Part IV
Supers reschedule planning vote after Brown Act lawsuit

By DAVID ROSS

Fourth in a series of articles about a proposal to end planning groups as we know them in San Diego County. Click here to read Part III
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Being the Board of Supervisors means never having to say you’re sorry, or to admit to having violated the law.

However, last week the Board of Supervisors came about as close to admitting a mistake as you are likely to see on the issue of the “Red Tape Reduction Task Force” (RTRTF) and the abolition of planning groups.

Having been socked in the teeth with a lawsuit by the non-profit public corporation CalAware, claiming that the board violated the Ralph M. Brown open meetings law in the way it adopted the recommendations of the RTRTF on Dec. 7, the supervisors backed down—although without admitting to doing anything wrong.

That doesn’t mean that the task force’s recommendations, including a recommendation to abolish planning groups, won’t come up for a vote. However, the final vote won’t be on Feb. 29, as originally planned. Instead, public testimony will take place at that time and then the board will revote on whether to accept the task force’s recommendations.

Planning groups could still end up on the chopping block, or see their functions severely limited.

When CalAware initially demanded that the board revote, County Counsel responded: “Chairman Bill Horn requested that I respond to your email and attached demand to cure alleged Brown Act violations. We have reviewed your demand and the authorities referenced therein and have determined that the Red Tape Reduction Task Force matter was properly placed on the Board of Supervisors agenda and that the actions taken by the Board of Supervisors complied with all Brown Act requirements. Therefore, there is no need for the County of San Diego Board of Supervisors to take any actions with respect to your demand letter.”

This prompted the filing of the lawsuit, that alleged, among other things, that the Board of Supervisors was provided with a copy of additional documentation from staff, “which was not made available for public inspection at the meeting,” and “that the agenda for the meeting made no indication that there would be any action even considered at the meeting, and instead merely recommended receiving and directing staff to evaluate the report, the Board decided to implement the Recommendations that it had already secretly received from staff…”

After the lawsuit was filed, the board met in closed session and issued a statement that backed down without admitting to any illegality: “There was no Brown Act violation. However, the Board understands that members of the public felt they had not had the chance to provide input at the December 7, 2011 Board meeting. The Board believes it is not worthwhile for the County or for the public to spend time and money on litigation. Therefore, on February 7, 2012, the Board will vacate the prior action. At a subsequent public meeting on February 29, 2012, the public will be invited to provide their comments.”

The Valley Center Community Planning Group (VCCPG), which last week voted to oppose the recommendation that planning groups be abolished, may give testimony at the Feb. 29 meeting.

However, VC planning group Chairman Oliver Smith said he wasn’t sure exactly how that will happen. “Any VCCPG Chair testimony on Feb 29th is somewhat open at this point because I am currently unsure whether the county Board of Supervisors will be re-voting on the RTRTF recommendations on the 29th or simply getting public input at that time. I think that it may be premature for the Board of Supervisors to vote on that day as it can be argued that the time between revocation/reacceptance on Feb. 7th and final public input on Feb. 29th is not enough to properly review all of the recommendations including those that most thought were already approved on Dec 7th.”

Rich Rudolf, a member of the planning group, commented on the board’s decision to take a mulligan on the Dec. 7 vote. “Speaking for myself, not the Planning Group, I was happy to see the Board of Supervisors is going to rescind their improper actions on the Red Tape Task Force Report in December.

“However, it seems clear that there were two Brown Act violations, which the Board has not acknowledged. Maybe if the plaintiff presses on and gets a court to determine that, this won't happen again? One would hope that we have not descended to the situation where the Board thinks it can do anything it wants unless there is someone with the financial ability to sue them to make them comply with the law.”

Rudolf says the damage done by the Dec. 7 vote on the RTRTF extends to other things that were on that meeting’s agenda. “I am also concerned about the confusion they have caused. Will they just re-approve the ‘Green Sheet’ on Feb. 7, or Feb. 29, so that again neither the staff nor the public has a reasonable time to understand what they propose to do, and provide meaningful input?”

He notes, for example that there was also a labor issue on the docket that day.

“Isn’t the recommendation for the outside Audit Committee (presumably made up of developers) to evaluate staff performance and affect assignments, promotions, and bonuses, a ‘Meet and Confer’ labor law issue which cannot be implemented without at least talking to affected employees and/or their union? Since the public had no idea that was being suggested, much less implemented unilaterally by the Board on Dec. 7, perhaps the employees and unions didn't know about it either?”