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GUEST COMMENTARY - Last week, in her City Watch opinion piece, [No. 1 – Link to Romero opinion piece] former State Senate Majority Leader Gloria Romero called out the Planning and Land Use Management (PLUM) Committee of Los Angeles City Council for its use of a secret pre-PLUM meeting and associated Briefing Notes. Because the City’s pre-PLUM process is complex and multi-faceted, I wanted to highlight HOW Council Deputies appear to have communicated the positions of other City Councilmembers among themselves or to their City Council bosses – a singular act that Senator Romero confirms the Legislature outlawed in 2008 with the enactment of SB 1732.[No. 2 – Link to enacted bill]
My community’s lawsuit that Senator Romero supports [No. 3 – Link to Crane Blvd.]
has confirmed that just prior to each public PLUM Committee meeting, the PLUM Committee’s Deputies receive from an analyst in the Chief Legislative Analyst’s Office, Roberto Mejia, an email with an attached secret staff report which I will call the “CLA’s PLUM Notes”. What they do with that report is the focus of this City Watch article.
The City has admitted in written discovery responses that (1) persons attending the secret pre-PLUM meeting or (2) Council Deputies forwarding CLA PLUM Notes to their City Councilmember bosses, “sometimes” pass along the position of the Councilmember in whose district a Project lies that might be on that week’s PLUM Committee’s meeting agenda. We will leave for another time the implications of persons attending a pre-PLUM meeting who disclose the positions of City Councilmembers to the PLUM Committee Chair’s closest deputies.
Let’s focus on what happens when Council Deputies of the remaining four members of the PLUM Committee receive Mr. Mejia’s CLA PLUM Notes. To assist, I provide a flowchart of the pre-PLUM process as we now understand it from the City’s discovery admissions and employee testimony submitted in public Court records, and notations regarding the lack of transparency to the public. [No. 4 – pre-PLUM flowchart - SEE BELOW].
One of the surprising facts about the City’s pre-PLUM process is that tremendous discretion and power has been delegated to a mid-level analyst in the Chief Legislative Analyst’s Office – Roberto Mejia. Mr. Mejia has been the analyst assigned to the PLUM Committee for more than 23 years. He has served the PLUM Committee during the time when Ed Reyes, Jose Huizar, and now, Marqueece Harris Dawson, were the Chairmen of the powerful PLUM Committee.
Mr. Mejia is a lynchpin to the operation of the PLUM Committee, but his central role has, until now, never been made public. Mr. Mejia attends each non-public pre-PLUM meeting where the items for the upcoming PLUM Committee public meeting are discussed. In the days after the pre-PLUM meeting, including the weekend before a public PLUM Committee meeting, Mr. Mejia reads the materials in the City Council file and other public records. He then writes a report he testified is intended for the PLUM Committee City Councilmembers, called “PLUM Notes” or “Briefing Notes.” According to him, his summaries are one to two pages for each item, so for a PLUM Meeting with 15 items, including land use/CEQA appeals, the CLA PLUM Notes might run 30 or more pages for a typical meeting.
When Mr. Mejia emails his CLA PLUM Notes to a list of Council Deputies who serve the four other PLUM Committee members, he attaches the document in two formats: PDF and Word. I think it is significant that the CLA PLUM Notes are emailed, not to the City Councilmembers on the PLUM Committee who Mr. Mejia says he prepares these Notes, but instead only to their deputies, and in Word format.
The City’s discovery answers concede that at least some of the PLUM Committee members (maybe not all of them) receive modified or edited “Briefing Notes” from their deputies. [No. 5 – Link to Special Interrogatories responses]
Why do the Council Deputies modify or edit the CLA PLUM Notes they receive from Mr. Mejia’s office? According to City admissions, the Council Deputies add below Mr. Mejia’s analysis of each item further information they believe their PLUM Committee City Councilmembers should know. The City admits that in these communications “sometimes” the Council Deputies disclose the position of the City Councilmember in whose district a project lies that might be on the agenda of the meeting. And remember that PLUM Committee meetings incredibly process as many as a half dozen land use/CEQA appeals in a single meeting.
Senator Romero’s 2008 legislation added a clarification to the State’s Open Meeting Law (the Brown Act). Government Code section 54952.2(b)(2) states that the prohibition against a serial meeting “shall not be construed as preventing an employee or official of a local agency, from engaging in separate conversations or communications outside of a meeting authorized by this chapter with members of a legislative body in order to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency, if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body.” Translated into the plainest terms, Council Deputies can provide information or answer substantive questions about an item of business or real estate development project, including the merits of a land use/CEQA appeal, but they are prohibited from disclosing the comments or position of any other member of the City Council.
This is significant because the serial meeting prohibition of the Brown Act, and fair hearing principles in constitutional law, require that when City Councilmembers sit like judges in hearing a land use or environmental (California Environmental Quality Act, CEQA) appeal, they are required to decide the case on the merits of the appeal learned in the hearing process, not simply defer to whatever the Councilmember wants in whose district a Project might lie. The Councilmember’s position is not evidence.
In a normal California city, land use appeals, especially controversial projects, feature the commitment of time, sometimes hours, of the Planning Commission or City Council to receive detailed materials in the Council file and careful consideration of a staff presentation, arguments and testimony of the parties, and public testimony of persons affected by the Project and public comment. But as I have testified, [No. 6 – Link to Kenyon/Romero declarations] based upon changes to the way appeal hearings are conducted at the City of Los Angeles I have seen or learned about, multiple major projects under appeal are now decided at the same PLUM Committee meeting with the most cursory public review. Sometimes votes are taken after allowing only a few minutes of oral hearing (as little now as 5 minutes per side). Exhibiting a complete lack of knowledge or curiosity about the issues in some important appeals, I have or others have seen votes taken by the PLUM Committee after hardly any questions or discussion. Are PLUM Committee members extremely efficient, or have they read little to anything on the merits of land use appeals?
How does this increasingly diminished land use/CEQA appeal process, as seen by members of the public and press at PLUM Committee meetings, relate to the evolution of the secret CLA PLUM Notes staff report we now know is passing around behind the scenes? We do not know. The City, through its deputy attorneys, claim everything about the CLA PLUM Notes, including any modifications or edits by Council Deputies before passing the Notes on to their City Councilmember bosses, are privileged. Thus, the City’s attorneys claim CLA PLUM Notes must remain secret because the public interest in preserving the City’s pre-PLUM process outweighs our need to pursue justice (access to the evidence necessary to investigate the truth of the City’s claims that the sharing of Councilmember positions has been happening only “sometimes” and not “frequently” or “routinely” as we suspect). I doubt that the public would agree with the City’s attorneys that there is a public interest in such secrecy.
As Senator Romero decries, each one of these acts – each passing of a City Councilmember’s position on to Council Deputies, who will pass it on to another City Councilmember --- was made unlawful in Senator Romero’s 2008 bill (SB 1732). In her bill, the Legislature expressly disapproved any contention that each predicate act by City employees leading toward a majority of the PLUM Committee learning of another City Councilmember’s position was not in and of themselves also a prohibited act. The parties to the litigation will have to hash out how Richard Nixon had no “absolute privilege” to withhold evidence of his unlawful acts in the Watergate era case of United States v. Nixon, but the City says it somehow holds a “privilege” to withhold evidence of its own unlawful conduct from us.
Regardless of these ridiculous attorney claims defending the indefensible, I urge that City officials and voters need to step back and examine the PLUM Committee pre-PLUM process in broader terms. Should the PLUM Committee land use appeal process be reformed, with decision making placed in the hands of an expert appeals board beyond City Council and Mayoral manipulation? Why is the current pre-PLUM meeting secret instead of public like Agenda Setting Meetings in other cities? Why is a secret CLA PLUM Notes staff report created and never made public in the decision making over some of the City’s most controversial and challenging land use decisions? Why is a mid-level analyst given the power to decide what facts in the entire public record are relevant for the PLUM Committee members and their Council Deputies to know in deciding land use appeals? Is he the only City official that reads the contents of the City Council File? Why does the City’s attorney claim that the CLA PLUM Notes, that only contain already public information, cannot even be reviewed by the Courts of this state? Who made Mr. Mejia’s secret report unaccountable to anyone?
Persons interested in City Charter reform, other City Councilmembers, members of the press, neighborhood councils of the City, the League of Women Voters, and community activists of all stripes need to grapple with these and other questions in determining whether the PLUM Committee ought to be allowed to continue its land use appeal operations. The current process appears to be designed and operated to intentionally mask routine communication of other City Councilmember positions on land use/CEQA appeals as the substantial basis of constitutional hearing decision making. The City’s residents deserve a lawful and open process – not a process that seems designed to hide that violates the serial meeting prohibitions of state law and related basic constitutional fair hearing principles.
(Mark Kenyon, a 40-year resident of Los Angeles, has dedicated much of his life to land use, housing, and environmental issues. He served as the Executive Director of North East Trees for over a decade before retiring earlier this year.)
