PART II (of II): Mayor Promotes Closed, Secretive Government through Ad Hoc Advisory Committees

With regard to ad hoc advisory committees, Mayor Sue McCloud has a record of initiating the creation of ad hoc advisory committees without direction for open meetings which is within her power to do at the time of the formation of the ad hoc advisory committees.

Basically, with respect to California’s Ralph M. Brown Act, there are two types of city council subcommittees: standing committees and ad hoc advisory committees. Under the Brown Act, ad hoc advisory committees are not required to comply with open meeting requirements, although the mayor can direct ad hoc advisory committees to conduct open meetings when the committees are formed.

Furthermore, ad hoc advisory committees have certain characteristics, including:

1. Created by the mayor; members are appointed by the mayor.

2. Ad Hoc Committees are composed of less than a quorum of the City Council.

3. Ad Hoc Committees have a “fixed, limited assignment;” they are created for a limited time for a particular purpose.

4. In general, the purpose of Ad Hoc Committees is for detailed review and analysis of complex issues.

5. The findings and recommendations of the Ad Hoc Advisory Committees must be presented to the City Council at a noticed meeting.

6. Ad Hoc Committees are disbanded after completion of their “assignments.”

Important information about Ad Hoc Advisory Committees from The Ralph M. Brown Act, as follows:

Ad Hoc Advisory Committees

CHAPTER I.
PURPOSE AND SCOPE
The Ralph M. Brown Act (Gov. Code, § 549501 et seq., hereinafter “the Brown Act,” or “the Act”) governs meetings conducted by local legislative bodies, such as boards of supervisors, city councils and school boards. The Act represents the Legislature’s determination of how the balance should be struck between public access to meetings of multi-member public bodies on the one hand and the need for confidential candor, debate, and information gathering on the other. As the rest of this pamphlet will indicate, the Legislature has established a presumption in favor of public access. As the courts have stated, the purpose of the Brown Act is to facilitate public participation in local government decisions and to curb misuse of the democratic process by secret legislation by public bodies. (Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547, 555.) To these ends, the Brown Act imposes an “open meeting” requirement on local legislative bodies. (§ 54953 (a); Boyle v. City of Redondo Beach (1999) 70 Cal.App.4th 1109, 1116.)

However, the Act also contains specific exceptions from the open meeting requirements where government has a demonstrated need for confidentiality. These exceptions have been construed narrowly; thus if a specific statutory exception authorizing a closed session cannot be found, the matter must be conducted in public regardless of its sensitivity. (§ 54962; Rowen v. Santa Clara Unified School District (1981) 121 Cal.App.3d 231, 234; 68 Ops.Cal.Atty.Gen. 34, 41-42 (1985).)

Any board, commission, committee or other body of a local agency created by charter, ordinance, resolution or formal action of a legislative body is itself a legislative body. (§ 54952(b).) Generally, this is the case regardless of whether the body is permanent or temporary, advisory or decision-making. However, there is a specific exemption for an advisory committee which is comprised solely of less than a quorum of the members of the legislative body that created the advisory body. (§ 54952(b).) This exception does not apply if the advisory committee is a standing committee. (§ 54952(b).) A standing committee is a committee which has continuing jurisdiction over a particular subject matter (e.g., budget, finance, legislation) or if the committee’s meeting schedule is fixed by charter, ordinance, resolution or other formal action of the legislative body that created it. (See examples, infra, p. 6.)

When a legislative body designates less than a quorum of its members that does not constitute a standing committee to meet with representatives of another legislative body to exchange information and report back to their respective bodies, a meeting between the representatives woule be exempt for the Act. (Joiner v. City of Sebastopol (1981) 125 Cal.App.3d 799, 805.) However, if a legislative body designates less than a quorum of its members to meet with representatives of another legislative body to perform a task, such as the making of a recommendation, an advisory committee consisting of the representatives from both bodies would be created. Such a committee would be subject to the open meeting and notice provisions of the Act. (Joiner v. City of Sebastopol (1981) 125 Cal.App.3d 799, 805.) The fact that the advisory committee was contingent upon the second body’s compliance does not detract from the conclusion that the creation of the committee must be attributed to the first body’s action. (Joiner v. City of Sebastopol (1981) 125 Cal.App.3d 799, 805.)

The following illustrates how section 54952(b) operates. A city council creates four bodies to address various city problems.

• Commission comprised of councilmembers, the city manager and interested citizens: This committee is covered by the Act because there is no exemption for it regardless of whether it is decision-making or advisory in nature.

• Advisory committee comprised of two councilmembers for the purpose of reviewing all issues related to parks and recreation in the city on an ongoing basis: This committee is a standing committee which is subject to the Act’s requirements because it has continuing jurisdiction over issues related to parks and recreation in the city.

• Advisory committee comprised of two city councilmembers for the purpose of producing a report in six months on downtown traffic congestion: This committee is an exempt advisory committee because it is comprised solely of less than a quorum of the members of the city council. It is not a standing committee because it is charged with accomplishing a specific task in a short period of time, i.e., it is a limited term ad hoc committee.

• Advisory committee comprised of two councilmembers to meet on the second Monday of each month pursuant to city council resolution: This committee is subject to the Act as a standing committee because its meeting schedule is fixed by the city council.

54952. Definition of legislative body
As used in this chapter, “legislative body” means:

(a) The governing body of a local agency or any other local body created by state or federal statute.

(b) A commission, committee, board, or other body of a local agency, whether permanent or temporary, decision-making or advisory, created by charter, ordinance, resolution, or formal action of a legislative body. However, advisory committees, composed solely of the members of the legislative body that are less than a quorum of the legislative body are not legislative bodies, except that standing committees of a legislative body, irrespective of their composition, which have a continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body are legislative bodies for purposes of this chapter.

(Source: http://caag.state.ca.us/publications/2003_Main_BrownAct.pdf)
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COMMENT:
While the Sunset Theater Ad Hoc Management Committee, the Sunset Theater Ad Hoc Finance Committee, the Economic Revitalization (ER) Ad Hoc “Team” and the Ad Hoc Library Committee are considered ad hoc committees under the Brown Act, the Traffic Safety Commission, which was defined as a body which would meet on an “as needed basis depending on the number of traffic and safety issues that are submitted for review,” appears to be a standing committee; that is, it is “a committee which has continuing jurisdiction over a particular subject matter” (e.g., traffic and safety). Ergo, the Traffic Safety Commission would be required to hold meetings open to the public.

In any event, as stated in the Brown Act, not only is the Brown Act’s intent to “facilitate public participation in local government decisions and to curb misuse of the democratic process by secret legislation by public bodies,” but exceptions to open meeting requirements are supposed to be “construed narrowly” and the burden is on the government to demonstrate a “need for confidentiality.” Moreover, it is within the power of mayors to dictate that ad hoc committees conduct open meetings at the formation of the ad hoc committees.

PART I (of II): Mayor Promotes Closed, Secretive Government through Ad Hoc Advisory Committees

As mayor of Carmel-by-the-Sea, Sue McCloud has created several ad hoc advisory committees on major and important issues without direction for their meetings to be open to the public.

HISTORY & BACKGROUND:

I. In early 2003, Mayor McCloud initiated the creation of the Sunset Theater Ad Hoc Management Committee and the Sunset Theater Ad Hoc Finance Committee. The mayor’s appointments to the Ad Hoc Management Committee included Jim Price, Alan Brenner, Walter McCarthy, Jim Sanders, and Shan Sayles. Advisors Joe Truskot and Willem Wijnbergen were also appointed. The mayor’s appointments to the Ad Hoc Finance Committee included Mike Cunningham, Dick Borda, Don Hilburn, Bill Scearce and City CPA Paul Wood.

Only later, at the Special Meeting of the City Council on 21 October 2003, was the public suddenly aware of the agenda item “CONSIDERATION OF RESOLUTION NO. 2003-128 RECOGNIZING THE "SUNSET CULTURAL CENTER" AS A NONPROFIT CORPORATION AND AUTHORIZING THE CITY ADMINISTRATOR TO NEGOTIATE A MANAGEMENT/LEASE AGREEMENT.”

Since at the formation of the ad hoc committees the mayor did not give direction for open meetings, the Ad Hoc Management Committee’s and the Ad Hoc Finance Committee’s closed meetings resulted in the public being unaware of the process by which the Sunset Cultural Center, Inc. (SCC) was installed as the non-profit organization to manage Sunset Center.

II. At the City Council meeting on 3 October 2006, the City Council unanimously voted “to reconstitute the Traffic Safety Commission as an ad hoc committee of the City Council.” The mayor-appointed ad hoc committee members were to consist of a member of the City Council, a member of the Planning Commission, a member of the public at-large nominated by the Mayor and ratified by the majority of the Council and the Public Safety Director. The Ad Hoc Traffic Committee would meet on an “as needed basis depending on the number of traffic and safety issues that are submitted for review.”

Since at the formation of the Ad Hoc Traffic Committee the mayor did not give direction for open meetings, the rationale for their recommendations to the City Council will not be known by Carmelites.

III. After the sudden and unexpected termination of the Economic Development Coordinator in late 2006, the City Council formed an ad hoc committee “to develop an economic development plan for the business area.” The mayor-appointed ad hoc committee included Tom Glidden (La Playa Hotel), Tod Strain (Macerich – Carmel Plaza), Jeff Burghardt (Anda Burghardt – City’s marketing consultant), Council Member Paula Hazdovac, the Community Services Director Christie Miller, City Clerk Heidi Burch, and the City Administrator. After their first meeting in January 2007, they renamed the committee the “Economic Revitalization (ER) Team." Between January 2007 and March 2007, the Ad Hoc “Team” met a total of four times.

Since the mayor did not give direction for open meetings, Carmelites are unaware of the reasoning and rationale used for many of their dubious “policy goals” and “objectives,” such as a “Fine dining concession at Del Mar Beach.” Moreover, there were no Carmel-by-the-Sea residents on the ad hoc committee to represent the residents’ point of view.

IV. At the City Council’s 6 February 2007 meeting, the City Council Members unanimously voted to “create an ad hoc committee of the Council to review the library study and encouraged the Mayor to find users of the library for the committee;" the ad hoc Library Committee included City Administrator Rich Guillen, City Clerk Heidi Burch, Acting Library Director Janet Cubbage, Library Foundation representatives Carol Nordahl (executive director) and William Tyler, Library Board member Fran Vardamis and David Evans, former Library Board member. Apparently, it was only due to the insistence of “two citizens” that the mayor acceded to their request and directed the ad hoc committee to conduct meetings open to the public. Thus, in this instance, the public is privy to the rationale employed for the ad hoc committee’s recommendations to the City Council.

SUMMARY:
In short, Mayor Sue McCloud’s over reliance on ad hoc advisory committees on major and important issues deprives citizens of the information we need to evaluate the wisdom of the ad hoc committees' recommendations and ultimately the decisions and actions of the City Council. Furthermore, the intent of the Ralph M. Brown Act is, as follows:
“...the Legislature has established a presumption in favor of public access. As the courts have stated, the purpose of the Brown Act is to facilitate public participation in local government decisions and to curb misuse of the democratic process by secret legislation by public bodies.”