Shame on SLO City officials’ plans to stifle the public

May 13, 2017

OPINION by RICHARD SCHMIDT

At the beginning of each San Luis Obispo City Council meeting, after council members pledge fealty to the republic whose local operatives they are, come “presentations” and “proclamations,” typically tedious and tendentious celebrations of the unimportant. Five minutes for this one, ten minutes for that, on and on, sometimes becoming an hour of smiley bonhomie, while those who came to speak to their representatives about serious concerns wait and wait and wait for the council to get to work.

After this confectionery comes public comment, when residents, by law and by Constitutional right, can address the council about whatever’s on their mind.

On May 2, one presentation was the city’s receipt of a “platinum” award from the Davenport Institute of Pepperdine University, a conservative Christian college in Malibu, where SLO City Manager Katie Lichig was previously city manager.

Davenport’s purpose, says its website, “is to help solve California’s public problems by promoting citizen participation in governance.”

Ashley Trim, Davenport’s executive director, presented the city her organization’s highest award for public participation.

“San Luis Obispo is setting an example of how to create a culture of participation,” Trim said in a press release.

“The city,” added Mayor Heidi Harmon, “is thrilled to receive this honor because it shows that our efforts to get the community involved in local government have been noticed. Allowing people to have a greater say in the decisions that impact their lives is a mainstay of democracy.”

Lichtig said, “Our goal is to ensure the public feels that city hall is accessible.”

Wow! There must be some alt-fact universe speakers of these fine words inhabit.

Anyone familiar with how the city actually works, other than say business and development interests who pretty much get whatever they want, would wonder how an outfit like Davenport could possibly conclude the city is doing anything right when it comes to public participation.

Consider just a few examples:

• This city perpetually screws up its obligation to notify residents about projects that will affect them, and when the notification errors are pointed out says “so what” and goes ahead anyway, forcing anyone wanting redress from staff’s misdeeds to file an appeal, for which the city charges money.

• This city’s staff routinely advocate approval of abusive neighborhood developments that fail to adhere to city codes and standards or even common sense, taking the side of developers against the residents who pay their salaries, and against what’s right, thus forcing those aggrieved to file an appeal, for which the city charges money.

• The city council, when hearing such appeals, in nearly all cases acts abusively towards those who bring them, dismisses the appeal without attempting to uphold established standards or find common ground. Over the past three years, at least nine major neighborhood appeals and their appellants have received this cavalier treatment.

The city has made it clear: residents are obstacles to Lichtig’s crew turning our town into something radically different from what it has ever been, and deserve no respect for questioning the wisdom of that.

• The city council has so little respect for appeal rights, a fundamental Constitutional right spelled out in the First Amendment’s right to “petition for redress of grievances,” it decided to impede appeals because they take too much of their precious time (they see on average one appeal every few months – hardly a time-eating flood).

So last month they increased the basic appeal fee from $281 to an unaffordable $683, a move whose intent is widely understood to be to limit public participation. If they actually respected public involvement, appeals would be free.

All this was clear long before the Davenport award.

But it gets better. At that May 2 meeting, when the Davenport award was presented, the council gave short shrift to a citizen group wanting to reform campaign finance, refusing even to schedule a discussion of the pros and cons. Now they’ll be faced with a winning ballot initiative on a scheme it would have been much better to subject to public discussion, vetting and improvement.

At that same meeting, during the very last item — which the agenda states is time for “council members [to] report on conferences or other city activities,” — an even bigger anti-public participation measure was agreed to – despite it not being on the agenda.

The council decided it would limit public comment to one minute per speaker, a reduction from the already inadequate three minutes, because – well, listen in and see why you think they did it!

Mayor Heidi Harmon, whose fine words quoted above state public participation is “a mainstay of democracy,” began the conversation by referring to talk at a costly and unnecessary council “retreat” at a hotel where no constituents were likely to wander in and interrupt the council’s bliss.

The retreat was led by a pricey San Diego facilitator brought in by Lichtig to help staff figure out how to manipulate the new council and apparently – read on – to help the council break the law.

Harmon: “And then I wanted to bring up a quick idea and also just revisit a conversation we had at the retreat — the city council retreat — about the public comment period. And, uh, we haven’t had a chance to really land on that. It tends to come up right around public comment period time. (laughs) We see something like 30 slips coming up and realizing we haven’t really settled on that, can we– is that something we can quickly agree to right now? Or that we need to talk about at a later date? (looking toward Lichtig for an answer)

At this point, since the item is not on the agenda, its discussion becomes a violation of the Brown Act, and the city attorney should have stopped the talk right then, before it went further. But she didn’t. Note how long it takes her to finally intervene, and all that transpires prior to – and after — that point.

Lichtig: (Lichtig often speaks with upward intonation, so it sounds as if she is asking a question when she’s making a statement – thus the question marks that follow.) “So my understanding about the consensus that was achieved at the retreat was that the council wanted to have some refined ways to deal with public comment. So, that we would take 15 minutes at the beginning of the meeting.

“And if there were a number of slips at the beginning of the meeting — that would indicate that it would take more than 15 minutes to get through it – that the amount of time would be reduced to either two minutes or one minute, based on the number of slips that were available.

“That the mayor would encourage people to submit their slips, so that we would know. Or at least indicate by a show of hands if there were other people that hadn’t [turned in their slips] so that you could make a decision. And then, that you would offer the same amount of time at the end of the meeting to all of the remaining, um, people who wanted to continue to make public comment. So if you would reduce the time — if today’s time had been reduced to a minute per person – you’d take fifteen minutes? You’d stop after fifteen minutes.

“And then if there were still, you know, twenty people who wanted to go at a minute a piece, then that would go after the last item but, I’m assuming, before council, um, communication and liaison reports. So if that is the, um consensus – if I’m getting it right – then we can figure out how to amend the agenda to have that be, um, articulated in a concise, relatively concise, way so that people will know about it ahead of time. And that has been the concern, is that there’s really no way for the members of the public to know about that approach.”

Harmon: “Sooo, let me make sure I’m getting what you said right. (to Lichtig) So we’re committing to the 15 minute in the front end of the meeting. Then we’re going to try and make sure, let’s say there’s 15 people that want to speak.

“Then the shift that we’re going to make is that they get one minute? And if that’s not workable for them – they want their, they want three minutes – then they have the option of speaking at the end?”

Lichtig: “Uh, that isn’t the way I understood the council’s consensus at the retreat? My understanding was that if there were 15 people and, that wanted to speak, then everyone would get a minute and you’d get through the 15 minutes at the beginning of the meeting.”

Harmon: “Uh huh.”

Lichtig: “If there were twenty people who wanted to speak, everybody would get one minute. You’d take the first 15 minutes at the beginning of the meeting. And then the last five people who submitted their, um, slips, would get that additional one minute per person at the end of the meeting.

“So it wasn’t an individual choice whether you got a minute, two minutes or three minutes. It was based on the number of people and sticking to the 15 minutes at the beginning. And then having all the other people at the end. Was the way I understood what the will of the council was.”

Harmon: “Okay, so . . .”

Lichtig: (interrupts) “I think it makes it pretty confusing to let people decide whether they want one minute or . . .”

Council Member Andy Pease: “And, and I don’t think that’s what she was saying. I think she was saying – I think you guys are actually saying non-conflicting things . . .”

Harmon: (interrupts) “Well, not really. I was wondering – cause especially in a transition when people are coming, they’re expecting their three minutes. They’re not expecting this shi(ft) difference—‘If I feel committed to my three minutes, do I get the option?’ What I’m wondering is, ‘I don’t want one minute. I want three minutes.’ ”

“Can I take that three minutes at the end? But I hear you [Lichtig] saying that, if we commit to one minute per speaker, out of some, maybe, sense of fairness, people will continue to get one minute, whether they take it in the 15 minutes upfront or at the end of the meeting.”

Lichtig: “I think that ultimately it’s the council’s decision about how you want to administer your meeting? I think that there is a fairness issue? Um, and I’m not sure that it’s ultimately . . . ( Lichtig’s iPhone beeps and she looks down at it. Siri: ‘That’s what I figured.’) Oh, that’s, uh sorry. It just does it. I didn’t touch it. (Gestures with hands up, council members laugh) Uh, so it is really a function of what you want to do and how you want to administer the meeting.”

Harmon: “Okay. So is…and so we need to get some kind of consensus on that? (pause, looking toward Lichtig. Silence.) Um, okay.”

Council Member Carlyn Christianson: “May I speak?”

Harmon: “Andy, I see your light on but I don’t see your number up here. Um, Councilmember Christianson?”

Christianson: “Yes, uh, here’s my take on it. My take on it is, most people will not . . .” (interrupted by city attorney)

City Attorney Christine Dietrick: “We don’t have this item on our agenda, for changes to your policies or procedures…”

Christianson: “Okay, okay, so I was just…”

Dietrick: “You’re getting into a substantive discussion.”

Christianson: “I was going to give my understanding of the…”

Dietrick: “The prior, the prior action?”

Christianson: “Yeah, but that’s okay. I won’t talk.”

Lichtig: “Why… don’t… we… do… this. (Council laughs) So, your Policies and Procedure Manual don’t speak to this at all. (speaks fast) It just says that you’ll have a public comment period and there’s no specificity. So, that gives you the – in my opinion — that gives you the maximum flexibility to do whatever you want.”

Council Member Dan Rivoire: “Yep.”

Lichtig: The history has been that there’s been, on the agenda, the reference to a maximum of 15 minutes. And so, however you want to do that? So why don’t we do this: Why don’t we – on the next agenda (wringing hands) put an item on the agenda. Unless you want to just – Or the other alternative is, implement it the way that I interpreted the council’s previous consensus. And then, if it doesn’t work, you can always direct change.

Christianson: “Well (whispers to Harmon) I’d like to speak again.”

Harmon: (whispers to Christianson) “Okay.”

Lichtig: “You can put the item on the agenda or you can start, try it and see if it works.”

Harmon: “Go ahead Carlyn.”

Christianson: “It would be, I think it would be good just to have a short item on the agenda because my feeling would be – we don’t have to say fifteen minutes but we can say 20 minutes or a half an hour. The idea is we don’t really need an hour’s worth of public comment, where 45 minutes is on the same issue.”

Harmon: “Hmm hmmm.”

Christianson: “I mean, people like – it’s important that they feel like they can talk to us about an issue but we know – we don’t need 25 people asking us the same question! We under—once we kind of get the gist, you know, we’re good.” ·

Dietrick: “And so, if the council wants to formalize that we can place an item on the agenda for discussion.” (laughs)

Harmon: “Okay. So what we need right now is to agendize? I’m in.”

Rivoire: “I’m in.”

Council members Pease, Christianson and Aaron Gomez: “I’m in.”

Harmon: “Okay. Are all the other speakers here good to go then? Okay. We’re good with that then.”

All in. So a decision has been made, the future agenda item a mere legal fig leaf punctuated by a laughing attorney.

The contempt with which the council – Christianson in particular – regard speakers is magnificently expressed here. “Who needs to hear from the rubes?” seems their attitude. “They take up too much time.”

So much for council understanding of what representative democracy means, and of their obligation to nurture – not stifle — resident involvement.

There are also some interesting things in this discussion that may not immediately be apparent.

Lichtig refers to a “consensus” reached at the council retreat. For example, note her reply at one point to Mayor Harmon: “that isn’t the way I understood the council’s consensus at the retreat.” So, clearly the council agreed to something at the retreat.

This is an admission by Lichtig of a Brown Act violation. The retreat was a meeting without an action agenda and without public participation, and all actions, including a “consensus” agreement to change a policy like public comment, are explicitly prohibited at such a meeting.

Dietrick further confirms the violation when she responds to Christianson, asking, “The prior, the prior action?” Indeed – an action taken at a meeting where no actions may be taken!

Dietrick’s tardy efforts to save the council from an overt Brown Act violation on May 2 thus come two meetings too late. But this, unfortunately, is typical in a city that plays fast and loose with public participation.

Another city attorney might have shut down the substantive policy discussion at the retreat since it involved an unagendized subject and a consensus action not permitted at such a meeting. This attorney apparently didn’t.

This affronts the basic premise of the Brown Act, expressed by the legislature in the law’s preamble: “The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”

That’s why “action” taken in a council retreat is wrong.

Note also Lichtig’s telling the council their written procedures governing public comments are non-specific so they can do as they please.

Lichtig, supposedly supplying the council with authoritative facts, says: “Your policies and procedure manual don’t speak to this at all. It just says that you’ll have a public comment period and there’s no specificity. So, that gives you the – in my opinion — that gives you the maximum flexibility to do whatever you want.”

In her opinion. Wow! The problem is she’s supposed to be expert on city policies, able to supply the council with accurate facts, but here she’s completely wrong.

Her “opinion” is irrelevant. And again, what about the city attorney? She’s sitting there silent. Why doesn’t she correct Lichtig’s untruth?

Then there’s the council. Note Rivoire’s “Yep” agreeing with Lichtig’s false statement. The council members, aggrieved by having to listen to constituents’ comments, apparently haven’t bothered to look at their own rules to see what they say on the matter. They apparently believe they can do as they wish, the established rules, laws, policies be damned.

This lawless attitude, which reflects attitudes in many parts of city hall, is killing our city.

Contrary to Lichtig’s untruthful propagandizing of the council ego, the council policies manual is quite specific about time for public comment. Here’s what it says:

“Immediately prior to scheduled public hearings, members of the public may address the City Council on items that are not on the printed agenda, or items on the Consent Agenda. A time limit of three minutes is provided.”

Three minutes, not freedom for the council to monkey in any way they wish with the time.

Three minutes is actually substandard. The California attorney general says speakers should have five minutes. One minute, of course, is beyond inadequate – it’s insulting.

Not only do the council policies explicitly state three minutes, they further say the mayor may allow additional time when appropriate – even to speakers who have already spoken.

This episode – Lichtig giving the council false information – highlights a huge problem at city hall. Staff don’t feel bound by precedent, written policy or even law. They tell the council something conforms when it doesn’t. They make it up as they go. Planning staff regularly advocate for projects that violate regulations. The council’s response? They do nothing about it. When residents urge the council to do something, council members rally around staff and get nasty with “complainers.”

In this instance, why did Lichtig give the council such blatant misinformation (and why did the city attorney not correct her)? I can think of two possible reasons: she is grossly ignorant of actual city policies, or she lied. When you consider she’s running the city and pulling the council’s strings, neither alternative is a pleasant thing to contemplate.

So the Davenport Institute award for good public participation practices is a farce, and reflects poorly upon that organization, on whose board of advisors two familiar SLO faces sit – retired city manager Ken Hampian, Lichtig’s predecessor, and retired police chief Deb Linden. Could their presence have anything to do with this undeserved award?

I have asked Davenport’s Ashley Trim to rescind the award. Of course that will not happen.

Residents need to understand something about awards of this sort: they aren’t the result of energetic truth-seekers sifting through data to discover folks doing wonderful things. They are the result of blatant self-promotion – often with an entry fee — by potential awardees.

Lichtig has turned city hall into a public relations propaganda machine, and her having staff apply for, present for, and pursue about every potential award – using tax dollars and staff time to puff her own resume – has had some impressive, if misleading, results.

We hear about the awards she wins, but not the ones she applies for and loses. Among my favorite losers is the one Lichtig’s team confidently sought from the American Planning Association for the Land Use and Circulation Element (LUCE) update, a dreadful policy document about which her team, including the council, can never stop crowing.

However, despite being the only entry in its category, the APA declined to bless it with any of its three levels of award. My sources tell me one among several entirely rational reasons was concern over the cleverly manipulated public participation process which shut out residents from meaningful input to the plan and instead delivered primary influence to the Chamber of Commerce.

Too bad Davenport didn’t investigate that fiasco prior to giving its award.