The state’s Brown Act (Open Meeting Law) provides that it is unlawful for City Council members, through any means or intermediaries outside a public meeting to discuss or reach a consensus of a majority of a legislative body. For the PLUM Committee with 5 members, that would be 3 City Councilmembers. Government Code section 54952.2 provides in part:

“(a) As used in this chapter, “meeting” means any congregation of a majority of the members of a legislative body at the same time and location, including teleconference location as permitted by Section 54953, to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the legislative body.

(b)(1) A majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.

(2) Paragraph (1) shall not be construed as preventing an employee or official of a local agency, from engaging in separate conversations or communications outside of a meeting authorized by this chapter with members of a legislative body in order to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency, if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body.” Bold added.

Is a majority of PLUM Committee members receiving the edited secret PLUM Notes with information learned by their deputies that includes the position of the Councilmember in whose district the project lies? Does there exist in the City Council an institutional norm to defer to the preferences of the Councilmember in whose district a project lies, so long as they defer to each other? Is it possible that the position of the Councilmember in whose district a project lies is the only information that other City Councilmembers really want to know before they vote on items on the PLUM Committee agenda, including land use appeals?

These are questions of constitutional law dimension.

There are federal and state constitutional requirements related to land use approvals where a City Council wears a judicial hat instead of a classic legislator’s hat. When acting to hear a land use appeal that affects constitutional rights, the City Council must act in an unbiased way. Each decision maker is required to make the decision about a land use appeal based solely on the record of the proceedings, including the testimony, evidence and argument at the required hearing.

In the pending litigation, discovery was served on the City asking for each City Councilmember to admit that they read none of the documents in the City Council File for the particular project challenged. This discovery seeks to test if the deputy City Attorneys are excluding from the evidence in the case, the PLUM Notes that have not been released as evidence in the case. The City’s attorneys have objected, claiming that City Councilmembers have no obligation to disclose if they read anything in the Council File. They are asserting such information is privileged and they can lawfully refuse to answer this question. In our litigation, we just filed a motion to compel the City Councilmembers to answer this question because it implicates whether the evidence in the record before the Court is complete for reviewing the City’s decision on an individual land use/CEQA appeal.

Think about the implications of this. Many important cases go to the courts to litigate whether the City Council acted legally, and the actual documents that the City Councilmembers read – perhaps the only documents that the City Councilmembers read – are kept secret by deputy City Attorneys using claims of privilege. In this City-created Star Chamber, you are free to file a lawsuit, but the City’s attorneys are going to systematically not tell you of the existence of the pre-PLUM meeting and its documents. The City is going to claim you have no right to see the secret staff reports and no ability to challenge the accuracy or completeness of the CLA’s summary of your appeal documents in the City Council File. Does this process sound fundamentally fair to administrative land use appellants or to those who litigate their claims?

There is an even broader issue. The Open Meeting Law contemplates a simple process for a Councilmember on the PLUM Committee:

(1) issue a meeting agenda,

(2) read the materials in the Council File, and

(3) show up at the public meeting and ask your questions and listen to the public and staff before deciding an issue.

The City of Los Angeles is investing millions of dollars for staff to arrange and conduct secret meetings before the PLUM Committee meets to decide things about multi-million dollar real estate development projects, write secret briefing memos for City Councilmembers to read, and along the way space is left for City Councilmember deputies to report information they learned about each item on the PLUM Committee meeting agenda. Does that sound consistent with an open and transparent government?