Agenda packet, regular meeting, second session — Banning City Council, October 8, 2024 (part 4 of 5)

within twenty-four (24) hours after the time of adjournment. When a regular or adjourned regular meeting is adjourned as provided herein, the resulting adjourned regular meeting shall be a regular meeting for all purposes. When an order of adjournment of any meeting fails to state the hour at which the adjourned meeting is to be held, it shall be held at the hour specified for regular meetings.

If the subsequent meeting is conducted within five (5) days of the original meeting, matters properly placed on the agenda for the original meeting may be considered at the subsequent meeting. If the subsequent meeting is more than five (5) days from the original meeting, a new agenda must be prepared and posted pursuant to Government Code Section 54954.2.

3.4 Affidavit of Posting
Immediately following the posting of the notice and agenda, the Clerk/Secretary, or his or hertheir designee, shall complete an Affidavit of Posting, in a form to be developed by the Clerk/Secretary. The Affidavit of Posting shall indicate the time of the posting, the location(s) of the posting, and shall be signed under penalty of perjury. The Clerk/Secretary shall retain all such affidavits, together with a copy of each notice and agenda so posted. The affidavit, notice, and agenda shall be retained at least two (2) years subsequent to the date of posting, and pursuant to Government Code § 34090Government Code Section 34090, shall not be destroyed by the Clerk/Secretary thereafter except in accordance with the City’s record retention policies.

ARTICLE IV– CLOSED SESSIONS

4.1 Generally
The Legislative Body may hold closed sessions during a regular or special meeting, or at any time otherwise authorized by law, to consider or hear any matter which it is authorized by State law to hear or consider in closed session. Public comment shall be permitted on closed session matters prior to the closed session. If a closed session is included on the agenda, the description of the item shall meet the requirements of and shall identify the statutory basis for the closed session. During closed session, the Legislative Body shall exclude all persons which it is authorized by State law to exclude from a closed session. No minutes of the proceedings of the Legislative Body during a closed session are required. There shall be no closed session during any special emergency meeting. Closed session may not be held regarding a matter not listed on a properly posted agenda for closed session except upon the Legislative Body first taking action to place the item on the agenda as a closed session item as permitted by law.

4.2 Persons Authorized
Persons present in the closed session shall be only those persons necessary to the discussion of the matter under consideration. All other persons shall be excused. The Clerk/Secretary shall attend each closed session of the Legislative Body and keep and enter into a minute book a record of any reportable decisions made at the meeting, unless attendance is excused.
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4.3 Confidentiality
The minute book for any closed session is not a public record and shall be kept confidential and shall be available only to members of the Legislative Body or as otherwise provided by law. (Government Code § 54957.2(a).) No person attending a closed session shall publicly discuss or otherwise reveal the proceedings in the closed session unless such publication has been approved by the vote of the Legislative Body taken during the closed session or as otherwise required by law. Violation of this rule shall subject the violator to censure by the Legislative Body as provided in Section 10.5 herein.

4.4 Public Reports
Before recessing into closed session, the Presiding Officer or General Counsel shall announce that the Body is recessing into closed session and shall name each closed session topic that will be discussed in closed session in at least as much detail as shown on the agenda.

Upon leaving closed session, the Presiding Officer or General Counsel shall report publicly any reportable actions taken on a closed session matter and, if any vote was taken, shall announce that the matter was put to a vote, the results of the vote, and how each Legislative Body member voted.

ARTICLE V - AGENDA CONTENTS

3.5 Preparation of Agendas
Barring insurmountable difficulties, the agenda shall ordinarily be delivered to the members of the Legislative Body on Friday (as an informal deadline) preceding the meeting to which it pertains. The agenda shall also be available to the general public at the time it is delivered to the members of the Legislative Body, or in any case as required by the Brown Act.

Any Legislative Body member may have the City Manager have place any businessd on the agenda any business that should be discussed under the item of the regular meeting agenda titled “News Items.” deliberated upon in the future by the Legislative Body. Any Legislative Body member desiring to present a subject for the Legislative Body’s consideration shall advise the City Manager’s office of that fact not later than 12:00 noon on the Tuesday of the week preceding the meeting at which the member wishes the subject to be considered. The matter shall then be listed on the next agenda for discussion under Item 11 (New Items) of the regular meeting agenda. The Legislative Body shall then determineof whether the proposed itemit should be a future agenda item for discussion and deliberation by consensus. The City Manager shall advise the Legislative Body member of constraints affecting staff’s ability to produce an agenda report, and when the matter should be scheduled.

Notwithstanding the foregoing, the City Manager generally has responsibility for setting the agenda for the Legislative Body (except for any Commission other legislative body where the responsibility may be assigned to the City Manager’s designee) and may place matters on the agenda in accordance with the City Manager’s evaluation of administrative priorities and resource capacities of the City.
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3.6 Description of Matters
All items of business to be transacted or discussed at a meeting of the Legislative Body, shall be briefly described on the agenda. The description may, but need not, set out the specific action or alternatives which will be considered by the Legislative Body, but should contain sufficient detail so that a person otherwise unaware could determine the general nature or subject matter of the item by reading the agenda. The description of closed session matters shall meet the requirements of Government Code Sections §54954.2Government Code Section 54954.2 and, where applicable, §Section 54954.5. Matters may be designated as “pendingNew Items” and listed for the sole purpose of determining if they will be on a future agenda.

3.7 Action Items
(a) ItemsMatters may formally be adopted by an ordinance, a resolution, minute order, or other motion (thereafter recorded by minute entry). Technically, all three are equally as legally effective and binding but vary in the formality of respective memorialization.

While most actions will be presented to the Legislative Body in a written form prior to, or at, the meeting, the Legislative Body may amend any proposed action as written by carried motion of the Legislative Body at the time of its presentation for adoption. If an action as written is so amended by the Legislative Body, it shall be revised to reflect the Body’s amendments for later execution by the Presiding Officer.
(b) Besides ordinances and resolutions, action can be taken by motion and recorded as a minute order. A “minute order” denotes a Legislative Body action which is recorded simply by an item entered in the minutes of the meeting at which it was accomplished, and no separate document is made to memorialize it.
(c) As a general rule, a recorded majority of the quorum for a Legislative Body may take an action. However, for the City Council, resolutions, orders or the payment of money, and all ordinances require a recorded majority vote of the total membership of the City Council.

Some actions, such as the passage of an urgency ordinance or adoption of a resolution of necessity to condemn property, require a super-majority vote. Under the Political Reform Act of 1974, a member with a financial conflict of interest regarding a matter before the member’s board must leave the room while that matter is being discussed, heard, or acted on, so that member cannot be counted towards the quorum for that matter.

3.8 Resolutions
(a) A “resolution” is a formal action with findings taken by the Legislative Body, generally pre-prepared in writing, designated by sequential number, and reference to which shall be inscribed in the minutes and an approved copy of each resolution filed in the official book of resolutions of the Legislative Body. Resolutions are used when specifically required by law, when needed as a separate evidentiary document to demonstrate findings or to be transmitted to another governmental agency, or where the frequency of future reference back to its contents warrants a separate document (with the additional “whereas” explanatory material it often recites) to facilitate such future reference and research.
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(b) A resolution may be adopted at the same meeting it is presented. Where a resolution has been prepared in advance, the procedure shall be: motion, second, discussion, vote pursuant to methods prescribed in Article 10XI, and result declared. It shall not be necessary to read a resolution in full or by title except to identify it. (c) Where a resolution cannot reasonably be prepared in advance of a meeting, the Legislative Body may instruct the City Manager or the General Counsel to prepare a resolution for presentation at the next Legislative Body meeting. Where urgent, a resolution may be presented verbally in motion form together with instructions for written preparation for later execution. After the resolution has been verbally stated, the voting procedure in Article 10XI, shall be followed.

3.9 Ordinances (City Council Only)
(a) The City Council is the only Legislative Body empowered to amendlegislate the Banning Municipal Code by adoption of ordinances. (b) Ordinances, other than urgency ordinances, require at least two readings at different meetings held at least five days apart with the first reading considered to be introduction of the ordinance and the second adoption.
(c) A waiver of further readings requires a majority vote of the Council members present and voting. The waiver of further reading may be accomplished by one vote for all ordinances presented on the agenda of the present meeting. Government Code Section 36934. (d) The Clerk/Secretary shall prepare copies of all proposed ordinances for distribution to all members of the City Council at the meeting at which the ordinance is introduced, or at such earlier time as is expedient. Ordinances shall be numbered and kept by the Cclerk/Ssecretary with the same formality as resolutions as described above in Section 5.43.8. (e) An urgency ordinance is an ordinance adopted for the immediate preservation of the public peace, health, and safety, containing a declaration of facts constituting the urgency. An urgency ordinance takes effect immediately and requires a four-fifths vote of the City Council for passage pursuant to Government Code §Section 36937.

3.10 Contracts and Agreements
When any contract or agreement is to be considered by the Legislative Body, the complete contract and agreement, if complete in form for execution, shall be made a part of the agenda package presented to the Legislative Body and shall be made available for viewing by the public within the time frames required under the Brown Act and/or the California Public Records Act (Government Code §§Sections 7920.000 et seq.6250 through 6276.48). The Legislative Body may choose to leave the final form of the contract to the discretion of General Counsel if the Legislative Body has determined the general conditions of the contract. 591

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3.11 Limitation of Actions by Agenda
No action or discussion shall be taken by the Legislative Body, on any item not appearing on a posted agenda, subject only to the exceptions listed in Section 5.93.13 below. “Action taken” as used herein shall mean a collective decision made by a majority of the Legislative Body, a collective commitment or promise by a majority of the Legislative Body to make a positive or a negative decision, or an actual vote by a majority of the Legislative Body upon a motion, proposal, resolution, order, or ordinance.

3.12 Public Comment Period
Pursuant to Government Code §Section 54954.3, every agenda posted for any meeting shall contain an item entitled “Public Comment” in order to provide for an opportunity for the public to address the Legislative Body on items of interest to the public within the Legislative Body’s subject matter jurisdiction. The public comment period should be conducted in accordance with Article 6VII.

3.13 Exceptions to Agenda Requirement for Action Taken
The Legislative Body may take action at a meeting on an item not appearing on the agenda for that meeting only under one of the following circumstances:
(a) Upon a majority determination that an “emergency situation” exists that is either (i) a work stoppage, crippling activity, or other activity that severely impairs public health, safety, or both, or (ii) a dire crippling disaster, mass destruction, terrorist act, or threatened terrorist activity that poses peril so immediate and significant that requiring a Legislative Body to provide one-hour notice before holding an emergency meeting may endanger the public health, safety, or both. All discussion of such emergencies must be in open session. (b) Upon a determination by a two-thirds (2/3) vote of the Legislative Body, or if less than two-thirds (2/3) of the Legislative Body are present by a unanimous vote of those members present, that the need to take action arose subsequent to the agenda posting. For the purposes of this subsection, the term “need to take action” shall mean those circumstances whose occurrence creates a situation which is materially different from that which existed at the time the agenda was posted, and which requires the immediate attention of the Legislative Body. The mere failure of any person to notify the Legislative Body or staff of a pre-existing situation requiring Legislative Body attention until after the time for the posting of the agenda shall not be deemed to constitute a “need to take action” hereunder. If the Legislative Body makes a determination pursuant to this subsection, the minutes of the meeting at which the determination is made shall reflect what circumstances gave rise to the “need to take action” and why the item could not be placed on the agenda.

3.14 Minutes and Recordings
(a) An account of the actions taken in all proceedings of the Legislative Body in open meetings shall be kept by the Clerk/Secretary. The Clerk/Secretary shall prepare a n abbreviated record of the actions taken by the Legislative Body during open meetingsmeetings proceedings for approval by the Legislative Body, which when adopted by the Legislative Body shall be the 592

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official Minutes of the meeting. Amendment of the Mminutes may be made only as to factual accuracy of the actions taken and not as to a change of intent. The Minutes of the meeting need shall not be verbatim or summary. Only the best and most complete available audio recording of the meeting shall constitute the official record of the Legislative Body, but the Minutes shall constitute the official record of the Legislative Body meeting where a verbatim audio record of the meeting is not available.
(b) If members of the Legislative Body make comments during a meeting of the legislative body, the members may not request that the Clerk/Secretary attach written comments to the Minutes that are verbatim of the comments made during the meeting. (c) Any recording of a meeting made by or at the direction of the Legislative Body is a public record that must be retained and made available to the public for at least 30 daysin accordance with the Public Records Act. The Legislative Body must provide to the public, without charge, equipment to review the recordrecording.

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ARTICLE 4 – CLOSED SESSIONS
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ARTICLE 4 – CLOSED SESSIONS

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ARTICLE 5 – ORDER OF BUSINESS
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ARTICLE VI5 – ORDER OF BUSINESS

5.1 Order of Business
The order of business of each meeting shall be as contained in the agenda prepared by the Clerk/Secretary unless the majority of the Legislative Body members consent to take items out of order. The order of business at meetings of the Legislative Body may be as follows, in accordance with the procedures specified below:

1. Call Meeting to Order.
• Pledge of Allegiance
• Roll Call
Invocation.

Pledge of Allegiance.

Roll Call.

1. Agenda Approval.

2. 1. Announcement of Closed Session Items, if applicable.

Public Business from the floor on closed session items.

Recess.

Reconvene Regular Meeting.

Pledge of Allegiance.

3. Presentations.

2.4. Closed Session Report, if applicable.

3. Public Comments, Correspondence, Presentations, Appointments, and Reports.

4.5. Announcements and Reports

5.6. Consent Items. (See Section 56.3 below.)

6.7. Public Hearings.

7.8. Reports of Officers.

8.9. Discussion Items.

10. Announcements from Legislative Body Members.

9.11. Items for Future Agendas (Pending MattersNew Items; Existing Items).

10.12. Adjournment.

5.2 Call to Order
The meeting of the Legislative Body shall be called to order by the Presiding Officer, or the Vice-Chair in the Presiding Officer’s absence. In the absence of both the Presiding Officer and Vice Chair, the meeting shall be called to order by the Clerk/Secretary and the three Legislative Body members present shall elect by majority vote a Presiding Officer for that meeting.

5.3 Consent Items
Matters of a routine or generally uncontested nature and non-controversial, shall be placed on the agenda as Consent Items and may be approved by the Legislative Body in a single motion by adoption of the Consent Calendar. Matters of a routine or generally uncontested nature and Formatted
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non-controversial may include a matter where the City Manager believes (i) the matter would most likely be unanimously approved by the Legislative Body, or (ii) there is not likely to be public comment on the matter, or (iii) a public presentation of the matter would not be particularly beneficial to the community or public interest. The approval of the Consent Calendar shall signify the approval of each matter or recommendation included therein. All matters on the Consent Calendar shall be the subject to public comment procedures in Article 6VII. Upon the request of any member of the Legislative Body or upon the request of a member of the public made through the Presiding Officer, a matter may be removed from the Consent Calendar for separate discussion and/or action. Any such item shall be considered as part of the Excluded Consent Calendar. Each matter proposed for consideration as part of the Consent Items, including any recommended action, shall be described on the notice and agenda posted for the meeting. The following matters are not appropriate for the Consent Calendar:
(a) Ordinances shall not be placed on the Consent Calendar for approval unless the ordinance has first been read or the reading of the ordinance has been waived as required by law.
(b)
Any matter where the City Manager believes (i) it the matter would most likely be unanimously approved by the Legislative Body, or (ii) there is not likely to be public comment on the matter, or (iii) a public presentation of the matter would not be particularly beneficial to the community or public interest.

5.4 City Representatives and Advisory Bodies (City Council Only) (a) From time to time the Council may be required to assign a representative of the City to non-City boards, commissions, or organizations (e.g., boards or commissions of another agency or joint powers authority). Except as otherwise required by law or by the policies of the non-City organization, the Mayor shall make all such appointments of City representatives on nonCity organizations after consultation with the City Council. Council appointments to non-City organizations shall be considered and made with the goal of keeping the appointee in the organization for a long enough period of time that the appointee may gain seniority and/or a position of leadership within the organization. This goal shall be construed to mean that the same appointee should remain within a non-City organization for at least two years where reasonably possible and convenient for said appointee. Nothing herein, however, shall be construed to limit or waive the City Council’s power to remove appointees pursuant to subsection (c) below. (b) The City Council shall have the power to establish advisory committees, commissions, other Legislative Bodies and Non-Governing Bodies. Any committee which is (i) established by ordinance, resolution, or other formal action, or (ii) has a fixed regular meeting schedule, or (iii) has continuing subject matter jurisdiction over a non-temporary issue, or (iv) which continues to conduct business in excess of 180 days, or (v) has a majority membership of officials from other Legislative Bodies, shall be subject to the provisions of the Brown Act.

Advisory bodies and committees may take the following form:

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i) The Council may, as the need arises, authorize the appointment of “ad hoc” Council committees composed of two members. Except where otherwise specifically provided by law, the Presiding Officer shall appoint the members of the Council committees, subject to the approval of the Council. Any committee so created shall cease to exist upon the accomplishment of the special purpose for which it was created or when abolished by a majority vote of the Council. ii) The Council may, subject to the Brown Act, create other committees, boards, and commissions, whether Legislative Bodies or Non-Governing Bodies, to assist in the conduct and operation of the City government with such jurisdiction and duties as the Council may specify. Except as otherwise required by law, the Mayor shall make appointments of members to such committees, boards, or commissions subject to the approval of the Council. The procedure of filling vacancies and provision of notice thereof shall be subject to the provisions of the Maddy Act (Government Code, §§Sections 54970-54974). iii) Sub-Legislative Bodies, including Non-Governing Bodies, shall be responsible for reporting the Body’s activities to the City Council. The members of a SubLegislative Body or Non-Governing Body shall operate within the jurisdiction established by the Council and shall not have authority to make subcommittees unless specifically granted such authority by action of the full City Council. Staff members may be assigned to assist any Councilcreated committee by the City Manager; staff members so assigned shall not be members of the committee unless specifically appointed as such by action of the full Council. (c) Absent any other provision to the contrary, members of any non-City organization, or City committees, boards or commissions may be removed by the Council without cause by a majority vote of the whole City Council body. Any member of the City Council may place the question of such removal on the agenda. Any committees, boards, or commissions so created may be abolished by a majority vote of the whole City Council body by repeal of the enacting ordinance or resolution.

5.5 Budgets
The City Council shall have the power to approve the City budget, and each Legislative Body shall have the power to approve the budget of funds specifically apportioned to control of that Legislative Body (e.g., the Successor Agency Board shall approve the budget of the Agency and the Housing Authority Board shall approve the budget of the Authority). Approval of the budget constitutes approval of a proposed plan of expenditures and revenues. It does not constitute an authorization for expenditures. With respect to any given expenditure the applicable procedure shall be followed. AFurther adoption of the budget does not, unless otherwise specified by resolution, constitute authorization for any specific employment class or position.

5.6 Items from Members, the City Manager, and the City Treasurer (a) There is a specific item on the agenda - “Announcements from Legislative Body Members” - for receiving general comments, announcements, and/or suggestions from members of the Legislative Body. This can be used to inform the public concerning upcoming events, report on members’ attendance at conferences and seminars, and for requests by members that staff look into specific matters or similar matters. These matters may not be discussed, opined upon, or deliberated, and if they do not concern a matter on the agenda, shall be handled by the 599

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Presiding Officer according to the same procedures set out for Public Comment in Section 6.27.3.

No action may be taken on such matters without being placed on a subsequent agenda. (b) There is an agenda item referred to as “New Itemspending matters.” Matters are listed under this item pursuant to Section 3.5.1 where a member has asked that the matter be scheduled for discussion of whether a future staff report should be prepared. The listing of the matter allows a discussion of whether a staff report should be prepared, or it may be held inon the pending “Existing Items” section of the agenda to keep track of when it will be assigned if the City Council determines that a staff report should be prepared forto a future agenda. (c) There is an agenda item referred to as “City Manager’s Reports from City Manager.” This may be used by the City Manager similarly to the item for members of the Legislative Body in Subsection (a) above to make announcements without separately listing the matter on the agenda, and subject to the same restriction that there may be no discussion or action on such matter.
(d) There is an agenda item referred to as Reports from “City Treasurer’s Report.” The City Treasurer shall attend the meetings of the Legislative Body, unless excused. The City Treasurer may report on (i) the activities of the City Council Budget and Finance Committee, and (ii) the duties of the City Treasurer as imposed under State law, except such duties otherwise delegated by the City Council to the City Clerk or the Administrative Services Director. (e) There is an agenda item referred to as “City Council Committee Reports.” Under this agenda item, City Council members may report on meetings of committees that City Council members are assigned to attend.

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ARTICLE 6 – PUBLIC COMMENT AND PRESENTATIONS
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ARTICLE 6VI– PUBLIC COMMENT AND PRESENTATIONS

6.1 City Council Meeting Presentations
City Council presentations are for providing information to the Mayor and Council, City management, and the community about activities of interest and value, including to include activities, events and infrastructure projects relating to the City, honors and celebrations for organizations, corporations and residents which reflect their service to the Banning community, honors, and recognitions for City staff for outstanding service or commitment to the City’s mission and goals. Please Note: This is not the appropriate time to seek funds from the City and/or endorsements from City Council or discuss politics.

All presentations are to be no more than five minutes in length, including; this is to include all speakers for the group being recognized. Please see the attached “Exhibit B” for a complete copy of the Banning City Council Meeting Presentation Policy contained and incorporated as an exhibit to thise Manual of Procedural Guidelines for the Conduct of City Council and Constituent Body/Commission Meetings for the City of Banning.

6.2 Public Comment
At the beginning of any Legislative Body meeting, the public shall be afforded the right to comment on any and all issues (not on the agenda) within the subject matter jurisdiction of the Legislative Body. Such general public comment on non-agendized issues shall be taken at the beginning of the meeting under a “General Public Comments” heading. Each speaker will be limited to a maximum of three (3) minutes to provide comments on non-agendized issues. With regard to matters not on the agenda, the Legislative Body may ask questions of persons who raise new matters during the General Public Comment period or otherwise. However, all Legislative Body questions must be limited to facts-only informational inquiries, and the Legislative Body may not discuss the merits, express any opinions, or ask questions that convey opinions or thought processes with respect to any non-agendized issue. The public shall also be afforded the right to comment on every item appearing on the agenda prior to the Legislative Body’s consideration of that item, as provided in Section 67.54 below.

6.3 Time Limitations
The time limit to speak for public comments is five (5) minutes during a noticed public hearing and to provide comments on all other agendized items, provided that these limits do not apply to a project applicant speaking at a public hearing pursuant to Article 7VIII. All such time limits shall be noticed on the agenda for the meeting. Notwithstanding these time limits, the Presiding Officer has the full prerogative to maintain meeting order and decorum as provided in Section 9.1 and Article 9X generally, and the Presiding Officer may reasonably reduce the time if there are a significant number of speakers or extend time if he/she finds such extension is reasonably necessary to allow the speaker to complete his/her message without repetition or unnecessary tangents.

6.4 Reserved
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6.54.1 Additional Procedures for Public Comment on Agenda Items (a) Members of the public shall have the opportunity to address the Legislative Body on each and every item listed on the agenda. Public comment on agenda items must be heard prior to the Legislative Body’s consideration/discussion of the item. Public comments on an agenda item may be heard either in combination with the General Public Comment period at the start of the meeting, or at the time the Legislative Body opens the item, or both, as determined by the Legislative Body and set forth in the agenda.
(b) The purpose of the public comment period is to receive input from the public, not to create a debate between the Members and the public. Members should generally refrain from debating members of the public during the period for public comment, but if Members desire to clarify comments by members of the public, they may ask factual questions, and if necessary, should do so during the public comment period.
(c) The Presiding Officer should clearly open and close the public comment period.

After the close of the public comment period or after a motion has been made, no member of the public shall address the Legislative Body without first securing permission of the Presiding Officer.

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ARTICLE 7 – NOTICED PUBLIC HEARINGS
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ARTICLE 7VII– NOTICED PUBLIC HEARINGS

7.1 Public Hearings; Notice; Fairness
(a) Matters noticed to be heard by the Legislative Body shall commence at the time specified in the notice of hearing, or as soon thereafter as is reasonably possible, and shall continue until the same has been completed or until other disposition of the matter has been made. (b) Legislative Body members shall not overtly or implicitly promise a particular action by City staff or by any Legislative Body. Where a Legislative Body member is contacted about an issue that will be presented to any Legislative Body of the City, it is appropriate to give a brief overview of City policy, to refer to City staff for further information, or to suggest that the concern be brought to the whole Council at the hearing or Council meeting, as appropriate. (c) All public hearing notices shall be issued and published in compliance with any statutory notice requirements applicable to the particular hearing at issue and such notice shall inform interested persons of the sStatute of lLimitations to challenge the validity any action taken Legislative Body on such matter.
(d) In all matters before a Legislative Body, whether public hearing or otherwise, the Legislative Body must judge the matter fairly and without personal bias. Although every Legislative Body member has a right to their own personal opinions, Legislative Body members should by their demeanor show an ability to listen to a variety of viewpoints and demonstrate a reasonable willingness to consider all sides of an issue before them. For quasi- adjudicative matters involving public hearings, the members of the Legislative Body shall not prejudice the matter prior to the public hearing, shall be fair and impartial, and shall decide the matter based upon the evidence and the statutorily required findings. (e) For such matters, Legislative Body members should avoid expressing an opinion or divulging their thought process until after the public hearing has been completed.

7.2 Continuance of Hearings
(a) Any hearing being held or noticed or ordered to be held by the Legislative Body may, by order or, notice of continuance, be continued, or re-continued to any subsequent meeting in the manner provided for adjourned meetings.
(b) When it is the decision of the Legislative Body to continue an item, which appears on the agenda, prior to hearing any report, testimony or taking evidence on the item, the Legislative Body may make such intent known at the beginning of the meeting. At that time, the public shall be offered the opportunity to speak regarding the intent to continue the item. At the time regularly scheduled for the hearing of the item, the Legislative Body shall then take action to continue the item after again informing the public of the intent to continue the matter. No testimony or evidence shall be taken at that time unless the speaker will not be available at the continued hearing date. (c) When the Legislative Body has continued the public hearing on an item after its commencement, persons testifying at the first public hearing shall be permitted to again address the Legislative Body on the item at the renewed hearing subject to the finding of the Presiding 605

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Officer that the testimony is redundant. Upon such finding the time allotted for testimony by the individual may be summarily reduced.
(d) Continuances of a public hearing to a date certain need not be re-noticed unless (i) the hearing has not been continued to a date certain, or (ii) has been continued three or more times and the Presiding Officer believe confusion may be created as to the time of the hearing.

7.3 Conduct of Hearings
(a) When a matter for public hearing comes before the Legislative Body, the Presiding Officer shall request that staff present the staff report and any other relevant evidence, but the presentation of the staff report prior to the formal opening of the public hearing shall not prevent its consideration as evidence. Any such evidence shall be made a part of the record of the public hearing. The Presiding Officer shall permit members of the Legislative Body to ask questions of staff but should prevent expressions of opinion by members of the Legislative Body before the conduct of the hearing.
(b) The Presiding Officer shall thereafter open the public hearing and inquire if there are any persons present who desire to address the Legislative Body on the matter. Any person desiring to speak or present evidence upon being recognized, may speak or present evidence relevant to the matter being heard. Any testimony shall be truthful. (c) Members of the Legislative Body who wish to ask questions of the speakers, during the public hearing portion, may do so but should be mindful that the purpose of the public hearing is to obtain testimony and evidence from the speakers, and not to debate the merits of the matter with speakers. Members should avoid debate and expressions of personal opinion until after the close of the public hearing. Unlike public comment periods, generally there should be no response to speaker comments until after the close of the hearing. The Presiding Officer shall conduct the hearing in such a manner as to afford due process to all affected persons. (d) All persons interested in the matter being heard by the Legislative Body shall be entitled to submit written evidence or remarks, as well as other graphic evidence. All such evidence presented shall be retained by the Clerk/Secretary as part of the record. Each speaker may only speak once during the public hearing unless the Legislative Body requests additional clarification later in the process.
(e) Upon closing of the public hearing by the Presiding Officer, no additional public testimony shall be solicited or received by the Legislative Body without reopening the public hearing. If, however, the Legislative Body receives relevant new evidence after the close of the public hearing and such new evidence may impact the Legislative Body motion or vote, the Legislative Body may re-open the public hearing to obtain public comments upon such new evidence.
(f) The Presiding Officer has the prerogative to establish special rules, such as to require group spokesmen, to limit the number of speakers, to limit the total time for testimony, to allow speakers to give time to others, or otherwise control the hearing, provided that (i) speakers are treated fairly, and that (ii) any such special rules are announced in advance of their application.

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and to permit the extension of time to speakers.

7.4 Extra-Meeting Contacts on Matters Set for Public Hearing (a) Legislative Body members should minimize their contacts with, applicants, or other persons who will be the subject of a quasi-adjudicative public hearing matter to be heard before the Legislative Body. Legislative Body members should avoid extra-meeting contacts with persons who will be the subject of a public hearing before the Body or with advocacy groups or special interests.
(b) If a Legislative Body member is contacted directly by such person outside the meeting setting, the member shall refrain from expressing any viewpoints or thought processes to the person until after the public hearing. The Legislative Body member may explain that they are unable to express any viewpoint on the matter until all evidence has been heard in the course of a public hearing and should encourage any such person to present their position in writing or orally at the public hearing.
(c) At the commencement of the public hearing, the Legislative Body member must disclose publicly any extra-meeting contacts or discussions had which may be relevant to the decision.
(d) The limitations set forth in this Section shall not be read as preventing a Legislative Body member from inspecting a site that will be relevant to a public hearing, although such sight inspection should be disclosed on the record at the beginning of the public hearing. 607

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ARTICLE 8 – MEETING OFFICERS
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ARTICLE 8IX - MEETING OFFICERS

8.1 Presiding Officer
(a) The meeting shall be presided over and chaired by the Presiding Officer, or, in the Presiding Officer’s absence, the Vice Chair. The Presiding Officer shall have the authority to rule any speaker out of order, including speakers during the public comment period if the subject raised is not within the subject matter jurisdiction of the Legislative Body, or during a public hearing if the speaker is not presenting testimony or evidence relevant to the matter which is the subject of the public hearing. The Presiding Officer shall have the responsibility for the conduct of meetings in an orderly manner and to prevent the obstruction of business, and in carrying out this responsibility shall have the authority to give the floor to any member of the Legislative Body or the public by recognizing them, to prevent the misuse of legitimate forms of motions or privileges, to take matters up out of order, to caution speakers as to disruptive behavior, and to order any persons willfully interrupting the meeting to be removed from the room, including as provided in Article 9X.
(b) The Vice Chair shall generally take the place of the Presiding Officer in the absence of the Presiding Officer. In the absence of the Vice Chair, the Presiding Officer may call any other member to take his or her place as Presiding Officer; such substitution not to continue beyond adjournment.
(c) Any determination made by the Presiding Officer may be appealed by the making of a Motion to Appeal the Ruling by any other member of the Legislative Body. The Presiding Officer’s determination will stand unless a majority of the Legislative Body members vote in favor of the Motion to Appeal the Ruling, in which case the ruling of the Presiding Officer will be overridden. The Motion to Appeal the Ruling is governed by the Chart of Motions attached as Exhibit A.

8.2 Representation of Legislative Body
(a) The Mayor is the designated representative of the City and the City Council for purposes of presenting and expressing the official City position on an issue. If individual members of the Council or other Legislative Bodies are contacted by the media for a statement of official City position, the member should refer such inquiries to the Mayor. Otherwise, public or media statements by a Legislative Body member should be clearly characterized as comments upon a personal viewpoint.
(b) Members of the City Council may use official City letterhead to correspond with other public officials and with consultants, but any such correspondence shall state that the views expressed therein are personal and not the position of the City unless the City Council has officially adopted such position. No commission or Sub-Legislative Bodyother Legislative Body may take a position officially representing the City unless authorized to do so by the City Council.

8.3 Email and Social Media Policy
(a) Members of the Legislative Body are provided with City email accounts which may be utilized for the conduct of City business, including communications with constituents. 609

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Members should be aware that all such communications may be subject to the Public Records Act (Government’t Code Section 7920.000 et seq.6200). UseThe use of private email accounts for City business may also make them subject to disclosure. (b) Members of the Legislative Body are subject to the Brown Act in the use of email and social media.
(c) Email communications may not be used to develop a collective consensus or decision on any matter. Email communications to the entire Body should be avoided but may be permitted to provide factual information, for example such as arranging an event, where no discussion or exchange of opinions on a matter within the jurisdiction of the Legislative Body is initiated or occurs.
(d) Members of the Legislative Body may engage in separate conversations or communications on an internet-based social media platform to answer questions, provide information to the public, or to solicit information from the public regarding a matter that is within the subject matter jurisdiction of the Legislative Body. A majority of the Legislative Body members shall not use any internet-based social media platform to discuss among themselves business of a specific nature that is within the subject matter jurisdiction of the Legislative Body.

A Legislative Body member shall not respond directly to any communication on an internet-based social media platform regarding a matter that is within the subject matter jurisdiction of the Legislative Body that is made, posted, or shared by any other member of the Legislative Body.

8.4 Clerk/Secretary
The Clerk/Secretary, or his/hertheir deputy, shall attend all meetings of the Legislative Body unless excused and shall keep the official minutes and perform such other duties as may be requested by the Legislative Body.

8.5 City Manager
(a) The City Manager, or designee, shall attend all meetings of the Legislative Body unless excused. The City Manager may make recommendations to the Legislative Body and shall have the right to take part in all discussions of the Legislative Body but shall have no vote. The City Manager shall provide the Legislative Body with a staff report providing sufficient information to be the basis for any action by the Legislative Body at its meeting. Any officer or employee of the City, when directed by the City Manager, shall attend any meeting of the Legislative Body, and may present information relating to matters before the Legislative Body. (b) The City operates under the city manager form of government (Government Code §Section 34851 et seq.). The City Manager has the power to: (i) administer the day-to-day affairs of the City; (ii) hire and fire City employees (except the City Attorney); and (iii) perform such other functions as the City Council chooses to authorize by ordinance. The City Manager shall carry out the City Council’s policy direction through the day-to-day management of City functions.

City Councilmembers may not individually provide direction to the City Manager.

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8.6 General Counsel
(a) The General Counsel, or deputy, shall attend all meetings of the City Council unless excused and shall upon request of any member give an opinion, either written or oral, on questions of law. The General Counsel, or deputy, shall attend all meetings of such other Legislative Bodies as directed by the City Council or City Manager. The General Counsel serves as advisory parliamentarian for the City and is available to answer questions or interpret situations according to parliamentary procedures. Final rulings on parliamentary procedure are made by the Presiding Officer, subject to the appeal of the full Legislative Body pursuant to Section 8.1 3 of aboveArticle XI, below. All ordinances and resolutions, all contracts, deeds, and easements or other legal instruments shall be approved as to form and legality by the General Counsel. Contracts Agreements may be approved as to form and/or legality by the General Counsel when exceeding purchasing ordinance and policy guidelines. In any case of ambiguity or uncertainty in the interpretation or application of this Manual to any procedure, the Presiding Officer may direct such question to the General Counsel for a ruling.
(b) Any member of the Legislative Body may request from the General Counsel a legal opinion regarding any matter related to the interests of the City. Where a legal opinion involves substantial cost, the request for the opinion must first be approved by the City Manager or by a majority of the Legislative Body. The General Counsel is the legal representative of the City acting through its Legislative Body. There is a continuing legal question as to whether the General Counsel may have an attorney-client relationship with any individual member of the Legislative Body or the City staff. As a consequence, any discussion with the General Counsel which leads to the conclusion that the interests of the City are at risk must be revealed to all relevant members of the Legislative Body and the City staff by the General Counsel. The General Counsel shall not have an attorney-client relationship with individual Council members. The General Counsel is required to maintain the confidentiality of such communications from persons outside the City to the extent required or permitted by law and the code of ethics. (c) The General Counsel has no statutory duty or authority under the Political Reform Act to provide Political Reform Act advice to any Legislative Body member but should provide advice to members when requested. However, a Legislative Body member may not rely on advice from the General Counsel to provide him or her with immunity from FPPC enforcement or prosecution. Such immunity may be obtained only through a written advice letter obtained from the FPPC, on the question in issue, by the Legislative Body member. A Legislative Body member enjoys no privilege of attorney/client confidentiality in reviewing these matters with the General Counsel. Any advice given to an individual member of a Legislative Body cannot be withheld from the rest of the City or Legislative Body. If, after receipt of an opinion of the General Counsel, the Legislative Body member wishes to participate in the decision-making process with immunity from prosecution or enforcement, the General Counsel shall assist the Legislative Body member in making direct contact with the FPPC for informal or formal advice upon which the Legislative Body member can rely.
(d) [City Council Only]. It often happens that other jurisdictions or the League of California Cities or other regional or statewide association will ask the City to participate in the filing of a letter or brief before a court in a matter deemed to be of concern to all or a great many cities. These “friend of the court” or “amicus” briefs have the effect of informing the court how 611

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widespread will be its opinion and how that opinion will affect cities. Such participation is normally without direct cost to the City. In considering whether to direct General Counsel to file an amicus brief, the City Council shall consider whether such brief would represent or propose a position that conflicts with, or causes strife amongst, other City- related interests such as, without limitation, the interests of employee organizations, law enforcement or public safety. i) Upon receipt of the request, the General Counsel shall make the request available through the City Manager to the Council. Upon a determination by any Council member that there is an interest in participating in the action in the manner proposed, the Council member shall inform the City Manager or General Counsel who shall place the matter as an item for discussion in closed session on the agenda of the next Legislative Body meeting. The General Counsel may otherwise place an amicus request on the agenda on his or her initiative. ii) In lieu of the foregoing process, where there is urgency to the matter, General Counsel is authorized to undertake the filing of the letter or brief where (i) in the opinion of General Counsel the legal matter significantly affects the interests of the City, (ii) the General Counsel has consulted with and received the approval of the City Manager, (iii) the cost to the City will not exceed $5,000, and (iv) the General Counsel makes a written report of the action to the Legislative Body.
iii) Approval given to the General Counsel to defend, or seek or refrain from seeking, appellate review or relief, or to enter as an amicus curiae in any form of litigation as the result of a closed session consultation shall be reported in open session at the public meeting during which the closed session is held. The report shall identify, if known, the adverse party or parties and the substance of the litigation. In the case of approval given to initiate or intervene in an action, the announcement need not identify the action, the defendants, or other particulars, but shall specify that the direction to initiate or intervene in an action has been given and that the action, the defendants, and the other particulars shall, once formally commenced, be disclosed to any person upon inquiry, unless to do so would jeopardize the agency’s ability to effectuate service of process on one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage.

8.7 Conflicts of Interest
All Legislative Body members are subject to the provisions of California Law, such as Chapter 1, Title 9, of the California Government Code, relative to conflicts of interest, and to conflicts of interest codes adopted by the Legislative Body. Any Legislative Body member prevented from voting because of a conflict of interest shall refrain from in any way participating in the matter giving rise to the conflict. Where abstention from a matter is made on the basis of a conflict of interest arising from a financial interest in the decision, the Legislative Body member shall announce their abstention from the matter when it is first opened, and then shall set forth the reason for the abstention with the degree of specificity at least equal to the disclosure of the Legislative Body member’s financial interests on the Legislative Body member’s annual statement of financial interests; immediately after such announcements, the Legislative Body member shall leave the room. The Legislative Body member shall not overhear the staff report, participate in the discussion or deliberations, and shall not otherwise make or participate in making the decision or in any way attempt to use his or her official position to influence the decision. This shall not 612

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prevent the conflicted Legislative Body member from coming before the Legislative Body solely during the public comment period as an affected citizen to state his/her opinion on how the matter impacts their disqualifying interests.

8.8 Reserved

8.9 No Financial Interest in ContractsAgreements
A member of a Legislative Body shall not have a financial interest in an agreement contract within the meaning of (Government Code Section§ 1090 et seq.) made in their official capacity.

An agreement contract in which a Legislative Body member has a financial interest and such contract shall be null and void whether the member participates in the making of the contract or not, unless a remote or non-interest exception applies under Government Code Sections 1091 or 1091.5.

8.10 Ethical Standards
A member of a Legislative Body shall maintain the highest ethical standards and shall adhere to all laws and the ordinances and regulations of the City in carrying out their duties.

8.11 Confidential Information
No Legislative Body member may disclose confidential information to any unauthorized person. A violation of this rule shall subject the violator to censure by the Legislative Body as provided in Section 9.5 herein.

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ARTICLE 5 – DECORUM AND ORDER
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ARTICLE 9X– DECORUM AND ORDER

9.1 Decorum and Order – Legislative Body Members
(a) Any member of the Legislative Body wishing to speak, or any member of the public wishing to address the Legislative Body must first obtain the floor by being recognized by the Presiding Officer. The Presiding Officer must recognize any member of the Legislative Body who seeks the floor when appropriately entitled to address the Legislative Body. The Legislative Body member shall confine himself or herself to the question under debate. (b) Any member of the Legislative Body, including the Presiding Officer, may bring a matter of business properly before the Legislative Body for decision by making a motion.

Any Legislative Body member, including the Presiding Officer, except the Legislative Body member making the motion, may second a motion. Once a motion is seconded, it may be opened for discussion and debate.
(c) The Presiding Officer shall determine all points of order, subject to the right of any member to appeal to the majority Legislative Body.
(d) A Legislative Body member, once recognized, shall not be interrupted while speaking unless called to order by the Presiding Officer, unless a Point of Order is raised by another Legislative Body member, or unless the speaker chooses to yield to questions from another Legislative Body member.
(e) Any Legislative Body member called to order while speaking shall cease speaking immediately until the question of order is determined. If ruled to be in order, the member shall be permitted to proceed. If ruled to be not in order, the member shall comply with ruling of the Presiding Officer.
(f) Legislative Body members shall accord the utmost courtesy to each other, to City or Legislative Body employees, and to the public appearing before the Legislative Body and shall refrain at all times from rude and derogatory remarks, reflections as to integrity, abusive comments, and statements as to motives and personalities, which disrupt, disturb, or otherwise impede the orderly conduct of the Legislative Body meeting. (g) Any Legislative Body member may move to require the Presiding Officer to enforce the rules and the affirmative vote of a majority of the Legislative Body shall require the member to so act.
(h) The members of the Legislative Body shall not engage in communications during the Legislative Body meeting (including breaks) regarding matters being considered on the agenda unless and until the Legislative Body has opened that agenda item. In order to minimize exposure to a Brown Act violation, Legislative Body members are discouraged from discussing any City business during breaks or before and after meetings; City business may only be discussed by a quorum of Legislative Body members when it is opened as a duly noticed agenda item. (i) The members of the Legislative Body shall always be attentive and show respect to those addressing the Legislative Body provided that nothing shall prevent the enforcement of the 615

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rules of decorum herein.
(j) No Legislative Body member attending a meeting of another City commission or committeeLegislative Body shall make any statement or, give the appearance or indicate in any way that they are representing the Legislative Body unless they have been authorized to do so by the Legislative Body. When making a comment at such a meeting, the Legislative Body member should make it clear that they are speaking solely as an individual. Unless officially appointed to participate on a committee, Legislative Body members should make an effort not to insert themselves into or take positions on matters which will ultimately be decided upon by the Legislative Body.
(k) The Legislative Body may punish its own members for misconduct pursuant to Section 910.5.

9.2 Decorum and Order – Employees
(a) Members of administrative staff and employees of the Legislative Body shall observe the same rules of procedure and decorum applicable to Legislative Body members. The City Manager shall ensure that all staff and employees observe such decorum. Any staff members, including the City Manager, desiring to address the Legislative Body or members of the public shall first be recognized by the Presiding Officer. All remarks shall be addressed to the Presiding Officer and not to any individual Legislative Body member or member of the public. (b) Questions of City staff and/or requests for follow-up or additional background information should be directed only to the City Manager, General Counsel, Assistant City Manager, or Department Heads. The Office of the City Manager should be copied on any request, except those to the General Counsel. When in doubt about what staff contact is appropriate, Legislative Body members should ask the City Manager for direction. Materials supplied to a Legislative Body member in response to a request will be made available to all members of the Legislative Body so that all have equal access to information. (c) Legislative Body members should not solicit any type of political support (financial contributions, display of posters or lawn signs, name on support list, etc.) from City staff. City staff may, as private citizens with constitutional rights, support political candidates but all such activities must be done away from the workplace.

9.3 Decorum and Order – Public
(a) Members of the public attending Legislative Body meetings shall observe the same rules of order and decorum applicable to the Legislative Body. All remarks and questions should be addressed to the Presiding Officer and not to any individual Legislative Body member, staff member or other person.
(b) Any person conducting their public remarks or behavior before the Legislative Body in such a way as to actually cause disruption to the conduct of the meeting may be removed from the room by the sergeant-at-arms as directed by the Presiding Officer. Unauthorized remarks from the audience, stamping of feet, whistles, yells, and similar disruptive demonstrations shall not be permitted by the Presiding Officer, who may direct the sergeant-at-arms to remove such 616

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offenders from the room or call a recess of the meeting. Aggravated cases may be prosecuted on appropriate complaint signed by the Presiding Officer.
(c) Members of the public shall be allowed to video or audio record a public meeting unless such recording becomes an actual and unreasonable disruption to the Legislative Body’s ability to carry-out the meeting.

9.4 Enforcement of Decorum
(a) The Banning Police Chief or designee shall be ex-officio sergeant-at-arms of the Legislative Body. He shall carry out all orders and instructions given him by the Presiding Officer for the purpose of maintaining order and decorum in the Legislative Body meeting. Upon instructions from the Presiding Officer, it shall be the duty of the sergeant-at-arms to eject any unruly person from the Legislative Body meeting chamber or place him or her under arrest or both for conduct actually disrupting to the Legislative Body proceedings. Such person may be barred from further participation in the meeting.
(b) Generally, if the Presiding Officer intends to eject a person for disruption of a meeting, a public warning should be issued. Examples of remarks or behavior that cause actual disruption of the Legislative Body proceedings include:
 Unauthorized remarks from the audience, stamping of feet, whistles, yells, outbursts, catcalls, cursing, applause, offensive or obscene gestures or similar demonstrations which disrupt, disturb, or otherwise impede the Legislative Body proceedings
 Interrupting speakers or speaking when not recognized  Calling members of the audience names or threatening them  Extended discussion of matters beyond the jurisdiction of the Legislative Body
 Physical threats to any person
 Shouting into the microphone
 Dumping objects on the floor of the chamber where the proceeding is held for symbolic or other reasons.
 Speaking beyond the time limits
 Being unduly repetitious
(c) Examples of non-disruptive conduct include:
 Silent gestures by members of the audience, such as a thumbs up or thumbs down or Nazi salute that are not otherwise disruptive of the meeting.  Catcalls or booing during a time allowed for applause that does not otherwise disrupt the meeting.
 Criticisms of public officials or staff during a time reserved for public comment that does not otherwise violate Council procedures this Manual and does not disrupt the meeting.
(d) As set forth in Government Code Section§ 54957.9, in the event that any meeting is willfully interrupted by a group or groups of persons so as to render the orderly conduct of such 617

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meeting unfeasible and order cannot be restored by the removal of individuals who are willfully interrupting the meeting, the Legislative Body members may order the meeting room cleared and continue in session. Only matters appearing on the agenda may be considered in such a session.

Duly accredited representatives of the press or other news media, except those participating in the disturbance, shall be allowed to attend any session held pursuant to this Section. Nothing in this Section shall prohibit the Legislative Body from establishing a procedure for readmitting an individual or individuals not responsible for willfully disturbing the orderly conduct of the meeting.

9.5 Censure of Legislative Body Members
(a) It shall be a violation of this section for any sitting member of a Legislative Body to violate any general law or regulation, and any, rule, law, ordinance, or resolution of the City of Banning. It shall also be a violation of this section for any sitting member of a Legislative Body to violate an administrative policy of the City which has been adopted following a vote of the Legislative Body or the City Council on the matter and which by its terms is expressly made applicable to the Legislative Body.
(b) Any violation of the foregoing paragraph by a Legislative Body member may be punished through the administration of a public censure of the member by the member’s Legislative Body. Such censure may be in addition to any other punishment applicable to the violation. For purposes of this section, “censure” shall mean the adoption of a motion setting forth a statement of disapproval of a Legislative Body member’s conduct. (c) When evaluating a request for defense made by the censured member in litigation arising from the censured conduct, the record of the censure shall be considered by the Legislative Body. Such record shall not be determinative. Failure of the Legislative Body to censure the conduct of a member does not constitute waiver of the Body’s right to refuse to defend the member in an action.
(d) A Legislative Body member may not be made the subject of a motion for censure without first being given notice of the violation and an opportunity to correct the violation if it can reasonably be corrected. Upon a continued violation or failure to correct, the charged member shall be given notice and an opportunity to be heard as follows:
(i) Only a sitting member of the Legislative Body whose member commits the violation may initiate proceedings for the censure of one of its members. (ii) Proceedings shall be commenced by the presentation of a written statement of charges to the subject Legislative Body member with a copy delivered concurrently to the Clerk/Secretary by the member initiating the charge.

Initiation shall not require the prior approval of the Legislative Body. The statement of charges shall be given at least ten (10) days prior to the meeting at which the censure motion is proposed to be brought. The notice shall contain, at a minimum, the designation of the specific rule, law regulation, etc. which the member is claimed to have violated and a statement of the date, place, and time at which the violation occurred. The statement shall further contain a description of the conduct of the member which is alleged 618

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to constitute the violation. The statement of charges shall be delivered to all other Legislative Body persons.
(iii) Within seven (7) days after delivery of the statement of charges, the charged member should deliver a written response to the other members of the Legislative Body unless the charged member chooses to defer to response to the hearing.
(e) The motion for censure shall be agendized and considered at the first regular meeting occurring ten (10) days following the delivery of the statement of changes to the member and Clerk/Secretary. The hearing may not be continued except upon the absence from the meeting of a member of the Legislative Body other than the member bringing the charge or the member who is the subject of the charge.
(i) The hearing shall be conducted in an open session by the Presiding Officer unless the Presiding Officer is a party to the action, in which case the Vice Chair or some other member shall conduct the proceedings. (ii) The hearing shall generally proceed by a reading of the charges by the charging member. The charging member may present witnesses; the charged member may answer in rebuttal; members of the public may speak in favor or opposed to the charge; and the remaining members may speak to the charges in that order.
(iii) Passage of the motion for censure shall require a majority vote of the members of the Legislative Body. The voting members shall not go into closed session for deliberation.
(f) If the motion for censure does not pass the proceedings shall be at an end. A new motion for censure on the same grounds of violation may not thereafter be commenced against the same Legislative Body member for a period of 1 calendar year from date of the vote. However, new proceedings may be commenced on the same charges within the 1-year period on the vote of 4 members of the Legislative Body.
(g) If the motion for censure does pass, such motion shall become a part of the public record a copy of which shall be made available upon demand to any member of the public and notice of same shall be placed in the administrative file of the Legislative Body member.

9.6 Persons Authorized To Be Within Platform/Dais
No person except Legislative Body officials or authorized Legislative Body staff shall be permitted behind the Legislative Body dais without permission or consent of the Presiding Officer.

9.7 Personal Privilege
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language used. The Presiding Officer will maintain control of this discussion. The right of a member to address the Legislative Body on a question of personal privilege shall be limited to cases in which his integrity, character, or motives are assailed, questioned, or impugned.

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ARTICLE 10 – PARLIAMENTARY PROCEDURES
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ARTICLE 10XI – PARLIAMENTARY PROCEDURES

10.1 Procedures In Absence Of Rules
(a) Unless otherwise specified in this Manual or by ordinance or resolution, meetings of the Legislative Body shall be conducted in accordance with the most recently revised edition of Robert’s Rules of Order. In the event of any conflict between Robert’s Rules and this Manual, the provisions of this Manual shall govern.
(b) Any provision of these rules not governed by the Government Code may be temporarily suspended by a two-thirds (2/3) vote of all members of the Legislative Body. Such suspension may be moved at any time by a member. The vote on any such suspension shall be taken by yeas or nays and entered upon the record.
(c) Motions, motion procedures and precedence of motions shall be conducted in accordance with Exhibit “A” hereto.

10.2 Voting
(a) After a full opportunity for debate if it appears that there is a consensus of opinion among the members of the Legislative Body on the matter to be voted upon, the Presiding Officer may state the consensus of the Legislative Body and ask if there is any objection. If there is no objection, the consensus as so stated shall become the order of the Legislative Body. The Presiding Officer may also determine that a consensus exists following a call for a vote by any member of the Legislative Body by a Motion to Call the Question. (b) Except as in Subsection (a) above, otherwise, all votes of the Legislative Body shall be taken by electronic vote. In the event the electronic voting machine is not functioning or otherwise unavailable, vote shall be by roll call vote. The order voting shall be alphabetical with the Presiding Officer voting last. The Clerk/Secretary shall call the names of all members seated when a roll call vote is ordered or required. Members shall respond ‘aye’, ‘no’ or ‘abstain.’ After every vote, the Legislative Body shall declare the result and, on all but consensus votes, shall note for the record the number of votes for or against the question. The ayes and noes shall be taken upon the passage of all ordinances and resolutions and entered upon the official record of the Legislative Body.

10.3 Votes Needed
(a) Usually, in the absence of a contrary statutory provision (such as urgency measures), a majority of a quorum which constitutes a simple majority of the Legislative Body may act for that body. However, resolutions, orders for the payment of money, and all ordinances require a recorded majority vote of the total membership of a Legislative Body. (b) State law may dictate certain instances in which the number of votes required is greater than a majority of all Legislative Body members. As a matter of convenience, questions on which the voting requirement is varied by the State statutes and these rules, include, without limitation, the following:
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(i) Levying Taxes - Ordinances providing for the Assessment and collection of taxes require the approval of two-thirds of the members of the whole Council.
(ii) Assessment - Assessments require a two-thirds vote of the whole Council. (iii) Bonds and Certificates of Participation - Authorizing these financial instruments the issuing requires a two-thirds vote of the total Council. (iv) Eminent Domain - The exercise of Eminent Domain requires a two-thirds vote of the total Council.
(v) Certain Parliamentary Motions – Motions requiring a supermajority vote are noted in the Motions Chart attached hereto.
(c) Any official with a conflict of interest is not counted for purposes of establishing a quorum, and must not vote on, make, participate in any way in, or attempt to influence the decision.

A Legislative Body member abstaining on any other grounds than a conflict under the Political Reform Act shall be counted as present for purposes of a quorum and such abstentions are counted with the majority. The Legislative Body member who leaves the dais solely to avoid participating in a specific item shall, in absence of a conflict, be counted as if they were present but abstaining and such abstentions are also counted with the majority. (d) Reconsider
Any Legislative Body member who voted with the majority may move to reconsider any action at the same meeting or at an adjourned meeting following the meeting at which the action was taken, within sixty (60) calendar days, request in writing to the Clerk/Secretary that it be agendized for consideration at the following meeting, provided that reconsideration shall not be permitted where a party other than the City has acted in reliance on the Legislative Body’s action and would be substantially prejudiced by such reconsideration. The Clerk shall apprise the City Attorney of any facts constituting substantial prejudice and may rely upon the determination of the City Attorney.
 In the event that the subject of the reconsideration is a motion that failed as the result of a tie vote, any Legislative Body member who voted against the earlier motion may move for reconsideration at the following meeting. The member seeking reconsideration must have the matter agendized unless the motion will be made at the same meeting where the original action was taken.
 If the motion to reconsider passes, then the original item may be reconsidered at that time or agendized for the next meeting which meets any applicable noticing requirements.

After a motion for reconsideration has once been acted upon, no other motion for reconsideration thereof shall be made without unanimous consent of the Legislative Body. (e) Adjournment
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whether there is a consensus to adjourn the meeting. If a Legislative Body member makes a motion to adjourn, and this motion is followed by a second, then the Presiding Officer shall have the Legislative Body members vote on the adjournment motion. The meeting is adjourned if there is a consensus to adjourn or a majority vote of the Legislative Body members on thisa motion or if there is a consensus to adjourn, at which time the Presiding Officer shall pronounce the time that the meeting is adjourned.

10.4 Tie Votes
Tie Votes shall be lost motions unless an additional Motion is made which obtains a majority vote to break the tie. When all Legislative Body members are present, a tie vote on whether to grant an appeal from official action shall be considered a denial of such appeal. In such case the findings in support of the decision shall be those of the lower body. If a tie vote results at a time when less than all members of the Legislative Body are present, the matter shall automatically be continued to the agenda of the next regular meeting of the Legislative Body, unless otherwise ordered by the Legislative Body.

10.5 Abstentions
Members of the Legislative Body are discouraged from abstaining from a vote for reasons other than a legally-disqualifying, financial conflicts of interest. However, if a member chooses to abstain from voting as a result of what he/she perceives as a personal or non-financial conflict of interest, the member may do so after stating for the record the nature of the perceived conflict.

In the event of such a perceived conflict (as opposed to a legally disqualifying conflict), the member is not required to leave the dais.
(a) A Legislative Body member shall generally express their positions on all matters except those where they are required to abstain due to legally recognized conflict of interest. (b) A Legislative Body member who has appealed the action of any person or body of the City on a matter which does not constitute a conflict of interest for the member under any law, may participate in the hearing on the appeal, unless there is clear and convincing evidence that such member is not objective or the member feels that they are unable to remain neutral, or as may be otherwise advised by the General Counsel. Notwithstanding any contrary provisions herein, in bringing an appeal, the Legislative Body member need not give reasons for making the appeal. (c) A Legislative Body member may abstain from action on a matter where in the member’s opinion, there might be a public perception that participation in the discussion or decision would be inappropriate even though the member has no disqualifying financial interest within the meaning of FPPC rules and regulations.

10.6 Votes Of Members Previously Absent
(a) A Legislative Body member who was not present at a meeting should generally not vote on the approval of minutes for that meeting, but the voting on such minutes shall have no effect on the validity of the minutes.

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(b) A Legislative Body member may vote on a continued item after an absence from the earlier public hearing of the matter if, prior to the vote, the member affirms on the record that they have familiarized themselves with the record of the earlier meeting and are prepared to vote on the issue. If the member shall abstain from the vote, the member shall be counted towards the quorum on the issue and the abstention shall be counted with the vote of the majority of the quorum.
(c) The forgoing shall not apply to the matter of a vote on the minutes of a meeting at which the member was not in attendance. In that instance, the member abstaining on the grounds of non-attendance at the meeting to which the minutes pertain shall not be counted towards the quorum on the issue and the abstention shall not be counted with the votes of the majority of the quorum.

10.7 Appeals by Members of Legislative Body
Except where otherwise provided, a member of the Legislative Body shall be deemed an interested person in any matter by a subordinate body and shall have standing to appeal to the Legislative Body any decision by a Sub-Legislative Body, or any determination made by any official of City by filing a written appeal. The appeal shall not state any grounds for the appeal and the resulting hearing shall be de novo. The appeal must be filed within 10 days of the making of the decision being appealed and shall be filed with the Clerk/Secretary who shall give written notice to the applicant and provide written notice to other persons as required for the original action. The hearing shall be held at the first regular meeting of the Council for which notice can be legally given. No appeal fee shall be required to be paid for such appeals.

10.8 Findings and Decisions
Decisions of a Legislative Body, when acting as a quasi-adjudicative body (public hearings) should be framed in terms of “findings” of fact, potentially relevant conclusions of law, and ultimate decisions showing the basis for the decision and the nexus between the findings, the conclusions, and the decision. The Legislative Body members must consider any legallymandated findings applicable to a matter and consider the evidence presented to them in light of such findings in making their decisions.

10.9 Curfew
A 10:00 p.m. curfew is imposed upon City Council meetings. Matters taken up by the Council before 10:00 p.m. may be concluded, but no new matters shall be taken up after 10:00 p.m. except upon a majority vote of the Council members present, but such extension shall only be valid for one hour and each hour thereafter shall require a renewed action for the meeting to continue. The City Manager shall arrange the regular order of business on Council agendas to minimize any adverse effects this curfew may have regarding the timely conduct of important City business. This Section 10.9 shall supersede Resolution No. 2016-44.

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ARTICLE 11 — PROCEDURES FOR CONSIDERATION OF DEMANDS FOR

CORRECTIVE ACTION
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ARTICLE 11XII- PROCEDURES FOR CONSIDERATION OF DEMANDS FOR

CORRECTIVE ACTION

11.1 Requirement of Written Demand
Prior to any person commencing a judicial action for injunction or mandamus to declare any action taken by the Legislative Body void because of failure to observe Brown Act requirements, such person must first serve upon the Clerk/Secretary a written demand clearly describing the challenged action, the nature of the claimed violation, and the corrective action sought. Such demand must be served upon the Clerk/Secretary within ninety (90) days of the alleged violation or thirty (30) days if the action was taken in open session but in violation of Section§ 54952.2 of the Government Code. Failure to serve any such demand within this thirty (30) day period shall result in the loss of any right to challenge any action alleged to have been taken in violation of Sections§§ 54953, 54954.2, 54954.5, 54954.6, 54956, or 54956.5 of the Government Code.

If the written demand is timely served, the Legislative Body has up to thirty (30) days to cure and correct its action. If the Legislative Body does not act, any lawsuit must be filed within the next fifteen (15) days.

11.2 Consideration of Corrective Action
Upon receipt of such a demand, consideration of the demand shall immediately be placed on the agenda for the next meeting of the Legislative Body. If the demand is received less than 72 hours prior to the time set for the next meeting, the Legislative Body may determine that the notice constitutes the initiation of litigation, and that the need to take action on the threatened litigation arose subsequent to the posting of the agenda and may consider it at that meeting pursuant to Article 3VI Section 139, above. A description of any item so placed on the agenda shall include both consideration of the demand, and the possibility of corrective action by the Legislative Body.

In considering such demands, the Legislative Body shall first determine by motion whether to reconsider the prior action. The motion to reconsider shall be in order as long as made by a party on the prevailing side. If no motion to reconsider is carried the Clerk/Secretary shall inform the demanding party in writing of the Legislative Body’s decision not to cure or correct the challenged action. (See, § 11.4 hereof.)

11.3 Implementing Corrective Action
If a motion to reconsider passes, the Presiding Officer may entertain a motion to take corrective action. Any motion taking corrective action shall address the concerns raised in the consideration of corrective action. The motion taking corrective action may include a motion to rescind prior action taken, as appropriate. Passage of a motion to rescind invalidates prior action only as of the time of the passage of the motion, and not from the date of the initial action. A motion implementing corrective action resulting from a written demand is out of order if the action complained of: (i) was in connection with the sale or issuance of notes, bonds, or other evidence of indebtedness, or any contract, agreement, or incident thereto; (ii) gave rise to a contractual obligation upon which a party has, in good faith, detrimentally relied; or (iii) was taken in connection with the collection of any tax.
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In any event, the Legislative Body shall notify the party making the demand in writing of its decision to take corrective action and shall describe any corrective action taken. This notice shall be given to the demanding party as soon as possible after the meeting, but in no event more than 30 days after receipt of the demand.

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ARTICLE 12 – MISCELLANEOUS
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ARTICLE 12XIII – MISCELLANEOUS

12.1 Interpretation
This Manual shall be liberally construed to effectuate its purpose and no ordinance, resolution, proceeding or other action of the Legislative Body shall be invalidated, or the legality thereof otherwise affected by the failure or omission of the Legislative Body to technically comply with, observe or follow the within rules. The City Council may, by resolution, adopt further rules of interpretation or practice.

12.2 Amendments
This Manual may be amended from time to time as necessary by resolution passed by a majority vote of the City Council at any regular or special meeting, provided that no such amendment shall be adopted unless at least seven days’ written notice thereof has been previously given to all Legislative Body members serving the City. Such notice shall identify the section or sections of the Manual proposed to be amended.

12.3 Power to Issue Subpoenas
The Legislative Body may issue subpoenas requiring attendance of witnesses or production of books or other document for evidence or testimony any action or proceeding pending before it. (Governmentv’t Code Section 37104.) Subpoenas shall be signed by the Presiding Officer and attested by the Clerk. They may be served as subpoenas are in civil actions. 630

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EXHIBIT A
Chart of Motions

1. Motions listed in order of precedence2.1.

MOTION YOU SAY THIS
May you
interrupt the
speaker?
Do you
need a
second?
Is it
debatable?
Can it be
amended?
What vote is
needed? Can it be reconsidered?
Adjourn meeting “I move to adjourn.” No Yes No No Majority No Call an intermission1 “I move to recess for…” No Yes No Yes Majority No Register a complaint “I rise to a question of privilege” Yes No No No None No (usually) Temporarily suspend consideration of an issue2 “I move to table the motion” No Yes No No Majority No
Close debate “I move the previous question” No Yes No No 2/3 No, unless the vote on question has not been taken Limit or extend debate “I move that the debate be limited [or “extended”] to…” No Yes No Yes 2/3 Yes
Give closer study of something3
“I move to refer the motion to the committee” No Yes Yes Yes Majority Yes, unless the board
has already taken up
the subject
Amend a motion “I move to amend the motion by…” No Yes Yes Yes Majority Yes Motion to continue to a certain time “I move that the motion be continued to…” No Yes Yes No Majority Yes 1 Should specify period of recess. 2 A motion to take up a matter previously tabled must be made at the same meeting as the motion to table, If not, the motion tabled dies. 3 May contain specific instructions for board members and a date fir certain for reconsideration, If not date is not certain, restored by a motion to take up matter previously tabled” which is permissible in this case even if not same or next meeting, Formatted: Font: 9 pt 631

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Introduce business (bring a main motion) “I move that [or “to”]...” No Yes Yes Yes Majority Yes

3.2.Incidental Motions – no order or precedence. Arise incidentally and decided immediately.

MOTION YOU SAY THIS
May you
interrupt
the speaker?
Do you
need a
second?
Is it
debatable?
Can it be
amended?
What vote is
needed?
Can it be
reconsidered?
Protest breach of rules (i.e., Point of Order)4 “I rise to a point of order…” Yes No No No None No Motion to appeal the ruling5 “I appeal from the decision of the Presiding Officer [or “Chair”]” Yes Yes Yes No Majority Yes
Suspend rules temporarily
“I move to suspend the rules so that …” No Yes No No 2/3 No Avoid considering an improper matter
“I object to the consideration of the question…” Yes No No No 2/3 No, only if the
main question or
motion was not in
fact considered
Divide motion “I move to divide the question” No Yes No Yes Majority No Parliamentary law question Parliamentary inquiry Yes, if urgent No No No None No Motion to depart from the agenda “I move to consider matter […] out of order” No Yes Yes Yes Majority Yes Take up matter previously tabled6
“I move to take from the table …” No Yes No No Majority No Cancel or change previous action7
“I move to rescind/amend something previously adopted…” No Yes Yes Yes
2/3 or
majority
with notice
No
Reconsider motion “I move to reconsider the vote on…” Yes Yes Only if motion is 4 Decision of the Presiding Officer is final, unless overturned by motion to appeal the ruling. 5 Presiding Officer may participate in debate, Negative or tie vote sustains ruling. 6 A motion to take up a matter previously tabled must be made at the same meeting as the motion to table. If not, the motion tabled dies. 7 Does not void action ab initio, only from point of rescission. Motion is out of order if relates to contract upon which another party has detrimentally relied, relates to issuance of bonded indebtedness, or relates to the collection of any tax.

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debatable8
8 Cannot be made on a quasi judicial matter or matters required a noticed public hearing. Can only ne made by a member who voted with the previously prevailing side, May be made at the same meeting or a subsequent meeting subject to the same restrictions as a motion to rescind. 633

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EXHIBIT B

BANNING CITY COUNCIL MEETING PRESENTATION POLICY
City Council presentations are for providing information to the Mayor and Council, City management, and the community about activities of interest and value including:
 Activities, events, and infrastructure projects relating to the City.  Honors and celebrations for organizations, corporations and residents related to Banning.
 Honors and celebrations for organizations, corporations and resident which reflect their service to the Banning community.
 Honors and recognitions for City staff for outstanding service or commitment to the City’s mission and goals.
 Please note this is not the appropriate time to seek funds from the City and/or endorsements from City Council or discuss politics.

Presentation Length
All presentations are to be no more than five minutes in length; this is to include all speakers for the group being recognized.

Presentation Schedule
City Council begins at 5:00 p.m. with an invocation and pledge to the American flag followed by presentations. All honorees or groups are to arrive no later than 4:45 p.m.

Presentation Location
Presentations take place in the Council Chambers inside Banning City Hall located at 99 E.

Ramsey Street. Parking is available in the Police Department parking lot located at 125 E.

Ramsey Street (just off Hays Street) adjacent to the Council Chambers, or in the City Hall parking lot located at the corner of Hays and San Gorgonio.

Presentation Technical Support
The City has the capability to display PowerPoint (or equivalent) during the presentation. If a PowerPoint is to be used during the presentation:
 The PowerPoint is to be no more than 10 slides with limited text; and  To be submitted to the City Clerk’s Office no later than the Thursday prior to the scheduled Tuesday City Council meeting (2nd and 4th Tuesdays of the month).  PowerPoints are subject to editing for appropriateness.  PowerPoints which do not meet these standards will not be used. 634

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MANUAL OF PROCEDURAL GUIDELINES

FOR THE CONDUCT OF

CITY COUNCIL AND CONSTITUENT

BODY/COMMISSION MEETINGS FOR THE

CITY OF BANNING
Adopted October 23, 2012, by City Council Resolution 2012-83 Amended April 23, 2013, by City Council Resolution 2013-48 Amended November 12, 2013, by City Council Resolution 2013-103 Amended May 26, 2020, by City Council Resolution 2020-67 Amended February 14, 2023, by City Council Resolution 2023-34 635

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OUTLINE OF PROCEDURAL MANUAL PROVISIONS
This manual applies to the City Council, Successor Agency, Housing Authority, and all Commissions.

A. Agendas (3.1-3.4; 5.1-5.10, 6.1, 6.3)

1. City Manager generally has the authority to set the agenda. (5.1)

2. Any Council member may request a matter be put on an agenda. If significant staff work is involved, City Manager can bring it to an agenda under pending items and the City Council can decide whether they want it agendized for discussion. (5.1)

3. Permits consent calendars and defines what is not permitted on consent calendar:
ordinances; matters involving split votes or public controversy; excluded consent calendar. (6.3)

4. List order of agenda. (6.1)

5. Permits an agenda item for "Council Agenda – New Business” and where announcements are permitted with no discussion.

6. No action unless listed on agenda. (5.7)

7. Add items if arose subsequent to agenda and 2/3 vote or unanimous of those present. (5.9)
B. Minutes, Ordinances, Resolutions and Contracts (5.3 - 5.6)

1. Minutes are an abbreviated record, revisions factual and not to change intent. (5.10)

2. Defines matter appropriate for ordinance versus resolution.

3. Defines vote requirements--ordinances and resolutions generally require three (3) votes. Certain items require a supermajority.

4. Urgency circumstances are defined where resolution can be prepared at a meeting.

5. Contracts may be put in final form by legal counsel. (5.6)

6. Approval budget does not authorize expenditures. (6.5) C. Boards and Commissions (6.4)

1. Defines legislative bodies and advisory bodies subject to the Brown Act. (1.2(a))

2. Committees established by official action, continuing jurisdiction more than 180 days, majority of officials from City or other bodies, is standing committeesubject to Brown Act.

3. Permits creation of ad hoc council subcommittees (less than majority) not subject to the Brown Act.

4. Permits formation of boards and commissions subject to the Brown Act.

5. Provides that appointments are by Mayor with the consent of Council; removed by majority vote.

6. Commissions make reports to Council; not permitted to create subcommittees.

D. Study Sessions/Closed Sessions (2.5, 4.1 - 4.4)

1. Study sessions informal but subject to Brown Action; no action taken.

2. Public comments permitted before; report on any action taken. 636

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3. Those persons not relevant to the closed session matter are excluded.

4. A minute book may be kept of the proceedings.

5. Revealing any matter from closed session can subject the person to censure.

E. Public Comments (7.0 – 7.4)

1. City Council meeting presentations on agenda items are to be no more than five minutes in length; this is to include all speakers for the group being recognized.

Exhibit “B” has full policy.

2. Time limits are 3 minutes for non-agendized items and 5 minutes for all agendized items. Public hearing applicants are not limited. (7.2)

3. Public comment periods include initial comment period on non-agenda items; comment on agenda items. (7.5)

4. Speaker cards provided, but voluntary. (7.3)
F. Hearings (8.1 – 8.4)

1. Before the hearing, Council members limited to factual questions of staff and speakers. Not to engage in debate.

2. Presiding Officer to make it clear when hearing is opened or closed. No questionsof speakers or public comment after hearing closed.

3. Hearing must be fair and impartial with decision based on findings required by law.

4. No expression of opinion until hearing is closed.

5. Avoid extra meeting contact with interested persons. Encourage participation in hearing.

6. Presiding Officer can control conduct of hearing--representative speakers, etc.

Set any rules at beginning and keep fair to each side.

7. Be attentive during hearings.

G. Conduct of Members

1. Do not represent position of City or promise City action. (9.2; 9.10)

2. Do not speak in derogatory fashion concerning colleagues, employees, citizens. (10.1(f))

3. Mayor speaks officially for City rather than Council members. (9.2)

4. Council members in correspondence represent their own position rather than City unless authorized by Council. (9.2)

5. Commissioners do not speak for City. (9.2)

6. No Conflicts. Can consult with City Attorney but advice not binding and no attorney-client confidentiality. (9.6(b))

7. Use City email account. Emails subject to the Brown Act--no development of collective action. Public Records Act, too. (9.3)

8. Formal process for censure for wrongful conduct involving hearing before City Council. (10.3)

9. City Attorney can file amicus briefs. (9.6 (d))
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H. Procedures

1. Abstentions discouraged but permitted where appearance impropriety even if no financial conflict.

2. Motions to rescind clarified so that matter can be rescinded in later legislative session. (11.4)

3. Defines process to correct an earlier action in violation of Brown Act. (12.1 –

12.3)

4. Includes Table of Motions and Procedural Actions.
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MANUAL OF PROCEDURAL GUIDELINES FOR THE CONDUCT OF CITY

COUNCIL AND CONSTITUENT BODY/COMMISSION MEETINGS
ARTICLE I – SCOPE

1.1 Application of Rules
This Manual (the “Manual”) shall establish the procedures for the conduct of all meetingsof the City of Banning City Council, Successor Agency to the Banning Community Redevelopment Agency, Housing Authority and other constituent, governing bodies, and commissions.

This Manual rescinds and supersedes all prior City resolutions setting forth rules of procedure for the conduct of meetings by City Legislative Bodies (defined below). Wherever there is a conflict between this Manual and any prior City resolution, the terms and rules in this Manual shall govern. Resolutions more specifically superseded by this Manual include, without limitation, the following:
• City of Banning Resolution No. 2004-43;
• City of Banning Resolution No. 1999-31;
• City of Banning Resolution No. 2003-06;
• City of Banning Resolution No. 2000-41;
• Banning CRA Resolution No. 2010-13; and
• Banning CRA Resolution No. 1990-04.

1.2 Definitions
The following definitions shall apply to these rules and procedures:
a) “Legislative Body” means any quorum of any council, board, commission or standing committee (as defined in Government Code § 54952), or other governingbody of the City of Banning that is subject to the Brown Act (Government Code
§ 54950 et seq.). This includes the Banning City Council, Banning Successor Agency to the former Redevelopment Agency, Banning Housing Authority Board, Banning Utility Authority, Banning Financing Authority, Planning Commission, Parks and Recreation Commission, Civil Service Commission, and any standing committee subject to the Brown Act. The term “Legislative Body” does not include Non-Governing Bodies, as defined below. b) “Presiding Officer” means the chairperson of the Legislative Body. For example, this refers to the Mayor when read in the context of the City Council, the Board Chair in the cases of the Successor Agency to the Redevelopment Agency and/or the Housing Authority, and the Chair of any Commission. c) “Vice Chair” means the vice chairperson to the Presiding Officer. For example, the Vice Chair means the Mayor Pro Tempore in the case of the City Council, the Vice Chairperson in the cases of the Successor Agency to the former 639

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Redevelopment Agency and/or Housing Authority, and the Vice Chairperson ofany Commission.
d) “Clerk/Secretary” means the person responsible for taking and maintaining the record of proceedings for all meetings, preparation of agendas, calendar clerk and custodian of rules, resolutions, ordinances, and Legislative Body records.

For example, the Clerk/Secretary refers to the City Clerk in the case of the City and the Agency Secretary in the cases of the Successor Agency to the former Redevelopment Agency and/or the Housing Authority.
e) “General Counsel” means the legal advisor to the Legislative Body, such as the City Attorney in the case of a City Council meeting, or Agency Counsel in the cases of the Successor Agency to the former Redevelopment Agency and/or Housing Authority.
f) “City Manager” means the Chief Executive Officer of the City, the Successor Agency to the former Redevelopment Agency, Housing Authority, Financing Authority and Banning Utility Authority. The City Manager may serve as the Secretary to the Successor Agency or Housing Authority, and the City Manager can designate appropriate staff to serve as the clerk/secretary to any Commission of the City.
g) “Non-Governing Bodies” means wholly advisory committees and bodies that are not subject to the provisions of the Brown Act.
h) “Sub-Legislative Bodies” means such advisory committees which are subject to the Brown Act but are not “governing” Legislative Bodies.

These rules and procedures are enacted pursuant to authority granted by Government Code §§ 36813 and 54954. The purpose of this Manual is to provide that the Legislative Bodies’procedures will be consistent with the Brown Act and also to establish procedures which will be convenient for the public and contribute to the orderly conduct of any Legislative Bodies’ business. The procedures herein are in addition to, and not in place of, applicable ordinances and statutes and in the event of conflict between this Manual and applicable ordinances or statutes, the latter shall govern. In the event that any state statute referenced herein is renumbered, the reference herein shall be deemed to refer to the successor statute dealing with the same subject matter.

ARTICLE II – MEETINGS

2.1 Regular Meetings
Unless otherwise specified by a resolution or ordinance applicable to specific Legislative Body, the regular meetings of all Legislative Bodies shall be held on the second and fourth Tuesday of each month at the time designated by the Legislative Body, in the Council Chambers at City Hall, 99 East Ramsey Street, Banning, California 92220, or at such other locations as the Legislative Body may from time to time designate by resolution, in the order of adjournment, or in the notice or call of any special meeting. In the event a day 640

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of meeting shall be a legalholiday, said meeting shall be held on the next business day.

2.2 Special Meetings
The Presiding Officer may, when he or she deems it expedient, or upon the writtenrequest of a majority of the Legislative Body, call a special meeting of the Legislative Body for the purpose of transacting the business designated in the call. The means or method for calling such special meeting shall be as set forth in the Brown Act as it now exists or may hereafter be amended. At such special meeting, no business shall be considered other than as designated in the call.

2.3 Special Emergency Meetings
A special emergency meeting may be called by the Presiding Officer or by a majority of the Legislative Body where an emergency exists:
(a) A work stoppage, terrorist act or threat, crippling disaster or other activity which severely impairs public health or safety as determined by the majority of the Legislative Body; or
(b) Such other circumstance specified by State law as authorizing the conduct of an emergency meeting. Any special emergency meeting shall be called, noticed, and conducted only in accordance with the procedures set forth in State law.

2.4 Attendance
A majority of members of the Legislative Body shall constitute a quorum. Less than a majority may adjourn from time to time and may compel the attendance of absent members.Any member who fails to attend any of the meetings of the Legislative Body for 60 consecutive days, unless such absences are excused, shall surrender the office, and be deemed to have surrendered the office.

2.5 Study Sessions
The Legislative Body may meet informally in conference or “study” sessions regarding concerns of the Legislative Body to interchange information, provided that all discussions and conclusions shall be informal. Such meeting shall be called in the same manner as for special meetings or adjourned meetings, as applicable, and be subject to the Brown Act. Each notice shall indicate that an opportunity for public comment shall be provided before any matter shallbe determined. When a meeting has been designated a Study Session, the Legislative Body shall not take any action with respect to the matter under study except with prior public notice, appearing on a properly posted agenda, of such intent to take action. 641

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ARTICLE III–NOTICE AND AGENDA

3.1 Notice and Agenda for Regular Meetings
For every regular Legislative Body meeting, the Clerk/Secretary or his or her designee shall post a notice of the meeting, specifying the time and place at which the meeting will be held, and an agenda containing a brief description of all the items of business to be discussed at the meeting as set forth in Article V. The notice and agenda may be combined in a single document.

The notice and agenda must be posted at least seventy-two (72) hours before the regular meeting in a location freely accessible to public twenty-four (24) hours a day during the seventy-two (72) hour period and where the notice and agenda is not likely to be removed or obscured by other postal material. Specifically, the notice and agenda shall be posted at the place indicated below, and/or at such other location(s) as the Clerk/Secretary may designate:

CITY HALL LOBBY

CITY OF BANNING WEBSITE

3.2 Notice and Agenda for Special Meetings
For every special meeting, the Clerk/Secretary or his or her designee shall post a written notice specifying the time and place of the special meeting and the business to be transacted mustbe sent to each member of the Legislative Body (unless the member has filed a written waiver of notice with the Clerk/Secretary) and to each local newspaper of general circulation, and radio or television station that has requested such notice in writing. The notice shall serve as the agenda for the special meeting and shall contain a brief description of all the items of business to be discussed at the meeting as set forth in Article V.

The notice for a special meeting shall be conspicuously posted at least twenty-four (24) hours prior to the special meeting in a location that is freely accessible to the public twentyfour. (24) hours a day and where the notice are not likely to be removed or obscured by other posted material. Specifically, the notice shall be posted at the place indicated below, and/or at such other location(s) as the Clerk/Secretary may designate:

CITY HALL LOBBY

CITY OF BANNING WEBSITE

3.3 Notice and Agenda for Adjourned Meetings
The Legislative Body may adjourn any regular, adjourned regular, special, or adjourned special meeting to a time and place specified in the order of adjournment. If a quorum is not present, less than a quorum may so adjourn. If all members are absent from any regular or adjourned regular meeting, the Clerk/Secretary may declare the meeting adjourned to a stated time and place and shall cause a written notice of the adjournment to be delivered personally to each member of the Legislative Body at least twenty-four (24) hours before the adjourned meeting. A copy of the order or notice of adjournment shall be conspicuously posted on or near the door of the place where the regular, adjourned regular, special, or 642

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adjourned special meeting was held, within twenty-four (24) hours after the time of adjournment. When a regular or adjourned regular meeting is adjourned as provided herein, the resulting adjourned regularmeeting shall be a regular meeting for all purposes. When an order of adjournment of any meeting fails to state the hour at which the adjourned meeting is to be held, it shall be held at the hour specified for regular meetings. If the subsequent meeting is conducted within five (5) days of the original meeting, matters properly placed on the agenda for the original meeting may be considered at the subsequent meeting. If the subsequent meeting is more than five (5) days from the original meeting, a new agenda must be prepared and posted pursuant to Government Code Section 54954.2.

3.4 Affidavit of Posting
Immediately following the posting of the notice and agenda, the Clerk/Secretary or his or her designee shall complete an Affidavit of Posting, in a form to be developed by the Clerk/Secretary. The Affidavit of Posting shall indicate the time of the posting, the location(s) ofthe posting, and shall be signed under penalty of perjury. The Clerk/Secretary shall retain allsuch affidavits, together with a copy of each notice and agenda so posted. The affidavit, notice, and agenda shall be retained at least two (2) years subsequent to the date of posting, and pursuantto Government Code § 34090, shall not be destroyed by the Clerk/Secretary thereafter except in accordance with the City’s record retention policies.

ARTICLE IV– CLOSED SESSIONS

4.1 Generally
The Legislative Body may hold closed sessions during a regular or special meeting, or at any time otherwise authorized by law, to consider or hear any matter which it is authorized by State law to hear or consider in closed session. Public comment shall be permitted on closed session matters prior to the closed session. If a closed session is included on the agenda, the description of the item shall meet the requirements of and shall identify the statutory basis for theclosed session. During closed session, the Legislative Body shall exclude all persons which it is authorized by State law to exclude from a closed session. No minutes of the proceedings of the Legislative Body during a closed session are required. There shall be no closed session during any special emergency meeting. Closed session may not be held regarding a matter not listed on a properly posted agenda for closed session except upon the Legislative Body first taking action to place the item on the agenda as a closed session item as permitted by law.

4.2 Persons Authorized
Persons present in the closed session shall be only those persons necessary to the discussion of the matter under consideration. All other persons shall be excused. The Clerk/Secretary shall attend each closed session of the Legislative Body and keep and enter intoa minute book a record of any reportable decisions made at the meeting, unless attendance is excused.
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4.3 Confidentiality
The minute book for any closed session is not a public record and shall be kept confidential and shall be available only to members of the Legislative Body or as otherwise provided by law. (Government Code § 54957.2(a).) No person attending a closed session shall publicly discuss or otherwise reveal the proceedings in the closed session unless such publicationhas been approved by the vote of the Legislative Body taken during the closed session or as otherwise required by law. Violation of this rule shall subject the violator to censure by the Legislative Body as provided in Section 10.5 herein.

ARTICLE V - AGENDA CONTENTS

5.1 Preparation of Agendas
Barring insurmountable difficulties, the agenda shall ordinarily be delivered to the members of the Legislative Body on Friday (as an informal deadline) preceding the meeting to which it pertains. The agenda shall also be available to the general public at the time it is delivered to the members of the Legislative Body, or in any case as required by the Brown Act.

Any Legislative Body member may have placed on the agenda any business that should be deliberated upon in the future by the Legislative Body. Any Legislative Body member desiring to present a subject for the Legislative Body’s consideration shall advise the City Manager’s office of that fact not later than 12:00 noon on the Tuesday of the week preceding the meeting at which the member wishes the subject to be considered. The matter shall then be listed on the next agenda for discussion of whether it should be a future agenda item. The City Manager shall advise the Legislative Body member of constraints affecting staff’s ability to produce an agenda report, and when the matter should be scheduled.

Notwithstanding the foregoing, the City Manager generally has responsibility for setting the agenda for the Legislative Body (except for any Commission where the responsibility may be assigned to the City Manager’s designee) and may place matters on the agenda in accordancewith the Manager’s evaluation of administrative priorities and resource capacities of City.

5.2 Description of Matters
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Body, shall be briefly described on the agenda. The description may, but need not, set out the specific action or alternatives which will be considered by the Legislative Body, but should contain sufficient detail so that a person otherwise unaware could determine the general nature or subjectmatter of the item by reading the agenda. The description of closed session matters shall meet the requirements of Government Code Sections §54954.2 and, where applicable, §54954.5.Matters may be designated as “pending” and listed for the sole purpose of determining if they will be on a future agenda.

5.3 Action Items
(a) Matters may formally be adopted by an ordinance, a resolution, minute order, or other motion (thereafter recorded by minute entry). Technically, all three are equally aslegally effective and binding but vary in the formality of respective memorialization. While most actions will be presented to the Legislative Body in a written form prior to, or at, the meeting, the Legislative Body may amend any proposed action as written by carried motion of the Legislative Body at the time of its presentation for adoption. If an action as written is so amended by the Legislative Body, it shall be revised to reflect the Body’s amendments for later execution by the Presiding Officer.
(b) Besides ordinances and resolutions, action can be taken by motion and recorded as a minute order. A “minute order” denotes a Legislative Body action which is recorded simply by an item entered in the minutes of the meeting at which it was accomplished, and no separate document is made to memorialize it. (c) As a general rule, a recorded majority of the quorum for a Legislative Body may take an action. However, for the City Council, resolutions, orders or the payment of money, and all ordinances require a recorded majority vote of the total membership of the City Council. Some actions, such as the passage of an urgency ordinance or adoption of a resolution of necessity to condemn property, require a super-majority vote. Under the Political Reform Actof 1974, a member with a financial conflict of interest regarding a matter before the member's board must leave the room while that matter is being discussed, heard, or acted on, so that member cannot be counted towards the quorum for that matter.

5.4 Resolutions
(a) A “resolution” is a formal action with findings taken by the Legislative Body, generally pre-prepared in writing, designated by sequential number, and reference towhich shall be inscribed in the minutes and an approved copy of each resolution filed in the official book of resolutions of the Legislative Body. Resolutions are used when specifically required by law, when needed as a separate evidentiary document to demonstrate findings or to be transmitted to another governmental agency, or where the frequency of future reference back to its contents warrants a separate document (with the additional “whereas” explanatory material it often recites) to facilitate such future reference and research. (b) A resolution may be adopted at the same meeting it is presented. Where a resolution has been prepared in advance, the procedure shall be: motion, second, discussion, votepursuant to methods prescribed in Article XI, and result declared. It shall not be necessary to read a resolution in full or by title except to identify it. 645

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(c) Where a resolution cannot reasonably be prepared in advance of a meeting, the Legislative Body may instruct the City Manager or the General Counsel to prepare aresolution for presentation at the next Legislative Body meeting. Where urgent, a resolution maybe presented verbally in motion form together with instructions for written preparation for later execution. After the resolution has been verbally stated, the voting procedure in Article XI, shallbe followed.

5.5 Ordinances (City Council Only)
(a) The City Council is the only Legislative Body empowered to legislate the Banning Municipal Code by adoption of ordinances.
(b) Ordinances, other than urgency ordinances, require at least two readings atdifferent meetings held at least five days apart with the first reading considered to be introduction and the second adoption.
(c) A waiver of further readings requires a majority vote of the Council members present and voting. The waiver of further reading may be accomplished by one vote for all ordinances presented on the agenda of the present meeting. Government Code Section 36934.
(d) The Clerk/Secretary shall prepare copies of all proposed ordinances for distribution to all members of the City Council at the meeting at which the ordinance is introduced, or at such earlier time as is expedient. Ordinances shall be numbered and kept by theclerk/secretary with the same formality as resolutions as described above in Section 5.4. (e) An urgency ordinance is an ordinance adopted for the immediate preservation of the public peace, health, and safety, containing a declaration of facts constituting the urgency. An urgency ordinance takes effect immediately and requires fourfifths vote of the City Council for passage pursuant to Government Code § 36937.

5.6 Contracts and Agreements
When any contract or agreement is to be considered by the Legislative Body, the complete contract and agreement, if complete in form for execution, shall be made a part of the agenda package presented to the Legislative Body and shall be made available for viewing by thepublic within the time frames required under the Brown Act and/or the California Public RecordsAct (Government Code §§ 6250 through 6276.48). The Legislative Body may choose to leave the final form of the contract to the discretion of General Counsel if the Legislative Body hasdetermined the general conditions of the contract.

5.7 Limitation of Actions by Agenda
No action or discussion shall be taken by the Legislative Body, on any item not appearingon a posted agenda, subject only to the exceptions listed in Section 5.9 below. "Action taken" as used herein shall mean a collective decision made by a majority of the Legislative Body, a collective commitment or promise by a majority of the Legislative Body to make a positive or a negative decision, or an actual vote by a majority of the Legislative Body 646

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upon a motion, proposal, resolution, order, or ordinance.

5.8 Public Comment Period
Pursuant to Government Code § 54954.3, every agenda posted for any meeting shall contain an item entitled “Public Comment” in order to provide for an opportunity for the publicto address the Legislative Body on items of interest to the public within the Legislative Body’s subject matter jurisdiction. The public comment period should be conducted in accordance with Article VII.

5.9 Exceptions to Agenda Requirement for Action Taken
The Legislative Body may take action at a meeting on an item not appearing on the agenda for that meeting only under one of the following circumstances:
(a) Upon a majority determination that an "emergency situation" that is either
(i) a work stoppage, crippling activity, or other activity that severely impairs public health,safety, or both, or (ii) a dire crippling disaster, mass destruction, terrorist act, or threatened terrorist activity that poses peril so immediate and significant that requiring a Legislative Body toprovide one-hour notice before holding an emergency meeting may endanger the public health, safety, or both. All discussion of such emergencies must be in open session.
(b) Upon a determination by a two-thirds (2/3) vote of the Legislative Body, or if less than two-thirds of the Legislative Body are present by a unanimous vote of those members present, that the need to take action arose subsequent to the agenda posting.

For the purposes of this subsection, the term "need to take action" shall mean those circumstances whoseoccurrence creates a situation which is materially different from that which existed at the timethe agenda was posted, and which requires the immediate attention of the Legislative Body. The mere failure of any person to notify the Legislative Body or staff of a pre-existing situation requiring Legislative Body attention until after the time for the posting of the agenda shall not be deemed to constitute a "need to take action" hereunder. If the Legislative Body makes a determination pursuant to this subsection, the minutes of the meeting at which the determination is made shall reflect what circumstances gave rise to the "need to take action" and why the item could not be placed on the agenda.

5.10 Minutes and Recordings
(a) An account of all proceedings of Legislative Body in open meetings shall be kept by the Clerk/Secretary. The Clerk/Secretary shall prepare an abbreviated record of the meetings proceedings for approval by the Legislative Body which when adopted by the Legislative Body shall be the official Minutes of the meeting. Amendment of the minutes may be made only as to factual accuracy and not as to a change of intent. The Minutes of the meetingneed not be verbatim. Only the best and most complete available recording of the meeting shall constitute the official record of the Legislative Body, but the Minutes shall constitute the official record of the Legislative Body meeting where a verbatim record of the meeting is not available.
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(b) Any recording of a meeting made by or at the direction of the Legislative Body is a public record that must be retained and made available to the public for at least 30days. The Legislative Body must provide to the public, without charge, equipment to review the record.

ARTICLE VI – ORDER OF BUSINESS

6.1 Order of Business
The order of business of each meeting shall be as contained in the agenda prepared by theClerk/Secretary unless the majority of the Legislative Body members consent to take items out oforder. The order of business at meetings of the Legislative Body may be as follows, in accordance with the procedures specified below:
(a) Roll Call.
(b) Announcement of Closed Session Items, if applicable. (c) Public Business from the floor on closed session items. (d) Recess.
(e) Reconvene Regular Meeting.
(f) Pledge of Allegiance.
(g) Closed Session Report, if applicable.
(h) Public Comments, Correspondence, Presentations, Appointments. (i) Announcements and Reports
(j) Consent Items. (See Section 6.3 below.)
(k) Public Hearings.
(l) Report(s) of Officers
(m) Discussion Items.
(n) Items for Future Agendas (Pending Matters).
(o) Adjournment.

6.2 Call to Order
The meeting of the Legislative Body shall be called to order by the Presiding Officer, or the Vice-Chair in the Presiding Officer’s absence. In the absence of both the Presiding Officer and Vice Chair, the meeting shall be called to order by the Clerk/Secretary and the threeLegislative Body members present shall elect by majority vote a Presiding Officer for that meeting.

6.3 Consent Items
Matters of a routine or generally uncontested nature and non-controversial, shall be placed on the agenda as Consent Items and may be approved by the Legislative Body in a single motion by adoption of the Consent Calendar. The approval of the Consent Calendar shall signifythe approval of each matter or recommendation included therein. All matters on the Consent Calendar shall be the subject to public comment procedures in Article VII. Upon the request of any member of the Legislative Body or upon the request of a member of the public made throughthe Presiding Officer, a matter may be removed from the Consent 648

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Calendar for separate discussion and/or action. Any such item shall be considered as part of the Excluded Consent Calendar. Each matter proposed for consideration as part of the Consent Items, including any recommended action, shall be described on the notice and agenda posted for the meeting. The following matters are not appropriate for the Consent Calendar:
(a) Ordinances shall not be placed on the Consent Calendar for approval unless the ordinance has first been read or the reading of the ordinance has been waived as required by law.
(b) Any matter where the City Manager believes (i) it the matter would most likely be unanimously approved by the Legislative Body, or (ii) there is not likely to be public comment on the matter, or (iii) a public presentation of the matter would not be particularly beneficial to the community or public interest.

6.4 City Representatives and Advisory Bodies (City Council Only) (a) From time to time the Council may be required to assign a representative of the City to non-City boards, commissions, or organizations (e.g., boards or commissions of another agency or joint powers authority). Except as otherwise required by law or by the policies of the non-City organization, the Mayor shall make all such appointments of City representatives on non-City organizations after consultation with the City Council. Council appointments to non-City organizations shall be considered and made with the goal of keeping the appointee in the organization for a long enough period of time that the appointee may gain seniority and/or a position of leadership within the organization. This goal shall be construed to mean that the same appointee should remain within a non-City organization for at least two yearswhere reasonably possible and convenient for said appointee. Nothing herein, however, shall be construed to limit or waive the City Council’s power to remove appointees pursuant to subsection (c) below. (b) The City Council shall have the power to establish advisory committees,commissions, other Legislative Bodies and Non-Governing Bodies. Any committee which is (i) established by ordinance, resolution, or other formal action, or (ii) has a fixed regular meetingschedule, or (iii) has continuing subject matter jurisdiction over a nontemporary issue, or (iv) which continues to conduct business in excess of 180 days, or (v) has a majority membershipof officials from other Legislative Bodies, shall be subject to the provisions of the Brown Act.

Advisory bodies and committees may take the following form:
i) The Council may, as the need arises, authorize the appointment of “ad hoc” Council committees composed of two members. Except where otherwise specifically provided by law, the Presiding Officer shall appoint the members of the Council committees, subject to the approval of the Council. Any committee so created shall cease to exist upon the accomplishment of the special purpose for which it was created or when abolished by a majority vote of the Council.
ii) The Council may, subject to the Brown Act, create other committees, boards, and commissions, whether Legislative Bodies or Non-Governing Bodies, 649

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to assist in the conduct and operation of the City government with such jurisdiction and duties as the Council may specify. Except as otherwise required by law, the Mayor shall make appointments of members to such committees, boards, or commissions subject to the approval of the Council. The procedure of filling vacancies and provision of notice thereof shall be subject to the provisions of the Maddy Act (Government Code §§ 54970-54974). iii) Sub-Legislative Bodies, including Non-Governing Bodies, shall beresponsible for reporting the Body’s activities to the City Council. The members of a SubLegislative Body or Non-Governing Body shall operate within the jurisdiction established by the Council and shall not have authority to make subcommittees unless specifically granted such authority by action of the full City Council. Staff members may be assigned to assist any Council-created committee by the City Manager; staff members so assigned shall not be members of the committee unless specifically appointed as such by action of the full Council. (c) Absent any other provision to the contrary, members of any non-City organization, or City committees, boards or commissions may be removed by the Council without cause by a majority vote of the whole Council body. Any member of the City Council may place the question of such removal on the agenda. Any committees, boards, or commissionsso created may be abolished by a majority vote of the whole Council body by repeal of the enacting ordinance or resolution.

6.5 Budgets
The City Council shall have the power to approve the City budget, and each Legislative Body shall have the power to approve the budget of funds specifically apportioned to control of that Legislative Body (e.g., the Successor Agency Board shall approve the budget of the Agency and the Housing Authority Board shall approve the budget of the Authority).

Approval of the budget constitutes approval of a proposed plan of expenditures and revenues.

It does not constitute an authorization for expenditures. With respect to any given expenditure the applicable procedure shall be followed. Further adoption of the budget does not, unless otherwise specified by resolution, constitute authorization for any specific employment class or position.

6.6 Items from Members
(a) There is a specific item on the agenda for receiving general comments, announcements, and/or suggestions from members of the Legislative Body. This can be used to inform the public concerning upcoming events, report on members’ attendance at conferences and seminars, for requests by members that staff look into specific matters or similar matters. These matters may not be discussed, opined upon, or deliberated, and if they do not concern a matter on the agenda, shall be handled by the Presiding Officer according to the same proceduresset out for Public Comment in Section 7.3. No action may be taken on such matters without being placed on a subsequent agenda.
(b) There is an agenda item referred to as pending matters. Matters are listed under this item pursuant to Section 5.1 where a member has asked that the matter be scheduled for discussion of whether a future staff report should be prepared. The listing of the matter allows a discussion of whether a staff report should be prepared, or it may be held on the pendingagenda to keep track of when it will be assigned to a future agenda. 650

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(c) There is an agenda item referred to as Reports from City Manager. This may be used by the City Manager similarly to the item for members of the Legislative Body in Subsection (a) above to make announcements without separately listing the matter on the agenda,and subject to the same restriction that there may be no discussion or action on such matter.
(d) There is an agenda item referred to as Reports from City Treasurer. The City Treasurer shall attend the meetings of the Legislative Body, unless excused. The City Treasurer may report on (i) the activities of the City Council Budget and Finance Committee and (ii) the duties of the City Treasurer as imposed under State law, except such duties otherwise delegated by the City Council to the City Clerk or the Administrative Services Director.

ARTICLE VII– PUBLIC COMMENT AND PRESENTATIONS

7.0 City Council Meeting Presentations
City Council presentations are for providing information to the Mayor and Council, City management, and the community about activities of interest and value to include activities, events and infrastructure projects relating to the City, honors and celebrations for organizations, corporations and residents which reflect their service to the Banning community, honors, and recognitions for City staff for outstanding service or commitment to the City’s mission andgoals. Please Note: This is not the appropriate time to seek funds from the City and/or endorsements from City Council or discuss politics.

All presentations are to be no more than five minutes in length; this is to include all speakers for the group being recognized. Please see the attached “Exhibit B” for a complete copy of the Banning City Council Meeting Presentation Policy contained and incorporated as an exhibit to the Manual of Procedural Guidelines for the Conduct of City Council and Constituent Body/Commission Meetings for the City of Banning.

7.1 Public Comment
At the beginning of any Legislative Body meeting the public shall be afforded the right tocomment on any and all issues (not on the agenda) within the subject matter jurisdiction of the Legislative Body. Such general public comment on non-agendized issues shall be taken at the beginning of the meeting under a “General Public Comment” heading. Each speaker will be limited to a maximum of three (3) minutes to provide comments on non-agendized issues.

With regard to matters not on the agenda, the Legislative Body may ask questions of persons whoraise new matters during the General Public Comment period or otherwise However, all Legislative Body questions must be limited to facts-only informational inquiries, and the Legislative Body may not discuss the merits, express any opinions, or ask questions that convey opinions or thought processes with respect to any non-agendized issue. The public shall also be afforded the right to comment on every item appearing on the agenda prior to the Legislative Body’s consideration of that item, as provided in Section 7.4 below.
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7.2 Time Limitations
The time limit to speak for public comments is five minutes during a noticed public hearing, provided that these limits do not apply to a project applicant speaking at a public hearing pursuant to Article VIII. All such time limits shall be noticed on the agenda for the meeting. Notwithstanding these time limits, the Presiding Officer has the full prerogative to maintain meeting order and decorum as provided in Section 9.1 and Article X generally, and the Presiding Officer may extend time if he/she finds such extension is reasonably necessary toallow the speaker to compete his/her message without repetition or unnecessary tangents.

7.3 Reserved

7.4 Additional Procedures for Public Comment on Agenda Items (a) Members of the public shall have the opportunity to address the Legislative Body on each and every item listed on the agenda. Public comment on agenda items must be heard prior to the Legislative Body’s consideration/discussion of the item.

Public comments on an agenda item may be heard either in combination with the General Public Comment period at the start of the meeting, or at the time the Legislative Body opens the item, orboth, as determined by the Legislative Body and set forth in the agenda. (b) The purpose of the public comment period is to receive input from the public, not to create a debate between the Members and the public. Members should generally refrain from debating members of the public during the period for public comment, but if Members desire to clarify comments by members of the public, they may ask factual questions, and if necessary, should do so during the public comment period. (c) The Presiding Officer should clearly open and close the public comment period. After the close of the public comment period or after a motion has been made, no member of the public shall address the Legislative Body without first securing permission of the Presiding Officer.

ARTICLE VIII– NOTICED PUBLIC HEARINGS

8.1 Public Hearings; Notice; Fairness
(a) Matters noticed to be heard by the Legislative Body shall commence at thetime specified in the notice of hearing, or as soon thereafter as is reasonably possible, and shall continue until the same has been completed or until other disposition of the matter has been made.
(b) Legislative Body members shall not overtly or implicitly promise a particular action by City staff or by any Legislative Body. Where a Legislative Body member is contacted about an issue that will be presented to any Legislative Body of the City, it is appropriate to give a brief overview of City policy, to refer to City staff for further information, or to suggest that the concern be brought to the whole Council at the hearing or Council meeting,as appropriate.
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(c) All public hearing notices shall be issued and published in compliance with any statutory notice requirements applicable to the particular hearing at issue and such notice shall inform interested persons of the Statute of Limitations to challenge the validity ofany action taken by the Legislative Body on such matter. (d) In all matters before a Legislative Body, whether public hearing or otherwise, the Body must judge the matter fairly and without personal bias. Although every Legislative Body member has a right to their own personal opinions, Legislative Body members should by their demeanor show an ability to listen to a variety of viewpoints and demonstrate a reasonable willingness to consider all sides of an issue before them. For quasi adjudicative matters involving public hearings, the members of the Legislative Body shall not prejudice the matter prior to the public hearing, shall be fair and impartial, and shall decide the matter based upon the evidence and the statutorily required findings. (e) For such matters, Legislative Body members should avoid expressing an opinion or divulging their thought process until after the public hearing has been completed.

8.2 Continuance of Hearings
(a) Any hearing being held or noticed or ordered to be held by the Legislative Body may, by order or, notice of continuance, be continued, or re-continued to any subsequent meeting in the manner provided for adjourned meetings. (b) When it is the decision of the Legislative Body to continue an item, which appears on the agenda, prior to hearing any report, testimony or taking evidence on the item, the Legislative Body may make such intent known at the beginning of the meeting. At that time, the public shall be offered the opportunity to speak regarding the intent to continue the item. At the time regularly scheduled for the hearing of the item, the Legislative Body shall then take actionto continue the item after again informing the public of the intent to continue the matter. No testimony or evidence shall be taken at that time unless the speaker will not be available at the continued hearing date.
(c) When the Legislative Body has continued the public hearing on an item after its commencement, persons testifying at the first public hearing shall be permitted to again address the Legislative Body on the item at the renewed hearing subject to the finding of the Presiding Officer that the testimony is redundant. Upon such finding the time allotted for testimony by the individual may be summarily reduced.
(d) Continuances of a public hearing to a date certain need not be re-noticed unless (i) the hearing has not been continued to a date certain, or (ii) has been continued three or
more times and the Presiding Officer believe confusion may be created as to the time of thehearing.

8.3 Conduct of Hearings
(a) When a matter for public hearing comes before the Legislative Body, the Presiding Officer shall request that staff present the staff report and any other relevant evidence, but the presentation of the staff report prior to the formal opening of the public 653

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hearing shall not prevent its consideration as evidence. Any such evidence shall be made a part of the record of the public hearing. The Presiding Officer shall permit members of the Legislative Body to ask questions of staff but should prevent expressions of opinion by members of the Legislative Bodybefore the conduct of the hearing. (b) The Presiding Officer shall thereafter open the public hearing and inquireif there are any persons present who desire to address the Legislative Body on the matter. Any person desiring to speak or present evidence upon being recognized, may speak or present evidence relevant to the matter being heard. Any testimony shall be truthful. (c) Members of the Legislative Body who wish to ask questions of the speakers, during the public hearing portion, may do so but should be mindful that the purpose of the public hearing is to obtain testimony and evidence from the speakers, and not to debate the merits of the matter with speakers. Members should avoid debate and expressions of personal opinion until after the close of the public hearing. Unlike public comment periods, generally there should be no response to speaker comments until after the close of the hearing.

The Presiding Officer shall conduct the hearing in such a manner as to afford due process to all affected persons.
(d) All persons interested in the matter being heard by the Legislative Body shall be entitled to submit written evidence or remarks, as well as other graphic evidence. All such evidence presented shall be retained by the Clerk/Secretary as part of the record. Each speaker may only speak once during the public hearing unless the Legislative Body requests additional clarification later in the process.
(e) Upon closing of the public hearing by the Presiding Officer, no additional public testimony shall be solicited or received by the Legislative Body without reopening the public hearing. If, however, the Legislative Body receives relevant new evidence after the close of the public hearing and such new evidence may impact the Legislative Body motion or vote,the Legislative Body may re-open the public hearing to obtain public comments upon such new evidence.
(f) The Presiding Officer has the prerogative to establish special rules, such asto require group spokesmen, to limit the number of speakers to limit the total time for testimony to allow speakers to give time to others, or otherwise control the hearing, provided that (i) speakers are treated fairly, and that (ii) any such special rules are announced in advance of their application. The Presiding Officer always retains the prerogative to cut off speakers who are unduly repetitious, and to permit the extension of time to speakers.

8.4 Extra-Meeting Contacts on Matters Set for Public Hearing (a) Legislative Body members should minimize their contacts with developers, applicants, or other persons who will be the subject of a quasi-adjudicative public hearing matter to be heard before the Legislative Body. Legislative Body members should avoidextra-meeting contacts with persons who will be the subject of a public hearing before the Body or with advocacy groups or special interests.
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outside the meeting setting, the member shall refrain from expressing any viewpoints or thought processes to the person until after the public hearing. The Legislative Body member may explainthat they are unable to express any viewpoint on the matter until all evidence has been heard in the course of a public hearing and should encourage any such person to present their position in writing or orally at the public hearing. (c) At the commencement of the public hearing, the Legislative Body membermust disclose publicly any extra-meeting contacts or discussions had which may be relevant to the decision.
(d) The limitations set forth in this Section shall not be read as preventing a Legislative Body member from inspecting a site that will be relevant to a public hearing, although such sight inspection should be disclosed on the record at the beginning of the public hearing.

ARTICLE IX - OFFICERS

9.1 Presiding Officer
(a) The meeting shall be presided over and chaired by the Presiding Officer, or, in the Presiding Officer's absence, the Vice Chair. The Presiding Officer shall have the authority to rule any speaker out of order, including speakers during the public comment periodif the subject raised is not within the subject matter jurisdiction of the Legislative Body, orduring a public hearing if the speaker is not presenting testimony or evidence relevant to the matter which is the subject of the public hearing. The Presiding Officer shall have the responsibility for the conduct of meetings in an orderly manner and to prevent the obstruction of business, and in carrying out this responsibility shall have the authority to give the floor to any member of the Legislative Body or public by recognizing them, to prevent the misuse of legitimate forms of motions or privileges, to take matters up out of order, to caution speakers as to disruptive behavior, and to order any persons willfully interrupting the meeting to be removed from the room, including as provided in Article X. (b) The Vice Chair shall generally take the place of the Presiding Officer inthe absence of the Presiding Officer. In the absence of the Vice Chair, the Presiding Officer maycall any other member to take his or her place as Presiding Officer; such substitution not to continue beyond adjournment.
(c) Any determination made by the Presiding Officer may be appealed by the making of a Motion to Appeal the Ruling by any other member of the Legislative Body. The Presiding Officer's determination will stand unless a majority of the Legislative Body members vote in favor of the Motion to Appeal the Ruling, in which case the ruling of the PresidingOfficer will be overridden. The Motion to Appeal the Ruling is governed by the Chart of Motions attached as Exhibit A.

9.2 Representation of Legislative Body
(a) The Mayor is the designated representative of the City and the City Council for purposes of presenting and expressing the official City position on an issue. If 655

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individual members of the Council or other Legislative Bodies are contacted by the media for a statement of official City position, the member should refer such inquiries to the Mayor.

Otherwise, public or media statements by a Legislative Body member should be clearly characterized as comments upon a personal viewpoint.
(b) Members of the City Council may use official City letterhead to correspond with other public officials and with consultants, but any such correspondence shall state that the views expressed therein are personal and not the position of the City unless the CityCouncil has officially adopted such position. No commission or Sub-Legislative Body may take a position officially representing the City unless authorized to do so by the City Council.

9.3 Email Policy
(a) Members of the Legislative Body are provided with City email accounts which may be utilized for the conduct of City business, including communications with constituents. Members should be aware that all such communications may be subject to the Public Records Act (Gov’t Code Section 6200). Use of private email accounts for City business may also make them subject to disclosure.
(b) Members of the Legislative Body are subject to the Brown Act in the use of email. Email communications may not be used to develop a collective consensus or decision on any matter. Email communications to the entire Body should be avoided but may bepermitted to provide factual information, for example such as arranging an event, where no discussion or exchange of opinions on a matter within the jurisdiction of the Legislative Body is initiated or occurs.

9.4 Clerk/Secretary
The Clerk/Secretary or his/her deputy shall attend all meetings of the Legislative Body unless excused and shall keep the official minutes and perform such other duties as may be requested by the Legislative Body.

9.5 City Manager
The City Manager, or designee, shall attend all meetings of the Legislative Body unless excused. The City Manager may make recommendations to the Legislative Body and shall have the right to take part in all discussions of the Legislative Body but shall have no vote. The City Manager shall provide the Legislative Body with a staff report providing sufficient information to be the basis for any action by the Legislative Body at its meeting. Any officer or employee of the City, when directed by the City Manager, shall attend any meeting of the Legislative Body, and may present information relating to matters before the Legislative Body.

9.6 General Counsel
(a) The General Counsel, or deputy, shall attend all meetings of the City Council unless excused and shall upon request of any member give an opinion, either written or oral, on questions of law. The General Counsel, or deputy, shall attend all meetings of such 656

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other Legislative Bodies as directed by the City Council or City Manager. The General Counsel serves as advisory parliamentarian for the City and is available to answer questions or interpret situations according to parliamentary procedures. Final rulings on parliamentary procedure are made by the Presiding Officer, subject to the appeal of the full Legislative Body pursuant to Section 3 of Article XI, below. All ordinances and resolutions, all contracts, deeds, and easements or other legal instruments shall be approved as to form and legality by the General Counsel. Contracts may be approved as to form and/or legality by the General Counsel when exceeding purchasing ordinance and policy guidelines. In any case of ambiguity or uncertainty inthe interpretation or application of this Manual to any procedure, the Presiding Officer may direct such question to the General Counsel for a ruling. (b) Any member of the Legislative Body may request from the General Counsel a legal opinion regarding any matter related to the interests of the City. Where a legal opinion involves substantial cost, the request for the opinion must first be approved by the City Manager or by a majority of the Legislative Body. The General Counsel is the legal representative of the City acting through its Legislative Body. There is a continuing legal question as to whether the General Counsel may have an attorney-client relationship with any individual member of the Legislative Body or the City staff. As a consequence, any discussion with the General Counsel which leads to the conclusion that the interests of the City are at risk must be revealed to all relevant members of the Legislative Body and the City staff by the General Counsel. The General Counsel shall not have an attorney-client relationship withindividual Council members. The General Counsel is required to maintain the confidentiality of such communications from persons outside the City to the extent required or permitted by law and the code of ethics.
(c) The General Counsel has no statutory duty or authority under the Political Reform Act to provide Political Reform Act advice to any Legislative Body member but should provide advice to members when requested. However, a Legislative Body member may not rely on advice from the General Counsel to provide him or her with immunity from FPPC enforcement or prosecution. Such immunity may be obtained only through a written advice letterobtained from the FPPC, on the question in issue, by the Legislative Body member. A Legislative Body member enjoys no privilege of attorney/client confidentiality in reviewing these matters with the General Counsel. Any advice given to an individual member of aLegislative Body cannot be withheld from the rest of the City or Legislative Body. If, after receipt of an opinion of the General Counsel, the Legislative Body member wishes to participate in the decision-making process with immunity from prosecution or enforcement, the General Counsel shall assist the Legislative Body member in making direct contact with the FPPC for informal or formal advice upon which the Legislative Body member can rely. (d) [City Council Only]. It often happens that other jurisdictions or the League of California Cities or other regional or statewide association will ask the City to participate in the filing of a letter or brief before a court in a matter deemed to be of concern toall or a great many cities. These “friend of the court” or “amicus” briefs have the effect of informing the court how widespread will be its opinion and how that opinion will affect cities.

Such participation is normally without direct cost to the City. In considering whether to direct General Counsel to file an amicus brief, the City Council shall consider whether such briefwould represent or propose a position that conflicts with, or causes strife amongst, other 657

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City- related interests such as, without limitation, the interests of employee organizations, law enforcement or public safety.
i) Upon receipt of the request, the General Counsel shall make the request available through the City Manager to the Council. Upon a determination by any Council member that there is an interest in participating in the action in the manner proposed, theCouncil member shall inform the City Manager or General Counsel who shall place the matter asan item for discussion in closed session on the agenda of the next Legislative Body meeting. TheGeneral Counsel may otherwise place an amicus request on the agenda on his or her initiative.
ii) In lieu of the foregoing process, where there is urgency to the matter, General Counsel is authorized to undertake the filing of the letter or brief where (i) in the opinion of General Counsel the legal matter significantly affects the interests of the City, (ii) the General Counsel has consulted with and received the approval of the City Manager, (iii) the cost to the City will not exceed $5000, and (iv) the General Counsel makes a written report of the action to the Legislative Body.
iii) Approval given to General Counsel to defend, or seek or refrain from seeking, appellate review or relief, or to enter as an amicus curiae in any form of litigation as the result of a closed session consultation shall be reported in open session at the public meeting during which the closed session is held. The report shall identify, if known, the adverse party or parties and the substance of the litigation. In the case of approval given to initiate or intervene in an action, the announcement need not identify the action, the defendants, or other particulars, but shall specify that the direction to initiate or intervene in an action has been given and that the action, the defendants, and the other particulars shall, once formally commenced, be disclosed to any person upon inquiry, unless to do so would jeopardize the agency's ability to effectuate service of process on one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage.

9.7 Conflicts of Interest
All Legislative Body members are subject to the provisions of California Law, such as Chapter 1, Title 9, of the California Government Code, relative to conflicts of interest, and to conflicts of interest codes adopted by the Legislative Body. Any Legislative Body member prevented from voting because of a conflict of interest shall refrain from in any way participatingin the matter giving rise to the conflict. Where abstention from a matter is made on the basis of aconflict of interest arising from a financial interest in the decision, the Legislative Body member shall announce their abstention from the matter when it is first opened, and then shall set forththe reason for the abstention with the degree of specificity at least equal to the disclosure of the Legislative Body member’s financial interests on the Legislative Body member’s annual statement of financial interests; immediately after such announcements, the Legislative Body member shall leave the room. The Legislative Body member shall not overhear the staff report, participate in the discussion or deliberations, and shall not otherwise make or participate in making the decision or in any way attempt to use his or her official position to influence the decision. This shall not prevent the conflicted Legislative Body member from coming before theLegislative Body solely during the public 658

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comment period as an affected citizen to state his/her opinion on how the matter impacts their disqualifying interests.

9.8 Reserved

9.9 No Financial Interest in Contracts
A member of a Legislative Body shall not have a financial interest in a contract within the meaning of (Government Code §1090 et seq.) made in their official capacity and such contract shall be null and void whether the member participates in the making of the contract or not.

9.10 Ethical Standards
A member of a Legislative Body shall maintain the highest ethical standards and shalladhere to all laws and the ordinances and regulations of the City in carrying out their duties.

ARTICLE X– DECORUM AND ORDER

10.1 Decorum and Order – Legislative Body Members
(a) Any member of the Legislative Body wishing to speak, or any member of the public wishing to address the Legislative Body must first obtain the floor by being recognized by the Presiding Officer. The Presiding Officer must recognize any member of the Legislative Body who seeks the floor when appropriately entitled to address the Legislative Body. The Legislative Body member shall confine himself or herself to the question under debate.
(b) Any member of the Legislative Body, including the Presiding Officer,may bring a matter of business properly before the Legislative Body for decision by making a motion. Any Legislative Body member, including the Presiding Officer, except the Legislative Body member making the motion, may second a motion. Once a motion is seconded, it may be opened for discussion and debate.
(c) The Presiding Officer shall determine all points of order, subject to the right of any member to appeal to the majority Legislative Body. (d) A Legislative Body member, once recognized, shall not be interrupted while speaking unless called to order by the Presiding Officer, unless a Point of Order is raisedby another Legislative Body member, or unless the speaker chooses to yield to questions from another Legislative Body member.
(e) Any Legislative Body member called to order while speaking shall cease speaking immediately until the question of order is determined. If ruled to be in order, the member shall be permitted to proceed. If ruled to be not in order, the member shall comply with ruling of the Presiding Officer.
(f) Legislative Body members shall accord the utmost courtesy to each other, to City or Legislative Body employees, and to the public appearing before the Legislative Body and shall refrain at all times from rude and derogatory remarks, 659

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reflections as to integrity,abusive comments, and statements as to motives and personalities, which disrupt, disturb, or otherwise impede the orderly conduct of the Legislative Body meeting.
(g) Any Legislative Body member may move to require the Presiding Officer to enforce the rules and the affirmative vote of a majority of the Legislative Body shall require the member to so act.
(h) The members of the Legislative Body shall not engage in communicationsbetween themselves during the Legislative Body meeting (including breaks) regarding matters being considered on the agenda unless and until the Legislative Body has opened that agenda item. In order to minimize exposure to a Brown Act violation, Legislative Body members are discouraged from discussing any City business during breaks or before and after meetings; City business may only be discussed by a quorum of Legislative Body members when it is opened asa duly noticed agenda item. (i) The members of the Legislative Body shall always be attentive and show respect to those addressing the Legislative Body provided that nothing shall prevent the enforcement of the rules of decorum herein.
(j) No Legislative Body member attending a meeting of another City commission or committee shall make any statement or, give the appearance or indicate in any way that they are representing the Legislative Body unless they have been authorized to do so bythe Legislative Body. When making a comment at such a meeting, the Legislative Body member should make it clear that they are speaking solely as an individual. Unless officially appointed toparticipate on a committee, Legislative Body members should make an effort not to insert themselves into or take positions on matters which will ultimately be decided upon by the Legislative Body.
(k) The Legislative Body may punish its own members for misconduct pursuant to Section 10.5.

10.2 Decorum and Order – Employees
(a) Members of administrative staff and employees of the Legislative Body shall observe the same rules of procedure and decorum applicable to Legislative Body members. The City Manager shall ensure that all staff and employees observe such decorum.

Any staff members, including the City Manager, desiring to address the Legislative Body or members of the public shall first be recognized by the Presiding Officer. All remarks shall be addressed to thePresiding Officer and not to any individual Legislative Body member or member of the public.
(b) Questions of City staff and/or requests for follow-up or additional background information should be directed only to the City Manager, General Counsel, AssistantCity Manager, or Department Heads. The Office of the City Manager should be copied on any request, except those to the General Counsel. When in doubt about what staff contact isappropriate, Legislative Body members should ask the City Manager for direction.

Materials supplied to a Legislative Body member in response to a request will be made 660

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available to all members of the Legislative Body so that all have equal access to information. (c) Legislative Body members should not solicit any type of political support (financial contributions, display of posters or lawn signs, name on support list, etc.) from City staff. City staff may, as private citizens with constitutional rights, support political candidates but all such activities must be done away from the workplace.

10.3 Decorum and Order – Public
(a) Members of the public attending Legislative Body meetings shall observe the same rules of order and decorum applicable to the Legislative Body. All remarks and questions should be addressed to the Presiding Officer and not to any individual LegislativeBody member, staff member or other person.
(b) Any person conducting their public remarks or behavior before the Legislative Body in such a way as to actually cause disruption to the conduct of the meeting maybe removed from the room by the sergeant-at-arms as directed by the Presiding Officer.

Unauthorized remarks from the audience, stamping of feet, whistles, yells, and similar disruptive demonstrations shall not be permitted by the Presiding Officer, who may direct the sergeant-at- arms to remove such offenders from the room or call a recess of the meeting.

Aggravated cases may be prosecuted on appropriate complaint signed by the Presiding Officer. (c) Members of the public shall be allowed to video or audio record a public meeting unless such recording becomes an actual and unreasonable disruption to the Legislative Body’s ability to carry-out the meeting.

10.4 Enforcement of Decorum
(a) The Banning Police Chief or designee shall be ex-officio sergeant-atarms of the Legislative Body. He shall carry out all orders and instructions given him by the PresidingOfficer for the purpose of maintaining order and decorum in the Legislative Body meeting.Upon instructions from the Presiding Officer, it shall be the duty of the sergeant-at-arms to eject any unruly person from the Legislative Body meeting chamber or place him or her under arrestor both for conduct actually disrupting to the Legislative Body proceedings. Such person may bebarred from further participation in the meeting. (b) Generally, if the Presiding Officer intends to eject a person for disruption of a meeting, a public warning should be issued. Examples of remarks or behavior that cause actual disruption of the Legislative Body proceedings include:
• Unauthorized remarks from the audience, stamping of feet, whistles, yells, outbursts, catcalls, cursing, applause, offensive or obscene gestures or similar demonstrations which disrupt, disturb, or otherwise impede the Legislative Body proceedings • Interrupting speakers or speaking when not recognized • Calling members of the audience names or threatening them • Extended discussion of matters beyond the jurisdiction of the Legislative Body
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• Physical threats to any person
• Shouting into the microphone
• Dumping objects on the floor of the chamber where the proceedingis held for symbolic or other reasons.
• Speaking beyond the time limits
• Being unduly repetitious
(c) Examples of non-disruptive conduct include:
• Silent gestures by members of the audience, such as a thumbs upor thumbs down or Nazi salute that are not otherwise
disruptive of the meeting.
• Catcalls or booing during a time allowed for applause that does nototherwise disrupt the meeting.
• Criticisms of public officials or staff during a time reserved for public comment that does not otherwise violate Council
proceduresand does not disrupt the meeting.
(d) As set forth in Government Code § 54957.9, in the event that any meeting is willfully interrupted by a group or groups of persons so as to render the orderly conduct of such meeting unfeasible and order cannot be restored by the removal of individuals who are willfully interrupting the meeting, the Legislative Body members may order the meeting room cleared and continue in session. Only matters appearing on the agenda may be considered in such a session. Duly accredited representatives of the press or other news media, except those participating in the disturbance, shall be allowed to attend any session held pursuant to this Section. Nothing in this Section shall prohibit the Legislative Body from establishing a procedure for readmitting an individual or individuals not responsible for willfully disturbing the orderly conduct of the meeting.

10.5 Censure of Legislative Body Members
(a) It shall be a violation of this section for any sitting member of a Legislative Body to violate any general law or regulation, and any, rule, law, ordinance, or resolution of the City of Banning. It shall also be a violation of this section for any sitting member of a Legislative Body to violate an administrative policy of the City which has been adopted following a vote of the Legislative Body or the City Council on the matter and which by its terms is expressly made applicable to the Legislative Body. (b) Any violation of the foregoing paragraph by a Legislative Body member may be punished through the administration of a public censure of the member by the member’s Legislative Body. Such censure may be in addition to any other punishment applicable to the violation. For purposes of this section, "censure" shall mean the adoption of a motion setting forth a statement of disapproval of a Legislative Body member's conduct. (c) When evaluating a request for defense made by the censured member in litigation arising from the censured conduct, the record of the censure shall be considered by the Legislative Body. Such record shall not be determinative. Failure of the Legislative Body to censure the conduct of a member does not constitute waiver of the Body's right to refuse to 662

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defend the member in an action.
(d) A Legislative Body member may not be made the subject of a motion for censure without first being given notice of the violation and an opportunity to correct theviolation if it can reasonably be corrected. Upon a continued violation or failure to correct, the charged member shall be given notice and an opportunity to be heard as follows:
(i) Only a sitting member of the Legislative Body whose member commits the violation may initiate proceedings for the censure of one of its members.
(ii) Proceedings shall be commenced by the presentation of a written statement of charges to the subject Legislative Body member witha copy delivered concurrently to the Clerk/Secretary by the member initiating the charge. Initiation shall not require the prior approval of the Legislative Body. The statement of charges shall be given at least ten days prior to the meeting at which the censure motion is proposed to be brought. The notice shall contain, at a minimum, the designation of the specific rule, law regulation, etc. which the member is claimed to have violated and a statement of the date, place, and time at which the violation occurred. The statement shall further contain a description of the conduct of the member which is alleged to constitute the violation. The statementof charges shall be delivered to all other Legislative Body persons.
(iii) Within seven (7) days after delivery of the statement of charges, the charged member should deliver a written response to the other members of the Legislative Body unless the charged member chooses to defer to response to the hearing.
(e) The motion for censure shall be agendized and considered at the first regular meeting occurring 10 days following the delivery of the statement of changes to the member and Clerk/Secretary. The hearing may not be continued except upon the absence from the meeting of a member of the Legislative Body other than the member bringing the charge or the member who is the subject of the charge.
(i) The hearing shall be conducted in an open session by the PresidingOfficer unless the Presiding Officer is a party to the action, in which case the Vice Chair or some other member shall conduct theproceedings.
(ii) The hearing shall generally proceed by a reading of the charges by the charging member. The charging member may present witnesses; the charged member may answer in rebuttal;
membersof the public may speak in favor or opposed to the charge; and the remaining members may speak to the charges in that order.
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(iii) Passage of the motion for censure shall require a majority vote of the members of the Legislative Body. The voting members shall not go into closed session for deliberation.
(f) If the motion for censure does not pass the proceedings shall be at an end.

A new motion for censure on the same grounds of violation may not thereafter be commenced against the same Legislative Body member for a period of 1 calendar year from date of the vote. However, new proceedings may be commenced on the same charges within the 1-year period on the vote of 4 members of the Legislative Body. (g) If the motion for censure does pass, such motion shall become a part of thepublic record a copy of which shall be made available upon demand to any member of the publicand notice of same shall be placed in the administrative file of the Legislative Body member.

10.6 Persons Authorized To Be Within Platform/Dais
No person except Legislative Body officials or authorized Legislative Body staff shall be permitted behind the Legislative Body dais without permission or consent of the Presiding Officer.

10.7 Personal Privilege
If a Legislative Body member is personally offended by the remarks of another member, the offended Legislative Body member should make notes of the actual words used and call for a"point of personal privilege" that challenges the other member to justify or apologize for the language used. The Presiding Officer will maintain control of this discussion.

The right of a member to address the Legislative Body on a question of personal privilege shall be limited to cases in which his integrity, character, or motives are assailed, questioned, or impugned.

ARTICLE XI – PARLIAMENTARY PROCEDURES

11.1 Procedures In Absence Of Rules
(a) Unless otherwise specified in this Manual or by ordinance or resolution, meetings of the Legislative Body shall be conducted in accordance with the most recently revised edition of Robert's Rules of Order. In the event of any conflict between Robert's Rules and this Manual, the provisions of this Manual shall govern. (b) Any provision of these rules not governed by the Government Code may be temporarily suspended by a two-thirds vote of all members of the Legislative Body.

Such suspension may be moved at any time by a member. The vote on any such suspension shall be taken by yeas or nays and entered upon the record. (c) Motions, motion procedures and precedence of motions shall be conductedin accordance with Exhibit “A” hereto.
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11.2 Voting
(a) After a full opportunity for debate if it appears that there is a consensus of opinion among the members of the Legislative Body on the matter to be voted upon, thePresiding Officer may state the consensus of the Legislative Body and ask if there is any objection. If there is no objection, the consensus as so stated shall become the order of the Legislative Body. The Presiding Officer may also determine that a consensus exists following a call for a vote by any member of the Legislative Body by a Motion to Call the Question. (b) Except as in Subsection (a) above, otherwise, all votes of the Legislative Body shall be taken by electronic vote. In the event the electronic voting machine is not functioning or otherwise unavailable, vote shall be by roll call vote. The order voting shall be alphabetical with the Presiding Officer voting last. The Clerk/Secretary shall call the names of all members seated when a roll call vote is ordered or required. Members shall respond ‘aye’, ‘no’ or ‘abstain.’ After every vote, the Legislative Body shall declare the result and, on all but consensus votes, shall note for the record the number of votes for or against the question. The ayes and noes shall be taken upon the passage of all ordinances and resolutions and entered uponthe official record of the Legislative Body.

11.3 Votes Needed
(a) Usually, in the absence of a contrary statutory provision (such as urgency measures), a majority of a quorum which constitutes a simple majority of the Legislative Body may act for that body. However, resolutions, orders for the payment of money, and all ordinances require a recorded majority vote of the total membership of a Legislative Body.
(b) State law may dictate certain instances in which the number of votes required is greater than a majority of all Legislative Body members. As a matter of convenience,questions on which the voting requirement is varied by the State statutes and these rules, include,without limitation, the following:
(i) Levying Taxes - Ordinances providing for the Assessment andcollection of taxes require the approval of two-thirds of the members of the whole Council.
(ii) Assessment - Assessments require a two-thirds vote of the whole Council.
(iii) Bonds and Certificates of Participation - Authorizing these financial instruments the issuing requires a two-thirds vote of the total Council.
(iv) Eminent Domain - The exercise of Eminent Domain requires a two-thirds vote of the total Council.
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supermajority vote are noted in the Motions Chart attached hereto.
(c) Any official with a conflict of interest is not counted for purposes of establishing a quorum, and must not vote on, make, participate in any way in, or attempt to influence the decision. A Legislative Body member abstaining on any other grounds than a conflict under the Political Reform Act shall be counted as present for purposes of a quorum and such abstentions are counted with the majority. The Legislative Body member who leaves the dais solely to avoid participating in a specific item shall, in absence of a conflict, be counted as ifthey were present but abstaining and such abstentions are also counted with the majority. (d) Reconsider
Any Legislative Body member who voted with the majority may move to reconsider any action at the same meeting or, within sixty (60) calendar days, request in writing to the Clerk/Secretary that it be agendized for consideration at the following meeting, provided that reconsideration shall not be permitted where a party other than the City has acted in reliance on the Legislative Body’s action and would be substantially prejudiced by such reconsideration.The Clerk shall apprise the City Attorney of any facts constituting substantial prejudice and may rely upon the determination of the City Attorney. In the event that the subject of the reconsideration is a motion that failed as the result of a tie vote, any Legislative Body member who voted against the earlier motion may move for reconsideration at the following meeting. The member seeking reconsideration must have the matter agendized unless the motion will be made at the same meeting where the original action was taken. If the motion to reconsider passes, then the original item may be reconsidered at that time or agendized for the next meeting which meets any applicable noticing requirements. After a motion for reconsideration has once been acted upon, no other motion for reconsideration thereof shall be made without unanimous consent of the Legislative Body.

11.4 Tie Votes
Tie Votes shall be lost motions unless an additional Motion is made which obtains a majority vote to break the tie. When all Legislative Body members are present, a tie vote on whether to grant an appeal from official action shall be considered a denial of such appeal. In such case the findings in support of the decision shall be those of the lower body. If a tie vote results at a time when less than all members of the Legislative Body are present, the matter shall automatically be continued to the agenda of the next regular meeting of the Legislative Body, unless otherwise ordered by the Legislative Body.

11.5 Abstentions
Members of the Legislative Body are discouraged from abstaining from a vote for reasons other than a legally-disqualifying, financial conflicts of interest. However, if a member chooses to abstain from voting as a result of what he/she perceives as a personal or nonfinancial conflict of interest, the member may do so after stating for the record the nature of the perceived conflict. In the event of such a perceived conflict (as opposed to a legally disqualifying conflict), the member is not required to leave the dais. 666

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(a) A Legislative Body member shall generally express their positions on all matters except those where they are required to abstain due to legally recognized conflict of interest.
(b) A Legislative Body member who has appealed the action of any person or body of the City on a matter which does not constitute a conflict of interest for the member underany law, may participate in the hearing on the appeal, unless there is clear and convincing evidence that such member is not objective or the member feels that they are unable to remain neutral, or as may be otherwise advised by the General Counsel.

Notwithstanding any contrary provisions herein, in bringing an appeal, the Legislative Body member need not give reasons for making the appeal.
(c) A Legislative Body member may abstain from action on a matter where inthe member’s opinion, there might be a public perception that participation in the discussion or decision would be inappropriate even though the member has no disqualifying financial interest within the meaning of FPPC rules and regulations.

11.6 Votes Of Members Previously Absent
(a) A Legislative Body member who was not present at a meeting should generally not vote on the approval of minutes for that meeting, but the voting on such minutes shall have no effect on the validity of the minutes.
(b) A Legislative Body member may vote on a continued item after an absence from the earlier public hearing of the matter if, prior to the vote, the member affirms on the record that they have familiarized themselves with the record of the earlier meeting and are prepared to vote on the issue. If the member shall abstain from the vote, the member shall be counted towards the quorum on the issue and the abstention shall be counted with the vote of the majority of the quorum.
(c) The forgoing shall not apply to the matter of a vote on the minutes of a meeting at which the member was not in attendance. In that instance, the member abstaining on the grounds of non-attendance at the meeting to which the minutes pertain shall not be counted towards the quorum on the issue and the abstention shall not be counted with the votes of the majority of the quorum.

11.7 Appeals by Members of Legislative Body
Except where otherwise provided, a member of the Legislative Body shall be deemed an interested person in any matter by a subordinate body and shall have standing to appeal to the Legislative Body any decision by a Sub-Legislative Body, or any determination made by any official of City by filing a written appeal. The appeal shall not state any grounds for the appeal and the resulting hearing shall be de novo. The appeal must be filed within 10 days of the making of the decision being appealed and shall be filed with the Clerk/Secretary who shall give written notice to the applicant and provide written notice to other persons as required for the original action. The hearing shall be held at the first regular meeting of the Council for which notice can be legally given. No appeal fee shall be required to be paid for such appeals.
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11.8 Findings and Decisions
Decisions of a Legislative Body, when acting as a quasi-adjudicative body (public hearings) should be framed in terms of “findings” of fact, potentially relevant conclusions of law,and ultimate decisions showing the basis for the decision and the nexus between the findings, theconclusions, and the decision. The Legislative Body members must consider any legally- mandated findings applicable to a matter and consider the evidence presented to them in light of such findings in making their decisions.

ARTICLE XII- PROCEDURES FOR CONSIDERATION

OFDEMANDS FOR CORRECTIVE ACTION

12.1 Requirement of Written Demand
Prior to any person commencing a judicial action for injunction or mandamus to declare any action taken by the Legislative Body void because of failure to observe Brown Act requirements, such person must first serve upon the Clerk/Secretary a written demand clearly describing the challenged action, the nature of the claimed violation, and the corrective action sought. Such demand must be served upon the Clerk/Secretary within ninety (90) days of the alleged violation or thirty (30) days if the action was taken in open session but in violation of § 54952.2 of the Government Code. Failure to serve any such demand within this thirty (30) day period shall result in the loss of any right to challenge any action alleged to have been taken in violation of §§ 54953, 54954.2, 54954.5, 54954.6, 54956, or 54956.5 of the Government Code.

12.2 Consideration of Corrective Action
Upon receipt of such a demand, consideration of the demand shall immediately be placed on the agenda for the next meeting of the Legislative Body. If the demand is received less than72 hours prior to the time set for the next meeting, the Legislative Body may determine that the notice constitutes the initiation of litigation, and that the need to take action on the threatened litigation arose subsequent to the posting of the agenda and may consider it at that meeting pursuant to Article VI Section 9, above. A description of any item so placed on the agenda shall include both consideration of the demand, and the possibility of corrective action by the Legislative Body.

In considering such demands, the Legislative Body shall first determine by motion whether to reconsider the prior action. The motion to reconsider shall be in order as long as made by a party on the prevailing side. If no motion to reconsider is carried the Clerk/Secretary shall inform the demanding party in writing of the Legislative Body's decision not to cure or correct the challenged action. (See, § 11.4 hereof.) 668

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12.3 Implementing Corrective Action
If a motion to reconsider passes, the Presiding Officer may entertain a motion to take corrective action. Any motion taking corrective action shall address the concerns raised in the consideration of corrective action. The motion taking corrective action may include a motion to rescind prior action taken, as appropriate. Passage of a motion to rescind invalidates prior action only as of the time of the passage of the motion, and not from the date of the initial action. A motion implementing corrective action resulting from a written demand is out of order if the action complained of: (i) was in connection with the sale or issuance of notes, bonds, or other evidence of indebtedness, or any contract, agreement, or incident thereto; (ii) gave rise to a contractual obligation upon which a party has, in good faith, detrimentally relied; or (iii) was taken in connection with the collection of any tax.

ARTICLE XIII – MISCELLANEOUS

13.1 Interpretation
This Manual shall be liberally construed to effectuate its purpose and no ordinance, resolution, proceeding or other action of the Legislative Body shall be invalidated, or the legality thereof otherwise affected by the failure or omission of the Legislative Body to technically comply with, observe or follow the within rules. The City Council may, by resolution, adopt further rules of interpretation or practice.

13.2 Amendments
This Manual may be amended from time to time as necessary by resolution passed by a majority vote of the City Council at any regular or special meeting, provided that no such amendment shall be adopted unless at least seven days' written notice thereof has been previously given to all Legislative Body members serving the City. Such notice shall identify the section or sections of the Manual proposed to be amended.

13.3 Power to Issue Subpoenas
The Legislative Body may issue subpoenas requiring attendance of witnesses or production of books or other document for evidence or testimony any action or proceeding pending before it. (Gov’t Code Section 37104.) Subpoenas shall be signed by the Presiding Officer and attested by the Clerk. They may be served as subpoenas are in civil actions. 669

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EXHIBIT A
Chart of Motions

1. Motions listed in order of precedence

MOTION YOU SAY THIS
May you
interrupt
the
speaker?
Do you
need a
second?
Is it
debatable
?
Can it be
amended
?
What
vote is
needed?
Can it be reconsidered?
Adjourn meeting “I move to adjourn.” No Yes No No Majority No Call an intermission1 “I move to recess for…” No Yes No Yes Majority No Register a complaint “I rise to a question of
privilege” Yes No No No None No (usually)
Temporarily suspend
consideration of an
issue2
“I move to table the motion” No Yes No No Majority No
Close debate “I move the previous question” No Yes No No 2/3 No, unless the vote on question has not been taken
Limit or extend debate “I move that the debate be
limited [or “extended”] to…” No Yes No Yes 2/3 Yes
Give closer study of
something3
“I move to refer the motion to
the committee” No Yes Yes Yes Majority Yes, unless the board has already taken up the subject Amend a motion “I move to amend the motion
by…” No Yes Yes Yes Majority Yes
Motion to continue to a
certain time
“I move that the motion be
continued to…” No Yes Yes No Majority Yes
Introduce business
(bring a main motion) “I move that [or “to”]...” No Yes Yes Yes Majority Yes 1 Should specify period of recess.
2 A motion to take up a matter previously tabled must be made at the same meeting as the motion to table, If not, the motion tabled dies. 3 May contain specific instructions for board members and a date fir certain for reconsideration, If not date is not certain, restored by a motion to take up matter previously tabled” which is permissible in this case even if not same or next meeting, 670

Page 37 of 39 ends

2. Incidental Motions – no order or precedence. Arise incidentally and decided immediately.

MOTION YOU SAY THIS
May you
interrupt
the speaker?
Do you
need a
second?
Is it
debatable?
Can it be
amended?
What vote is
needed?
Can it be
reconsidered?
Protest breach of rules
(i.e., Point of Order)4 “I rise to a point of order…” Yes No No No None No Motion to appeal the
ruling5
“I appeal from the decision of
the Presiding Officer [or
“Chair”]”
Yes Yes Yes No Majority Yes
Suspend rules
temporarily
“I move to suspend the rules so
that …” No Yes No No 2/3 No
Avoid considering an
improper matter
“I object to the consideration of
the question…” Yes No No No 2/3
No, only if the
main question or
motion was not in
fact considered
Divide motion “I move to divide the question” No Yes No Yes Majority No Parliamentary law
question Parliamentary inquiry Yes, if urgent No No No None No Motion to depart from
the agenda
“I move to consider matter […]
out of order” No Yes Yes Yes Majority Yes
Take up matter
previously tabled6
“I move to take from the table
…” No Yes No No Majority No
Cancel or change
previous action7
“I move to rescind/amend
something previously
adopted…”
No Yes Yes Yes
2/3 or
majority
with notice
No
Reconsider motion “I move to reconsider the vote
on…” Yes Yes
Only if
motion is
debatable8
4 Decision of the Presiding Officer is final, unless overturned by motion to appeal the ruling. 5 Presiding Officer may participate in debate, Negative or tie vote sustains ruling. 6 A motion to take up a matter previously tabled must be made at the same meeting as the motion to table. If not, the motion tabled dies. 7 Does not void action ab initio, only from point of rescission. Motion is out of order if relates to contract upon which another party has detrimentally relied, relates to issuance of bonded indebtedness, or relates to the collection of any tax. 8 Cannot be made on a quasi judicial matter or matters required a noticed public hearing. Can only ne made by a member who voted with the previously prevailing side, May be made at the same meeting or a subsequent meeting subject to the same restrictions as a motion to rescind. 671

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EXHIBIT B

CITY MEETING

PRESENTATION POLICY

FOR THE

CITY OF BANNING
672

Page 39 of 39 ends

EXHIBIT B

BANNING CITY COUNCIL MEETING PRESENTATION POLICY
City Council presentations are for providing information to the Mayor and Council, City management, and the community about activities of interest and value including:
 Activities, events, and infrastructure projects relating to the City.  Honors and celebrations for organizations, corporations and residents related to Banning.
 Honors and celebrations for organizations, corporations and resident which reflect theirservice to the Banning community.
 Honors and recognitions for City staff for outstanding service or commitment to the City’s mission and goals.
 Please note this is not the appropriate time to seek funds from the City and/or endorsements from City Council or discuss politics.

Presentation Length
All presentations are to be no more than five minutes in length; this is to include all speakers for the group being recognized.

Presentation Schedule
City Council begins at 5:00 p.m. with an invocation and pledge to the American flag followed bypresentations. All honorees or groups are to arrive no later than 4:45 p.m.

Presentation Location
Presentations take place in the Council Chambers inside Banning City Hall located at 99 E.

Ramsey Street. Parking is available in the Police Department parking lot located at 125 E.

Ramsey Street (just off Hays Street) adjacent to the Council Chambers, or in the City Hall parking lot located at the corner of Hays and San Gorgonio.

Presentation Technical Support
The City has the capability to display PowerPoint (or equivalent) during the presentation. If a PowerPoint is to be used during the presentation:
 The PowerPoint is to be no more than 10 slides with limited text; and  To be submitted to the City Clerk’s Office no later than the Thursday prior to thescheduled Tuesday City Council meeting (2nd and 4th Tuesdays of the month).  PowerPoints are subject to editing for appropriateness.  PowerPoints which do not meet these standards will not be used. 673
City Council Procedures Comparison Document
SAN LUIS OBISPO:

Source: https://www.slocity.org/home/showpublisheddocument/34283/638477459470930000

1.3.6 Voting Procedures:

1.3.6.1. When present, all Council Members shall vote, except in the case of a recusal due to a conflict of interest. Failure of a seated Council Member to vote will be construed as an affirmative vote. (Charter § 505)

1.3.6.6. A roll call (voice) vote shall be taken for each Council action. The City Clerk will call the roll for the roll call vote in the following manner: 1) Maker of the motion; 2) Member who has seconded the motion; 3) Additional Council Members in alphabetical order by last name; and 4) Mayor last. The City Clerk shall state for the record the name of any Council Member who is recused or has abstained, which abstention will be counted as a vote with the majority, unless legally required. The consent agenda will be considered a single action for purposes of the roll call vote.

CITY OF BELL:

Source: https://www.cityofbell.org/home/showpublisheddocument/10297/636567099171800000

11.3 Votes Needed: (page 27)(c) Any official with a conflict of interest is not counted for purposes of establishing a quorum, and must not vote on, make, participate in any way in, or attempt to influence the decision. A Legislative Body member abstaining on any other grounds than a conflict under the Political Reform Act shall be counted as present for purposes of a quorum and such abstentions are counted with the majority. The Legislative Body member who leaves the dais solely to avoid participating in a specific item shall, in absence of a conflict, be counted as if they were present but abstaining and such abstentions are also counted with the majority.

CITY OF ORINDA:

Source: https://www.cityoforinda.org/DocumentCenter/View/4516/City-Council-Policies-- Procedures-Manual-February-20-2024-Update

7. Voting:

7.5 Abstention
Abstaining from a vote (other than due to recusal) constitutes a vote with the majority, except that where there is a tie vote, an abstention constitutes a vote for the motion.

CITY OF PLEASANTON:

Source: https://www.cityofpleasantonca.gov/assets/our-government/mayor-city-council/citycouncil-rules-of-procedure.pdf 674
City Council Procedures Comparison Document

14.3 Abstentions and Silence: The City Council strongly discourages abstentions since abstentions without either legal conflict or appearance of conflict may impede the City Council’s actions, for example by causing a tie vote. Abstentions also deprive Pleasanton residents of one vote of five, or representation of their district, and may diminish accountability of Councilmembers on items of legitimate concern. At the same time, it is not the City Council’s intention to impede any individual Councilmember’s right to choose not to speak or vote on an item. A Councilmember shall publicly state the reason for an abstention. The City Council adopts the rule for counting votes as “those present and voting” as described in Rosenberg’s Rules of Order (see pages 5 and 6). Under this rule, a Councilmember who abstains or is silent counts as “present” for determining a quorum, but when counting votes is treated as if the Councilmember is not voting.

CITY OF BIG BEAR LAKE:

Source:
https://citybigbearlake.com/images/DOWNLOADS/TRANSPARENCY/City_of_Big_Bear_Lake_ Council_Manual_-_last_updated_Sept._2022.pdf
II Rules of Discussion and Debate for Regular Meeting
R. Voting Rules.

1. Vote Unless Disqualified. All Councilmembers present at a meeting when a question comes up for a vote should vote either for or against the question unless he/she is disqualified from voting by reason of a conflict of interest and abstains because of such disqualification. (a) A Councilmember stating disqualification will not be counted as a part of a quorum and will be considered absent for the purpose of determining the outcome of a vote on the matter. See Section S, below, for other rules relating to Conflicts of Interest. (b) Any Councilmember who abstains for reasons other than disqualification, in effect consents that a majority of the quorum may decide the question being voted upon. Any Councilmember so abstaining will be counted as present for purposes of establishing a quorum. Such an abstention will be counted (1) as neither an affirmative vote nor a dissenting vote and (2) as if it did not exist. The “present and voting” rule as described in Rosenberg’s Rules applies.

PALO ALTO:

Source: https://www.cityofpaloalto.org/files/assets/public/v/1/city-clerk/citycharterprocedures/02-01-20-adopted-council-protocols-and-procedures-manual.pdf

2.4 General Requirements:

W. Debate and Voting:
9) Abstaining from vote: Council Members should only abstain if they are not sufficiently informed about an item, e.g. when there was a prior hearing and they were unable to view the 675
City Council Procedures Comparison Document
prior meeting before the current meeting. In the event of an abstention the abstainer in effect, "consents" that a majority of the quorum of the Council Members present may act for him or her. 10) Not participating: A Council Member who disqualifies him or herself pursuant to the Political Reform Act of 1974 because of any financial interest shall disclose the nature of the conflict and may not participate in the discussion or the vote. A Council Member may otherwise disqualify him or herself due to personal bias or the appearance of impropriety.

CITY OF COLTON:

Source: https://www.ci.colton.ca.us/DocumentCenter/View/8381/Colton-City-Council-MOP--- Nov2021
H-3 FAILURE TO VOTE
Every member should vote unless disqualified for cause accepted either by vote of the Council or by opinion of the City Attorney. Self-disqualification, without approval, which results in a tie vote shall be viewed as thwarting Council action. However, no Councilmember shall be forced to vote. A Councilmember who abstains shall in effect consent that a majority of the quorum may act for him. Tie votes shall be lost motions and matters may be reconsidered upon the making of a motion to reconsider.
676

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Amber Rockwell, CORE Manager
Art Vela, Public Works Director
MEETING DATE: October 8, 2024
SUBJECT: Presentation and Update on the Banning Electric Utility Public Benefits Fund
RECOMMENDATION:

Receive and File.

BACKGROUND:

In 1996, in an effort to lower the cost of electricity, retain and attract jobs, and reduce power outages, deregulation of California's electrical services industry began. The former monopoly market was to be restructured, and the California Independent System Operator (CAISO) was developed to control statewide grid transmission and ensure efficient use and reliable operation of the transmission system. There was also a new focus on development of programs to provide low-income assistance, energy efficiency programs to provide to low-income homes, energy efficiency programs, investment into new renewable energy sources, and Public Interest Research & Development (PIER). When AB1890 was passed by California legislature to restructure California's electrical industry, it was the beginning of state-mandated public benefits programs and the public benefits charge.

Funding for public benefits programs occurs through a non-bypassable charge paid by all California electric utility customers. AB1890 originally earmarked $3.2 billion as the initial dollar amount needed to fund rate relief for residential and small commercial customers. This original $3.2 billion was the figure used to develop the 2.85% non-bypassable charge electric utilities still in use today to fund public benefits programs. AB1890 specifies that municipal electric utilities are given oversight and control of their own public benefits programs. The legislation is also very clear that public benefits funds are only to be used to support public benefits programs and monies are not to be comingled with other funds.

AB 723 also establishes measurement verification and evaluation criteria for program results. Public utilities are given the leeway to implement programs best suited to the needs of their ratepayers. With the freedom of program design and implementation, public utilities are still held accountable to the State of California. Public benefits programs results are reported annually to include verifiable energy reductions achieved, number of measures implemented, demographics where measures were implemented, and demographics of jobs created. The report is to be submitted in compliance with Section 9795 of the Government Code.

At this time, state-mandated energy efficiency reporting for City of Banning Electric Utility Public Benefits Program is submitted annually through the Southern California Public Power Authority (SCPPA).

Statistics are independent to each municipality within SCPPA. The statistics of each individual utility are collected and compiled as a single report that is submitted annually. 677
JUSTIFICATION:

The Banning Electric Utility's Public Benefit Program has been established to meet California regulations.

FISCAL IMPACT:

A budgeted 2.85% non-bypassable charge is added to customer bills to pay for the City's Public Benefit Program. Revenues are projected to be $760,000 for fiscal year 2024/2025.

One notable budgetary change that will be made to Fund 675, Public Benefit Fund, during the mid-year adjustments will be to add staff salaries for those staff members that are wholly or partially dedicated to Public Benefit Fund activities. Those employees include: Core Manager (1.0 F.T.E.), Utility Services Assistance (1.0 F.T.E.) and Business Suppport Manager (0.10 F.T.E.). It is projected that adding these salaries will increase the Public Benefit Fund expenditure budget by $358,068.

Fund 675 currently has an estimated fund balance of $1,135,073.16.

ALTERNATIVES:

N/A
BUDGETED?:

Yes
CONTRACT/AGREEMENT:

No
ATTACHMENTS:

3. PB Budget.pdf

4. Expenditure per Event.pdf

5. Program Justification Matrix.pdf
678
760,000
Low-Income 385,000
Rebates/Synergy 268,500
Events/Sponsorships 70,000
36,500
Budget Actual Spent Actual %
Total Program 784,121 684,324
Low-Income 389,604 360,281 52%
Rebates/Synergy 312,806 70,237 10%
Events/Sponsorships 123,146 50,012 7%
Arbor Day Community Tree Planting
Solar Boat Competition - Banning High School
Senior Celebration Electric BBQ
Santa Shop
Warm Hands - Hot Popcorn - Valentine's Day
Spring
Wellderly Week at the Banning Senior Center
Disaster Expo
Energy Saving Trees
Fall
Public Power Week
Banning High School Career Day
Trunk-or-Treat
Winter
Light Up Your Holidays - Market Night
Events/Sponsorships
Summer
Summer Day Camp/STEM Week
Keep Your Kool at the Pool
Keep Your Kool at the Fox
Keep Your Kool at the Bowl
Public Benefits Budget
Budget %
51%
35%
FY 23/24
Budget
Misc.
9%
5%
FY 24/25
679
Budget FY23-24 Cost FY23-24 Budget FY24-25
$ 6,000 $ 1,780 $ 2,500
$ 5,000 $ 3,645 $ 5,000
$ 5,000 $ 4,152 $ 5,000
$ 5,000 $ 3,066 $ 5,000
$ 5,000 $ 270 $ 2,500
Sponsorship for 9/7/23 (Special Added Show) $ 2,000 $ 3,500 $ 3,500 $ 10,000 $ 1,522 $ 500
$ 3,000 $ 2,273 $ 2,500
$ 146 $ 98 $ 200
$ 5,000 $ - $ 500
$ 2,000 $ - $ 300
$ 7,000 $ 4,492 $ 4,500
Installed String Lighting @ San Gorgonio/Ramsey $ 5,000 $ 909 $ 500 Photobooth, Giveaways, Hot Cocoa Bar, Crafts $ 10,000 $ 4,640 $ 5,000 $ 2,000 $ 664 $ 1,000
$ 2,500 $ - $ 500
$ 2,500 $ 1,815 $ 2,000
$ 3,000 $ 1,824 $ 1,500
$ 25,000 $ 11,200 $ 17,500
$ 15,000 $ 1,912 $ 7,500
Solar Boat Competition - Banning High School $ 2,500 $ 2,000 $ 2,000 Backpack Bash $ 500 $ 250 $ 500
Total $ 123,146 $ 50,012 $ 70,000
Wellderly Week at the Banning Senior Center
Disaster Expo
Energy Saving Trees
Arbor Day Community Tree Planting
Movies
Pool Attendance
Giveaways/Raffles/Misc.

Winter
Light Up Your Holidays - Market Night
Santa Shop
Warm Hands - Hot Popcorn - Valentine's Day
Spring
Fall
Public Power Week (Did not have event in 2023)
Banning High School Career Day
Trunk-or-Treat
Event Budgets and Expenditures
Senior Celebration Electric BBQ
Installed String Lights
Raffle Prizes - Six shows for the 2023 Season
Summer Events
Summer Day Camp/STEM Week
Keep Your Kool at the Pool
Keep Your Kool at the Fox
Keep Your Kool at the Bowl
680
Activity #1 #2 #3 #4 #5 #6 #7 #8 #9 #10 #11 #12
Low income Assistance X
Energy Effeciency Rebates X X X X
S.E.A.M. - Synergy X X X X X X X
Warm Hands & Hot Popcorn X X X X X X
Wellderly Week at the Senior Center X X X X X
Disaster Expo X X X X X X
Energy Saving Trees X X X X X X
Arbor Day Community Tree Planting X X X
Summer Camp/STEM Week X X X X X X X
Senior Summer BBQ X X X X X X
Keep Your Kool at the Pool X X X X X X X
Keep Your Kool at the Fox X X X X X X X
Keep Your Kool at the Playhouse Bowl X X X X X X X
Public Power Week X X X X X
BHS College and Career Day X X X X X
Trunk-or-Treat X X X X X X X
Santa Shop X X X X X X
Light Up Your Holidays - Market Night X X X X X X X
BHS- Solar Boat Competition X X X X
Backpack Bash X X X X
KEY
#1 Low Income Assistance
#2 Energy Efficiency
#3 Education - Awareness
#4 Promoting Electric Industry Careers
#5 Demand Response
#6 Behavior Shaping
#7 State Climate Goals - GHG Reduction
#8 Community Outreach - Relationship Building
#9 Inner Departmental Support & Collaboration
#10 Promote Electrical Safety
#11 Support Local Business
#12 Support Community and/or City Sponsored Event
Program Justification Matrix
681

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Emery Papp, Senior Planner
David Newell, Community Development Director
MEETING DATE: October 8, 2024
SUBJECT: Reconsideration Request by Sun Lakes Highland, LLC on the City Council's Decision of September 10, 2024 to Adopt Resolution 2024-151, Denying Entitlement Applications (Tentative Parcel Map 38164 and Design Review DR 21-7008) for the Banning Point Project RECOMMENDATION:

It is recommended that the City Council review the materials submitted by Sun Lakes Highland, LLC, in accordance with Section 17.68.140 of the Municipal Code and Section 11.3(d) of the City Council Manual of Procedural Guidelines, and provide direction to staff on whether the City Council believes it is warranted to reconsider its September 10, 2024 denials of the Tentative Parcel Map and Design Review applications by scheduling the matter for a future public hearing by the City Council. In order for the matter to be reconsidered and scheduled for a new public hearing, a member of the City Council who voted with the majority to deny the two applications and adopt Resolution 2024-151 would need to make a motion to reconsider that action.

The motion would need to be seconded by any member of the City Council, and the motion would need to pass with a majority vote.

BACKGROUND:

On September 10, 2024, the City Council adopted Resolution No. 2024-151 (Attachment No. 1), denying two entitlement applications (Tentative Parcel Map 38164 and Design Review No. 21-7008) for the Banning Point Project, located within the Sun Lakes Village North Specific Plan. On September 25, 2024, the Law Firm of Allen Matkins Leck Gamble Mallory & Natsis LLP, submitted a letter to the City of Banning Community Development Department requesting the City Council reconsider its September 10, 2024 public hearing decision on the matter (Attachment No. 2). While the request is somewhat unusual, it is a lawful request consistent with Section 17.68.140 (Attachment No. 3) of the Banning Municipal Code (BMC). The request was also made timely by having been filed within 15 days of the City Council's decision on the matter.

JUSTIFICATION:

The project applicant, Sun Lakes Highland, LLC has requested that the City Council reconsider its decision, in accordance with BMC Section 17.68.140:
"If more complete or additional facts or information, which may affect the original action taken on an application by a review authority are presented, the review authority may reconsider such action taken, if a request for reconsideration is filed with the department within fifteen days following the final date of action. If a public hearing was required in the original review process, another public notice as specified in Section 17.68.020 shall be made prior to the reconsideration of the review authority, and all costs 682
associated with the reconsideration shall be paid by the applicant." For purposes of Section 17.68.140, the “review authority” for TPM 38164 and the appeal of the Planning Commission’s approval of DR 21-7008 is the City Council. The Council is permitted to reconsider its action on TPM 38164 and DR 21-7008 if a request for reconsideration is timely filed within 15 days following the date of final action. Because the BMC is silent on who can file a request for reconsideration, it is reasonable to construe the provision to permit the property owner/applicant for the project, Sun Lakes Highland, LLC, to file the request. On September 25, 2024, Sun Lakes Highland, LLC filed the subject request, which complies with the BMC requirements of filing within 15 days of the City Council's September 10, 2024 decision.

Also, although Section 17.68.140 is located in the Zoning Code, it applies to the TPM application based on BMC Sections 16.08.030 and 16.14.010(A). BMC Section 16.08.030 states that, “[a]n application for a tentative map shall be processed and set for a public hearing in accordance with Chapter 16.14 of this title.”
In addition, BMC Section 16.14.010(A) states that, “[a]ny hearing required in this Title 16, subdivisions, shall be set, and notice of the public hearing of the planning commission and of the city council shall be given, in a manner consistent with Chapter 17.68,” which includes Section 17.68.140. (Section

17.68.140 applies to the Design Review application via Section 17.56.040.) Finally, the City Council Manual of Procedural Guidelines (Attachment No. 4) addresses motions for reconsideration. Section 11.3(d) of the Manual states:
"Any Legislative Body member who voted with the majority may move to reconsider any action at the same meeting or, within sixty (60) calendar days, request in writing to the Clerk/Secretary that it be agendized for consideration at the following meeting, provided that reconsideration shall not be permitted where a party other than the City has acted in reliance on the Legislative Body’s action and would be substantially prejudiced by such reconsideration. The Clerk shall apprise the City Attorney of any facts constituting substantial prejudice and may rely upon the determination of the City Attorney. In the event that the subject of the reconsideration is a motion that failed as the result of a tie vote, any Legislative Body member who voted against the earlier motion may move for reconsideration at the following meeting. The member seeking reconsideration must have the matter agendized unless the motion will be made at the same meeting where the original action was taken. If the motion to reconsider passes, then the original item may be reconsidered at that time or agendized for the next meeting which meets any applicable noticing requirements. After a motion for reconsideration has once been acted upon, no other motion for reconsideration thereof shall be made without unanimous consent of the Legislative Body." Based on the foregoing, the members of City Council voting in support to adopt Resolution 2024-151 (denying the project) may choose to reconsider their decision. Councilmembers Flynn and Happe and Mayor Pro Tem Minjares voted affirmatively to adopt Resolution 2024-151 and either Councilmembers Flynn or Happe or Mayor Pro Tem Minjares may make a motion to reconsider the denial decision. A second to the motion may be made by any member of the City Council.

FISCAL IMPACT:

There is no Fiscal Impact related to this action other than staff time to prepare the report.

ALTERNATIVES:

1. Consider a motion to grant the request of Sun Lakes Highland, LLC and vote to reconsider the matter by setting it for a future public hearing on the applications.

2. Take no action and the request fails due to lack of a Motion.

BUDGETED?:

No
683
CONTRACT/AGREEMENT:

No
ATTACHMENTS:

1. CC Resolution No. 2024-151.pdf

2. 2024-09-25 SLH Reconsideration Request.pdf

3. BMC 17.68.140___Reconsideration..docx

4. CC Manual of Procedural Guidelines_Resolution 2023-34 - Copy.pdf 684
RESOLUTION 2024- 151
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA, ( 1) DISAPPROVING TENTATIVE PARCEL MAP NO. 38164, A PROPOSED SUBDIVISION OF APPROXIMATELY 47 GROSS ACRES OF VACANT LAND INTO THREE PARCELS; ( 2) DENYING DESIGN REVIEW NO. 21-7008 A PROPOSED CONSTRUCTION OF A 619,959 SQUARE FOOT INDUSTRIAL WAREHOUSE BUILDING, INCLUDING 10,000 SQUARE FEET OF OFFICE SPACE AND A COMBINED 34,000 SQUARE FEET OF RETAIL/ COMMERCIAL

BUILDINGS, ON REAL PROPERTY LOCATED WITHIN THE BOUNDARIES OF THE SUN LAKES VILLAGE NORTH SPECIFIC PLAN AREA ( APN: 419- 140- 057), ( 3) MAKING A DETERMINATION OF EXEMPTION UNDER SECTION 15720( A} OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT ( CEQA} GUIDELINES
WHEREAS, on December 8, 2020, the City Council certified the Final Environmental Impact Report ( EIR) ( SCH # 2020029074) prepared for, and approved, Amendment No. 5 to the Sun Lakes Village North Specific Plan ( SLVNSP) ( Ordinance 1571 for Zone Change 20-3501 ).

Amendment No. 5 revised the Specific Plan Land Use Plan from Retail Commercial ( Auto Dealer) to Business Park & Warehouse ( BW), Office & Professional ( OP), and Retail & Service ( RS), and revised the permitted land uses, development standards ( including maximum building height, setbacks, open space, landscaping, parking, and signage), and design guidelines for the development and implementation provisions of the SLVNSP; and WHEREAS, in furtherance of the interests of Sun Lakes Highland, LLC ( Applicant), an application was submitted for approval of proposed Tentative Parcel Map No. 38164 ( TPM 21- 4001) to subdivide approximately 47.11 acres of vacant real property into three commercial and industrial parcels, and for Design Review No. 21-7008, to construct a 619, 959 square- foot industrial warehouse building with 10,000 square feet of office space, and six retail/ commercial buildings totaling 34,000 square feet and associated utility, parking, roadway, and landscaping improvements ( all together, the " Project"), on real property identified as APN 419- 140- 057; and WHEREAS, on October 19, 2021, and December 1, 2021, the Planning Commission conducted duly noticed public hearings on the Project, at which time interested persons had an opportunity to testify in support of or in opposition to the Project. At the conclusion of the public hearing on December 1, 2021, the Planning Commission adopted Resolution No. 2021- 16, approving Tentative Parcel Map No. 38164 and approving Design Review No. 21-7008, including conditions of approval for the Project. Pursuant to Banning Municipal Code Chapter 16.14, the Planning Commission' s decision has been interpreted by City Staff and the City Council as a recommendation to the City Council for approval of Tentative Parcel Map No. 38164; and WHEREAS, pursuant to Banning Municipal Code Section 17.68.100, three applications seeking to appeal the Planning Commission' s decision on the Project were received during the appeal period following the Planning Commission' s action; and WHEREAS, an appeal application was received from Golden State Environmental Justice Alliance and was subsequently rejected as being incomplete because it did not state the grounds or reasons for its appeal, . did not request a specific action, and incorrectly described the project; and
WHEREAS, an appeal application was received from Supporters Alliance For Resolution 2024- 151

Page 1 of 10 ends

685
Environmental Responsibility ( SAFER), who subsequently withdrew its appeal on January 18, 2022, and announced its support for the Project; and
WHEREAS, on December 7, 2021, the law firm of Shute, Mihaly & Weinberger submitted an appeal on behalf of Appellant, Pass Area Action Group ( PAG), and a three- page letter on behalf of Appellant, which was supplemented by a 428- page letter submitted via email on January 24, 2022 ( the " Appeal"); and
WHEREAS, the public hearing on Tentative Parcel Map No. 38164 and the Appeal hearing on Design Review No. 21-7008 was scheduled for January 31, 2022, and in compliance with applicable law, the City provided public notice of the public hearing by advertising in the Record Gazette newspaper on January 21, 2022, and by mailing notices to all property owners within 1,000 feet of the subject site; and
WHEREAS, the City subsequently received requests from both Pass Area Action Group and the Applicant to continue the Appeal hearing to allow for additional time to review the materials related to the Project; and
WHEREAS, in recognition of the requests from both Appellant and Applicant for a continuance of the public hearing, at the regularly scheduled City Council meeting held on January 25, 2022, the City Council voted to cancel the Appeal hearing previously noticed for January 31, 2022, and to reschedule the public hearing to February 17, 2022; and WHEREAS, the City provided public notice of the rescheduled public hearing on Tentative Parcel Map No. 38164 and the Appeal hearing on Design Review 21-7008 by advertising in the Record Gazette newspaper on February 4, 2022, and by again mailing ( on February 3, 2022) notices to property owners within a 1,000- foot radius of the subject site; and WHEREAS, on February 17, 2022, the City Council of the City of Banning conducted a duly noticed public hearing on the Appeal, at which time all interested persons, including Appellant and Applicant, were given an opportunity to speak and to present both oral and written evidence in support of and in opposition to the Appeal. At the conclusion of the public hearing on February 17, 2022, the City Council adopted Resolution No. 2022- 14, approving Tentative Parcel Map No. 38164, approving Design Review 21-7008 and denying the Appeal, including Conditions of Approval of the Project, and adopting an Addendum to the certified EIR prepared for Amendment No. 5 to the Sun Lakes Village North Specific Plan ( SCH# 2020029074); and WHEREAS, on April 18, 2022, PAG filed a Petition for Writ of Mandate and Complaint for Injunctive Relief (" Petition") with the Riverside County Superior Court ( Case No. CVRl2201482), challenging the City of Banning' s approval of the Project; and WHEREAS, the lawsuit alleged that the City failed to provide a fair hearing due to alleged bias by Councilmembers Hamlin, Sanchez, and Wallace. The lawsuit also contended that the City violated CEQA and the City' s General Plan in approving the Project, and that the findings in support of the Project were not supported by substantial evidence; and WHEREAS, following briefing and a hearing on the merits, the trial court issued a ruling finding only that the City did not provide a fair hearing based on the court' s conclusion that thenCouncilmember Hamlin was biased in favor of the Project. The court rejected all claims of bias as to Councilmember Wallace and Councilmember Sanchez, stating in its ruling that " their Resolution 2024- 151

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statements do not overcome the presumption that they are unbiased. There has been no showing of a financial or personal interest in the Project and no specific evidence demonstrating actual bias or a particular combination of circumstances creating an unacceptable risk of bias .... " The court also rejected in its entirety all of PAG' s substantive challenges, finding that the City fully complied with CEQA, that the Project is consistent with the City' s General Plan, and that the City' s findings were supported by substantial evidence, as discussed further below. As the court concluded in its ruling, the court " does not find that Petitioner [ PAG] has carried its burden of proof on any remaining issue and would not grant the writ but for the fair hearing issue."; and WHEREAS, the court entered judgment and issued a writ of mandate directing the City to set aside and vacate the prior approval and to reconsider the Project without the participation of Councilmember Hamlin; and
WHEREAS, the City provided public notice of a public hearing on the Project by advertising in the Record Gazette newspaper on June 28, 2024, and by mailing ( on June 25, 2024) notices to property owners within a 1,000- foot radius of the Project site; and WHEREAS, on July 9, 2024, the City Council of the City of Banning adopted Resolution No. 2024- 113 to set aside the prior Project approvals in compliance with the writ of mandate. Also on July 9, 2024, the City Council conducted a duly noticed public hearing on the Project, at which time all interested persons, including Appellant and Applicant, were given an opportunity to speak and to present both oral and written evidence in support of and in opposition to the Project.

Following the public hearing, the City Council directed Staff to prepare a resolution for the City Council' s consideration at a later date to approve Tentative Parcel Map No. 38164 but deny Design Review 21-7008, and to make appropriate findings in accordance with CEQA; and WHEREAS, on September 10, 2024, the City Council of the City of Banning continued their deliberation on the Project, at which time all interested persons, including Appellant and Applicant, were given an opportunity to speak and to present both oral and written evidence in support of and in opposition to the Project; and
WHEREAS, all legal prerequisites prior to the adoption of this Resolution have occurred; and
WHEREAS, the City Council has considered all information related to this matter, as presented at the public meetings of the City Council identified herein, including supporting reports by City Staff, written materials timely received by the City, and information provided during public meetings.

NOW THEREFORE, the City Council of the City of Banning does hereby resolve, determine, find, and order as follows:

SECTION 1: Recitals. This Council hereby specifically finds that all of the facts set forth in the Recitals above are true and correct and are incorporated herein.

SECTION 2: Tentative Parcel Map Findings for Denial. Subsection ( B) of Section 16.14.050 of the Banning Municipal Code provides that any action taken by the City Council concerning Tentative Parcel Map No. 38164 shall be supported by the findings required by Sections 66427. 1, 66473. 5, 66474, 66474. 1, and 66474. 6 of the California Government Code and Section 21100 of Resolution 2024- 151

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the California Public Resources Code. In addition, Section 66474 of the California Government Code states that a City Council shall deny the approval of a tentative map if the Project fails to meet any of the requirements outlined in Section 664 74.

A. Applicable Findings. The City Council finds that Section 66427 .1 does not apply because this Project does not involve the conversion of residential real property into a condominium project, a community apartment project, or a stock cooperative project. The City Council also finds that Section 664 74.1 does not apply because the City Council' s action in this matter relates to a Tentative Parcel Map and not a Final Parcel Map. The City Council finds that the. other sections noted in the introductory paragraph of this Section do apply to Tentative Parcel Map No. 38164. The following subsections are intended to provide the required findings in accordance with Government Code Sections 66473. 5, 66474, and 66474. 6 and Public Resources Code Section 21100.

B. The design and improvement of the subdivision proposed under Tentative Parcel Map No. 38164 is inconsistent with the City' s General Plan and the Sun Lakes Village North Specific Plan Amendment No. 5.
1) The Tentative Parcel Map covers an area of approximately 47.11 acres and proposes to divide that area into three parcels. The largest proposed parcel is

30.22 acres is in the northwestern portion of the Map and is adjacent to the backside of the Sun Lakes Village Shopping Center, the Southern Pacific Railroad, and the lnterstate- 10 Freeway. This parcel is proposed for a warehouse building of approximately 619, 959 square feet along with associated truck parking, loading, landscaping, and other uses. The second largest parcel is approximately 10. 06 acres and is located on the eastern portion of the side and adjacent to an assisted living facility 'and residential units designed on smaller lots that are part of the Sun Lakes Country Club active adult/ golf course community. On this lot, offices and professional uses are intended to be located but no development is currently proposed. The third and smallest parcel is approximately 6.83 acres and is located on the southern edge of the Map and adjacent to Sun Lakes Boulevard located in close proximity to a residential community. On this lot, retail stores, restaurants' and service uses are proposed.
2) Government Code Section 66474( b) and the Banning Municipal Code Section

16. 14. 050( 8) provide that the City Council shall disapprove the Tentative Parcel Map if the design and improvement of the map is inconsistent with the General Plan and the Sun Lakes Village North Specific Plan Amendment No. 5. 3) The design of the subdivision proposed under Tentative Parcel Map No. 38164 is inconsistent with the General Plan Policy No. 7 of the City' s Industrial Land Use Goal which provides that there shall be sufficient industrial lands for manufacturing, warehousing, and distribution, while carefully considering compatibility with adjacent lands. While the proposed parcel of 30.22 acres, designed for a large future warehouse use, is placed furthest away from residential uses to the south, the use of that one lot for one large truck- intensive warehouse, rather than a mix of other uses that would also be consistent with the Specific Plan, together with the only available access points to the site onto and off of Sun Lakes Boulevard, means that a large truck- intensive building and use with truck access points to the Resolution 2024- 151

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site is placed immediately adjacent to a quiet planned residential community and an assisted living facility. The main access points for this Project include Sun Lake Blvd and Sun Lakes Village Dr., roads located adjacent to a residential community and a nearby assisted living facility. According to the City' s General Plan Circulation Element, Sun Lakes Blvd is designated as a Major Highway connecting multiple capillary streets to adjacent residential lands. Pedestrians, visitors, and community residents share these same access points potentially exposing vulnerable community members, such as residents from the nearby assisted living facility, to traffic flow that can potentially delay access to rapid emergency response services, expose them to health risks, and new vehicular hazards. 4) The Tentative Parcel Map is inconsistent with the Site Design and Circulation Goal

3.2.1 of the Sun Lakes Village North Specific Plan Amendment No. 5 of separating semi- truck access and circulation from passenger vehicle access and circulation to the greatest extent feasible within the Business & Warehouse District to minimize conflicts.
5) Tentative Parcel Map No. 38164 is inconsistent with Site Design and Circulation Goal 3.2.1 because the Project' s main access points are closest to residential uses and therefore the Project does not separate semi- truck access and circulation from passenger vehicle access and circulation to the greatest extent feasible. The driveway on the east side of the site is immediately adjacent to the Lakes assisted living facility thereby exposing residence in that facility to minimal buffering, increased noise and a diminishment in their quality of life.

SECTION 3: Design Review Findings for Denial. Sections 17.56.010 and 17.56.050 of the City of Banning Municipal Code requires that applications for Design Review approval to achieve certain community goals and purposes to satisfy certain specified findings and criteria. The City Council makes the following findings to deny Design Review 21-7008:

A. The Project is inconsistent with the General Plan.
1) Design Review 21-7008 is inconsistent with Policy 2 of the Community Development Element of the General Plan' s Residential Goals, Policies, and Programs. Policy 2 states that projects adjacent to existing neighborhoods shall be carefully reviewed to assure that neighborhood character is protected. Design Review 21-7008 is inconsistent with this policy because the Project contains a large warehouse building and use as distinguished from a mix of other permitted uses and smaller buildings, resulting in a highly truck- intensive development that is incompatible with and does not safeguard adjacent residential communities deleterious impacts with respect to traffic, noise, and other associated impacts created by the proposed industrial development.

B. The proposed project conflicts with and is inconsistent with one of the purposes of the City' s Design Review process which is to maintain the public health, safety and welfare and property throughout the City.
1) In evaluating the Project as a whole under the City' s Design Review Chapter of the Banning Municipal Code ( Chapter 17.56}, the City Council must consider Resolution 2024- 151

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2)
3)
4)
5)
additional factors. As stated by the Banning Municipal Code Section 17.56.010 E), one of the purposes of Design Review is to "maintain the public health, safety and general welfare and property throughout the City."
The external impacts of the Project upon the community would have a deleterious effect on public safety and to properties in its immediate vicinity. Specifically, the Project will result in a significant increase in truck traffic immediately adjacent to the Sun Lakes Country Club Community which lies across the street from the Project site. The Sun Lakes Club Community is a community exclusively for residents 55 years of age or older. Similarly, the Lakes Banning Retirement Home is a.n assisted living facility designated for senior living. These two residential communities are located in close proximity to the Project.

The additional noise, traffic, and vehicular and pedestrian hazards that the residents in this 55 years or older age community would face from this Project will increase the public safety risks associated with this Project that is immediately adjacent to the Sun Lakes Country Club Community. These hazards include vehicular safety risks from residential vehicular trips to and from the Sun Lakes Country Club Community as the residents face a substantial increase in truck traffic on Sun Lakes Boulevard. In addition, pedestrian safety risks arise from residents who live in the Sun Lakes Country Club Community walking to and from their homes, along Sun Lakes Boulevard and up to the community shopping center at the northeast corner of Sun Lakes Boulevard and Highland Springs Avenue.

Furthermore, the Project will introduce a truck- intensive industrial project adjacent to a spacious, quiet, heavily landscaped, and suburban planned residential community, creating a stark and incompatible conflict of uses immediately adjacent to each other. A truck intensive drive- isle is also planned immediately adjacent to and close to the easterly boundary of the site and immediately adjacent to an existing assisting living facility known as the Lakes Banning Retirement Home. Thus, although the land use may be permitted on the site by the General Plan and Specific Plan, the impacts of the Project at its current location will not achieve the purposes of Design Review of " maintain[ ing] the public health, safety and general welfare and property throughout the City" because the Project would be detrimental to maintaining property surrounding the site in a manner that retains its current character, value, and features.

For these reasons, the City Council finds that the Project does not accomplish this important goal and purpose of the Design Review process.

C. The design and layout of the proposed project will unreasonably interfere with the use and enjoyment of neighboring existing or future development. 1) The design and layout of the Project will unreasonably interfere with the use or enjoyment of existing nearby neighborhoods. This design and layout will place a truck intensive development project immediately north and west of residential neighborhoods increasing traffic and compromising pedestrian safety. In addition, this truck intensive development project will impair the quiet enjoyment of the Resolution 2024- 151

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abutting residential uses with vehicular noise and traffic.

D. The design and layout of the proposed project will result in vehicular and/ or pedestrian hazards.
1) As mentioned, the Sun Lakes Club Community is a community exclusively for residents 55 years of age or older and the Lakes Banning Retirement Home is an assisted senior living facility. These two residential communities are located in close proximity to the Project. The Sun Lakes Country Club community is a planned residential community around a large golf course. Golf is a popular recreational activity practiced by these two neighboring communities. The design and layout of the Project will result in vehicular and pedestrian hazards because there are minimal protections for pedestrians or golf cart users utilizing Sun Lakes Boulevard to connect to the Sun Lakes Country Club Community.
2) The Project identifies three truck courts and semi-truck circulation access points.

These are as follow:

Access points off Sun Lakes Blvd: 40' wide driveway (at cul-de-sac) & 46' driveway (divided by 6' median) & 40' wide shared driveway; Access points for retail: West side - 24' wide driveway off Sun Lakes Village Dr & East side - Two (2) 26' wide driveways off shared driveway; Access points for warehouse: West side- 29'-10" wide driveway off Sun Lakes Village Dr & East side- Three (3) driveways 24' wide, 29' wide, 40' wide off shared driveway.

The Project' s use and site plan will require 100 percent of daily and nightly truck trips traffic into and out of the site to utilize Sun Lakes Boulevard. Although the Project site has frontage only on Sun Lakes Boulevard, the development of the site for a large warehouse use rather than other smaller uses or a mix of various uses, will nonetheless result in a concentration of truck traffic among Sun Lakes Boulevard, which will conflict with the safe movement of pedestrians and area residents using golf carts. As such, the design and layout of the Project fails to take in account the accessibility needs of this age group when tailoring protections that will best protect the safety of pedestrian and seniors traveling and/or living nearby.

E. The design of the proposed project is incompatible with the character of the surrounding neighborhood.
1) The Sun Lakes Club Community and the Lakes Banning Retirement Home are two residential communities in close proximity to this Project. The Project proposed pursuant to Design Review 21-7008 is incompatible with the character of the surrounding neighborhoods because the Project fails to account for the accessibility needs of the senior citizen population living and traveling near the Project. In addition, the truck intensive environment that would be generated by the Project will impair the quiet enjoyment of the abutting residential uses.

Vehicular noise and traffic will conflict with the tranquil and quiet environment Resolution 2024-151

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sought out by senior residents living nearby.
2) The design of the Project is incompatible with the character of the surrounding neighborhoods because there are minimal protections for pedestrians or golf cart users utilizing Project- impacted- streets. The design fails to take into account the accessibility needs of seniors and residents living nearby. In addition, community residents will be forced to share traffic impacted streets potentially exposing vulnerable community members, such as residents from the nearby assisted living facility, to traffic impacts that can potentially delay access to rapid emergency response services, exposing residents to new vehicular hazards.

SECTION 4: Project Denial and Upholding of Appeal. Based upon the findings and conclusions set forth in Sections 1 through 3 above, and all of the evidence ( both written and oral) in the record, this City Council hereby disapproves the Tentative Parcel Map No. 38164; and upholds and sustains the Appeal of the Planning Commission' s approval of Design Review No. 21-7008, thereby denying Design Review No. 21-7008.

SECTION 5: Environmental Findings.

A. The City Council, based on its independent judgment, does hereby find, determine and declare that the Project is exempt from the requirements of the California Environmental Quality Act (" CEQA") ( Cal. Pub. Resources Code, § 21000 et seq.) and the State Guidelines ( the " CEQA Guidelines") ( 14 Cal. Code Regs. § 15000 et seq.) pursuant to Section 15270( a) of the CEQA Guidelines because CEQA does not apply to projects which a public agency rejects or disapproves.

B. The Community Development Director is hereby directed to prepare and file a Notice of Exemption in the form and manner required by CEQA.

C. The custodian of records for the documents that constitute the record of proceedings upon which the City Council' s decision is based is the City Clerk of the City of Banning. Those documents are available for public review in the Planning Division located at 99 E. Ramsey Street, Banning, California, 92220 during regular business hours.

SECTION 6: Certification. The City Clerk shall certify to the adoption of this Resolution.

SECTION 7: Effect. This Resolution shall take effect immediately upon its adoption.

SECTION 8: Judicial Review. The time within which judicial review, if available, of this decision must be sought is governed by California Code of Civil Procedure Section 1094.6, unless a shorter time is provided by other applicable law. The City Clerk shall mail by first class mail, postage prepaid, a certified copy of this Resolution and a copy of the affidavit or certificate of mailing to the Appellant, Applicant, and any other persons or entities requesting notice of determinations related to the decision.

PASSED, APPROVED AND ADOPTED this 10th day of September 2024.

Resolution 2024-151

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ATTEST:

Caroline Patto n, Admi
City of Banning
APPR~ FORM:

Serita R . You ng, City Atto rney
Richards , Watson & Gershon
Resolution 2024- 151

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CERTIFICATION:

I, Caro lin e Patton , Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024- 151 , was duly adopted by the City Council of the City of Banning, California , at a regular meeting thereof held on the 10th day of September 2024 by the following vote , to wit:

AYES : Flynn, Happe, Minjares .

NOES: Sanchez and Wallace.

ABSENT:

ABSTAIN :

Resolut ion 2024- 151

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Caroline Patton, Admini
City of Banning , California
694
Allen Matkins Leck Gamble Mallory & Natsis LLP
Attorneys at Law
2010 Main Street, 8th Floor | Irvine, CA 92614-7214
Telephone: 949.553.1313 | Facsimile: 949.553.8354
www.allenmatkins.com
K. Erik Friess
E-mail: [email protected]
Direct Dial: 949.851.5478 File Number: 391960.00003/4874-9449-6232.1 Los Angeles | Orange County | San Diego | Century City | San Francisco | New York Allen Matkins
Via Electronic Mail
September 25, 2024
Interim Community Development Director
City of Banning
99 E. Ramsey Street
Banning, CA 92220
Emails: [email protected]
[email protected]
Re: Sun Lakes Highland, LLC’s request for reconsideration of the City Council’s adoption of Resolution 2024-151
Dear Interim Community Development Director:

This firm represents Sun Lakes Highland, LLC (“SLH”), the owner of the property comprising the Banning Point Project. At its regular meeting on September 10, 2024, the City Council adopted Resolution 2024-151 in connection with Agenda Item No. 8.2, which denied Tentative Parcel Map No. 38164 and Design Review No. 21-7008 and deemed the Project exempt from CEQA. This letter requests that the City Council reconsider its adoption of Resolution 2024- 151 by noticing a new public hearing on the Project as permitted under Municipal Code section

17.68.140.

This request for reconsideration is timely as it is made within 15 days following the City Council’s adoption of Resolution 2024-151 on September 10, 2024. (Banning Mun. Code § 17.68.140.)
The City Council can and should reconsider its adoption of Resolution 2024-151 based on new information on Councilmembers’ bias against SLH and the Project.

New information has emerged since the City Council’s July 9, 2024, public hearing, which renders its subsequent decision to deny the Project’s entitlements the proper subject of reconsideration. “If more complete or additional facts or information, which may affect the original action taken on an application by a review authority are presented, the review authority may reconsider such action taken … .” (Banning Mun. Code § 17.68.140, emphasis added.) 695
Allen Matkins Leck Gamble Mallory & Natsis LLP
Attorneys at Law
Interim Community Development Director
September 25, 2024

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As detailed in SLH’s July 25, 2024, letter to the City’s mayor and City Council, additional information has come to light about the public hearing on July 9, 2024, when the City Council continued consideration of the Project entitlements and associated resolutions (Agenda Item 7.1).

More specifically, statements made and actions taken by Councilmembers Flynn and Happe demonstrate that they are biased against SLH and the Project and thus tainted the July 9th public hearing. A copy of SLH’s July 25, 2024, letter is enclosed as Exhibit A.

For example, Councilmember Flynn, a former volunteer Pass Action Group Board Member, Vice President, and co-chair of PAG’s Legal/Environmental Impact Committee, posted on social media after the July 9th public hearing that the City Council’s majority vote for staff to prepare a resolution for denial of the Design Review component of the Project entitlements was a “step in the right direction.” (Exhibit A, at p. 8, emphasis added.) Further, before voting in favor of Resolution 2024-151 at the regular meeting on September 10th, Councilmember Flynn tried to walk back her biased conduct. She also baselessly claimed that the Project was inconsistent with the policies, goals, and objectives outlined in the City’s General Plan and Amendment No. 5 to the Sun Lakes North Village Specific Plan. Yet her most recent public statements confirm her commitment to opposing the Project.

Days after Resolution 2024-151 was adopted, Councilmember Flynn posted on social media about the outcome of the September 10th regular meeting and invited her followers to comment. A copy of that social media thread is enclosed as Exhibit B.

One of Councilmember Flynn’s followers responded with social media posts that praised her advocating against the Project: “[Y]ou got two other city council members to vote to stop the [Project]. Keep up the great work and your great spirit.” (Exhibit B, at p. 6.) In response, Councilmember Flynn stated, “I appreciate you … You are a blessing.” Councilmember Flynn is proud that her opposition to the Project influenced the Councilmembers at the July 9th public hearing and the adoption of Resolution 2024-151 that followed.

Conclusion
In sum, the newly discovered information about the bias of City Councilmembers Flynn and Happe against SLH and the Project renders the City Council’s adoption of Resolution 2024-151 a nullity. We strongly urge the City Council to reconsider its adoption of Resolution 2024-151 based 696
Allen Matkins Leck Gamble Mallory & Natsis LLP
Attorneys at Law
Interim Community Development Director
September 25, 2024

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on this additional information. The City can and should hold a new, fair, and unbiased public hearing on the Project without the participation of Councilmembers Flynn and Happe.

Please contact me if you wish to discuss this matter in further detail.

Very truly yours,
K. Erik Friess
KEF:sa
cc: Doug Schulze, City Manager
Caroline Patton, City Clerk
Serita Young, City Attorney
Sandra Calderon, Development Project Coordinator
Emery Papp, Senior Planner
697

EXHIBIT A
698
Allen Matkins Leck Gamble Mallory & Natsis LLP
Attorneys at Law
2010 Main Street, 8th Floor | Irvine, CA 92614-7214
Telephone: 949.553.1313 | Facsimile: 949.553.8354
www.allenmatkins.com
K. Erik Friess
E-mail: [email protected]
Direct Dial: 949.851.5478 File Number: 391960.00003/4858-2106-2609.7 Allen Matkins
Via Email/U.S. Mail
July 25, 2024
Honorable Mayor and City Councilmembers
City of Banning
Attn: Toni Calderon, City Clerk
99 E. Ramsey Street
Banning CA 92220
Re: Banning Point Project (“Project”)
Honorable Mayor and City Councilmembers:

We represent Sun Lakes Highland, LLC (“SLH”)1, owner of the property comprising the Project. The above-referenced Banning Point Project involves the subdivision and development of an approximate 47.11 acre site located within the Sun Lakes Specific Plan area for a 619,959 sf industrial warehouse with 10,000 sf of associated office space and six commercial/retail buildings totaling approximately 34,000 sf. You are undoubtedly intimately familiar with the Project and its long and complex entitlement and litigation history.

As discussed in detail below, it is clear that two City Councilmembers, Flynn and Happe, are biased against SLH and the Project, and must recuse themselves from all future City Council hearings on the Project. Either one of their involvement in future City Council hearings will deprive SLH of its constitutional right to due process. Further, Councilmember Flynn misled the City, other City Councilmembers and SLH by lying about her involvement in a July 3, 2024 Pass Action Group (“PAG”) meeting. At the July 9 City Council hearing, Councilmember Flynn asserted that while she had attended the July 3 PAG meeting, she was “ an observer only”. However, as discussed below, Councilmember Flynn clearly advocated her opposition to the Project at this PAG meeting, further tainting the City Council’s decision and process on the Project.

If either Councilmember Flynn or Happe refuse to recuse themselves, the City will be exposed to liability and significant damages, in excess of $25 million, and in addition, SLH’s legal fees, under Section 1983 of the Federal Civil Rights Act. Therefore, SLH hereby requests that both Councilmembers recuse themselves from all future hearings on the Project. 1 MIG and LGE acted as consultants for SLH, and were the applicants on the various entitlement applications, but neither entity has an ownership interest in the Project property. 699
Allen Matkins Leck Gamble Mallory & Natsis LLP
Attorneys at Law
Honorable Mayor and City Councilmembers
July 25, 2024

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Also, as is clear from all of the documentation of the administrative record, the Project is in conformity with the General Plan, Specific Plan and Zoning Code, and the City cannot legally make the findings necessary to deny the Project’s Design Review application. The fact that the City had to continue the public hearing on the Project, due to the paucity of substantial evidence, to try to gin up evidence and findings to support a denial of the Design Review application, provides further proof of the Project’s consistency with all City rules and regulations. The Project will provide tremendous public benefits to the City, its residents and the region, SLH requests that the remaining City Councilmembers deny the PAG appeal of the Planning Commission approval of the Project, and approve the Project entitlements at the Project’s next City Council hearing.

1. Summary
On July 9, 2024, concerning Agenda Item 7.1, the City Council voted 3-2 to direct staff to prepare resolutions and findings for consideration at a future City Council hearing regarding the granting of the appeal of PAG, regarding the denial of Design Review No. 21-7008 and the accompanying CEQA Addendum to the Sun Lakes Specific Plan EIR (Amendment No. 5) (collectively, “Denial”). Councilmembers Flynn, Minjares and Happe voted in favor of the Denial and Mayor Sanchez and Councilmember Wallace were opposed. The Council also voted 5-0 to direct staff to prepare findings and a resolution solely for approval of the Project’s Tentative Parcel Map No. 38164. The final hearing on the Project entitlements and associated resolutions has not yet occurred but it is presently anticipated for August 27, 2024.

The purpose of this letter is to bring to your attention new information concerning statements made and actions taken by Councilmembers Flynn and Happe that demonstrate an “unacceptable probability” of their respective predisposition and bias against the Project such that they could not – and cannot – act as “reasonably impartial, non-involved reviewer[s]” of the Project. (Nasha v. City of Los Angeles (2004) 125 Cal.App.4th 470, 484.) The effect of Councilmember Flynn’s biased participation in the July 9 hearing was to deprive SLH of its fundamental right to a fair hearing and, among other things, violate SLH’s procedural and substantive due process rights under the Fourteenth Amendment to the U.S. Constitution and the federal Civil Rights Act set forth in 42 U.S.C. section 1983. The pre-hearing statements and actions of Councilmember Flynn and the post-hearing statements made by these two Councilmembers unquestionably establish the existence of a predisposition, commitment and bias against the Project that tainted the July 9 hearing and, if these Councilmembers are allowed to continue to participate, would further taint all future hearings on the Project. Finally, the facts identified by Councilmembers Flynn, Happe, and Minjares to justify the proposed resolution of Denial are woefully inadequate and fall far short of the thresholds necessary to support denial of the Project and to withstand future legal scrutiny.

As outlined more fully below, if allowed to stand, the City’s actions in permitting Councilmember Flynn to participate in the July 9 hearing, and if Councilmembers Flynn and Happe do not recuse themselves and choose to consider and vote on the Project entitlements in any future 700
Allen Matkins Leck Gamble Mallory & Natsis LLP
Attorneys at Law
Honorable Mayor and City Councilmembers
July 25, 2024

Page 3 ends

hearing, will expose the City to significant monetary and other liability, including damages in excess of $25,000,000 as well as the responsibility for all of SLH’s attorneys’ fees and costs incurred in connection with any resulting litigation. SLH demands that the City (i) vacate and set aside all action taken and direction given by the City Council to staff regarding the Denial, including the direction to have staff prepare a resolution for Denial of the Design Review component of the Project entitlements; and (ii) approve the Project after a City Council hearing, without the participation of Councilmembers Flynn and Happe. These steps are necessary to ensure that the City Council hearing on the Project entitlements is not tainted by bias caused by the improper participation of Councilmembers Flynn and Happe in the proceedings.

In the event that the City refuses this demand and declines to conduct a new, fair, and unbiased hearing on the Project consistent with California law, including Judge Hopp’s March 13, 2024, order on PAG’s bias and fair-hearing claims regarding the 2022 approval of the Project, as well as SLH’s substantive and procedural due process rights under the state and federal constitutions, SLH will have no choice but to proceed with litigation against the City. Please be advised that SLH will assert all available claims, both legal and equitable, and take all actions necessary to protect, preserve, and vindicate SLH’s ownership and development rights in the Banning Point property and the Project. SLH strongly urges the City to consider its next steps carefully.

2. California Law Require Local Governments to Hold Fair Hearings, Without the Participation of Biased Decisionmakers; Failure to Do So is a Constitutional Violation and Requires the Biased Decision Makers to Recuse Themselves A. Trial Court Decision
As outlined in the trial court’s March 15, 2024, decision, “‘[Q]uasi-judicial’ or ‘administrative’ hearings are subject to the fair process requirements of Code of Civil Procedure section 1094.5(b) and, when a vested property or liberty interest is implicated, to the due process requirements of both the federal and state constitutions.” (The California Municipal Law Handbook (Cal. CEB 2023) § 2.56 citing Today’s Fresh Start, Inc. v Los Angeles County Office of Education (2013) 57 Cal.4th 197, 212.) “The decision-maker must be fair and impartial.” (Id. citing, Woody’s Group, Inc. v. City of Newport Beach (2015) 233 Cal.App.4th 1012, 1027 [invalidated city council decision on appeal of land use application when council member appealing planning commission decision showed bias and violated local procedures]; Golden Day Schools v. Dept. of Education (2000) 83 Cal.App.4th 695, 709 [“initial decision-maker may not sit 701
Allen Matkins Leck Gamble Mallory & Natsis LLP
Attorneys at Law
Honorable Mayor and City Councilmembers
July 25, 2024

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on review board”].) “Fair process and due process require both actual fairness and the appearance of fairness.” (Id., citing Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 94 [“due process violation when lawyer, advocate for defendant city, later acted as advisor to the judge of administrative appeal”).

The City is undoubtedly familiar with these principles and laws given the trial court’s recent determination that former Councilmember Hamlin (even though she voted against the Project) was improperly biased in favor of the Project at the time of its approval in 2022. The fact that the City Council, at its July 9 hearing, would repeat a similar mistake, and allow the biased participation of Councilmember Flynn, whose conduct was and is far more egregious than the conduct of Councilmember Hamlin, is incredible and defies both reason and logic.

B. Pre-hearing Comments Can Constitute Evidence of Bias Numerous reported decisions have reinforced the long-standing rule that decisionmakers must be unbiased, and that evidence of bias need not only be found based upon a decisionmaker’s conduct at the hearing itself.

As discussed in Nightlife Partners: “Comments made by an agency member before hearing may constitute evidence of an unacceptable probability of actual bias such that the member could not act as a ‘reasonably impartial, non-involved reviewer.’” (Id., citing Nasha v.

City of Los Angeles (2004) 125 Cal.App.4th 470, 484 [emphasis added] [unacceptable probability of bias shown where a decisionmaker “advocate[s] a position” for or against a project].) Further, “[a] personal interest or involvement in the outcome of a matter, or with any participant, that is unrelated to the merits requires disqualification.” (The California Municipal Law Handbook (Cal. CEB 2023) § 2.167; see Mennig v. City Council (1978) 86 Cal.App.3d 341, 351.) While decisionmakers can hold strong feelings about issues or specific projects, “[t]he decisionmaker’s actions, however, must not ‘cross the line into advocacy’ for or against a project.” (Id. [emphasis added], citing Petrovich Development Co., LLC v. City of Sacramento (2020) 48 Cal.App.5th 963, 974.) Also, there is no requirement of demonstrating actual bias; “it is sufficient to invalidate a decision if ‘an unacceptable probability of actual bias’ by the municipal decision-maker is established.” (Id., citing Woody’s Group, supra, 233 Cal.App.4th at p. 1022 [emphasis added].) As will be discussed below, Councilmember Flynn’s actions clearly and unequivocally demonstrate bias.

C. Participation by a Biased Decisionmaker Invalidates the Decision Even though three City Councilmember votes would be needed to approve the Denial, meaning that Councilmember Flynn and Happe themselves could not, and cannot, approve the Denial, any decision of the City Council including their participation would be tainted, resulting in invalidation of any action the City Council would take if they participate. “[T]he prehearing bias of one [decision-maker is] enough, by itself, to invalidate [that agency’s] decision.” (Woody’s Group, 702
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supra, 233 Cal.App.4th at p. 1016.) Where a decision-maker demonstrates an unacceptable probability of bias, the court must set aside the agency’s decision even if the ultimate outcome would have been the same without the biased decision-maker’s participation. (See, e.g., Nasha, supra, 125 Cal.App.4th at pp. 478, 484 [invalidating 3-1 planning commission decision denying project approval where only one commissioner was biased); Woody’s Group, supra, 233 Cal.App.4th at pp. 1019, 1031-32 [invalidating 4-1 decision denying project approval where only one city council member was biased]; Petrovich, supra, 48 Cal.App.5th at pp. 971, 976 [invalidating 7-2 decision denying project approval where only one city council member was biased].)
Thus, due to the bias of both Councilmembers Flynn and Happe, any decision of the City Council, if they participate in the decision, would be invalid, and as discussed below, would expose the City to liability under the Federal Civil Rights Act.

D. Participation of Biased Decisionmakers Violates an Applicant’s Constitutional Right to Procedural Due Process, Resulting in Liability Under the Federal Civil Rights Act
The Fourteenth Amendment to the U.S. Constitution provides that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law....” SLH’s ownership of the project property constitutes a protected property interest within the context of the Fifth Amendment of the U.S. Constitution and Article 1, sections 7 and 19 of the California Constitution, and compensation must be made for its taking or damaging by a public entity. (Bd. of Regents of State Colleges v. Roth (1972) 408 U.S. 564, 571-72.) Thus, SLH’s rights in the property may not be infringed upon without constitutional rights of due process.

Although a decision-maker does not have to be completely indifferent to the general subject matter of the issue or project presented in order to be impartial (Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 790, 171), “‘[a]“fair trial in a fair tribunal is a basic requirement of due process...’” (Bullock v. City and County of San Francisco (1990) 221 Cal.App.3d 1072, 1091 [abrogated on unrelated grounds in Griset v. Fair Pol. Pracs. Comm’n (2001) 25 Cal.4th 688, 698]; Nasha, supra, 125 Cal.App.4th at pp. 482-483.) A biased decisionmaker is constitutionally unacceptable. (Bullock, supra.) “The right to a fair procedure includes the right to impartial adjudicators.” (Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1448.)
42 U.S.C. section 1983 is a statutory mechanism that allows for the recovery of damages by private citizens whose constitutionally protected civil rights and property interests are violated and/or unlawfully infringed upon by the government. If either Councilmember Flynn or Happe participate in future City Council hearings on the Project, the City, acting under the color of state law, will violate SLH’s civil rights under the United States and California Constitutions, and 42 703
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U.S.C. section 1983 by depriving SLH of its fundamental due-process right to a fair hearing before an unbiased decisionmaker. (Galland v. City of Clovis (2001) 24 Cal.4th 1003, 1031, 1034 [“[t]he Due Process Clause is intended to prevent government officials from abusing [their] power or employing it as an instrument of oppression”].)
As a result of the City’s actions in allowing Councilmember Flynn to participate in the July 9 hearing despite the clear and unequivocal evidence of her pre-hearing bias and commitment to oppose the Project, and if Councilmembers Flynn or Happe participate in any future hearings on the Project, SLH has suffered and will continue to suffer significant monetary damages that, at present, are in excess of $25,000,000. Moreover, in the event that litigation becomes necessary, please be advised that SLH is and will be entitled to recover all of its reasonable attorneys’ fees and costs incurred in connection with the claim for violation of its procedural and substantive due process rights. (See 42 U.S.C. section 1988.) SLH will exercise all available rights and pursue all available legal and equitable remedies in order to protect, preserve, and defend its rights guaranteed under the U.S. and California constitutions.

3. Councilmember Flynn’s Pre-and Post-Hearing Actions Demonstrate Bias, Requiring Invalidation of the July 9 Denial, and Requiring Her to Recuse Herself From All Future Hearings on the Project
Councilmember Flynn, who is a resident of the neighboring Sun Lakes community and, as she has admitted, is a former longtime former volunteer PAG Board Member, Vice President, and co-chair of PAG’s Legal/Environmental Impact Committee. As is clear, and as discussed below, she has consistently and vehemently opposed the Project, both before she was elected as a Councilmember and after she was elected.

A. Activities Before Elected to City Council
Councilmember Flynn vigorously opposed the original 2022 approval of the Project and appeared at numerous Planning Commission and other public hearings to register her opposition. In fact, Councilmember Flynn expressly campaigned for the City Council on the basis of not approving any new industrial facilities in the City and touted her involvement in the efforts to recall former Councilmember Hamlin, whom the trial court found to be biased in favor of the Project (despite her “no” vote). Councilmember Flynn signed the verification for the lawsuit filed by PAG against the City and SLH after the original 2022 approval of the Project entitlements, and has continued to act on behalf and in furtherance of PAG’s efforts to undermine and oppose the Project since taking her seat on the City Council.

Councilmember Flynn was an active member of the PAG committee which was involved in the litigation. On January 24, 2022, PAG’s lawyers submitted a 428-page letter to the City, appealing the City Planning Commission’s approval of the Project. Ms. Flynn was cc’d on this letter. In March 2022, the City, PAG and SLH entered into a tolling agreement, tolling the statute 704
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of limitations for PAG to file a lawsuit against the City and SLH. Ms. Flynn signed this tolling agreement on behalf of PAG, listing her title as “Pass Action Board Member”. 2 Clearly, Councilmember Flynn was not acting as an unbiased mediator, but as one of the leaders of PAG.

B. Activities After Elected to City Council
Councilmember Flynn provided extensive pre-hearing statements at a July 3 PAG meeting which occurred before the July 9 City Council hearing, explaining how PAG members could oppose the Project. 3 She urged the PAG members to attend the July 9 meeting, she cajoled them to send letters to the City Council and she instructed the PAG members how to ensure that their comments were included as part of the record of proceedings.

For example, Flynn stated:
“I just wanted to comment on when you go to speak, uh, in January the City Council went to action minutes only, so if you go to speak and you do not send it in by email or by mail, whatever you want to send in, it will not be placed in the minutes and it will not be recorded. So you must also speak but also turn whatever you speak into a city clerk by 5 pm preferably the day before but you can get it in as late as 5 pm the day of and I just want to make sure everyone knows that because you’ll go up there and speak and there will be no record of it other than a video that you would have to watch. No verbatim. Verbatim is no longer being used. It is action minutes it only records in the minutes what action was finally taken. The votes and what action was finally taken.

The votes and what anyone says or even whether you’re for or against something is not even recorded. So be sure to send in your comments ahead of time [emphasis added].

So, on the 9th, you should send in to make sure it gets to the City Clerk by the 8th but she should still accept them by 5 pm on the 9th. To the City Clerk. You must mail it to the City Clerk which is Caroline Patton. So its [email protected].

Not only do I have an obligation to let people know where I stand, I have a duty to let people know where I stand. And so I am not going to recuse myself. [Emphasis added.] [Applause] And I think I have a lot of valuable information to give, and that is why I’m not recusing myself. And I do not have to recuse myself.” [Emphasis added.] During the July 9 hearing, Councilmember Flynn read from a pre-prepared list of questions and statements that, not coincidentally, were identical to and consistent with the claims and allegations raised by PAG in the underlying litigation. Councilmember Flynn went so far as to 2 Because both of these documents are City documents, they are not attached to this letter. SLH can provide copies of these documents to the City if so requested.
3 This meeting was videotaped, and can be accessed here: https://www.youtube.com/watch?v=HExxFKyfSNE. The following discussion of Councilmember Flynn’s actions at this meeting is based upon this video. 705
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question SLH’s representative, Josh Zemon, about a “rumor” that SLH had contributed $4,000,000 into a City “housing authority fund” in 2019 (years in advance of approval of the Project entitlements) that was the alleged basis for former Councilmember Hamlin’s statements that the Project would generate an approximate equivalent amount of revenue for the City. The clear intent of this line of questioning – based upon admittedly nothing more than mere “rumor” and speculation – was to imply that SLH was improperly (and indirectly) attempting to “buy” councilmember votes for the project in advance of the 2022 hearing through the alleged housingfund contributions. Although he had no responsibility or obligation to respond to such an unsupported inflammatory question, Mr. Zemon stated unequivocally that no such payment or donation had ever been made either by or on behalf of SLH. However, the damage caused by Councilmember Flynn’s question and the associated implication was already done.

Finally, in a social media post following the hearing on July 9 but before the pending final vote on the project entitlements, Councilmember Flynn hailed the actions taken by the City Council as a “step in the right direction.” (Emphasis added.) The outcome of her final vote on the Project is undoubtedly certain; evidence of her bias could not be clearer.

C. Councilmember Flynn Must Recuse Herself Due to the Overwhelming Evidence of Her Bias
SLH and its team were not aware of Councilmember Flynn’s attendance at the July 3 PAG Board meeting or the biased statements that she made to the group indicating her clear predisposition and opposition to the Project. Nor was SLH aware of Councilmember Flynn’s active efforts to solicit and encourage public opposition to the reapproval of the Project and to line up City Council votes in advance of the July 9 hearing on the Project. At the July 9 City Council hearing, Councilmember Flynn stated simply that she attended a PAG Board meeting simply “as an observer”, but the irrefutable, publicly available video evidence makes clear that this statement was a lie. Such a bad faith disclosure is sufficient evidence of Councilmember Flynn’s bias.

The statements made and actions taken by Councilmember Flynn at the July 3 PAG meeting prior to the July 9 initial hearing on the Project unquestionably show the existence of an unacceptable probability of bias. This “prehearing bias” is “enough by itself to invalidate” the City Council’s action and direction at the July 9 hearing. (Woody’s Group, supra, 233 Cal.App.4th at p. 1016.) In Woody’s Group, the court disregarded a biased councilmember’s “self-serving comment at the hearing” that he had no bias and concluded that he “should not have been part of the body hearing the appeal” at all. (233 Cal.App.4th at p. 1023.) Here, Councilmember Flynn’s comments at the hearing that her attendance at the July 3, PAG Board meeting was “as an observer only” are contradicted by the video itself and cannot cure her prehearing bias. Like the councilmember’s statement in Woody’s Group, whatever 706
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Councilmember Flynn said or did at the City Council hearing cannot dispel the pre-hearing bias that legally prohibited her from appearing at the hearing in the first instance.

In Petrovich Development Co., LLC v. City of Sacramento (2020) 48 Cal.App.5th 963, the court found that a councilmember demonstrated a “prehearing commitment to” vote against a project where the councilmember was “counting – if not securing –votes” against it and stated he was “confident he had a majority” to deny the project. (Petrovich, supra, 48 Cal.App.5th at pp. 974-75.)
In Nasha, supra, the court found that a planning commissioner was biased due to his writing a newsletter, which attacked a project, before the planning commission held a hearing on the project. The court held that the mere preparation of this newsletter constituted bias, requiring the planning commissioner’s recusal. Nasha, supra, 125 Cal.App.4th at p. 484.

Similar to the biased decisionmakers in Petrovich and Nasha, Councilmember Flynn engaged in a myriad of activities to thwart approval of the Project. She repeatedly publicly opposed the Project, engaged in behind-the-scenes advocacy and provided technical support to PAG members. She exhorted PAG members that “community pressure and peer group pressure… could change [the other Councilmembers’] minds…”. clearly demonstrated her “prehearing commitment” to do everything possible to ensure the project’s denial.

To that end, Councilmember Flynn’s actions during the July 3 PAG Board meeting closely resembles the “coaching” of the project appellant by the biased councilmember in Petrovich. There, the councilmember texted the project appellant asking him “to put a few heads together to talk thru” the project; elements of the councilmember’s “Talking points” related to the project also ended up in the appellant’s presentation before the Council. (Petrovich, supra, 48 Cal.App.5th at pp. 974-

76.) The appellate court endorsed the trial court’s characterization of this evidence as showing the councilmember was “coaching [the project appellant] on how to prosecute the appeal.” (Id. at p. 975.)
Here, as quoted above, Councilmember Flynn’s pre-hearing statements at the July 3 PAG meeting advising, directing, and urging PAG members how to attend the July 9 meeting, send letters to the City Council (except for Councilmember Flynn), and ensure that their comments are included as part of the record of proceedings demonstrate that Councilmember Flynn was “coaching” the PAG Board and community members on how to oppose the project to the City Council.

Further, Councilmember Flynn’s comments at the July 9 City Council hearing were clearly pre-prepared and corresponded directly with the unsuccessful claims and arguments asserted by PAG in the underlying litigation. The statements made by Councilmember Flynn and the PAG members show that they considered themselves a singular, cohesive team whose mission was to generate opposition to the Project. In fact, the PAG members expressly stated that Councilmember 707
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Flynn was “on our team” in advising that no letters opposing the project need to be sent to her attention prior to the July 9 meeting – a statement that Flynn did not (and does not) contradict.

Further, to be clear, Councilmember Flynn attended the PAG meeting – not the Sun Lakes Community Master Association regular meeting or some other uninvolved community group. PAG is the Petitioner in the lawsuit against the City and SLH regarding the Project and is actively and vehemently opposed to the Project. The PAG website confirms that the group was formed for one singular purpose – to oppose the Project – and thus Councilmember Flynn’s incitement and encouragement and advice to the members about how to ensure that their comments and concerns are timely and included in the record was clearly intended to generate as much opposition to the Project as possible.
“The Pass Action Group was formed in late 2022 in opposition to a proposed warehouse being developed on Sun Lakes Blvd. in Banning, CA…. We have banded together to oppose the construction this warehouse that will bring an unacceptable number of daily truck traffic, noise and all related pollution. Senior citizens are sensitive receptors to this pollution and the Pass Action Group is determined to protect all citizens from the inherent pitfalls of this project.”4 The PAG Mission Statement is even clearer:
“The fundamental mission and purpose of the Pass Action Group (PAG) is to prevent the development of the Banning Point Warehouse. This mission will use all means necessary to preserve the quality of life and property values of those living in the general vicinity of the Banning Point project, especially the protected class of citizens currently living immediately adjacent to the planned project.

This will be accomplished by the development and implementation of a multifaceted strategic plan constructed to ensure all reasonable and available public, political, and legal means necessary are undertaken.” In sum, like the councilmember in Petrovich, Councilmember Flynn “took affirmative steps to assist [opponents] of the [project],” acting as an “advocate, not a neutral and impartial decision maker, and should have recused [herself] from voting” at the hearing on July 9. (Petrovich, supra, 48 Cal.App.5th at p. 976.) Not only did she refuse to recuse herself she was defiant in her comments to the PAG members as to her unwillingness to do so. Councilmember Flynn’s failure to recuse herself and her continued participation in the July 9 hearing on the Project, despite her clear and unequivocal pre-hearing bias against the Project, requires the City Council’s actions to be set 4 See https://passactiongroup.org/history-1.
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aside. Given her obvious bias, Councilmember Flynn must recuse herself from all future City Council hearings on the Project.

4. Councilmember Happe’s Public Statements Following the July 9 Hearing Clearly Indicate an Unacceptable Probability of Actual Bias Requiring His Recusal from all Future Hearings on the Project
Following the July 9 hearing, Councilmember Happe issued a lengthy statement on social media to his supporters in which he attempted to justify his prior vote to approve the Project in 2022 and subsequent vote directing staff to prepare resolutions for denial. Although the final vote on the Project entitlements remains pending and no final determination has been made or final vote been taken, Councilmember Happe made a number of misrepresentations and statements indicating his opposition to and feelings towards the Project. For example, Councilmember Happe’s message included:
“As I stated earlier, the project has already had a negative impact on the neighborhood before it was even built, before even one truck rolled through the neighborhood, before one truck was unloaded… [and] The harm is more tangible to people than mitigation efforts that will fall far short… While I believe the developers are sincere in wanting to create a valuable and quality project for the community, I cannot ignore the fact that the location of this project is landlocked by a retirement community an assisted living facility and a shopping center that they use on a daily basis by the local community. This conflict of land use goes against good sense and the vision for a livable city—a Blue Zone city, a most desirable city, a clean city. Unfortunately, there was no remedy for the council on the specifics of the plan without it being sent back to the drawing board… I hope you can understand that given the second chance I could not support a project that is not in the best long term interest of our city.” (Emphasis added.) As above, Councilmember Happe’s statements demonstrate an unacceptable probability of “prehearing bias” that is “enough by itself to invalidate” the City Council’s action and direction at the July 9 hearing. (Woody’s Group, supra, 233 Cal.App.4th at p. 1016.)

5. The Facts Identified by the City Council During the July 9 Hearing to Support the Proposed Resolution of Denial of the Project Are Inadequate and Cannot Justify Denial of the Project
In addition to the foregoing, the factual bases articulated by Councilmembers Flynn, Happe, and Minjares in support of their request that City Staff prepare a resolution of denial of the Design Review component of the Project entitlements are patently insufficient and inadequate to support or 709
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justify the denial action that is proposed to be taken. Despite nearly five hours of public presentations and testimony, Councilmembers Flynn, Happe, and Minjares struggled mightily to identify and provide facts to support the proposed denial of the Project, and, at one point, Councilmember Flynn exclaimed to the City Attorney that she could not reasonably be expected to identify the grounds for denial “on the spot” at the July 9 hearing. One of the reasons these Councilmembers likely struggled to marshal facts to support the Denial is that the Project is consistent with the General Plan, the Specific Plan and Zoning Code, and there has been no substantial evidence proffered which concludes otherwise.

Ultimately, Councilmembers Flynn, Happe, and Minjares directed staff to prepare a resolution of denial based upon the following “facts”:
• The Project is inconsistent with the City’s General Plan5 because: (i) “the circulation
element of their design sucks…”; (ii) “the project will not provide a nonpolluting industrial use and will not provide jobs for city residents” (literally the conclusory inverse of language included in July 9 proposed Resolution No. 2024-114, § 4(A)(2)); and (iii) the Project “does not protect residential neighborhoods from potentially significant sources of community noise”;
• The Project will unreasonably interfere with the use and enjoyment of neighboring existing or future development and will not result in vehicular or pedestrian hazards6 because “there are no protections for pedestrians or golf carts using Sun Lakes Boulevard and connecting it to the Project or the project to Sun Lakes”; and, • The Project is incompatible with the character of the surrounding neighborhood7 because: (i) “its proximity to sun lakes, its only 800 ft from residential”; (ii) the project site is “landlocked by residential”; and (iii) “the easterly parcel will not be provided with substantial screening and buffering of the residential and assisted living uses to the east of the building.”
Where an administrative agency is required to make findings to support a quasi-judicial decision, the findings must “bridge the analytic gap between the raw evidence and ultimate decision.” (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515; see also Healing v. California Coastal Com. (1994) 22 Cal.App.4th 1158, 1167.) The findings must be “sufficient both to enable the parties to determine whether and on what basis they should seek review and, in the event of review, to apprise a reviewing court of the basis for the [Council’s] action.” ( Id., at p. 514.) The facts identified by Councilmembers Flynn, Happe and Minjares fall far short of accomplishing this goal.
5 See Mun. Code, § 17.56.050(A).
6 See Mun. Code, § 17.56.050(C).
7 See Mun. Code, § 17.56.050(D).
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For example, with respect to the General Plan consistency findings, the City Council provided unfounded opinion –not facts – to support its determination, and whether a circulation plan “sucks” is not sufficient grounds for Project denial. Councilmember Minjares expressly stated at the City Council hearing that there were no facts to support inconsistency with the General Plan or Specific Plan or that would justify denial of the Project’s tentative parcel map. The findings necessary to approve the Design Review are virtually identical to those required for approval of the tentative parcel map. Furthermore, with respect to unreasonable interference with the use and enjoyment of surrounding properties, Councilmembers Flynn, Happe, and Minjares completely disregarded and ignored the crosswalks, traffic light, and other improvements that the Project would be conditioned to construct as well as the internal golf cart pathway voluntarily proposed by SLH to connect the Sun Lakes community to the Sun Lakes Village commercial shopping center to the west of the Project site. SLH revised its circulation plan before the Project was originally approved at the request of PAG. Nonetheless, the Project’s addendum extensively analyzed the Project’s circulation impacts. Finally, the Project site is not landlocked by residential (e.g., the Sun Lakes Village commercial shopping center is a neighbor of the Project site), but the industrial component of the Project has been pushed back against the Interstate 10 freeway far away from the residential uses to the south and east and extensively buffered with landscaping and other screening measures to reduce impacts to adjacent uses.

Finally, to the extent that the City takes the position that the “general discussion” by Councilmembers Flynn, Happe, and Minjares of the Project’s perceived impacts to the quality of life of the surrounding neighborhood and their disagreement with the existing, City-approved zoning for the site that expressly contemplates and allows for the exact uses proposed by the project, that is not sufficient to justify the denial of Design Review. (See Pacifica Corp. v. City of Camarillo (1983) 149 Cal.App.3d 168, 179 [“Council debate … is not the equivalent of Topanga findings.”].) Thus, “the evidence [does not] support the [proposed] findings” (Healing, supra, 22 Cal.App.4th at 1167), and the City Council failed to provide adequate facts to “bridge the analytic gap between the raw evidence and ultimate decision.” (Topanga, supra, 11 Cal.3d at p. 515). The bottom line is that City Staff, including the City Attorney, concluded that the Project recommended approval of the Project, and the City Council’s attempt to now disregard the detailed and comprehensive analysis undertaken by City Staff is unsupportable.

Conclusion
In sum, the City’s actions in permitting Councilmember Flynn to participate in the hearing and to consider and vote on the Project entitlements effectively deprived SLH of its fundamental right to a fair hearing and, among other things, violated SLH’s procedural- and substantive-dueprocess rights under the Fourteenth Amendment to the U.S. Constitution and the federal Civil Rights Act set forth in 42 U.S.C. section 1983. The pre-hearing statements and actions by Councilmember Flynn and the post-hearing statements made by both Councilmembers unquestionably establish the existence of their predisposition and bias against the Project, the effect 711
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Banning City CouncilOctober 8, 2024

Banning City Council
October 8, 2024