HomeMy WebLinkAbout4/14/1998PLANNING DO COUNTER COPY
T REMOVE
COMMISSION
AGENDA
April 14, 1998
7:00 P.M.
South Coast Air Quality Management District
Auditorium
21865 East Copley Drive
Diamond Bar, California
Chairman
Vice Chairman
Comnvi sroner
Commi&loner
Commissioner
Toe McManus
Steven Tye
.Toe Ruzlcka
George Kuo
Steve Nelson
Copies of staff reports or other written documentation relating to agenda items are on file in the Planning
Division of the Dept. of Community & Development Services, located at 21660 F- Copley Drive, Suite 190,
and are available for public inspection. If you have questions regarding an agenda item, please call
(909),396-5676 during regular business hours.
In an effort to comply with the requirements of Title II of the Americans with Disabilities Act of 1990, the
City of Diamond Bar requires that any person in need of any type of special equipment, assistance or
accomodation(s) in order to communicate at a City public meeting must inform the Dept. of Community &
Development Services at (909) 396-5676 a minimum of 72 hours prior to the scheduled meeting.
f!1AAUKAGENDA.GED
Please refrain from smoking, eating or drinking
in the Auditorium
The city of Diamond Bar uses recycled paper
and encourages you to do the same.
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•
PLANNING COMMISSION
CITY OF DIAMOND BAR
Tuesday, April 14, 1998
CALL TO ORDER:
AGENDA
7:00 p.m.
Next Resolution No. 98-6
PLEDGE OF ALLEGIANCE:
1. ROLL CALL: COMMISSIONERS: Chairman Joe McManus, Vice Chairman
Steve Tye, Joe Ruzicka, George Kuo, and Steve Nelson.
2. MATTERS FROM THE AUDIENCE/PUBLIC COMMENTS:
This is the time and place for the general public to address the members of the Planning Commission on any
item that is within their jurisdiction, allowing the public an opportunity to speak on non-public hearing and non -
agenda items. Please complete a Sneaker's Card for the recording SecretaCompletion of this form is
yQlnn a There is a five minute maximum time limit when addressing the Planning Conunission.
3. APPROVAL OF AGENDA: Chairman
4. CONSENT CALENDAR:
The following items listed on the consent calendar are considered routine and are approved
by a single motion. Consent calendar items may be removed from the agenda by request
of the Commission only:
4.1 Minutes of March 24, 1998
5. OLD BUSINESS:
5.1 Planning Commissioner's Policies & Procedures Manual
The Planning Commissioner's manual, dated March 1996, has been revised to reflect
the most current Brown Act and California's Conflict of Interest Laws.
RECOMMENDATION: Staff recommends that the Planning Commission adopt the
revised Planning Commissioner's Policies & Procedures Manual, findings of fact and
conditions as listed within the attached resolution.
6. NEW BUSINESS:
• 6.1 Planned Sign Program No. 98-1 is a request to install seven illuminated wall signs
and to eventually bring all existing signage into conformance with the proposed
Planned Sign Program.
April 14, 1998 - PLANNING COMMISSION AGENDA
1
Property Location: 303-315 S. Diamond Bar Blvd., Diamond Bar, CA
Property Owner: Wohl/Diamond Bar, LLC; 2402 Michelson Dr., #170, Irvine,
CA 92612
Applicant: Wohl/Diamond Bar, LLC; 2402 Michelson Dr., #170, Irvine, CA
92612
Environmental Determination: The environmental evaluation shows that the proposed
project is categorically exempt pursuant to the guidelines of the California
Environmental Quality Act (CEQA), Section 15311 (a).
RECOMMENDATION:
Planned Sign Program No.
attached resolution.
7. PUBLIC HEARING:
Staff recommends that the Planning Commission approve
98-1, Findings of Fact and conditions as listed within the
7.1 Conditional Use Permit No. 98-1 and Development Review No. 98-1 (pursuant to
Code Sections 22.56, Part 1 and 22.72.020.A), is a request to construct and operate
an unmanned Bank of America Automated Teller Machine in the Country Hills Towne
Center, within an area between the existing Wherehouse Music store and the Diamond
Bar Boulevard entrance to the center.
Project Address: Country Hills Towne Center, Diamond Bar Blvd., Diamond Bar,
CA 91765
Applicant: Bank of America, 600 Wilshire Blvd., Los Angeles, CA 90017
Property Owner: M&H Realty Partners, 1721 W. Imperial, Highway #G, La Habra,
CA 90361
Environmental Determination: Pursuant to the terms of the California Environmental
Quality Act (CEQA), Section 15202 (c), the city has determined that this project
is Categorically Exempt.
RECOMMENDATION: Staff recommends that the Planning Commission continue
Conditional Use Permit 98-1 and Development Review 98-1 to the meeting of
Tuesday, April 28, 1998 to allow the applicant time to resolve issues related to the
proposed location of the project.
7.2 Development Review 97-7 and Parking Permit 98-1, (pursuant to Code Section
22.72.020 and 22.56.990), is a request for a family restaurant in an existing
commercial center. The proposal involves combining and remodeling two existing
vacant units into one 2,700 square foot restaurant. This proposal also includes a
request for a Parking Permit for the shared use of the existing parking within the
commercial center.
Project Address: 1126 S. Diamond Bar Boulevard (northeast corner of Diamond
Bar Blvd. and Grand Ave.)
April 14, 1998 - PLANNING COMMISSION AGENDA 2
Applicant: Johnny Chan, 123 S. Lincoln Ave., Monterey Park, CA
917854
Property Owner: Nikko Capital Corporation 3961 MacArthur Blvd., Suite
105, Newport Beach, CA 92660
• Environmental Determination: Pursuant to the terms of the California Environmental
Quality Act (CEQA), the City has determined that this project is Categorically Exempt
pursuant to Section 15301.
RECOMMENDATION: Staff recommends that the Planning Commission continue
Development Review 97-7 and Parking Permit 98-1 to the meeting of Tuesday, April
18, 1998 to allow the applicant additional time to revise a required parking analysis.
8. PLANNING COMMISSION COMMENTS:
9. INFORMATIONAL ITEMS:
10. SCHEDULE OF FUTURE EVENTS:
9TH ANNIVERSARY CELEBRATION - Sunday, April 19, 1998 - 12:00p.m.-5:00 p.m.
at Peterson Park
• CITY COUNCIL - Tuesday, April 21, 1998 - 6:30 p.m. - AQMD Auditorium, 21865
E. Copley Drive - DEVELOPMENT CODE PUBLIC HEARINGS: Articles I, 11, & VI
OFF-SITE PARKING TASK FORCE - Wednesday, April 22, 1998 - 6:30 p.m. - AQMD
Auditorium, 21865 E. Copley Drive. (room CC -3 & 5)
PARKS & RECREATION COMMISSION - Thursday, April 23, 1998 - 7:00 p.m. -
AQMD Board Hearing Room, 21865 E. Copley Drive.
SPRING CLEAN-UP - Saturday, April 25, 1998
FRIENDS OF THE LIBRARY WINE TASTING SOIREE - April 26, 1998 - 2:00 to
5:00 p.m., Shilo Hilltop, 3101 Temple Avenue
PLANNING COMMISSION - Tuesday, April 28, 1998 7:00 P.M. - AQMD
Auditorium, 21865 E. Copley Drive
CITY COUNCIL - Tuesday, May 5, 1998 - 6:30 p.m. - AQMD Auditorium, 21865 E.
Copley Drive
TRAFFIC & TRANSPORTATION - Thursday, May 7, 1998 - 7:00 P.M. - AQMD
Board Hearing Room, 21865 E. Copley Drive.
11. ADJOURNMENT: April 28, 1998
April 14, 1998 - PLANNING COMMISSION AGENDA 3
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•
MINUTES OF THE CITY OF DIAMOND BAR
REGULAR MEETING OF THE PLANNING COMMISSION
MARCH 24, 1998
CALL TO ORDER:
Chairman McManus called the meeting to order at 7:05 p.m. in the
South Coast Air �uality Management Auditorium, 21865 East Copley
Drive, Diamond Bar, California.
PLEDGE OF ALLEGIANCE:
The Pledge of Allegiance was led by Commissioner Nelson.
ROLL CALL:
Present: Chairman McManus, Vice Chairman Tye, and
Commissioners Kuo, Nelson and Ruzicka.
Also Present: Deputy City Manager James DeStefano and
Associate Planner Ann Lungu.
MATTERS FROM THE AUDIENCE/PIIBLIC COMMENTS: None
APPROVAL OF AGENDA: As submitted.
CONSENT CALENDAR:
1. Minutes of March 10, 1998.
C/Ruzicka moved, VC/Tye seconded, to approve the minutes
of March 10, 1998 as submitted. The motion was carried
5-0.
OLD BIISINESS - None
NEW BIISINESS - None
PIIBLIC HEARING:
1. Vesting Tentative Tract Map No. 5267, Conditional Use
Permit No. 98-03, Oak Tree Permit No. 98-01 and
Environmental Impact Report No. 97-2, Volume I and II for
VTTM No. 52267. VTTM No. 52267 is proposed for 130
single-family detached residential dwelling units
clustered on approximately 65 acres of a 339.3 acre site.
The development is proposed as a private, gated
community. Lots will range in size from 6,000 square
feet to 26,000 square feet with an average lot size of
10,900 square feet. The gross proposed density is 0.4
dwelling units per acre with a net density of
approximately 2.06 dwelling units per acre. (Continued
from the February 24, 1998 meeting.)
MARCH 24, 1998 PAGE 2 PLANNING COMMISSION
Property Address: Generally located east of Diamond
Bar Boulevard and north of Grand
Avenue.
Property Owner: Diamond Hills Ranch Partnership
550 W. Orangethorpe Avenue
Placentia, CA 92870
Applicant: Todd Kurtin, SunCal Companies.
5109 E. LaPalma Avenue, Anaheim, CA
AstP/Lungu presented staff's report.
DCM/DeStefano stated that anticipating that this evening
would be a public hearing to hear the merits of the
original project and any responses to comments, the
City's staff sent out over 1000 public hearing notices to
surrounding property owners. He reported that letters
received from residents regarding this item have been
included in the Commissioner's packets. Upon receipt of
a letter from the developer on Thursday, March 19, staff
immediately sent out a copy of the developers letter and
a notice to the effected property owners that the
developer had requested a continuance. Staff recommends
that the Planning Commission open the public hearing,
receive testimony, and continue the matter to April 24,
1998.
Bruce Elieff, President of Suncal Companies, asked the
Planning Commission to grant a continuance in order to
allow the developer additional time to prepare, study and
present an alternative plan. He concurred with staff's
recommendation to continue the matter to April 24, 1998.
Chair/McManus read the following statement:
In "William Tell", the rural Swiss realized their ancient
liberties were in danger when the new bailiff road up to
reprimand one of them for the offense of erecting a
dwelling on his own land. "I am the Regent in the
Emperor's stead and will not have the peasants building
houses of their own will and living lives as freely as if
they were the masters in this country." The peasants
feared before long, the new overlords would turn their
properties into game preserves for their own amusement.
Today it is routine to read of a landowner denied
permission to build a house, lay down a gravel path or
plant or trim a tree.
Today, once it is proven that swamps or trees are
ecologically valuable, you've proven the case for
ordering the owners to maintain them forever at whatever
sacrifice. "This is the equivalent of an admiral saying
MARCH 24, 1998 PAGE 3 PLANNING COMMISSION
0 that because the U.S. needs a navy, the government can
take your land for a dockyard without paying you."
It used to be that Uncle Sam and other entities would buy
land when they needed to expand a park or set aside a
wildlife refuge. That's the method contemplated in the
Bill of Rights, whose Fifth Amendment reads, in part,
"nor shall private property be taken for public use
without just compensation".
Having to pay for takings imposes both a pragmatic and a
moral discipline on those who wield power: "If you must
pay, then it forces thought about what is really valuable
and what is not. If the property is free, the outcome is
obvious, take everything you can get your hands on."
Please do not ask us (The Planning Commission) to leave
title with the owner and freeze the use. While we
realize there is no physical taking, consider the moral
side of this issue. Pro -property forces should stand
firmly where they belong, on the moral high ground.
How will you feel when someone demands you donate your
property to their cause?
Chair/McManus stated that this body is not the City
Council - it is a Commission whose members are not
elected but appointed. The Planning Commission does not
have the final say in this matter. Ttie property in
question had been in private hands long before Diamond
Bar was incorporated. When SunCal purchased the
property, a contract with a Memorandum of Understanding
in place was entered into with the understanding that
they could develop this property. He said that while
residents come before the Planning Commission and state
they want the Commission to leave the property in its
present state, this body would prefer that the residents
make recommendations as to how the property can be
developed in a manner that is acceptable to the residents
and not put the City in jeopardy of a lawsuit.
George Davidson, 23426 E. Wagon Trail Road, asked if a 14
or 21 day restriction could be placed on public hearing
changes or continuances to give the residents more prior
notice. He asked if the EIR will be reopened.
DCM/DeStefano responded that he is not aware of any
provision that would compel the City to require the
developer to give such extended notice of a requested
continuance. The applicant has significant rights to
process and may even request a continuance in the middle
of a public hearing.
Ron Tehrany, 745 View Lane, said he believes two weeks is
not enough time for staff and the public to review the
MARCH 24, 1998 PAGE 4 PLANNING COMMISSION
revised plan and that the EIR should be reopened for
public comment.
DCM/DeStefano stated the EIR public comment period has
been closed. and further public comments are addressed
in the "Response to Comments" portion of the document.
Until all facts regarding the revised proposed project
are presented, staff will not make a determination
a regarding possible recirculation of the project..
A Diamond Bar citizen living at 508 Rexford Court, asked
what it takes to approve the project. He likes the
project but he would like to see the criteria used to
evaluate a project of this type so that an unbiased
decision can be reached. He spoke about his concerns
regarding the staff costs involved in a project of this
type and asked the Commissioners to take this matter
under consideration and decide whether these
continuations are a waste of Diamond Bar's resources.
The City needs for land to remain in its natural state
and not necessarily for the citizens to purchase the land
to build parks.
• Nina Goncharov, 23631 Gold Nugget Avenue, said she lives
close to the project and was not notified of any
meetings. She asked to be placed on the City's mailing
Sam Saffari, 24075 Highcrest Drive, said that the main
reason he is present tonight is to make certain the
Commission understands that these delays are a ploy by
-the developer to wear down the citizens.: He stated that
there are never answers provided to resident's questions.
He said that at the last meeting, he asked that more than
1000 people be noticed about this project and he does not
think the developer would have a problem with wider
notification. Notifying people is a requirement if they
are going to be exposed to 1.8 billion cubic feet of dirt
in the air for three years. 1000 households is not even
remotely the number of people that will be effected by
this project. He said he believes the whole of Diamond
Bar will be effected. The EIR has to be opened because
the project will be different. He said he heard the
north face buttress proposed to be installed by the
developer is as big as Hoover Dam. To him it is a joke
because he doesn't know how you can hold this project up.
At the bottom of the project next tb Diamond Bar
Boulevard there used to be a corridor for animals and now
there isn't. He stated that.the new project is impacting
a different type of area and people and the EIR is
required to be opened. He said he believes an option for
the City of Diamond Bar that has no surplus funds is to
buy the land and you can put it to a vote of the people.
He further stated that the residents are sick and tired
of the traffic and do not want explosions next to their
houses six days a week.
A Diamond Bar citizen living at 508 Rexford Court, asked
what it takes to approve the project. He likes the
project but he would like to see the criteria used to
evaluate a project of this type so that an unbiased
decision can be reached. He spoke about his concerns
regarding the staff costs involved in a project of this
type and asked the Commissioners to take this matter
under consideration and decide whether these
continuations are a waste of Diamond Bar's resources.
The City needs for land to remain in its natural state
and not necessarily for the citizens to purchase the land
to build parks.
• Nina Goncharov, 23631 Gold Nugget Avenue, said she lives
close to the project and was not notified of any
meetings. She asked to be placed on the City's mailing
MARCH 24, 1998 PAGE 5 PLANNING COMMISSION
• list. She also asked for a copy of Chair/McManus'
statement.
Carol Long, 1044 Summitridge Drive, said she was told by
a former City Council Member that if this project is
pushed through that there is a parcel of land that the
developer owns whioh is situated. on Summitridge Drive
between Summitridge park and the neighborhood park and
that the land will be given to the City of Diamond Bar
for construction of a new City Hall. She asked if this
information is correct.
DCM/DeStefano stated that Summitridge Park is owned by
the City of Diamond Bar. The hill on Summitridge Park
which is parallel to Summitridge Drive .is City -owned
property. Discussions have taken place regarding the
need for a City Hall facility and sites are being
contemplated for that purpose including the City -owned
Summitridge Park site. He presented a map which shows no
known developer owned property adjacent to Summitridge
Drive. The only access to the developer's property is
Diamond Bar Boulevard at Tin Drive and a proposed
emergency gate at Highcrest Drive.
Mr. Elieff offered to answer any questions the public may
• have. He asked that concerned residents call Mr. Todd
Kurtin or Bruce Elieff at (714) 693-6700.
Chair/McManus closed the public hearing.'
C/Ruzicka moved, C/Nelson seconded, to reopen the public
hearing and continue the matter to April 28, 1998. The
motion was carried 5-0.
2. Conditional Use Permit No. 98-1 and Development Review
No. 98-1 (pursuant to Code Section 22.56 -Part 1 and
22.72.020.A) is a request to construct and operate an
unmanned Bank of America Automated Teller Machine Kiosk
in the Country Hills Towne Center within an area between
the existing The Wherehouse music and video store and the
Diamond Bar Boulevard entrance to the center. (Continued
from February 24, 1998)
Project Address: Country Hills Towne Center, Diamond
Bar Boulevard, Diamond Bar
Applicant: Bank of America, 600 Wilshire
Boulevard, Los Angeles, CA 90017
Property Owner: M & H Realty Partners, 1721 W.
Imperial Highway #G, LaHabra, CA
90361
DCM/DeStefano presented staff's report. Staff recommends
that this project be continued to April 14, 1998 to allow
the applicant time to submit revised plans.
MARCH 24, 1998 PAGE 6 PLANNING COMMISSION
SChair/McManus opened the public hearing.
There was no one present who wished to speak on this
item.
C/Ruzicka moved, C/Kuo seconded, to continue the public
hearing for Conditional Use Permit No. 98-1 and
Development Review No. 98-1 to April 14, 1998.- The
motion was carried 5-0.
PLANNING COMMISSION ITEMS:
C/Nelson stated that with respect to ..the SunCal .project,he
listened to the prior meeting tapes and was disappointed about the
applicant's continual reference to "highest and best use". He said
he certainly believes in the Fifth Amendment to the United States
Constitution and indicated he supports Chair/McManus' earlier
statement. He said -he is also disappointed in the opposition to
the project and the exaggerations that have been expressed and the
degradation of the City's staff. He stated he will keep an open
mind and will consider all prior statements as well as, his own
unbiased opinion from 24 years of experience in this field when
considering this project.
C/Kuo stated he shares C/Nelson's concerns and disappointments. He
said he is present to become acquainted with his job as a
Commissioner. He believes that together, the Commissioners can do
a great job for the City of Diamond Bar as long as they keep and
open mind, set ground rules and maintain the laws.
C/Ru:;icka thanked DCM/DeStefano for reiterating that the developer
bears the burden of project related costs.
VC/tye stated that this is his seventh Planning Commission meeting
and it is time to set the record straight because he has been
hearing a fair amount of misinformation from the speakers podium.
He is concerned that residents do not understand the process the
City must go through to consider a proposed project and if they do
understand the process, they do not appear to appreciate it. This
landowner is entitled to due process and he is entitled to a
continuance if he so desires. Continuances are not a ploy. He
understands that it is difficult for people to speak their minds
and :stay away from the emotional buzz words like "ploy", "illegal",
"lawsuit", etc. Mr. Saffari made a reference to 1.8 billion cubic
yards of dirt being moved. The report clearly states that 1.8
million cubic yards of dirt is proposed to be moved. It is this
kind of misinformation that can be stated over and over again if it
is not challenged. He said he feels that the people who are
addressing this issue and getting the neighborhood residents
excited are as well -versed as they chose to be.
•
Chair/McManus thanked the Commissioners and staff for their
objectivity.
INFORMATIONAL ITEMS:
MARCH 24, 1998 PAGE 7 PLANNING COMMISSION
• DCM/DeStefano stated that on April 14, 1998 in addition to the
unmanned Bank of America automated Teller Machine Kiosk Conditional
Use Permit, the Planning Commission will consider a restaurant
proposed to be located in the Ralphs Shopping Center just north of
Enterprise Car Rental in a space of about 3,000 square feet and the
adoption of the revised Planning Commissioner's Manual. In
addition, the City Attorney will provide the Commission with an
orientation of the Brown Act and other pertinent legal issues.
DCM/'DeStefano indicated that earlier this evening he approved
construction of a 4800 single family home at 689 Leyland Drive and
continued to April 8, 1998, a proposed 10,000 square foot home at
2281.8 Canyon View Drive in "The Country Estates".
DCM/DeStefano pointed out that on April 18, 1998, the City will
participate in a county -wide Household Hazardous Waste Roundup.
Items may be dropped at 1300 Bridge Gate Drive in the Gateway
Corporate Center.
SCHEDULE OF FUTURE EVENTS as listed in the agenda.
ADJOURNMENT:
•
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VC/Tye moved, C/Ruzicka seconded, to adjourn the meeting to April
14, 1998. There being no further business to come before the
Planning Commission, Chair/McManus adjourned the meeting at 8:30
p.m.
Attest:
Joe McManus
Chairman
Respectfully Submitted, `
James DeStefano
Secretary to the Planning Commission
INTEROFFICE MEMORANDUM
• TO: Chairman and Planning Commissioners
FROM: Ann J. Lungu, Associate Planner 01--4—
SUBJECT: Planning Commission Policies and Procedures Manual
DATE: April 6, 1998
At the March 10, 1998 Planning Commission meeting, a revised draft
Planning Commission Policies and Procedures Manual. was presented.
At that time, the Commission decided to review the Manual and
present changes, if any, to staff at the April 14, 1998 Planning
Commission meeting.
The most current copy of The Brown Act and California's Conflict
of Interest Law are attached to this memorandum and will be come
Appendix A and Appendix B respectively in the Planning Commission
Policies and Procedures Manual.
It is recommended that the Commission adopt the Manual by
resolution at the April 14, 1998 meeting. Any changes adopted by
the Commission will be incorporated into the Manual. The adopted
version will be delivered with the April 28, 1998 Planning
Commission packet.
• If you have any questions regarding the information presented in
the Manual or attached to this memorandum, please contact the
staff.
Other City Commissions utilize documented meeting rules. In the
past, the Planning Commission has considered adopting a policy
regarding meeting rules. Attached is a draft of meeting rules for
the Planning Commission to consider.
Attachments:
1. Draft Resolution;
2. California's Conflict of Interest Law;
3. The Brown Act; and
4. Meeting Rules.
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City of Diamond Bar
Planning Commission
MEETING RULES
PUBLIC IT
The meetings of the Diamond Bar Planning Commission are open to the public. A member of the public may address
the Commission on the subject of one or more agenda items and/or other items of which are within the subject matter
jurisdiction of the Diamond Bar Planning Commission. A request to address Commission should be submitted in
writing at the public hearing, to the Secretary of the Commission.
As a general rule the opportunity for public comments will take place at the discretion of the Chair. However, in order
to facilitate the meeting, persons who are interested parties for an item may be requested to give their presentation at the
time the item is called on the calendar. The Chair may limit individual public input to five minutes on any item; or the
Chair may limit the total amount of time allocated for public testimony based on the number of people requesting to
speak and flue business of the Commission.
Individuals are requested to conduct themselves in a professional and buisinesslike manner. Comments and questions
are welcome so that all points of view are considered prior to the Commission making recommendations to the staff and
City Council.
In accordance with Government Code Section 54954.3(a) the Chair may from time to time dispense with public
comment on items previously considered by the Commission.
In accordance with State Law (Brown Act), all matters to be acted on by the Commission must be posted at least 72
hours prior to the Commission meeting. In case of emergent or when a subject matter arises subsequest to the posting
of the agenda, upon making certain findings, the Commission may act on item that is not on the posted agenda.
INFORMATION RELATING TO AGENDAS ANDA 'TIONS OF THE COMMISSION
Agendas for Diamond Bar Planning Commission meetings are prepared by the Planning Division of the Community
and Development Services Department. Agendas are available 72 hours prior to the meeting at City Hall and the
public library, and may be accessed by personal computer at the number below.
Every meeting of the Planning Commission is recorded on cassette tapes and duplicate tapes are available for a nominal
charge.
ADA REQUIREMENTS
A cordless rnicrophone is available for those persons with mobility impairments who cannot access the public apeking
area. The service of the cordless microphone and sign language interpreter services are available by giving notice at
least three business days in advance of the meeting. Please telephone (909)396-5676 between 8:OOa.m. and S:OOp.m.
Monday through Friday.
HELPFUL PHONE NUMBERS
Copies of Agenda, Rules of the Commission, Cassette Tapes of Meetings (909) 396-5676.
Computer Access to Agendas (909) 860 -LINE
General Agendas (909) 396-5676
4'!
PLANNING COMMISSION
• RESOLUTION NO. 98 -BB lot
4001
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF DIAMOND BAR ESTABLISHING A PLANNING
COMMISSION POLICIES AND PROCEDURES MANUAL.
A. Recitals
1. It is important to the successful operation of any public
organization that standards be established to define
roles, responsibilities, and expectations of the
governing board and staff in an organization's operation.
2. The establishment of standards by the Planning Commission
will promote understanding and trust among members of the
Commission and staff concerning their roles, responsibil-
ities, and expectations for the operation of the City.
3. The establishment and periodic review, of the Planning
Commission Policies and Procedures Manual will assist new
• members of the Commission to better understand their role
and responsibilities.
B. Resolution
NOW, THEREFORE, it is found, determined and resolved by the
Planning Commission of the City of Diamond Bar as follows:
1. The Planning Commission hereby specifically finds that
all of the facts set forth in the Recitals, Part A, of
this Resolution are true and correct.
2. The Planning Commission is operating under a Planning
Commission Policies and Procedures Manual adopted June
10, 1996.
3. The adoption of the Planning Commission Policies and
Procedures Manual dated April 14, 1998 shall supersede
the Planning Commission Policies and Procedures Manual
dated June 10, 1996.
4. The Planning Commission shall follow.the policies and
procedures listed within the manual dated April 14, 1998.
• 1
4?'
APPROVED AND ADOPTED THIS THE 14TH DAY OF APRIL 1998, BY THE
PLANNING COMMISSION OF THE CITY OF DIAMOND BAR.
BY:
Chairman
I, James DeStefano, Planning Commission Secretary do hereby certify
that the foregoing Resolution was duly introduced, passed, and
adopted, at a regular meeting by the Planning Commission of the
City of Diamond Bar, held on the 14th day of April 1998:
AYES:
COMMISSIONERS:
NOES:
COMMISSIONERS:
ABSENT:
COMMISSIONERS:
ABSTAIN:
COMMISSIONERS:
ATTEST:
James DeStefano, Secretary
2
tii •.
SUMMARY OF THE MAJOR PROVISIONS AND REQUIREMENTS
OF THE RAL
--�,_-, PH M. BROWN ACT
r` r.
The Ralph M. Brown Act is California's "sunshine" law for local government.
It is found in the California Government Code beginning at Section 54950. In a nutshell, it
requires local government business to be conducted at open and public meetings, except in
certain limited situations. The Brown Act is based upon state policy that the people must be
infonned so they can keep control over their government. In 1993, the Legislature made
sweeping changes to the Brown Act. A few additional changes to the law were enacted in 1997.
This paper briefly summarizes and discusses the major provisions of the Brown
Act and incorporates the significant changes to the law enacted in 1993 as well as those changes
enacted in 1997.
A. Application of the Brown Act to "Legislative Bodies"
The requirements of the Brown Act apply to "legislative bodies" of local
governmental agencies. The term "legislative body" is defined to include the governing body
of a local agency and any commission, committee, board or other body of the local agency,
whether permanent or temporary,decisionmaking or advisory, that is created by formal action
of a legislative body (Section 54952).
The Brown Act also applies to so-called "standing committees, even if they
consist solely of less than a quorum of the council or other legislative body. Some common
examples include city finance, budget, or similar policy subcommittees of the legislative body
that have either some "continuing subject matter jurisdiction" or a meeting schedule fixed by
formal action of the legislative body.
However, the law does not apply to ad hoc committees that are less than a quorum
of the legislative body, provided they are composed solely of members of the legislative body
and provided that these ad hoc committees do not have some "continuing. subject matter
jurisdiction," and do not have a meeting schedule fixed by formal action of a legislative body.
Thus, ad hoc committees would generally serve only a limited or single purpose; they are not
perpetual and they are dissolved when their specific task is completed. Standing committees,
on the: other hand, exist to make routine and regular recommendations on a specific subject
matter; they survive resolution of any one issue or matter, and are a regular part of the
governmental structure.
Some private entity governing bodies may fall under the requirements of the
Brown Act if either of the following applies: (i) the private entity is created by the elected
legislative body to exercise lawfully delegated authority, or (ii) the private entity receives funds
.from the local agency and the private entity's governing- body includes a full voting member of
• the legislative body who was appointed by the legislative body (Section 54952).
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Attom"s at Law
The Brown Act also applies to persons who are elected to serve as members of
a legislative body of a local agency who have not yet assumed the duties of office (Section
54952.1) .
B. Meetings
The central provision ' of the Brown Act provides that all "meetings" of a
legislative body must be open and public. The Brown Act contains a definition.of the term
"meeting" (Section 54952.2). It is a very broad definition that encompasses almost every
gathering of a majority of members. However, it is followed by six specific types of gatherings
that are not subject to the Brown Act.
The definition of meeting includes:
"Any congregation of a majority of members of a legislative body at the same
time and place to hear, discuss, or deliberate upon any item that is within the
subject matter jurisdiction of the legislative body or the local agency to which it
pertains."
In plain English, this means that a meeting is any gathering of a majority of
members to hear or discuss any item of city business or potential city business.
Neither a decision, nor participation in a discussion, is necessary to turn a
gathering into a Brown Act meeting. Unless.a gathering of a majority of members falls within
one of the exceptions discussed below, if a majority of members are in the same room and
merely listen to a discussion of city business, then they will be participating in a Brown Act
meeting that requires notice, an agenda, and a period for public comment.
As noted above, there are six exceptions to this rule. We refer to the exceptions
as: (1) the individual contact exception; (2) the seminar and conference exception; (3) the
community meeting exception; (4) the other legislative body exception; (5) the social or
ceremonial occasion exception; and (6) the standing committee exception.
1. The individual contact exception
Conversations, whether in person, by, telephone or other means, between a
member of a legislative body and any other person does not constitute a meeting (Section
54952.2(c)(1)). However, such contacts may constitute a "serial meeting". in violation of the
Brown Act if the individual also makes a series of individual contacts with other members of the
legislative body for the purpose of "developing a collective concurrence." For an explanation
of what constitutes a "serial meeting," see part C of this paper.
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2. The seminar and conference exception
The attendance by a majority of members at a seminar or conference or similar
gathering is also generally exempted from Brown Act requirements (Section 54952.2 (c)(1)).
This exception, for example, would apply to attendance at a California League of Cities seminar.
However, in order to qualify under this exception, the seminar or conference must be open to
the public. In other words, the meeting must be available to the public on the same terms that
it is available to members of the body. Therefore, if the seminar is free to members, it must
also be free to the public. If members are required to pay an admission fee, then the public may
also be required to pay a fee. Additionally, the seminar or conference must be limited to issues
of general interest to the public or to cities. Finally, this exception will not apply to a
conference or seminar if a majority of members discuss among themselves items of specific
business relating to their own city, except as part of the program.
3. The community meeting exception
The community meeting exception allows members to attend neighborhood
meetings, town hall forums, chamber of commerce lunches or other community meetings at
which issues of local interest are being discussed (Section 54952.2(c)(3). However, members
must observe several rules that limit this exception. First, in order to fall within this exception,
the community meeting must be "open and publicized." Therefore, for example, attendance at
a homeowners association meeting that is limited to the residents of a particular development and
only publicized among members of that development would not qualify for this exemption.
Also:, as with the other exceptions, a majority of members cannot discuss among themselves
items of city business, except as part of the program.
4. The other legislative body exception
This exception allows a majority of members of any legislative body to attend
meetings of other legislative bodies of the city or of another jurisdiction (such as the County or
another city) without treating such attendance as a meeting of the body (Section 54952.2(c)(4)).
Of course, as with other meeting exceptions, the members are prohibited from discussing city
business among themselves except as part of the scheduled meeting.
5. The social or ceremonial occasion exception
As has always been the case, Brown Act requirements do not apply to attendance
by a majority of members at a purely social or ceremonial occasion provided that a majority of
members do not discuss among themselves matters of public business (Section 54942.2(c)(5)).
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6. The standing committee exception
This exception allows members of a legislative body; who are not members of a
standing committee of that body, to attend an open and noticed meeting of the standing
committee without making the gathering a meeting of the full legislative body itself. However,
under this exception, the members of the legislative body who are not members of the standing
committee may only attend as "observers" (Section 54952.2(c)(6)). This means that members
of the legislative body who are not members of the standing committee should not speak at the
meeting, sit in their usual seat on the dias or otherwise participate in the standing committee's
meeting. However, if the attendance of the members of the legislative body who are not
standing committee members would not create a gathering of a majority of the legislative body,
then the non -standing committee members would not be limited to just observing the proceedings
and could speak or otherwise participate to the extent authorized by the committee or as
provided in the local agency's own rules of procedure.
Other than in situations which fall into certain exceptions, all meetings must occur
within the boundaries of the local governmental agency (Section 54954). Exceptions to this rule
include meeting outside the jurisdiction to comply with a court order or attend a judicial
proceeding, to inspect real or personal property, to attend a meeting with another legislative
body in that other body's jurisdiction, to meet with a state of federal representative to discuss
issues affecting the local agency over which the other officials have jurisdiction, to meet in a
facility outside of, but owned by, the local agency, or to visit the office of the local agency's
legal counsel. These are meetings and in all other respects must comply with agenda and notice
requirements.
"Teleconferencing" may be used as a method for conducting meetings whereby
members of the body may be counted towards a quorum and participate fully in the meeting
from remote locations within the city (Section 54953(b)). Under rules enacted in 1997 the
following requirements apply: the remote locations may be connected to the main meeting
location by telephone, video or both; the notice and agenda of the meeting must identify the
remote locations; the remote locations must be posted and accessible to the public; all votes must
be by roll call; and the meeting must in all respects comply with the Act, including participation
by members of the public present in remote locations.
C. Serial Meetings
In addition to regulating all gatherings of a majority of members of a legislative
body, the Brown Act also addresses individual contacts between members of legislative bodies.
On the one hand, the Brown Act specifically states that nothing in the Act is intended to impose
Brown Act requirements on individual contacts or conversations between a member of a
legislative body and any other person (Section 54952.2(c)(1)). However, the Brown Act also
has been amended to prohibit a series of such individual contacts if they result in a "serial
meeting" (Section 54952.2(b)).
A serial meeting is a series of meetings or communications between individuals
so that even though a majority of members never gather,in a room at the same time, ideas are
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exchanged among the majority through either one or more persons acting as intermediaries or
through use of a technological device (such as a telephone answering machine, or computer e-
mail or voice mail).
Commonly, serial meetings are conducted in one of two ways; either a staff
member or member. of the body will individually contact a majority of members of a body to
share ideas among the majority or, without the involvement of staff, member A will call member
B and member B will call member C and so on to share ideas among a majority.
Traditionally, the California Attorney General and many city attorneys advised
that serial meetings were not permitted under the Brown Act. The 1993 amendments to the
Brown Act specifically prohibited such meetings.
Of course, the prohibition against serial meetings does not prohibit all
m
comunication between individuals regarding city business. The Brown Act only prohibits the
use of serial meetings for the purpose of "developing a collective concurrence" concerning an
issue. However, this phrase should not be interpreted too narrowly. Merely the exchange of
information or discussion of ideas about a matter of city business will probably be interpreted
to be an effort to "develop a collective concurrence." In fact, we know that representatives of
newspaper organizations and staff members in the Attorney General's office interpret the
prohibition against serial meetings to prohibit any substantive briefings of members of a
legislative body by staff. We do not subscribe to such a conservative interpretation of the Brown
Act. We believe that such an interpretation is not practical and is not necessary to meet the
intent of the Act_
However, we recommend the following guidelines be used to. assure that
individual contacts do not inadvertently result in a collective concurrence among a quorum in
violation of the serial meeting prohibition described above. These rules of conduct apply only
when a majority of a legislative body is involved in a series of contacts or communications. The
types of contacts considered include contacts with local agency staff members, constituents,
developers, lobbyists and other members of the legislative body.
1 • Contacts with staff.
Staff can inadvertently become a conduit among a majority of a legislative body
in the course of providing briefings on items of local agency business. To underscore the
seriousness of this concern, the Attorney General take's the position that individual staff briefings
of a majority of the members of a body on substantive issues are per se illegal seriatim meetings,
and hence, are not permitted. While we do not agree with this highly restrictive interpretation,
there is no doubt that staff briefings can too easily lead to collective concurrence if not handled
carefully. To avoid a developing a collective concurrence by way of a staff briefing:
a. Individual briefings of a majority of members of a legislative body
should be unidirectional, in that information should flow from staff to the member and the
member's participation should be limited to asking questions and acquiring information.
Otherwise, multiple members could separately give staff direction thereby causing staff to shape
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Anorne,s at yaw
or modify its ultimate recommendations in order to reconcile the views of the various members,
resulting in a collective concurrence.
b. Members should not ask staff to describe the views. of other
members of the body, and staff should not volunteer those views if known to them.
C. Staff may present its viewpoint to the member, but should not ask
for the member's views and the member should avoid providing his or her views unless it is
absolutely clear that the staff member is not discussing the matter with a quorum of the
legislative body.
2. Contacts with constituents, developers and lobbyists.
As with staff, a constituent or lobbyist can also inadvertently become an
intermediary among a majority of a legislative body causing a violation of the Brown Act by
sharing thoughts among a majority of members through a series of individual contacts. Many
constituents' unfamiliarity with the requirements of the Act aggravate this potential problem
because they may believe that a member of a legislative body should in the ordinary course of
performing his or her public duty commit to a position in a private conversation in advance of
a meeting. To avoid development of a collective concurrence in constituent conversations:
a. First, state the ground rules "up front." Ask if the constituent has
or intends to talk with other members of the body about the same subject; if so, make it clear
that the constituent should not disclose the views of other members during the conversation.
b. Explain to the constituent that you will not make a final decision
on a matter prior to the meeting. For example: "State law prevents me from giving you a
commitment outside a meeting. I will listen to what you have to say and give it consideration
as I make up my mind."
C. Do more listening and asking than expressing opinions.
d. If you disclose your thoughts about a matter, counsel the constituent
not to share them with other members of the legislative body.
3. Contacts with fellow members of the same legislative body.
Direct contacts concerning local agency business with fellow members of the same
legislative body, whether through face-to-face or telephonic conversations, notes or letters,
electronic mail or deputies or other staff members, is the most obvious means by which an
illegal serial meeting can occur. This is not to say that a member of a legislative body is
precluded from discussing items of agency business with another member of the body outside
of a meeting; as long as the communication does not involve a quorum of the body, no meeting
has occurred. There is, however, always the risk that one participant in the communication will
disclose the views of the other participant to a third or fourth member, thereby creating the
possibility of achieving a collective concurrence outside a public meeting. Therefore, avoid
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discussing local agency business with a quorum of the body or communicating the views of other
members outside a meeting and this problem will not arise.
These suggested rules of conduct may seem unduly restrictive and impractical,
and may make acquisition of important. information more difficult or time-consuming.
Nevertheless, following them will help assure that your conduct comports with the Brown Act's
goal of achieving open government. If you have questions about compliance with the Act in any
given situation, you should ask them of your city attorney; adherence to the above guidelines
is not a substitute for securing advice from your legal advisor.
D. Notice and Agenda Requirements
Two key provisions of the Brown Act which insure that the public's business is
conducted openly are, the requirements that legislative bodies post agendas prior to their meetings
(Sections 54954.2, 54955 and 54956) and that no action or discussion may occur on items or
subjects not listed on the posted agenda (Section 54954.2)_ Limited exceptions to the rule
against discussing or taking action not on a posted agenda are included in the Brown Act and
are discussed in the next part of this paper.
Meeting agendas must contain a brief general description of each item of business
to be transacted or discussed at the meeting (Section 54954.2(a)). The description need not
exceed 20 words. Each agenda must be posted in a place that is freely accessible to the public.
Agenda posting requirements differ depending on the type of meeting to be conducted.
Legislative bodies, except advisory committees and standing committees, are required to
establish a time and place for holding regular meetings (Section 54954(a)).
If the meeting is a regular meeting of the legislative body, the agenda must be
posted 72 hours in advance of the meeting (Section 54954.2(a)). For special meetings, the
"call" of the meeting and the agenda must be posted at least 24 hours prior to the meeting
(Secti:on 54956). Each member of the legislative body called to a special meeting must
personally receive written notice of the meeting either by personal delivery or by "any other
means" (such as fax, electronic mail or U.S. mail) at least 24 hours before the time of the
special meeting, unless they have previously waived receipt of written notice. Members of the
press (including radio and television stations) and other members of the public can also request
written notice of special meetings.
Notices for adjourned meetings must be posted within 24 hours after the previous
meeting was adjourned on the door of the meeting chambers where the previous meeting
occurred (Section 54955). If the adjourned meeting occurs more than five days after the prior
meeting, a new agenda for that adjourned meeting must be posted 72 hours in advance of that
adjourned meeting (Section 54954.2(b)(3)).
The Brown Act requires the local agency to mail the agenda, the full agenda
packet, or both sets of documents, to any person making a written request no later than the time
the a;;enda is posted or is delivered to the members of the body, whichever is earlier. The
agency may charge a fee to recover its costs of copying and mailing. Any person may make a
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standing request to receive these materials, in which event the request must be renewed annually.
Failure by any requestor to receive the agenda does not constitute grounds to invalidate any
action taken at a meeting (Section 54954.1).
E. Public. Participation
1. Regular Meetings
The Brown Act mandates that agendas for regular meetings allow for two types
of public comment periods. The first is general audience comment periods, which are those
portions of the agenda where the public.can comment on any item of interest that is within the
subject matter jurisdiction of the local agency. This general audience comment period may come
at any time during a meeting (Section 54954.3).
The second type of public comment period is the specific comment period
pertaining to items on the agenda. The Brown Act requires the legislative body to allow these
specific comment periods on agenda items to occur prior to or during the City Council's
consideration of that item (Section 54954.3).
Some public entities accomplish both requirements by placing a general audience
comment period at the beginning of the agenda where the public can comment on agenda and
non -agenda items. Other public entities provide public comment periods as each item or group
of items comes up on the agenda, and then leave the general public comment period to the end
of the agenda. Either method is permissible. Caution should be taken with consent calendars.
f The body should have a public comment period for consent calendar items before the body acts
!. on the consent calendar, unless it permits members of the audience to "dull" items from the
calendar.
The body may preclude public comments on an agenda item in one situation.
That is where the item was considered by a committee of the body which held a meeting where
public comments on that item were allowed. So, if the body has standing committees (which
are required to have agendized and open meetings with an opportunity for the public to comment
on items on that committee's agenda) then when the item comes before the full body the body
may choose not to take additional public comments on that item. However, if the version
presented to the body is different from the version presented to, and considered by, the
committee, the public must be given another opportunity to speak on that item at the meeting
of the full body (Section 54954.3).
2. Public Comments at Special Meetings
The Brown Act requires that agendas for special meetings provide an opportunity
for members of the public to directly address the body concerning any item listed on the agenda
prior to the body's consideration of that item (Section 54954.3). Therefore, for a special
meeting, the city council must allow a period for public comments on items on the agenda but,
unlike regular meetings, the city council does not have to allow the public to comment on any
non -agenda matter.
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3. Limitations on the Length and Content of the Public's Comments
A legislative body may adopt reasonable regulations limiting the total amount of
time allocated to each person for public testimony. For example, typical time limits restrict
speakers to three or five minutes. A legislative body may also adopt reasonable regulations
limiting the total amount of time allocated for public testimony on legislative matters, such as
a zoning ordinance or other regulatory ordinance (Section 54954.3(b)). However, we do not
recornmend setting total time limits per item for any quasi-judicial matter such as a land use
application or business license or permit application hearing. Application of a total time limit
to a quasi-judicial matter could result in a violation of the due process rights of those who were
not able to speak to the body during the time allotted.
The Act precludes the body from prohibiting public criticism of the policies,
procedures, programs, or services of the agency or the acts or omissions of the city council
(Section 54954.3 (c)). This.does not mean that a member of the public may say anything. If
the topic of the public's comments is not within the subject matter jurisdiction of the agency,
the member of the public can be cut off.
The body also may adopt reasonable rules of decorum for its meetings which
preclude a speaker from disrupting, disturbing or otherwise impeding the orderly conduct of
public: meetings. Also, the right to publicly criticize a public official does not include the right
to slander that official. Slander is where the speaker makes a knowing falsehood regarding the
official or states something in reckless disregard for the truth. It will be difficult to determine
if the statement is slander at the meeting unless the body knows the speaker's actual intent and
knows what the speaker knew when he or she made the statement. While slander may be proved
in court, it may be nearly impossible for the body to be sure it was slander on the spot. So,
while the public does not have a right to make slanderous comments in a public meeting, it
becomes risky for the body to determine it to be slander and to cut the person off from speaking
because of such a statement.
The use of profanity may be a basis for stopping a speaker. However, it will
depend upon what profane words or comments are made and the context of those comments in
determining whether it rises to the, level of impeding the orderly conduct of a meeting. While
terms such as "damn" and "hell" may have been disrupting words thirty years ago, today's
standards seem to accept a stronger range of foul language. Therefore, if the chair is going to
rule someone out of order for profanity, the chair should make sure the language is truly
objectionable and that it causes a disturbance or disruption in the proceeding before the chair
cuts off the speaker.
4. Discussion of Non -Agenda Items
For many years, the Brown Act provided that a legislative body could not take
any action on items not appearing on the posted agenda. Some public law attorneys interpreted
this as meaning that a body could talk about something but not reach a collective consensus as
to a particular course of action until the item was brought back on a subsequent agenda. Other
practitioners took the position that as soon as discussion occurred on that non. -agenda item, then
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the process for coming to a consensus on that item started, which was a violation of the Brown
Act. Thus, under the stricter interpretation, no discussion of a non -agenda item should occur.
This divergence of interpretation was resolved in the 1993 amendments to the
Brown Act. Under -the current law, a body may not take action or discuss any item that does
not appear on the posted agenda (Section 54954.2).
There are two "urgency" exceptions to this rule. The first is if the body
determines that an emergency situation exists. The term "emergency" is limited to work
stoppages or crippling disasters (Section 54956.5). The second exception is if the body finds
by a two-thirds vote of those present, or if less than two-thirds of the body is present, by
unanimous vote, that there is a need to take immediate action on an item and the need for action
came to the attention of the local agency subsequent to the agenda being posted (Section 54954.2
(b)). This means that if four members of a five -member body are present, three votes are
required to add the item; if only three are present, a unanimous vote is required.
In addition to these exceptions, there are several limited exceptions to the no
discussion on non -agenda items rule. Those exceptions are. -
(a) Members of the legislative body or staff may briefly respond to statements
made or questions posed by persons during public comment periods.
(b) Members or staff may ask questions for clarification and provide a
reference to staff or other resources for factual information;
(c) Members or staff may make a brief announcement, ask a question or make
a brief report on his or her own activities.
(d) Members may, subject to the procedural rules of the legislative body,
request staff to report back to the legislative, body at a subsequent meeting
concerning any matter; and
(e) The legislative body may itself as a body, subject to the rules of
procedures of the legislative body, take action to direct staff to place a matter of
business on a future agenda.
The body may not discuss non -agenda items to any significant degree under these
exceptions. The continents must be brief. These exceptions do not allow long or wide-ranging
`' question and answer sessions between the public and city council or between legislative body and
41
staff.
�s When the body is considering whether to direct staff to add an item to a
subsequent agenda, these exceptions do not allow the body to discuss the merits of the matter
or to engage in a debate about the underlying issue.
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To protect the body from problems in this area, the legislative body may wish to
adopt a rule that any one member may request an item.to be placed on a subsequent agenda, so
that discussion of the merits of the issue can be easily avoided. If the legislative body does not
wish to adopt this rule, then the body's consideration and vote on the matter must take place
with virtually no discussion.
It is important to follow these exceptions carefully and interpret them narrowly
because the city would not want to have an important and complex action tainted by a non-
agendized discussion of the item.
5. The public's right to photograph, videotape, tape-record and broadcast
open meetings
The public has the right to videotape or broadcast a public meeting or to make
-a motion picture or still camera record of such meeting (Section 54953.5). However, a body
may prohibit or limit recording of a meeting if the body finds that the recording cannot continue
without noise, illumination, or obstruction of a view that constitutes, or would constitute, a
disruption of the proceedings (Section 54953.5). These grounds would appear to preclude a
finding based on nonphysical grounds such as breach of decorum or mental disturbance.
Any audio or video tape record of an open and public meeting that is made, for
whatever purpose, by or at the direction of the city is a public record and is subject to inspection
by the public consistent with the requirements of the Public Records Act (Section 54953.5). The
city r;iust not destroy the tape or film record of the open and public meeting for at least 30 days
following the date of the taping or recording. Inspection of the audiotape or videotape must be
made available to the public for free on equipment provided by the city (Section 54953.5).
If a member of the public requests a duplicate of the audio or videotape, the city
must provide such copy upon payment of a fee. If the city has an audiotape or videotape
duplication machine, the city must provide the copy on its own machine. If the city does not
have an audiotape or video tape duplication machine, the city should send it out to a business
that can duplicate it and the city may charge a fee to cover the cost of that duplication service.
The Brown Act requires written material distributed to a majority" of the body by
any person to be provided to the public without delay. If the material is distributed during the
meeting and prepared by the local agency, it must' be available for public inspection at the
meeting. If it is distributed during the meeting by a member of the public, it must be made
available for public inspection after the meeting (Section 54957.5).
One problem in applying this rule arises when written materials are distributed
directly to a majority of the body without knowledge of City staff, or even without the members
knowing that a majority has received it. The law still requires these materials to be treated as
Public: records. So, many cities have established some procedure to assure compliance with this
new rule.
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i
E F. Closed Sessions
Closed sessions are lawful meetings during which the public and press are
excluded. Sometimes people refer to closed sessions as "executive sessions," a holdover term
} from the Brown Act's early days. Closed sessions can only be used to discuss specified kinds
of business. Examples include meetings to discuss personnel evaluations or labor negotiations,
pending litigation, or real estate negotiations (See Sections 54956.7 through 54957 and Sections
54957.6 and 54957.8). Political sensitivity of an item is not a lawful reason for a closed session
1 discussion.
The Brown Act requires closed session business to be described on the public
agenda (Section 54954.5). And, there is a "bonus" of sorts for using prescribed language to
describe litigation closed sessions in that certain types of legal challenges are precluded. This
so-called "safe harbor" encourages many cities to use a very similar agenda format.
One of the big changes to the Brown Act in 1993 was to reverse the old rule that
closed session actions and votes generally did not have to be reported to the public. Now the
general rule is the legislative body must reconvene the public meeting after a closed session and
publicly report specified closed session actions and the vote taken, on those actions (Section
54957.1). There are limited exceptions for certain kinds of litigation decisions, and to protect
the victims of sexual misconduct or child abuse.
Contracts, settlement agreements or other documents that are finally approved or
adopted in closed session must be provided at the time the closed session ends to any person who
has made a -standing request for all documentation in connection with a request for notice of
meetings (typically members of the media) and to any person who makes a request within 24
hours of the posting of the agenda (Section 54957.1).
The Brown Act also includes detailed requirements describing when litigation is
considered "pending" for the purposes of a closed session (Section 54956.9). These new
requirements involve detailed factual determinations that will probably be made in the first
instance by legal counsel.
Recent case law affirms the confidentiality of attorney-client memorandums
(Roberts v. City of Palmdale, 5 Cal. 4th 363 (1993)). See also Section 54956.9(b)(3)(f) with
respect to privileged communications regarding pending litigation.
Closed sessions may be started in a location different from the usual meeting place
as long as the location is noted on the agenda and the public can be present when the -meeting
first begins. Moreover, it is advisable to allow an opportunity for public comment before
consideration of closed session matters.
Final action concerning the establishment of salaries or other benefits of individual
employees is not permitted during a closed session convened under "personnel" for the purpose
of appointing or evaluating those employes. The body may, however, discuss compensation
of individual employees with the body's negotiator in a closed session for "labor negotiations"
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for the purpose of giving direction to the negotiator. Also, in a closed session for labor
negotiations, the body may discuss the local agency's financial situation if necessary to give
direction to the negotiator.
G. Enforcement
There are both civil remedies and criminal misdemeanor penalties for Brown Act
violations. The civil remedies include injunctions against further violations, orders nullifying
any unlawful action, and orders determining the validity of any rule to penalize or discourage
the expression of a member of the legislative body (Section 54960.1). The provision relating
to efforts to penalize expression may come up in the context of measures by the legislative body
to censure or penalize one of its members for breaching confidentiality or other violations. This
part of the law is charged with difficult free speech and attomey-client privilege issues. The
tape recording of closed sessions is not required unless the court orders such taping after finding
a closed session violation (Section 54960).
Prior to a civil action being commenced, the complaining party must make a
written demand on the legislative body to cure or correct the action alleged to have been taken
in violation of Sections 54953, 54954.2, 54954.5, 54954.6, or 54956. The written demand must
be made within 90 days after the challenged action was taken in open session unless the violation
involves the agenda requirements under Section 54954.2 in which case the written demand must
be made within 30 days. The legislative body is required to cure or correct the challenged
action and inform the party who filed the written demand of its correcting actions or its decision
not to cure or correct within 30 days. Within 15 days after receipt of the written notice from
the legislative body, of if there is no written response, within 15 days after the 30 -day cure
period expires, a civil action must be commenced by the complaining party.
With respect to criminal penalties, a member of a legislative body will not be
criminally liable for a violation of the Brown Act unless the member intends to deprive the
public of information to which the member knows or has reason to know the public is entitled
under the Brown Act (Section 54959). This standard became effective in 1994 and is a different
standard from most criminal standards. Until it is applied and interpreted by a court, it is not
clear what type of evidence will be necessary to prosecute a Brown Act violation.
H. Conclusion
We hope that this overview of the Brown Act has been instructive and helpful.
In the event you have any questions regarding any provision of the law, please do not hesitate
to contact us.
RICHARDS, WATSON
8 GERSHON
Attorneys at --
SUMMARY OF THE PRINCIPAL CONFLICT OF INTEREST LAWS
THAT APPLY TO LOCAL AGENCY DECISIONS
Set forth below is a general summary of the relevant conflict of interest laws and
applicable conflict of interest regulations for certain typical decisions of a local agency. Also
included is a summary of certain laws prohibiting the receipt of gifts and honoraria.
This paper is general in nature and may not cover all aspects of an actual conflict
of interest .question. Thus it is not intended to constitute advice on specific conflict of interest
questions. In the event of an actual conflict of interest issue, you should contact your city
attorney for further advice.
I. GENERAL CONFLICT OF INTEREST LAWS THAT ARE APPLICABLE
TO DECISIONS OF AN AGENCY
There are three principal sets of conflict of interest laws that apply to decisions
of a local agency. Each of these three sets of conflict of interest laws is summarized below:
A. POLITICAL REFORIM ACT
• The California Political Reform Act (Government Code Section 81000 et sec_
"Act"') is the principal law in California governing conflicts of interest for public officials. Its
conflict of interest provisions are found at Government Code Section 87000 et sec . The Fair
Political Practices Commission ("FPPC") has interpreted the Act in a series of Regulations
found at 2 Cal. Code of Regulations, Section 18109 et. seg.'-'
The Act requires public officials to disqualify themselves from making,
participating in the making, or in any way attempting to use their official position to influence
a decision in which they know or have reason to know they have a financial interest (Section
87100).
An official has a financial interest in a decision if the decision will have a
reasonably foreseeable material financial effect, distinguishable from its effect on the public
generally, on the official, or on a member of his or her immediate family, or on certain listed
financial interests. Those listed financial interests are:
"(a) Any business entity in which the public official has a direct or indirect
investment worth One Thousand Dollars ($1,000) or more.
71 All statutory references are to the California Government Code unless otherwise
indicated. Regulations of the FPPC are referred to as "Regulation Section."
RICMAROS. WATSON
S GERSHON
nno��rn ai u.+
(b) Any real property in which the public official has a direct or indirect
interest worth One Thousand Dollars ($1,000) or more.
(c) Any source of income, other than gifts and other than loans by a commercial
lending institution in the regular course of business on terms available to the public
without regard to official status, aggregating two hundred fifty dollars ($250) or more
in value provided to, received by, or promised to the public official within 12 months
prior to the time when the decision is .made.
(d) Any business entity in which the public official is a director, officer, partner,
trustee, employee, or holds any position of management.
(e) Any donor of, or any intermediary or agent for a donor of, a gift or gifts
aggregating two hundred fifty dollars ($250) or more in value provided to,
received by, or promised to the public official within 12 months prior to the time
when the decision is made...." [The dollar amount in this paragraph (e) has
been increased to $290 by the FPPC pursuant to Regulation Section 18940.2]
(Section 87103.)
The Regulations of the FPPC provide interpretation and guidance to most of the
terms used in the Act as well as standards for determining if each element of the Act's
prohibitions have been satisfied. Some of the most significant regulations address standards for
determining if a decision has a material financial effect on a business entity (Regulation Section
18702.2), or on various types of interests in real property (Regulation Sections 18702.3 and
18702.4).
1. Decisions Affecting Business Entities
With respect to business entities, a decision's impact is regarded as materially
affecting the business entity based on its financial size. For large "Fortune 500" business
entities, a decision will be found to materially affect the business entity if the decision will affect
the gross revenues, expenses, assets or liabilities by $1,000,000 or more in a fiscal year or result
in an increase or decrease in expenses by $250,000 or more in a fiscal year (Regulation Section
18702.2 (a)). Lower thresholds apply for mid-size companies.
For small companies that have net tangible assets of less than $4,000,000 and pre-
tax income for the last fiscal year of less than $750,000 and net income from that same period
of less than $400,000, the decision is regarded as materially affecting the company if the
decision will result in an increase or decrease in gross revenues for a fiscal year of $10,000 or
more, or increase or reduce expenses by $2,500 or more in a fiscal year, or result in an increase
or decrease in the value of its assets or liabilities by $10,000 or more (Regulation Section
18702.2 (g)).
Certain other standards apply if the source of income is a non-profit entity
(Regulation Section 18702.5) or an individual (Regulation Section 18702.6).
BCHAROS, WATSON
3 GERSHON
An.r Y- at law
2. Decisions Affecting Real Property
With regard to whether a decision will have a material financial effect on an
official's interest in real property, the FPPC has adopted regulations setting forth standards that
must be satisfied to create a conflict of interest (2 Cal. Code of Regulations Section 18702.1 and
18702.3 (a)). If an official's property is the subject of a decision, the official is generally
considered to have a material financial effect on the official's interest in the property, without
regard to the effect of the decision on the value of the property. If the official's property is not
directly involved in the decision, there are four standards for determining whether the financial
effect on the official's interest is material.
First, if a decision involves construction of, or improvements to, streets, water,
sewer, storm drainage or similar facilities, and the official's real property will receive a new or
substantially improved service, the decision is regarded as having a material financial effect on
the official's property.
Second, if the official's property is within 300 feet of the boundaries of the
property subject to the decision, the decision is deemed to have a material financial effect on the
official's property, unless there are unique facts to indicate that the decision will have no
financial effect at all on the official's real property interest.
Third, if the official's real property is located outside a radius of 300 feet, but any
part of the property is located within a radius of 2,500 feet of the boundaries of the property
subject, to the decision, the decision is regarded as materially affecting the official's property if
the decision will have a reasonably foreseeable financial effect on the official's property of:
• (a) Ten thousand dollars ($10,000) or more on the fair market value of the real
property; or '
(b) Will affect the rental value of the property by $1,000 or more per 12 month
period.
Fourth, if the official's real property is located outside a radius of 2,500 feet of
the boundaries of the property subject to the decision, the decision is presumed to not have a
material financial effect on the value of the official's property unless:
(a) There are specific circumstances regarding the decision, its effect, and the
nature of the real property in which the official has an interest, which make it
reasonably foreseeable that the fair market value will be affected by $10,000 or
the rental value of the real property will be affected by $1,000 or more in a 12
month period; and
RICHARDS, WA -,SON
& GERSMON
(b) Either of the following apply:
(1) The effect will not be substantially the same as the effect upon at least 25
percent of all the properties which are within a 2,500 foot radius of the
boundaries of the real property in which the official has an interest; or
(2) There are not at least 10 properties under separate ownership within a
2,500 foot radius of the property in which the official has an interest.
3. The "Public Generally" Exception
Once it is determined that it is reasonably foreseeable that the decision will have a
material financial effect on a public official's financial interest or interests, the decision must be
evaluated under the "public generally" exception (Regulation Sections 18703.1 et sed.). The
public generally exception provides that even if the decision will have a reasonably foreseeable
material financial effect on the official's financial interest, disqualification is required only if the
effect on the public official is distinguishable from the effect on the financial interests of the
public generally or a significant segment of that public. The "public generally" is comprised
of the entire Jurisdiction of the City (In re Legan, 9 FPPC Ops.1 (1985)).
Pursuant to Regulation Section 18703, a governmental decision will affect a
significant segment of the public if the decision will affect ten percent or more of the City's
population, ten percent or more of all property owners in the City or fifty percent of all
businesses in the. City. Certain additional rules apply if the City has a population of less than
25,000 (Regulation Section 18703.1) or if the decision affects a predominant industry, trade or
profession in the City (Section 18703.2).
B. GOVERNMENT CODE SECTIOiti 1090
Government Section 1090 provides in relevant part:
"Members of the Legislature, state, county, district, judicial district, and city
officers or employees shall not be financially interested in any contract made by
them in their official capacity, or by any body or board of which they are
members...."
The prohibition contained in Section 1090 is intended to preclude a public official
from using his or her official position as a government officer or employee to obtain business
or financial advantage. The purpose of the prohibition is to remove the possibility of any
personal influence which might bear on an official's decision-making activities with respect to
contracts entered into by the governmental entity.
The prohibition contained in Section 1090 involves three principal components:
(1) the person subject to the prohibition must be regarded as an officer or employee of one of
the types of governmental entities listed; (2) the public officer or employee must be financially
RICHARDS. WATSON
b GERSHON
Altos , at U«
interested in the contract; and (3) the contract must be made either (i) by the public official in
his or her official capacity; or (ii) by the body or board of which he or she is a member.
Section 1090 is unlike the Political Reform Act and the Common Law Doctrine
Against Conflicts of Interest which require the public official with the conflict of interest to
abstain from participation in the decision. Section 1090 prevents the Agency from even entering
into the contract in which one of its officers or employees has a financial interest unless certain
exceptions apply.
The term "financially interested has been interpreted to include any direct
interest, such as that involved when "an officer enters directly into a contract with the body of
which, he is a member (Thompson v. Call, 38 Cal.3d 633, 645 (1985)). It has also been
interpreted to include indirect financial interests in a contract, where for example, a public
official would gain something financially by the making of the contract (Fraser-Yamor Agency,
Inc. v. Counry.of Del Norte, 68 Cal.App.3d 201 (1977)).
The third element is that the contract has to be "made" either by the official or
employee acting in his or her official capacity, or by any body or board of which the official is
a member. The term "made," as used in the statute has been interpreted broadly by the court. -
to encompass such elements in the making of a contract as preliminary discussions, negotiations,
compromises, reasoning, planning, drawing of plans or specifications and solicitation for bids
(Milbrae Association for Residential Survival v. City of Milbrae, 262 Cal.App.2d 222, 237
(1968;), City Council v. McKinley, 80 Cal.App.3d 204, (1978)).
There are two sets of exceptions to Section 1090. The first is Section 1091 which
specifies certain "remote interests." If an official merely has a remote interest, then the Agency
may enter into the contract as long as the official abstains from the participating in any way in
the decision. The second set of exceptions is found in Section 1091.5. These exceptions are
called the "non-interest" exceptions and provide that the interests which fall within those
exceptions are excluded from the scope of Section 1090 altogether.
If a violation of Section 1090 is found to have occurred, the contract is deemed
void (Section 1092). In addition, civil and criminal penalties could apply, and the public official
with the financial interest in the contract could be forever barred from holding public office
(Section 1097).
C. COMMON LAW DOCTRINE AGAINST CONFLICTS OF
INTEREST
The common law doctrine against conflicts of interest is the courts' expression
of thepublic policy against public officials using their official positions for their private benefit
(see, Terry v. Bender, 143 Cal.App.2d 198, 206 (1956)). This doctrine has been primarily
applied to require a public official to abstain from participation in cases where the public
official's private financial interest may conflict with his or her official duties (64
Ops.Cal.Atty.Gen. 795, 797 (1981)).
RICHARDS, WATSON
S GERSHON
Aho.nrys at U.+
By virtue of holding public office, an elected official "is impliedly bound to
exercise the powers conferred on him with disinterested skill, zeal, and diligence and primarily
for the benefit of the public." (Noble V. City of Palo Alto, 89 Cal.App. 47, 51 (1928)). An
elected official bears a fiduciary duty to exercise the powers of office for the benefit of the
public and isnot permitted to use those powers for the benefit of a private interest. (Id; see also
Nussbaum v. Weeks, 214 Cal.App.3d 1589, 1597-98 (1989)).
This doctrine is an independent basis from the Political Reform Act for requiring
Agency officials and employees to abstain from participating in Agency discussions or decisions
involving matters in which they have a financial interest. Violation of the common law duty to
avoid conflicts of interest can constitute official misconduct and result in a loss of office. See
Nussbaum, 214 Cal.App.3d at 1597-98.)
II. LAWS THAT PROHIBIT CERTAIN GIFTS, HONORARIA AND LOANS
E The conflict of interest laws set forth above do not prohibit an official from
having an 'interest in a business or real property, they merely prevent the official from
participating in a decision that would materially affect those interests.
However, the State Legislature has taken a different approach with regard to
certain gifts, honoraria and loans. State law has been amended to preclude elected local officials
from receiving certain gifts, honoraria and loans. These prohibitions apply whether or not the
source of the gift, honorarium or loan is, or will ever be, affected by a decision of the official's
agency. Additionally, these limitations apply to certain other designated local officials, including
planning commissioners.
A. Limitations on the Receipt of Gifts
1. General Gift Limitation - Government Code Section 89503 (a) provides:
"No elected state officer, elected officer of a local government
agency, or other individual specified in Section 87200 [includes
Planning Commissioners] shall accept gifts from any single source
in any calendar year with a total value of more than two hundred
ninety dollars [M." (Emphasis added).
A similar limitation prohibits a city employee designated in a conflict of interest
code from accepting gifts from a single source totaling more than $250 in value
in any calendar year, if the gifts would be required to be reported on his or her
statement of economic interests. [Section 89503(c)]
2. Biennial Gift Limit Adjustment = The Political Reform Act authorizes the FPPC
to make an inflationary adjustment of the limitations set forth in Section 89503
every two years. [§ 89503(f).] The most recent adjustment became effective on
January 1, 1997, and the gift limitation is now $290.
RICHARDS, WATSOH
S GEAS5 CN
3. Exceptions to Gifts and Gift Limitations
a. Basic Exceptions - FPPC Regulation Section 18942 is summarized below:
None of the following is a gift and none is subject to any limitation on
gifts:
(1) Informational Materials - such as books, calendars, videotapes,
and free or discounted admission to educational conferences that are
provided to assist the official in the performance of official duties.
(2) Returned Gifts - A gift that is not used and that, within 30 days
after receipt, is returned or donated pursuant to California Code of
Regulations, Title 2, Section 18943, or for which reimbursement is paid
pursuant to Section 18943.
(3) Family Gifts - A gift from an individual's spouse, child, parent,
grandparent, grandchild, brother, sister, parent -in-law, brother-in-law,
sister-in-law, nephew, niece, aunt, uncle, or first cousin or the spouse of
any such person, unless the donor is acting as an agent or intermediary for
any other person.
(4) Campaign Contributions - Please note, however, campaign
contributions are required to be reported and are subject to other
limitations of Proposition 208.
(5) Inherited Money or Property - Any devise oy inheritance.
(6) Awards - A personalized plaque or trophy with an individual value
of less than two hundred fifty dollars ($250).
(7) Home Hospitality - Hospitality (including food, beverages, or
occasional lodging) provided to an official by an individual in his or her
home when the individual or a member of the individual's family is
present.
(8) Presents on Personal or Family Occasions - Presents exchanged
between an official and an individual, other than a lobbyist, on holidays,
birthdays, or similar occasions provided that the presents exchanged are
not substantially disproportionate in value.
(9) Admission and Incidentals at Speaking Events - Free admission,
and refreshments and similar non-cash nominal benefits provided to an
official during the entire event at which the official gives a speech,
participates in a panel or seminar, or provides a similar service, and actual
intrastate transportation and any necessary lodging and subsistence
R CHARDS, WATSON
& GE.RSHON
provided directly in connection with the speech, panel, seminar, or
service, including but not limited to meals and beverages on the day of the
activity. These items are not payments and need not be reported by any
official.
(10) Campaign Travel - The transportation, lodging, and subsistence
provided in direct connection withcampaign activities,' including
attendance at political fundraisers.
4. Gifts to Your Family - FPPC Regulation Section 18944 provides (in summary):
a. Gifts given directly to members of an official's immediate family are not
gifts to the official unless used or.disposed of by the official or given by the
recipient member of the official's immediate family to the official for disposition
or use at the official's discretion.
b. Gifts delivered by mail or other written communication are given directly
to members of the official's immediate family if the family members' names or
familial designations (such as "spouse") appear in the address on the envelope or
in the communication tendering or offering the gift, and the gift is intended for
their use or enjoyment.
C. A gift given to the official, but designated for the official and spouse or
family, is a gift to the official if the official exercises discretion and control over
who will actually use the gift.
d. If the official enjoys direct benefit from a single gift, as well as members
of the official's family, the full value of the gift is attributable to the official.
5. Tickets to Political and Charitable Fundraisers - Regulation Section 18946.4
provides (in summary):
a. Nonprofit Fundraiser - Except as provided in subdivision (b), a ticket to
a fundraising event for a nonprofit, tax-exempt organization (that is not a political
campaign committee) shall be valued as follows:
(1) Where the event is a fundraising event for a nonprofit organization,
and the ticket clearly states that a portion of the ticket price is a donation
to the organization, then the value of the gift is the face value of the ticket
or admission reduced by the amount of the donation.
(2) If the ticket has no stated price or no stated donation portion, the
value of the gift is the fair market value of any food, beverage, or other
tangible benefits provided to each attendee.
RIOHAROS. WATSON
& GERSRON
ARorney� at U.+
aa.�
b. Fundraiser fora religious, charitable, scientific, literary or educational
organization - Where the event is a fundraising event for an organization exempt
from taxation under Section 501(c)(3)) of the Internal Revenue Code, the ticket or
other admission privilege has no value.
c. . Political Fundraiser - Where the event is a fundraising event for a
campaign committee or candidate, the ticket or other admission privilege has no
value.
6. Prizes and Awards from Competitions - Regulation Section 18946.5 provides (in
summary):
A prize or an award received shall be reported as a gift unless the prize or award
is received in a bona fide competition not related to the recipient's status as an
official or candidate. A prize or award which is not reported as a gift shall be
reported as income.
7. Certain Gifts of Travel Exempt from Gift Limitations
a. Travel In Connection With Speeches, Panels, and Seminars.
(1) A payment made for travel, including actual transportation and
related lodging and subsistence, is not subject to the prohibitions
or limitations on honoraria and gifts if:
(A) The travel is reasonably related to a legislative or
governmental purpose, or to an issue cf state, national, or
international public policy, and
(B) The travel, including actual transportation and related
lodging and subsistence, is in connection with a speech
given by the official or candidate; the lodging and
subsistence expenses are limited to the day immediately
preceding, the day of, and the day immediately following
the speech; and the travel is within the United States.
b. Travel Provided by Governmental Entity or Charity A payment made for
travel, including actual transportation and related lodging and subsistence,
is not subject to the prohibitions or limitations on honoraria and gifts if:
(1) The travel is reasonably related to a legislative or governmental
purpose, or to an issue of state, national, or international public policy;
and
RICHAROS, WATSON
& GERSHON
Attorney, at Law
(2) The payment is provided by a government, a governmental agency,
a foreign government, a' governmental authority, a bona fide public or
private educational institution, defined in Section 203 of the Revenue and
Taxation Code, or by a nonprofit charitable or religious organization that
is exempt from taxation under Section 501(c)(3) of the Internal Revenue
t'
Code, or by a person that is domiciled outside the United States and that
substantially satisfies the requirements for tax exempt status under
Section 501(c)(3) of the Internal Revenue Code.
C. Travel Paid From Campaign Funds - A payment made for transportation
and necessary lodging and subsistence, which payment is made from
campaign funds as permitted by Government Code Section 89513, or
which is a contribution, is not an honorarium or a gift.
d. Travel Provided By Official's Agency - A payment made for
transportation and necessary lodging and subsistence, which payment is
made by the agency of an official, is not an honorarium or a gift.
e. Travel In Correction With Bona Fide Business - A payment made for
transportation, lodging, and subsistence, which payment is reasonably
necessary in connection with a bona fide business trade, or profession, and
which satisfies the criteria for federal income tax deductions for business
expenses specified in Sections 162 and 274 of the Internal Revenue Code,
is not an honorarium or gift unless the sole or predominant activity of the
business,trade or profession is making speeches.
B. Prohibitions on Receipt of Honoraria
1. Basic Prohibition - Government Code Section 89502 provides that no elected
officer of a local government agency nor any official listed in Government Code
Section 87200 (which includes planning commissioners) shall accept an
honorarium.
2. An "honorarium" means any payment made in consideration for any speech
given, article published, or attendance at any public or private conference,
convention, meeting, social event, meal, or like gathering.
3. Summary of Exceptions to Prohibition on Honoraria
a. Earned Income Exception - "Honorarium" does not include income
earned for personal services if:
(1) The services are provided in connection with an individual's
business or the individual's practice of or employment in a bona
fide business, trade, or profession, such as teaching, practicing
RICHARDS, WA -SON
& GERSHON
�' - ARorneya at 1�.+
sa
;t
law, medicine, insurance, real estate, banking, or building
contracting; and `
(2) The services are customarily provided in connection with the
business, trade, or profession.
b. Information Materials - "Honorarium" does not include information
materials such as books, calendars, videotapes, or free or discounted
admission to educational conferences that are provided to assist the official
in the performance of official duties.
C. Family Payments - "Honorarium" does not include a payment received
from one's spouse, child, parent, grandparent, grandchild, brother, sister,
parent -in-law, brother-in-law, sister-in-law, nephew, niece, aunt, uncle or
first cousin or the spouse of any such person. However, a payment from
any such person is an honorarium if the donor is acting as an agent or
intermediaryfor any person not listed in"this paragraph.
d. Campaign contributions - However, campaign contributions are required
to be reported and are subject to the Iimitations of Proposition 208.
e. Personalized Plaque or Trophy - Honorarium does not include a
personalized plaque or trophy with an individual value of less than two
hundred and fifty dollars ($250).
f. Admission and Incidentals at Place of Speech - "Honorarium" does not
include free admission, refreshments and similar non-cash nominal
benefits provided to an official during the entire event at which the official
gives a speech, participates in a panel or seminar, or provides a similar
service, and actual intrastate transportation and any necessary lodging and
subsistence provided directly in connection with the speech, panel,
seminar, or service, including but not limited to meals and beverages on
the day of the activity.
g. Incidentals at Private Conference - "Honorarium" does not include any
of the following items, when provided to an individual who attends any
public or private conference, convention, meeting, social event, meal, or
like gathering without providing any substantive service:
(1) Benefits, other than cash, provided at the conference, convention,
meeting, social event, meal, or gathering.
(2) Free admission and food or beverages provided at the conference,
convention, meeting, social event, meal, or gathering.
RICHAROS, WATSON
& GERS.ON
Ano ".., tom.+
h. Travel That Is Exempt From Gifts - Any payment made for
transportation, lodging and subsistence that is exempted by the gift
exceptions.
C. Prohibitions on Receipt of Certain Types of Loans
1.. Prohibition on Loans Exceeding $250 from Other City Officials, Employees,
Consultants and Contractors - Effective January 1, 1998, elected officials and
other city officials specified in Section 87200 (Planning Commissioners, City
Managers, City Treasurers, City Attorneys, etc.,) may not receive a personal loan
that exceeds $250 at any given time from an officer, employee, member or
consultant of your city or any local government agency over which your city
exercises direction and control (Section 87460 (a) and (b)). In addition, elected
officials and other city officials specified in Section 87200 may not receive a
personal loan that exceeds $250 at any given time from any individual or entity
that has a contract with your city or any agency over which your city exercises
direction and control (Section 87460 (c) and (d)).
2. Requirement for Loans of $500 or More from Other Persons and Entities to be
in Writing - Elected local officials may not receive a personal loan of $500 or
more unless the loan is made in writing and clearly states that terms of the loan.
The loan document must include the names of the parties to the loan agreement,
as well as the date, amount, interest rate, and term of the loan. The loan
document must also include the date or dates when payments are due and the
amount of the payments (Section 87461).
3. Exceptions to Loan Limits and Documentation Requirements - The following
loans are not subject to the limits and documentation requirements specified in
subparts 1 and 2 above:
a. Loans received from banks or other financial institutions, and retail or
credit card transactions, made in the normal course of business on terms
available to members of the public without regard to official status.
b. Loans received by an elected officer's or candidate's campaign committee.
C. Loans received from the elected or appointed official's spouse, child,
parent, grandparent, grandchild, brother, sister, parent -in-law, brother-in-
law, sister-in-law, nephew, niece, aunt, uncle, or first cousin, or the
spouse of any such person unless he or she is acting as an agent or
intermediary for another person not covered by this exemption.
lei
Loans made, or offered in writing, prior to January 1, 1998.
RICHARDS, WATSON
iL GERSHON
r:
4. Loans that Become Gifts Subject to the Gift Prohibition - Under the following
circumstances, a personal loan received by any public official (elected and other
officials specified in Section 87200, as well as any other local government official
or employee required to file a Statement of Economic Interest) may become a gift
and subject to gift and reporting limitations:
a. If the loan has a defined date or dates for repayment and has not been
repaid, the loan will become a gift when the statute of limitations for
filing an action for default has expired.
b. If the loan has no defined date or dates for repayment, the loan will
become a gift if it remains unpaid when one year has elapsed from the
later of:
(1) the date the loan was made;
(2) the date the last payment of $100 or more was made on the
loan; or
(3) the date upon which the - official has made payments
aggregating to less than $250 during the previous 12 -month
period.
5. Exceptions -- Loans that Do Not Become Gifts - The following loans will not
become gifts to an official:
a. A loan made to an elected officer's or candidate's campaign committee.
b. A loan on which the creditor has taken reasonable action to collect the
balance due.
C. A loan described above on which the creditor, based on reasonable
business considerations, has not undertaken collection action. (However,
except in a criminal action,'the creditor has the burden of proving that the
decision not to take collection action was based on reasonable business
considerations.)
d. A loan made to an official who has filed for bankruptcy and the loan is
ultimately discharged in bankruptcy.
e. A loan that would not be considered a gift as outlined in Part III (A)(3)
of this Summary (e.g. loans from family members) (Section 87462).
RICNAROS, WATSON
& GERSHON
AR.. " a L_
We hope that this material is helpful to you. However, please remember that this
general introduction to conflict of interest laws and regulations does not cover every potential
decision of the City in which conflict of interest laws are implicated. The application of these
laws must be analyzed on a case by case basis in'light of each Councilmember's circumstance.
Thus, while certain generalizations can be drawn, it is important to . seek conflict of interest.
advice from our office whenever questions arise.
0962670
RICHARDS, WATSON
& GERSHON
Ar. -Y.
SUMMARY OF THE MAJOR PROVISIONS AND REQUIREMENTS
OF THE RALPH M. BROWN ACT
The Ralph M. Brown Act is California's "sunshine" law for local government.
It is found in the California Government Code beginning at Section 54950. In a nutshell, it
requires local government business to be conducted at open and public meetings, except in
certain limited situations. The Brown Act is based upon state policy that the people must be
informed so they can keep control over their government. In 1993, the Legislature made
sweeping changes to the Brown Act. A few additional changes to the law were enacted in 1997.
This paper briefly summarizes and discusses the major provisions of the Brown
Act and incorporates the significant changes to the law enacted in 1993 as well as those changes
enacted in 1997.
A. Application of the Brown Act to "Legislative Bodies"
The requirements of the Brown Act apply to "legislative bodies" of local
governmental agencies. The term "legislative body" is defined to include the governing body
of a local agency and any commission, committee, board or other body of the local agency,
whether permanent or temporary, decisionmaking or advisory, that is created by formal action
of a legislative body (Section 54952).
The Brown Act also applies to so-called "standing committees," even if they
consist solely of less than a quorum of the council or other legislative body. Some common
examples include city finance, budget, or similar policy subcommittees of the legislative body
that have either some "continuing subject matter jurisdiction" or a meeting schedule fixed by
formal action of the legislative body.
However, the law does not apply to ad hoc committees that are less than a quorum
of the legislative body, provided they are composed solely of members of the legislative body
and provided that these ad hoc committees do not have some "continuing. subject matter
jurisdiction," and do not have a meeting schedule fixed by formal action of a legislative body.
Thus, ad hoc committees would generally serve only a limited or single purpose; they are not
perpetual and they are dissolved when their specific task is completed. Standing committees,
on the other hand, exist to make routine and regular recommendations on a specific subject
matter; they survive resolution of any one issue or matter, and are a regular part of the
governmental structure.
Some private entity governing bodies may fall under the requirements of the
Brown Act if either of the following applies: (i) the private entity is created by the elected
legislative body to exercise lawfully delegated authority, or (ii) the private entity receives funds
from the local agency and the private entity's governing body includes a full voting member of
the legislative body who was appointed by the legislative body (Section 54952).
RCHAROS. WATSON
& GERSHON
ARwneya al Uw
The Brown Act also applies to persons who are elected to serve as members of
a legislative body of a local agency who have not yet assumed the duties of office (Section
54952.1).
B. Meetings
The central provision of the Brown Act provides that all "meetings" of a
legislative body must be open and public. The Brown Act contains a definition of the term
"meeting" (Section 54952.2). It is a very broad definition that encompasses almost every
gathering of a majority of members. However, it is followed by six specific types of gatherings
that are not subject to the Brown Act.
The definition of meeting includes:
"Any congregation of a majority of members of a legislative body at the same
time and place to hear, discuss, or deliberate upon any item that is within the
subject matter jurisdiction of the legislative body or the local agency to which it
pertains."
In plain English, this means that a meeting is any gathering of a majority of
members to hear or discuss any item of city business or potential city business.
Neither a decision, nor participation in a discussion, is necessary to turn a
gathering into a Brown Act meeting. Unless a gathering of a majority of members falls within
one of the exceptions discussed below, if a majority of members are in the same room and
merely listen to a discussion of city business, then they will be participating in a Brown Act
meeting that requires notice, an agenda, and a period for public comment
As noted above, there are six exceptions to this rule. We refer to the exceptions
as: (1) the individual contact exception; (2) the seminar and conference exception; (3) the
community meeting exception; (4) the other legislative body exception; (5) the social or
ceremonial occasion exception; and (6) the standing committee exception.
1. The individual contact exception
Conversations, whether in person, by telephone or other means, between a
member of a legislative body and any other person does not constitute a meeting (Section
54952.2(c)(1)). However, such contacts may constitute a "serial meeting". in violation of the
Brown Act if the individual also makes a series of individual contacts with other members of the
legislative body for the purpose of "developing a collective concurrence." For an explanation
of what constitutes a "serial meeting," see part C of this paper.
RICHARDS, WATSON
& GERSHO"
AtI.1-- at la-
2. The seminar and conference exception
The attendance by a majority of members at a seminar or conference or similar
gathering is also generally exempted from Brown Act requirements (Section 54952.2
This exception, for example, would apply to attendance at a California League of Cities seminar.
However, in order to qualify under this exception, the seminar or conference must be open to
the public. In other words, the meeting must be available to the public on the same terms that
it is available to members of the body. Therefore, if the seminar is free to members, it must
also be free to the public. If members are required to pay an admission fee, then the public may
also be required to pay a fee. Additionally, the seminar or conference must be limited to issues
of ;general interest to the public or to cities. Finally, this exception will not apply to a
conference or seminar if a majority of members discuss among themselves items of specific
business relating to their own city, except as part of the program.
3. The community meeting exception
The community meeting exception allows members to attend neighborhood
meetings, town hall forums, chamber of commerce lunches or other community meetings at
which issues of local interest are being discussed (Section 54952.2(c)(3). However, members
must observe several rules that limit this exception. First, in order to fall within this exception,
the community meeting must be "open and publicized." Therefore, for example, attendance at
a homeowners association meeting that is limited to the residents of a particular development and
only publicized among members of that development would not qualify for this exemption.
Also, as with the other exceptions, a majority of members cannot discuss among themselves
items of city business, except as part of the program.
4. The other legislative body exception
This exception allows a majority of members of any legislative body to attend
meetings of other legislative bodies of the city or of another jurisdiction (such as the County or
another city) without treating such attendance as a meeting of the body (Section 54952.2(c)(4)).
Of course, as with other meeting exceptions, the members are prohibited from discussing city
business among themselves except as part of the scheduled meeting.
5. The social or ceremonial occasion exception
As has always been the case, Brown Act requirements do not apply to attendance
by a majority of members at a purely social or ceremonial occasion provided that a majority of
members do not discuss among themselves matters of public business (Section 54942.2(c)(5)).
RIOHARDS, WATSON
$ GERSHON
,Ro E sal Law
6. The standing committee exception
This exception allows members of a legislative body, who are not members of a
standing committee of that body, to attend an open and noticed meeting of the standing
committee without making the gathering a meeting of the full legislative body itself. However,
under this exception, the members of the legislative body who are not members of the standing
committee may only attend as "observers" (Section 54952.2(e)(6)). This means that members
of the legislative body who are not members of the standing committee should not speak at the
meeting, sit in their usual seat on the dias or otherwise participate in the standing committee's
meeting. However, if the attendance of the members of the legislative body who are not
standing committee members would not create a gathering of a majority of the legislative body,
then the non -standing committee members would not be limited to just observing the proceedings
and could speak or otherwise participate to the extent authorized by the committee or as
provided in the local agency's own rules of procedure.
Other than in situations which fall into certain exceptions, all meetings must occur
within the boundaries of the local governmental agency (Section 54954). Exceptions to this rule
include meeting outside the jurisdiction to comply with a court order or attend a judicial
proceeding, to inspect real or personal property, to attend a meeting with another legislative
body in that other body's jurisdiction, to meet with a state of federal representative to discuss
issues affecting the local agency over which the other officials have jurisdiction, to meet in a
facility outside of, but owned by, the local agency, or to visit the office of the local agency's
legal counsel. These are meetings and in all other respects must comply with agenda and notice
requirements.
"Teleconferencing" may be used as a method for conducting meetings whereby
members of the body may be counted towards a quorum and participate Pully in the meeting
from remote locations within the city (Section 54953(b)). Under rules enacted in 1997 the
following requirements apply: the remote locations may be connected to the main meeting
location by telephone, video or both; the notice and agenda of the meeting must identify the
remote locations; the remote locations must be posted and accessible to the public; all votes must
be by roll call; and the meeting must in all respects comply with the Act, including participation
by members of the public present in remote locations.
C. Serial Meetings
In addition to regulating all gatherings of a majority of members of a legislative
body, the Brown Act also addresses individual contacts between members of legislative bodies.
On the one hand, the Brown Act specifically states that nothing in the Act is intended to impose
Brown Act requirements on individual contacts or conversations between a member of a
legislative body and any other person (Section 54952.2(c)(1)). However, the Brown Act also
has been amended to prohibit a series of such individual contacts if they result in a "serial
meeting" (Section 54952.2(b)).
A serial meeting is a series of meetings or communications between individuals
so that even though a. majority of members never gather in a room at the same time, ideas are
RICHAROS, WATSON
& GERSrON
Art—eya at u..
exchanged among the majority through either one or more persons acting as intermediaries or
through use of a technological device (such as a telephone answering ne, or computer e-
machi
mail or voice mail).
Commonly, serial meetings are conducted in one of two ways; either a staff
member or member. of the body will individually contact a majority of members of a body to
share ideas among the majority or, without the involvement of staff, member A will call member
B and member B will call member C and so on to share ideas among a majority.
Traditionally, the California Attorney General and many city attorneys advised
that serial meetings were not permitted under the Brown Act. The 1993 amendments to the
Brown Act specifically prohibited such meetings.
Of course, the prohibition against serial meetings does not prohibit all
communication between individuals regarding city business. The Brown Act only prohibits the
use of serial meetings for the purpose of "developing a collective concurrence" concerning an
issue. However, this phrase should not be interpreted too narrowly. Merely the exchange of
information or discussion of ideas about a matter of city business will probably be interpreted
to be an effort to develop a collective concurrence. " In fact, we know that representatives of
newspaper organizations and staff members in the Attorney General's office interpret the
prohibition against serial meetings to prohibit any substantive briefings of members of a
legislative body by staff. We do not subscribe to such a conservative interpretation of the Brown
Act. We believe that such an interpretation is not practical and is not necessary to meet the
intent of the Act.
HOWever, we recommend the following guidelines be used to assure that
individual contacts do not inadvertently result in a collective concurrence among a quorum in
violation of the serial meeting prohibition described above. These rules of conduct apply only
when a majority of a legislative body is involved in a series of contacts or communications. The
types of contacts considered include contacts with local agency staff members, constituents,
developers, lobbyists and other members of the legislative body.
1 . Contacts with staff.
Stair can inadvertently become a conduit among a majority of a legislative body
in the course of providing briefings on items of local agency business. To underscore the
seriousness of this concern, the Attorney General take's the position that individual staff briefings
of a majority of the members of a body on substantive issues are per se illegal seriatim meetings,
and hence, are not permitted. While we do not agree with this highly restrictive interpretation,
there is no doubt that staff briefings can too easily lead to collective concurrence if not handled
carefully. To avoid a developing a collective concurrence by way of a staff briefing:
a. Individual briefings of a majority of members of a legislative body
should be unidirectional, in that information should flow from staff to the member and the
member's participation should be limited to asking questions and acquiring information.
Otherwise, multiple members could separately give staff direction thereby causing staff to shwpe
RICHARDS, WATSON
& GERSHON
Artorn�ys at l.aw
or modify its ultimate recommendations in order to reconcile the views of the various members,
resulting in a collective concurrence.
b. Members should not ask staff to describe the views of other
members of the body, and staff should not volunteer those views if known to them.
C. Staff may present its viewpoint to the member, but should not ask
for the member's views and the member should avoid providing his or her views unless it is
absolutely clear that the staff member is not discussing the matter with a quorum of the
legislative body.
2. Contacts with constituents, developers and lobbyists.
As with staff, a constituent or lobbyist can also inadvertently become an
intermediary among a majority of a legislative body causing a violation of the Brown Act by
sharing thoughts among a majority of members through a series of individual contacts. Many
constituents' unfamiliarity with the requirements of the Act aggravate this potential problem
because they may believe that a member of a legislative body should in the ordinary course of
performing his or her public duty commit to a position in a private conversation in advance of
a meeting. To avoid development of a collective concurrence in constituent conversations:
a. First, state the ground rules "up front." Ask if the constituent has
or intends to talk with other members of the body about the same subject; if so, make it clear
that the constituent should not disclose the views of other members during the conversation.
b. Explain to the constituent that you will not ri7ake afinal decision
on a matter prior to the meeting. For example: "State law prevents me from giving you a
commitment outside a meeting. I will listen to what you have to say and give it consideration
as I make up my mind."
C. Do more listening and asking than expressing opinions.
d. If you disclose your thoughts about a matter, counsel the constituent
not to share them with other members of the legislative body.
3. Contacts with fellow members of the same legislative body.
Direct contacts concerning local agency business with fellow members of the same
legislative body, whether through face-to-face or telephonic conversations, notes or letters,
electronic' mail or deputies or other staff members, is the most obvious means by which an
illegal serial meeting can occur. This is not to say that a member of a legislative body is
precluded from discussing items of agency business with another member of the body outside
of a meeting; as long as the communication does not involve a quorum of the body, no meeting
has occurred. There is, however, always the risk that one participant in the communication will
disclose the views of the other participant to a third or fourth member, thereby creating the
possibility of achieving a collective concurrence outside a public meeting. Therefore, avoid
RIGHAFO5, WATSON
& GERSHON
An.'n"- ii L--
discussing local agency business with a quorum of the body or communicating the views of other
members outside a meeting and this problem will not arise.
These suggested rules of conduct may seem unduly restrictive and impractical,
and may make acquisition of important. information more difficult or time-consuming.
Nevertheless, following them will help assure that your conduct comports with the Brown Act's
goal of achieving open government. If you have questions about compliance with the Act in any
given situation, you should ask them of your city attorney; adherence to the above guidelines
is not a substitute for securing advice from your legal advisor.
D. Notice and Agenda Requirements
Two key provisions of the Brown Act which insure that the public's business is
conducted openly are the requirements that legislative bodies post agendas prior to their meetings
(Sections 54954.2, 54955 and 54956) and that no action or discussion may occur on items or
subjects not listed on the posted agenda (Section 54954.2). Limited exceptions to the rule
against discussing or taking action not on a posted agenda are included in the Brown Act and
are discussed in the next part of this paper.
Meeting agendas must contain a brief general description of each item of business
to be: transacted or discussed at the meeting (Section 54954.2(a)). The description need not
exceed 20 words. Each agenda must be posted in a place that is freely accessible to the public.
AID
genda posting requirements differ depending on the type of meeting to be conducted.
Legislative bodies, except advisory committees and standing committees, are required to
establish a time and place for holding regular meetings (Section 54954(a)).
If the meeting is a regular meeting of the legislative body, the agenda must be
posted 72 hours in advance of the meeting (Section 54954.2(a)). For special meetings, the
"call of the meeting and the agenda must be posted at least 24 hours prior to the meeting
(Section 54956). Each member of the legislative body called to a special meeting must
personally receive written notice of the meeting either by personal delivery or by "any other
means" (such as fax, electronic mail or U.S. mail) at least 24 hours before the time of the
special meeting, unless they have previously waived receipt of written notice. Members of the
press (including radio and television stations) and other members of the public can also request
written notice of special meetings.
Notices for adjourned meetings must be posted within 24 hours after the previous
meeting was adjourned on the door of the meeting chambers where the previous meeting
occurred (Section 54955). If the adjourned meeting occurs more than five days after the prior
meeting, a new agenda for that adjourned meeting must be posted 72 hours in advance of that
adjourned meeting (Section 54954.2(b)(3)).
The Brown Act requires the local agency to mail the agenda, the full agenda
packet, or both sets of documents, to any person making a written request no later than the time
the agenda is posted or is delivered to the members of the body, whichever is earlier. The
agency may charge a fee to recover its costs of copying and mailing. Any person may make a
RIDHARDS. WATSON
8 GERSHON
A. "I i[ Uw
standing request to receive these materials, in which event the request must be renewed annually.
Failure by any requestor to receive the agenda does not constitute grounds to invalidate any
action taken at a meeting (Section 54954.1).
E. Public Participation
1. Regular Meetings
The Brown Act mandates that agendas for regular meetings allow for two types
of public comment periods. The first is general audience comment periods, which are those
portions of the agenda where the public can comment on any item of interest that is within the
subject matter jurisdiction of the local agency. This general audience comment period may come
at any time during a meeting (Section 54954.3).
The second type of public comment period is the specific comment period
pertaining to items on the agenda. The Brown Act requires the legislative body to allow these
specific comment periods on agenda items to occur prior to or during the City Council's
consideration of that item (Section 54954.3).
Some public entities accomplish both requirements by placing a general audience
comment period at the beginning of the agenda where the public can comment on agenda and
non -agenda items. Other public entities provide public comment periods as each item or group
of items comes up on the agenda, and then leave the general public comment period to the end
of the agenda. Either method is permissible. Caution should be taken with consent calendars.
The body should have a public comment period for consent calendar items before the body acts
on the consent calendar, unless it permits members of the audience to "pull" items from the
calendar.
The body may preclude public comments on an agenda item in one situation.
That is where the item was considered by a committee of the body which held a meeting where
public comments on that item were allowed. So, if the body has standing committees (which
I
re required to have agendized and open meetings with an opportunity for the public to comment
on items on that committee's agenda) then when the item comes before the full body the body
may choose not to take additional public comments on that item. However, if the version
presented to the body is different from the version presented to, and considered by, the
committee, the public must be given another opportunity to speak on that item at the meeting
of the full body (Section 54954.3).
2. Public Comments at Special Meetings
The Brown Act requires that agendas for special meetings provide an opportunity
for members of the public to directly address the body concerning any item listed on the agenda
prior to the body's consideration of that item (Section 54954.3). Therefore, for a special
meeting, the city council must allow a period for public comments on items on the agenda but,
unlike regular meetings, the city council does not- have to allow the public to comment on any
non -agenda matter.
F 1CHARDS. WATSON
S GERSHON
Ano,^Ms at taw
3. Limitations on the Length and Content of the Public's Comments
A legislative body may adopt reasonable regulations limiting the total amount of
time allocated to each person for public testimony. For example, typical time limits restrict
speakers to three or five minutes. A legislative body may also adopt reasonable regulations
limiting the total amount of time allocated for public testimony on legislative matters, such as
a zoning ordinance or other regulatory ordinance (Section 54954.3(b)). However, we do not
recommend setting total time limits per item for any quasijudicial matter such as a land use
application or business license or permit application hearing. Application of a total time limit
to a quasi-judicial matter could result in a violation of the due process rights of those who were
not able to speak to the body during the time allotted.
The Act precludes the body from prohibiting public criticism of the policies,
procedures, programs, or services of the agency or the acts or omissions of the city council
(Section 54954.3 (c)). This does not mean that a member of the public may say anything. If
the topic of the public's comments is not within the subject matter jurisdiction of the agency,
the member of the public can be cut off.
The body also may adopt reasonable rules of decorum for its meetings which
preclude a speaker from disrupting, disturbing or otherwise impeding the orderly conduct of
public meetings. Also, the right to publicly criticize a public official does not include the right
to slander that official. Slander is where the speaker makes a knowing falsehood regarding the
official or states something in reckless disregard for the truth. It will be difficult to determine
if the statement is slander at the meeting unless the body knows the speaker's actual intent and
knows what the speaker knew when he or she made the statement. While slander may be proved
in court, it may be nearly impossible for the body to be sure it was slander on the spot. So,
while the public does not have a right to make slanderous comments in a' public meeting, it
becomes risky for the body to determine it to be slander and to cut the person off from speaking
because of such a statement.
The use of profanity may be a basis for stopping a speaker. However, it will
depend upon what profane words or comments are made and the context of those comments in
determining whether it rises to the level of impeding the orderly conduct of a meeting. While
terms such as "damn" and "hell" may have been disrupting words thirty years ago, today's
standards seem to accept a stronger range of foul language. Therefore, if the chair is going to
rule someone out of order for profanity, the chair should make sure the language is truly
objectionable and that it causes a disturbance or disruption in the proceeding before the chair
cuts off the speaker.
4. Discussion of Non -Agenda Items
For many years, the Brown Act provided that a legislative body could not take
any action on items not appearing on the posted agenda. Some public law attorneys interpreted
this as meaning that a body could talk about something but not reach a collective consensus as
to a particular course of action until the item was brought back on a subsequent agenda. Other
practitioners took the position that as soon as discussion occurred on that non -agenda item, then
RICHARDS, WATSON
& GERSHON
Aft— at Lew
the process for coming to a consensus on that item started, which was a violation of the Brown
Act. Thus, under the stricter interpretation, no discussion of a non -agenda item should occur.
This divergence of interpretation was resolved in the 1993 amendments to the
Brown Act. Under -the current law, a body may not take action or discuss any item that does
not appear on the posted agenda (Section 54954.2).
There are two "urgency" exceptions to this rule. The first is if the body
determines that an emergency situation exists. The term "emergency" is limited to work
stoppages or crippling disasters (Section 54956.5). The second exception is if the body finds
by a two-thirds vote of those present, or if less than two-thirds of the body is present, by
unacdmous vote, that there is a need to take immediate action on an item and the need for action
came to the attention of the local agency subsequent to the agenda being posted (Section 54954.2
(b)). This means that if four members of a five -member body are present, three votes are
required to add the item; if only three are present, a unanimous vote is required.
In addition to these exceptions, there are several limited exceptions to the no
discussion on non -agenda items rule. Those exceptions are:
(a) Members of the legislative body or staff may briefly respond to statements
made or questions posed by persons during public comment periods.
(b) Members or staff may ask questions for clarification and provide a
reference to staff or other resources for factual information;
(c) Members or staff may make a brief announcement, ask a question or make
a brief report on his or her own activities.
(d) Members may, subject to the procedural rules of the legislative body,
request staff to report back to the legislative body at a subsequent meeting
concerning any matter; and
(e) The legislative body may itself as a body, subject to the rules of
procedures of the legislative body, take action to direct staff to place a matter of
business on a future agenda.
The body may not discuss non -agenda items to any significant degree under these
exceptions. The comments must be brief. These exceptions do not allow long or wide-ranging
question and answer sessions between the public and city council or between legislative body and
staff.
When the body is considering whether to direct staff to add an item to a
subsequent agenda, these exceptions do not allow the body to discuss the merits of the matter
or to engage in a debate about the underlying issue.
RICHAROS. WATSON
& GERS-ON
To protect the body from problems in this area, the legislative body may wish to
adopt a rule that any one member may request an item to be placed on a subsequent agenda, so
that discussion of the merits of the issue can be easily avoided. If the legislative body does not
wish to adopt this rule, then the body's consideration and vote on the matter must take.place
with virtually no discussion.
It is important to follow these exceptions carefully and interpret them narrowly
because the city would not want to have an important and complex action tainted by a non-
agendized discussion of the item.
5. The public's right to photograph, 'videotape, tape-record and broadcast
open meetings
The public has the right to videotape or broadcast a public meeting or to make
a motion picture or still camera record of such meeting (Section 54953.5). However, a body
may prohibit or limit recording of a meeting if the body finds that the recording cannot continue
without noise, illumination, or obstruction of a view that constitutes, or would constitute, a
disruption of the proceedings (Section 54953.5). These grounds would appear to preclude a
finding based on nonphysical grounds such as breach of decorum or mental disturbance.
Any audio or video tape record of an open and public meeting that is made, for
whatever purpose, by or at the direction of the city is a public record and is subject to inspection
by the public consistent with the requirements of the Public Records Act (Section 54953.5). The
city must not destroy the tape or film record of the open and public meeting for at least 30 days
following the date of the taping or recording. Inspection of the audiotape or videotape must be
made available to the public for free on equipment provided by the city (Section 54953.5).
If a member of the public requests a duplicate of the audio or videotape, the city
must provide such copy upon payment of a fee. If the city has an audiotape or videotape
duplication machine, the city must provide the copy on its own machine. If the city does not
have an audiotape or video tape duplication machine, the city should send it out to a business
that can duplicate it and the city may charge a fee to cover the cost of that duplication service.
The Brown Act requires written material distributed to a majoriy of the body by
any v pE;rson to be provided to the public without delay. If the material is distributed during the
meeting and prepared by the local agency, it must be available for public inspection at the
meeting. If it is distributed during the meeting by a member of the public, it must be made
available for public inspection after the meeting (Section 54957.5).
One problem in applying this rule arises when written materials are distributed
directly to a majority of the body without knowledge of City staff, or even without the members
knowing that a majority has received it. The law still requires these materials to be treated as
Public records. So, many cities have established some procedure to assure compliance with this
new rile.
RICNARDS. WATSON
& GERSMON
F. Closed Sessions
Closed sessions are lawful meetings during which the public and press are
excluded. Sometimes people refer to closed sessions as "executive sessions," a holdover term
from the Brown Act's early days. Closed sessions can only be used to discuss specified kinds
of business. Examples include meetings to discuss personnel evaluations or labor negotiations,
pending litigation, or real estate negotiations (See Sections 54956.7 through 54957 and Sections
54957.6 and 54957.8). Political sensitivity of an item is not a lawful reason for a closed session
discussion.
The Brown Act requires closed session business to be described on the public
agenda (Section 54954.5). And, there is a "bonus" of sorts for using prescribed language to
describe litigation closed sessions in that certain types of legal challenges are precluded. This
so-called "safe harbor" encourages many cities to use a very similar agenda format.
rule
One of the big changes to the didown Act in nothave to be93 was to reverse the re reported to the public. Now
Nowtthe
at
closed session actions and votes generally di P
general rule is the legislative body must reconvene the public meeting after a closed session and
publicly report specified closed session actions and the vote taken on those actions (Section
54957.1). There are limited exceptions for certain kinds of litigation decisions, and to protect
the victims of sexual misconduct or child abuse.
Contracts, settlement agreements or other documents that are finally approved or
rovided at the time the closed session ends to any person who
adopted in closed session must be p
has made a standing request for all documentation in connection with a request for notice of
meetings (typically members of the media) and to any person who makes a request within 24
hours of the posting of the agenda (Section 54957.1).
The Brown Act also includes detailed requirements describing when litigation is
considered "pending"d °ese new
ailed actual de erminar the purposes of a tions thatsed will Section
probably hmade in the first
requirements involve
instance by legal counsel.
ums
Recent case law affirms the confidentiality
� tion 54956.9(b)(3)(f)dw h
(Roberts v. Ciry of Palmdale, 5 Cal. 4th 363 (1993)). See also Se
respect to privileged communications regarding pending litigation.
Closed sessions may be started in a location different from the usual meeting place
as long as the location is noted on the agenda and the public can be present when the meeting
first begins. Moreover, it is advisable to allow an opportunity for public comment before
consideration of closed session matters.
Final action concerning the establishment of salaries or other benefits of individual
employees is not permitted during a closed session convened under "personnel" for the purpose
of appointing or evaluating those employees. The body may, however, discuss compensation
of individual employees with the body's negotiator in a closed session for "labor negotiations"
R3CHARDS. WATSON
& GERSHON
ARo.nays at la+
for the purpose of giving direction to the negotiator. Also, in a closed session for labor
ne;;otiations, the body may discuss the local agency's financial situation if necessary to give
direction to the negotiator.
G. Enforcement
There are both civil remedies and criminal misdemeanor penalties for Brown Act
violations. The civil remedies include injunctions against further violations, orders nullifying
any unlawful action, and orders determining the validity of any rule to penalize or discourage
the expression of a member of the legislative body (Section 54960.1). The provision relating
to efforts to penalize expression may come up in the context of measures by the legislative body
to censure or penalize one of its members for breaching confidentiality or other violations. This
part: of the law is charged with difficult free speech and attorney-client privilege issues. The
tape: recording of closed sessions is not required unless the court orders such taping after finding
a closed session violation (Section 54960).
Prior to a civil action being commenced, the complaining party must make a
written demand on the legislative body to cure or correct the action alleged to have been taken
in violation of Sections 54953, 54954.2, 54954.5, 54954.6, or 54956. The written demand must
be made within 90 days after the challenged action was taken in open session unless the violation
involves the agenda requirements under Section 54954.2 in which case the written demand must
be made within 30 days. The legislative body is required to cure or correct the challenged
action and inform the parry who filed the written demand of its correcting actions or its decision
not to cure or correct within 30 days. Within 15 days after receipt of the written notice from
the legislative body, of if there is no written response, within 15 days after the 30 -day cure
period expires, a civil action must be commenced by the complaining party.
With respect to criminal penalties, a member of a legislative body will not be
criminally liable for a violation of the Brown Act unless the member intends to deprive the
public of information to which the member knows or has reason to know the public is entitled
under the Brown Act (Section 54959). This standard became effective in 1994 and is a different
standard from most criminal standards. Until it is applied and interpreted by a court, it is not
clear what type of evidence will be necessary to prosecute a Brown Act violation.
K. Conclusion
We hope that this overview of the Brown Act has been instructive and helpful.
In the event you have any questions regarding any provision of the law, please do not hesitate
to contact us.
RICHARDS. WATSON
& GRSHON
A--!y—
lan
SUMMARY OF THE PRINCIPAL CONFLICT GENCY DECIS ORNESST LAWS
THAT APPLY TO LOCAL
Set forth below is a general summary of the relevant conflict of interest laws and
applicable conflict of interest regulations for certain typical decisions of a local agency. Also
included is a summary of certain laws prohibiting the receipt of gifts and honoraria.
This paper is general in nature and may not cover all aspects of an actual conflict
of interest question. Thus it is not intended to constitute advice on specific conflict of interest
questions. In the event of an actual conflict of interest issue, you should contact your city
attorney for further advice.
I• GENERAL CONFLICT OF INTEREST LAWS THAT ARE APPLICABLE
TO DECISIONS OF AN AGENCY
There are three principal sets of conflict of interest laws that apply to decisions
of a local agency. Each of these three sets of conflict of interest laws is summarized below:
A. POLITICAL REFORM ACT
The California Political Reform Act (Government Code Section 81000 et seg.,
"Act") is the principal law in California governing conflicts of interest for public officials. Its
conflict of interest provisions are found at Government Code Section 87000 et sq. The Fair
Political Practices Commission ('`FPPC") has interpreted the Act in a series of Regulations
found at 2 Cal. Code of Regulations, Section 18109 et. se .-
The Act requires public officials to disqualify themselves from making,
participating in the making, or in any way attempting to use their official position to influence
a decision in which they know or have reason to know they have a financial interest (Section
87100).
An official has a financial interest in a decision if the decision will have a
reasonably foreseeable material financial effect, distinguishable from its effect on the public
generally, on the official, or on a member of his or her immediate family, or on certain listed
financial interests. Those listed financial interests are:
"(a) Any business entity in which the public official has a direct or indirect
investment worth One Thousand Dollars ($1,000) or more.
7/ All statutory references are to the California Government Code unless otherwise
indicated. Regulations of the FPPC are referred to as "Regulation Section."
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& GERSHON
nno.�ar• ac �w
(b) Any real property in which the public official has a direct or indirect
interest worth One Thousand Dollars ($1,000) or more.
(c) Any source of income, other than gifts and other than loans by a commercial
lending institution in the regular course of business on terms available to the public
without regard to official status, aggregating two hundred fifty dollars ($250) or more
in value provided to, received by, or promised to the public official within 12 months
prior to the time when the decision is made.
(d) Any business entity in which the public official is a director, officer, partner,
trustee, employee, or holds any position of management.
(e) Any donor of, or any intermediary or agent for a donor of, a gift or gifts
aggregating two hundred fifty dollars ($250) or more in value provided to,
received by, or promised to the public official within 12 months prior to the time
when the decision is made...." [The dollar amount in this paragraph (e) has
been increased to $290 by the FPPC pursuant to Regulation Section 18940.2]
(Section 87103.)
The Regulations of the FPPC provide interpretation and guidance to most of the
terms used in the Act as well as standards for determining if each element of the Act's
prohibitions have been satisfied. Some of the most significant regulations address standards for
determining if a decision has a material financial effect on a business entity (Regulation Section
18702.2), or on various types of interests in real property (Regulation Sections 18702.3 and
18702.4).
1. Decisions Affecting Business Entities
With respect to business entities, a decision's impact is regarded as materially
affecting the business entity based on its financial size. For large "Fortune 500" business
entities, a decision will be found to materially affect the business entity if the decision will affect
the gross revenues, expenses, assets or liabilities by $1,000,000 or more in a fiscal year or result
in an increase or decrease in expenses by $250,000 or more in a fiscal year (Regulation Section
18702.2 (a)). Lower thresholds apply for mid-size companies.
For small companies that have net tangible assets of less than $4,000,000 and pre-
tax income for the last fiscal year of less than $750,000 and net income from that same period
of less than $400,000, the decision is regarded as materially affecting the company if the
decision will result in an increase or decrease in gross revenues for a fiscal year of $10,000 or
more, or increase or reduce expenses by $2,500 or more in a fiscal year, or result in an increase
or decrease in the value of its assets or liabilities by $10,000 or more (Regulation Section
18702.2 (g)).
Certain other standards apply if the source of income is a non-profit entity
(Regulation Section 18702.5) or an individual (Regulation Section 18702.6).
RICHARDS, WATSON
& GERSHON
wrt""Y' at pow
2. Decisions Affecting Real Property
With regard to whether a decision will have a material financial effect on an
official's interest in real property, the FPPC has adopted regulations setting forth standards that
must be satisfied to create a conflict of interest (2 Cal. Code of Regulations Section 18702.1 and
18702.3 (a)). If an official's property is the subject of a decision, the official is generally
considered to have a material financial effect on the official's interest in the property, without
regard to the effect of the decision on the value of the property. If the official's property is not
directly involved in the decision, there are four standards for determining whether the financial
effect on the official's interest is material.
First, if a decision involves construction of, or improvements to, streets, water,
sewer, storm drainage or similar facilities, and the official's real property will receive a new or
substantially improved service, the decision is regarded as having a material financial effect on
the official's property.
Second, if the official's property is within 300 feet of the boundaries of the
property subject to the decision, the decision is deemed to have a material financial effect on the
official's property, unless there are unique facts to indicate that the decision will have no
financial effect at all on the official's real property interest.
Third, if the official's real property is located outside a radius of 300 feet, but any
part of the property is located within a radius of 2,500 feet of the boundaries of the property
subject to the decision, the decision is regarded as materially affecting the official's property if
the decision will have a reasonably foreseeable financial effect on the official's property of:
(a) Ten thousand dollars ($10,000) or more on the fair market value of the real
property; or
(b) Will affect the rental value of the property by $1,000 or more per 12 month
period.
Fourth, if the official's real property is located outside a radius of 2,500 feet of
the boundaries of the property subject to the decision, the decision is presumed to not have a
material financial effect on the value of the official's property unless:
(a) There are specific circumstances regarding the decision, its effect, and the
nature of the real property in which the official has an interest, which make it
reasonably foreseeable that the fair market value will be affected by $10,000 or
the rental value of the real property will be affected by $1,000 or more in a 12
month period; and
RICHAROS, WATSON
& GERSHON
Attorney- at Law
S_.
(b) Either of the following apply:
(1) The effect will not be substantially the same as the effect upon at least 25
percent of all the properties which are within a 2,500 foot radius of the
boundaries of the real property in which the official has an interest; or
(2) There are not .at least 10 properties under separate ownership within a
2,500 foot radius of the property in which the official has an interest.
3. The "Public Generally" Exception
Once it is determined that it is reasonably foreseeable that the decision will have a
material financial effect on a public official's financial interest or interests, the decision must be
evaluated under the "public generally" exception (Regulation Sections 18703.1 et seg.), The
publiic generally exception provides that even if the decision will have a reasonably foreseeable
material financial effect on the official's financial interest, disqualification is required only if the
effect on the public official is distinguishable from the effect on the financial interests of the
public generally or a significant segment of that public. The "public generally" is comprised
of the entire jurisdiction of the City (In re Legan, 9 FPPC Ops_ 1 (1985)).
Pursuant to Regulation Section 18703, a governmental decision will affect a
significant segment of the public if the decision will affect ten percent or more of the City's
population, ten percent or more of all property owners in the City or fifty percent of all
businesses in the City. Certain additional rules apply if the City has a population of less than
• 25,000 (Regulation Section 18703.1) or if the decision affects a predominant industry, trade or
profession in the City (Section 18703.2).
B. GOVERN�NIENT CODE SECTION 1090
Government Section 1090 provides in relevant part:
"Members of the Legislature, state, county, district, judicial district, and city
officers or employees shall not be financially interested in any contract made by
them in their official capacity, or by any body or board of which they are
members.... "
The prohibition contained in Section 1090 is intended to preclude a public official
from using his or her official position as a government officer or employee to obtain business
or financial advantage. The purpose of the prohibition is to remove the possibility of any
personal influence which might bear on an official's decision-making activities with respect to
contracts entered into by the governmental entity.
The prohibition contained in Section 1090 involves three principal components:
(1) the person subject to the prohibition must be regarded as an officer or employee of one of
the types of governmental entities listed; (2) the public officer or employee must be financially
RICHARDS. WATSON
& GERSHON
A[to•neya at taw
interested in the contract; and (3) the contract must be made either (i) by the public official in
his or her official capacity; or (ii) by the body or board of which he or she is a member.
Section 1090 is unlike the Political Reform Act and the Common Law Doctrine
Against Conflicts of Interest which require the public official with the conflict of interest to
abstain from participation in the decision. Section 1090 prevents the Agency from even entering
into the contract in which one of its officers or employees has a financial interest unless certain
exceptions apply.
The term "financially interested" has been interpreted to include any direct
interest, such as that involved when an officer enters directly into a contract with the body of
which he is a member (Thompson v. Call, 38 Cal.3d 633, 645 (1985)). It has also been
interpreted to include indirect financial interests in a contract, where for example, a public
official would gain something financially by the making of the contract (Fraser-Yamor Agency,
Inc. v. County of Del Norte, 68 Cal.App.3d 201 (1977)).
The third element is that the contract has to be "made" either by the official or
employee acting in his or her official capacity, or by any body or board of which the official is
a member. The term "made," as used in the statute has been interpreted broadly by the courts
to encompass such elements in the making of a contract as preliminary discussions, negotiations,
compromises, reasoning, planning, drawing of plans or specifications and solicitation for bids
(Milbrae Association for Residential Survival v. City of Milbrae, 262 Ca1.App.2d 222, 237
(1968), City Council v. McKinley, 80 Cal.App.3d 204, (1978)).
There are two sets of exceptions to Section 1090. The first is Section 1091 which
specifies certain "remote interests." If an official merely has a remote interest, then the Agency
may enter into the contract as long as the official abstains from the participating in any way in
the decision. The second set of exceptions is found in Section 1091.5. These exceptions are
called the "non-interest" exceptions and provide that the interests which fall within those
exceptions are excluded from the scope of Section 1090 altogether.
If a violation of Section 1090 is found to have occurred, the contract is deemed
void (Section 1092). In addition, civil and criminal penalties could apply, and the public official
with the financial interest in the contract could be forever barred from holding public office
(Section 1097).
C. COMMON LAW DOCTRINE AGAINST CONFLICTS OF
INTEREST
The common law doctrine against conflicts of interest is the courts' expression
of the public policy against public officials using their official positions for their private benefit
(see, Terry v. Bender, 143 Cal.App.2d 198, 206 (1956)). This doctrine has been primarily
applied to require a public official to abstain from participation in cases where the public
official's private financial interest may conflict with his or her official duties (64
Ops.Cal.Atty.Gen. 795, 797 (1981)).
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& GERSHON
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By virtue of holding public office, an elected official "is impliedly bound to
exercise the powers conferred on him with disinterested skill, zeal, and diligence and primarily
for the benefit of the public." (Noble v. City of Palo Alto, 89 Ca1.App. 47, 51 (1928)). An
elected official bears a fiduciary duty to exercise the powers of office for the benefit of the
public and is not permitted to use those powers for the benefit of a private interest. (Id; see also
Nussbaum v. Weeks, 214 Cal.App.3d 1589, 1597-98 (1989)).
This doctrine is an independent basis from the Political Reform Act for requiring
Agency officials and employees to abstain from participating in Agency discussions or decisions
involving matters in which they have a financial interest. Violation of the common law duty to
avoid conflicts of interest can constitute official misconduct and result in a loss of office. See
Nussbaum, 214 Cal.App.3d at 1597-98.)
II. LAWS THAT PROHIBIT CERTAIN GIFT'S, HONORARIA AND LOANS
The conflict of interest laws set forth above do not prohibit an official from
having an interest in a business or real property, they merely prevent the official from
participating in a decision that would materially affect those interests.
However, the State Legislature has taken a different approach with regard to
certain gifts, honoraria and loans. State law has been amended to preclude elected local officials
from receiving certain gifts, honoraria and loans. These prohibitions apply whether or not the
source of the gift, honorarium or loan is, or will ever be, affected by a decision of the official's
41 agency. Additionally, these limitations apply to certain other designated local officials, including
planning commissioners.
A. Limitations on the Receipt of Gifts
General Gift Limitation - Government Code Section 89503 (a) provides:
"No elected state officer, elected officer of a local government
agency, or other individual specified in Section 87200 [includes
Planning Commissioners] shall accept gifts from any single source
in any calendar year with a total value of more than two hundred
ninety dollars 290 . " (Emphasis added).
A similar limitation prohibits a city employee designated in a conflict of interest
code from accepting gifts from a single source totaling more than $250 in value
in any calendar year, if the gifts would be required to be reported on his or her
statement of economic interests. [Section 89503(c)]
2. Biennial Gift Limit Adjustment - The Political Reform Act authorizes the FPPC
to make an inflationary adjustment of the limitations set forth in Section 89503
every two years. [§ 89503(f).] The most recent adjustment became effective on
January 1, 1997, and the gift limitation is now $290.
RICHARDS. WATSON
& GERSHON
3. Exceptions to Gifts and Gift Limitations
a. Basic Exceptions - FPPC Regulation Section 18942 is summarized below:
None of the following is a gift and none is subject to any limitation on
gifts:
(1) Informational Materials - such as books, calendars, videotapes,
and free or discounted admission to educational conferences that are
provided to assist the official in the performance of official duties.
(2) Returned Gifts - A gift that is not used and that, within 30 days
after receipt, is returned or donated pursuant to California Code of
Regulations, Title 2, Section 18943, or for which reimbursement is paid
pursuant to Section 18943.'
(3) . Family Gifts - A gift from an individual's spouse, child, parent,
grandparent, grandchild, brother, sister, parent -in-law, brother-in-law,
sister-in-law, nephew, niece, aunt, uncle, or first cousin or the spouse of
any such person, unless the donor is acting as an agent or intermediary for
any other person.
(4) Campaign Contributions - Please note, however, campaign
contributions are required to be reported and are subject to other
limitations of Proposition 208.
(5) Inherited Money or Property - Any devise'or inheritance.
(6) Awards - A personalized plaque or trophy with an individual value
of less than two hundred fifty dollars ($250).
(7) Home Hospitality - Hospitality (including food, beverages, or
occasional lodging) provided to an official by an individual in his or her
home when the individual or a member of the individual's family is
present.
(8) Presents on Personal or Family Occasions - Presents exchanged
between an official and an individual, other than a lobbyist, on holidays,
birthdays, or similar occasions provided that the presents exchanged are
not substantially disproportionate in value.
(9) Admission and Incidentals at Speaking Events - Free admission,
and refreshments and similar non-cash nominal benefits provided to an
official during the entire event at which the official gives a speech,
participates in a panel or seminar, or provides a similar service, and actual
intrastate transportation and any necessary lodging and subsistence
FUCNAROS, WATSON
S GERSHON
nno "' ac i.a..
provided directly in connection with the speech, i p , panel, seminar, or
service, including but not limited to meals and beverages on the day of the
activity. These items are not payments and need not be reported by any
official.
(10) Campaign Travel - The transportation, lodging, and subsistence
provided in direct connection with campaign activities, including
attendance at political fundraisers.
4. Gifts to Your Family - FPPC Regulation Section 18944 provides (in summary):
a. Gifts given directly to members of an official's immediate family are not
gifts to the official unless used or disposed of by the official or given by the
recipient member of the official's immediate family to the official for disposition
or use at the official's discretion.
b. Gifts delivered by mail or other written communication are given directly
to members of the official's immediate family if the family members' names or
familial desi?nations (such as "spouse") appear in the address on the envelope or
in the communication tendering or offering the gift, and the gift is intended for
their use or enjoyment.
C. A gift given to the official, but designated for the official and spouse or
family, is a gift to the official if the official exercises discretion and control over
• who will actually use the gift.
d. If the official enjoys direct benefit from a single gift,'as well as members
of the official's family, the full value of the gift is attributable to the official.
5_ Tickets to Political and Charitable Fundraisers - Regulation Section 18946.4
provides (in summary):
a. Nonprofit Fundraiser - Except as provided in subdivision (b), a ticket to
a fundraising event for a nonprofit, tax-exempt organization (that is not a political
campaign committee) shall be valued as follows:
(1) Where the event is a fundraising event for a nonprofit organization,
and the ticket clearly states that a portion of the ticket price is a donation
to the organization, then the value of the gift is the face value of the ticket
or admission reduced by the amount of the donation.
(2) If the ticket has no stated price or no stated donation portion, the
value of the gift is the fair market value of any food, beverage, or other
tangible benefits provided to each attendee.
RICHARDS, WATSON
& GERSHON
.1—y—of law
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j b. Fundraiser for a religious, charitable, scientific, literary or educational
} organization - Where the event is a fundraising event for an organization exempt
from taxation under Section 501(c)(*) of the Internal Revenue Code, the ticket or
other admission privilege has no value.
c. . Political Fundraiser - Where the event is a fundraising event for a
campaign committee or candidate, the ticket or other admission privilege has no
value.
6. Prizes and Awards from Competitions - Regulation Section 18946.5 provides (in
summary):
A prize or an award received shall be reported as a gift unless the prize or award
is received in a bona fide competition not related to the recipient's status as an
official or candidate. A prize or award which is not reported as a gift shall be
reported as income.
7. Certain Gifts of Travel Exempt from Gift Limitations
a. Travel In Connection With Speeches, Panels, and Seminars.
(1) A payment made for travel, including actual transportation and
related lodging and subsistence, is not subject to the prohibitions
or limitations on honoraria and gifts if:
(A) The travel is reasonably related to a legislative or
governmental purpose, or to an issue df state, national, or
international public policy, and
(B) The travel, including actual transportation and related
lodging and subsistence, is in connection with a speech
given by the official or candidate; the lodging and
subsistence expenses are limited to the day immediately
preceding, the day of, and the day immediately following
the speech; and the travel is within the United States.
b. Travel Provided by Governmental Entity or Charity A payment made for
travel, including actual transportation and related lodging and subsistence,
is not subject to the prohibitions or limitations on honoraria and gifts if:
(1) The travel is reasonably related to a legislative or governmental
purpose, or to an issue of state, national, or international public policy;
and
RICHAROS, WA SON
& GEASHON
n¢o.,eya as v.+
5 ' (2) The payment is provided b a
ove y government, a goverrtmental agency,
a foreign government, a
g rnmental authority, a bona fide public or • private educational institution, defined in Section 203 of the
Revenue and
Taxation Code, or by a nonprofit charitable or religious organization that
is exempt from taxation under Section 501(c)(3) of
the Internal Revenu
Code, or by a person that is domiciled outside the United States and that
substantially satisfies the requirements for tax exempt status under
Section 501(c)(3) of the Internal Revenue Code.
C. Travel Paid From Campaign Funds - A payment made for transportation
and necessary lodging and subsistence, which payment is made from
campaign funds as permitted by Government Code Section 89513, or
which is a contribution, is not an honorarium or a gift.
d- Travel Provided By Official's Agency - A payment made for
transportation and necessary lodging and subsistence, which payment is
made by the agency of an official, is not an honorarium or a gift.
e• Travel In Connection With Bona Fide Business - A payment made for
transportation, lodging, and subsistence, which payment is reasonably
necessary in connection with a bona fide business trade, or profession, and
which satisfies the criteria for federal income tax deductions for business
expenses specified in Sections 162 and 274 of the Internal Revenue Code,
• is not an honorarium or gift unless the sole or predominant activity of the
business, trade or profession is making speeches.
B. Prohibitions on Receipt of Honoraria
1 • Basic Prohibition - Government Code Section 89502 provides that no elected
officer of a local government agency nor any official listed in Government Code
Section 87200 (which includes planning commissioners) shall accept an
honorarium.
2. An "honorarium" means any payment made in consideration for any speech
given, article published, or attendance at any public or private conference,
convention, meeting, social event, meal, or like gathering.
3 • Summary of Exceptions to Prohibition on Honoraria
a• Earned Income Exception - "Honorarium" does not include income
earned for personal services if:
(1) The services are provided in connection with an individual's
business or the individual's practice of or employment in a bona
fide business, trade, or profession, such as teaching, practicing
•
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Attoinrya al Lbw
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49
e.
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law, medicine, insurance, real estate, banking, or building
contracting; and
(2) The services are customarily provided in connection with the
business, trade, or profession.
Information Materials - "Honorarium" does not include information
materials such as books, calendars, videotapes, or free or discounted
admission to educational conferences that are provided to assist the official
in the performance of official duties.
Family Payments - "Honorarium" does not include a payment received
from one's spouse, child, parent, grandparent, grandchild, brother, sister,
parent -in-law, brother-in-law, sister-in-law, nephew, niece, aunt, n cfeom
or
first cousin or the spouse of any such person. However, a payment
ay
any such person is an an honorarium
listed if hn this donors paragraph acting as an agent or
intermediary for y person
Campaign contributions - However, campaign contributions are required
to be reported and are subject to the limitations of Proposition 208.
Personalized Plaque or Trophy - Honorarium does not include a
personalized plaque or trophy with an individual value of less than two
hundred and fifty dollars ($250).
Admission and Incidentals at Place of Speech - "Honorarium" does not
include free admission, refreshments and similar, non-cash nominal
benefits provided to an official during the entire event at which the official
gives a speech, participates in a panel or seminar, or provides a similar
service, and actual intrastate transportation and any necessary lodging and
subsistence provided directly in connection with the speech, panel,
seminar, or service, including but not limited to meals and beverages on
the day of the activity.
Incidentals at Private Conference - "Honorarium" does not include any
of the following items, when provided to an individual who attends any
convention, meeting, social event, meal, or
public or private conference,
like gathering without providing any substantive service:
(1) Benefits, other than cash, provided at the conference, convention,
meeting, social event, meal, or gathering.
(2) Free admission and food. or beverages provided at the conference,
convention, meeting, social event, meal, or gathering.
F;ICHARDS. WATS-N
& GERS'ON
ARorneys ar La'^'
h. Travel That Is Exempt From Gifts
transportation, lodging and subsistence that Asyexempted paymentny b m the de Qor
exceptions. Y gift
t
C. Prohibitions on Receipt of Certain Types of Loans
1 • Prohibition on Loans Exceeding $250 from Other City Officials, Employees,
Consultants and Contractors - Effective January 1, 1998, elected officials and
other city officials specified in Section 87200 (Planning Commissioners, City
Managers, City Treasurers, City Attorneys, etc.,) may not receive a personal loan
that exceeds $250 at any given time from an officer, employee, member or
consultant of your city or any local government agency over which your city
exercises direction and control (Section 87460 (a) and (b)). In addition, elected
officials and other city officials specified in Section 87200 may not receive a
personal loan that exceeds $250 at any given time from any individual or entity
that has a contract with your city or any agency over which your city exercises
direction and control (Section 87460 (c) and (d)).
2. Requirement for Loans of $500 or More from Other Persons and Entities to be
in Writing - Elected local officials may not receive a personal loan of $500 or
more unless the loan is made in writing and clearly states that terms of the loan.
The loan document must include the names of the parties to the loan a"reement,
as well as the date, amount, interest rate, and term of the loan. The loan
document must also include the date or dates when payments are due and the
• amount of the payments (Section 87461).
3. Exceptions to Loan Limits and Documentation Requirements - The following
loans are not subject to the limits and documentation requirements specified in
subparts 1 and 2 above:
a. Loans received from banks or other financial institutions, and retail or
credit card transactions, made in the normal course of business on terms
available to members of the public without regard to official status.
b. Loans received by an elected officer's or candidate's campaign committee.
C. Loans received from the elected or appointed official's spouse, child,
parent, grandparent, grandchild, brother, sister, parent -in-law, brother-in-
law, sister-in-law, nephew, niece, aunt, uncle, or first cousin, or the
_spouse of any such person unless he or she is acting as an agent or
intermediary for another person not covered by this exemption.
d. Loans made, or offered in writing, prior to January 1, 1998.
f
•
RICHARDS. WATSON
$ GERS,ON
Auu_"l at Lar+
4. Loans that Become Gifts Subject to the Gift Prohibition - Under the following
circumstances, a personal loan received by any public official (elected and other
officials specified in Section 87200, as well as any other local government official
or employee required to file a Statement of Economic Interest) may become a gift
and subject to gift and reporting limitations:
a. If the loan has a defined date or dates for repayment and has not been
repaid, the loan will become a gift when the statute of limitations for
filing an action for default has expired.
b. If the loan has no defined date or dates for repayment, the loan will
become a gift if it remains unpaid when one year has elapsed from the
later of:
(1) the date the loan was made;
(2) the date the last payment of $100 or more was made on the
loan; or
(3) the date upon which the official has made payments
aggregating to less than $250 during the previous 12 -month
period.
5. Exceptions -- Loans that Do Not Become Gifts - The following loans will not
become gifts to an official:
a. A loan made to an elected officer's or candidate's campaign committee.
b. A loan on which the creditor has taken reasonable action to collect the
balance due.
C. A loan described above on which the creditor, based on reasonable
business considerations, has not undertaken collection action. (However,
except in a criminal action, the creditor has the burden of proving that the
decision not to take collection action was based on reasonable business
considerations.)
d. A loan made to an official who has filed for bankruptcy and the loan is
ultimately discharged in bankruptcy.
e. A loan that would not be considered a gift as outlined in Part III (A)(3)
of this Summary (e.g. loans from family members) (Section 87462).
RICHARDS. WAT50N
& GERSHON
A.om - ae —
We hope that this material is helpful to you. However, please remember that this
general introduction to conflict of interest laws and regulations does not cover every potential
decision of the City in which conflict of interest laws are implicated. The application of these
laws must be analyzed on a case by case basis in light of each Councilmember's circumstance.
Thus, while certain generalizations can be drawn, it is important to seek conflict of interest
advice from our office whenever questions arise.
0962670
•
RICHARDS. WATSON
R GERSHON
An— .. Lar.
City of Diamond Bar
PLANNING COMMUSSION
Staff Report
AGENDA ITEM NUMBER: 6.1
REPORT DATE: April 1, 1998
MEETING DATE: April 14, 1998
CASE/FILE NUMBER: Planned Sign Program No. 98-1
APPLICATION REQUEST: To install seven illuminated
wall signs
PROPERTY LOCATION: 303-315 S. Diamond Bar Blvd.
Diamond Bar, CA 91765
PROPERTY OWNERS/APPLICANT: Wohl/Diamond Bar, LLC
2402 Michelson Dr., 0170
Irvine, CA 92612
BACKGROUND:
The property owner/applicant, Wohl/Diamond Bar, LLC is requesting
approval of Planned Sign Program No. 98-1 (pursuant to Sign
Ordinance No. 5A (1991), Section 110. Planned Sign Program). The
purpose of the request is to install seven illuminated wall signs
and to eventually bring all existing signage into conformance with
the adopted Planned Sign Program.
The project site is located at 303-315 S. Diamond Bar Boulevard,
within the Diamond Bar Center (commonly referred to as the K -Mart
Center). It has a General Plan Land Use designation of General
Commercial (C). It is within the Commercial Planned Development
(CPD) Zone. Generally, the following zones and use surround the
project site: to the north is the CPD Zone and the Pomona Freeway;
to the south and west is the CPD Zone; and to the east is
Neighborhood Business -Billboard Exclusion (C -2 -BE) Zone.
ANALYSIS:
The purpose and intent of the City's Sign Ordinance is to encourage
the use of modest signs which are harmonious with existing signs,
to assure the appropriate level of review and compatibility with
the architectural style, design, material and color of buildings
attached or adjacent to the signs. Additionally, pursuant to the
City's Sign Ordinance (Sections 108. A.1. and 110. D.), no permit
1
shall be issued for a wall sign in a multi -use building or
• commercial center in which more than one wall sign is proposed
without the Planning Commission's review and approval through the
Planned Sign Program process. Therefore, the request for seven
wall signs for individual uses within a multi -use commercial center
initiates the Planned Sign Program process for this application.
� J
Tho nnnlinant is nronosina the following sign request:
CITY'S SIGN ORDINANCE STANDARDS
PROPOSED SIGN STANDARDS
Wall Signs
Wall Sians
One per outer wall;
Seven;
1.25 sq. ft. per 1 lineal foot of
location - on sign band area centered
frontage, to a maximum 125 sq. ft.
above the each unit's frontage;
per use;
sign width shall not exceed 66% of
sign shall not exceed 80% of unit
the lineal leased frontage;
frontage.
tenants with two frontages shall be
Special Conditions. No permit shall
allowed two signs, each with a
be issued for a wall sign in a multi-
maximum width equal to 66% of each
use building or commercial center in
lineal leased frontage;
which more than one sign is proposed
without Planning Commission review
letter height - max. 24" unless
and approval.
tenant's name cannot be accommodated
at that size, in which instance 18"
letters may be approved;
channel letter style - Helvetica;
letter colors - plastic face letter
color -Red #2793, sides of letters to
be painted Dark Bronze 1313E
Duranodic; and other colors may be
utilized provided they are registered
trademarks currently being used by
five other locations;
trimcap retainers - at the perimeter
of letter faces and same color as
letters;
letter depth - 511; and
sign copy - shall include minimal
information only.
The proposed sign standards meet the City's requirements. However,
it is recommended that the following statements be added to the
proposed Planned Sign Program (pg. 2):
III. Design Requirements
B. Maximum sign face area permitted shall not exceed
1.25 square feet per 1 lineal foot of unit
frontage, to a maximum 125 square feet per use; or
maximum sign width shall not exceed 66% of the
0
•
lineal leased frontage, whichever is the most
restrictive.
E. Tenants with two (2) frontages facing on either a
public right-of-way or parking area shall be
allowed two (2) signs (one on each frontage); the
maximum sign face area permitted shall not exceed
1.25 square feet per 1 lineal foot of unit
frontage, per side, to a maximum 125 square feet
per use; or maximum sign width, per side, shall not
exceed 66% of the lineal leased frontage, whichever
is the most restrictive.
The proposed Planned Sign Program, if approved, will permit new
wall signs for the following units; 303A - Flowers; 303E - New
India Sweets; 303G - Pizza; 303C - Train Town; 303J - Diamond Crest
Cleaners; 315B - Masumi; and 303B - Diamond Bar Dental.
The Public Works Division and the Building and Safety Division
reviewed this project. Their recommendations are a component of
the draft resolution.
ENVIRONMENTAL ASSESSMENT:
The environmental evaluation shows that the proposed project is
categorically exempt pursuant to the guidelines of the California
Environmental Quality Act (CEQA), Section 15311 (a).
NOTICE OF PUBLIC HEARING:
A Planned Sign Program reviewed by the Planning Commission does not
require a public hearing.
RECOMMENDATIONS:
Staff recommends that the Planning Commission approve Planned Sign
Program No. 98-1, Findings of Fact and conditions of approval as
listed within the attached resolution.
REQUIRED FINDINGS:
1. The proposed signs will be legible to the intended audience
under normal viewing conditions, based on the proposed
locations and design of the visual elements.
2. The proposed signs will not obscure from view or detract from
existing signs, based on the location, shape, color and other
similar considerations.
3. The proposed signs will be in harmony with adjacent properties
and surroundings, based on the size, shape, height, color,
3
• placement, and the proximity of such proposed signs to
adjacent properties and surroundings.
LJ
4. The proposed signs will be designed, constructed and located
so that they will not constitute a hazard to the public.
5. The proposed signs are not designed to have the advertising
thereon maintained primarily to be viewed from a freeway,
unless specifically provided for under the terms of this Sign
Ordinance.
Prepared by:
Ann J. Lu gu, Assiate Planner
Attachments:
1. Draft Resolution;
2. Exhibit "A" - Sign Criteria Diamond Bar Center dated April
14, 1998; and
3. Application.
4
a
J
PLANNING COMMISSION
RESOLUTION NO. 98 -XX
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF DIAMOND BAR APPROVING PLANNED SIGN
PROGRAM NO. 98-1 AND CATEGORICAL EXEMPTION
SECTION 15311 (a), A REQUEST TO INSTALL SEVEN
ILLUMINATED WALL SIGNS WITHIN DIAMOND BAR
CENTER LOCATED AT 303-315 SOUTH DIAMOND BAR
BOULEVARD, DIAMOND BAR, CALIFORNIA.
A. RECITALS.
1. The property owner/applicant, Wohl/Diamond Bar, LLC has
filed an application for Planned Sign Program No. 98-1,
for the installation of seven illuminated wall signs.
Project site is within Diamond Bar Center (commonly
referred to as the K -Mart Center) located at 303-315
South Diamond Bar Boulevard, Diamond Bar, Los Angeles
County, California, as described above in the title of
this Resolution. Hereinafter in this Resolution, the
subject Planned Sign Program shall be referred to as the
"Application".
2. On April 18, 1989, the City of Diamond Bar was
established as a duly organized municipal corporation of
the State of California. Thereafter, the City Council of
the City of Diamond Bar adopted its Ordinance No. 14
(1990), thereby adopting the Los Angeles County Code as
the ordinances of the City of Diamond Bar. Title 21 and
22 of the Los Angeles County Code contain the Development
Code of the County of Los Angeles now currently
applicable to development applications, including the
subject Application, within the City of Diamond Bar.
3. Action was taken on the subject application as to the
consistency with the General Plan. It has been
determined that the proposed project is consistent with
the General Plan.
4. The Planning Commission of the City of Diamond Bar on
April 14, 1998 conducted a meeting on the Application.
5. Pursuant to Sign Ordinance No. 5A (1991), a Planned Sign
Program does not require a public hearing or notification
of property owners surrounding the project site.
1
B. Resolution.
NOW, THEREFORE, it is found, determined and resolved by the
Planning Commission of the City of Diamond Bar as follows:
1. This Planning Commission hereby specifically finds that
all of the facts set forth in the Recitals, Part A, of
this Resolution are true and correct.
2. The Planning Commission hereby determines that the
project identified above in this Resolution is
categorically exempt from the requirements of the
California Environmental Quality Act (CEQA) of 1970, as
amended, and the guidelines promulgated thereunder,
pursuant Section 15311 (a) of Article 19 of Chapter 3 of
Title 14 the California Code of Regulations.
3. The Planning Commission hereby specifically finds and
determines that, having considered the record as a whole
including the findings set forth below, and changes and
alterations which have been incorporated into and
conditioned upon the proposed project set forth in the
application, there is no evidence before this Planning
Commission that the project proposed herein will have the
potential of an adverse effect on wild life resources or
the habitat upon which the wildlife depends. Based upon
substantial evidence, this Planning Commission hereby
rebuts the presumption of adverse effects contained in
Section 753.5 (d) of Title 14 of the California Code of
Regulations.
4. Based on the findings and conclusions set forth herein,
this Planning Commission hereby finds as follows:
(a) The project relates to a shopping center of
approximately four acre developed with approximately
36,454 square feet of commercial units identified as
Diamond Bar Center. The project site is located at
303-315 South Diamond Bar Boulevard, Diamond Bar,
California.
(b) The project site has a General Plan Land Use
designation of General Commercial (C). It is within
the Commercial Planned Development (CPD) Zone.
(c) Generally, the following zones and use surround the
project site: to the north is the CPD Zone and the
Pomona Freeway; to the south and west is the CPD
Zone; and to the east is Neighborhood Business -
Billboard Exclusion (C -2 -BE) Zone.
(d) The proposed project is a request to install seven
illuminated wall signs and to eventually bring all
existing signage into conformance with the adopted
Planned Sign Program.
(e) The proposed signs are not in substantial conflict
with the adopted General Plan.
2
The General Plan requires that a sign concept
address the following: scale in relationship to the
building; landscaping; and readability. It also
• dictates that the concept ensure integration into
the overall site and architectural theme of the
site's development.
The proposed signs' scale and placement allows for
easy readability from within the project site and
for traffic traveling along Diamond Bar Boulevard.
The wall signs' design is compatible with signs
within the surrounding commercial areas. Additionl-
ly, the Planned Sign Program's implementation will
cause the eventual conformance of all signage within
the Center.
(f) The proposed sign's will be legible to the intended
audience under normal viewing conditions, based on
their proposed locations and design of the signs
visual elements.
The proposed wall signs' placement allows for clear
identification of each business from within the
Center's parking lot and when traveling north and
south bound on Diamond Bar Boulevard. Additionally,
the type face style - Helvetica, arrangement and
colors allow for easy reading.
• (g) The proposed signs will not obscure from view or
detract from existing signs, based on their
location, shape, color and other similar
considerations.
The proposed wall signs will not obscure the view or
detract from existing signs because they comply with
the design standard within the City's Sign Ordinance
and are compatible with the style, color and signs
within.the commercial sites surrounding the project
site.
(h) The proposed signs will be in harmony with adjacent
properties and surroundings, based on the size,
shape, height, color, placement, and the proximity
of such proposed sign to adjacent properties and
surroundings.
The proposed wall signs" design is harmonious with
the eclectic collection of sign styles in commercial
centers within this area and the City as a whole.
(i) The proposed signs will be designed, constructed and
located so that it will not constitute a hazard to
the public.
• The proposed wall signs were reviewed by the Public
Works Division and the Building and Safety Division.
The Building and Safety Division's plan check
review, permit and inspections will ensure that the
proposed signs will not be a public hazard.
3
(j) The proposed signs are not designed to have the io
advertising thereon maintained primarily to be J
viewed from a freeway, unless specifically provided
for under the terms of this Sign Ordinance.
The proposed walls signs, although within a shopping
center locate near a freeway will not primarily be
viewed from a freeway. The proposed wall signs are
primarily visible from Diamond Bar Boulevard.
5. Based on the findings and conclusions set forth above,
the Planning Commission hereby approves the Application
subject to the following conditions:
(a) The project shall substantially conform to site plan
elevations and written sign criteria collectively
labeled as Exhibit "A" dated April 14, 1998, as
submitted and approved by the Planning Commission.
(b) The site shall be maintained in a condition which is
free of debris both during and after the
construction, addition, or implementation of the
entitlement granted herein. The removal of all
trash, debris, and refuse, whether during or
subsequent to construction shall be done only by the
property owner, applicant or by a duly permitted
waste contractor, who has been authorized by the
City to provide collection, transportation, and
• disposal of solid waste from residential,
commercial, construction, and industrial areas
within the City. It shall be the applicant's
obligation to insure that the waste contractor
utilized has obtained permits from the City of
Diamond Bar to provide such services.
(c) The follow shall be added to Plan Sign Program No.
98-1's written criteria on page 2:
III. Design Requirements
B. Maximum sign face area permitted shall not
exceed 1.25 square feet per 1 lineal foot
of unit frontage, to a maximum 125 square
feet per use; or maximum sign width shall
not exceed 66% of the lineal leased
frontage, whichever is the most
restrictive.
E. Tenants with two (2) frontages facing on
either a public right-of-way or parking
area shall be allowed two (2) signs (one
on each frontage); the maximum sign face
area permitted shall not exceed 1.25
square feet per 1 lineal foot of unit
• frontage, per side, to a maximum 125
square feet per use; or maximum sign
4
4jo
width, per side, shall not exceed 66%
the lineal leased frontage, whichever is,;
the most restrictive.'
(d) The following information shall be submitted to the
Building and Safety Division for review and
approval:
(1) Each wall sign shall require a separate permit;
(2) Plans shall delineate the location of
disconnect switch;
(3) Verification of U.L. approval;
(4) Plans shall delineate method of attachment for
each sign; and
(5) Plans shall delineate size, location of each
sign.
(e) The applicant shall comply with Planning and Zoning,
and Building and Safety Division's and Public Works
Division's requirements.
(f) This grant is valid for one year and construction
shall commence (i.e. footings) within this one year
period or the grant shall expire.
(g) This grant shall not be effective for any purpose
until the permittee and owner of the property
involved (if other than the permittee) have filed,
within fifteen (15) days of approval of this grant,
at the City of Diamond Bar Community and Development
Services Department/Planning Division, their
affidavit stating that they are aware of and agree
to accept all the conditions of this grant.
Further, this grant shall not be effective until the
permittee pays remaining City processing fees.
(h) If the Department of Fish and Game determines that
Fish and Game Code Section 711.4 applies to the
approval of this project, then the applicant shall
remit to the City, within five days of this grant's
approval, a cashier's check of $25.00 for a
documentary handling fee in connection with Fish and
Game Code requirements. Furthermore, if this
project is not exempt from a filing fee imposed
because the project has more than a deminimis impact
on fish and wildlife, the applicant shall also pay
to the Department of Fish and Game any such fee and
any fine which the Department determines to be owed.
The Planning Commission shall:
• (a) Certify to the adoption of this Resolution; and
61
(b) Forthwith transmit a certified copy of this <�
Resolution, by certified mail, Wohl/Diamond Bar, <.
LLC, 2402 Michelson Drive, #170, Irvine, CA 92612. .°
APPROVED AND ADOPTED THIS 14TH DAY OF APRIL 14, 1998, BY
THE PLANNING COMMISSION OF THE CITY OF DIAMOND BAR.
BY:
Joe McManus, Chairman
I, James DeStefano, Planning Commission Secretary, do hereby certify
that the foregoing Resolution was duly introduced, passed, and adopted
by the Planning Commission of the City of Diamond Bar, at a regular
meeting of the Planning Commission held on the 14th day of April,
1998, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
•
ATTEST:
•
James DeStefano,_Secretary
N.
F CITY OF DIAMOND BAR
COMMU ; 'Y DEVELOPMENT DEPARTMENT
21660 E. Copley Drive Suite 190
(909)396-5676 Fax (909)861-3117
PLANNED SIGN PROGRAM APPLICATION
Record Owner Applicant
Name 110Yil/Diamond Bar, LLC Wohl/Diamond Bar, LLC
(Last name first) (Last name first)
Address 2402 Michelson Dr. 2402 Michelson Dr. #170
City Irvine, CA 92612 Irvine, CA 92612
zip -
Phone( )714/955-0115 Phone( )714/955-0115
cased rel $ — l
FPL #
Deposit $ 06
Receipt# `f3q 7
By
Date Rec'd
Applicant's Agent
pJvk 1eay
(Last name first)
PhoneO 7/ 4 9S6 —0 //"5
NOTE: It is the applicant's responsibility to notify the Community Development Director in writing of any change
of the principals involved during the processing of this case.
(Attach separate sheet, if necessary, including names, addresses, and signatures of members of aar*nerships, joint'yentures, and
directors of corporations.)
Consent. I certify that I am the owner of the herein described property and permit the applicant to file this
request. ,
• Signed A)-,� (",
(All record owners)
_ Date
1'
Certification: I, the undersigned, hereby certify under penalty of perjury that the information herein provided is
correct to the best of my knowledge.
Print Name
(Applicant or Agent)
Signed Date / ? /98
(Applicant or Agent)
Location 303-315 S. Diamond Bar Blvd.
(Street address or tract and lot number)
Zoning C; ti lz HNM lZa H 3 LkG
List number, size and type of sign(s) requested.
(Example: 2 - 8' x 9' Freestanding, double faced signs - 6 ft. high
1 - 3' x 24' Wall sign) -
7 Tenant gall Signs (channel illizninatec? cign§)
Length of lot frontage(s), if f--7
7,tanding or roof sign(s)
If roof sign, height of building
Length of building (space occupied) frontage, if wall sign
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SIGN CRITERIA EXHIBIT
DIAMOND BAR CENTER
These criteria have been established for the purpose of maintaining a continuity of quality and
aesthetics throughout the shopping center for the mutual benefit of all Tenants, and to comply
with the regulations of the City of Diamond Bar. Conformance will be strictly enforced and any
installed nonconforming or unapproved signs must be brought into conformance at the expense of
the Tenant.
I.
GENERALREQUIREMENTS
A. Each Tenant shall submit or cause to be submitted to the Landlord, for approval,
prior to fabrication, three (3) copies of detailed drawings indicating the location,
and method of attachment.
size, layout, design, color, illumination, materials,
B. Each Tenant shall submit to the City of Diamond Bar Planning Department, prior
to fabrication, three (3) copies of detailed drawings (one of which must have
location, size, layout, design, color,
written approval by Landlord) including the
for review and approval.
illumination materials and method of attachment,
C. All permits for signs and their installation shall be obtained by the Tenant or his
representative.
D. All signs shall be constructed and installed at the Tenant's expense.
E. Tenant shall be responsible for the fulfillment of all requirements and specification,
including those of the City of Diamond Bar.
F. All signs shall be reviewed for conformance with these criteria and overall design
quality. Approval or disapproval of sign submittals based on aesthetics or design
Landlord his authorized representative and the
shall remain the sole right of the or
City of Diamond Bar.
G. Tenant shall be responsible for the installation and maintenance of his sign. Should
Tenant's sign require maintenance or repair, Landlord shall give Tenant thirty (30)
Should Tenant fail to do
days written notice to effect said maintenance or repair.
same, Landlord shall undertake repairs and Tenant shall reimburse Landlord within
ten (10) days from receipt of invoice.
'H. Signing for Tenants of single purpose, free-standing building shall be in
conformance with the architecture of the building and shall be subject to this
Uniform Sign Criteria.
I. At the expiration or termination of Tenant's lease term, Tenant shall be required to
remove his signs and restore exterior to original condition.
• advised that prior to acceptance and final payment, each unit will be
All manufacturers are
inspected for conformance by an authorized representative of Landlord. Any signs found not in
conformance will be rejected and removed at tenant's expense.
A. General Specifications
1. No animated, flashing or audible signs will be permitted.
2. No exposed lamps or tubing will be permitted.
3. All signs and their installation shall comply with all local building codes, electrical
codes and Sign Ordinances_
4. No portable signs will be permitted.
S. Grand opening or promotional sales signs shall comply with the City of Diamond
Bar Sign Ordinance.
6. All cabinets, conductors, transformers and other equipment shall be concealed (See
Item IV, Paragraph D).
7. Painted lettering will not be permitted.
B. Location of Signs
1. All signs or devices advertising an individual use, business or building shall be
attached to the building at the location directed by Landlord and in accordance
with the Uniform Sign Criteria.
2. Because of the unique design of this center, it is imperative that all sign contractors
check the pre -wiring requirements.
III. DESIGN REQUIREMENTS
A. All Tenants shall utilize the letter style as shown in Exhibit
B. Maximum width shall be equal to 66% of the lineal leased frontage. All lettering
will be centered horizontally on the demised premises where applicable or as
shown on the elevation drawings unless otherwise directed by Landlord. Sign area
per Tenant shall not exceed the amount shown on the Elevation drawings.
C. Letter height shall be 24" maximum unless Tenant's name cannot be
accommodated at that size, in which instance 18" letters may be approved.
D. Tenant with letter style other than shown in Exhibit "A" or colors other than the
criteria shows, may use them provided they are registered trademarks and/or are
•
H. Sign copy shall include minimal information only. The name of the store or
business shall be dominant message on the sign.
I. Trimcap retainers shall be used at the perimeter of sign letter faces and shall be
same color as the latter.
J.
Depth of letters to be 5".
IV. CONSTRUCTION REQUIREMENTS
A.
All exterior signs shall be secured by concealed fasteners, stainless steel or nickel
or cadmium
plated.
B.
All exterior signs exposed to the weather shall be mounted 1/2" from the building
to permit proper dirt and water drainage.
C.
All letters shall be fabricated using full welded construction.
D_
3/16" drain hole required at the bottom of each letter stroke.
E.
Plastic Faces for letters shall be 3/16" thick Rohm and Hass Companies plexiglass,
manufactured for outdoor advertising displays.
F.
Neon to be 13M.M. double tube for 24" letters and 13 M.M. single tube when
using the alternate smaller size of 18".
G.
No "crossovers" between letters or punctuation marks will be allowed.
H.
Metal portions of lettering to be primed with one (1) coat of automotive grade
primer and two (2) coats of enamel.
I.
All signs shall be connected to junction box provided by landlord and connected to
landlord's house panel. Final hook-up and connections by tenant's sign contractor.
J.
All penetrations of the building structure required for sign installation shall be
neatly be sealed in a water tight condition.
K.
Underwriter's Label required on all signs.
L.
No labels or other identification will be permitted on the exposed surface of signs
except those required by local ordinance which shall be applied in an
inconspicuous location.
M.
Sign contractor shall repair any damage caused by his work. Damage to structure
that is not repaired by the sign contractor shall become Tenant's responsibility to
correct.
_ ( 1. • _ __ __ _ ,.....tea«.. ..4 .rn nnl�
•
VI. INSURANCE
A. Sign company shall carry workmen's compensation and public liability insurance
against all damage suffered or done to any and all persons and/or erection of signs
in the amount of $1,000,000 per occurrence.
VII. INSTALLATION
A. Tenant's sign contractor shall complete install and connect sign display and primary
wiring at sign location stipulated by Landlord.
B. Landlord reserves the right to hire an independent electrical engineer (at tenant's
sole expense) to inspect the installation of all Tenant signs and to require the
Tenant to have any discrepancies and/or code violations corrected at the Tenant's
expense.
IX. STOREFRONT SIGNAGE
permitted to place upon each entrance of its demised
A. Each Tenant shall be
premises not more than 144 square inches of vinyl, lettering not to exceed two (2)
inches in height, indicating hours of business, emergency telephone numbers, etc.
B_ Tenants may install on the storefront, if required by the U.S. Postal Service, the
street address in the exact locations as stipulated by the Landlord. Numbers shall
be uniform in size and style as required by Landlord.
•
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• CITY OF DIAMOND BAR
INTEROFFICE MEMORANDUM
TO: CHAIRMAN AND PLANNING COMMISSIONERS
FROM: CATHERINE JOHNSON, SENIOR PLANNER C -:t'
SUBJECT: AGENDA ITEM #7.1 - CONDITIONAL USE PERMIT 98-1
AND DEVELOPMENT REVIEW 98-1
DATE: APRIL 9, 1998
Staff is requesting that CUP 98-1 and DR 98-1 for a proposed Bank of
America ATM at the Country Hills Towne Center be continued to the
meeting of April 28, 1998. The purpose of this request is to allow the
applicant time to resolve issues related to the proposed location of the
project.
attachment:
Letter from applicant dated April 9, 1998
c:cjlpcme49
0
To'd _iC101
facsimilo tranamission MCCLIER
• 611 West Sixth Street • Suite 1850
Los Angeles, CA 90017
213 892 1500
213 892 1055 Fax
date: April 9, 1998 to: Catherine Johnson
project 9: 77_604 fax: 909-861-3117
project: Diamond Bar ATM from: William J. Genta
subject CUP#DR 98-1 copies to: File, McNutt, Mueller
total pages including cover sheet: 1
IF ALL OF THESE PAGES ARE NOT RECEIVED, PLEASE NOTIFY THE SENDER AS SOON AS POSSIBLE.
Dear Catherine,
This fax is a follow-up to our conversation this morning regarding the Bank of America
proposed ATM installation at 2807 Diamond Bar Blvd. The various Bank Departments have
• reviewed the two options for this site, leaving the temporary location or installing a new
stucco building adjacent to the video store. The Bank has agreed with the recommendations
of the Sheriff's Department that the first choice with regards to security is to remain in the
current storefront location, the temporary site. The only outstanding issue is with the
landlord. The landlord is currently reviewing the lease terms in order to finalize the
negotiations with the Sank. There is every indication that the Bank and the landlord will
come to terms. However, if they cannot, we would proceed with the previously submitted
plans for a new building, incorporating the appropriate Sheriff's Department comments. I
understand that the time before the next scheduled hearing is rapidly approaching and you
need to assemble the Staff report. Please accept this correspondence as the request to
continue this matter for the Bank of America until such time as the landlord issues are
resolved. If you have any questions, or require additional information, please do not hesitate
to contact me. Thanks for your help.
Sincerely,
� J
i
William J. Genta
• Project Manager
McClier Corporation
714-567-2683 v
714-567-2780 fax
Transmitted by:
10:'TO'd 08Lc LSIS bTL `ti3f'I dN SEIL•1-10H 217:60 8661-60-adU
. CITY OF DIAMOND BAR
INTEROFFICE MEMORANDUM
TO: CHAIRMAN AND PLANNING COMMISSIONERS
FROM: CATHERINE JOHNSON, SENIOR PLANNER �T
SUBJECT: AGENDA ITEM #7.2 - DEVELOPMENT REVIEW 97-7
AND PARKING PERMIT 98-1
DATE: APRIL 9, 1998
Staff is requesting that DR 97-7 and PKP 98-1 for a proposed restaurant
at the Diamond Bar Towne Center be continued to the meeting of April
28, 1998. The purpose of this request is to allow the applicant time to
revise a required parking analysis in order to adequately evaluate the
parking conditions at the project site.
•
attachment: ,
Letter from property owner dated April 8, 1998
c:cj/pcme49a
0
Apr=08-98 02:57P P-02
NIKKO CAPITAL CORP.
April 8, 1998
City of Diamond Bar VIA FACSIMILE
Department of Community & Development AND U.S. MAIL
Services
Planning Division
Attn. Cathy Johnson
21660 E- Copley Dr., Suite 100
Diamond Bar, CA 91765-4177
Re: DIAMOND BAR TOWNE CENTER — JADE HOUSE RESTAURANT
1126 So. Diamond Bar Blvd., Diamond Bar, CA 91765
Dear Ms. Johnson:
. This letter represents our request for a continuance of the Planning Commission
hearing for the above referenced premises and restaurant until April 28, 1998.
We thank you for your attention to this matter, and should there be any further
questions, please contact Stan Heikkinen at (714) 852-0651.
Sincerely
•
Nikko Capital Corp.
By: x 7,
Nobu Okumura
Vice President
cc: Richard Chang
3�J61 MacArthur Blvd., Suit,; 105, Newport Beach, CA 92660 Tel. (714) 852.0,651 FAX (7141852-9009