right involved. The more important the right, the more due process you get.

The less important the right, the less due process you get. So due process requires notice. So advanced notice of the proposed actions sufficient to allow meaningful participation and opportunity to be heard, right, so hearing, and then you get to have a decision by a fair and impartial body. The decision must be supported by substantial evidence in the record and violations of due process may result in the action being overturned by a court. So, keeping the process fair, there are certain specific rules.

So accepting gifts of $50 or more without disclosing that. Accepting free transportation. Use of public resources at all unless there is a public purpose. So the example there that's used to sort of when it was printing, right? Printing can be costly.

And so if you show up to the administrative building and want something printed for your own personal sort of use, right? Improper, right? Of course, if it has something to do with the business of the planning commission would be proper. And then you can't accept speaking fees. So despite the fact that you guys may be being begged to have speaking engagements, you must tell them you are in fact prohibited from taking any sort of fee. You could apparently just make this, you could participate, you cannot be paid. I have a

question Sean about $50 What year was that number arrived at? And is it tied to inflation? I mean, 50 is less. It might be

the 1953 when this thing first was enacted, totally sure. But it's obviously not tied to CPI. So it's remained A pack of gum. Right. It is very, very low. So

just curious. Not that I've accepted anything.

Yeah. So you can accept very, very nominal gifts, but if it's not very, very nominal, then you're in trouble. Yeah, yeah, prices have gone up for sure, right? So in addition to that, you cannot receive receive loans from those within the agency, right? The county could not give you a loan personally.

You cannot participate in unfair or non competitive contracting. You can't participate with bias in quasi, that's sort of what we spoke about before in quasi judicial proceedings. You cannot conduct hearings without due process or participate in decisions which benefit your sort of close family members. You can also, as we've actually dealt with here hold two incompatible offices. So if the offices share jurisdiction, then I would give you the guidance to not join the new body.

By joining the new body, you automatically disqualify yourself from the old body. You forfeit that, right? You're basically saying, I am choosing to go with this new body and so political body that is, and so you can't participate in the old one.

That's interesting timing of that subject. I know.

I was yeah. Wouldn't be like that. You also cannot participate in land use or permit decisions affecting campaign donors unless sitting on a elected body. Solicit contributions in excess of $250 from permit applicants while the application is pending. Solicit employee support for your campaign.

I guess you guys don't campaign per se, but maybe petitioning for to be on the planning commission. And, of course, you can't retaliate against whistleblowers. So people making complaints about the, you know, county or what have you, do not retaliate against them. So I think this is just a summary of sort of the things we mentioned previously. Right?

Accepting $50 gifts, free transportation, public public using public resources without a public purpose, accepting honorea hats and such, teachers maybe speak or speaking fees, receiving loans from within the agency. And then as harken to earlier, the FPPC is the body you should go to if you really wanna be certain about participating in something in which you believe you may have a conflict of interest. So they do have 866 number and I've never called it myself but I've heard that they very, they will answer the phone. You don't leave a message, there will be somebody on the other line, they're waiting to answer your question. So I wouldn't hesitate to use that line if you feel a person to do so.

Sean? Yes. But will they give you a written response so that you have something to stand stand on if if things hit the fan?

That's a good question. Yeah. I don't think Yeah. Venturing.

You can get an email response, which is an informal response, that's one option. Like you said, even calling just

to get guidance on, okay. No. I know

I'm not even gonna engage in it. But if you're like, I'm considering going forward and want something that I'm more able to lend, then you are able to request a formal advice letter, but that does take longer. And there but there is a process for that as well.

Okay. And that's as individuals or as a group, we go to the AG if we have a question because we've gone to the AG before. Yeah.

I mean, I'm you're talking about the FDBC.

Yeah. If you're looking for protection as an individual, then you will. But as a body, yeah, like think about offices, then you would do that as a body. I got a question. Is there a

fee for that FPP? No. Fee that's paid with your tax dollars. Although with the AG, I do remember that when we had the question about the incompatible offices with one of our commissioners earlier, it took months before we eventually got that. And by the by the time that we got a a formal response, the question was moot.

Yeah. And I would generally, if there is, I would on the side of caution with these things, right? If you're going to the extent of seeking a formal and written memo that's gonna take months, you might just withdraw yourself from that item. We

will add something Dave shared is it's typically very young new attorneys who are very motivated and very eager to interpret these things very it may not be a necessarily lower reasonable person standard, but kind of a heightened reading on these things of when the decisions come out, but not only for your guidance, but also for disciplinary and review of the actions of being very the air on the side of transparency and and not having conflicts. Yeah. And

and just to reinforce something that that was said earlier regarding, you know, appearance of bias, we had a situation a few months ago where somebody stated their unequivocal support for a project way early on when the project was initially presented before we had even seen the application. There was no EIR. It hadn't gone through sequel or anything. And by the time the project had come to us, it never actually did come to us in full form, but I think by the time it had come to us, that probably would have resulted in that person probably most likely being having to recuse themselves from consideration. It never did get to that point, but I just wanna caution people that, you know, if if you want to put yourself in a situation where you might end up needing to recuse yourself, that's a good way to do it.

I I will speak to that a little bit. So, yes, here on the side of caution. Yeah. One thing is the difference between recusal when you have a financial interest and just generally abstaining. So if you believe there's that appearance of bias and it's more of a concern, you can abstain from the vote and choose to. And then there's the recusal when it's required of you. So there's a financial interest or there's more than that where you're leaving the room and you're not wanting to influence it at all. But either way, erring on the side of not having that conflict, but if it's early enough early on enough where it's just general support of a project or the idea of it may not be enough to disqualify, but I

would say it's fact specific on This was a full throated, I support this completely 100%, no doubt about it.

I if if you don't mind, though, you you had said that that maybe I misheard. I I thought you had said earlier that that you could at at the very beginning if it was just a thought and idea that you could wholeheartedly say that's a good idea. And everybody else and then two years later that presents itself,

what would be the scenario then? Sure. Yeah. It's a reasonable person's standard. So it's sort of, if it's early on enough and the application hasn't even been made that sort of thing or maybe it's not certain as to whether it's gonna be made or not. I think you have more room. I think I will mention though that importantly here is that you want to avoid the appearance of a conflict. Probably what you're doing is upholding the reputation of his body. You want the public to believe that the decisions that you're making are fair and un unbiased. And so if you want that to be the case, then you need to recuse yourself from things where people might say, they're probably being way too, they've already decided on this thing.

And it just like if you took your case to a court and a judge had made a prior statement saying I would never rule in this guy's favor, right? That's obviously improper. You wouldn't wanna be, it would put a huge reputational harm on the courts themselves. Right? It makes the public not respect that as a respect those bodies. But on the other hand, we also don't lose our

First Amendment rights. There's a balance that has to be taken, and and nobody can do that but ourselves. Right. Because I know I I support all businesses and I might even say I support a particular business, but then by the time they get to us, there may be facts on the application or the EIR that you're like, well, no, thank you. No.

I think that's totally yeah.

You don't lose your right to to

the First Amendment. And as commissioner was saying is you guys are members of the public too and you do have certain position. You want certain things out of your community. And you guys are active members of the community and without you guys on commission, then there wouldn't be a commission. So we need people who are invested in the community and do have potential positions on things. That said, you need to be able to sit as a judge would and make fair and impartial decisions.

I can remember a couple of supervisors and writing things that they were dead set against certain things. And it was like, I was waiting for the item to come to him, but it didn't on appeal. And I was like, cool, what are they gonna do? But it didn't happen.

Right, and it strengthens your position to not make those statements prior. Even if you may have some personal thoughts on it, if you keep those to yourselves, then that's a different scenario as if you're trying to massage the situation or affect the public or affect other planning commissioners. And so I think it strengthens your position to sort of keep that to yourself, keep those close to the vest and then make a decision when the

time comes. I'll make their case for them

if you're worried that it's gonna come up. So I have a question, Sean. Yeah. If, say, I'm an elected official and or I'm not. I'm going to trying to be the elected official.

And someone sees and hears money being exchanged to get them on that specific thing. Right. And, you know, there's is not any recourse because that person wasn't an elected official at that time. What if it has happened again or you've heard it's happened again to get things pushed

through. How

is that dealt with?

I mean, think that risks entering into illegal areas. You can't be taking bribes. You shouldn't be being extorted. You shouldn't be doing the quick, as they say the quick pro quo this for that. I'm gonna give you a thousand dollars.

And like for campaign and my people's It's a little more

gray area when it has to do with the campaign. Yeah, it may get a little, but it can't this be for that. Okay.

So the DA and or the FPPC?

Right.

I mean both would be good. Right. Both. Yeah. Because maybe one won't act for whatever reason. So try them both.

It can't hurt. Sure. I wouldn't

I wouldn't not do it. Yeah. I would do both. Do we have a

hypothetical? Do. Now we're gonna have a few questions. Okay. So last week's commission meeting, during public comment period, an angry citizen yelled at the chair, you scumbag. You don't care about other people. You're unfit to represent this community. We deserve better. You're a careless blippity blipper. And so although the chair demanded that the citizens stop her insults, she continued. At the chair's request, the clerk shut off the microphone before the citizens allotted time to comment was over. The chair directed the next speaker to begin speaking. Are there any concerns with this? Not from me. Not from the chair.

As long as they don't exceed their time.

What about their civil rights? You've you've you've given everybody else a right to speak. Yes. They're speaking. You may not like what they have to say, but they're still gonna get their three minutes. Well, you just violated their civil rights Absolutely. Absolutely. Absolutely.

The allotted time, that's the end of the story. Up They they don't get any extra time just because they feel like letting themselves speak, which has happened. Yep.

Up through their time. Exactly. So legislative body cannot prohibit public criticism or prevent speech based on content unless the speech or the behavior accompanying it actually disrupts the meeting. Yep. So it must render orderly conduct unfeasible.

Mhmm.

So the first amendment, like you were saying, protects speech unless the speech speech itself constitutes a threat of physical harm. So insulting remarks must be allowed. So some words of wisdom, it's better to be annoyed for three full minutes. It's better to be annoyed for three full minutes than to endure the expense and uncertainty of first amendment litigation.

Yeah. The

chair could dissuade them from doing so, but generally, yeah, it's acceptable. Same as somebody can have a sign with offensive language on it, The first amendment allows us, part of the first amendment is to be offensive, right? To say I absolutely object to what you're doing and this is how I feel about it, right? Just tell truth to power to say and then so if you're citizen, right, you still have ownership over your government and that I would. Right.

It's not. Yeah. Even though there may be children or, you know, in the in the in that forum. You know I mean? Alright. So I for the hypothetical number two. The planning commission held a public hearing to consider the approval of a development permit for a very controversial housing project. During commissioner comments, following the close of the public hearing, the chair said she just checked her Facebook page and saw that 15 people, including two of the five commissioners, shared her concerns with the proposed project. She also said that one person who has a degree in geology commented on her Facebook page that earthquake fault runs near the project and that the staff failed to disclose this fact. Any problems?

Yeah. That's not public testimony.

Oh, did that go up on the board? Yeah. Oh, my bad. I was trying to see what it was. Jeez.

No answer. Well, Well, if if the commissioners let's see. Two of the five shared concerns. Are they on Facebook? And, like, that's Right. That's a record.

Right. What what else is it though? It's three or four modes.

Yeah, three or more. That's it. A meeting.

It can be as simple as just a like. Right? Or right? It's it's you're you're you're essentially discussing. Right. Yeah. Good job. After the vote?

Including two to five comments you

shared her concerns with the protestors.

Yeah, trick question. So serial meeting issues. Three members share concerns about the project on the chair's Facebook page. Members of legislative bodies should avoid comments on agency matters on social media so as to avoid in inadvertent serial meetings. So there's a due process issue. Significant fact concerning potential earthquake fault disclosed after the public hearing closed, the developer must have an opportunity to respond to new facts. Staff needs to respond as well. Okay. So that's the point about it bringing you guys to me. Multiple parts.

Right. Okay. And social media is a good source of questions and issues that may arise during the public hearing. Staff should consider addressing the questions and issues in a written supplemental staff report or in its presentation to the legislative body. So essentially deal with it later.

Prior to the issues arise and staff saw it, they can have it as part of the presentation or part of the packet of what's included, but just during the meeting after the close of the hearing is not the right time to consider those. So hopefully these help us think through some of these issues and engage with it a little bit more than just going through the slides. But we thank you very much for your time. And that takes us to the close of the We can wait a couple

of seconds. Wanna keep talking. Oh, that's all. That's That's all.

Oh, I I have something I would like to say. Everyone, there is a certificate on your table. Sign that and give it back to the clerk once you're done.

Thank You guys can always email us or call us, feel free to call council and ask questions if you have any questions around this stuff. While I can't give you an FPPC determination, I can give you guidance around this sort of stuff. Don't hesitate. Okay. Separate office but I work with the planning department all the time. And so yeah, again, don't hesitate to contact me or Rebecca. Thanks. That's right.

Okay. Thanks. Thanks very much. I would, at this point, entertain a motion to adjourn. So moved. Second. Is there a second? Okay. All those in favor signify by saying aye. Aye. Any opposed? Hearing none, motion passes five zero. We are adjourned at 08:01PM. Thank you all very much. See you all in two weeks.