San Diego County: Advisory groups in unincorporated areas must comply with California open meeting laws

A California state agency has informed San Diego County that its advisory group members in unincorporated areas were public officials and must comply with state laws governing officials including open meetings laws. The County has established a number of advisory groups to tap local knowledge in setting policies.-db

Ramona Sentinel
August 9, 2010
By Karen Brainard

San Diego County is reconsidering the structure of planning and sponsor groups in unincorporated areas after notification from the California Fair Political Practices Commission (FPPC) that group members must be treated as public officials and therefore could increase county liability.

County officials’ discussion of alternatives for community representation has left many members of the 26 planning and sponsor groups, including the Ramona Community Planning Group, wondering if the county will eliminate the groups.

Although the groups are only advisory, members tout the value of their local knowledge when it comes to making recommendations for their communities.

According to Gig Conaughton, public affairs officer for San Diego County Department of Planning and Land Use (DPLU), there is no talk of disbanding the groups.

“We want to try to reassure everyone there’s not a discussion of disbanding the groups,” Conaughton said. “The county uses them and relies on them for their input.”

With the FPPC ruling, the county could be held liable for actions of advisory groups, Conaughton said, so the county is meeting and working with the advisory groups to find ways to reduce the liability. This issue is not high on the county’s priority list at this time, he added, as DPLU is working on the General Plan Update.

Still, it has been a topic of concern with local groups. Ramona planning group chair Chris Anderson and secretary Kristi Mansolf attended a June 26 meeting with DPLU officials and representatives from other unincorporated areas, including Valley Center, Fallbrook and Lakeside. Those attending were asked to discuss with their groups and prepare suggestions on alternative forms of community representation and ways of reducing liability.

Anderson briefed members of the Ramona Design Review Board, which would also be affected by this ruling, at their July 29 meeting.

“They see the value of us and what we do,” she said of the county, adding that the county has to work with its budget and the economy and look for ways to be cost-neutral.

DPLU estimated it spends $375,000 a year for community group support, which includes planning group elections, training sessions, legal ads, hearing reports, staff support time, appeals and reimbursements for facility rentals and supplies. During fiscal year 2008-09, DPLU spent around $31,000 for community group appeals, an amount lower than in previous years.

Anderson said community group members told DPLU staff that the county needs to come up with a replacement value for them. The real value, she said, is that the members know their community, versus county staffers who are not familiar with the local needs and mindset.

The FPPC notified the county in 1992 that planning and sponsor groups are elected officials but, Anderson said, county counsel disagreed and responded that only the county supervisors and planning commissioners were considered elected officials.

In February, the FPPC notified the county that it is not in compliance and provided the following criteria to determine whether the members of the advisory groups are public officials:
•Whether the impetus for formation of the entity originated with a government agency;
•Whether the entity is substantially funded by a government agency;
•Whether one of the principle purposes is to provide services or undertake obligations which public agencies are legally authorized to perform and traditionally have performed;
•Whether the entity is treated as a public entity by other statutory provisions.

“If you look at these, we meet them all,” Anderson told the design review board members.

This triggered the county supervisors to adopt conflict of interest codes for all the groups on March 23. Now considered public officials, advisory group members are subject to the disclosure and disqualification provisions of the Political Reform Act and must follow conflict of interest codes.

Advisory groups previously operated under the Board of Supervisors Policy I-1 and I-1A, which include similar disclosure and conflict requirements but not the civil or criminal penalties that members could face as public officials. Advisory group members are also required to fill out the FPPC Form 700 economic disclosure statements.

With group members now designated public officials, the county district attorney is able to enforce conflict of interest code violations and the state’s open meeting law, the Ralph M. Brown Act.

Violations of conflict of interest laws could involve a member voting on a project where a conflict of interest may exist, or a member providing an inaccurate report of income and gifts.

Brown Act violations include group members discussing projects over the phone, via e-mail or at informal gatherings; posting agendas less than 72 hours before a meeting; posting incomplete agendas; subjectively describing projects in meetings and on agendas; and holding open or closed meetings without notice.

Anderson said she reported on a Brown Act violation with the Ramona Community Planning Group in 1999 or 2000. At a meeting, she said, an agenda item already had an opinion written and signed by nine members. There was no discussion or review at the meeting and it was obvious the members met before the meeting, she noted.

“I was appalled—it was such a gross violation,” said Anderson, explaining that more than a minority of members cannot be discussing an agenda item before a meeting.

At the June meeting with DPLU, an attorney with the county brought up a scenario of a Brown Act violation and pointed out that the county won’t take on liability when people won’t listen, said Anderson. The attorney referred to unidentified planning group members who have said, “You can’t tell me I can’t do this,” she added.

“Now we’ll be governed more by the FPPC,” noted Anderson.

If the county does not legally cover the planning group members, they will individually be open to lawsuits and FPPC fines and if that happens, Anderson said, “We will be gone. In essence, by not providing us with that, it (planning group) will disband.”

Although group members have been required to attend a training class on conflict of interest and the Brown Act, Anderson said additional training was discussed at the DPLU meeting. Other ideas included legal counsel sitting in on meetings and directors and officers insurance.

“They want us to come back with ideas,” said Anderson.

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