Opinion: Council shouldn’t operate in secret

BY DAVE PRICE
Daily Post Editor

You hear all sorts of people these days saying we have to “save democracy.” But when democracy on the local level is jeopardized, you don’t hear a peep.

The people who are threatening democracy get away with it. Nobody cares.

Such is the case in Menlo Park, where the city council held an illegal (in my opinion) secret meeting to discuss a compromise that might have kept Measure V off the ballot.

Measure V, also known as Menlo Balance, is a citizens initiative started by residents of the Suburban Park neighborhood who didn’t want the Ravenswood School District to turn Flood School at 321 Sheridan Road into an apartment complex.

The East Palo Alto-based Ravenswood, which historically has had money problems, wanted to use the apartments as a source of revenue to improve teaching.

But Measure V is bigger than just one school site. If approved, it would require certain zoning changes in single-family-zoned neighborhoods to go to the voters, making it difficult to build apartments.

City Councilman Drew Combs, who represents Suburban Park, worked out a compromise that would reduce the number of apartments in the development from 90 to 60 and add a second entrance to the property to ease traffic.

No advance notice

Somehow, the compromise was discussed in an Aug. 9 closed-door meeting, though no advance notice to the public was given.

If council wants to hold a secret meeting, it is required to provide a description of the items to be discussed. (Government Code Section 54954.2). No such description was posted by the city.

The topic has to fit one of the narrow list of exceptions to open meetings. One common reason for a closed session is “existing or anticipated litigation.” But in this case, no lawsuits or legal claims had been filed against the city over Flood School.

Sure, somebody could sue the city over Measure V. People can sue over almost anything a city council does. But that’s speculative. There are no real claims or threats of litigation in this case.
The law requires council all votes to take place publicly. Of course everybody is saying no vote took place.

What was the vote?

But it doesn’t take a math genius to figure out what happened.

There are five members of the city council.

We know that Combs and Ray Mueller had worked to reach a compromise with the Suburban Park residents. So you can assume they would have voted “yes.”

The remaining three council members are Betsy Nash, Cecilia Taylor and Jen Wolosin.

By process of elimination, all three must have opposed the compromise.

We know the compromise died because Measure V went on to the ballot.

Was the law prohibiting vote-taking in a secret meeting violated? I guess it comes down to how do you define “taking a vote.”

Do you need to write down your vote on a piece of paper? Or do you go around in a circle and each council member says what they think, and when one side reaches three votes, somebody yells “Bingo”?

This vote should have taken place in public. The public has a right to know where their elected officials stand on such a controversial policy issue as Measure V.

Now we’re in for a polarizing campaign if Thursday night’s meeting of the Menlo Park City School Board is any indication. That board was planning to approve a resolution supporting its neighboring district and opposing Measure V. Then the Measure V people turned out and threatened the school board, saying that if they opposed Measure V, they’d stop anybody from donating to the district again. The tactics worked and the board backed down. This is all very unusual for a Menlo Park City School Board meeting.

I fear we’re going to see more of this before the election. What a shame.

Editor Dave Price’s column appears on Mondays. His email address is price@padailypost.com.

15 Comments

  1. ” One common reason for a closed session is “existing or anticipated litigation.””

    “Anticipated litigation”, likely the reason Council would trot out for their closed session, is too big and wide a barn door. Until it is fixed we should see more of this from Council(s).

  2. If a city employee forgot to publish that “potential litigation” will be discussed, that person can be fired so that Menlo Park can hire an unemployed person that can’t get a job in any other city. Mueller and Combs are both lawyers and they are both in closed session meetings. Instead of raising these concerns with the city attorney they seem to be sharing details to the Post, that is a sad state of affairs.

  3. @Not Ralph, I think your missing the point. The meeting was billed as an executive session for litigation. Mr Price is saying that council strayed from what’s allowed in such a session.

  4. I think council, or at least one of its members, needs to tell the public how a meeting to discuss a political matter, i.e. averting a referendum with a change in the project, can be kept secret from the public.

  5. “City Councilman Drew Combs, who represents Suburban Park, worked out a compromise that would reduce the number of apartments in the development from 90 to 60 and add a second entrance to the property to ease traffic.” Drew can come up with whatever fantasies he wants to. Neither the RCSD nor Menlo Balance ever saw or approved of that “compromise.” Councilman Combs ONLY got interested in helping the residents of Menlo Park AFTER the signatures were gathered. The man is living in his own reality.

    • What are you talking about? Nicole Chessari of Menlo Balance is on record as saying she would have favored 60 units and a second access point to the property — the exact compromise Drew Combs took to council. Now she’s trying to wiggle out of it by saying she never saw a “formal” version of the compromise, as if it had to be written out as a legal contract on parchment paper for her to give her consent. Please!

  6. Menlo councilmembers largely don’t care what their residents think and used covid to ram through decisions that would never pass the daylight of an open public meeting. Twenty years from now Constitutional lawyers will shake their heads at what happened in this town over the last two years.

  7. It’s fascinating to see the different levels of local discussion. The Daily Post seems to run different viewpoints and allow civil discourse on Measure V. At the same time the Almanac News seems to the Peter Carpenter show, with his buddies on staff only allowing his anti-Measure V posts to fill the comments. His last thread over there even called the supporters racists and his ending comment was that the lack of pushback to his points spole volumes. Well, that’s easy to say when your friends keep opposing opinions silent.

    • Check again. We clarified that. Peter finally admitted that markets inherently discriminate directly by income and only indirectly by race.

      Since Peter is bigly pro-market it was a swallow for him. Not ready to become a communist just yet.

      The repositioning of market-driven INCOME segregation as intentional RACIAL discrimination, is, by now, transparent and boring. The whole “exclusionary zoning” nonsense makes this spin to play the race card in land-use debates.

      The best response is to note that the (global) impact of upzoning is to create luxury units with “exclusionary rents.” So YIMBY policy replaces “exclusionary zoning” with “exclusionary rents.” Kumbaya.

  8. Once the initiative was filed with the required number of signatures the Council only had two choices – adopt the Measure by Council vote or put the Measure on the ballot. The Council did not have the legal authority to negotiate a compromise because all of the signatories would have had to approve such a compromise.

    In my opinion the Council erred in agendizing this issue in a closed session as discussing it allegedly under the pending litigation exemption was inappropriate – there was no pending litigation.

    • The petition could have been withdrawn up to Aug 12, I believe. That was the third option.

      Any compromise would require trust by Petitioners that non-Petitioners would pursue their end in good faith. As I understand it, meetings had levels of public officials present, who, would be more than willing to announce their participation in a public press conference were the Petition to be withdrawn in favor of a negotiated compromise.

      The compromise had to deal with the fact that many Petitioners signed to gain protections for their own neighborhoods that had nothing to do with the Flood project.

  9. ” 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. For example, it is not permissible to hold a closed session in which settlement negotiations take place between a legislative body and an adverse party or to hold a closed session for the purpose of participation in a mediation.”

    ” 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. For example, it is not permissible to hold a closed session in which settlement negotiations take place between a legislative body and an adverse party or to hold a closed session for the purpose of participation in a mediation.”

    https://www.cacities.org/UploadedFiles/LeagueInternet/0d/0dd433d2-29c5-410c-af4f-418e247e7af3.pdf

    So what is not clear about that guidance???

    So what is not clear about that guidance???

  10. It is interesting to note that the exact language of Measure V reserves the authority to rezone most residential properties to the voters in a city wide election. “..shall not be redesignated or rezoned except by a vote of the people of Menlo Park at a regular election.”

    The unappreciated impact of this is that Measure V in effect permits the city to put a rezoning on the ballot without any studies or public hearings. And the result of such an election would be unappealable. All of the protections provided by the current process including Planning Commission and City Council studies and public hearings and related appeals are NOT required by Measure V.

    The authors of Measure V even went further to make clear that Measure V supersedes all of the process and protections for rezoning that currently exist by stating “To the extent that any provisions of the Menlo Park Municipal Code, including the Zoning Regulations of the City of Menlo Park, or any other ordinances of the City may be inconsistent with this Initiative, the provisions of this Initiative shall prevail.”

    So a developer who want an upzoning can simply demand that the city put that upzoning on a general election ballot – no hearings, no studies, no appeals.

    The unintended consequences of the Initiative show the risks of having poorly informed and inexperienced individuals drafting such measures.

    Here is what may well happen if Measure V passes:

    1 – Measure V passes
    2 – RWCSD immediately submits a rezoning application to city and demands that it be placed on next general election ballot. Per Measure V no project specific information is required to accompany the petition and no public hearings or studies are required.
    3 – The city-wide vote (at a cost of $30-50K) overwhelming approves the RWCSD up zoning as it will have zero negative impact on the rest of the city and will increase the potential housing stock.
    4 – RWCSD submits a development proposal which maxes out the site under the new zoning but which does not include any variances or exceptions.
    5 – The city’s only control, given that the proposal conforms with the new zoning, is architectural review.
    6 – The city therefore must approve the project as submitted
    7 – RWCSD then claims property tax exemption for entire development as an educational facility

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