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STAFF REPORT

MEETING

DATE: October 11, 2016

TO: City Council

FROM: Jeffrey Walter, City Attorney

SUBJECT: EDWARD YATES' SECOND CEASE AND DESIST LETTER

PERTAINING TO ALLEGED VIOLATIONS OF THE BROWN ACT

REQUEST

Consider and possibly take action to approve a letter to Mr. Yates responding to his second Brown

Act violation claims re the Redwood Blvd. bus shelter.

RECOMMENDATION

Approve a letter disagreeing with Mr. Yates' claims that the Council violated the Brown Act when,

on December 15, 2015, it discussed placing an item on a future agenda.

DISCUSSION

On or about September 12, 2016, the City received a letter from Edward Yates ("Yates") in which

he claimed that the City Council violated the Ralph M. Brown Act ("Brown Act") during its

meeting on December 15, 2015, by discussing placing the “bus shelter/pad on Redwood Blvd.”

("Project") on a future Council agenda. Mr. Yates' letter is attached as Exhibit A. This is the

second letter Mr. Yates has delivered to the City demanding that it cease and desist from discussing

placing a matter on a future agenda. In his letter, Yates demands that the City Council cease and

desist, and never repeat the violations he claims the Council committed.

Since January 1, 2013, the Brown Act has provided that any interested person may submit a letter

("cease and desist letter") to a local legislative body identifying actions that that body took no later

than nine months before which that person believes violated the Brown Act. In that letter, the

complaining person may demand that the body cease and desist and never repeat the actions the

complainant alleges violated the Brown Act. The legislative body is entitled to commit to ceasing

and desisting and not repeating the actions, and if it does so in a form ("commitment letter")

substantially similar to that set forth in the Brown Act within 30 days from its receipt of the cease

and desist letter, as to the actions described in that commitment letter, no litigation may be brought

challenging those actions as violative of the Brown Act.

The Brown Act expressly states that in approving such a commitment letter, the legislative body

is not admitting any violation of the Brown Act and that approval of a commitment letter is for the

purpose of avoiding unnecessary litigation.

922 Machin Avenue Novato, CA 94945

415/ 899-8900 FAX 415/ 899-8213

www.novato.org

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If the legislative body declines to timely approve a commitment letter as to an alleged violation of

the Brown Act, it is subject to litigation seeking a determination whether the alleged violation did,

in fact, occur and if the person bringing that litigation is successful, s/he is entitled to a judgment

awarding that person his/her costs and attorneys' fees.

Here, Mr. Yates contends that during its December 15, 2015, meeting, the City Council violated

the Brown Act by discussing, for over three minutes, whether or not to place the Project on a future

agenda. He also asserts that the Council violated the Brown Act because during that deliberation

it discussed “substantive aspects” of the Project. He demands that the City Council cease and

desist from and never repeat having such unagendized “substantive” discussions and never repeat

having such discussions for longer than three minutes.

Mr. Yates’ assertions are incorrect.

The Brown Act expressly permits City Councils to take action (without the action being agendized)

to place an item on a future agenda. “[A] a member of a legislative body, or the body itself,

subject to rules or procedures of the legislative body, may . . . take action to direct staff to place a

matter of business on a future agenda.” Cal. Government Code Section 54954.2(a)(2). To

reiterate, Section 54954.2(a)(2) expressly permits the City Council to discuss placing a matter on

a future agenda without having to first agendize that discussion. The Brown Act does not specify

how long or how short that discussion must be, nor does it state that no substantive comments or

issues can be made or discussed during the deliberations surrounding the question of whether to

place the item on a future agenda.

Indeed, in the recent case of Cruz v. City of Culver City (“Cruz”) arguments similar to those Mr.

Yates makes in his letter were rejected by the court. In Cruz, the city had imposed parking

restrictions in 1982 on Farragut Drive when residents complained that parishioners of a nearby

church “jammed” their street with parking during church services. In 2004, the city established

preferential parking zones (or districts) throughout the city, and included Farragut Drive as one of

those zones. Later, the city adopted regulations governing parking in those zones. In 2014, the

church’s attorney sent a letter to the city requesting information about the procedures to be

followed in seeking a change to those regulations as they applied to Farragut Drive. The city staff

responded that the city was unable to react to such a request because there was no avenue available

for non-residents to appeal the parking restrictions. The church then sent a letter to councilmember

Weissman complaining about the staff’s response and asking to address the council about the

“onerous parking restrictions.”

At a subsequent council meeting at which the council was acting to receive and file

correspondence, the church’s letter was brought up by councilmember Weissman. Following a

six-minute discussion between Weissman, the mayor, two other councilmembers and the city’s

engineer, the council agreed to agendize the matter for a subsequent council meeting. The city

was sued by plaintiffs who claimed that this discussion included “something substantive and

substantial,” all in violation of the Brown Act because the discussion had not been previously

agendized. The court disagreed.

During the Culver City Council’s colloquy, council members and staff offered their opinions as to

the merits of whether the church had a right to appeal, inquired as to whether agendizing the issue

would be academic or adversely affect appeal rights due to the passage of time, expressed their

opinions as to whether parking districts should be subject to change and then agendized a

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discussion about changing the district, implicitly rejecting agendizing a discussion about the

church’s appeal.

This is the type of discussions councils must be allowed to have in order to make informed

decisions, even as to whether an issue should be agendized for further and deeper discussions in

the future. This is, in essence, what the Cruz court held. It stated that these discussions, statements

of opinions, and statements of positions were not “substantive or substantial” and were permissible

under the Brown Act.

RECOMMENDATION

A letter responding to Mr. Yates’ second cease and desist letter is attached as Exhibit B and it is

recommended that the Council approve that letter, authorize the Mayor to sign same and direct

that it be delivered to Mr. Yates forthwith.

FISCAL IMPACT

The fiscal impact is uncertain and will depend upon whether Yates initiates litigation against the

City.

ATTACHMENTS

1. Exhibit A: Yates' September 12, 2016 cease and desist letter

2. Exhibit B: Letter to Mr. Yates re December 15, 2015, Agendizing Discussion Pertinent to the

Redwood Blvd. bus shelter project

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October 11, 2016

Edward E. Yates

Law Office of Edward Yates

20 Skylark, Suite 12

Larkspur, CA 94939

To Edward E. Yates:

The City Council of the City of Novato has received your cease and desist letter

dated September 12, 2016, alleging that the following described past action of the

City Council violated the Ralph M. Brown Act:

1. You allege that the City Council failed to comply with Cal. Gov’t Code Section

549954.2(a)(2) which permits the Council to discuss and take the following actions

without these matters being expressly identified on the agenda: subject to its rules or

procedures, the City Council may ask staff to provide factual information, report

back at a later time, or place an item on a future agenda.

2. You allege that the City Council violated said Section during its meeting on

December 15, 2015, when it “[engaged] in substantive discussion of the [Redwood

Blvd.] bus shelter/pad for over 14 minutes.” You further allege that the “discussion

by all five council members included discussion on substantive aspects, including

location and design, finances, pedestrian safety, bus driver statements on safety,

American Disability Act issues, and traffic.”

3. In your September 12, 2016, letter you demand that the City cease and desist from

and not repeat this past, alleged violation of the Ralph M. Brown Act (“Brown

Act”).

Alleged Violations in Discussing the Redwood Blvd. Bus Shelter/Pad Project

(“Project”)

Since the date of your letter, the Second District Court of Appeal has issued its

decision in Cruz v. City of Culver City (“Cruz”). In that case, arguments similar to

those you make here and referenced in paragraph no. 2 above were rejected by the

court. In Cruz, the city had imposed parking restrictions in 1982 on Farragut Drive

when residents complained that parishioners of a nearby church “jammed” their

street with parking during church services. In 2004, the city established preferential

parking zones (or districts) throughout the city, and included Farragut Drive as one

of those zones. Later, the city adopted regulations governing parking in those zones.

In 2014, the church’s attorney sent a letter to the city requesting information about

the procedures to be followed in seeking a change to those regulations as they

applied to Farragut Drive. The city staff responded that the city was unable to react

to such a request because there was no avenue available for non-residents to appeal

922 Machin Avenue

Novato, CA 94945

415/899-8900

FAX 415/899-8213

www.novato.org

Mayor

Pat Eklund

Mayor Pro Tem

Denise Athas

Councilmembers

Pam Drew

Josh Fryday

Eric Lucan

Interim City Manager

Cathy Capriola

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the parking restrictions. The church then sent a letter to councilmember Weissman complaining

about the staff’s response and asking to address the council about the “onerous parking

restrictions.”

At a subsequent council meeting at which the council was acting to receive and file

correspondence, the church’s letter was brought up by councilmember Weissman. Following a

six-minute discussion between Weissman, the mayor, two other councilmembers and the city’s

engineer, the council agreed to agendize the matter for a subsequent council meeting. The city

was sued by plaintiffs who claimed that this discussion included “something substantive and

substantial,” all in violation of the Brown Act because the discussion had not been previously

agendized. The court disagreed.

What is illuminating is the actual discussion that took place between the council and its engineer.

The transcript is set forth in the Cruz court’s decision. It shows the following:

Councilmember Weissman brings up the letter and asks to agendize the “issue.” Then he goes

on to explain the staff’s position that only residents can appeal the city engineer’s determination

regarding a request to change the Farragut Drive parking restrictions. Weissman further states

that he wasn’t sufficiently clear at a previous council meeting when the issue came up and he

wants to agendize it again to get clarification as to what the council’s intent was.

The mayor was unclear on exactly what “issue” Weissman wanted to agendize so he asked

whether Weissman wanted to agendize a general discussion of the appeal process or the specific

request of the church.

Weissman responded by saying that either issue could be agendized.

Still attempting to discern what issues were being proposed to be considered on a future agenda

and concerned that whatever appeal rights may exist might lapse due to the passage of time,

councilmember O’Leary then asks if part of the item would include putting “on hold the appeal

time and timing?”

Weissman then expresses his opinion on the merits that, based on staff’s position, there is no

appeal time because there is no right to appeal.

The mayor and councilmember Clark then state that they’re fine with agendizing a discussion of

the “issue.” That means, then, that at that point in the discussion, a majority of the council were

interested in agendizing a parking “issue” on a future agenda. But the council continued to

discuss the matter.

Weissman then asked staff for its opinion as to what “staff’s preferred direction is on this?”

The city engineer responds by stating that he prefers that the council address parking on

Farragut Drive, rather than agendizing whether or not an appeal by a non-resident is

cognizable. This issue is different from that proposed by Weissman and ultimately leads to

further discussions concerning this issue. The city engineer goes on to explain why he thinks the

issue as framed by him should be the issue the council addresses, namely, he doesn’t think

changes to the parking restrictions should be entertained once a parking district has been

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formed. In part, he states that his opinion is based on the fact that changing a parking district

has never come up before.

Councilmember O’Leary then asks if there is an urgency to this issue: does the appeal period

end at some point?

The city engineer responds saying “no” because according to staff, there is no right to appeal;

but he gives his opinion that any affected person can approach the council to get the rules

changed since the council established the parking districts in the first place.

The mayor then opines on the issue of the timing of an appeal, reflecting on the age of the

parking district in question.

Weissman then interjects, responding to the mayor’s comments by giving his (Weissman’s)

opinion that it is an “evolving condition” and in Weissman’s opinion, the circumstances under

which the Farragut parking restrictions were formulated have changed. Then, Weissman offers

a brand new reason why he wants the issue agendized for future discussion: he wants to see

whether the parking district in its current “iteration” should be continued, or something

different be done.

The city engineer concurs with Weissman’s opinion that circumstances have changed and

recommends the council take a “fresh look” at it.

The council agrees and the discussion ends.

This discussion morphed from a proposal to agendize either a general discussion about the

appeal process or the church’s appeal in particular, to agendizing the reconsideration of the very

existence and nature of the district itself. And during this colloquy, council members and staff

offered their opinions as to the merits of whether the church had a right to appeal, inquired as to

whether agendizing the issue would be academic or adversely affect appeal rights due to the

passage of time, expressed their opinions as to whether parking districts should be subject to

change and then agendized a discussion about changing the district, implicitly rejecting

agendizing a discussion about the church’s appeal.

This is the type of discussions councils must be allowed to have in order to make informed

decisions, even as to whether an issue should be agendized for further and deeper discussions in

the future. This is, in essence, what the Cruz court held. It stated that these discussions,

statements of opinions, and statements of positions were not “substantive or substantial” and

were permissible under the Brown Act.

A similar discussion occurred amongst the Novato City Councilmembers on December 15, 2015,

pertinent to the Project. The Mayor asked the Council to consider adding to a future agenda a

discussion about reconsidering the Council’s previous approval of the Project. Given that this

Project had already been extensively vetted and discussed by the Council, staff and the public,

and given that the Project had already been approved by a majority of the Council, the proposal

to re-visit the Project faced uphill opposition and required careful explanation.

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You trivialize the process by which issues are placed by the Council on a future agenda by

characterizing it as merely a “docketing” exercise. Perhaps you do not understand the

procedures in place in December 2015 which governed Novato’s Council’s “docketing” an item

for a future agenda. First and foremost, under the Council’s policies, placing an item on a future

agenda is not automatic; it requires the consent of a majority of the Council. A Councilmember

who wishes to place an item on a future agenda must persuade two fellow Councilmembers to

agree that the Council, the City and the City’s staff should devote the time necessary to address

the item and do so in the future. The Council’s policy presumes and expects that there will be

debate and disagreement over whether any item may be placed on a future agenda. And that is

what happened on December 15, 2015, when the Mayor proposed that the Council reconsider the

already approved Project. You complain that the Council’s discussion touched upon

“substantive aspects” of the Project and that the discussion lasted too long. However, the Brown

Act allows councils to discuss the placing of non-agendized matters on a future agenda without

restrictions as to the time spent on such a discussion or as to the issues that can be discussed in

deciding to place such matters on a future agenda.

Moreover, where, as here, the Council’s rules do not permit the automatic agendizing of items

for a future agenda, but require a Council majority to agree to such, a host of issues may arise as

to whether or not the item should be agendized for a future meeting. First and foremost, there

must be a clear understanding of exactly what the Councilmember who wishes the item to be

discussed wants the Council to consider and/or do with respect to the item. Second, the question

of timing must be addressed: so too whether the Council has jurisdiction to hear the matter in the

first place. Third, has the matter already been disposed of to such an extent that even agendizing

the issue presents only academic questions or otherwise tends to indicate that further

consideration of the item would be of no practical benefit. Political and perception issues

abound in even agreeing to agendize some issues for future consideration. And whether the

Council should devote staff time and resources to researching, preparing for and presenting the

item in the future are also matters needing to be addressed as part of the discussion.

Consideration is often given to whether dedicating such resources will detract from and perhaps

de-rail the Council’s efforts to achieve objectives and goals already agreed upon in its strategic

plan. All of these things are properly discussed in the context of deciding whether to agendize a

matter for future consideration and action.

This sort of debate and exchange of ideas and opinions took place in the Cruz case. And the

Court found nothing untoward about it; and certainly found no provisions of the Brown Act to

have been violated by it.

You contend that the Council violated its own Policies by discussing the agendizing of the

Project for a future meeting longer than three minutes. Novato City Council Policy Manual,

section 3.02(f)(2)(a) provides that at the first meeting of each month, Councilmembers may – at

the “Councilmember/City Manager Reports” section of the meeting -- each bring forward one

item for the Council to consider adding to a future agenda. December 15, 2015, was the first

business meeting of that month, and, thus, the Mayor’s request that the Project be agendized for

a future meeting was consistent with that policy. Section 3.02(f)(2)(b) states that the discussion

of that proposal “should not take more than three minutes.” Admittedly, the discussion

concerning agendizing the Project took longer than 3 minutes. However, the 3-minute policy is

not mandatory. It is advisory in nature, and was structured as such fully cognizant that some

items are more complicated and may have more consequences and implications than others, thus

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requiring longer more thoughtful consideration than other proposed agenda items. There is

nothing talismanic about 3 minutes, nor, as the Cruz court implicitly found, even 6 minutes.

In your September 12, 2016, letter, you assert that in discussing agendizing the Project for a

future Council meeting, Novato’s Council engaged in “lengthy” and “substantive” discussions.

And you demand that the Council forever cease and desist from engaging in such “lengthy” and

“substantive” discussions that exceed three minutes. The City Council cannot agree to such a

sweeping and subjective demand. First, your demand is not supported by the law as articulated

in the Cruz decision. Cruz teaches that such discussions and expressions of opinions as to the

nature of the issues which are proposed to be agendized, the options available to the Council in

addressing them, and the rationale underlying which issues the Council can or should be

addressed are completely in accord with the Brown Act. Second, you offer no objective

standards as to what is meant by “substantive” discussions by which future Council conduct can

be measured. To do so would potentially straight-jacket the Council’s deliberative rights and

duties, forcing it to guess when it was violating or not violating such a commitment, and subject

it and the City to untold countless claims of Brown Act violations.

Nor can the Council agree to limit its discussions about agendizing items for future agendas to

three minutes. As discussed above, that limitation is not compelled by the Brown Act and can

only be found in the Council’s Policy Manual as a non-mandatory guideline. Furthermore, at its

October 4, 2016, meeting, the Council amended its Policy Manual to remove reference to the

three-minute advisory policy altogether. Under the revised Policy Manual, even items which a

Councilmember wishes to add to a future agenda must be identified in the agenda for the meeting

during which such a request is made, thus entitling the Council to discuss agendizing such a

matter without time restrictions other than those agreed to by the Councilmembers during the

discussion. Attached, please find a copy of that revised policy for your easy reference.

The Council did not intend to violate nor did it violate the Brown Act when, on December 15,

2015, it discussed agendizing the Project for a future meeting. And, as you know, the Council

ultimately declined to place the Project on a future agenda. In short, it took no action.

We trust that this letter explains the City’s position concerning the claims you have made in your

September 12, 2016, letter.

Very truly yours,

______________________________ Dated: October 11, 2016

Pat Eklund, Mayor

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(f) Scheduling Agenda Items.

The following items shall be routinely scheduled by the City Clerk on a future agenda: 1) items which are

the result of an application submitted to the City for a permit, license or discretionary approval; 2) items

which relate to the approval of budget appropriations, amendments to the budget, and other routine

expenditure requests; 3) items which are directly related to one or more of the City Council’s current

Strategic Plan Goals and Objectives; 4) items which require immediate action by the City Council due to

an emergency, the request of another governmental agency, or other matter which in the judgment of

the City Manager or City Attorney would disadvantage the City if a delay were to occur; and 5) such

other routine, generally non-substantive matters determined by the City Clerk, City Manager or City

Attorney to be appropriate for immediate consideration by the Council.

All other requests for items which do not meet these criteria shall be considered by the City Council in

either of the following two ways:

1. Quarterly Meetings: At a meeting held quarterly to consider significant agenda items, the City Council

will forecast three months ahead to determine if and when an item not meeting the above criteria will

be considered by the City Council.

a. At this meeting, a Councilmember has the right to request up to two items for consideration;

provided, however, that at least seven calendar days before the date of the quarterly meeting at which

the Councilmember intends to make such a request, that Councilmember has identified - in writing

timely delivered to the City Manager - the item(s) which s/he desires to place on a future agenda and

when s/he wishes the item to be agendized. That written request shall be made part of the quarterly

meeting’s agenda packet and the agenda for that meeting shall reflect the name(s) of each

Councilmember requesting consideration of placing an item on a future agenda and the description of

the proposed item(s). Failure to timely request, in writing, consideration of an item for placement on a

future agenda pursuant to this Policy shall waive a Councilmember’s right to request, during the

quarterly meeting in question, that that item be placed on a future agenda.

b. Three votes are needed to advance the item, which will be added to a future agenda at a time

determined by a majority of the Council. At the same time that a majority of the Council places an item

on a future agenda, the Council shall also specify (a) the nature of the matter to be considered at the

meeting held to address the item, (b) the amount of time and resources the staff is authorized to spend

in preparing the item for Council consideration, (c) the nature of the notice staff should provide in

advance of the meeting at which the item will be considered and to whom that notice should be

provided, and (d) whether the item should be agendized for discussion and/or possible Council action.

2. Regular Meetings:

a. At the first business meeting of the month, a Councilmember has the right to request that no more

than one agenda item be placed on the agenda for a future Council meeting; provided, however, that at

least seven calendar days before the date of the meeting at which the Councilmember intends to make

such a request, that Councilmember has identified - in writing timely delivered to the City Manager - the

item which s/he desires to place on a future agenda and when s/he wishes the item to be agendized.

That written request shall be made part of the first business meeting’s agenda packet and the agenda

for that meeting shall reflect the name(s) of each Councilmember requesting consideration of placing an

item on a future agenda and the description of the proposed item. Failure to timely request, in writing,

consideration of an item for placement on a future agenda pursuant to this Policy shall waive a

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Councilmember’s right to request, during the first business meeting in question, that that item be placed

on a future agenda.

b. The request to place a proposed agenda item on a future agenda shall be addressed during the

“Councilmember/City Manager Reports” section of the meeting.

c. Three votes are needed to advance the item, which will be added to a future agenda at a time

determined by a majority of the Council. At the same time that a majority of the Council places an item

on a future agenda, the Council shall also specify (a) the nature of the matter to be considered at the

meeting held to address the item, (b) the amount of time and resources the staff is authorized to spend

in preparing the item for Council consideration, (c) the nature of the notice staff should provide in

advance of the meeting at which the item will be considered and to whom that notice should be

provided, and (d) whether the item should be agendized for discussion and/or possible Council action.

Councilmembers will not encourage members of the public, in lieu of this procedure, to pressure the

City Council to place items on the agenda through email campaigns or mass demonstrations at Council

meetings.

(g) Intentionally left blank.

(h) Request to Move an Agenda Item.

Councilmembers may request that one item be moved to a different agenda if they will be absent from

a particular meeting, and only in the case where there is no time sensitivity for the item and with no

pressure being put on staff in making the request. The request to move an item may be made once in a

fiscal year. If staff does not honor the request, the Councilmember may submit a brief written

communication to be read into the official record or use teleconferencing to participate remotely. If the

request is not honored, the Councilmember may make an additional request during that fiscal year.

(i) Requests for Agenda Items from Members of the Public. If a member of the public requests that an

item be put on the agenda during Public Comment time, the Council will not respond to this request

immediately at the Council meeting, but may choose to bring it up during Councilmember Reports as an

item for consideration using one of the two opportunities described above.

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