HomeMy WebLinkAbout4/7/2004CITY OF DIAMOND BAR
MINUTES OF THE SPECIAL JOINT MEETING OF THE
PLANNING COMMISSION, TRAFFIC AND TRANSPORTATION COMMISSION
AND
PARKS AND RECREATION COMMISSION
APRIL 7, 2004
CALL TO ORDER: Planning Commission Chairman Dan Nolan, Traffic
and Transportation Commission Chairman Dave Grundy and Parks and
Recreation Commission Chairman Liana Pincher called the Special Joint meeting
to order at 8:20 p.m. in the Diamond Bar Center Grand View Ballroom,
1800 South Grand Avenue, Diamond Bar, CA.
If. COMMISSION ROLL CALL:
PLANNING COMMISSION: Dan Nolan, Chairman; Jack Tanaka, Vice
Chairman; and Commissioners Ruth Low and Joe McManus.
Commissioner Steve Tye was excused.
TRAFFIC AND TRANSPORTATION: Liana Pincher, Chairman; Tony Torng,
Vice Chairman, and Commissioners Jack Shah and Arun Virginkar.
Commissioner Roland Morris was excused.
PARKS AND RECREATION: Dave Grundy, Chairman; Nancy Lyons, Vice
Chairman; and Commissioners Ling -Ling Chang, Benny Liang and Marty Torres.
Also present were: Linda Lowry, City Manager; Michael Jenkins, City Attorney;
James DeStefano, Deputy City Manager; David Liu, Public Works Director; Bob
Rose, Community Services Director; Fred Alamolhoda, Senior Engineer; Sharon
Gomez, Senior Management Analyst; Linda Smith, Development Services
Assistant; Kimberly Molina, Assistant Engineer; Marisa Somenzi, Administrative
Assistant and Stella Marquez, Administrative Assistant.
III. DISCUSSION TOPICS:
CM/Lowry announced that Mayor Zirbes asked her to thank the Commissioners
for attending tonight's meeting recognizing that most Commissioners attend
many meetings on a regular basis and that their time is valuable. Mayor Zirbes
and the Council Members are very appreciative of the Commissioners dedication
to their assignments. She asked the Commissioners to introduce themselves and
provide a brief synopsis of their term of service on their current commissions as
well as service on other commissions in Diamond Bar and other cities.
CA/Jenkins introduced himself and outlined the purpose, goal and structure of
the Special Joint Meeting.
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1. Purpose of each Commission:
CA/Jenkins stated that all Commissioners are appointed. Commissioners
play a unique role in City government for a number of reasons. To a
significant degree, the role of Commissioners is unique because it has two
aspects that are sometimes in conflict. For example, the City Council
appoints Commissioners to provide expertise and to exercise good
judgment in particular areas in which the City is engaged in regulation and
providing services. There is an expectation that Commissioners will
behave in a manner consistent with the overall goals and direction of the
City Council. Sometimes Commissioners may not agree with the overall
goals in a particular area creating an interesting tension in how
Commissioners perform their duties. Commissioners are present to
exercise independent judgment and at the same time understand that the
Council, as the elected body, ultimately sets the goals and determines the
direction of the Commissions. Therefore, it would not be appropriate for
the Commission to go in a direction that is in conflict with the Council. At
the same time, within the general framework of direction, there is room to
exercise discretion and judgment. It is important for Commissioners to
exercise independence as long as they understand it is in the general
framework of the overall goals of the City as exemplified in the City's
General Plan and other organizational documents of the City. It is of value
and importance for City Council to have appointees — citizens, helping
them to govern, to outreach to the community, to be the voice of the
community to provide the City Council with feedback and input about what
the community is thinking and what it wants. At the same time,
Commissioners are City officials, and therefore, have a duty to carry out
the laws and to do what is in the best interest of the City in its entirety.
Sometimes those roles present a conflict. Commissions may be
approached by a large group of residents from a certain neighborhood that
wants something in particular. As a resident and as a neighbor,
Commissioners may feel it is their job to agree with the group. However,
the Commissioners may recognize what the residents are seeking is not
appropriate and it may also be inconsistent with the City's goals, zoning
ordinances, General Plan and laws that specifically prevent such a
request. And, the City may not have sufficient funds in the budget to
comply with the request. In this instance, Commissions are not supposed
to be the liaison and pass along the request, Commissioners should say
that they have a duty as a City official to do the right and correct thing and
to do what is in the best interest of the City.
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CA/Jenkins understood that although it was part of their jobs, it was
difficult for Commissioners to go against a group of angry and frustrated
neighbors and take on the job of educating them that their request was not
the right thing for the City. The Commissioner's job was not just about the
prestige, it was also about making difficult decisions, taking the heat and
sometimes making neighbors angry. In short, it was a fine balance
between the two and if Commissioners had difficulty reconciling conflicting
issues they should talk with staff. He explained that it was especially
important for public officials to "take care" when putting forth utterances
during public meetings.
CA/Jenkins explained that the City Council keeps in touch with
Commissions in a number of ways such as one-on-one communication as
well as joint study sessions. An indirect method of communicating with the
Council is through a Commission action. If the action or recommendation
is appealed to the Council, Council accepts or rejects the action or
recommendation. If the Commission feels that the Council constantly
rejects or reverses its decisions, it would be advisable to speak directly
with the Council, have a joint study session or speak with the appropriate
staff person about the matter. There are a variety of reasons the Council
may take actions different from those recommended by Commissions.
Commissioners should do the best job possible in making their
recommendations and let Council take it from that point and try not to take
the Council's decision as a personal affront.
CA/Jenkins responded to C/McManus that Commissions are like the lower
court and the City Council is like the Supreme Court. It is not the
Commissions job to argue its position in front of the City Council. Once
the Commission makes its decision and forwards its recommendation to
City Council its job is finished. When Council rejects a Commissions
unanimous decision it would behoove the Commission to know the
reason. It is important to understand the Council's decision to determine
whether the Commission erred in its deliberations. In such cases it would
be appropriate to discuss the matter with your Council Member or with
staff who was present during Council's deliberations. If the issue was
extreme or serious issues were raised it would be advisable to ask for a
joint study session.
CA/Jenkins said he works with a large number of staff members
throughout several cities and has gained a good appreciation for how they
work and for their quality of work. Diamond Bar has great staff that does a
good job and has a lot of knowledge. Staff is a resource to Commissions
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COMMISSIONS MEETING
and Commissioners. Staff members in some communities try to influence
their commissions. Staff members know the issues and also know that in
the end, they do not make the final decisions and respect that fact that
Commissions and ultimately Councils make the final decisions.
Sometimes staff does not agree with Commission decisions.
CM/Lowry explained that no matter the recommendation, the majority
Council rules and drives policy.
CA/Jenkins said that if staff brings a recommendation for approval and the
Commission denies the project it may go to the Council- on appeal. In that
instance, staff has an obligation to represent the Commission's decision
and at the same time make a different recommendation. In fact, staff has
a right to make the same recommendation to Council that the Commission
initially rejected. This often presents a difficult dynamic. However, staff
and Commissions have different jobs and play different roles. The best
that all parties can do is to understand their boundaries and individual -
roles and do the best job possible under those conditions.
CA/Jenkins responded to C/McManus that when Commissions take
actions contrary to staff's recommendation and it goes to the Council, staff
has two responsibilities - one to explain the Commission's decision and
the other to continue to make its recommendation even if it is different or
contrary to the Commission's action. At the same time, staff has an
obligation to present the Commission's decision fairly.
CA/Jenkins summarized that each Commission had very subject -matter
jurisdiction and Commissioners should avoid the temptation to deviate
from that subject -matter jurisdiction.
CSD/Rose asked CA/Jenkins to explain where "policy" could be found.
CA/Jenkins responded that the Municipal Code sets forth all of the laws of
the City, the "law of the land" for the City. The General Plan sets forth the
City's long-term planning and land use goals and policies. From time to
time, Resolutions that set forth policies are adopted by the City Council.
Council approved programs are budgeted on the basis of specific
direction. The City also has administrative type regulations and policies
such as the "speed hump" policy adopted by the City Council. There is no
book of all of those administrative regulations.
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DCM/DeStefano explained that administrative type policies and
regulations could also be found in the budget and the Council's Goals and
Objectives. The Council's Goals and Objectives is a dynamic policy that is
subject to change from year to year. However, this document is a basic
guide to the City Manager and her staff as to what the Council expects to
have accomplished during a 12 -month period. The budget outlines
anticipated expenditures for implementation of those policies such as
ongoing park maintenance and programs for new development.
CSD/Rose asked CA/Jenkins how far Commissions could stray from
written policy in making reasonable recommendations to the Council.
CA/Jenkins said his views sometimes conflicted with staff's views. In his
view, if the Commission was straying from the Council's policy staff could
articulate the Council's position. If the Commission understood and
acknowledged Council's position, and still wanted to talk about doing
something contrary to written policy, how far could they stray? Staff's job
was to communicate a certain expertise and the Commission could accept
or reject staff's advice. As an analogy, in his profession laws get changed
because lower courts deviate from what they believe to be the law and
because Supreme Courts change over time laws get changed. If the
Commission really wants to recommend something that is different from
the City's establish policy and staff has articulated what the policy is and
the reasons for it and they recommend to the contrary, he views it as
something that is within the boundaries of the Commission as long as the
body understands what happens beyond their point of recommendation.
CM/Lowry used as an example, that CSD/Rose would do everything within
his power to capture as much of the budget as possible for his projects.
Likewise, other staff members and Commissioners would push for their
projects to be funded. Ultimately, all projects fall under the umbrella of the
City Council that sets the budget for all projects and by necessity, input
from all three Commissions are considered for the overall and ultimate
benefit of the entire City.
CA/Jenkins told C/McManus that if anyone wished to propose an idea for
a project that the possibility could be shared with staff who could then
explore the possibility with the City Council and report back to the
Commission or Commissioner(s).
C/Low asked about Commissioners appearing before the Council to
express their opinions as residents of Diamond Bar and not as
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Commissioners. CA/Jenkins responded to C/Lowe that in his opinion
when individuals are appointed to Commissions there are advantages and
disadvantages. He felt that a disadvantage was the ability to remove
oneself from an issue at a moment's notice and in point of fact, whether
anyone would believe that an individual could remove herself from her
responsibilities as a Commissioner and speak only as a concerned citizen.
Although he routinely sees Commissioners appear before Councils
speaking as residents, he feels that the majority position would best be
expressed on the record in the minutes of the meeting. Sometimes a
Commission feels strongly about being represented and appoints a
representative to voice its views to the Council, a more acceptable
practice in his opinion.
C/Lyons asked if she as a Parks and Recreation Commissioner could
express her opinion as a private citizen about a Planning Commission
project. CA/Jenkins responded that it would be appropriate because in
that case she would not be speaking on something outside the purview of
her Commission.
Chair/Nolan felt it was important for an individual Commissioner to
articulate on the record the reason for his disagreement with a decision so
that Council could read the minutes and understand the reason for the
Commissioner's opposition. CA/Jenkins said he completely agreed with
Chair/Nolan's observation.
Chair/Grundy asked at what point a Commissioner should assume too
much investment when.a resident came before his Commission to express
views about an organization on which the Commissioner serves.
CA/Jenkins said he would address the issue during the Conflict of Interest
presentation.
2. The Brown Act
CA/Jenkins spoke about the laws and rules that govern Commissioners
and legislative bodies in general. First, as earlier mentioned, Diamond
Bar has its Municipal Code. The Municipal Code sets forth all of the
ordinances (laws) of the City of Diamond Bar in the Municipal Code there
are chapters that govern the Commissions. These chapters define the
Commission and its jurisdiction, its purpose, how its members are
appointed and what the Commission and Commissioner's duties are.
Commissioners should read and re -read the document. Each
Commission has a handbook that contains interesting and informative
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material that should be read and studied by Commissioners. The
handbook contains information about conducting meetings and why items
appear on the agenda and the reason for those items. During the next six
months staff will be looking to update the handbooks to make sure they
are current. The handbook is the Commissioner's bible.
CA/Jenkins stated that the Brown Act is the State of California's open
meeting law. It is important to understand the Brown Act because
Commissioners are governed by the Brown Act and must comport
themselves in compliance with the Act. The most important rule of the
Brown Act is very straightforward. He referred Commissioners to Open
and Public 111, an easy resource to the Brown Act. The basic rule of the
Brown Act is that meetings have to be open to the public. When a quorum
of a Commission is gathered to discuss, listen, hear and have anything to
do with the business of its body, the Brown Act says that the Commission
must be in a properly noticed and posted meeting. In general,
Commissions have a regular meeting date and time (once or twice a
month) and agendas must be posted 72 -hours in advance of the meeting.
Staff develops and posts meetings. If there are no posted agenda 72 -
hours in advance of the scheduled meeting, there is no meeting.
Commissions cannot discuss and certainly cannot take action on anything
that is not posted on the agenda subject to a couple of exceptions. The
best Commissions can do is request that an item be placed on a future
agenda. The exceptions are if something has come to the attention of the
City after the posting of the agenda and there is a need for immediate
action, bodies can, by a two-thirds vote, add it to the agenda. Once the
item is added it can be treated like any other adgendized matter of
business. However, the likelihood of that needing to occur should be
extremely remote. The exception to placing a matter on the agenda is, for
instance, a brief response to a public comment, a brief comment during
Commissioner comments or a request to add an item to a future agenda.
CA/Jenkins stated that another important aspect of the Brown Act is what
Commissioners are allowed to do outside of regular meetings. "Serial"
meetings are not allowed. A serial meeting is a meeting during which
three members of a Commission communicate about an item of business
in person, through intermediaries, by facsimile or email or any other
method. He cited examples of a serial meeting.
CA/Jenkins responded to Chair/Grundy that a member who plans to be
absent from a meeting and wants an agenda matter continued in order to
be a part of the discussion and decision can call the staff person to advise
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that he will be out of town and request that the rest of the Commission
grant him the courtesy to continue the item until the next meeting when he
is present. Or, if the Commission is unwilling to continue the item and the
absent Commissioner cannot vote in absentia, he could convey to the
body that he was opposed to the item. Likewise, a body could decide
during deliberations that it wanted to continue an item until all members
were present even though a quorum was present. Sometimes items are
time -sensitive and cannot be continued.
Gatherings that are not meetings:
CA/Jenkins said there are occasions when Commissioners may be at
gatherings that the Brown Act recognizes as non- meeting occasions and
on those occasions, Commissioners do not have to be concerned about
being in violation of the Brown Act. For example, when Commissioners
attend conferences. However, being at a conference does not mean that
Commissioners can gather as a body and talk about the business of its
commission and use the gathering as an excuse to evade the Act. It is
probably unwise for three or more Commissioners to travel together to a
conference or meeting because it creates an appearance contrary to the
Act.
CA/Jenkins stated that the Brown Act says that if you. get a written
communication from a third party and that written communication is
addressed to a quorum of your body or copied to a quorum of your body
so that three, four or five of you are getting the same written material
about a subject matter jurisdiction, that is a public record. You should
insure that your staff has received a copy of that written correspondence if
the communication does not indicate that staff has been copied.
CA/Jenkins stated that another topic typically discussed under the Brown
Act is "Closed Session." That topic will not be discussed tonight because
the Commissions do not usually engage in matters that require Closed
Sessions. A Closed Session is a situation where Commissions can
legitimately meet behind closed doors outside of the public purview, a
situation often practiced by the City Council to discuss such things as
litigation, possible acquisition of real property, or negotiations with an
employee, matters requiring some degree of confidentiality.
DCM/DeStefano asked for comment on Commissioners becoming willing
or unwilling participants in a serial meeting that is created by an advocate
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for position such as, a neighborhood representative who advocates for a
stop sign or gazebo, and a developer who advocates for a project.
CA/Jenkins responded that there are no rules that prohibit those types of
contacts. Some cities have rules that indicate no ex -parte contacts with
anybody interested in the matter. Sometimes that rule is helpful because
Commissioners can merely indicate that they cannot help the individual. I
cannot talk to you because "I risk losing my job" becomes an easy way to
avoid such contacts. In this City, Commissioners are not prevented from
having that conversation and not prevented from taking a field trip.
However, when the time comes for Public Hearing, Commissioners should
report any ex -parte contacts and site field trips that have taken place.
From a Brown Act standpoint, the important thing is to avoid telling anyone
your opinions of how you intend to vote. Advocates take such information
and attempt to use it to their advantage by communicating what other
members of the Commission think. Any such conversation should be
preceded with a statement such as "I'm happy to talk to you about this
item but I want you to understand that I'll listen to what you have to say
but I'm under strict instructions from the City Attorney not to make a
commitment, not to tell you how I intend to vote or to tell you what I'm
thinking. I can't do that without risking a violation to the Brown Act. What
can do and what I will do is, I will listen to your opinion and I will take it into
consideration and think about it and obviously it will be a factor in how
ultimately vote on this matter."
CA/Jenkins responded to Commissioner Liang that it is preferable practice
to avoid potential due -process problems in a general manner by reporting
ex -parte meetings to the Commission when the Public Hearing is opened.
Information material a Commissioner intends to rely upon for his or her
vote should definitely be reported. For instance, if a Commissioner stated
that last weekend he drove by the site it would be a fairly inconsequential
statement. However, if a Commissioner said "last weekend I drove by the
site and I noticed that it's really steep. I'm really concerned about how
steep it is." This statement allows the developer to comment on a
Commissioner's concern. If the developer is unaware of the concern, they
may not address it in their comments. Ultimately, such items that are not
addressed during the Public Hearing that are later revealed after the
Public Hearing process and result in an unfavorable vote could be used in
litigation. Some public agencies formally include an ex -parte agenda item
prior to Public Hearings, some do it informally, and other public agencies
do nothing. He felt it was a good idea but that it was a matter of choice.
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PWD/Liu pointed out that staff often goes out into the community for public
informational meetings and it is not unusual for a majority of the
commissioners to be present at such events. How should the public be
notified about the presence of commissioners?
CA/Jenkins responded that if the City organized the meeting there could
not be a majority attendance unless it was noticed as a Commission
Meeting. If it was a neighborhood meeting organized by a neighborhood
group a majority could be present as long as they did not make
commitments or present themselves as a body.
CNirginkar asked if discussing agenda items with Council Members at
City functions was subject to the Brown Act.
CA/Jenkins responded "no." There is case history that states that a
committee consisting of two council members and two planning
commissioners that is put together to work on an item is clearly a Brown —
Act body. If two Council Members happened to enter into discussion with
two Commissioners it would not constitute a Brown Act violation.
CA/Jenkins offered that another way to handle site visits was to conduct
them as field trips. The disadvantage was that it took extra time and
created delays in handling projects. Some cities conduct field trips during
every public hearing. On the other hand, the advantage of scheduled site
visits is that all commissioners are present and can ask questions in real
time.
C/McManus asked who organized the field trip and CA/Jenkins
responded, "the City." In small cities it was not difficult and it was an
option for avoiding individual site visits.
3. Conflict of Interest
CA/Jenkins stated that most conflict of interest is related to financial
conflicts. California Conflict of Interest law is a state law contained in the
Political Reform Act of 1974 and it is very complicated law. It would take
hours and a great deal of expertise to explain the Conflict of Interest law.
In short, these are the key issues that commissioners should be aware of
in order to know when a problem might arise. If any commissioner
believes he/she could have a potential problem, they should seek advice.
He referred the Commissioners to the pocket guide entitled Pocket Guide
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to Conflict of Interest Laws "Can I vote" distributed by the California Fair
Political Practice Commission and is probably available on their website.
CA/Jenkins stated that this means that commissioners cannot participate
in a matter in which they have a financial conflict of interest if the decision
before them would have a material financial effect on one of their financial
interests - home, business property, investment property or a source of
gifts. On the other hand, if a commissioner's lawyer comes in front of the
planning commission for a CUP and the lawyer is a source of income,
could be a conflict of interest — not because he's a source of income but
because there is a relationship that may cause that commissioner to not
be able to be impartial. Commissioners need to be cognizant that when
an item comes before the commission, commissioners need to run those
financial interests through their minds to determine potential conflict of
interest. If a project is within 500 feet of a Commissioner's real property,
that commissioner is deemed to have a conflict of interest unless the
commissioner can demonstrate that the project will have absolutely no
effect on the value of his property. This applies to the location of a stop
sign, ball field and approval of a CUP for a new project. If a commissioner
believes a project would affect his business, the commissioner needs to
consult CA/Jenkins to determine whether it would be a material effect. In
such an event, CA/Jenkins would need to know the gross income of the
commissioner's business and what kind 'of financial effect the project
would have on the business, pro or con. With respect to "investment"
suppose a commissioner held a thousand shares of AT&T and Verizon
wants an antenna from the commission. Would that affect AT&T wireless
or would that affect AT&T wireless enough that the commissioner should
abstain? CA/Jenkins needs to know how much stock the commissioner
owns. Armed with background on AT&T he consults materiality standards
and they tell him whether the company in which the commissioner is
traded on the stock exchange then the decision the commission is making
would have to have affect equal to or greater than X dollars. If, on the
other hand the commissioner's investment is in a much smaller company
then the number for materiality is much lower — as little as $10,000 for
instance. If someone comes before the commission and they are a
source of income to the commissioner and the commissioner's spouse
and it exceeds the materiality standard the commissioner cannot
participate if that person appearing before you is a source of income to
you if the decision will have a material financial affect on them.
CA/Jenkins encouraged the commissioners to list their properties, sources
of income, investments, and sources of gifts. When reviewing a meeting
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agenda a commissioner could determine whether any of his financial
interests were potentially implicated. In particular was the matter of a
Public Hearing within 500 feet of property owned by the commissioner. If
the Commissioner thinks it could be implicated, that is the moment when
the commissioner should seek advice. With respect to gifts, it is illegal to
accept a gift worth more than $340 from any one individual in any 12 -
month period. He cautioned commissioners to be aware of potential
conflicts and ask for advice if there was any question. If it was determined
that a commissioner had a conflict of interest under the Political Reform
Act he could not participate in any aspect of the project. In other words,
the commissioner could not ask any questions of staff, could not do
anything behind the scenes, and must, when the item appears on the
meeting agenda, announce that he had a financial conflict of interest on
this matter because, for example, he lived within 500' of the project,
recuse himself and leave the room, and not return to the room until the
item was completely finished.
CA/Jenkins stated that there are complicated rules that apply only to
appointed officials that deal with soliciting or accepting campaign
contributions. if commissioners accept or solicit campaign contributions he
is, unlike elected officials, precluded from voting from matters involving
people who made those campaign contributions within the immediately
preceding 12 months. If commissioners are in a position of soliciting
campaign contributions for themselves as a candidate or for someone else
as a candidate, please call CA/Jenkins to discuss the matter.
CA/Jenkins responded to C/Chang that this applies to soliciting
contributions from others for individuals running for assembly outside of
the city, for instance.
NON-FINANCIAL CONFLICTS OF INTEREST
CA/Jenkins stated that in a non-financial issue, Commissioners were
expected to render impartial decisions. People who come before the body
expect commissioners to be open-minded, impartial and fair, just as they
would expect of any judge. Even non-financial matters can affect a
decision -maker's impartiality. Those non-financial matters arise if, for
instance, the Commissioner's best friend is the architect on the project or
if the applicant is known through community activities or as a family
member. The key consideration is, if there is something going on that is
unrelated to the merits of what is before the body for consideration that
would effect how the commissioner would decide to vote? If there is
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something unrelated to the merits, because of the relationship or because
there is something there, the commissioner would most likely be biased
and should probably not participate in the matter. Again, commissioners
should be deciding how to vote based on the merits of the matter before
the body (commission). This does not include "strongly held views." A
person who believes in slow growth, for instance, can be a commissioner.
Holding a philosophy or political view is not a conflict of interest. Basing a
decision on the fact that a relationship could be affected in some way
could be a conflict of interest.
Chair/Grundy asked if it would be a conflict to have a member of a sports
organization come before the Parks and Recreation Commission asking
for use of a facility that would reduce the amount they would have to pay
elsewhere, ultimately benefiting him and all other members of the
organization. CA/Jenkins said he would want an opportunity to think about
Chair/Grundy's scenario.
Chair/Grundy asked how a recusal would affect the quorum requirement.
CA/Jenkins responded that the rule is that if the body cannot muster a
quorum for reasons including absenteeism, the matter must be continued
to a later date when a quorum is present. If all five commissioners are
present and three commissioners have conflicts those three randomly
select one commissioner to participate.
6. Conducting Meetings.
CA/Jenkins emphasized the importance of fairness being fair and the
appearance of fairness is very important to what government does. More
important than anything is that people, when they have contact with the
government, may not like the answer and outcome, but if they feel that the
process has been fair and that they have been heard and given a
meaningful opportunity to participate, would leave unhappy but could not
say that the body had been arbitrary or unfair or that the commissioners
were not listening. The duty of a commissioner is to listen to the
individual, show them that you are listening and that you are prepared to
hear what they have to say. However, individuals do not have a First
Amendment right to expect to say whatever they want and for however
long they want to say it. They do have a right to speak about what is
relevant within an allocated time period.
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CA/Jenkins responded to CNirginkar that he is a great believer in making
the boundaries in Commission meetings very clear. Some cities do not
and some bodies do not. And sometimes, the atmosphere is not
conducive to clear-cut boundaries. For instance, in small rooms
individuals tend to more readily interject themselves back into the
conversation. Sometimes the Chair indulges that behavior. Generally,
however, he felt it was important to maintain boundaries and not get into a
precedent setting mode where the boundaries are let down and then
during subsequent meetings, people expect the same indulgence. When
members of the public are allowed to speak, their time should be
uninterrupted without response from commissioners. Likewise, during
commissioner comments there should be no interruption from members of
the public. He stated that he did not believe in crossing the boundaries
and public speakers should not be engaged during their time unless
commissioners have factual questions. There should be no debate and
answers should not be given during public comments. Wait until all public
speakers have had their time and then address each question. At that _
point, the Chair should indicate that public comments were closed and the
Commissioners would commence with their deliberations. If, at that point
someone raises his hand for permission to speak the Chair should state,
"I'm sorry. The public portion is closed, you've had your turn, and now it is
our turn. And now we're going to debate and deliberate and make our
decision."
C/Virginkar asked what should be done if questions arise during
commissioner deliberation and a speaker needs to be addressed?
CA/Jenkins said that such circumstances could occur and that is why he
encourages bodies not to close the Public Hearing until action has been
taken. Only the public portion of the hearing is closed. At that point, if the
commissioners have a specific factual question, it could be asked. He
very strongly discouraged commissioners from using that as an
opportunity to give an audience member a platform who feels they have
not had sufficient time to say what they want to say because everyone in
the audience could then feel cheated. If you say, "1'm not clear about this
aspect of the project, can the project architect please come up. We want
to ask a specific factual question."
CA/Jenkins cautioned chairpersons against using officious terminology,
avoiding using the gavel, avoiding telling people they are out of order, and
encouraged them to treat people in a civil and respectful manner. At the
same time, a chairman should be firm in their deliverance and uniformly
APRIL 7, 2004 PAGE 15 SPECIAL JOINT
COMMISSIONS MEETING
enforce time limits. If time limits are not enforced, the result is accusations
of selectivity. When the time period ends, thank the person for his
comments and tell him that you are sorry his time is up and move on to
the next speaker. If the person insists on continuing to speak, explain the
rules that this is a business meeting and public speakers are allocated
three minutes and ask them to be seated. If the Chair decides to expand
speaker time he should obtain concurrence from the remaining
commissioners by explaining the reason. The exception would be if a
person truly had a need for more time because the speaker was the
applicant and was explaining a very complicated project. The reason for
allowing such a circumstance would be explained up front by the Chair.
Again, the key is to be reasonable and fair.
CA/Jenkins stressed the importance of engaging in active listening. Look
at the person and show that you are listening to their comments. Take
notes or engage in some activity to indicate that you are paying attention.
When commissioners are talking among themselves they should try to
avoid being repetitious. It is one thing to attempt to sway colleagues to
your point of view, but at some point, enough is enough. CA/Jenkins said
he believed that it was very important for Commissioners to show respect
and to expect respect in return.
DCM/DeStefano asked that during public comments, can six speakers
give their five -minutes time period to one spokesperson. Does that
spokesperson get 30 minutes to speak?
CA/Jenkins responded that every city has its rules on ceding time. There
is no law and no governing law on the subject and each city may have its
own rule on the subject. His feeling was that ceding time was generally a
bad idea. The rule should be that if someone wished to speak he was
allowed his five minutes. If someone else wants to speak they get their
five minutes and that there would be no accumulation of ceded time.
However, there are circumstances where a spokesperson would be
selected and if others agreed not to talk, the spokesperson would be
granted extra time — not five minutes times all of the individuals. Suppose
there were 25 individuals from one neighborhood present to say the same
thing. In this instance, you cut a deal whereby the Chair gives the
spokesperson 15 minutes, for instance and gives one additional person
five minutes to speak by asking the remaining individuals to show by
raising their hands that they will abide by that view and the record so
reflect. Giving a group a meaningful block of 20 minutes instead of 25 x 5
APRIL 7, 2004 PAGE 16 SPECIAL JOINT
COMMISSIONS MEETING
minutes is a fair exchange. In short, cities would be well -served to adopt a
rule/policy that did not allow ceding.
CM/Lowry specifically encouraged incoming Commissioners to exercise
their right to make informed decisions. If a commissioner believed he had
not received a staff report that included information deemed necessary to
make that informed decision, he must ask staff to provide the necessary
information and staff is prepared to provide the necessary information.
However, it is sometimes easy to forget that new Commissioners lack the
foundation of knowledge. Commissioners are 100 percent entitled to be
informed and educated about their tasks and should never feel rushed or
pushed into making a decision without the material background
information necessary to render an informed and competent decision.
CA/Jenkins explained that individuals want to feel that they have been
dealt with in a fair and competent manner and staff is the Commissioner's
first line of defense. Commissioners are completely entitled to staff's
competency when rendering decisions.
IV. ADDITIONAL QUESTIONS/COMMENTS:
DCM/DeStefano said he appreciated this first time opportunity to bring all of the
Commissioners together under this venue. He felt it was extremely valuable to
have CA/Jenkins share his skills and expertise with the Commissioners and staff
and he hoped such informative gatherings would become a regular occurrence.
CA/Jenkins encouraged Commissioners to write down their questions and pass
them along to him or to staff so that those questions, comments or subjects could
be addressed in future meetings.
ADJOURNMENT: There being no further business to conduct, Chairman
Nolan, Planning Commission, Chairman Grundy, Parks and Recreation Commission
and Chairman Liana Pincher, Traffic and Transportation Commission adjourned the
meeting at 8:45 p.m.
Respectfully,
Jan s DeStefan , Deputy City Manager
APRIL 7, 2004 PAGE 17 SPECIAL .POINT
COMMISSIONS MEETING
Dan Nolan, Chairman
Planning Commission
Respectfully,
David G-1iu, Director of ublic Works
Attest:
'incher, Chairman
and Transportation Commission
rector of Community Services
Dave Grundy, Ch m
Parks and RecreakiodCommission