Question
At a Planning Commission in our city an applicant applied for a variance regarding the height of a fence as a result of a complaint. Prior to the hearing a Planning Commissioner revealed that she was the complainant and was stepping down from the hearing. Another Planning Commissioner evidently found out who had made the complaint. This Planning Commissioner has taken it upon herself to have filed numerous complaints in the past. She states that her complaints are confidential. I would venture to guess that she has sat on the Commission and judged an item that she has also confidentially complained about. I have a serious doubt if she would have stepped down the other evening if it had not been made known the facts. Are her complaints confidential? Are they required to be released as a public record? How would one go about checking her past complaint record verses her sitting on the Planning Commission and also hearing the case?
Answer
Records of the planning commission are likely subject to the requirements of the California Public Records Act, which gives the public a right to inspect public records and a right to obtain copies of them. Cal. Gov. Code sec. 6253. Therefore, it seems the first step in checking a record of past complaints would be to request records pertaining to any complaints made by this particular Planning Commissioner, during the period for which she has been on the Commission. A sample letter requesting records can be found on CFAC’s website, https://firstamendmentcoalition.org/cpra-primer/sample-cpra-request-letter/. Within 10 days of receipt of your request, sec. 6253(c) requires the agency to “determine whether the request … seeks copies of disclosable public records,” and to “promptly notify the person making the request of the determination and the reasons therefore.” Gov. Code sec. 6254 contains numerous exemptions to the Act with respect to particular types of records, but none of them would appear to necessarily apply to records relating to complaints made to a Planning Commission.
We are not aware of any requirement, in the Brown Act or otherwise, that specifically speaks to whether a particular Planning Commissioner must step down when the Commission is hearing a complaint made by that Commissioner. However, it may be that the city or the agency itself has rules or regulations governing conflicts of interest, which may or may not be relevant to this issue.
Asked & Answered posts should not be relied on as legal advice, and FAC makes no guarantees about their completeness or accuracy. All posts carry a date of publication that readers should take note of in assessing their usefulness, given that laws and interpretations of them may change over time. Posts predating Jan. 1, 2023, that discuss the California Public Records Act may contain statute numbers no longer in use. Please see this page for a table showing how the California Public Records Act has been renumbered.