Is the Planning Board Following Open Meeting Laws?

The city may look into a series of potential open meeting law violations by the Rancho Bernardo Planning Board in recent months, including barring public comment at meetings and voting on items that may have been improperly added to the agenda.

The possible issues were brought to the attention of the city's Planning Division, which oversees planning groups, by Patch last week after a local man was not allowed to speak on an agenda item at the RB Planning Board's meeting, which an open government watchdog group called a "serious" issue.

During , the Planning Board also added two items to the agenda that may not meet the standards for last-minute additions.

Brian Schoenfisch, the city planner who oversees RB, said he was not aware of the problems and would talk with Planning Board Chair Teri Denlinger about potentially looking into the issues. Community planning boards, though an arm of the city and subject to state and local open meeting laws, are self-governed. The city's Planning Division and City Attorney's Office typically only look into possible violations once a complaint has been submitted by planning group members or the public, Schoenfisch said.

On Wednesday morning, Schoenfisch said he had not yet spoken with Denlinger. During a conversation with Patch on Monday, Schoenfisch said he could not comment on potential issues since he was not present at the meetings.

Many of the issues surrounding the Planning Board in recent months have related to public comment and the agenda. According to the Brown Act, a state law that outlines proper procedures for public meetings, members of the public are allowed to comment on any item on the agenda. City Council policy and the Planning Board's bylaws conform with this act.

On Thursday, meeting regular Harold Johnston was barred from commenting on an agenda item and told by Denlinger that he could be asked to leave if he continued to call out. Johnston, who regularly attends Planning Board meetings and records them, was waving his hand to speak but was ignored and then he called out in protest.

At , the board said that no one would be allowed to comment on a vote for the welcome sign design. 

Boards also are required to post an agenda at least 72 hours before a meeting stipulating the topics to be discussed and whether they will be voted upon or are simply for information. However, voting items can be added to agendas at meetings in emergencies when the pressing need for the vote comes to the board's attention after the agenda is posted. The board also must first vote to establish that an emergency situation exists, and that the need for immediate action came to the group's attention after the agenda had been posted.

But questions have been raised about the urgency of last-minute additions of some voting items to the agenda in recent meetings, including:

• The appointment of Vicki Touchstone, a former board member, on Thursday to fill a vacant seat representing Bernardo Heights was added to the agenda at the beginning of the meeting. Bylaws put a 120-day deadline on filling vacant seats before the seat could be eliminated. At the meeting, board members said they were unclear about whether the 120 days started at the last meeting with the former board in March—making the July meeting the deadline—or in April when the new board was seated and the seat became vacant. Schoenfisch told Patch the countdown begins in April. This would give the board until August to fill the seat.
• A board member objected to a similar last-minute agenda change to fill a vacancy.
• A letter from the Planning Board o from the RB Community Council was added to Thursday's agenda at the meeting. Council President Robin Kaufman had that the group would not meet in July, making it unclear why the board needed to rush a vote on the letter. After the meeting, Denlinger said she wanted a vote on the letter to clarify to residents how the board felt about a council subcommittee's decision to pursue changes to the welcome sign design the board had approved in June. Both groups need to agree on a design for the project to move forward.

In the above situations, the board did not first vote to establish that an emergency situation existed. In the case of the vacancy, the 120-day deadline is part of the group's bylaws, meaning even if July had been the cutoff, the group was aware of this prior to the agenda being posted. 

The board on Thursday also created an adhoc subcommittee to craft new bylaws but said the meetings would not be open. However, City Council policy requires subcommittee meetings to be open with 72-hour notice just like regular meetings. When emailed by Patch about the meeting being open, Denlinger acknowledged the policy requirement, but said the group had not yet set a meeting.

Other issues raised recently include: circulating nonagenda items to the entire board before a meeting, which could violate rules against trying to gather a consensus on board matters outside of meetings; changing the agenda outside of the administrative committee meeting where the agenda is set; not recording reasons for vote abstentions.

Many of the potential violations have been mentioned during meetings by board member Joe Dirks, who was the parliamentarian until that position was eliminated during Thursday's meeting. Denlinger said the board needed to remove the position because it is not an official seat in the bylaws. Even without the title, Dirks is welcome to raise issues about board procedures, Denlinger said, adding that the change was not a personal strike at Dirks.

In discussion over removing the position, one board member said the quibbling over rules had been bogging down the meetings. When asked about several of the potential violations in recent months, Denlinger said she would look into them.

Even seemingly small violations of the Brown Act—and the more "serious" barring of public comment—are important, said Terry Francke, general counsel for Californians Aware, an open government watchdog group.

"It starts with the little things," Francke said, adding that groups that are "sloppy" with the Brown Act may engage in more significant violations such as not providing notice about meetings because no one called them out for previous issues.

Francke said following the rules about adding items to the agenda is, "simply a matter of ensuring that matters are not kept off the agenda to avoid the attention and presence and comments of members of the community.

"The bodies that violate the Brown Act are those that are content, either that they're not being watched or that they're only being watched by those that don't care about the rules," Francke said.