OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 7
discusses, deliberates or takes action on an item of business outside of a noticed meeting. They include meetings held from remote locations by teleconference.
New communication technologies present new Brown Act challenges. For example, common email practices of forwarding or replying to messages can easily lead to a serial meeting prohibited by the Brown Act, as can participation by members of a legislative body in an internet chatroom or blog dialogue. Communicating during meetings using electronic technology (such as laptop computers, tablets, or smart phones) may create the perception that private communications are influencing the outcome of decisions; some state legislatures have banned the practice. On the other hand, widespread cablecasting and web streaming of meetings has greatly expanded public access to the decision-making process.
Narrow exemptions
The express purpose of the Brown Act is to assure that local government agencies conduct the public’s business openly and publicly. Courts and the California Attorney General usually broadly construe the Brown Act in favor of greater public access and narrowly construe exemptions to its general rules.4
Generally, public officials should think of themselves as living in glass houses, and that they may only draw the curtains when it is in the public interest to preserve confidentiality. Closed sessions may be held only as specifically authorized by the provisions of the Brown Act itself.
The Brown Act, however, is limited to meetings among a majority of the members of multimember government bodies when the subject relates to local agency business. It does not apply to independent conduct of individual decision-makers. It does not apply to social, ceremonial, educational, and other gatherings as long as a majority of the members of a body do not discuss issues related to their local agency’s business. Meetings of temporary advisory committees — as distinguished from standing committees — made up solely of less than a quorum of a legislative body are not subject to the Brown Act.
The law does not apply to local agency staff or employees, but they may facilitate a violation by acting as a conduit for discussion, deliberation, or action by the legislative body.5 The law, on the one hand, recognizes the need of individual local officials to meet and discuss matters with their constituents. On the other hand, it requires — with certain specific exceptions to protect the community and preserve individual rights — that the decision-making process be public. Sometimes the boundary between the two is not easy to draw.
Public participation in meetings
In addition to requiring the public’s business to be conducted in open, noticed meetings, the Brown Act also extends to the public the right to participate in meetings. Individuals, lobbyists, and members of the news media possess the right to attend, record, broadcast, and participate in public meetings. The public’s participation is further enhanced by the Brown Act’s requirement that a meaningful agenda be posted in advance of meetings, by limiting discussion and action to matters listed on the agenda, and by requiring that meeting materials be made available.
Legislative bodies may, however, adopt reasonable regulations on public testimony and the conduct of public meetings, including measures to address disruptive conduct and irrelevant speech.
PRACTICE TIP: Think of the
government’s house as being
made of glass. The curtains may
be drawn only to further the
public’s interest. A local policy
on the use of laptop computers,
tablets, and smart phones during
Brown Act meetings may help
avoid problems.
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8 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 1: IT IS THE PEOPLE’S BUSINESS
Controversy
Not surprisingly, the Brown Act has been a source of confusion and controversy since its inception.
News media and government watchdogs often argue the law is toothless, pointing out that there has never been a single criminal conviction for a violation. They often suspect that closed sessions are being misused.
Public officials complain that the Brown Act makes it difficult to respond to constituents and requires public discussions of items better discussed privately — such as why a particular person should not be appointed to a board or commission. Many elected officials find the Brown Act inconsistent with their private business experiences. Closed meetings can be more efficient; they eliminate grandstanding and promote candor. The techniques that serve well in business — the working lunch, the sharing of information through a series of phone calls or emails, the backroom conversations and compromises — are often not possible under the Brown Act.
As a matter of public policy, California (along with many other states) has concluded that there is more to be gained than lost by conducting public business in the open. Government behind closed doors may well be efficient and business-like, but it may be perceived as unresponsive and untrustworthy.
Beyond the law — good business practices
Violations of the Brown Act can lead to invalidation of an agency’s action, payment of a challenger’s attorney fees, public embarrassment, even criminal prosecution. But the Brown Act is a floor, not a ceiling for conduct of public officials. This guide is focused not only on the Brown Act as a minimum standard, but also on meeting practices or activities that, legal or not, are likely to create controversy. Problems may crop up, for example, when agenda descriptions are too brief or vague, when an informal gettogether takes on the appearance of a meeting, when an agency conducts too much of its business in closed session or discusses matters in closed session that are beyond the authorized scope, or when controversial issues arise that are not on the agenda.
The Brown Act allows a legislative body to adopt practices and requirements for greater access to meetings for itself and its subordinate committees and bodies that are more stringent than the law itself requires.6
Rather than simply restate the basic
requirements of the Brown Act, local open meeting policies should strive to anticipate and prevent problems in areas where the Brown Act does not provide full guidance. As with the adoption of any other significant policy, public comment should be solicited.
A local policy could build on these basic Brown Act goals:
A legislative body’s need to get its business done smoothly; The public’s right to participate meaningfully in meetings, and to review documents used in decision-making at a relevant point in time;
A local agency’s right to confidentially address certain negotiations, personnel matters, claims and litigation; and
The right of the press to fully understand and communicate public agency decision-making.
PRACTICE TIP: Transparency
is a foundational value for
ethical government practices.
The Brown Act is a floor, not a
ceiling, for conduct.
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An explicit and comprehensive public meeting and information policy, especially if reviewed periodically, can be an important element in maintaining or improving public relations. Such a policy exceeds the absolute requirements of the law — but if the law were enough, this guide would be unnecessary. A narrow legalistic approach will not avoid or resolve potential controversies. An agency should consider going beyond the law, and look at its unique circumstances and determine if there is a better way to prevent potential problems and promote public trust. At the very least, local agencies need to think about how their agendas are structured in order to make Brown Act compliance easier. They need to plan carefully to make sure public participation fits smoothly into the process.
Achieving balance
The Brown Act should be neither an excuse for hiding the ball nor a mechanism for hindering efficient and orderly meetings. The Brown Act represents a balance among the interests of constituencies whose interests do not always coincide. It calls for openness in local government, yet should allow government to function responsively and productively.
There must be both adequate notice of what discussion and action is to occur during a meeting as well as a normal degree of spontaneity in the dialogue between elected officials and their constituents.
The ability of an elected official to confer with constituents or colleagues must be balanced against the important public policy prohibiting decision-making outside of public meetings.
In the end, implementation of the Brown Act must ensure full participation of the public and preserve the integrity of the decision-making process, yet not stifle government officials and impede the effective and natural operation of government.
Historical note
In late 1951, San Francisco Chronicle reporter Mike Harris spent six weeks looking into the way local agencies conducted meetings. State law had long required that business be done in public, but Harris discovered secret meetings or caucuses were common. He wrote a 10-part series on “Your Secret Government” that ran in May and June 1952.
Out of the series came a decision to push for a new state open meeting law. Harris and Richard (Bud) Carpenter, legal counsel for the League of California Cities, drafted such a bill and Assembly Member Ralph M. Brown agreed to carry it. The Legislature passed the bill and Governor Earl Warren signed it into law in 1953.
The Ralph M. Brown Act, known as the Brown Act, has evolved under a series of amendments and court decisions, and has been the model for other open meeting laws — such as the Bagley-Keene Act, enacted in 1967 to cover state agencies.
Assembly Member Brown is best known for the open meeting law that carries his name. He was elected to the Assembly in 1942 and served 19 years, including the last three years as Speaker. He then became an appellate court justice.
PRACTICE TIP: The Brown Act
should be viewed as a tool
to facilitate the business of
local government agencies.
Local policies that go beyond
the minimum requirements
of law may help instill public
confidence and avoid problems.
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10 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 1: IT IS THE PEOPLE’S BUSINESS
ENDNOTES:
1 California Government Code section 54950
2 California Constitution, Art. 1, section 3(b)(1)
3 California Government Code section 54953(a)
4 This principle of broad construction when it furthers public access and narrow construction if a provision limits public access is also stated in the amendment to the State’s Constitution adopted by Proposition 59 in 2004. California Constitution, Art. 1, section 3(b)(2). 5 California Government Code section 54952.2(b)(2) and (c)(1); Wolfe v. City of Fremont (2006) 144 Cal.App.4th 533
6 California Government Code section 54953.7
Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov.
August 08, 2023 Regular Meeting of the Lindsay City Council
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT11 11 Chapter 2
LEGISLATIVE BODIES
What is a “legislative body” of a local agency? ................................................................ 12 What is not a “legislative body” for purposes of the Brown Act? .................................... 14 August 08, 2023 Regular Meeting of the Lindsay City Council
12 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 2: LEGISLATIVE BODIES
The Brown Act applies to the legislative bodies of local agencies. It defines “legislative body” broadly to include just about every type of decision-making body of a local agency.1 What is a “legislative body” of a local agency?
A “legislative body” includes:
The “governing body of a local agency” and certain of its subsidiary bodies; “or any other local body created by state or federal statute.”2 This
includes city councils, boards of supervisors, school boards and boards of trustees of special districts. A “local agency” is any city, county, city and county, school district, municipal corporation, successor agency to a redevelopment agency, district, political subdivision or other local public agency.3
A housing authority is a local agency under the Brown Act even though it is created by and is an agent of the state.4 The California
Attorney General has opined that air pollution control districts and regional open space districts are also covered.5
Entities created pursuant
to joint powers agreements are also local agencies within the meaning of the Brown Act.6
Newly-elected members of a legislative body who have not yet assumed office must conform to the requirements of the Brown Act as if already in office.7 Thus, meetings
between incumbents and newly-elected members of a legislative body, such as a meeting between two outgoing members and a member-elect of a five-member body, could violate the Brown Act.
Q. On the morning following the election to a five-member legislative body of a local agency, two successful candidates, neither an incumbent, meet with an incumbent member of the legislative body for a celebratory breakfast. Does this violate the Brown Act?
A. It might, and absolutely would if the conversation turns to agency business. Even though the candidates-elect have not officially been sworn in, the Brown Act applies.
If purely a social event, there is no violation but it would be preferable if others were invited to attend to avoid the appearance of impropriety. Appointed bodies — whether permanent or temporary, decision-making or advisory — including planning commissions, civil service commissions and other subsidiary committees, boards, and bodies. Volunteer groups, executive search committees, task forces, and blue ribbon committees created by formal action of the governing body are legislative bodies. When the members of two or more legislative bodies are appointed to serve on an entirely separate advisory group, the resulting body may be subject to the Chapter 2
LEGISLATIVE BODIES
PRACTICE TIP: The prudent
presumption is that an advisory
committee or task force is
subject to the Brown Act. Even
if one clearly is not, it may want
to comply with the Brown Act.
Public meetings may reduce the
possibility of misunderstandings
and controversy.
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OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 13
Brown Act. In one reported case, a city council created a committee of two members of the city council and two members of the city planning commission to review qualifications of prospective planning commissioners and make recommendations to the council. The court held that their joint mission made them a legislative body subject to the Brown Act.
Had the two committees remained separate; and met only to exchange information and report back to their respective boards, they would have been exempt from the Brown Act.8 Standing committees of a legislative body, irrespective of their composition, which have either: (1) a continuing subject matter jurisdiction; or (2) a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body.9 Even if it comprises
less than a quorum of the governing body, a standing committee is subject to the Brown Act. For example, if a governing body creates long-term committees on budget and finance or on public safety, those are standing committees subject to the Brown Act. Further, according to the California Attorney General, function over form controls. For example, a statement by the legislative body that the advisory committee “shall not exercise continuing subject matter jurisdiction” or the fact that the committee does not have a fixed meeting schedule is not determinative.10 “Formal action” by a legislative body includes authorization given to the agency’s executive officer to appoint an advisory committee pursuant to agency-adopted policy.11
The governing body of any private organization either: (1) created by the legislative body in order to exercise authority that may lawfully be delegated by such body to a private corporation, limited liability company or other entity; or (2) that receives agency funding and whose governing board includes a member of the legislative body of the local agency appointed by the legislative body as a full voting member of the private entity’s governing board.12 These include some nonprofit corporations created by local agencies.13 If a local agency contracts with a private firm for a service (for example, payroll, janitorial, or food services), the private firm is not covered by the Brown Act.14 When a member of a legislative body sits on a board of a private organization as a private person and is not appointed by the legislative body, the board will not be subject to the Brown Act. Similarly, when the legislative body appoints someone other than one of its own members to such boards, the Brown Act does not apply. Nor does it apply when a private organization merely receives agency funding.15
Q: The local chamber of commerce is funded in part by the city. The mayor sits on the chamber’s board of directors. Is the chamber board a legislative body subject to the Brown Act?
A: Maybe. If the chamber’s governing documents require the mayor to be on the board and the city council appoints the mayor to that position, the board is a legislative body. If, however, the chamber board independently appoints the mayor to its board, or the mayor attends chamber board meetings in a purely advisory capacity, it is not.
Q: If a community college district board creates an auxiliary organization to operate a campus bookstore or cafeteria, is the board of the organization a legislative body? A: Yes. But, if the district instead contracts with a private firm to operate the bookstore or cafeteria, the Brown Act would not apply to the private firm. Certain types of hospital operators. A lessee of a hospital (or portion of a hospital) PRACTICE TIP: It can be
difficult to determine whether
a subcommittee of a body falls
into the category of a standing
committee or an exempt
temporary committee. Suppose a
committee is created to explore
the renewal of a franchise or a
topic of similarly limited scope
and duration. Is it an exempt
temporary committee or a nonexempt standing committee? The answer may depend on factors
such as how meeting schedules
are determined, the scope of the
committee’s charge, or whether
the committee exists long enough
to have “continuing jurisdiction.”
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14 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 2: LEGISLATIVE BODIES
first leased under Health and Safety Code subsection 32121(p) after January 1, 1994, which exercises “material authority” delegated to it by a local agency, whether or not such lessee is organized and operated by the agency or by a delegated authority.16 What is not a “legislative body” for purposes of the Brown Act? A temporary advisory committee composed solely of less than a quorum of the legislative body that serves a limited or single purpose, that is not perpetual, and that will be dissolved once its specific task is completed is not subject to the Brown Act.17 Temporary committees are sometimes called ad hoc committees, a term not used in the Brown Act. Examples include an advisory committee composed of less than a quorum created to interview candidates for a vacant position or to meet with representatives of other entities to exchange information on a matter of concern to the agency, such as traffic congestion.18
Groups advisory to a single decision-maker or appointed by staff are not covered. The Brown Act applies only to committees created by formal action of the legislative body and not to committees created by others. A committee advising a superintendent of schools would not be covered by the Brown Act. However, the same committee, if created by formal action of the school board, would be covered.19
Q. A member of the legislative body of a local agency informally establishes an advisory committee of five residents to advise her on issues as they arise. Does the Brown Act apply to this committee?
A. No, because the committee has not been established by formal action of the legislative body.
Q. During a meeting of the city council, the council directs the city manager to form an advisory committee of residents to develop recommendations for a new ordinance. The city manager forms the committee and appoints its members; the committee is instructed to direct its recommendations to the city manager. Does the Brown Act apply to this committee?
A. Possibly, because the direction from the city council might be regarded as a formal action of the body notwithstanding that the city manager controls the committee. Individual decision makers who are not elected or appointed members of a legislative body are not covered by the Brown Act. For example, a disciplinary hearing presided over by a department head or a meeting of agency department heads are not subject to the Brown Act since such assemblies are not those of a legislative body.20 Public employees, each acting individually and not engaging in collective deliberation on a specific issue, such as the drafting and review of an agreement, do not constitute a legislative body under the Brown Act, even if the drafting and review process was established by a legislative body.21
County central committees of political parties are also not Brown Act bodies.22 ENDNOTES:
1 Taxpayers for Livable Communities v. City of Malibu (2005) 126 Cal.App.4th 1123, 1127 August 08, 2023 Regular Meeting of the Lindsay City Council
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 15
2 California Government Code section 54952(a) and (b)
3 California Government Code section 54951; Health and Safety Code section 34173(g) (successor agencies to former redevelopment agencies subject to the Brown Act). But see Education Code section 35147, which exempts certain school councils and school site advisory committees from the Brown Act and imposes upon them a separate set of rules.
4 Torres v. Board of Commissioners of Housing Authority of Tulare County (1979) 89 Cal.App.3d 545, 549- 550
5 71 Ops.Cal.Atty.Gen. 96 (1988); 73 Ops.Cal.Atty.Gen. 1 (1990) 6 McKee v. Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force (2005) 134 Cal.
App.4th 354, 362
7 California Government Code section 54952.1
8 Joiner v. City of Sebastopol (1981) 125 Cal.App.3d 799, 804-805 9 California Government Code section 54952(b)
10 79 Ops.Cal.Atty.Gen. 69 (1996)
11 Frazer v. Dixon Unified School District (1993) 18 Cal.App.4th 781, 793 12 California Government Code section 54952(c)(1). Regarding private organizations that receive local agency funding, the same rule applies to a full voting member appointed prior to February 9, 1996 who, after that date, is made a non-voting board member by the legislative body. California Government Code section 54952(c)(2)
13 California Government Code section 54952(c)(1)(A); International Longshoremen’s and Warehousemen’s Union v. Los Angeles Export Terminal, Inc. (1999) 69 Cal.App.4th 287, 300; Epstein v. Hollywood Entertainment Dist. II Business Improvement District (2001) 87 Cal.App.4th 862, 876; see also 85 Ops.Cal.Atty.Gen. 55 (2002)
14 International Longshoremen’s and Warehousemen’s Union v. Los Angeles Export Terminal (1999) 69 Cal.
App.4th 287, 300 fn. 5
15 “The Brown Act, Open Meetings for Local Legislative Bodies,” California Attorney General’s Office (2003), p. 7
16 California Government Code section 54952(d)
17 California Government Code section 54952(b); see also Freedom Newspapers, Inc. v. Orange County Employees Retirement System Board of Directors (1993) 6 Cal.4th 821, 832. 18 Taxpayers for Livable Communities v. City of Malibu (2005) 126 Cal.App.4th 1123, 1129 19 56 Ops.Cal.Atty.Gen. 14, 16-17 (1973)
20 Wilson v. San Francisco Municipal Railway (1973) 29 Cal.App.3d 870, 878-879 21 Golightly v. Molina (2014) 229 Cal.App.4th 1501, 1513 22 59 Ops.Cal.Atty.Gen. 162, 164 (1976)
Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov.
August 08, 2023 Regular Meeting of the Lindsay City Council
16 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
August 08, 2023 Regular Meeting of the Lindsay City Council
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT17 17 Chapter 3
MEETINGS
Brown Act meetings ......................................................................................................... 18 Six exceptions to the meeting definition.......................................................................... 18 Collective briefings............................................................................................................ 21 Retreats or workshops of legislative bodies..................................................................... 21 Serial meetings ................................................................................................................. 21 Informal gatherings........................................................................................................... 24 Technological conferencing .............................................................................................. 24 Location of meetings ........................................................................................................ 25 August 08, 2023 Regular Meeting of the Lindsay City Council
18 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 3: MEETINGS
The Brown Act only applies to meetings of local legislative bodies. The Brown Act defines a meeting as: “… and any congregation of a majority of the members of a legislative body at the same time and location, including teleconference location as permitted by Section 54953, to hear, discuss, deliberate, or take any action on any item that is within the subject matter jurisdiction of the legislative body.”1
The term “meeting” is not limited to
gatherings at which action is taken but includes deliberative gatherings as well. A hearing before an individual hearing officer is not a meeting under the Brown Act because it is not a hearing before a legislative body.2 Brown Act meetings
Brown Act meetings include a legislative body’s regular meetings, special meetings, emergency meetings, and adjourned meetings.
“Regular meetings” are meetings occurring at the dates, times, and location set by resolution, ordinance, or other formal action by the legislative body and are subject to 72- hour posting requirements.3
“Special meetings” are meetings called by the presiding officer or majority of the legislative body to discuss only discrete items on the agenda under the Brown Act’s notice requirements for special meetings and are subject to 24-hour posting requirements.4 “Emergency meetings” are a limited class of meetings held when prompt action is needed due to actual or threatened disruption of public facilities and are held on little notice.5 “Adjourned meetings” are regular or special meetings that have been adjourned or re-adjourned to a time and place specified in the order of adjournment, with no agenda required for regular meetings adjourned for less than five calendar days as long as no additional business is transacted.6
Six exceptions to the meeting definition
The Brown Act creates six exceptions to the meeting definition:7 Individual Contacts
The first exception involves individual contacts between a member of the legislative body and any other person. The Brown Act does not limit a legislative body member acting on his or her own. This exception recognizes the right to confer with constituents, advocates, consultants, news reporters, local agency staff, or a colleague.
Individual contacts, however, cannot be used to do in stages what would be prohibited in one step. For example, a series of individual contacts that leads to discussion, deliberation, or action among a majority of the members of a legislative body is prohibited. Such serial meetings are discussed below.
Chapter 3
MEETINGS
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Conferences
The second exception allows a legislative body majority to attend a conference or similar gathering open to the public that addresses issues of general interest to the public or to public agencies of the type represented by the legislative body.
Among other things, this exception permits legislative body members to attend annual association conferences of city, county, school, community college, and other local agency officials, so long as those meetings are open to the public. However, a majority of members cannot discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within their local agency’s subject matter jurisdiction.
Community Meetings
The third exception allows a legislative body majority to attend an open and publicized meeting held by another organization to address a topic of local community concern. A majority cannot discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within the legislative body’s subject matter jurisdiction. Under this exception, a legislative body majority may attend a local service club meeting or a local candidates’ night if the meetings are open to the public. “I see we have four distinguished members of the city council at our meeting tonight,” said the chair of the Environmental Action Coalition.“I wonder if they have anything to say about the controversy over enacting a slow growth ordinance?”
The Brown Act permits a majority of a legislative body to attend and speak at an open and publicized meeting conducted by another organization. The Brown Act may nevertheless be violated if a majority discusses, deliberates, or takes action on an item during the meeting of the other organization. There is a fine line between what is permitted and what is not; hence, members should exercise caution when participating in these types of events.
Q. The local chamber of commerce sponsors an open and public candidate debate during an election campaign. Three of the five agency members are up for re-election and all three participate. All of the candidates are asked their views of a controversial project scheduled for a meeting to occur just after the election. May the three incumbents answer the question?
A. Yes, because the Brown Act does not constrain the incumbents from expressing their views regarding important matters facing the local agency as part of the political process the same as any other candidates.
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20 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 3: MEETINGS
Other Legislative Bodies
The fourth exception allows a majority of a legislative body to attend an open and publicized meeting of: (1) another body of the local agency; and (2) a legislative body of another local agency.8
Again, the majority
cannot discuss among themselves, other than as part of the scheduled meeting, business of a specific nature that is within their subject matter jurisdiction. This exception allows, for example, a city council or a majority of a board of supervisors to attend a controversial meeting of the planning commission.
Nothing in the Brown Act prevents the majority of a legislative body from sitting together at such a meeting. They may choose not to, however, to preclude any possibility of improperly discussing local agency business and to avoid the appearance of a Brown Act violation. Further, aside from the Brown Act, there may be other reasons, such as due process considerations, why the members should avoid giving public testimony or trying to influence the outcome of proceedings before a subordinate body.
Q. The entire legislative body intends to testify against a bill before the Senate Local Government Committee in Sacramento. Must this activity be noticed as a meeting of the body?
A. No, because the members are attending and participating in an open meeting of another governmental body which the public may attend.
Q. The members then proceed upstairs to the office of their local Assembly member to discuss issues of local interest. Must this session be noticed as a meeting and be open to the public?
A. Yes, because the entire body may not meet behind closed doors except for proper closed sessions. The same answer applies to a private lunch or dinner with the Assembly member.
Standing Committees
The fifth exception authorizes the attendance of a majority at an open and noticed meeting of a standing committee of the legislative body, provided that the legislative body members who are not members of the standing committee attend only as observers (meaning that they cannot speak or otherwise participate in the meeting).9
Q. The legislative body establishes a standing committee of two of its five members, which meets monthly. A third member of the legislative body wants to attend these meetings and participate. May she?
A. She may attend, but only as an observer; she may not participate.
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Social or Ceremonial Events
The final exception permits a majority of a legislative body to attend a purely social or ceremonial occasion. Once again, a majority cannot discuss business among themselves of a specific nature that is within the subject matter jurisdiction of the legislative body.
Nothing in the Brown Act prevents a majority of members from attending the same football game, party, wedding, funeral, reception, or farewell. The test is not whether a majority of a legislative body attends the function, but whether business of a specific nature within the subject matter jurisdiction of the body is discussed. So long as no such business is discussed, there is no violation of the Brown Act.
Grand Jury Testimony
In addition, members of a legislative body, either individually or collectively, may give testimony in private before a grand jury.10 This is the equivalent of a seventh exception to the Brown Act’s definition of a “meeting.”
Collective briefings
None of these exceptions permits a majority of a legislative body to meet together with staff in advance of a meeting for a collective briefing. Any such briefings that involve a majority of the body in the same place and time must be open to the public and satisfy Brown Act meeting notice and agenda requirements.
Retreats or workshops of legislative bodies
Gatherings by a majority of legislative body members at the legislative body’s retreats, study sessions, or workshops are covered under the Brown Act. This is the case whether the retreat, study session, or workshop focuses on long-range agency planning, discussion of critical local issues, or team building and group dynamics.11
Q. The legislative body wants to hold a team-building session to improve relations among its members. May such a session be conducted behind closed doors? A. No, this is not a proper subject for a closed session, and there is no other basis to exclude the public. Council relations are a matter of public business.
Serial meetings
One of the most frequently asked questions about the Brown Act involves serial meetings. At any one time, such meetings involve only a portion of a legislative body, but eventually involve a majority. The Brown Act provides that “[a] majority of the members of a legislative body shall not, outside a meeting … use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.”12 The problem with serial meetings is the process, which deprives the public of an opportunity for meaningful observation of and participation in legislative body decision-making.
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22 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 3: MEETINGS
The serial meeting may occur by either a “daisy chain” or a “hub and spoke” sequence. In the daisy chain scenario, Member A contacts Member B, Member B contacts Member C, Member C contacts Member D and so on, until a quorum has discussed, deliberated, or taken action on an item within the legislative body’s subject matter jurisdiction. The hub and spoke process involves at least two scenarios. In the first scenario, Member A (the hub) sequentially contacts Members B, C, and D and so on (the spokes), until a quorum has been contacted. In the second scenario, a staff member (the hub), functioning as an intermediary for the legislative body or one of its members, communicates with a majority of members (the spokes)
one-by-one for for discussion, deliberation, or a decision on a proposed action.13 Another example of a serial meeting is when a chief executive officer (the hub) briefs a majority of members (the spokes) prior to a formal meeting and, in the process, information about the members’ respective views is revealed. Each of these scenarios violates the Brown Act.
A legislative body member has the right, if not the duty, to meet with constituents to address their concerns. That member also has the right to confer with a colleague (but not with a majority of the body, counting the member) or appropriate staff about local agency business. An employee or official of a local agency may engage in separate
conversations or communications outside of an open and
noticed meeting “with members of a legislative body in
order to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body.”14 The Brown Act has been violated, however, if several one-on-one meetings or conferences leads to a discussion, deliberation, or action by a majority. In one case, a violation occurred when a quorum of a city council, by a letter that had been circulated among members outside of a formal meeting, directed staff to take action in an eminent domain proceeding.15 A unilateral written communication to the legislative body, such as an informational or advisory memorandum, does not violate the Brown Act.16 Such a memo, however, may be a public record.17 The phone call was from a lobbyist. “Say, I need your vote for that project in the south area. How about it?”
“Well, I don’t know,” replied Board Member Aletto. “That’s kind of a sticky proposition. You sure you need my vote?”
“Well, I’ve got Bradley and Cohen lined up and another vote leaning. With you I’d be over the top.”
Moments later, the phone rings again. “Hey, I’ve been hearing some rumbles on that south area project,” said the newspaper reporter. “I’m counting noses.
How are you voting on it?”
Neither the lobbyist nor the reporter has violated the Brown Act, but they are facilitating August 08, 2023 Regular Meeting of the Lindsay City Council
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 23
a violation. The board member may have violated the Brown Act by hearing about the positions of other board members and indeed coaxing the lobbyist to reveal the other board members’ positions by asking “You sure you need my vote?” The prudent course is to avoid such leading conversations and to caution lobbyists, staff, and news media against revealing such positions of others.
The mayor sat down across from the city manager. “From now on,” he declared, “I want you to provide individual briefings on upcoming agenda items. Some of this material is very technical, and the council members don’t want to sound like idiots asking about it in public. Besides that, briefings will speed up the meeting.”
Agency employees or officials may have separate conversations or communications outside of an open and noticed meeting “with members of a legislative body in order to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body.”18 Members should always be vigilant when discussing local agency business with anyone to avoid conversations that could lead to a discussion, deliberation or action taken among the majority of the legislative body. “Thanks for the information,” said Council Member Kim. “These zoning changes can be tricky, and now I think I’m better equipped to make the right decision.” “Glad to be of assistance,” replied the planning director. “I’m sure Council Member Jones is OK with these changes. How are you leaning?” “Well,” said Council Member Kim, “I’m leaning toward approval. I know that two of my colleagues definitely favor approval.”
The planning director should not disclose Jones’ prospective vote, and Kim should not disclose the prospective votes of two of her colleagues. Under these facts, there likely has been a serial meeting in violation of the Brown Act.
Q. The agency’s website includes a chat room where agency employees and officials participate anonymously and often discuss issues of local agency business. Members of the legislative body participate regularly. Does this scenario present a potential for violation of the Brown Act?
A. Yes, because it is a technological device that may serve to allow for a majority of members to discuss, deliberate, or take action on matters of agency business.
Q. A member of a legislative body contacts two other members on a five-member body relative to scheduling a special meeting. Is this an illegal serial meeting? A. No, the Brown Act expressly allows a majority of a body to call a special meeting, though the members should avoid discussing the merits of what is to be taken up at the meeting.
PRACTICE TIP: When briefing
legislative body members,
staff must exercise care not to
disclose other members’ views
and positions.
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CHAPTER 3: MEETINGS
Particular care should be exercised when staff briefings of legislative body members occur by email because of the ease of using the “reply to all” button that may inadvertently result in a Brown Act violation.
Informal gatherings
Often members are tempted to mix business with pleasure — for example, by holding a postmeeting gathering. Informal gatherings at which local agency business is discussed or transacted violate the law if they are not conducted in conformance with the Brown Act.19 A luncheon gathering in a crowded dining room violates the Brown Act if the public does not have an opportunity to attend, hear, or participate in the deliberations of members.
Thursday at 11:30 a.m., as they did every week, the board of directors of the Dry Gulch Irrigation District trooped into Pop’s Donut Shoppe for an hour of talk and fellowship. They sat at the corner window, fronting on Main and Broadway, to show they had nothing to hide. Whenever he could, the managing editor of the weekly newspaper down the street hurried over to join the board.
A gathering like this would not violate the Brown Act if board members scrupulously avoided talking about irrigation district issues — which might be difficult. This kind of situation should be avoided. The public is unlikely to believe the board members could meet regularly without discussing public business. A newspaper executive’s presence in no way lessens the potential for a violation of the Brown Act.
Q. The agency has won a major victory in the Supreme Court on an issue of importance.
The presiding officer decides to hold an impromptu press conference in order to make a statement to the print and broadcast media. All the other members show up in order to make statements of their own and be seen by the media. Is this gathering illegal? A. Technically there is no exception for this sort of gathering, but as long as members do not state their intentions as to future action to be taken and the press conference is open to the public, it seems harmless.
Technological conferencing
Except for certain nonsubstantive purposes, such as scheduling a special meeting, a conference call including a majority of the members of a legislative body is an unlawful meeting. But, in an effort to keep up with information age technologies, the Brown Act specifically allows a legislative body to use any type of teleconferencing to meet, receive public comment and testimony, deliberate, or conduct a closed session.20 While the Brown Act contains specific requirements for conducting a teleconference, the decision to use teleconferencing is entirely discretionary with the body. No person has a right under the Brown Act to have a meeting by teleconference.
“Teleconference” is defined as “a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either August 08, 2023 Regular Meeting of the Lindsay City Council
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 25
audio or video, or both.”21 In addition to the specific requirements relating to teleconferencing, the meeting must comply with all provisions of the Brown Act otherwise applicable. The Brown Act contains the following teleconferencing requirements:22 Teleconferencing may be used for all purposes during any meeting; At least a quorum of the legislative body must participate from locations within the local agency’s jurisdiction;
Additional teleconference locations may be made available for the public; Each teleconference location must be specifically identified in the notice and agenda of the meeting, including a full address and room number, as may be applicable; Agendas must be posted at each teleconference location, even if a hotel room or a residence;
Each teleconference location, including a hotel room or residence, must be accessible to the public and have technology, such as a speakerphone, to enable the public to participate; The agenda must provide the opportunity for the public to address the legislative body directly at each teleconference location; and
All votes must be by roll call.
Q. A member on vacation wants to participate in a meeting of the legislative body and vote by cellular phone from her car while driving from Washington, D.C. to New York. May she? A. She may not participate or vote because she is not in a noticed and posted teleconference location.
The use of teleconferencing to conduct a legislative body meeting presents a variety of issues beyond the scope of this guide to discuss in detail. Therefore, before teleconferencing a meeting, legal counsel for the local agency should be consulted.
Location of meetings
The Brown Act generally requires all regular and special meetings of a legislative body, including retreats and workshops, to be held within the boundaries of the territory over which the local agency exercises jurisdiction.23
An open and publicized meeting of a legislative body may be held outside of agency boundaries if the purpose of the meeting is one of the following:24
Comply with state or federal law or a court order, or attend a judicial conference or administrative proceeding in which the local agency is a party; Inspect real or personal property that cannot be conveniently brought into the local agency’s territory, provided the meeting is limited to items relating to that real or personal property; Q. The agency is considering approving a major retail mall. The developer has built other similar malls, and invites the entire legislative body to visit a mall outside the jurisdiction. May the entire body go?
A. Yes, the Brown Act permits meetings outside the boundaries of the agency for specified reasons and inspection of property is one such reason. The field trip must be treated as a meeting and the public must be allowed to attend.
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CHAPTER 3: MEETINGS
Participate in multiagency meetings or discussions; however, such meetings must be held within the boundaries of one of the participating agencies, and all of those agencies must give proper notice;
Meet in the closest meeting facility if the local agency has no meeting facility within its boundaries, or meet at its principal office if that office is located outside the territory over which the agency has jurisdiction;
Meet with elected or appointed federal or California officials when a local meeting would be impractical, solely to discuss a legislative or regulatory issue affecting the local agency and over which the federal or state officials have jurisdiction; Meet in or nearby a facility owned by the agency, provided that the topic of the meeting is limited to items directly related to the facility; or
Visit the office of its legal counsel for a closed session on pending litigation, when to do so would reduce legal fees or costs.25
In addition, the governing board of a school or community college district may hold meetings outside of its boundaries to attend a conference on nonadversarial collective bargaining techniques, interview candidates for school district superintendent, or interview a potential employee from another district.26 A school board may also interview members of the public residing in another district if the board is considering employing that district’s superintendent.
Similarly, meetings of a joint powers authority can occur within the territory of at least one of its member agencies, and a joint powers authority with members throughout the state may meet anywhere in the state.27
Finally, if a fire, flood, earthquake, or other emergency makes the usual meeting place unsafe, the presiding officer can designate another meeting place for the duration of the emergency. News media that have requested notice of meetings must be notified of the designation by the most rapid means of communication available.28
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Endnotes:
1 California Government Code section 54952.2(a)
2 Wilson v. San Francisco Municipal Railway (1973) 29 Cal.App.3d 870 3 California Government Code section 54954(a)
4 California Government Code section 54956
5 California Government Code section 54956.5
6 California Government Code section 54955
7 California Government Code section 54952.2(c)
8 California Government Code section 54952.2(c)(4)
9 California Government Code section 54952.2(c)(6)
10 California Government Code section 54953.1
11 “The Brown Act,” California Attorney General (2003), p. 10 12 California Government Code section 54952.2(b)(1)
13 Stockton Newspaper Inc. v. Redevelopment Agency (1985) 171 Cal.App.3d 95 14 California Government Code section 54952.2(b)(2)
15 Common Cause v. Stirling (1983) 147 Cal.App.3d 518
16 Roberts v. City of Palmdale (1993) 5 Cal.4th 363
17 California Government Code section 54957.5(a)
18 California Government Code section 54952.2(b)(2)
19 California Government Code section 54952.2; 43 Ops.Cal.Atty.Gen. 36 (1964) 20 California Government Code section 54953(b)(1)
21 California Government Code section 54953(b)(4)
22 California Government Code section 54953
23 California Government Code section 54954(b)
24 California Government Code section 54954(b)(1)-(7)
25 94 Ops.Cal.Atty.Gen. 15 (2011)
26 California Government Code section 54954(c)
27 California Government Code section 54954(d)
28 California Government Code section 54954(e)
Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov.
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28 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
August 08, 2023 Regular Meeting of the Lindsay City Council
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT29 29 Chapter 4
AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Agendas for regular meetings .......................................................................................... 30 Mailed agenda upon written request ............................................................................... 31 Notice requirements for special meetings ....................................................................... 32 Notices and agendas for adjourned and continued meetings and hearings ................... 32 Notice requirements for emergency meetings ................................................................ 32 Notice of compensation for simultaneous or serial meetings ......................................... 33 Educational agency meetings........................................................................................... 33 Notice requirements for tax or assessment meetings and hearings............................... 33 Non-agenda items............................................................................................................. 34 Responding to the public .................................................................................................. 34 The right to attend and observe meetings ....................................................................... 35 Records and recordings .................................................................................................... 36 The public’s place on the agenda ..................................................................................... 37 August 08, 2023 Regular Meeting of the Lindsay City Council
30 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Chapter 4
AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Effective notice is essential for an open and public meeting.
Whether a meeting is open or how the public may participate in that meeting is academic if nobody knows about the meeting.
Agendas for regular meetings
Every regular meeting of a legislative body of a local agency — including advisory committees, commissions, or boards, as well as standing committees of legislative bodies — must be preceded by a posted agenda that advises the public of the meeting and the matters to be transacted or discussed.
The agenda must be posted at least 72 hours before the regular meeting in a location “freely accessible to members of the public.”1 The courts have not definitively interpreted the “freely accessible” requirement. The California Attorney General has interpreted this provision to require posting in a location accessible to the public 24 hours a day during the 72-hour period, but any of the 72 hours may fall on a weekend.2 This provision may be satisfied by posting
on a touch screen electronic kiosk accessible without charge to the public 24 hours a day during the 72-hour period.3
While posting an agenda on an agency’s Internet website will not, by itself, satisfy the “freely accessible” requirement since there is no universal access to the internet, an agency has a supplemental obligation to post the agenda on its website if: (1) the local agency has a website; and (2) the legislative body whose meeting is the subject of the agenda is either (a) a governing body, or (b) has members that are compensated, with one or more members that are also members of a governing body.4
Q. May the meeting of a governing body go forward if its agenda was either inadvertently not posted on the city’s website or if the website was not operational during part or all of the 72-hour period preceding the meeting?
A. At a minimum, the Brown Act calls for “substantial compliance” with all agenda posting requirements, including posting to the agency website.5 Should website technical
difficulties arise, seek a legal opinion from your agency attorney. The California Attorney General has opined that technical difficulties which cause the website agenda to become inaccessible for a portion of the 72 hours preceding a meeting do not automatically or inevitably lead to a Brown Act violation, provided the agency can demonstrate substantial compliance.6
This inquiry requires a fact-specific examination of whether the agency or its legislative body made “reasonably effective efforts to notify interested persons of a public meeting” through online posting and other available means.7 The Attorney General’s
opinion suggests that this examination would include an evaluation of how long a technical problem persisted, the efforts made to correct the problem or otherwise ensure that the public was informed, and the actual effect the problem had on public August 08, 2023 Regular Meeting of the Lindsay City Council
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 31
awareness, among other factors.8 The City Attorneys’ Department has taken the position that obvious website technical difficulties do not require cancellation of a meeting, provided that the agency meets all other Brown Act posting requirements and the agenda is available on the website once the technical difficulties are resolved.
The agenda must state the meeting time and place and must contain “a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session.”9
Special care should be taken to describe on the agenda each distinct action to be taken by the legislative body, and avoid overbroad descriptions of a “project” if the “project” is actually a set of distinct actions that must each be separately listed on the agenda.10
Q. The agenda for a regular meeting contains the following items of business:
• Consideration of a report regarding traffic on Eighth Street; and • Consideration of contract with ABC Consulting.
Are these descriptions adequate?
A. If the first is, it is barely adequate. A better description would provide the reader with some idea of what the report is about and what is being recommended. The second is not adequate. A better description might read “consideration of a contract with ABC Consulting in the amount of $50,000 for traffic engineering services regarding traffic on Eighth Street.”
Q. The agenda includes an item entitled City Manager’s Report, during which time the city manager provides a brief report on notable topics of interest, none of which are listed on the agenda.
Is this permissible?
A. Yes, so long as it does not result in extended discussion or action by the body.
A brief general description may not be sufficient for closed session agenda items. The Brown Act provides safe harbor language for the various types of permissible closed sessions. Substantial compliance with the safe harbor language is recommended to protect legislative bodies and elected officials from legal challenges.
Mailed agenda upon written request
The legislative body, or its designee, must mail a copy of the agenda or, if requested, the entire agenda packet, to any person who has filed a written request for such materials. These copies shall be mailed at the time the agenda is posted. If requested, these materials must be made available in appropriate alternative formats to persons with disabilities.
A request for notice is valid for one calendar year and renewal requests must be filed following January 1 of each year. The legislative body may establish a fee to recover the cost of providing the service. Failure of the requesting person to receive the agenda does not constitute grounds for invalidation of actions taken at the meeting.11 PRACTICE TIP: Putting together
a meeting agenda requires
careful thought.
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CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Notice requirements for special meetings
There is no express agenda requirement for special meetings, but the notice of the special meeting effectively serves as the agenda and limits the business that may be transacted or discussed.
Written notice must be sent to each member of the legislative body (unless waived in writing by that member) and to each local newspaper of general circulation, and radio or television station that has requested such notice in writing. This notice must be delivered by personal delivery or any other means that ensures receipt, at least 24 hours before the time of the meeting.
The notice must state the time and place of the meeting, as well as all business to be transacted or discussed. It is recommended that the business to be transacted or discussed be described in the same manner that an item for a regular meeting would be described on the agenda — with a brief general description. As noted above, closed session items should be described in accordance with the Brown Act’s safe harbor provisions to protect legislative bodies and elected officials from challenges of noncompliance with notice requirements.
The special meeting notice must also be posted at least 24 hours prior to the special meeting using the same methods as posting an agenda for a regular meeting: (1) at a site that is freely accessible to the public, and (2) on the agency’s website if: (1) the local agency has a website; and (2) the legislative body whose meeting is the subject of the agenda is either (a) a governing body, or (b) has members that are compensated, with one or more members that are also members of a governing body.12 Notices and agendas for adjourned and continued meetings and hearings
A regular or special meeting can be adjourned and re-adjourned to a time and place specified in the order of adjournment.13 If no time is stated, the meeting is continued to the hour for regular meetings. Whoever is present (even if they are less than a quorum) may so adjourn a meeting; if no member of the legislative body is present, the clerk or secretary may adjourn the meeting. If a meeting is adjourned for less than five calendar days, no new agenda need be posted so long as a new item of business is not introduced.14 A copy of the order of adjournment must be posted within 24 hours after the adjournment, at or near the door of the place where the meeting was held.
A hearing can be continued to a subsequent meeting. The process is the same as for continuing adjourned meetings, except that if the hearing is continued to a time less than 24 hours away, a copy of the order or notice of continuance must be posted immediately following the meeting.15 Notice requirements for emergency meetings
The special meeting notice provisions apply to emergency meetings, except for the 24-hour notice.16 News media that have requested written notice of special meetings must be notified by telephone at least one hour in advance of an emergency meeting, and all telephone numbers provided in that written request must be tried. If telephones are not working, the notice requirements are deemed waived. However, the news media must be notified as soon as possible of the meeting and any action taken.
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News media may make a practice of having written requests on file for notification of special or emergency meetings. Absent such a request, a local agency has no legal obligation to notify news media of special or emergency meetings — although notification may be advisable in any event to avoid controversy.
Notice of compensation for simultaneous or serial meetings A legislative body that has convened a meeting and whose membership constitutes a quorum of another legislative body, may convene a simultaneous or serial meeting of the other legislative body only after a clerk or member of the convened legislative body orally announces: (1) the amount of compensation or stipend, if any, that each member will be entitled to receive as a result of convening the meeting of the other legislative body; and (2) that the compensation or stipend is provided as a result of convening the meeting of that body.17 No oral disclosure of the amount of the compensation is required if the entire amount of such compensation is prescribed by statute and no additional compensation has been authorized by the local agency. Further, no disclosure is required with respect to reimbursements for actual and necessary expenses incurred in the performance of the member’s official duties, such as for travel, meals, and lodging.
Educational agency meetings
The Education Code contains some special agenda and special meeting provisions.18 However, they are generally consistent with the Brown Act. An item is probably void if not posted.19 A school district board must also adopt regulations to make sure the public can place matters affecting the district’s business on meeting agendas and to address the board on those items.20 Notice requirements for tax or assessment meetings and hearings The Brown Act prescribes specific procedures for adoption by a city, county, special district, or joint powers authority of any new or increased tax or assessment imposed on businesses.21 Though written broadly, these Brown Act provisions do not apply to new or increased real property taxes or assessments as those are governed by the California Constitution, Article XIIIC or XIIID, enacted by Proposition 218. At least one public meeting must be held to allow public testimony on the tax or assessment. In addition, there must also be at least 45 days notice of a public hearing at which the legislative body proposes to enact or increase the tax or assessment. Notice of the public meeting and public hearing must be provided at the same time and in the same document. The public notice relating to general taxes must be provided by newspaper publication. The public notice relating to new or increased business assessments must be provided through a mailing to all business owners proposed to be subject to the new or increased assessment. The agency may recover the reasonable costs of the public meetings, hearings, and notice.
The Brown Act exempts certain fees, standby or availability charges, recurring assessments, and new or increased assessments that are subject to the notice and hearing requirements of the Constitution.22 As a practical matter, the Constitution’s notice requirements have preempted this section of the Brown Act.
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CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Non-agenda items
The Brown Act generally prohibits any action or discussion of items not on the posted agenda.
However, there are three specific situations in which a legislative body can act on an item not on the agenda:23
When a majority decides there is an “emergency situation” (as defined for emergency meetings);
When two-thirds of the members present (or all members if less than two-thirds are present) determine there is a need for immediate action and the need to take action “came to the attention of the local agency subsequent to the agenda being posted.” This exception requires a degree of urgency. Further, an item cannot be considered under this provision if the legislative body or the staff knew about the need to take immediate action before the agenda was posted. A new need does not arise because staff forgot to put an item on the agenda or because an applicant missed a deadline; or When an item appeared on the agenda of, and was continued from, a meeting held not more than five days earlier.
The exceptions are narrow, as indicated by this list. The first two require a specific determination by the legislative body. That determination can be challenged in court and, if unsubstantiated, can lead to invalidation of an action.
“I’d like a two-thirds vote of the board, so we can go ahead and authorize commencement of phase two of the East Area Project,” said Chair Lopez. “It’s not on the agenda. But we learned two days ago that we finished phase one ahead of schedule — believe it or not — and I’d like to keep it that way. Do I hear a motion?”
The desire to stay ahead of schedule generally would not satisfy “a need for immediate action.” Too casual an action could invite a court challenge by a disgruntled resident.
The prudent course is to place an item on the agenda for the next meeting and not risk invalidation.
“We learned this morning of an opportunity for a state grant,” said the chief engineer at the regular board meeting, “but our application has to be submitted in two days. We’d like the board to give us the go ahead tonight, even though it’s not on the agenda.”
A legitimate immediate need can be acted upon even though not on the posted agenda by following a two-step process:
First, make two determinations: 1) that there is an immediate need to take action, and 2) that the need arose after the posting of the agenda. The matter is then placed on the agenda.
Second, discuss and act on the added agenda item.
Responding to the public
The public can talk about anything within the jurisdiction of the legislative body, but the legislative body generally cannot act on or discuss an item not on the agenda. What happens when a member of the public raises a subject not on the agenda?
PRACTICE TIP: Subject to very
limited exceptions, the Brown
Act prohibits any action or
discussion of an item not on the
posted agenda.
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While the Brown Act does not allow discussion or action on items not on the agenda, it does allow members of the legislative body, or its staff, to “briefly respond” to comments or questions from members of the public, provide a reference to staff or other resources for factual information, or direct staff to place the issue on a future agenda. In addition, even without a comment from the public, a legislative body member or a staff member may ask for information, request a report back, request to place a matter on the agenda for a subsequent meeting (subject to the body’s rules or procedures), ask a question for clarification, make a brief announcement, or briefly report on his or her own activities.24 However, caution should be used to avoid any discussion or action on such items.
Council Member Jefferson: I would like staff to respond to Resident Joe’s complaints during public comment about the repaving project on Elm Street — are there problems with this project?
City Manager Frank: The public works director has prepared a 45-minute power point presentation for you on the status of this project and will give it right now.
Council Member Brown: Take all the time you need; we need to get to the bottom of this. Our residents are unhappy.
It is clear from this dialogue that the Elm Street project was not on the council’s agenda, but was raised during the public comment period for items not on the agenda. Council Member A properly asked staff to respond; the city manager should have given at most a brief response. If a lengthy report from the public works director was warranted, the city manager should have stated that it would be placed on the agenda for the next meeting.
Otherwise, both the long report and the likely discussion afterward will improperly embroil the council in a matter that is not listed on the agenda.
The right to attend and observe meetings
A number of Brown Act provisions protect the public’s right to attend, observe, and participate in meetings.
Members of the public cannot be required to register their names, provide other information, complete a questionnaire, or otherwise “fulfill any condition precedent” to attending a meeting.
Any attendance list, questionnaire, or similar document posted at or near the entrance to the meeting room or circulated at a meeting must clearly state that its completion is voluntary and that all persons may attend whether or not they fill it out.25 No meeting can be held in a facility that prohibits attendance based on race, religion, color, national origin, ethnic group identification, age, sex, sexual orientation, or disability, or that is inaccessible to the disabled. Nor can a meeting be held where the public must make a payment or purchase in order to be present.26 This does not mean, however, that the public is entitled to free entry to a conference attended by a majority of the legislative body.27 While a legislative body may use teleconferencing in connection with a meeting, the public must be given notice of and access to the teleconference location. Members of the public must be able to address the legislative body from the teleconference location.28 August 08, 2023 Regular Meeting of the Lindsay City Council
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Action by secret ballot, whether preliminary or final, is flatly prohibited.29 All actions taken by the legislative body in open session, and the vote of each member thereon, must be disclosed to the public at the time the action is taken.30 Q: The agenda calls for election of the legislative body’s officers. Members of the legislative body want to cast unsigned written ballots that would be tallied by the clerk, who would announce the results. Is this voting process permissible? A: No. The possibility that a public vote might cause hurt feelings among members of the legislative body or might be awkward — or even counterproductive — does not justify a secret ballot.
The legislative body may remove persons from a meeting who willfully interrupt proceedings.31 Ejection is justified only when audience members actually disrupt the proceedings.32 If order cannot be restored after ejecting disruptive persons, the meeting room may be cleared. Members of the news media who have not participated in the disturbance must be allowed to continue to attend the meeting. The legislative body may establish a procedure to re-admit an individual or individuals not responsible for the disturbance.33
Records and recordings
The public has the right to review agendas and other writings distributed by any person to a majority of the legislative body in connection with a matter subject to discussion or consideration at a meeting. Except for privileged documents, those materials are public records and must be made available upon request without delay.34 A fee or deposit as permitted by the California Public Records Act may be charged for a copy of a public record.35 Q: In connection with an upcoming hearing on a discretionary use permit, counsel for the legislative body transmits a memorandum to all members of the body outlining the litigation risks in granting or denying the permit. Must this memorandum be included in the packet of agenda materials available to the public? A: No. The memorandum is a privileged attorney-client communication.
Q: In connection with an agenda item calling for the legislative body to approve a contract, staff submits to all members of the body a financial analysis explaining why the terms of the contract favor the local agency. Must this memorandum be included in the packet of agenda materials available to the public?
A. Yes. The memorandum has been distributed to the majority of the legislative body, relates to the subject matter of a meeting, and is not a privileged communication.
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A legislative body may discuss or act on some matters without considering written materials. But if writings are distributed to a majority of a legislative body in connection with an agenda item, they must also be available to the public. A non-exempt or otherwise privileged writing distributed to a majority of the legislative body less than 72 hours before the meeting must be made available for inspection at the time of distribution at a public office or location designated for that purpose; and the agendas for all meetings of the legislative body must include the address of this office or location.36 A writing distributed during a meeting must be made public:
At the meeting if prepared by the local agency or a member of its legislative body; or
After the meeting if prepared by some other person.37 Any tape or film record of an open and public meeting made for whatever purpose by or at the direction of the local agency is subject to the California Public Records Act; however, it may be erased or destroyed 30 days after the taping or recording. Any inspection of a video or tape recording is to be provided without charge on a video or tape player made available by the local agency.38 The agency may impose its ordinary charge for copies that is consistent with the California Public Records Act.39
In addition, the public is specifically allowed to use audio or video tape recorders or still or motion picture cameras at a meeting to record the proceedings, absent a reasonable finding by the legislative body that noise, illumination, or obstruction of view caused by recorders or cameras would persistently disrupt the proceedings.40
Similarly, a legislative body cannot prohibit or restrict the public broadcast of its open and public meetings without making a reasonable finding that the noise, illumination, or obstruction of view would persistently disrupt the proceedings.41
The public’s place on the agenda
Every agenda for a regular meeting must allow members of the public to speak on any item of interest, so long as the item is within the subject matter jurisdiction of the legislative body. Further, the public must be allowed to speak on a specific item of business before or during the legislative body’s consideration of it.42
Q. Must the legislative body allow members of the public to show videos or make a power point presentation during the public comment part of the agenda, as long as the subject matter is relevant to the agency and is within the established time limit? A. Probably, although the agency is under no obligation to provide equipment.
Moreover, the legislative body cannot prohibit public criticism of policies, procedures, programs, or services of the agency or the acts or omissions of the legislative body itself. But the Brown Act provides no immunity for defamatory statements.43
PRACTICE TIP: Public speakers
cannot be compelled to give
their name or address as a
condition of speaking. The clerk
or presiding officer may request
speakers to complete a speaker
card or identify themselves for
the record, but must respect a
speaker’s desire for anonymity.
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38 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Q. May the presiding officer prohibit a member of the audience from publicly criticizing an agency employee by name during public comments?
A. No, as long as the criticism pertains to job performance.
Q. During the public comment period of a regular meeting of the legislative body, a resident urges the public to support and vote for a candidate vying for election to the body. May the presiding officer gavel the speaker out of order for engaging in political campaign speech?
A. There is no case law on this subject. Some would argue that campaign issues are outside the subject matter jurisdiction of the body within the meaning of Section 54954.3(a).
Others take the view that the speech must be allowed under paragraph (c) of that section because it is relevant to the governing of the agency and an implicit criticism of the incumbents.
The legislative body may adopt reasonable regulations, including time limits, on public comments. Such regulations should be enforced fairly and without regard to speakers’ viewpoints. The legislative body has discretion to modify its regulations regarding time limits on public comment if necessary. For example, the time limit could be shortened to accommodate a lengthy agenda or lengthened to allow additional time for discussion on a complicated matter.44 The public does not need to be given an opportunity to speak on an item that has already been considered by a committee made up exclusively of members of the legislative body at a public meeting, if all interested members of the public had the opportunity to speak on the item before or during its consideration, and if the item has not been substantially changed.45
Notices and agendas for special meetings must also give members of the public the opportunity to speak before or during consideration of an item on the agenda but need not allow members of the public an opportunity to speak on other matters within the jurisdiction of the legislative body.46
Endnotes:
1 California Government Code section 54954.2(a)(1)
2 78 Ops.Cal.Atty.Gen. 327 (1995)
3 88 Ops.Cal.Atty.Gen. 218 (2005)
4 California Government Code sections 54954.2(a)(1) and 54954.2(d) 5 California Government Code section 54960.1(d)(1)
6 ___ Ops.Cal.Atty.Gen.___, No. 14-1204 (January 19, 2016) 16 Cal. Daily Op. Serv. 937 (Cal.A.G.), 2016 WL 375262
7 North Pacifica LLC v. California Coastal Commission (2008) 166 Cal.App.4th 1416, 1432 8 ___ Ops.Cal.Atty.Gen.___, No. 14-1204 (January 19, 2016) 16 Cal. Daily Op. Serv. 937 (Cal.A.G.), 2016 WL 375262, Slip Op. at p. 8
9 California Government Code section 54954.2(a)(1)
10 San Joaquin Raptor Rescue v. County of Merced (2013) 216 Cal.App.4th 1167 (legislative body’s approval of CEQA action (mitigated negative declaration) without specifically listing it on the agenda violates Brown Act, even if the agenda generally describes the development project that is the subject of the CEQA analysis.)
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OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 39
11 California Government Code section 54954.1
12 California Government Code sections 54956(a) and (c) 13 California Government Code section 54955
14 California Government Code section 54954.2(b)(3)
15 California Government Code section 54955.1
16 California Government Code section 54956.5
17 California Government Code section 54952.3
18 Education Code sections 35144, 35145 and 72129
19 Carlson v. Paradise Unified School District (1971) 18 Cal.App.3d 196 20 California Education Code section 35145.5
21 California Government Code section 54954.6
22 See Cal.Const.Art.XIIIC, XIIID and California Government Code section 54954.6(h) 23 California Government Code section 54954.2(b)
24 California Government Code section 54954.2(a)(2)
25 California Government Code section 54953.3
26 California Government Code section 54961(a); California Government Code section 11135(a) 27 California Government Code section 54952.2(c)(2)
28 California Government Code section 54953(b)
29 California Government Code section 54953(c)
30 California Government Code section 54953(c)(2)
31 California Government Code section 54957.9.
32 Norse v. City of Santa Cruz (9th Cir. 2010) 629 F.3d 966 (silent and momentary Nazi salute directed towards mayor is not a disruption); Acosta v. City of Costa Mesa (9th Cir. 2013) 718 F.3d 800 (city council may not prohibit “insolent” remarks by members of the public absent actual disruption). 33 California Government Code section 54957.9
34 California Government Code section 54957.5
35 California Government Code section 54957.5(d)
36 California Government Code section 54957.5(b)
37 California Government Code section 54957.5(c)
38 California Government Code section 54953.5(b)
39 California Government Code section 54957.5(d)
40 California Government Code section 54953.5(a)
41 California Government Code section 54953.6
42 California Government Code section 54954.3(a)
43 California Government Code section 54954.3(c)
44 California Government Code section 54954.3(b); Chaffee v. San Francisco Public Library Com. (2005) 134 Cal.App.4th 109; 75 Ops.Cal.Atty.Gen. 89 (1992)
45 California Government Code section 54954.3(a)
46 California Government Code section 54954.3(a)
Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov.
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40 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
August 08, 2023 Regular Meeting of the Lindsay City Council
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT41 41 Chapter 5
CLOSED SESSIONS
Agendas and reports......................................................................................................... 42 Litigation............................................................................................................................ 43 Real estate negotiations ................................................................................................... 45 Public employment........................................................................................................... 46 Labor negotiations ............................................................................................................ 47 Labor negotiations — school and community college districts ....................................... 48 Other Education Code exceptions.................................................................................... 48 Joint Powers Authorities ................................................................................................... 48 License applicants with criminal records ......................................................................... 49 Public security................................................................................................................... 49 Multijurisdictional law enforcement agency .................................................................... 49 Hospital peer review and trade secrets ........................................................................... 49 Other legislative bases for closed session ....................................................................... 50 Who may attend closed sessions ..................................................................................... 50 The confidentiality of closed session discussions............................................................ 50 August 08, 2023 Regular Meeting of the Lindsay City Council
42 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
A closed session is a meeting of a legislative body conducted in private without the attendance of the public or press. A legislative body is authorized to meet in closed session only to the extent expressly authorized by the Brown Act.1
As summarized in Chapter 1 of this Guide, it is clear that the Brown Act must be interpreted liberally in favor of open meetings, and exceptions that limit public access (including the exceptions for closed session meetings) must be narrowly construed.2
The most common purposes of the closed
session provisions in the Brown Act are to avoid revealing confidential information (e.g., prejudicing the city’s position in litigation or compromising the privacy interests of employees).
Closed sessions should be conducted keeping those narrow purposes in mind. It is not enough that a subject is sensitive, embarrassing, or controversial. Without specific authority in the Brown Act for a closed session, a matter to be considered by a legislative body must be discussed in public. As an example, a board of police commissioners cannot meet in closed session to provide general policy guidance to a police chief, even though some matters are sensitive and the commission considers their disclosure contrary to the public interest.3
In this chapter, the grounds for convening a closed session are called “exceptions” because they are exceptions to the general rule that meetings must be conducted openly. In some circumstances, none of the closed session exceptions apply to an issue or information the legislative body wishes to discuss privately. In these cases, it is not proper to convene a closed session, even to protect confidential information. For example, although the Brown Act does authorize closed sessions related to specified types of contracts (e.g., specified provisions of real property agreements, employee labor agreements, and litigation settlement agreements),4 the
Brown Act does not authorize closed sessions for other contract negotiations.
Agendas and reports
Closed session items must be briefly described on the posted agenda and the description must state the specific statutory exemption.5
An item that appears on the open meeting portion of the agenda may not be taken into closed session until it has been properly agendized as a closed session item or unless it is properly added as a closed session item by a two-thirds vote of the body after making the appropriate urgency findings.6
The Brown Act supplies a series of fill in the blank sample agenda descriptions for various types of authorized closed sessions, which provide a “safe harbor” from legal attacks. These sample Chapter 5
CLOSED SESSIONS
PRACTICE TIP: Some problems
over closed sessions arise
because secrecy itself breeds
distrust. The Brown Act does
not require closed sessions and
legislative bodies may do well
to resist the tendency to call a
closed session simply because
it may be permitted. A better
practice is to go into closed
session only when necessary.
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OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 43
agenda descriptions cover license and permit determinations, real property negotiations, existing or anticipated litigation, liability claims, threats to security, public employee appointments, evaluations and discipline, labor negotiations, multi-jurisdictional law enforcement cases, hospital boards of directors, medical quality assurance committees, joint powers agencies, and audits by the California State Auditor’s Office.7
If the legislative body intends to convene in closed session, it must include the section of the Brown Act authorizing the closed session in advance on the agenda and it must make a public announcement prior to the closed session discussion. In most cases, the announcement may simply be a reference to the agenda item.8
Following a closed session, the legislative body must provide an oral or written report on certain actions taken and the vote of every elected member present. The timing and content of the report varies according to the reason for the closed session and the action taken.9 The announcements
may be made at the site of the closed session, so long as the public is allowed to be present to hear them.
If there is a standing or written request for documentation, any copies of contracts, settlement agreements, or other documents finally approved or adopted in closed session must be provided to the requestor(s) after the closed session, if final approval of such documents does not rest with any other party to the contract or settlement. If substantive amendments to a contract or settlement agreement approved by all parties requires retyping, such documents may be held until retyping is completed during normal business hours, but the substance of the changes must be summarized for any person inquiring about them.10
The Brown Act does not require minutes, including minutes of closed sessions. However, a legislative body may adopt an ordinance or resolution to authorize a confidential “minute book” be kept to record actions taken at closed sessions.11 If one is kept, it must be made available to members of the legislative body, provided that the member asking to review minutes of a particular meeting was not disqualified from attending the meeting due to a conflict of interest.12 A court may order the disclosure of minute books for the court’s review if a lawsuit makes sufficient claims of an open meeting violation.
Litigation
There is an attorney/client relationship, and legal counsel may use it to protect the confidentiality of privileged written and oral communications to members of the legislative body — outside of meetings. But protection of the attorney/client privilege cannot by itself be the reason for a closed session.13
The Brown Act expressly authorizes closed sessions to discuss what is considered pending litigation. The rules that apply to holding a litigation closed session involve complex, technical definitions and procedures. The essential thing to know is that a closed session can be held by the body to confer with, or receive advice from, its legal counsel when open discussion would prejudice the position of the local agency in litigation in which the agency is, or could become, a party.14 The litigation exception under the Brown Act is narrowly construed and does not permit activities beyond a legislative body’s conferring with its own legal counsel and required support staff.15 For example, it is not permissible to hold a closed session in which settlement negotiations take place between a legislative body, a representative of an adverse party, and a mediator.16 PRACTICE TIP: Pay close
attention to closed session
agenda descriptions. Using
the wrong label can lead
to invalidation of an action
taken in closed session if not
substantially compliant.
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44 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
The California Attorney General has opined that if the agency’s attorney is not a participant, a litigation closed session cannot be held.17 In any event, local agency officials should always consult the agency’s attorney before placing this type of closed session on the agenda in order to be certain that it is being done properly.
Before holding a closed session under the pending litigation exception, the legislative body must publicly state the basis for the closed session by identifying one of the following three types of matters: existing litigation, anticipated exposure to litigation, or anticipated initiation of litigation.18 Existing litigation
Q. May the legislative body agree to settle a lawsuit in a properly-noticed closed session, without placing the settlement agreement on an open session agenda for public approval? A. Yes, but the settlement agreement is a public document and must be disclosed on request. Furthermore, a settlement agreement cannot commit the agency to matters that are required to have public hearings.
Existing litigation includes any adjudicatory proceedings before a court, administrative body exercising its adjudicatory authority, hearing officer, or arbitrator. The clearest situation in which a closed session is authorized is when the local agency meets with its legal counsel to discuss a pending matter that has been filed in a court or with an administrative agency and names the local agency as a party. The legislative body may meet under these circumstances to receive updates on the case from attorneys, participate in developing strategy as the case develops, or consider alternatives for resolution of the case. Generally, an agreement to settle litigation may be approved in closed session. However, an agreement to settle litigation cannot be approved in closed session if it commits the city to take an action that is required to have a public hearing.19
Anticipated exposure to litigation against the
local agency
Closed sessions are authorized for legal counsel to inform the legislative body of a significant exposure to litigation against the local agency, but only if based on “existing facts and circumstances” as defined by the Brown Act.20 The legislative body may also meet under this exception to determine whether a closed session is authorized based on information provided by legal counsel or staff. In general, the “existing facts and circumstances” must be publicly disclosed unless they are privileged written communications or not yet known to a potential plaintiff.
Anticipated initiation of litigation by the local agency A closed session may be held under the exception for the anticipated initiation of litigation when the legislative body seeks legal advice on whether to protect the agency’s rights and interests by initiating litigation.
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OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 45
session. Other actions, as where final approval rests with another party or the court, may be announced when they become final and upon inquiry of any person.21 Each agency attorney should be aware of and make the disclosures that are required by the particular circumstances.
Real estate negotiations
A legislative body may meet in closed session with its negotiator to discuss the purchase, sale, exchange, or lease of real property by or for the local agency. A “lease” includes a lease renewal or renegotiation. The purpose is to grant authority to the legislative body’s negotiator on price and terms of payment.22 Caution should be exercised to limit discussion to price and terms of payment without straying to other related issues such as site design, architecture, or other aspects of the project for which the transaction is contemplated.23
Q. May other terms of a real estate transaction, aside from price and terms of payment, be addressed in closed session?
A. No. However, there are differing opinions over the scope of the phrase “price and terms of payment” in connection with real estate closed sessions. Many agency attorneys argue that any term that directly affects the economic value of the transaction falls within the ambit of “price and terms of payment.” Others take a narrower, more literal view of the phrase.
The agency’s negotiator may be a member of the legislative body itself. Prior to the closed session, or on the agenda, the legislative body must identify its negotiators, the real property that the negotiations may concern24 and the names of the parties with whom its negotiator may negotiate.25 After real estate negotiations are concluded, the approval and substance of the agreement must be publicly reported. If its own approval makes the agreement final, the body must report in open session at the public meeting during which the closed session is held. If final approval rests with another party, the local agency must report the approval and the substance of the agreement upon inquiry by any person, as soon as the agency is informed of it.26 “Our population is exploding, and we have to think about new school sites,” said Board Member Jefferson.
“Not only that,” interjected Board Member Tanaka, “we need to get rid of a couple of our older facilities.”
“Well, obviously the place to do that is in a closed session,” said Board Member O’Reilly. “Otherwise we’re going to set off land speculation. And if we even mention closing a school, parents are going to be in an uproar.” A closed session to discuss potential sites is not authorized by the Brown Act. The exception is limited to meeting with its negotiator over specific sites — which must be identified at an open and public meeting.
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46 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
Public employment
The Brown Act authorizes a closed session “to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee.”27 The purpose of this exception — commonly referred to as the “personnel exception” — is to avoid undue publicity or embarrassment for an employee or applicant for employment and to allow full and candid discussion by the legislative body; thus, it is restricted to discussing individuals, not general personnel policies.28 The body must possess the power to appoint, evaluate, or dismiss the employee to hold a closed session under this exception.29 That authority may be delegated to a subsidiary appointed body.30 An employee must be given at least 24 hours notice of any closed session convened to hear specific complaints or charges against him or her. This occurs when the legislative body is reviewing evidence, which could include live testimony, and adjudicating conflicting testimony offered as evidence. A legislative body may examine (or exclude) witnesses,31 and the California Attorney General has opined that, when an affected employee and advocate have an official or essential role to play, they may be permitted to participate in the closed session.32 The employee has the right to have the specific complaints and charges discussed in a public session rather than closed session.33 If the employee is not given the 24-hour prior notice, any disciplinary action is null and void.34
However, an employee is not entitled to notice and a hearing where the purpose of the closed session is to consider a performance evaluation. The Attorney General and the courts have determined that personnel performance evaluations do not constitute complaints and charges, which are more akin to accusations made against a person.35 Q. Must 24 hours notice be given to an employee whose negative performance evaluation is to be considered by the legislative body in closed session? A. No, the notice is reserved for situations where the body is to hear complaints and charges from witnesses.
Correct labeling of the closed session on the agenda is critical. A closed session agenda that identified discussion of an employment contract was not sufficient to allow dismissal of an employee.36 An incorrect agenda description can result in invalidation of an action and much embarrassment.
For purposes of the personnel exception, “employee” specifically includes an officer or an independent contractor who functions as an officer or an employee. Examples of the former include a city manager, district general manager or superintendent. Examples of the latter Include a legal counsel or engineer hired on contract to act as local agency attorney or chief engineer.
Elected officials, appointees to the governing body or subsidiary bodies, and independent contractors other than those discussed above are not employees for purposes of the personnel exception.37 Action on individuals who are not “employees” must also be public — including discussing and voting on appointees to committees, or debating the merits of independent contractors, or considering a complaint against a member of the legislative body itself.
PRACTICE TIP: Discussions of
who to appoint to an advisory
body and whether or not to
censure a fellow member of
the legislative body must be
held in the open.
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The personnel exception specifically prohibits discussion or action on proposed compensation in closed session, except for a disciplinary reduction in pay. Among other things, that means there can be no personnel closed sessions on a salary change (other than a disciplinary reduction) between any unrepresented individual and the legislative body. However, a legislative body may address the compensation of an unrepresented individual, such as a city manager, in a closed session as part of a labor negotiation (discussed later in this chapter), yet another example of the importance of using correct agenda descriptions.
Reclassification of a job must be public, but an employee’s ability to fill that job may be considered in closed session.
Any closed session action to appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee must be reported at the public meeting during which the closed session is held. That report must identify the title of the position, but not the names of all persons considered for an employment position.38 However, a report on a dismissal or non-renewal of an employment contract must be deferred until administrative remedies, if any, are exhausted.39
“I have some important news to announce,” said Mayor Garcia. “We’ve decided to terminate the contract of the city manager, effective immediately.
The council has met in closed session and we’ve negotiated six months severance pay.”
“Unfortunately, that has some serious budget consequences, so we’ve had to delay phase two of the East Area Project.”
This may be an improper use of the personnel closed session if the council agenda described the item as the city manager’s evaluation. In addition, other than labor negotiations, any action on individual compensation must be taken in open session.
Caution should be exercised to not discuss in closed session issues, such as budget impacts in this hypothetical, beyond the scope of the posted closed session notice.
Labor negotiations
The Brown Act allows closed sessions for some aspects of labor negotiations. Different provisions (discussed below) apply to school and community college districts.
A legislative body may meet in closed session to instruct its bargaining representatives, which may be one or more of its members,40 on employee salaries and fringe benefits for both represented (“union”) and non-represented employees. For represented employees, it may also consider working conditions that by law require negotiation. For the purpose of labor negotiation closed sessions, an “employee” includes an officer or an independent contractor who functions as an officer or an employee, but independent contractors who do not serve in the capacity of an officer or employee are not covered by this closed session exception.41 These closed sessions may take place before or during negotiations with employee representatives. Prior to the closed session, the legislative body must hold an open and public session in which it identifies its designated representatives.
PRACTICE TIP: The personnel
exception specifically prohibits
discussion or action on
proposed compensation in
closed session except for a
disciplinary reduction in pay.
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48 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
During its discussions with representatives on salaries and fringe benefits, the legislative body may also discuss available funds and funding priorities, but only to instruct its representative. The body may also meet in closed session with a conciliator who has intervened in negotiations. 42 The approval of an agreement concluding labor negotiations with represented employees must be reported after the agreement is final and has been accepted or ratified by the other party. The report must identify the item approved and the other party or parties to the negotiation.43 The labor closed sessions specifically cannot include final action on proposed compensation of one or more unrepresented employees.
Labor negotiations — school and community college districts Employee relations for school districts and community college districts are governed by the Rodda Act, where different meeting and special notice provisions apply. The entire board, for example, may negotiate in closed sessions.
Four types of meetings are exempted from compliance with the Rodda Act:
1. A negotiating session with a recognized or certified employee organization;
2. A meeting of a mediator with either side;
3. A hearing or meeting held by a fact finder or arbitrator; and
4. A session between the board and its bargaining agent, or the board alone, to discuss its position regarding employee working conditions and instruct its agent.44 Public participation under the Rodda Act also takes another form.45 All initial proposals of both sides must be presented at public meetings and are public records. The public must be given reasonable time to inform itself and to express its views before the district may adopt its initial proposal. In addition, new topics of negotiations must be made public within 24 hours. Any votes on such a topic must be followed within 24 hours by public disclosure of the vote of each member.46 The final vote must be in public.
Other Education Code exceptions
The Education Code governs student disciplinary meetings by boards of school districts and community college districts. District boards may hold a closed session to consider the suspension or discipline of a student, if a public hearing would reveal personal, disciplinary, or academic information about the student contrary to state and federal pupil privacy law. The student’s parent or guardian may request an open meeting.47
Community college districts may also hold closed sessions to discuss some student disciplinary matters, awarding of honorary degrees, or gifts from donors who prefer to remain anonymous.48 Kindergarten through 12th grade districts may also meet in closed session to review the contents of the statewide assessment instrument.49
Joint Powers Authorities
The legislative body of a joint powers authority may adopt a policy regarding limitations on disclosure of confidential information obtained in closed session, and may meet in closed session to discuss information that is subject to the policy.50 PRACTICE TIP: Prior to the
closed session, the legislative
body must hold an open
and public session in which
it identifies its designated
representatives.
PRACTICE TIP: Attendance
by the entire legislative body
before a grand jury would not
constitute a closed session
meeting under the Brown Act.
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License applicants with criminal records
A closed session is permitted when an applicant, who has a criminal record, applies for a license or license renewal and the legislative body wishes to discuss whether the applicant is sufficiently rehabilitated to receive the license. The applicant and the applicant’s attorney are authorized to attend the closed session meeting. If the body decides to deny the license, the applicant may withdraw the application. If the applicant does not withdraw, the body must deny the license in public, immediately or at its next meeting. No information from the closed session can be revealed without consent of the applicant, unless the applicant takes action to challenge the denial.51 Public security
Legislative bodies may meet in closed session to discuss matters posing a threat to the security of public buildings, essential public services, including water, sewer, gas, or electric service, or to the public’s right of access to public services or facilities over which the legislative body has jurisdiction. Closed session meetings for these purposes must be held with designated security or law enforcement officials including the Governor, Attorney General, district attorney, agency attorney, sheriff or chief of police, or their deputies or agency security consultant or security operations manager.52 Action taken in closed session with respect to such public security issues is not reportable action.
Multijurisdictional law enforcement agency
A joint powers agency formed to provide law enforcement services (involving drugs; gangs; sex crimes; firearms trafficking; felony possession of a firearm; high technology, computer, or identity theft; human trafficking; or vehicle theft) to multiple jurisdictions may hold closed sessions to discuss case records of an on-going criminal investigation, to hear testimony from persons involved in the investigation, and to discuss courses of action in particular cases.53 The exception applies to the legislative body of the joint powers agency and to any body advisory to it. The purpose is to prevent impairment of investigations, to protect witnesses and informants, and to permit discussion of effective courses of action.54 Hospital peer review and trade secrets
Two specific kinds of closed sessions are allowed for district hospitals and municipal hospitals, under other provisions of law.55
1. A meeting to hear reports of hospital medical audit or quality assurance committees, or for related deliberations. However, an applicant or medical staff member whose staff privileges are the direct subject of a hearing may request a public hearing.
2. A meeting to discuss “reports involving trade secrets” — provided no action is taken.
A “trade secret” is defined as information which is not generally known to the public or competitors and which: 1) “derives independent economic value, actual or potential” by virtue of its restricted knowledge; 2) is necessary to initiate a new hospital service or program or facility; and 3) would, if prematurely disclosed, create a substantial probability of depriving the hospital of a substantial economic benefit.
The provision prohibits use of closed sessions to discuss transitions in ownership or management, or the district’s dissolution.56
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CHAPTER 5: CLOSED SESSIONS
Other legislative bases for closed session
Since any closed session meeting of a legislative body must be authorized by the Legislature, it is important to carefully review the Brown Act to determine if there is a provision that authorizes a closed session for a particular subject matter. There are some less frequently encountered topics that are authorized to be discussed by a legislative body in closed session under the Brown Act, including: a response to a confidential final draft audit report from the Bureau of State Audits,57 consideration of the purchase or sale of particular pension fund investments by a legislative body of a local agency that invests pension funds,58 hearing a charge or complaint from a member enrolled in a health plan by a legislative body of a local agency that provides Medi-Cal services,59 discussions by a county board of supervisors that governs a health plan licensed pursuant to the Knox-Keene Health Care Services Plan Act related to trade secrets or contract negotiations concerning rates of payment,60 and discussions by an insurance pooling joint powers agency related to a claim filed against, or liability of, the agency or a member of the agency.61 Who may attend closed sessions
Meetings of a legislative body are either fully open or fully closed; there is nothing in between.
Therefore, local agency officials and employees must pay particular attention to the authorized attendees for the particular type of closed session. As summarized above, the authorized attendees may differ based on the topic of the closed session. Closed sessions may involve only the members of the legislative body and only agency counsel, management and support staff, and consultants necessary for consideration of the matter that is the subject of closed session, with very limited exceptions for adversaries or witnesses with official roles in particular types of hearings (e.g., personnel disciplinary hearings and license hearings). In any case, individuals who do not have an official role in the closed session subject matters must be excluded from closed sessions.63
Q. May the lawyer for someone suing the agency attend a closed session in order to explain to the legislative body why it should accept a settlement offer? A. No, attendance in closed sessions is reserved exclusively for the agency’s advisors.
The confidentiality of closed session discussions
The Brown Act explicitly prohibits the unauthorized disclosure of confidential information acquired in a closed session by any person present, and offers various remedies to address breaches of confidentiality.64 It is incumbent upon all those attending lawful closed sessions to protect the confidentiality of those discussions. One court has held that members of a legislative body cannot be compelled to divulge the content of closed session discussions through the discovery process.65 Only the legislative body acting as a body may agree to divulge confidential closed session information; regarding attorney/client privileged communications, the entire body is the holder of the privilege and only the entire body can decide to waive the privilege.66 PRACTICE TIP: Meetings are
either open or closed. There is
nothing “in between.”62
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OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 51
Before adoption of the Brown Act provision specifically prohibiting disclosure of closed session communications, agency attorneys and the Attorney General long opined that officials have a fiduciary duty to protect the confidentiality of closed session discussions. The Attorney General issued an opinion that it is “improper” for officials to disclose information received during a closed session regarding pending litigation,67 though the Attorney General has also concluded that a local agency is preempted from adopting an ordinance criminalizing public disclosure of closed session discussions.68 In any event, in 2002, the Brown Act was amended to prescribe particular remedies for breaches of confidentiality. These remedies include injunctive relief; and, if the breach is a willful disclosure of confidential information, the remedies include disciplinary action against an employee, and referral of a member of the legislative body to the grand jury.69 The duty of maintaining confidentiality, of course, must give way to the responsibility to disclose improper matters or discussions that may come up in closed sessions. In recognition of this public policy, under the Brown Act, a local agency may not penalize a disclosure of information learned during a closed session if the disclosure: 1) is made in confidence to the district attorney or the grand jury due to a perceived violation of law; 2) is an expression of opinion concerning the propriety or legality of actions taken in closed session, including disclosure of the nature and extent of the illegal action; or 3) is information that is not confidential.70 The interplay between these possible sanctions and an official’s first amendment rights is complex and beyond the scope of this guide. Suffice it to say that this is a matter of great sensitivity and controversy.
“I want the press to know that I voted in closed session against filing the eminent domain action,” said Council Member Chang.
“Don’t settle too soon,” reveals Council Member Watson to the property owner, over coffee. “The city’s offer coming your way is not our bottom line.” The first comment to the press may be appropriate if it is a part of an action taken by the City Council in closed session that must be reported publicly.71 The second comment to the property owner is not — disclosure of confidential information acquired in closed session is expressly prohibited and harmful to the agency.
PRACTICE TIP: There is a
strong interest in protecting the
confidentiality of proper and
lawful closed sessions.
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52 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
ENDNOTES:
1 California Government Code section 54962
2 California Constitution, Art. 1, section 3
3 61 Ops.Cal.Atty.Gen. 220 (1978); but see California Government Code section 54957.8 (multijurisdictional law enforcement agencies are authorized to meet in closed session to discuss the case records of ongoing criminal investigations, and other related matters). 4 California Government Code section 54957.1
5 California Government Code section 54954.5
6 California Government Code section 54954.2
7 California Government Code section 54954.5
8 California Government Code sections 54956.9 and 54957.7 9 California Government Code section 54957.1(a)
10 California Government Code section 54957.1(b)
11 California Government Code section 54957.2
12 Hamilton v. Town of Los Gatos (1989) 213 Cal.App.3d 1050; 2 Cal.Code Regs. section 18707 13 Roberts v. City of Palmdale (1993) 5 Cal.4th 363
14 California Government Code section 54956.9; Shapiro v. Board of Directors of Center City Development Corp. (2005) 134 Cal.App.4th 170 (agency must be a party to the litigation). 15 82 Ops.Cal.Atty.Gen. 29 (1999)
16 Page v. Miracosta Community College District (2009) 180 Cal.App.4th 471 17 “The Brown Act,” California Attorney General (2003), p. 40 18 California Government Code section 54956.9(g)
19 Trancas Property Owners Association v. City of Malibu (2006) 138 Cal.App.4th 172 20 Government Code section 54956.9(e)
21 California Government Code section 54957.1
22 California Government Code section 54956.8
23 Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904; see also 93 Ops.Cal.Atty.Gen. 51 (2010) (redevelopment agency may not convene a closed session to discuss rehabilitation loan for a property already subleased to a loan recipient, even if the loan Incorporates some of the sublease terms and includes an operating covenant governing the property); 94 Ops.Cal.Atty.Gen. 82 (2011) (real estate closed session may address form, manner and timing of consideration and other items that cannot be disclosed without revealing price and terms).
24 73 Ops.Cal.Atty.Gen. 1 (1990)
25 California Government Code sections 54956.8 and 54954.5(b) 26 California Government Code section 54957.1(a)(1)
27 California Government Code section 54957(b)
28 63 Ops.Cal.Atty.Gen. 153 (1980); but see Duvall v. Board of Trustees (2000) 93 Cal.App.4th 902 (board may discuss personnel evaluation criteria, process and other preliminary matters in closed session but only if related to the evaluation of a particular employee). 29 Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.App.4th 1165; 85 Ops.Cal.Atty.Gen. 77 (2002)
30 Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.App.4th 1165; 80 Ops.Cal.Atty.
Gen. 308 (1997). Interviews of candidates to fill a vacant staff position conducted by a temporary committee appointed by the governing body may be done in closed session.
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OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 53
31 California Government Code section 54957(b)(3)
32 88 Ops.Cal.Atty.Gen. 16 (2005)
33 Morrison v. Housing Authority of the City of Los Angeles (2003) 107 Cal.App.4th 860 34 California Government Code section 54957(b); but see Bollinger v. San Diego Civil Service Commission (1999) 71 Cal.App.4th 568 (notice not required for closed session deliberations regarding complaints or charges, when there was a public evidentiary hearing prior to closed session). 35 78 Ops.Cal.Atty.Gen. 218 (1995); Bell v. Vista Unified School District (2000) 82 Cal.App.4th 672; Furtado v. Sierra Community College (1998) 68 Cal.App.4th 876; Fischer v. Los Angeles Unified School District (1999) 70 Cal.App.4th 87
36 Moreno v. City of King (2005) 127 Cal.App.4th 17
37 California Government Code section 54957
38 Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.App.4th 1165 39 California Government Code section 54957.1(a)(5)
40 California Government Code section 54957.6
41 California Government Code section 54957.6(b); see also 98 Ops.Cal.Atty.Gen. 41 (2015) (a project labor agreement between a community college district and workers hired by contractors or subcontractors is not a proper subject of closed session for labor negotiations because the workers are not “employees” of the district).
42 California Government Code section 54957.6; and 51 Ops.Cal.Atty.Gen. 201 (1968) 43 California Government Code section 54957.1(a)(6)
44 California Government Code section 3549.1
45 California Government Code section 3540
46 California Government Code section 3547
47 California Education Code section 48918; but see Rim of the World Unified School District v. Superior Court (2003) 104 Cal.App.4th 1393 (Section 48918 preempted by the Federal Family Educational Right and Privacy Act in regard to expulsion proceedings). 48 California Education Code section 72122
49 California Education Code section 60617
50 California Government Code section 54956.96
51 California Government Code section 54956.7
52 California Government Code section 54957
53 McKee v. Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force (2005) 134 Cal.
App.4th 354
54 California Government Code section 54957.8
55 California Government Code section 54962
56 California Health and Safety Code section 32106
57 California Government Code section 54956.75
58 California Government Code section 54956.81
59 California Government Code section 54956.86
60 California Government Code section 54956.87
61 California Government Code section 54956.95
62 46 Ops.Cal.Atty.Gen. 34 (1965)
63 82 Ops.Cal.Atty.Gen. 29 (1999)
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54 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
64 Government Code section 54963
65 Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 327; see also California Government Code section 54963.
66 Roberts v. City of Palmdale (1993) 5 Cal.4th 363
67 80 Ops.Cal.Atty.Gen. 231 (1997)
68 76 Ops.Cal.Atty.Gen. 289 (1993)
69 California Government Code section 54963
70 California Government Code section 54963
71 California Government Code section 54957.1
Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov.
August 08, 2023 Regular Meeting of the Lindsay City Council
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT55 55 Chapter 6
REMEDIES
Invalidation........................................................................................................................ 56 Applicability to Past Actions ............................................................................................. 57 Civil action to prevent future violations ........................................................................... 57 Costs and attorney’s fees ................................................................................................. 58 Criminal complaints .......................................................................................................... 58 Voluntary resolution.......................................................................................................... 59 August 08, 2023 Regular Meeting of the Lindsay City Council
56 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 6: REMEDIES
Certain violations of the Brown Act are designated as misdemeanors, although by far the most commonly used enforcement provisions are those that authorize civil actions to invalidate specified actions taken in violation of the Brown Act and to stop or prevent future violations. Still, despite all the safeguards and remedies to enforce them, it is ultimately impossible for the public to monitor every aspect of public officials’ interactions. Compliance ultimately results from regular training and a good measure of self-regulation on the part of public officials. This chapter discusses the remedies available to the public when that self-regulation is ineffective.
Invalidation
Any interested person, including the district attorney, may seek to invalidate certain actions of a legislative body on the ground that they violate the Brown Act.1 Violations of the Brown Act, however, cannot be invalidated if they involve the following types of actions:
Those taken in substantial compliance with the law. No Brown Act violation is found when the given notice substantially complies with the Brown Act, even when the notice erroneously cites to the wrong Brown Act section, but adequately advises the public that the Board will meet with legal counsel to discuss potential litigation in closed session;2 Those involving the sale or issuance of notes, bonds or other indebtedness, or any related contracts or agreements;
Those creating a contractual obligation, including a contract awarded by competitive bid for other than compensation for professional services, upon which a party has in good faith relied to its detriment;
Those connected with the collection of any tax; or
Those in which the complaining party had actual notice at least 72 hours prior to the regular meeting or 24 hours prior to the special meeting, as the case may be, at which the action is taken.
Before filing a court action seeking invalidation, a person who believes that a violation has occurred must send a written “cure or correct” demand to the legislative body. This demand must clearly describe the challenged action and the nature of the claimed violation. This demand must be sent within 90 days of the alleged violation or 30 days if the action was taken in open session but in violation of Section 54954.2, which requires (subject to specific exceptions) that only properly agendized items are acted on by the governing body during a meeting.3 The legislative
body then has up to 30 days to cure and correct its action. If it does not act, any lawsuit must be filed within the next 15 days. The purpose of this requirement is to offer the body an opportunity to consider whether a violation has occurred and to weigh its options before litigation is filed.
Chapter 6
REMEDIES
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OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 57
Although just about anyone has standing to bring an action for invalidation,4 the challenger must show prejudice as a result of the alleged violation.5
An action to invalidate fails to state a cause of
action against the agency if the body deliberated but did not take an action.6 Applicability to Past Actions
Any interested person, including the district attorney, may file a civil action to determine whether past actions of a legislative body occurring on or after January 1, 2013 constitute violations of the Brown Act and are subject to a mandamus, injunction, or declaratory relief action.7 Before filing
an action, the interested person must, within nine months of the alleged violation of the Brown Act, submit a “cease and desist” letter to the legislative body, clearly describing the past action and the nature of the alleged violation.8
The legislative body has 30 days after receipt of the letter to provide an unconditional commitment to cease and desist from the past action.9 If the body
fails to take any action within the 30-day period or takes an action other than an unconditional commitment, a lawsuit may be filed within 60 days.10
The legislative body’s unconditional commitment must be approved at a regular or special meeting as a separate item of business and not on the consent calendar.11 The unconditional commitment must be substantially in the form set forth in the Brown Act.12 No legal action may thereafter be commenced regarding the past action.13 However, an action of the legislative body in violation of its unconditional commitment constitutes an independent violation of the Brown Act and a legal action consequently may be commenced without following the procedural requirements for challenging past actions.14
The legislative body may rescind its prior unconditional commitment by a majority vote of its membership at a regular meeting as a separate item of business not on the consent calendar. At least 30 days written notice of the intended rescission must be given to each person to whom the unconditional commitment was made and to the district attorney. Upon rescission, any interested person may commence a legal action regarding the past actions without following the procedural requirements for challenging past actions.15
Civil action to prevent future violations
The district attorney or any interested person can file a civil action asking the court to:
Stop or prevent violations or threatened violations of the Brown Act by members of the legislative body of a local agency;
Determine the applicability of the Brown Act to actions or threatened future action of the legislative body;
Determine whether any rule or action by the legislative body to penalize or otherwise discourage the expression of one or more of its members is valid under state or federal law; or
Compel the legislative body to tape record its closed sessions.
PRACTICE TIP: A lawsuit to
invalidate must be preceded by
a demand to cure and correct
the challenged action in order
to give the legislative body
an opportunity to consider its
options. The Brown Act does not
specify how to cure or correct
a violation; the best method
is to rescind the action being
complained of and start over, or
reaffirm the action if the local
agency relied on the action and
rescinding the action would
prejudice the local agency.
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58 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 6: REMEDIES
It is not necessary for a challenger to prove a past pattern or practice of violations by the local agency in order to obtain injunctive relief. A court may presume when issuing an injunction that a single violation will continue in the future where the public agency refuses to admit to the alleged violation or to renounce or curtail the practice.16 Note, however, that a court may not compel elected officials to disclose their recollections of what transpired in a closed session.17 Upon finding a violation of the Brown Act pertaining to closed sessions, a court may compel the legislative body to tape record its future closed sessions. In a subsequent lawsuit to enforce the Brown Act alleging a violation occurring in closed session, a court may upon motion of the plaintiff review the tapes if there is good cause to think the Brown Act has been violated, and make public the relevant portion of the closed session recording.
Costs and attorney’s fees
Someone who successfully invalidates an action taken in violation of the Brown Act or who successfully enforces one of the Brown Act’s civil remedies may seek court costs and reasonable attorney’s fees. Courts have held that attorney’s fees must be awarded to a successful plaintiff unless special circumstances exist that would make a fee award against the public agency unjust.18 When evaluating how to respond to assertions that the Brown Act has been violated, elected officials and their lawyers should assume that attorney’s fees will be awarded against the agency if a violation of the Act is proven.
An attorney’s fee award may only be directed against the local agency and not the individual members of the legislative body. If the local agency prevails, it may be awarded court costs and attorney’s fees if the court finds the lawsuit was clearly frivolous and lacking in merit.19 Criminal complaints
A violation of the Brown Act by a member of the legislative body who acts with the improper intent described below is punishable as a misdemeanor.20 A criminal violation has two components. The first is that there must be an overt act — a member of a legislative body must attend a meeting at which action is taken in violation of the Brown Act.21 “Action taken” is not only an actual vote, but also a collective decision, commitment or promise by a majority of the legislative body to make a positive or negative decision.22 If the meeting involves mere deliberation without the taking of action, there can be no misdemeanor penalty.
A violation occurs for a tentative as well as final decision.23 In fact, criminal liability is triggered by a member’s participation in a meeting in violation of the Brown Act — not whether that member has voted with the majority or minority, or has voted at all.
The second component of a criminal violation is that action is taken with the intent of a member “to deprive the public of information to which the member knows or has reason to know the public is entitled” by the Brown Act.24
PRACTICE TIP: Attorney’s
fees will likely be awarded if
a violation of the Brown Act is
proven.
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OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 59
As with other misdemeanors, the filing of a complaint is up to the district attorney. Although criminal prosecutions of the Brown Act are uncommon, district attorneys in some counties aggressively monitor public agencies’ adherence to the requirements of the law.
Some attorneys and district attorneys take the position that a Brown Act violation may be pursued criminally under Government Code section 1222.25 There is no case law to support this view; if anything, the existence of an express criminal remedy within the Brown Act would suggest otherwise.26
Voluntary resolution
Arguments over Brown Act issues often become emotional on all sides. Newspapers trumpet relatively minor violations, unhappy residents fume over an action, and legislative bodies clam up about information better discussed in public. Hard lines are drawn and rational discussion breaks down. The district attorney or even the grand jury occasionally becomes involved. Publicity surrounding alleged violations of the Brown Act can result in a loss of confidence by constituents in the legislative body. There are times when it may be preferable to consider re-noticing and rehearing, rather than litigating, an item of significant public interest, particularly when there is any doubt about whether the open meeting requirements were satisfied.
At bottom, agencies that regularly train their officials and pay close attention to the requirements of the
Brown Act will have little reason to worry about
enforcement.
ENDNOTES:
1 California Government Code section 54960.1.
Invalidation is limited to actions that violate the
following sections of the Brown Act: section 54953 (the basic open meeting provision); sections 54954.2 and
54954.5 (notice and agenda requirements for regular
meetings and closed sessions); 54954.6 (tax hearings);
54956 (special meetings); and 54596.5 (emergency
situations). Violations of sections not listed above
cannot give rise to invalidation actions, but are subject to the other remedies listed in section 54960.1.
2 Castaic Lake Water Agency v. Newhall County Water
District (2015) 238 Cal.App.4th 1196, 1198
3 California Government Code section 54960.1 (b) and
(c)(1)
4 McKee v. Orange Unified School District (2003) 110 Cal.
App.4th 1310, 1318-1319
5 Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547, 556, 561 6 Boyle v. City of Redondo Beach (1999) 70 Cal.App.4th 1109, 1116-17, 1118 7 Government Code Section 54960.2(a); Senate Bill No. 1003, Section 4 (2011-2012 Session) 8 Government Code Sections 54960.2(a)(1), (2)
9 Government Code Section 54960.2(b)
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60 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 6: REMEDIES
10 Government Code Section 54960.2(a)(4)
11 Government Code Section 54960.2(c)(2)
12 Government Code Section 54960.2(c)(1)
13 Government Code Section 54960.2(c)(3)
14 Government Code Section 54960.2(d)
15 Government Code Section 54960.2(e)
16 California Alliance for Utility Safety and Education (CAUSE) v. City of San Diego (1997) 56 Cal.App.4th 1024; Common Cause v. Stirling (1983) 147 Cal.App.3d 518, 524; Accord Shapiro v. San Diego City Council (2002) 96 Cal. App. 4th 904, 916 & fn.6
17 Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 334-36 18 Los Angeles Times Communications, LLC v. Los Angeles County Board of Supervisors (2003) 112 Cal.
App.4th 1313, 1327-29 and cases cited therein
19 California Government Code section 54960.5
20 California Government Code section 54959. A misdemeanor is punishable by a fine of up to $1,000 or up to six months in county jail, or both. California Penal Code section 19. Employees of the agency who participate in violations of the Brown Act cannot be punished criminally under section 54959.
However, at least one district attorney instituted criminal action against employees based on the theory that they criminally conspired with the members of the legislative body to commit a crime under section 54949.
21 California Government Code section 54959
22 California Government Code section 54952.6
23 61 Ops.Cal.Atty.Gen.283 (1978)
24 California Government Code section 54959
25 California Government Code section 1222 provides that “[e]very wilful omission to perform any duty enjoined by law upon any public officer, or person holding any public trust or employment, where no special provision is made for the punishment of such delinquency, is punishable as a misdemeanor.” 26 The principle of statutory construction known as expressio unius est exclusio alterius supports the view that section 54959 is the exclusive basis for criminal liability under the Brown Act.
Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov.
August 08, 2023 Regular Meeting of the Lindsay City Council
August 08, 2023 Regular Meeting of the Lindsay City Council
1400 K Street, Suite 400, Sacramento, CA 95814
Phone: (916) 658-8200 | Fax: (916) 658-8240
www.cacities.org | www.cacities.org/events | www.westerncity.com August 08, 2023 Regular Meeting of the Lindsay City Council
Rosenberg’s Rules of Order
REVISED 2011
Simple Rules of Parliamentary Procedure for the 21st Century By Judge Dave Rosenberg
August 08, 2023 Regular Meeting of the Lindsay City Council
ii
MISSION and CORE BELIEFS
To expand and protect local control for cities through education and advocacy to enhance the quality of life for all Californians.
VISION
To be recognized and respected as the leading advocate for the common interests of California’s cities.
About the League of California Cities
Established in 1898, the League of California Cities is a member organization that represents California’s incorporated cities.
The League strives to protect the local authority and automony of city government and help California’s cities effectively serve their residents. In addition to advocating on cities’ behalf at the state capitol, the League provides its members with professional development programs and information resources, conducts education conferences and research, and publishes Western City magazine.
© 2011 League of California Cities. All rights reserved.
About the Author
Dave Rosenberg is a Superior Court Judge in Yolo County. He has served as presiding judge of his court, and as presiding judge of the Superior Court Appellate Division. He also has served as chair of the Trial Court Presiding Judges Advisory Committee (the committee composed of all 58 California presiding judges) and as an advisory member of the California Judicial Council. Prior to his appointment to the bench, Rosenberg was member of the Yolo County Board of Supervisors, where he served two terms as chair. Rosenberg also served on the Davis City Council, including two terms as mayor. He has served on the senior staff of two governors, and worked for 19 years in private law practice. Rosenberg has served as a member and chair of numerous state, regional and local boards. Rosenberg chaired the California State Lottery Commission, the California Victim Compensation and Government Claims Board, the Yolo-Solano Air Quality Management District, the Yolo County Economic Development Commission, and the Yolo County Criminal Justice Cabinet. For many years, he has taught classes on parliamentary procedure and has served as parliamentarian for large and small bodies.
August 08, 2023 Regular Meeting of the Lindsay City Council
1 Table of Contents
About the Author............................................................................................................ii Introduction....................................................................................................................2 Establishing a Quorum...................................................................................................2 The Role of the Chair......................................................................................................2 The Basic Format for an Agenda Item Discussion........................................................2 Motions in General.........................................................................................................3 The Three Basic Motions................................................................................................3 Multiple Motions Before the Body.................................................................................4 To Debate or Not to Debate............................................................................................4 Majority and Super-Majority Votes ...............................................................................5 Counting Votes................................................................................................................5 The Motion to Reconsider..............................................................................................6 Courtesy and Decorum ..................................................................................................7 Special Notes About Public Input..................................................................................7 August 08, 2023 Regular Meeting of the Lindsay City Council
2 Establishing a Quorum
The starting point for a meeting is the establishment of a quorum.
A quorum is defined as the minimum number of members of the body who must be present at a meeting for business to be legally transacted. The default rule is that a quorum is one more than half the body. For example, in a five-member body a quorum is three.
When the body has three members present, it can legally transact business. If the body has less than a quorum of members present, it cannot legally transact business. And even if the body has a quorum to begin the meeting, the body can lose the quorum during the meeting when a member departs (or even when a member leaves the dais). When that occurs the body loses its ability to transact business until and unless a quorum is reestablished.
The default rule, identified above, however, gives way to a specific rule of the body that establishes a quorum. For example, the rules of a particular five-member body may indicate that a quorum is four members for that particular body. The body must follow the rules it has established for its quorum. In the absence of such a specific rule, the quorum is one more than half the members of the body.
The Role of the Chair
While all members of the body should know and understand the rules of parliamentary procedure, it is the chair of the body who is charged with applying the rules of conduct of the meeting. The chair should be well versed in those rules. For all intents and purposes, the chair makes the final ruling on the rules every time the chair states an action. In fact, all decisions by the chair are final unless overruled by the body itself.
Since the chair runs the conduct of the meeting, it is usual courtesy for the chair to play a less active role in the debate and discussion than other members of the body. This does not mean that the chair should not participate in the debate or discussion. To the contrary, as a member of the body, the chair has the full right to participate in the debate, discussion and decision-making of the body. What the chair should do, however, is strive to be the last to speak at the discussion and debate stage. The chair should not make or second a motion unless the chair is convinced that no other member of the body will do so at that point in time.
The Basic Format for an Agenda Item Discussion
Formal meetings normally have a written, often published agenda.
Informal meetings may have only an oral or understood agenda. In either case, the meeting is governed by the agenda and the agenda constitutes the body’s agreed-upon roadmap for the meeting. Each agenda item can be handled by the chair in the following basic format:
Introduction
The rules of procedure at meetings should be simple enough for most people to understand. Unfortunately, that has not always been the case. Virtually all clubs, associations, boards, councils and bodies follow a set of rules — Robert’s Rules of Order — which are embodied in a small, but complex, book. Virtually no one I know has actually read this book cover to cover. Worse yet, the book was written for another time and for another purpose. If one is chairing or running a parliament, then Robert’s Rules of Order is a dandy and quite useful handbook for procedure in that complex setting. On the other hand, if one is running a meeting of say, a five-member body with a few members of the public in attendance, a simplified version of the rules of parliamentary procedure is in order.
Hence, the birth of Rosenberg’s Rules of Order.
What follows is my version of the rules of parliamentary procedure, based on my decades of experience chairing meetings in state and local government. These rules have been simplified for the smaller bodies we chair or in which we participate, slimmed down for the 21st Century, yet retaining the basic tenets of order to which we have grown accustomed. Interestingly enough, Rosenberg’s Rules has found a welcoming audience. Hundreds of cities, counties, special districts, committees, boards, commissions, neighborhood associations and private corporations and companies have adopted Rosenberg’s Rules in lieu of Robert’s Rules because they have found them practical, logical, simple, easy to learn and user friendly.
This treatise on modern parliamentary procedure is built on a foundation supported by the following four pillars:
1. Rules should establish order. The first purpose of rules of parliamentary procedure is to establish a framework for the orderly conduct of meetings.
2. Rules should be clear. Simple rules lead to wider understanding and participation. Complex rules create two classes: those who understand and participate; and those who do not fully understand and do not fully participate.
3. Rules should be user friendly. That is, the rules must be simple enough that the public is invited into the body and feels that it has participated in the process.
4. Rules should enforce the will of the majority while protecting the rights of the minority. The ultimate purpose of rules of procedure is to encourage discussion and to facilitate decision making by the body. In a democracy, majority rules. The rules must enable the majority to express itself and fashion a result, while permitting the minority to also express itself, but not dominate, while fully participating in the process.
August 08, 2023 Regular Meeting of the Lindsay City Council
3 Ninth, the chair takes a vote. Simply asking for the “ayes” and then asking for the “nays” normally does this. If members of the body do not vote, then they “abstain.” Unless the rules of the body provide otherwise (or unless a super majority is required as delineated later in these rules), then a simple majority (as defined in law or the rules of the body as delineated later in these rules) determines whether the motion passes or is defeated.
Tenth, the chair should announce the result of the vote and what action (if any) the body has taken. In announcing the result, the chair should indicate the names of the members of the body, if any, who voted in the minority on the motion. This announcement might take the following form: “The motion passes by a vote of 3-2, with Smith and Jones dissenting. We have passed the motion requiring a 10-day notice for all future meetings of this body.”
Motions in General
Motions are the vehicles for decision making by a body. It is usually best to have a motion before the body prior to commencing discussion of an agenda item. This helps the body focus.
Motions are made in a simple two-step process. First, the chair should recognize the member of the body. Second, the member of the body makes a motion by preceding the member’s desired approach with the words “I move … ”
A typical motion might be: “I move that we give a 10-day notice in the future for all our meetings.”
The chair usually initiates the motion in one of three ways:
1. Inviting the members of the body to make a motion, for example, “A motion at this time would be in order.”
2. Suggesting a motion to the members of the body, “A motion would be in order that we give a 10-day notice in the future for all our meetings.”
3. Making the motion. As noted, the chair has every right as a member of the body to make a motion, but should normally do so only if the chair wishes to make a motion on an item but is convinced that no other member of the body is willing to step forward to do so at a particular time.
The Three Basic Motions
There are three motions that are the most common and recur often at meetings:
The basic motion. The basic motion is the one that puts forward a decision for the body’s consideration. A basic motion might be: “I move that we create a five-member committee to plan and put on our annual fundraiser.”
First, the chair should clearly announce the agenda item number and should clearly state what the agenda item subject is. The chair should then announce the format (which follows) that will be followed in considering the agenda item.
Second, following that agenda format, the chair should invite the appropriate person or persons to report on the item, including any recommendation that they might have. The appropriate person or persons may be the chair, a member of the body, a staff person, or a committee chair charged with providing input on the agenda item.
Third, the chair should ask members of the body if they have any technical questions of clarification. At this point, members of the body may ask clarifying questions to the person or persons who reported on the item, and that person or persons should be given time to respond.
Fourth, the chair should invite public comments, or if appropriate at a formal meeting, should open the public meeting for public input.
If numerous members of the public indicate a desire to speak to the subject, the chair may limit the time of public speakers. At the conclusion of the public comments, the chair should announce that public input has concluded (or the public hearing, as the case may be, is closed).
Fifth, the chair should invite a motion. The chair should announce the name of the member of the body who makes the motion.
Sixth, the chair should determine if any member of the body wishes to second the motion. The chair should announce the name of the member of the body who seconds the motion. It is normally good practice for a motion to require a second before proceeding to ensure that it is not just one member of the body who is interested in a particular approach. However, a second is not an absolute requirement, and the chair can proceed with consideration and vote on a motion even when there is no second. This is a matter left to the discretion of the chair.
Seventh, if the motion is made and seconded, the chair should make sure everyone understands the motion.
This is done in one of three ways:
1. The chair can ask the maker of the motion to repeat it;
2. The chair can repeat the motion; or
3. The chair can ask the secretary or the clerk of the body to repeat the motion.
Eighth, the chair should now invite discussion of the motion by the body. If there is no desired discussion, or after the discussion has ended, the chair should announce that the body will vote on the motion. If there has been no discussion or very brief discussion, then the vote on the motion should proceed immediately and there is no need to repeat the motion. If there has been substantial discussion, then it is normally best to make sure everyone understands the motion by repeating it.
August 08, 2023 Regular Meeting of the Lindsay City Council
4 First, the chair would deal with the third (the last) motion on the floor, the substitute motion. After discussion and debate, a vote would be taken first on the third motion. If the substitute motion passed, it would be a substitute for the basic motion and would eliminate it. The first motion would be moot, as would the second motion (which sought to amend the first motion), and the action on the agenda item would be completed on the passage by the body of the third motion (the substitute motion). No vote would be taken on the first or second motions.
Second, if the substitute motion failed, the chair would then deal with the second (now the last) motion on the floor, the motion to amend. The discussion and debate would focus strictly on the amendment (should the committee be five or 10 members). If the motion to amend passed, the chair would then move to consider the main motion (the first motion) as amended. If the motion to amend failed, the chair would then move to consider the main motion (the first motion) in its original format, not amended.
Third, the chair would now deal with the first motion that was placed on the floor. The original motion would either be in its original format (five-member committee), or if amended, would be in its amended format (10-member committee). The question on the floor for discussion and decision would be whether a committee should plan and put on the annual fundraiser.
To Debate or Not to Debate
The basic rule of motions is that they are subject to discussion and debate. Accordingly, basic motions, motions to amend, and substitute motions are all eligible, each in their turn, for full discussion before and by the body. The debate can continue as long as members of the body wish to discuss an item, subject to the decision of the chair that it is time to move on and take action.
There are exceptions to the general rule of free and open debate on motions. The exceptions all apply when there is a desire of the body to move on. The following motions are not debatable (that is, when the following motions are made and seconded, the chair must immediately call for a vote of the body without debate on the motion):
Motion to adjourn. This motion, if passed, requires the body to immediately adjourn to its next regularly scheduled meeting. It requires a simple majority vote.
Motion to recess. This motion, if passed, requires the body to immediately take a recess. Normally, the chair determines the length of the recess which may be a few minutes or an hour. It requires a simple majority vote.
Motion to fix the time to adjourn. This motion, if passed, requires the body to adjourn the meeting at the specific time set in the motion. For example, the motion might be: “I move we adjourn this meeting at midnight.” It requires a simple majority vote.
The motion to amend. If a member wants to change a basic motion that is before the body, they would move to amend it. A motion to amend might be: “I move that we amend the motion to have a 10-member committee.” A motion to amend takes the basic motion that is before the body and seeks to change it in some way.
The substitute motion. If a member wants to completely do away with the basic motion that is before the body, and put a new motion before the body, they would move a substitute motion. A substitute motion might be: “I move a substitute motion that we cancel the annual fundraiser this year.”
“Motions to amend” and “substitute motions” are often confused, but they are quite different, and their effect (if passed) is quite different.
A motion to amend seeks to retain the basic motion on the floor, but modify it in some way. A substitute motion seeks to throw out the basic motion on the floor, and substitute a new and different motion for it. The decision as to whether a motion is really a “motion to amend” or a “substitute motion” is left to the chair. So if a member makes what that member calls a “motion to amend,” but the chair determines that it is really a “substitute motion,” then the chair’s designation governs.
A “friendly amendment” is a practical parliamentary tool that is simple, informal, saves time and avoids bogging a meeting down with numerous formal motions. It works in the following way: In the discussion on a pending motion, it may appear that a change to the motion is desirable or may win support for the motion from some members. When that happens, a member who has the floor may simply say, “I want to suggest a friendly amendment to the motion.” The member suggests the friendly amendment, and if the maker and the person who seconded the motion pending on the floor accepts the friendly amendment, that now becomes the pending motion on the floor. If either the maker or the person who seconded rejects the proposed friendly amendment, then the proposer can formally move to amend.
Multiple Motions Before the Body
There can be up to three motions on the floor at the same time.
The chair can reject a fourth motion until the chair has dealt with the three that are on the floor and has resolved them. This rule has practical value. More than three motions on the floor at any given time is confusing and unwieldy for almost everyone, including the chair.
When there are two or three motions on the floor (after motions and seconds) at the same time, the vote should proceed first on the last motion that is made. For example, assume the first motion is a basic “motion to have a five-member committee to plan and put on our annual fundraiser.” During the discussion of this motion, a member might make a second motion to “amend the main motion to have a 10-member committee, not a five-member committee to plan and put on our annual fundraiser.” And perhaps, during that discussion, a member makes yet a third motion as a “substitute motion that we not have an annual fundraiser this year.” The proper procedure would be as follows:
August 08, 2023 Regular Meeting of the Lindsay City Council
5 Motion to close nominations. When choosing officers of the body (such as the chair), nominations are in order either from a nominating committee or from the floor of the body. A motion to close nominations effectively cuts off the right of the minority to nominate officers and it requires a two-thirds vote to pass.
Motion to object to the consideration of a question. Normally, such a motion is unnecessary since the objectionable item can be tabled or defeated straight up. However, when members of a body do not even want an item on the agenda to be considered, then such a motion is in order. It is not debatable, and it requires a two-thirds vote to pass.
Motion to suspend the rules. This motion is debatable, but requires a two-thirds vote to pass. If the body has its own rules of order, conduct or procedure, this motion allows the body to suspend the rules for a particular purpose. For example, the body (a private club) might have a rule prohibiting the attendance at meetings by non-club members. A motion to suspend the rules would be in order to allow a non-club member to attend a meeting of the club on a particular date or on a particular agenda item.
Counting Votes
The matter of counting votes starts simple, but can become complicated.
Usually, it’s pretty easy to determine whether a particular motion passed or whether it was defeated. If a simple majority vote is needed to pass a motion, then one vote more than 50 percent of the body is required. For example, in a five-member body, if the vote is three in favor and two opposed, the motion passes. If it is two in favor and three opposed, the motion is defeated.
If a two-thirds majority vote is needed to pass a motion, then how many affirmative votes are required? The simple rule of thumb is to count the “no” votes and double that count to determine how many “yes” votes are needed to pass a particular motion. For example, in a seven-member body, if two members vote “no” then the “yes” vote of at least four members is required to achieve a two-thirds majority vote to pass the motion.
What about tie votes? In the event of a tie, the motion always fails since an affirmative vote is required to pass any motion. For example, in a five-member body, if the vote is two in favor and two opposed, with one member absent, the motion is defeated.
Vote counting starts to become complicated when members vote “abstain” or in the case of a written ballot, cast a blank (or unreadable) ballot. Do these votes count, and if so, how does one count them? The starting point is always to check the statutes.
In California, for example, for an action of a board of supervisors to be valid and binding, the action must be approved by a majority of the board. (California Government Code Section 25005.) Typically, this means three of the five members of the board must vote affirmatively in favor of the action. A vote of 2-1 would not be sufficient. A vote of 3-0 with two abstentions would be sufficient. In general law cities in Motion to table. This motion, if passed, requires discussion of the agenda item to be halted and the agenda item to be placed on “hold.” The motion can contain a specific time in which the item can come back to the body. “I move we table this item until our regular meeting in October.” Or the motion can contain no specific time for the return of the item, in which case a motion to take the item off the table and bring it back to the body will have to be taken at a future meeting. A motion to table an item (or to bring it back to the body) requires a simple majority vote.
Motion to limit debate. The most common form of this motion is to say, “I move the previous question” or “I move the question” or “I call the question” or sometimes someone simply shouts out “question.” As a practical matter, when a member calls out one of these phrases, the chair can expedite matters by treating it as a “request” rather than as a formal motion. The chair can simply inquire of the body, “any further discussion?” If no one wishes to have further discussion, then the chair can go right to the pending motion that is on the floor.
However, if even one person wishes to discuss the pending motion further, then at that point, the chair should treat the call for the “question” as a formal motion, and proceed to it.
When a member of the body makes such a motion (“I move the previous question”), the member is really saying: “I’ve had enough debate. Let’s get on with the vote.” When such a motion is made, the chair should ask for a second, stop debate, and vote on the motion to limit debate. The motion to limit debate requires a two-thirds vote of the body.
Note: A motion to limit debate could include a time limit. For example: “I move we limit debate on this agenda item to 15 minutes.” Even in this format, the motion to limit debate requires a twothirds vote of the body. A similar motion is a motion to object to consideration of an item. This motion is not debatable, and if passed, precludes the body from even considering an item on the agenda. It also requires a two-thirds vote.
Majority and Super Majority Votes
In a democracy, a simple majority vote determines a question. A tie vote means the motion fails. So in a seven-member body, a vote of 4-3 passes the motion. A vote of 3-3 with one abstention means the motion fails. If one member is absent and the vote is 3-3, the motion still fails.
All motions require a simple majority, but there are a few exceptions.
The exceptions come up when the body is taking an action which effectively cuts off the ability of a minority of the body to take an action or discuss an item. These extraordinary motions require a two-thirds majority (a super majority) to pass:
Motion to limit debate. Whether a member says, “I move the previous question,” or “I move the question,” or “I call the question,” or “I move to limit debate,” it all amounts to an attempt to cut off the ability of the minority to discuss an item, and it requires a two-thirds vote to pass.
August 08, 2023 Regular Meeting of the Lindsay City Council
6 Now, exactly how does a member cast an “abstention” vote? Any time a member votes “abstain” or says, “I abstain,” that is an abstention. However, if a member votes “present” that is also treated as an abstention (the member is essentially saying, “Count me for purposes of a quorum, but my vote on the issue is abstain.”) In fact, any manifestation of intention not to vote either “yes” or “no” on the pending motion may be treated by the chair as an abstention. If written ballots are cast, a blank or unreadable ballot is counted as an abstention as well.
Can a member vote “absent” or “count me as absent?” Interesting question. The ruling on this is up to the chair. The better approach is for the chair to count this as if the member had left his/her chair and is actually “absent.” That, of course, affects the quorum. However, the chair may also treat this as a vote to abstain, particularly if the person does not actually leave the dais.
The Motion to Reconsider
There is a special and unique motion that requires a bit of explanation all by itself; the motion to reconsider. A tenet of parliamentary procedure is finality. After vigorous discussion, debate and a vote, there must be some closure to the issue. And so, after a vote is taken, the matter is deemed closed, subject only to reopening if a proper motion to consider is made and passed.
A motion to reconsider requires a majority vote to pass like other garden-variety motions, but there are two special rules that apply only to the motion to reconsider.
First, is the matter of timing. A motion to reconsider must be made at the meeting where the item was first voted upon. A motion to reconsider made at a later time is untimely. (The body, however, can always vote to suspend the rules and, by a two-thirds majority, allow a motion to reconsider to be made at another time.)
Second, a motion to reconsider may be made only by certain members of the body. Accordingly, a motion to reconsider may be made only by a member who voted in the majority on the original motion. If such a member has a change of heart, he or she may make the motion to reconsider (any other member of the body — including a member who voted in the minority on the original motion — may second the motion). If a member who voted in the minority seeks to make the motion to reconsider, it must be ruled out of order. The purpose of this rule is finality. If a member of minority could make a motion to reconsider, then the item could be brought back to the body again and again, which would defeat the purpose of finality.
If the motion to reconsider passes, then the original matter is back before the body, and a new original motion is in order. The matter may be discussed and debated as if it were on the floor for the first time.
California, as another example, resolutions or orders for the payment of money and all ordinances require a recorded vote of the total members of the city council. (California Government Code Section 36936.) Cities with charters may prescribe their own vote requirements. Local elected officials are always well-advised to consult with their local agency counsel on how state law may affect the vote count.
After consulting state statutes, step number two is to check the rules of the body. If the rules of the body say that you count votes of “those present” then you treat abstentions one way. However, if the rules of the body say that you count the votes of those “present and voting,” then you treat abstentions a different way. And if the rules of the body are silent on the subject, then the general rule of thumb (and default rule) is that you count all votes that are “present and voting.” Accordingly, under the “present and voting” system, you would NOT count abstention votes on the motion. Members who abstain are counted for purposes of determining quorum (they are “present”), but you treat the abstention votes on the motion as if they did not exist (they are not “voting”). On the other hand, if the rules of the body specifically say that you count votes of those “present” then you DO count abstention votes both in establishing the quorum and on the motion. In this event, the abstention votes act just like “no” votes.
How does this work in practice?
Here are a few examples.
Assume that a five-member city council is voting on a motion that requires a simple majority vote to pass, and assume further that the body has no specific rule on counting votes. Accordingly, the default rule kicks in and we count all votes of members that are “present and voting.” If the vote on the motion is 3-2, the motion passes. If the motion is 2-2 with one abstention, the motion fails.
Assume a five-member city council voting on a motion that requires a two-thirds majority vote to pass, and further assume that the body has no specific rule on counting votes. Again, the default rule applies.
If the vote is 3-2, the motion fails for lack of a two-thirds majority. If the vote is 4-1, the motion passes with a clear two-thirds majority. A vote of three “yes,” one “no” and one “abstain” also results in passage of the motion. Once again, the abstention is counted only for the purpose of determining quorum, but on the actual vote on the motion, it is as if the abstention vote never existed — so an effective 3-1 vote is clearly a two-thirds majority vote.
Now, change the scenario slightly. Assume the same five-member city council voting on a motion that requires a two-thirds majority vote to pass, but now assume that the body DOES have a specific rule requiring a two-thirds vote of members “present.” Under this specific rule, we must count the members present not only for quorum but also for the motion. In this scenario, any abstention has the same force and effect as if it were a “no” vote. Accordingly, if the votes were three “yes,” one “no” and one “abstain,” then the motion fails. The abstention in this case is treated like a “no” vote and effective vote of 3-2 is not enough to pass two-thirds majority muster.
August 08, 2023 Regular Meeting of the Lindsay City Council
7 Appeal. If the chair makes a ruling that a member of the body disagrees with, that member may appeal the ruling of the chair. If the motion is seconded, and after debate, if it passes by a simple majority vote, then the ruling of the chair is deemed reversed.
Call for orders of the day. This is simply another way of saying, “return to the agenda.” If a member believes that the body has drifted from the agreed-upon agenda, such a call may be made. It does not require a vote, and when the chair discovers that the agenda has not been followed, the chair simply reminds the body to return to the agenda item properly before them. If the chair fails to do so, the chair’s determination may be appealed.
Withdraw a motion. During debate and discussion of a motion, the maker of the motion on the floor, at any time, may interrupt a speaker to withdraw his or her motion from the floor. The motion is immediately deemed withdrawn, although the chair may ask the person who seconded the motion if he or she wishes to make the motion, and any other member may make the motion if properly recognized.
Special Notes About Public Input
The rules outlined above will help make meetings very publicfriendly. But in addition, and particularly for the chair, it is wise to remember three special rules that apply to each agenda item:
Rule One: Tell the public what the body will be doing.
Rule Two: Keep the public informed while the body is doing it.
Rule Three: When the body has acted, tell the public what the body did.
Courtesy and Decorum
The rules of order are meant to create an atmosphere where the members of the body and the members of the public can attend to business efficiently, fairly and with full participation. At the same time, it is up to the chair and the members of the body to maintain common courtesy and decorum. Unless the setting is very informal, it is always best for only one person at a time to have the floor, and it is always best for every speaker to be first recognized by the chair before proceeding to speak.
The chair should always ensure that debate and discussion of an agenda item focuses on the item and the policy in question, not the personalities of the members of the body. Debate on policy is healthy, debate on personalities is not. The chair has the right to cut off discussion that is too personal, is too loud, or is too crude.
Debate and discussion should be focused, but free and open. In the interest of time, the chair may, however, limit the time allotted to speakers, including members of the body.
Can a member of the body interrupt the speaker? The general rule is “no.” There are, however, exceptions. A speaker may be interrupted for the following reasons:
Privilege. The proper interruption would be, “point of privilege.” The chair would then ask the interrupter to “state your point.” Appropriate points of privilege relate to anything that would interfere with the normal comfort of the meeting. For example, the room may be too hot or too cold, or a blowing fan might interfere with a person’s ability to hear.
Order. The proper interruption would be, “point of order.” Again, the chair would ask the interrupter to “state your point.” Appropriate points of order relate to anything that would not be considered appropriate conduct of the meeting. For example, if the chair moved on to a vote on a motion that permits debate without allowing that discussion or debate.
August 08, 2023 Regular Meeting of the Lindsay City Council
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August 08, 2023 Regular Meeting of the Lindsay City Council
1 City of Lindsay
Social Media Policy
Adopted on 08/09/2022 via Resolution No. 22-48
August 08, 2023 Regular Meeting of the Lindsay City Council
2 Overview
This policy establishes guidelines for the establishment and use by the City of Lindsay of social media sites (including but not limited to Facebook and Instagram) as a means of conveying City of Lindsay (“City”) information to its citizens.
The intended purpose behind establishing City of Lindsay social media sites is to disseminate information from the City, about the City, to its citizens. The City of Lindsay has an overriding interest in deciding what is “spoken” on behalf of the City on City social media sites.
For purposes of this policy, “social media” is understood to be content created by individuals, using accessible, expandable, and upgradable publishing technologies, through and on the Internet. Examples of social media include, but are not limited to, Facebook, Instagram, YouTube, Twitter, LinkedIn, and blogs. For purposes of this policy, “comments” include information, articles, pictures, videos or any other form of communicative content posted on a City of Lindsay social media site, either as its own post or attached to another post.
General Policy
1. The establishment and use by any City department of City social media sites are subject to approval by the City Manager or his/her designees. All City of Lindsay social media sites shall be administered by City of Lindsay designated staff.
2. City social media sites should make clear on their respective profile pages that they are maintained by the City of Lindsay and that they follow the City’s Social Media Policy.
3. Wherever possible, City social media sites should link back to the official City of Lindsay website for forms, documents, online services and other information necessary to conduct business with the City of Lindsay.
4. Designated staff will monitor content on City social media sites to ensure adherence to both the City’s Social Media Policy and the interest and goals of the City of Lindsay.
5. The City reserves the right to restrict or remove any content that is deemed in violation of this Social Media Policy or any applicable law. Any content removed based on these guidelines must be retained by the City Clerk for a reasonable period of time, including the time, date and identity of the poster, when available.
6. These guidelines must be displayed to users or made available by hyperlink.
August 08, 2023 Regular Meeting of the Lindsay City Council
3 7. The City will approach the use of social media tools as consistently as possible, enterprise wide.
8. The City of Lindsay’s website at https://www.lindsay.ca.us/ will remain the City’s primary and predominant internet presence.
9. All City social media sites shall adhere to applicable federal, state and local laws, regulations and policies.
10. City social media sites are subject to the California Public Records Act. Any content maintained in a social media format that is related to City business, including a list of subscribers, posted communication, and communication submitted for posting, may be a public record subject to public disclosure.
11. Employees representing the City government via City social media sites must conduct themselves at all times as a representative of the City and in accordance with all City policies.
12. This Social Media Policy may be revised at any time.
13. Comments on topics or issues not within the jurisdictional purview of the City of Lindsay may be removed.
14. Any posts deemed to be offensive, derogatory, hostile, or anything that is construed as discriminatory on the basis of race, sex, disability, or religion will be removed.
15. The City does not endorse any links or advertisements that may show up on its Facebook page.
Comment Policy
By posting or commenting on the City of Lindsay’s Facebook page, or other City of Lindsay social media, you agree to the terms of use of the City of Lindsay’s social media comment policy as provided herein.
1. As a public entity the City must abide by certain standards to serve all its constituents in a civil and unbiased manner.
2. The City of Lindsay Facebook and other social media pages are intended to be “family friendly,” so please keep your comments clean by following these simple rules. In addition to keeping it family friendly, we require that you follow our posting guidelines here. Please note that we utilize Facebook’s automatic content filtering feature. All City of Lindsay social media content is subject to monitoring.
3. The intended purpose behind establishing City of Lindsay social media sites is to disseminate information from the City, about the City, to its citizens.
August 08, 2023 Regular Meeting of the Lindsay City Council
4 4. Comments containing any of the following inappropriate forms of content shall not be permitted on City of Lindsay social media sites and are subject to removal and/or restriction by designated staff.
a. Comments not related to the original topic, including random or unintelligible comments; Profane, obscene, violent, or pornographic content and/or language;
b. Content that promotes, fosters or perpetuates discrimination on the basis of race, creed, color, age, religion, gender, or national origin; c. Defamatory or personal attacks;
d. Threats to any person or organization;
e. Comments in support of, or in opposition to, any political campaigns or ballot measures;
f. Solicitation of commerce, including but not limited to advertising of any business or product for sale;
g. Conduct in violation of any federal, state or local law; h. Encouragement of illegal activity;
i. Information that may tend to compromise the safety or security of the public or public systems; or
j. Content that violates a legal ownership interest, such as a copyright, of any party.
k. Harassment or content which constitutes and/or facilitates stalking; l. Content which violates the right to privacy;
m. Encouragement of violence;
n. Repetitive content;
o. Comments which may reasonably interfere with, inhibit, or compromise law enforcement investigations, police tactics, police responses to incidents and/or the safety of police staff and officers; p. Posts or comments that contain any external links.
5. A comment posted by a member of the public on any City of Lindsay social media site is the opinion of the commentator or poster only, and publication of a comment does not imply endorsement of, or agreement by, the City of Lindsay, nor do such comments necessarily reflect the opinions or policies of the City of Lindsay.
6. The City of Lindsay reserves the right to deny access to City of Lindsay social media sites for any individual, who violates the City of Lindsay’s Social Media Policy, at any time and without prior notice.
August 08, 2023 Regular Meeting of the Lindsay City Council
5 7. Comments posted to City of Lindsay social media pages will be monitored and inappropriate content as defined above will be removed as soon as possible and without prior notice. Please note, comments posted to pages are monitored and our Facebook settings will automatically hide a comment if profanity is used within the post.
8. If you need to contact the Lindsay Police Department, please call their front desk at (559) 562-2511, or if it is an emergency, call 911 and ask for assistance. While comments posted on the City’s social media pages are monitored, posting a comment is neither the recommended nor best way to contact the City or Lindsay Police Department.
9. Departments shall monitor their social media sites for comments requesting responses from the City and for comments in violation of this policy.
10. All comments posted to any City of Lindsay Facebook site are bound by Facebook’s Statement of Rights and Responsibilities and Community Standards, located at www.facebook.com/terms.php, and
www.facebook.com/communitystandards, respectfully. The City of Lindsay reserves the right to report any violation of Facebook’s Statement of Rights and Responsibilities and/or Community Standards to Facebook with the intent of Facebook taking appropriate and reasonable responsive action.
11. By posting or commenting on the City of Lindsay social media platforms you agree to our terms of use. You participate by your own choice, taking personal responsibility for your comments, your username and any information you provide therein.
August 08, 2023 Regular Meeting of the Lindsay City Council
STAFF REPORT
TO: Lindsay City Council
FROM: Curtis Cannon, Planning Manager
DEPARTMENT:
ITEM NO.:
City Services and Planning
13.1 MEETING DATE: August 08, 2023
ACTION & RECOMMENDATION
Public Hearing to Consider the Approval of Resolution No. 23-34 A Resolution of the City Council of the City of Lindsay Approving General Plan Amendment No. 23-01, Planned Unit Development No. 2023- 02, and Adopting an Initial Study/Mitigated Negative Declaration (IS/MND) for General Plan Amendment No. 2023-01, Zone Change No. 2023-01, and Planned Unit Development (PUD) No. 2023- 02, A Request by Francisco Acevedo to Change the Land Use Designation from Low-Density Residential to Medium-Density Residential for A 2.5-Acre Portion of A Site Bound to the North by West Hickory Street, to the East By Parkside Avenue, to the South by Ono City Parkway, and the West by Sequoia Avenue/Road 214 (APNs 201-230-003 to -009).
Based on the findings and subject to the conditions of approval within this report, City Staff recommends that the City Council approve Resolution No. 23-36.
BACKGROUND | ANALYSIS
Mario Valmonte and Associates filed the application on behalf of Francisco Acevedo for the development of 116 residential units consisting of 85 single-family lots and 31 multi-family housing units. The proposal includes a General Plan Amendment to change the Land Use Designation from Low-Density Residential to Medium-Density Residential and a Zone Change to change the zone from R-1-7 to RM-3 and Planned Unit Development (PUD) Overlay over a 2.5-acre portion of the site to allow for the development of multi-family housing units. The 32-acre project site is bound to the north by W. Hickory Street, to the East by Parkside Avenue, to the South by Ono City Parkway, and to the West by Sequoia Avenue/Road 214 (APNs 201-230-003 to -009).
The proposed project would result in on-site infrastructure improvements, including the construction of interior access roads with five ingress/egress access points; one along Avenue 236, two along Parkside Avenue, and two along Road 214, new lighting and landscaping in accordance with City standards, and connection to existing City utilities, including water, wastewater and stormwater systems.
General Plan Amendment: The General Plan Land Use Element does not dictate specific procedures to amend land use designations for residential land uses. Instead, the Plan relies on the land use diagram (map) and basic allocations of land areas between various existing and future land uses. The land use August 08, 2023 Regular Meeting of the Lindsay City Council
diagram provides a framework for future growth and development that provides for a balanced range of land uses in locations that are compatible and consistent with City goals. Any amendment to the Plan should consider the impacts of the proposed amendment on other Plan goals, policies, objectives, and standards (such as the Circulation Element). State law allows the City Council to amend any element of the Plan up to four (4) times per year. A new State law prohibits cities from lowering the allowed density through a General Plan Amendment; however, in this case, the allowed density will be increasing. An increased allowed density has the potential to better help the City achieve State-assigned housing goals.
Change of Zone: Since the General Plan relies on the land use diagram (map) and basic allocations of land areas between various existing and future land uses as a resource in determining land use amendments, the proposed amendment would not be in conflict with the policies, objectives, and standards of the General Plan.
City of Lindsay Zoning Ordinance Section 18.22.050.A provides criteria for review of zone changes:
“At the public hearing, the City Council shall review the application or the proposal and may receive pertinent evidence and testimony as to why and how the proposed change is necessary to achieve the objectives of the Zoning Ordinance prescribed in Section 18.01.020, and how or why the proposed change is consistent with the General Plan and the stated purposes and application intended for the zone classification proposed.”
The proposed Land Use Designation of Medium-Density Residential and zoning designation of RM-3 would allow for a 2.5-acre portion of the site to develop with residential uses at a higher density than what is currently planned for. Approval of the project would allow for the development of the site that is consistent with the goals and policies of the General Plan.
Planned Unit Development: The proposed PUD includes the merging of seven existing single-family lots to allow for a 31-unit multi-family development on approximately 2.5 acres. The development will consist of two-story buildings with buildings of six, five, or two units. Each unit includes a single-car garage and a porch and patio. The development will be gated with a six-foot block wall along the perimeter of the project. The site also includes 25 uncovered parking stalls, refuse enclosures, a tot lot, and landscaped common areas.
CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)
As Lead Agency under the California Environmental Quality Act (CEQA), the City staff reviewed the project to determine whether it could have a significant effect on the environment because of its development. In accordance with CEQA Guidelines Section 15382, “[s]ignificant effect on the environment” means a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project, including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance. An Initial Study was prepared and found that although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because revisions in the project in the form of mitigations have been made by or agreed to by the project proponent. A Mitigated Negative Declaration (MND) for the entire 32-acre site and all its stated uses was prepared and is attached. The 20-day public review period began on July 15 and will end on August 08, 2023.
FINDINGS
August 08, 2023 Regular Meeting of the Lindsay City Council
Amendments to the General Plan Map and Zoning Map may be approved by the Council if the proposed amendment is necessary to achieve the objectives of the Zoning Code described in Chapter 18.01 and if the amendment would be consistent with the goals and policies of the General Plan and the purposes and application intended for the zoning district classification proposed.
1. The project has been reviewed for compliance with the Municipal Code and the Subdivision Map Act and was found to be in compliance with the incorporation of the recommended Conditions of Approval.
2. The amendment is consistent with the goals and policies of the General Plan and the purposes and applications intended for the zoning district classification proposed.
Pursuant to Section 18.19.070 of the Lindsay Municipal Code, a PUD may be approved if the proposed map meets the findings of the Municipal Code and the Conditions of Approval. Staff has determined the project meets the findings of the Municipal Code and included Conditions of Approval.
1. The proposed location of the PUD is in accordance with the objectives of the Zoning Code.
The Zoning Code allows for a PUD to be located in any zone district other than R-1-7X. No part of this project is located in the R-1-7X zone.
2. The proposed location of the PUD and the conditions under which it would be operated or maintained will not be detrimental to the public health, safety, and welfare or materially injurious to properties or improvements in the vicinity.
Staff has determined, with the analysis included in the Mitigated Negative Declaration for this project, that the PUD and the conditions under which it would be operated or maintained will not be detrimental to the public health, safety, and welfare or materially injurious to properties or improvements in the vicinity.
3. The proposed PUD will comply with each of the applicable provisions of this section.
The project has been found by staff to be in compliance with the Lindsay Municipal Code, including Section 18.19.070.
4. The standards of population density, site area and dimensions, site coverage, yard spaces, the height of structures, the distance between structures, off-street parking and off-street loading facilities, landscaped areas, and street design will produce an environment of stable and desirable character consistent with the objectives of the Zoning Code and will not generate more traffic than the streets in the vicinity can carry without congestion and will not overload utilities.
Staff has determined, with the analysis included in the Mitigated Negative Declaration for this project, that the standards of population density, site area and dimensions, site coverage, yard spaces, the height of structures, the distance between structures, off-street parking and off-street loading facilities, landscaped areas, and street design will produce an environment of stable and desirable character consistent with the objectives of the Zoning Code, and will not generate more traffic than the streets in the vicinity can carry without congestion and will not overload utilities.
5. That the combination of different dwelling types and/or a variety of land uses in the development will complement each other and will harmonize with existing and proposed land uses in the vicinity.
Staff has determined the combination of dwelling types will complement each other and will harmonize with existing and proposed land uses in the vicinity.
August 08, 2023 Regular Meeting of the Lindsay City Council
6. That the proposed PUD will satisfactorily mitigate potential environmental impacts in accordance with the provisions of Section 18.18.070 of this title.
Staff has determined, with the analysis included in the Mitigated Negative Declaration for this project, the proposed PUD will satisfactorily mitigate potential environmental impacts in accordance with the provisions of Section 18.18.070 of this title.
RECOMENDED APPROVAL FINDINGS
1. The amendment is consistent with the goals and policies of the General Plan and the purposes and application intended for the zoning district classification proposed.
2. That the proposed location of the PUD is in accordance with the objectives of the Zoning Code.
3. That the proposed location of the PUD and the conditions under which it would be operated or maintained will not be detrimental to the public health, safety, and welfare or materially injurious to properties or improvements in the vicinity.
4. That the proposed PUD will comply with each of the applicable provisions of this section.
5. That the standards of population density, site area and dimensions, site coverage, yard spaces, the height of structures, the distance between structures, off-street parking and off-street loading facilities, landscaped areas, and street design will produce an environment of stable and desirable character consistent with the objectives of the Zoning Code and will not generate more traffic than the streets in the vicinity can carry without congestion and will not overload utilities.
6. That the combination of different dwelling types and/or a variety of land uses in the development will complement each other and will harmonize with existing and proposed land uses in the vicinity.
7. That the proposed PUD will satisfactorily mitigate potential environmental impacts in accordance with the provisions of Section 18.18.070 of this title.
RECOMMENDED CONDITIONS
1. The site shall be developed consistent with the exhibits provided and applicable development standards found in the Zoning Ordinance and City Municipal Code.
2. All mitigation measures in the Mitigated Negative Declaration were approved with General Plan Amendment No. 2023-01, Zone Change No. 2023-01, and Planned Unit Development No. 2023-02.
3. The project shall be developed and maintained in substantial compliance with the conditions of the Tentative Subdivision Map contained in Resolution 05-36 and Resolution 07-05, except as modified by these conditions of approval.
4. All fences and walls shall be constructed in accordance with Section 18.06.050 Property Development Standards of the City Municipal Code.
5. Construct all frontage improvements along Whitney Street, including curb, gutter, sidewalk, drive approach(es), landscape and irrigation. Whitney Street construction (minimum of 2-12’ wide travel lanes, 4’ wide minimum paved shoulder on the north side, and 8’ wide parking on the south side) in accordance with the approved plans for Mission Estates Subdivision.
6. Construct Whitney Street to Sequoia Avenue and Parkside Avenue to include a minimum of 2-12’ wide travel lanes, 4’ wide minimum paved shoulder on the north side, and 8’ wide August 08, 2023 Regular Meeting of the Lindsay City Council
parking on the south side in accordance with the approved plans for Mission Estates Subdivision.
7. Construct sewer, water, storm drain facilities, and streetlights in accordance with the approved plans for Mission Estates Subdivision and other private utilities (SCE, SoCalGas, AT&T, Comcast, Frontier) in Whitney Street from Sequoia Avenue to Parkside Avenue to serve the development.
8. Vacate the right of way for Napa Boulevard south of Whitney Street in accordance with the California Streets and Highway Code, the Subdivision Map Act, and the City Municipal Code.
9. The developer shall remove the parks from the subdivision by application for lot line adjustment(s) and/or parcel map(s) in accordance with the Subdivision Map Act and City Municipal Code.
10. Inspect and test existing facilities constructed in Whitney Street for the Mission Estates Subdivision as directed by and to the satisfaction of the City to confirm the adequacy of facilities and/or determine improvements to be constructed.
11. A merger of the lots shall be completed by a licensed surveyor to remove the lines of the seven lots of the PUD and recorded prior to the application for a building permit.
12. Plans for all public and private improvements, including but not limited to water, sewer, storm drainage, road pavement, curb and gutter, sidewalk, streetlights, landscaping, and fire hydrants shall be approved by the City Engineer, and these improvements shall be completed in accordance with the approved plans to the satisfaction of the City Services Department.
13. Parkland in-lieu fees shall be paid to the City for each lot in accordance with the City’s Fee Schedule adopted by resolution of the City Council. Fees shall be paid prior to approval of the Final Map.
14. The project shall be subject to the applicable development impact fees adopted by resolution of the City Council.
15. The developer shall comply with the standards, provisions, and requirements of the San Joaquin Valley Air Pollution Control District that relate to the project.
16. Fire hydrant types and locations shall be approved by the Public Safety and City Services Departments.
17. Concrete pads for the installation of mailboxes shall be provided in accordance with determinations made by the Lindsay Postmaster.
18. One tree shall be planted in the front yard of each home prior to the certificate of occupancy being issued.
19. Streetlights shall be provided within the project as per City local street lighting standards.
20. Any existing roadway, sidewalk, or curb and gutter that is damaged during construction shall be repaired or replaced to the satisfaction of the City Services Department.
21. All signs shall require a sign permit separate from the building permit.
22. The PUD approval shall expire within two years; an extension is granted by the City.
23. The City of Lindsay shall not be liable for any damage, loss, or injury to the person, property, or effects of the applicant or of any agent, servant, employee, contracted staff, or volunteer.
The applicant agrees to indemnify, protect, and hold harmless the City of Lindsay against any and all such damages, costs, attorney's fees, or employees.
FISCAL IMPACT
No fiscal impact associated with this action at this time. Development impact fees will be paid when the residential units are constructed in accordance with City policy and State law.
August 08, 2023 Regular Meeting of the Lindsay City Council
ATTACHMENTS
• Proof of Notice of Public Hearing
• Proof of Notice of Public Hearing Mailed to Property Owners within 300 feet • Mission Estates Subdivision Map
• PUD Site Plan
• IS/MND for General Plan Amendment No. 2023-01, Zone Change No. 2023-01, and Planned Unit Development No. 2023-02
• Resolution No. 23-34
August 08, 2023 Regular Meeting of the Lindsay City Council
CITY OF LINDSAY
PUBLIC NOTICE OF AVAILABILITY
NOTICE OF PUBLIC HEARING
Date: Tuesday, August 8, 2023
Time: 6:00 PM or as soon thereafter
Location: Council Chambers City Hall
251 East Honolulu Street, Lindsay, CA 93247
NOTICE IS HEREBY GIVEN that the City Council of the City of Lindsay, California, will hold a public hearing on August 8, 2023, beginning at 6:00 PM (or as soon thereafter as the matter can be heard) to solicit public comments relating to the following matter:
CONSIDERATION OF GENERAL PLAN AMENDMENT NO. 2023-01, ZONE CHANGE NO. 2023-01, PLANNED UNIT DEVELOPMENT NO. 2023-01 AND THE ACCOMPANYING INITIAL STUDY/MITIGATED NEGATIVE DECLARATION (IS/MND). MARIO VALMONTE AND ASSOCIATES FILED THE
APPLICATION FOR GENERAL PLAN AMENDMENT, ZONE CHANGE, AND PUD FOR THE DEVELOPMENT OF 116 RESIDENTIAL UNITS CONSISTING OF 85 SINGLE-FAMILY LOTS AND 31 MULTI-FAMILY HOUSING UNITS. THE PROPOSAL INCLUDES A GENERAL PLAN AMENDMENT TO
CHANGE THE LAND USE DESIGNATION FROM LOW-DENSITY RESIDENTIAL TO MEDIUM-DENSITY RESIDENTIAL AND A ZONE CHANGE TO CHANGE THE ZONE FROM R-1-7 TO RM-3 AND PUDOVERLAY OVER THE SOUTHERN MULTI-FAMILY HOUSING UNITS. THE 32-ACRE PROJECT SITE IS BOUND TO THE NORTH BY W. HICKORY STREET, TO THE EAST BY PARKSIDE AVENUE, TO THE SOUTH BY ONO CITY PARKWAY, AND THE WEST BY SEQUOIA AVENUE/ROAD 214 (APNS 201-230- 003 TO -009).
This is to advise that the City of Lindsay has prepared an IS/MND in conformance with the California Environmental Quality Act (CEQA) for the project identified herein. As mandated by State law, the minimum public review period for this document is 20 days.
FURTHER information on this matter and the full text of the proposed documents may be obtained from the City of Lindsay City Services Office, 150 N. Mirage Avenue, Lindsay, CA, from 8:00 a.m. to 5:00 p.m., Monday through Friday of the comment period. Due to the limits mandated by State law, mailed responses must be filed with the City of Lindsay, Planning, P.O. Box 369, Lindsay, CA 93247 no later than August 8, 2023, at 5:00 p.m. Persons having comments or concerns about the proposed project are encouraged to attend and offer their comments at the hearing. Written comments can also be filed in the City of Lindsay City Services Office, 150 N. Mirage Avenue, Lindsay, CA prior to the date of the hearing. If you challenge the proposed action in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City at, or prior to, the Public Hearing.
BY ORDER OF THE CITY COUNCIL OF THE CITY OF LINDSAY
Dated: July 13, 2023
August 08, 2023 Regular Meeting of the Lindsay City Council
NOTICE OF PUBLIC HEARING
The City of Lindsay invites you to the public hearing for the consideration of the project below.
This public hearing will be your opportunity to communicate any questions or concerns regarding the proposed project.
Hearing Date and Time: Tuesday, August 8th, 2023, at 6:00pm Hearing Location: Council Chambers, City Hall, 251 E Honolulu St, Lindsay CA 93247 Project: General Plan Amendment, Zone Change and Initial Study and Mitigated Negative Declaration
Project Location: Mission Estates is a vacant lot with surrounding streets: Sequoia Ave, W Hickory St, Parkside Ave, and Ono City Parkway.
Project Description: Multi-family and single-family homes.
AVISO DE AUDIENCIA PUBLICA
La Ciudad de Lindsay los invita a la junta de audiencia pública para la consideración del proyecto descrito en este aviso. Esta junta servirá como oportunidad de expresar cualquier preocupación o pregunta que usted tenga.
Hora y fecha de junta: martes, 8 de agosto, 2023 a las 6:00pm Ubicación de la junta: sala del ayuntamiento, City Hall, 251 E Honolulu St. Lindsay, CA 93247 Proyecto: Enmienda del Plan General Municipal, Cambio de Zona, Primer Estudio Ambiental y Declaración Negativa Mitigada
Ubicación del proyecto: Mission Estates es un lote vacío. Las calles que rodean el lote son:
Sequoia Ave, W Hickory St, Parkside Ave y Ono City Parkway.
Descripción de proyecto: viviendas multifamiliar y unifamiliares.
If you have any questions, feel free to call and ask for Curtis Cannon at 559-562-7102 ext. 4.
Si tiene alguna pregunta, llame y pida por Curtis Cannon al numero 559-562-7102 ext.4.
Thank you/Gracias,
Lindsay City Services
DEPARTMENT OF CITY SERVICES
7102 ext. 4
August 08, 2023 Regular Meeting of the Lindsay City Council
August 08, 2023 Regular Meeting of the Lindsay City Council
August 08, 2023 Regular Meeting of the Lindsay City Council
Mission Estates Residential Project | Initial Study
Mission Estates Residential Project Initial Study
Prepared for:
City of Lindsay
251 E. Honolulu St.
Lindsay, CA 93247
(559) 562-7102
Contact: Neyba Amezcua
Prepared by:
Crawford & Bowen Planning, Inc.
113 N. Church Street, Suite 310
Visalia, CA 93291
(559) 840-4414
Contact: Emily Bowen, LEED AP
July 2022
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TABLE OF CONTENTS
PROJECT INFORMATION ................................................................................................. 4 Project title ......................................................................................................................... 4 Lead agency name and address ..................................................................................... 4 Contact person and phone number ............................................................................... 4 Project location ................................................................................................................. 4 Project sponsor’s name/address ..................................................................................... 7 General plan designation ................................................................................................ 7 Zoning ............................................................................................................................... 7 Project Description ........................................................................................................... 7 Surrounding Land Uses/Existing Conditions .............................................................. 8 Other Public Agencies Involved .................................................................................. 11 Tribal Consultation ........................................................................................................ 11 ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED ................................... 12 DETERMINATION ............................................................................................................. 12 ENVIRONMENTAL CHECKLIST ................................................................................... 14 I. AESTHETICS ............................................................................................................... 14 II. AGRICULTURE AND FOREST RESOURCES ...................................................... 19 III. AIR QUALITY ........................................................................................................ 22 IV. BIOLOGICAL RESOURCES ................................................................................... 30 V. CULTURAL RESOURCES ...................................................................................... 41 VI. ENERGY ................................................................................................................... 47 VII. GEOLOGY AND SOILS......................................................................................... 52 August 08, 2023 Regular Meeting of the Lindsay City Council
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VIII. GREENHOUSE GAS EMISSIONS ...................................................................... 59 IX. HAZARDS AND HAZARDOUS MATERIALS .................................................. 64 X. HYDROLOGY AND WATER QUALITY ............................................................. 69 XI. LAND USE AND PLANNING ............................................................................. 75 XII. MINERAL RESOURCES ........................................................................................ 80 XIII. NOISE ..................................................................................................................... 82 XIV. POPULATION AND HOUSING ........................................................................ 86 XV. PUBLIC SERVICES ................................................................................................. 89 XVI. RECREATION ....................................................................................................... 93 XVII. TRANSPORTATION/TRAFFIC ......................................................................... 95 XVIII. TRIBAL CULTURAL RESOURCES ............................................................... 100 XX. WILDFIRE .............................................................................................................. 109 XXI. MANDATORY FINDINGS OF SIGNIFICANCE .......................................... 111 LIST OF PREPARERS ....................................................................................................... 113 Persons and Agencies Consulted ............................................................................... 113 August 08, 2023 Regular Meeting of the Lindsay City Council
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PROJECT INFORMATION
This document is the Initial Study/Mitigated Negative Declaration on the potential environmental effects of the City of Lindsay’s (City) Mission Estates Residential Project (Project).
The City of Lindsay will act as the Lead Agency for this project pursuant to the California Environmental Quality Act (CEQA) and the CEQA Guidelines. Copies of all materials referenced in this report are available for review in the project file during regular business hours at 251 E.
Honolulu Street, Lindsay, CA 93247.
Project title
Mission Estates Residential Project
Lead agency name and address
City of Lindsay
251 E. Honolulu St.
Lindsay, CA 93247
Contact person and phone number
Neyba Amezcua, Director of City Services and Planning
City of Lindsay (559) 562-7102
Project location
The City of Lindsay is located in Tulare County in the southern part of the San Joaquin Valley.
The 32-acre Project site is located in the northern portion of the City, bound to the north by W Hickory Street, to the east by Parkside Avenue, to the south by Ono City Parkway, and to the west by Sequoia Avenue/Road 214. See Figure 1. Lindsay is bounded to the west by State Route (SR) 65.
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Figure 1 – Location
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Figure 2 – Site Aerial
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Project sponsor’s name/address
Mario Valmonte and Associates
5379 N. Aurora Ave
Fresno, CA 93722
General plan designation
Low Density Residential
Zoning
R-1-7
Project Description
The proposed Project consists of the development of 116 residential units consisting of 85 singlefamily housing and 31 multi-family housing units. The proposed Project also includes a PUDOverlay for eight lots to accommodate for the multi-family housing. As a part of the Project, the Land Use Map of the Lindsay General Plan would be amended to change the land use designation of the southern part of the site to medium density residential and the zone would be changed to RM-3 (multi-family residential), which would be consistent with the General Plan land use designation. The RM-3 zone on approximately 2.5 acres of land would allow for the development of up to 31 multi-family units at full buildout.
Project Components
• Construction of 85 single family residential units.
• Construction of 31 multi-family residential units.
• Construction of interior access roads with five ingress/egress access points; one along Avenue 236, two along Parkside Avenue, and two along Road 214. • New lighting and landscaping in accordance with City standards. • Connection to existing City utilities, including water, wastewater and stormwater systems.
• General Plan Amendment to change the Land Use Designation from low density residential to medium density residential and to accommodate a PUD-Overlay over the southern multi-family housing units (APNs 201-230-003, -004, -005, -006, -007, -008, and - 009).
• Zone change to change the zone from R-1-7 to RM-3 in the southern portion of the site to accommodate the multi-family residential.
August 08, 2023 Regular Meeting of the Lindsay City Council
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Surrounding Land Uses/Existing Conditions
The proposed Project site is currently vacant and highly disturbed with minimal vegetation.
Lands directly surrounding the proposed Project are described as follows:
• North: Roosevelt Elementary School, and vacant/agricultural land. • South: Vacant land parcel, County Health Agency, and Lindsay Wellness Center and City Park identified as Public & Semi-Public Facility and Park & Recreation. • East: Existing single-family residence and residential housing development, identified as Very Low and Low Density Residential.
• West: Residential housing development, identified as Low Density Residential.
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Figure 3 – Site Plan
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Figure 4 – Multi-family Site Plan
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Other Public Agencies Involved
• The adoption of a Mitigated Negative Declaration by the City of Lindsay • Approval of a General Plan Amendment by the City of Lindsay • Approval of a Zone Change by the City of Lindsay
• Approval of Building Permits by the City of Lindsay
• Approval of a Stormwater Pollution Prevention Plan by the Central Valley Regional Water Quality Control Board
• Dust Control Plan Approval letter from the San Joaquin Valley Air Pollution Control District
• Compliance with other federal, state and local requirements.
Tribal Consultation
The City of Lindsay has not received any project-specific requests from any Tribes in the geographic area with which it is traditionally and culturally affiliated with or otherwise to be notified about projects in the City of Lindsay.
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ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED
The environmental factors checked below would be potentially affected by this project, involving at least one impact that is a “Potentially Significant Impact” as indicated by the checklist on the following pages.
Aesthetics Agriculture Resources
and Forest Resources
Air Quality
Biological Resources Cultural Resources Energy
Geology / Soils Greenhouse Gas
Emissions
Hazards &
Hazardous
Materials
Hydrology / Water
Quality
Land Use / Planning Mineral Resources
Noise Population / Housing Public Services
Recreation Transportation Tribal Cultural
Resources
Utilities / Service
Systems
Wildfire Mandatory
Findings of
Significance
DETERMINATION
On the basis of this initial evaluation:
I find that the proposed project COULD NOT have a significant effect on the environment, and a NEGATIVE DECLARATION will be prepared.
I find that although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because revisions in the August 08, 2023 Regular Meeting of the Lindsay City Council
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project have been made by or agreed to by the project proponent. A MITIGATED NEGATIVE DECLARATION will be prepared.
I find that the proposed project MAY have a significant effect on the environment, and an ENVIRONMENTAL IMPACT REPORT is required.
I find that the proposed project MAY have a “potentially significant impact” or “potentially significant unless mitigated” impact on the environment, but at least one effect 1) has been adequately analyzed in an earlier document pursuant to applicable legal standards, and 2) has been addressed by mitigation measures based on the earlier analysis as described on attached sheets. An ENVIRONMENTAL IMPACT REPORT is required, but it must analyze only the effects that remain to be addressed.
I find that although the proposed project could have a significant effect on the environment, because all potentially significant effects (a) have been analyzed adequately in an earlier EIR or NEGATIVE DECLARATION pursuant to applicable standards, and (b) have been avoided or mitigated pursuant to that earlier EIR or NEGATIVE DECLARATION, including revisions or mitigation measures that are imposed upon the proposed project, nothing further is required.
Neyba Amezcua
Director of City Services and Planning
City of Lindsay
Date
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ENVIRONMENTAL CHECKLIST
I. AESTHETICS
Would the project:
Potentially
Significant
Impact
Less than
Significant
With
Mitigation
Incorporation
Less than
Significant
Impact
No
Impact
a. Have a substantial adverse effect on a
scenic vista?
b. Substantially damage scenic resources,
including, but not limited to, trees, rock
outcroppings, and historic buildings within
a state scenic highway?
c. In non-urbanized areas, substantially
degrade the existing visual character or
quality of public views of the site and its
surroundings? (Public views are those that
are experienced from publicly accessible
vantage point). If the project is in an
urbanized area, would the project conflict
with applicable zoning and regulations
governing scenic quality?
d. Create a new source of substantial light or
glare which would adversely affect day or
nighttime views in the area?
ENVIRONMENTAL SETTING
The proposed Project site is located on the San Joaquin Valley floor in the northern portion of the City of Lindsay, California. TulareWorks Health & Human Services Agency office lies to the southwest of the site and Mt Olive Lutheran Church to the east. The site is bounded to the east by Parkside Avenue, with residential development beyond the roadway and to the south by Ono City Parkway, with Lindsay Wellness Center beyond the roadway. The site is bounded by Sequoia Avenue/Road 214 to the west, with residential development and agricultural/vacant land beyond the roadway in that direction. West Hickory Street lies to the north of the site, with Roosevelt Elementary School, agricultural/vacant land, August 08, 2023 Regular Meeting of the Lindsay City Council
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and a rural residence beyond the roadway. The aesthetic features of the existing visual environment in the proposed Project area are residential and some agricultural. There are no scenic resources or scenic vistas in the area. State Routes (SR) in the proposed Project vicinity include SR 65.
REGULATORY SETTING
Federal
Aesthetic resources are protected by several federal regulations, none of which are relevant to the proposed Project because it will not be located on lands administered by a federal agency, and the proposed Project applicant is not requesting federal funding or a federal permit.
State
Nighttime Sky – Title 24 Outdoor Lighting Standards
The Energy Commission adopted changes to Title 24, Parts 1 and 6, Building Energy Efficiency Standards (Standards), on April 23, 2008. These new Standards became effective on January 1, 2010.
Requirements for outdoor lighting remained consistent with past Standards and the requirements vary according to which “Lighting Zone” the equipment is in. The Standards contain lighting power allowances for newly installed equipment and specific alterations that are dependent on which Lighting Zone the Project is located in. Existing outdoor lighting systems are not required to meet these lighting power allowances. However, alterations that increase the connected load, or replace more than 50% of the existing luminaires, for each outdoor lighting application that is regulated by the Standards, must meet the lighting power allowances for newly installed equipment.
An important part of the Standards is to base the lighting power that is allowed on how bright the surrounding conditions are. The eyes adapt to darker surrounding conditions, and less light is needed to properly see; when the surrounding conditions get brighter, more light is needed to see.
The least power is allowed in Lighting Zone 1 and increasingly more power is allowed in Lighting Zones 2, 3, and 4.
The Energy Commission defines the boundaries of Lighting Zones based on U.S. Census Bureau boundaries for urban and rural areas as well as the legal boundaries of wilderness and park areas.
By default, government designated parks, recreation areas and wildlife preserves are Lighting Zone 1; rural areas are Lighting Zone 2; and urban areas are Lighting Zone 3. Lighting Zone 4 is a special use district that may be adopted by a local government.
California Scenic Highway Program
August 08, 2023 Regular Meeting of the Lindsay City Council
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The Scenic Highway Program allows county and city governments to apply to the California Department of Transportation (Caltrans) to establish a scenic corridor protection program which was created by the Legislature in 1963. Its purpose is to protect and enhance the natural scenic beauty of California highways and adjacent corridors, through special conservation treatment. The state laws governing the Scenic Highway Program are found in the Streets and Highways Code, Sections 260 through 263. While not Designated State Scenic Highways, two Eligible State Scenic Highways occur in Tulare County, SR 198 and SR 190.
RESPONSES
a. Have a substantial adverse effect on a scenic vista? Less than Significant Impact. The proposed Project includes the construction of up to 116 residential units (31 multi-family units and 85 single-family units) and the improvements associated with a new residential development, including lighting and site landscaping. The structures will conform to design standards set forth by the City’s General Plan and Zoning Ordinance. The proposed Project site is located in an area that is largely surrounded by urban uses, with some agricultural/vacant land to the north and west and will not result in a use that is visually incompatible with the surrounding area.
A scenic vista is generally considered a view of an area that has remarkable scenery or a resource that is indigenous to the area. The Project is located in an area of minimal topographic relief, and views of the site are easily obscured by buildings, other structures, and trees. Neither the Project area nor any surrounding land use contains features typically associated with scenic vistas (e.g., ridgelines, peaks, overlooks).
Construction activities will be visible from the adjacent roadsides; however, the construction activities will be temporary in nature and will not affect a scenic vista. The impact will be less than significant.
Mitigation Measures: None are required.
b. Substantially damage scenic resources, including, but not limited to, trees, rock outcroppings, and historic buildings within a state scenic highway?
Less than Significant Impact. There are no state designated scenic highways within the immediate proximity to the Project site. California Department of Transportation Scenic Highway Mapping System identifies SR 198 east of SR 99 as an Eligible State Scenic Highway. This is the closest highway, located August 08, 2023 Regular Meeting of the Lindsay City Council
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approximately 7.5 miles north of the Project site, and the Project site is both physically and visually separated from SR 198 by intervening land uses.
The Tulare County General Plan designates County Scenic Roads, and the closest Scenic Road is Road 216 which ends north of the Project site. The proposed residential Project will be in conformance with City landscaping and design standards and will blend in with the residential development to the north, east and west.
Based on the National Register of Historic Places (NRHP) and the City’s General Plan, no historic buildings exist on the Project site. The proposed Project would not cause damage to rock outcroppings or historic buildings within a State scenic highway corridor. Any impacts would be considered less than significant.
Mitigation Measures: None are required.
c. In non-urbanized areas, substantially degrade the existing visual character or quality of public views of the site and its surroundings? (Public views are those that are experienced from publicly accessible vantage point). If the project is in an urbanized area, would the project conflict with applicable zoning and regulations governing scenic quality?
Less than Significant Impact. Site construction will include residences, internal access roads, lighting and site landscaping. The residences will be single-family and multi-family and will conform to design standards set forth by the City’s General Plan, Zoning Ordinance, and the Housing Element. The proposed Project site is located in an area that is largely surrounded by urban uses, including residential, and as such, will not result in a use that is visually incompatible with the surrounding area. The proposed Project will not substantially degrade the existing visual character or quality of the area or its surroundings.
The impact will be less than significant.
Mitigation Measures: None are required.
d. Create a new source of substantial light or glare which would adversely affect day or nighttime views in the area?
Less Than Significant Impact. Nighttime lighting is necessary to provide and maintain safe, secure, and attractive environments; however, these lights have the potential to produce spillover light and glare and August 08, 2023 Regular Meeting of the Lindsay City Council
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waste energy, and if designed incorrectly, could be considered unattractive. Light that falls beyond the intended area is referred to as “light trespass.” Types of light trespass include spillover light and glare.
Minimizing all these forms of obtrusive light is an important environmental consideration. A less obtrusive and well-designed energy efficient fixture would face downward, emit the correct intensity of light for the use, and incorporate energy timers.
Spillover light is light emitted by a lighting installation that falls outside the boundaries of the property on which the installation is sited. Spillover light can adversely affect light-sensitive uses, such as residential neighborhoods at nighttime. Because light dissipates as it travels from the source, the intensity of a light fixture is often increased at the source to compensate for the dissipated light. This can further increase the amount of light that illuminates adjacent uses. Spillover light can be minimized by using only the level of light necessary, and by using cutoff type fixtures or shielded light fixtures, or a combination of fixture types.
Glare results when a light source directly in the field of vision is brighter than the eye can comfortably accept. Squinting or turning away from a light source is an indication of glare. The presence of a bright light in an otherwise dark setting may be distracting or annoying, referred to as discomfort glare, or it may diminish the ability to see other objects in the darkened environment, referred to as disability glare.
Glare can be reduced by design features that block direct line of sight to the light source and that direct light downward, with little or no light emitted at high (near horizontal) angles, since this light would travel long distances. Cutoff-type light fixtures minimize glare because they emit relatively low-intensity light at these angles.
Current sources of light in the Project area include streetlights, light from the Roosevelt Elementary School, City Park, and Health & Human Services Agency parking area, the vehicles traveling along adjacent roadways, and light from nearby residences. The Project would necessitate street lighting. Such lighting would be subject to the requirements of the City of Lindsay General Plan. Accordingly, the Project would not create substantial new sources of light or glare. Potential impacts are less than significant.
Mitigation Measures: None are required.
August 08, 2023 Regular Meeting of the Lindsay City Council
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II. AGRICULTURE AND FOREST
RESOURCES
Would the project:
Potentially
Significant
Impact
Less than
Significant
With
Mitigation
Incorporation
Less than
Significant
Impact
No
Impact
a. Convert Prime Farmland, Unique
Farmland, or Farmland of Statewide
Importance (Farmland), as shown on the
maps prepared pursuant to the Farmland
Mapping and Monitoring Program of the
California Resources Agency, to nonagricultural use?
b. Conflict with existing zoning for
agricultural use, or a Williamson Act
contract?
c. Conflict with existing zoning for, or cause
rezoning of, forest land (as defined in
Public Resources Code section 12220(g)),
timberland (as defined by Public
Resources Code section 4526), or
timberland zoned Timberland Production
(as defined by Government Code section
51104(g))?
d. Result in the loss of forest land or
conversion of forest land to non-forest
use?
e. Involve other changes in the existing
environment which, due to their location
or nature, could result in conversion of
Farmland, to non-agricultural use or
conversion of forest land to non-forest
use?
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ENVIRONMENTAL SETTING
The proposed Project site is located within the northern boundary of the City of Lindsay. The site is considered Farmland of Local Importance by the State Farmland Mapping and Monitoring Program; however, is not enrolled in Williamson Act contracts. Surrounding land is primarily Urban and Built-Up Land, with some portions of land to the north and the west designated as Farmland of Statewide Importance.
REGULATORY SETTING
Federal
Federal regulations for agriculture and forest resources are not relevant to the proposed Project because it is not a federal undertaking (the Project site is not located on lands administered by a federal agency, and the Project applicant is not requesting federal funding or a federal permit).
State
State regulations for agriculture and forest resources relevant to the proposed Project include the Williamson Act (1965), as the Project site is currently enrolled in a Williamson Act contract and will require cancellation upon Project development.
RESPONSES
a. Convert Prime Farmland, Unique Farmland, or Farmland of Statewide Importance (Farmland), as shown on the maps prepared pursuant to the Farmland Mapping and Monitoring Program of the California Resources Agency, to non-agricultural use?
b. Conflict with existing zoning for agricultural use, or a Williamson Act contract? c. Conflict with existing zoning for, or cause rezoning of, forest land (as defined in Public Resources Code section 12220(g)), timberland (as defined by Public Resources Code section 4526), or timberland zoned Timberland Production (as defined by Government Code section 51104(g))? d. Result in the loss of forest land or conversion of forest land to non-forest use? e. Involve other changes in the existing environment which, due to their location or nature, could result in conversion of Farmland, to non-agricultural use or conversion of forest land to non-forest use? August 08, 2023 Regular Meeting of the Lindsay City Council
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No Impact. The Project site is considered Farmland of Local Importance by the State Farmland Mapping and Monitoring Program.1 No Prime Farmland, Unique Farmland, or Farmland of Statewide Importance or land under the Williamson Act contracts occurs in the Project area. Therefore, no land conversion from Farmland would occur for the Project. Immediate surrounding land uses include residential, park and recreation, institutional, and public and semi-public facilities. The proposed site is planned for development and as such, the proposed Project does not have the potential to result in the conversion of Farmland to non-agricultural uses or forestland uses to non-forestland. The proposed site is not currently being farmed. The Project is not zoned for forestland and does not propose any zone changes related to forest or timberland. There is no impact.
Mitigation Measures: None are required.
1California Department of Conservation, California Important Farmland Finder. https://maps.conservation.ca.gov/DLRP/CIFF/. Accessed April 2022.
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III. AIR QUALITY
Would the project:
Potentially
Significant
Impact
Less than
Significant
With
Mitigation
Incorporation
Less than
Significant
Impact
No
Impact
a. Conflict with or obstruct implementation
of the applicable air quality plan?
b. Result in a cumulatively considerable net
increase of any criteria pollutant for
which the project region is nonattainment under an applicable federal or state ambient air quality standard?
c. Expose sensitive receptors to substantial
pollutant concentrations?
d. Result in other emissions (such as those
leading to odors or adversely affecting a
substantial number of people)?
ENVIRONMENTAL SETTING
The climate of the San Joaquin Valley is characterized by long, hot summers and stagnant, foggy, winters.
Precipitation is low and temperature inversions are common. These characteristics are conducive to the formation and retention of air pollutants and are in part influenced by the surrounding mountains which intercept precipitation and act as a barrier to the passage of cold air and air pollutants.
The proposed Project lies within the San Joaquin Valley Air Basin, which is managed by the San Joaquin Valley Air Pollution Control District (SJVAPCD or Air District). National Ambient Air Quality Standards (NAAQS) and California Ambient Air Quality Standards (CAAQS) have been established for the following criteria pollutants: carbon monoxide (CO), ozone (O3), sulfur dioxide (SO2), nitrogen dioxide (NO2), particulate matter (PM10 and PM2.5), and lead (Pb). The CAAQS also set standards for sulfates, hydrogen sulfide, and visibility.
Air quality plans or attainment plans are used to bring the applicable air basin into attainment with all state and federal ambient air quality standards designed to protect the health and safety of residents within that air basin. Areas are classified under the Federal Clean Air Act as either “attainment”, “non-attainment”, or “extreme non-attainment” areas for each criteria pollutant August 08, 2023 Regular Meeting of the Lindsay City Council
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based on whether the NAAQS have been achieved or not. Attainment relative to the State standards is determined by the California Air Resources Board (CARB). The San Joaquin Valley is designated as a State and Federal extreme non-attainment area for O3, a State and Federal non-attainment area for PM2.5, a State non-attainment area for PM10, and Federal and State attainment area for CO, SO2, NO2, and Pb.2
REGULATORY SETTING
Federal
Clean Air Act
The federal Clean Air Act of 1970 (as amended in 1990) required the U.S. Environmental Protection Agency (EPA) to develop standards for pollutants considered harmful to public health or the environment. Two types of National Ambient Air Quality Standards (NAAQS) were established.
Primary standards protect public health, while secondary standards protect public welfare, by including protection against decreased visibility, and damage to animals, crops, landscaping and vegetation, or buildings. NAAQS have been established for six “criteria” pollutants: carbon monoxide (CO), nitrogen dioxide (NO2), sulfur dioxide (SO2), ozone (O3), particulate matter (PM10 and PM2.5), and lead (Pb).
State
California Air Resources Board
The California Air Resources Board (CARB) is the state agency responsible for implementing the federal and state Clean Air Acts. CARB has established California Ambient Air Quality Standards (CAAQS), which include all criteria pollutants established by the NAAQS, but with additional regulations for Visibility Reducing Particles, sulfates, hydrogen Sulfide (H2S), and vinyl chloride.
The proposed Project is located within the San Joaquin Valley Air Basin, which includes San Joaquin, Stanislaus, Merced, Madera, Fresno, Kings, Tulare, and parts of Kern counties and is managed by the SJVAPCD.
Air basins are classified as attainment, nonattainment, or unclassified. Attainment is achieved when monitored ambient air quality data is in compliance with the standards for a specified pollutant.
Non-compliance with an established standard will result in a nonattainment designation and an 2 San Joaquin Valley Air Pollution Control District. Ambient Air Quality Standards & Valley Attainment Status. http://www.valleyair.org/aqinfo/attainment.htm. Accessed April 2022.
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unclassified designation indicates insufficient data is available to determine compliance for that pollutant.
Standards and attainment status for listed pollutants in the Air District can be found in Table 1. Note that both state and federal standards are presented.
Table 1
Standards and Attainment Status for Listed Pollutants in the Air District3 Federal Standard California Standard
Ozone 0.075 ppm (8-hr avg) 0.07 ppm (8-hr avg)
0.09 ppm (1-hr avg)
Carbon Monoxide 9.0 ppm (8-hr avg)
35.0 ppm (1-hr avg)
9.0 ppm (8-hr avg)
20.0 ppm (1-hr avg)
Nitrogen Dioxide 0.053 ppm (annual avg) 0.30 ppm (annual avg)
0.18 ppm (1-hr avg)
Sulfur Dioxide
0.03 ppm (annual avg)
0.14 ppm (24-hr avg)
0.5 ppm (3-hr avg)
0.04 ppm (24-hr avg)
0.25 ppm (1hr avg)
Lead 1.5 µg/m3 (calendar quarter)
0.15 µg/m3 (rolling 3-month avg) 1.5 µg/m3 (30-day avg) Particulate Matter (PM10) 150 µg/m3 (24-hr avg) 20 µg/m3 (annual avg) 50 µg/m3 (24-hr avg)
Particulate Matter (PM2.5) 15 µg/m3 (annual avg) 35 µg/m3 (24-hr avg) 12 µg/m3 (annual avg)
μg/m3 = micrograms per cubic meter
Additional State regulations include:
CARB Portable Equipment Registration Program – This program was designed to allow owners and operators of portable engines and other common construction or farming equipment to register their equipment under a statewide program so they may operate it statewide without the need to obtain a permit from the local air district.
U.S. EPA/CARB Off-Road Mobile Sources Emission Reduction Program – The California Clean Air Act (CCAA) requires CARB to achieve a maximum degree of emissions reductions from off-road mobile 3 San Joaquin Valley Air Pollution Control District. Guide to Assessing and Mitigating Air Quality Impacts. February 19, 2015. Page 28. https://www.valleyair.org/transportation/GAMAQI-2015/FINAL-DRAFT-GAMAQI.PDF. Accessed April 2022.
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sources to attain State Ambient Air Quality Standards (SAAQS); off- road mobile sources include most construction equipment. Tier 1 standards for large compression-ignition engines used in off-road mobile sources went into effect in California in 1996. These standards, along with ongoing rulemaking, address emissions of nitrogen oxides (NOX) and toxic particulate matter from diesel engines. CARB is currently developing a control measure to reduce diesel PM and NOX emissions from existing off-road diesel equipment throughout the state.
California Global Warming Solutions Act – Established in 2006, Assembly Bill 32 (AB 32) requires that California’s GHG emissions be reduced to 1990 levels by the year 2020. This will be implemented through a statewide cap on GHG emissions, which will be phased in beginning in 2012. AB 32 requires CARB to develop regulations and a mandatory reporting system to monitor global warming emissions levels.
In addition, the proposed Project is being evaluated pursuant to CEQA.
Local
San Joaquin Valley Air Pollution Control District
The San Joaquin Valley Air Pollution Control District (SJVAPCD) is the local agency charged with preparing, adopting, and implementing mobile, stationary, and area air emission control measures and standards. The SJVAPCD has several rules and regulations that may apply to the Project:
Rule 3135 (Dust Control Plan Fees) – This rule requires the project applicant to submit a fee in addition to a Dust Control Plan. The purpose of this rule is to recover the SJVAPCD’s cost for reviewing these plans and conducting compliance inspections.
Rules 4101 (Visible Emissions) and 4102 (Nuisance) – These rules apply to any source of air contaminants and prohibits the visible emissions of air contaminants or any activity which creates a public nuisance.
Rule 4641 (Cutback, Slow Cure, and Emulsified Asphalt, Paving and Maintenance Operations) – This rule applies to use of asphalt for paving new roadways or restoring existing roadways disturbed by project activities.
Regulation VIII (Fugitive PM10 Prohibitions) – This regulation, a series of eight regulations, is designed to reduce PM10 emissions by reducing fugitive dust. Regulation VIII requires implementation of control measures to ensure that visible dust emissions are substantially reduced. The control measures are summarized in Table 2.
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Table 2
San Joaquin Valley Air Pollution Control District
Regulation VIII Control Measures for Construction Related Emissions of PM104 The following are required to be implemented at all construction sites:
All disturbed areas, including storage piles, which are not actively utilized for construction purposes, shall be effectively stabilized of dust emissions using water, chemical stabilizers/suppressants, covered with a tarp or other similar cover, or vegetative All on-site unpaved roads and off-site unpaved access roads shall be effectively stabilized of dust emissions during construction using water or chemical stabilizer All land clearing, grubbing, scraping, excavation, land leveling, grading cut and fill, and demolition activities during construction shall be effectively controlled of fugitive dust emissions utilizing application of water or pre-soaking.
When materials are transported off-site, all material shall be covered, or effectively wetted to limit visible dust emissions, and at least six inches of freeboard space from top of container shall be maintained.
All operations shall limit, or expeditiously remove the accumulation of mud or dirt from adjacent public streets at the end of each workday. The use of dry rotary brushes is expressly prohibited except where preceded or accompanied by sufficient wetting to limit the visible dust emissions. Use of Following the addition of materials to, or the removal of materials from, the surface of outdoor storage piles, said piles shall be effectively stabilized of fugitive dust emissions utilizing sufficient water or chemical stabilizer/suppressant.
Within urban areas, trackout shall be immediately removed when it extends 50 or more feet from the site at the end of each workday.
Any site with 150 or more vehicle trips per day shall prevent carryout and trackout.
RESPONSES
a. Conflict with or obstruct implementation of the applicable air quality plan? b. Result in a cumulatively considerable net increase of any criteria pollutant for which the project region is non-attainment under an applicable federal or state ambient air quality standard? c. Expose sensitive receptors to substantial pollutant concentrations? Less Than Significant Impact. The proposed Project lies within the San Joaquin Valley Air Basin (SJVAB). At the Federal level, the SJVAB is designated as extreme nonattainment for the 8-hour ozone standard, attainment for PM10 and CO, and nonattainment fort PM2.5. At the State level, the SJVAB is designated as nonattainment for the 8-hour ozone, PM10, and PM2.5 standards. Although the Federal 1- 4 San Joaquin Valley Air Pollution Control District. Current District Rules and Regulations. http://www.valleyair.org/rules/1ruleslist.htm#reg8.
Accessed April 2022.
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hour ozone standard was revoked in 2005, areas must still attain this standard, and the SJVAPCD recently requested an EPA finding that the SJVAB has attained the standard based on 2011-2013 data.5 To meet Federal Clean Air Act (CAA) requirements, the SJVAPCD has multiple air quality attainment plan (AQAP) documents, including:
• Extreme Ozone Attainment Demonstration Plan (EOADP) for attainment of the 1-hour ozone standard (2004);
• 2007 Ozone Plan for attainment of the 8-hour ozone standard; • 2007 PM10 Maintenance Plan and Request for Redesignation; and • 2008 PM2.5 Plan.
Because of the region’s non-attainment status for ozone, PM2.5, and PM10, if the project-generated emissions of either of the ozone precursor pollutants (ROG or NOx), PM10, or PM2.5 were to exceed the SJVAPCD’s significance thresholds, then the project uses would be considered to conflict with the attainment plans. In addition, if the project uses were to result in a change in land use and corresponding increases in vehicle miles traveled, they may result in an increase in vehicle miles traveled that is unaccounted for in regional emissions inventories contained in regional air quality control plans.
The annual significance thresholds to be used for the Project for construction and operational emissions are as follows6:
• 10 tons per year ROG;
• 10 tons per year NOx;
• 15 tons per year PM10; and
• 15 tons per year PM2.5.
Project Emissions
Site preparation and Project construction would involve excavation, grading, hauling, and various activities needed to construct the Project. During construction, the Project could generate pollutants such as hydrocarbons, oxides of nitrogen, carbon monoxide, and suspended PM. A major source of PM would be windblown dust generated during construction activities. Sources of fugitive dust would include 5 San Joaquin Valley Air Pollution Control District. Guidance to Assessing and Mitigating Air Quality Impacts. February 19, 2015. Page 28. https://www.valleyair.org/transportation/GAMAQI-2015/FINAL-DRAFT-GAMAQI.PDF. Accessed June 2022. 6 San Joaquin Valley Air Control District – Air Quality Threshold of Significance – Criteria Pollutants. http://www.valleyair.org/transportation/0714-GAMAQI-Criteria-Pollutant-Thresholds-of-Significance.pdf. Accessed June 2022.
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disturbed soils at the construction site and trucks carrying uncovered loads of soils. Vehicles leaving the site could deposit dirt and mud on local streets, which could be an additional source of airborne dust after it dries. PM10 emissions would vary from day to day, depending on the nature and magnitude of construction activity and local weather conditions. PM10 emissions would depend on soil moisture, the silt content of soil, wind speed, and the amount of operating equipment. Larger dust particles would settle near the source, while fine particles would be dispersed over greater distances from the construction site. These emissions would be temporary and limited to the immediate area surrounding the construction site.
The proposed Project construction schedule would begin in late 2023 and would last through 2024.
Emissions were estimated using the California Emissions Estimator Model (CalEEMod), ver. 2020.4.0.
Construction related emissions are shown in Table 3. Refer to Appendix A – Air Emissions Output Table for the full emissions output estimates for construction and operational activities.
Table 3
Project Construction and Operational Emissions
VOC (ROG)
(tons/year)
NOx
(tons/year)
PM10*
(tons/year)
CO2
(MT/year)
2022 0.24 2.33 0.54 342.34
2023 0.23 1.96 0.16 376.11
2024 1.83 0.83 0.07 173.49
Annual Construction Emissions Maximum: 1.83 2.33 0.54 376.11 Annual Operational Emissions: 1.42 1.03 1.07 1226.84
Threshold of Significance 10 10 15 --
Exceed Threshold? No No No N/A
* Appendix A includes projected emissions from ozone, carbon monoxide, lead, particulate matter (less than 2.5 microns in diameter), but are not included in this table because there is no established threshold of significance for these emissions.
As shown in Table 3, annual construction and operational emissions would be below the SJVAPCD’s significance threshold. Additionally, the SJVAPCD has implemented Regulation VIII measures for dust control related to construction projects, which are applicable to the Project and will be enforced by the City and the City’s contractor, which will further reduce construction PM10 emissions.
As described above, construction/operational emissions would not exceed the SJVAPCD’s significance thresholds for ROG, NOx, and PM10. As a result, the Project uses would not conflict with emissions inventories contained in regional air quality attainment plans and would not result in a significant Commented [EB2R1]: We would need to rerun the air modeling to change the dates. These numbers would actually be more conservative
than if we re-ran the model.
Commented [CM1]: Need to move these into
2023, still LTS
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contribution to the region’s air quality non-attainment status7. Likewise, the Project would not result in a cumulatively considerable net increase of any criteria pollutant within the SJVAPCD jurisdiction.
Finally, the Project would also not expose sensitive receptors to substantial pollutant concentrations. It will not cumulatively increase any criteria pollutant and will not result in substantial pollutant concentrations.
Any impacts to air resources would be considered less than significant.
Mitigation Measures: None are required.
d. Result in other emissions (such as those leading to odors adversely affecting a substantial number of people?
Less than Significant Impact. Land uses that are typically identified as sources of objectionable odors include landfills, transfer stations, sewage treatment plants, wastewater pump stations, composting facilities, feed lots, coffee roasters, asphalt batch plants, and rendering plants. The Project includes a residential development and as such, would not be a source of ongoing objectionable odors.
During construction, the various diesel-powered vehicles and equipment in use on-site would create localized odors. These odors would be temporary and would not likely be noticeable for extended periods of time beyond the Project’s site boundaries. The potential for diesel odor impacts would therefore be less than significant. Any impacts would be less than significant.
Mitigation Measures: None are required.
7 San Joaquin Valley Air Pollution Control District. Guidance to Assessing and Mitigating Air Quality Impacts. February 19, 2015. Page 65. https://www.valleyair.org/transportation/GAMAQI-2015/FINAL-DRAFT-GAMAQI.PDF. Accessed June 2022.
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IV. BIOLOGICAL RESOURCES
Would the project:
Potentially
Significant
Impact
Less than
Significant
With
Mitigation
Incorporation
Less than
Significant
Impact
No
Impact
a. Have a substantial adverse effect, either
directly or through habitat modifications,
on any species identified as a candidate,
sensitive, or special status species in local
or regional plans, policies, or regulations,
or by the California Department of Fish
and Game or U.S. Fish and Wildlife
Service?
b. Have a substantial adverse effect on any
riparian habitat or other sensitive natural
community identified in local or regional
plans, policies, regulations, or by the
California Department of Fish and Game
or U.S. Fish and Wildlife Service?
c. Have a substantial adverse effect on
federally protected wetlands (including,
but not limited to, marsh, vernal pool,
coastal, etc.) through direct removal,
filling, hydrological interruption, or other
means?
d. Interfere substantially with the movement
of any native resident or migratory fish or
wildlife species or with established native
resident or migratory wildlife corridors,
or impede the use of native wildlife
nursery sites?
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e. Conflict with any local policies or
ordinances protecting biological
resources, such as a tree preservation
policy or ordinance?
f. Conflict with the provisions of an adopted
Habitat Conservation Plan, Natural
Community Conservation Plan, or other
approved local, regional, or state habitat
conservation plan?
ENVIRONMENTAL SETTING
The proposed Project site is located in a portion of the central San Joaquin Valley that has, for decades, experienced intensive agricultural and urban disturbances. Current agricultural endeavors in the region include orange groves, olive orchards and row crops.
Like most of California, the Central San Joaquin Valley experiences a Mediterranean climate. Warm dry summers are followed by cool moist winters. Summer temperatures usually exceed 90 degrees Fahrenheit, and the relative humidity is generally very low. Winter temperatures rarely raise much above 70 degrees Fahrenheit, with daytime highs often below 60 degrees Fahrenheit. Annual precipitation within the proposed Project site is about 10 inches, almost 85% of which falls between the months of October and March. Nearly all precipitation falls in the form of rain and storm-water readily infiltrates the soils of the surrounding the sites.
Native plant and animal species once abundant in the region have become locally extirpated or have experienced large reductions in their populations due to conversion of upland, riparian, and aquatic habitats to agricultural and urban uses. Remaining native habitats are particularly valuable to native wildlife species including special status species that still persist in the region.
The site currently consists of vacant land with minimal vegetation. The site is bounded to the east by Parkside Avenue, with residential development beyond the roadway. The site is bounded to the south by Ono City Parkway, with Lindsay Wellness Center beyond the roadway. County Health & Human Services Agency office lies to the southwest of the site. The site is bounded by Sequoia Avenue/Road 214 to the west, with residential development and agricultural/vacant land beyond the roadway in that direction. West Hickory Street lies to the north of the site, with Roosevelt Elementary School, agricultural/vacant land, and a rural residence beyond the roadway. No aquatic or wetland features occur on the proposed Project site, therefore jurisdictional waters are considered absent from the site.
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REGULATORY SETTING
Federal
Endangered Species Act
The USFWS and the National Oceanographic and Atmospheric Administration’s (NOAA) National Marine Fisheries Service (NMFS) enforce the provisions stipulated in the Federal Endangered Species Act of 1973 (FESA, 16 United States Code [USC] § 1531 et seq.). Threatened and endangered species on the federal list (50 Code of Federal Regulations [CFR] 17.11 and 17.12) are protected from take unless a Section 10 permit is granted to an entity other than a federal agency or a Biological Opinion with incidental take provisions is rendered to a federal lead agency via a Section 7 consultation. Take is defined as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct. Pursuant to the requirements of the FESA, an agency reviewing a proposed action within its jurisdiction must determine whether any federally listed species may be present in the proposed action area and determine whether the proposed action may affect such species. Under the FESA, habitat loss is considered an effect to a species. In addition, the agency is required to determine whether the proposed action is likely to jeopardize the continued existence of any species that is listed or proposed for listing under the FESA (16 USC § 1536[3], [4]). Therefore, proposed action-related effects to these species or their habitats would be considered significant and would require mitigation.
Migratory Bird Treaty Act
The federal Migratory Bird Treaty Act (MBTA) (16 USC § 703, Supp. I, 1989) prohibits killing, possessing, trading, or other forms of take of migratory birds except in accordance with regulations prescribed by the Secretary of the Interior. “Take” is defined as the pursuing, hunting, shooting, capturing, collecting, or killing of birds, their nests, eggs, or young (16 USC § 703 and § 715n). This act encompasses whole birds, parts of birds, and bird nests and eggs. The MBTA specifically protects migratory bird nests from possession, sale, purchase, barter transport, import, and export, and take. For nests, the definition of take per 50 CFR 10.12 is to collect. The MBTA does not include a definition of an “active nest.” However, the “Migratory Bird Permit Memorandum” issued by the USFWS in 2003 clarifies the MBTA in that regard and states that the removal of nests, without eggs or birds, is legal under the MBTA, provided no possession (which is interpreted as holding the nest with the intent of retaining it) occurs during the destruction.
U.S. Army Corps of Engineers Jurisdiction
Areas meeting the regulatory definition of “waters of the United States” (jurisdictional waters) are subject to the jurisdiction of the United States Army Corps of Engineers (USACE) under provisions of Section August 08, 2023 Regular Meeting of the Lindsay City Council
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404 of the Clean Water Act (1972) and Section 10 of the Rivers and Harbors Act (1899). These waters may include all waters used, or potentially used, for interstate commerce, including all waters subject to the ebb and flow of the tide, all interstate waters, all other waters (intrastate lakes, rivers, streams, mudflats, sandflats, playa lakes, natural ponds, etc.), all impoundments of waters otherwise defined as waters of the United States, tributaries of waters otherwise defined as waters of the United States, the territorial seas, and wetlands adjacent to waters of the United States (33 CFR part 328.3). Ditches and drainage canals where water flows intermittently or ephemerally are not regulated as waters of the United States.
Wetlands on non-agricultural lands are identified using the Corps of Engineers Wetlands Delineation Manual and related Regional Supplement.8,9 Construction activities, including direct removal, filling, hydrologic disruption, or other means in jurisdictional waters are regulated by the USACE. The placement of dredged or fill material into such waters must comply with permit requirements of the USACE. No USACE permit will be effective in the absence of state water quality certification pursuant to Section 401 of the Clean Water Act. The State Water Resources Control Board is the state agency (together with the Regional Water Quality Control Boards) charged with implementing water quality certification in California.
State
California Endangered Species Act
The California Endangered Species Act (CESA) of 1970 (Fish and Game Code § 2050 et seq. and California Code of Regulations (CCR) Title 14, Subsection 670.2, 670.51) prohibits the take of species listed under CESA (14 CCR Subsection 670.2, 670.5). Take is defined as hunt, pursue, catch, capture, or kill or attempt to hunt, pursue, catch, capture, or kill. Under CESA, state agencies are required to consult with the California Department of Fish and Wildlife when preparing CEQA documents. Consultation ensures that proposed projects or actions do not have a negative effect on state-listed species. During consultation, CDFW determines whether take would occur and identifies “reasonable and prudent alternatives” for the project and conservation of special-status species. CDFW can authorize take of statelisted species under Sections 2080.1 and 2081(b) of Fish and Game Code in those cases where it is demonstrated that the impacts are minimized and mitigated. Take authorized under section 2081(b) must be minimized and fully mitigated. A CESA permit must be obtained if a project will result in take 8 United States Army Corps of Engineers (USACE). 1987. Corps of Engineers Wetlands Delineation Manual. Wetland Research Program Technical Report Y-87-1.
9 United Sates Army Corps of Engineers (USACE). 2008. Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Arid West Region (Version 2.0). ERDC/EL TR-08-28. https://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb1046489.pdf. Accessed April 2022.
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of listed species, either during construction or over the life of the project. Under CESA, CDFW is responsible for maintaining a list of threatened and endangered species designated under state law (Fish and Game Code § 2070). CDFW also maintains lists of species of special concern, which serve as “watch lists”. Pursuant to the requirements of CESA, a state or local agency reviewing a proposed project within its jurisdiction must determine whether the proposed project will have a potentially significant impact upon such species. Project-related impacts to species on the CESA list would be considered significant and would require mitigation. Impacts to species of concern or fully protected species would be considered significant under certain circumstances.
Native Plant Protection Act
The California Native Plant Protection Act of 1977 (California Fish and Game Code §§ 1900–1913) requires all state agencies to use their authority to carry out programs to conserve endangered and otherwise rare species of native plants. Provisions of the act prohibit the taking of listed plants from the wild and require the project proponent to notify CDFW at least 10 days in advance of any change in land use, which allows CDFW to salvage listed plants that would otherwise be destroyed.
Nesting Birds
California Fish and Game Code Subsections 3503, 3503.5, and 3800 prohibit the possession, incidental take, or needless destruction of birds, their nests, and eggs. California Fish and Game Code Section 3511 lists birds that are “Fully Protected” as those that may not be taken or possessed except under specific permit.
California Department of Fish and Wildlife Jurisdiction The CDFW has regulatory jurisdiction over lakes and streams in California. Activities that divert or obstruct the natural flow of a stream; substantially change its bed, channel, or bank; or use any materials (including vegetation) from the streambed, may require that the project applicant enter into a Streambed Alteration Agreement with the CDFW in accordance with California Fish and Game Code Section 1602.
California Environmental Quality Act
The California Environmental Quality Act (CEQA) of 1970 (Subsections 21000–21178) requires that CDFW be consulted during the CEQA review process regarding impacts of proposed projects on specialstatus species. Special-status species are defined under CEQA Guidelines subsection 15380(b) and (d) as those listed under FESA and CESA and species that are not currently protected by statute or regulation but would be considered rare, threatened, or endangered under these criteria or by the scientific community. Therefore, species considered rare or endangered are addressed in this biological resource evaluation regardless of whether they are afforded protection through any other statute or regulation.
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The California Native Plant Society (CNPS) inventories the native flora of California and ranks species according to rarity.10 Plants with Rare Plant Ranks 1A, 1B, 2A, or 2B are considered special-status species under CEQA.
Although threatened and endangered species are protected by specific federal and state statutes, CEQA Guidelines Section 15380(d) provides that a species not listed on the federal or state list of protected species may be considered rare or endangered if it can be shown to meet certain specified criteria. These criteria have been modeled after the definition in the FESA and the section of the California Fish and Game Code dealing with rare and endangered plants and animals. Section 15380(d) allows a public agency to undertake a review to determine if a significant effect on species that have not yet been listed by either the USFWS or CDFW (i.e., candidate species) would occur. Thus, CEQA provides an agency with the ability to protect a species from the potential impacts of a project until the respective government agency has an opportunity to designate the species as protected, if warranted.
RESPONSES
a. Have a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? Less than Significant Impact. The site is currently fallow and disked for fire safety. The site is in an area that is highly disturbed and lacking in substantial vegetation, such as trees, brush or shrubs. This factor suggests that the Project site is extremely unlikely to serve as nesting habitat for bird species or any animal or plant species. No wetlands or waters of the U.S. or water of the State were found within the Project area.11 According to the City of Lindsay’s General Plan states that there are no rare or endangered species of plants located within the urban area. Additionally, there are no known species of rare or endangered wildlife known to inhabit the Lindsay planning area.
Tulare County is considered to be a portion of the larger regional habitat of the San Joaquin Kit Fox, a species whose habitat extends along the Sierra Nevada foothills and down to the Coast.12 According to the Tulare County Planning Department, kit foxes have been previously observed foraging in orange 10 California Native Plant Society, Rare Plant Program (CNPS). 2019. Inventory of Rare and Endangered Plants (online edition, v8-03 0.39).
California Native Plant Society, Sacramento, CA. http://www.rareplants.cnps.org/ Accessed April 2022. 11 National Wetlands Inventory. U.S Fish & Wildlife Service. https://fwsprimary.wim.usgs.gov/wetlands/apps/wetlands-mapper/. Accessed April 2022.
12 Lindsay General Plan, 1989. Biological Resources, page 14.
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groves west of Lindsay City Limits. The potential for San Joaquin Kit Fox occurrence in the proposed Project area is considered to be quite low given the highly disturbed and barren nature of the site and precludes the ability of the San Joaquin Kit Fox to be on-site. In the unlikely event that a kit fox is located on-site, Mitigation Measure BIO-1, below, will reduce impacts to the species to less than significant.
Mitigation Measures:
BIO-1 The following measures shall be implemented during construction of the Project to reduce potential impacts to San Joaquin Kit Fox. The following mitigation are modified from the USFWS Standardized Recommendations for Protection of the Endangered San Joaquin Kit Fox Prior to or During Ground Disturbance.
a. All food-related trash items such as wrappers, cans, bottles, and food scraps shall be disposed of in securely closed containers and removed at least once a week from the Project site.
b. Construction-related vehicle traffic shall be restricted to established roads and predetermined ingress and egress corridors, staging, and parking areas. Vehicle speeds shall not exceed 20 miles per hour within the Project site. A ten miles per hour speed limit shall be implemented during night-timer construction activities. c. To prevent inadvertent entrapment of kit fox or other animals during construction, the contractor shall cover all excavated, steep-walled holes or trenches more than two feet deep at the close of each workday with plywood or similar materials. If holes or trenches cannot be covered, one or more escape ramps constructed of earthen fill or wooden planks shall be installed in the trench. Before such holes or trenches are filled, the contractor shall thoroughly inspect them for entrapped animals. All constructionrelated pipes, culverts, or similar structures with a diameter of four inches or greater that are stored on the Project site shall be thoroughly inspected for wildlife before the pipe is subsequently buried, capped, or otherwise used or moved in any way. If at any time an entrapped or injured kit fox is discovered, work in the immediate area shall be temporarily halted, and USFWS and the California Department of Fish and Wildlife (CDFW) shall be consulted for guidance.
d. Kit foxes are attracted to den-like structures such as pipes and may enter stored pipes and become trapped or injured. All construction pipes, culverts, or similar structures with a diameter of four inches or greater that are stored at a construction site for one or more overnight periods shall be thoroughly inspected for kit foxes before the pipe is subsequently buried, capped, or otherwise used or moved in any way. If a kit fox is discovered inside a pipe, that section of pipe shall not be moved until the USFWS and CDFW have been consulted. If necessary, and under the direct supervision of the biologist, the pipe may be moved only once to remove it from the path of construction activity until the fox has escaped.
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e. No pets, such as dogs or cats, shall be permitted on the Project site during construction to prevent harassment, mortality of kit foxes, or destruction of dens. f. Use of anticoagulant rodenticides and herbicides in Project sites shall be restricted.
This is necessary to prevent primary or secondary poisoning of kit foxes and the depletion of prey populations on which they depend. All uses of such compounds shall observe labels and other restrictions mandated by the U.S. Environmental Protection Agency, California Department of Food and Agriculture, and other State and Federal legislation, as well as additional Project-related restrictions deemed necessary by the USFWS and CDFW. If rodent control must be conducted, zinc phosphide shall be used because of the proven lower risk to kit foxes. g. A representative shall be appointed by the Project proponent, who will be the contact source for any employee or contractor who might inadvertently kill or injure a kit fox or who finds a dead, injured, or entrapped kit fox. The representative shall be identified during the employee education program, and their name and telephone number shall be provided to the USFWS.
h. The Sacramento Fish and Wildlife Office of USFWS and CDFW shall be notified in writing within three working days of the accidental death or injury to an SJKF during Project-related activities. Notification must include the date, time, and location of the incident or of the finding of a dead or injured animal and any other pertinent information. The USFWS contact is the Chief of the Division of Endangered Species, at the addresses and telephone numbers below. The CDFW contact can be reached at (559) 243-4014 and [email protected]. The Bureau of Land Management shall also be informed of those wells on Split Estate property i. All sightings of the SJKF shall be reported to the California Natural Diversity Database (CNDDB). A copy of the reporting form and a topographic map clearly marked with the location of where the kit fox was observed shall also be provided to the Service at the address below.
j. Any Project-related information required by the USFWS or questions concerning the above conditions or their implementation may be directed in writing to the U.S. Fish and Wildlife Service at Endangered Species Division, 2800 Cottage Way, Suite W 2605, Sacramento, California 95825-1846, phone: (916) 414-6620 or (916) 414-6600. k. A copy of the preconstruction survey report shall be submitted to the lead agency as evidence of compliance.
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b. Have a substantial adverse effect on any riparian habitat or other sensitive natural community identified in local or regional plans, policies, regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service?
c. Have a substantial adverse effect on federally protected wetlands as defined by Section 404 of the Clean Water Act (including, but not limited to, marsh, vernal pool, coastal, etc.) through direct removal, filling, hydrological interruption, or other means? No Impact. There is no riparian habitat or other sensitive natural community on site or adjacent to the Project.
According to the National Wetlands Inventory13, no wetlands occur in or near the Project site. Impacts would be less than significant.
Mitigation Measures: None are required.
d. Interfere substantially with the movement of any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites?
Less than Significant Impact with Mitigation. Common species of birds likely to be found within the urban planning area include morning dove, sparrow, meadowlark, blackbird, robin and scrub jay.
Potential for endangered or threatened bird species within the Project area is unlikely. However, in the event that avian species are nesting within or adjacent to the proposed Project area at the time of construction, construction activities could result in nest abandonment and/or direct mortality to individual birds. Project activities that injure or kill native birds or lead to nest abandonment would violate the California Fish and Game Code. As such, implementation of Mitigation Measure BIO-2 will ensure that potential impacts would remain less than significant.
Mitigation Measures:
Protecting nesting birds.
BIO-2 Within 30 days prior to ground disturbance activities associated with construction or grading that would occur during the nesting/breeding season of native bird species 13 National Wetlands Inventory. U.S Fish & Wildlife Service. https://fwsprimary.wim.usgs.gov/wetlands/apps/wetlands-mapper/. Accessed April 2022.
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potentially nesting on the site (typically March through August in the project region, or as determined by a qualified biologist), the applicant shall have weekly surveys conducted by a qualified biologist to determine if active nests of bird species protected by the Migratory Bird Treaty Act and/or the California Fish and Game Code are present in the disturbance zone or within 300 feet (500 feet for raptors and special-status species) of the disturbance zone. The surveys shall continue on a weekly basis with the last survey being conducted no more than seven days prior to initiation of disturbance work. If ground disturbance activities are delayed, then additional pre-disturbance surveys shall be conducted such that no more than seven days will have elapsed between the survey and ground disturbance activities. If active nests are found, clearing and construction within 300 feet of the nest (500 feet for raptors and special-status species) shall be postponed or halted, at the discretion of the biologist, until the nest is vacated and juveniles have fledged, as determined by the biologist, and there is no evidence of a second attempt at nesting. Limits of construction to avoid an active nest shall be established in the field with flagging, fencing, or other appropriate barriers and construction personnel shall be instructed on the sensitivity of nest areas. The biologist shall serve as a construction monitor during those periods when construction activities will occur near active nest areas to ensure that no inadvertent impacts on these nests occur. Results of the surveys shall be provided to CDFG in the Annual Mitigation Status Report.
e. Conflict with any local policies or ordinances protecting biological resources, such as a tree preservation policy or ordinance?
Less than Significant Impact. The City of Lindsay’s General Plan includes various policies for the protection of biological resources. The proposed Project would not conflict with any of the adopted policies and any impacts would be considered less than significant.
Mitigation Measures: None are required.
f. Conflict with the provisions of an adopted Habitat Conservation Plan, Natural Community Conservation Plan, or other approved local, regional, or state habitat conservation plan? August 08, 2023 Regular Meeting of the Lindsay City Council
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Less than Significant Impact. The proposed Project would not conflict with any adopted Habitat Conservation or any Natural Community Conservation Plans. As such, any impacts would be less than significant.
Mitigation Measures: None are required.
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V. CULTURAL RESOURCES
Would the project:
Potentially
Significant
Impact
Less than
Significant
With
Mitigation
Incorporation
Less than
Significant
Impact
No
Impact
a. Cause a substantial adverse change in the
significance of a historical resource as
defined in §15064.5?
b. Cause a substantial adverse change in the
significance of an archaeological resource
pursuant to §15064.5?
c. Disturb any human remains, including
those interred outside of formal
cemeteries?
ENVIRONMENTAL SETTING
Archaeological resources are places where human activity has measurably altered the earth or left deposits of physical remains. Archaeological resources may be either prehistoric (before the introduction of writing in a particular area) or historic (after the introduction of writing). The majority of such places in this region are associated with either Native American or Euroamerican occupation of the area. The most frequently encountered prehistoric and early historic Native American archaeological sites are village settlements with residential areas and sometimes cemeteries; temporary camps where food and raw materials were collected; smaller, briefly occupied sites where tools were manufactured or repaired; and special-use areas like caves, rock shelters, and sites of rock art. Historic archaeological sites may include foundations or features such as privies, corrals, and trash dumps.
Tulare County was inhabited by indigenous California Native American groups consisting of the Southern Valley Yokuts, Foothill Yokuts, Monache, and Tubatulabal. Most information regarding these groups is based on Spanish government and Franciscan mission records of the 18th and 19th centuries, and in studies conducted during the 1900s to 1930s by American and British ethnographers. The ethnographic setting presented below is derived from the early works, compiled by W. J. Wallace, Robert F.G. Spier, and Charles R. Smith, with statistical information provided by the California Native American Heritage Commission.
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