Item 5.1 - Council Policy Concerning Contacts with Potential Project Applicants ® C`,c.{ OF '04,,9.
AGENDA REPORT SUMMARY �' a
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TO: Honorable Mayor and Members of the City Council
FROM: James L. Bowersox, City Man.
INITIATED BY: Stephen M. Eckis, City Attorn
DATE: April 4 , 1995
SUBJECT: Council Policy Concerning Contacts with Potential Project Applicants
ABSTRACT: At the request of the City Council the City Attorney has drafted a
proposed written policy for Council consideration regarding contacts with potential
project applicants. The proposed policy would set clear limits for such contacts in
accordance with previous legal opinions of the City Attorney.
ENVIRONMENTAL REVIEW:
None required.
FISCAL IMPACT:
None.
ADDITIONAL PUBLIC NOTIFICATION AND CORRESPONDENCE:
None.
RECOMMENDATION:
It is recommended that the City Council review, modify as appropriate, and adopt
the attached resolution stating the Council policy concerning contacts with potential
project applicants.
ACTION: < opted Resolu ion 95-019. 4-0. Councilmember Emery absent.
QJuer C� a=-���
Marie Lofton, Deputy City Clerk
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"APR 4 1995 ITEM 5® 1
SAGENDA REPORT OF POki
CITY OF POWAY
Itemirsom
TO: Honorable Mayor and Members of the City Council
Ty 1N THE CO
FROM: James L. Bowersox, City Man•:,?.
INITIATED BY: Stephen M. Eckis, City Attor
DATE: April 4 1995
SUBJECT: Council Policy Concerning Contacts with Potential Project Applicants
BACKGROUND:
On March 14, 1995, Councilmember Rexford requested that City Council consider
the formal adoption of a policy concerning contacts by Councilmembers with potential
project applicants. The City Attorney advised that the subject of contacts with potential
project applicants has been discussed by previous City Councils. A recent memorandum on
the subject was prepared by the City Attorney and dated September 15, 1994. A copy of
that memorandum is attached to the staff report.
The legal issues concerning applicant contacts include the Brown Act and
constitutional due process. Generally, the Brown Act prohibits the conduct of City business
by a quorum of the City Council outside of public meetings. More specifically, in this
context, the Brown Act prohibits a majority of City Councilmembers from reaching
agreements with a project applicant outside of a public meeting. This prohibition applies
whether such agreements are reached in one non-public meeting or in a series of such
meetings with less than a quorum present at each meeting.
The demands of constitutional due process affect individual City Councilmembers,
whether or not a quorum is involved. Due process requires that a City Councilmember
should not make a commitment to a project (a quasi-judicial matter) outside of a public
meeting. In addition, due process requires that the public and all Councilmembers have the
same information which is relied upon in making a decision. If information is obtained
outside of the public meeting on which a Councilmember will rely in supporting or opposing
the project at the public meeting, the Councilmember should disclose that information during
the public meeting so that the applicant, the public, and all Councilmembers can consider and
comment upon that information.
ACTION:
See Summary Sheet
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CITY OF POWAY
AGENDA REPORT
April 4 , 1995
Page Two
The due process rules apply to quasi-judicial matters, not legislative matters.
Generally, that means due process rules apply to specific projects for which application has
been made to the City. Due process rules do not apply to policy matters. Policy matters are
legislative, not quasi judicial, in nature. Councilmembers, if they wish, may commit to
positions on legislative matters prior to public meetings without violating due process
requirements.
For the reasons discussed above, the City Attorney has advised that neither the Brown
Act nor due process prohibits individual Councilmembers from meeting with applicants to
listen, but no commitment or promise should ever be made on a proposed project. Further,
the City Attorney has advised against even stating an inclination to support or oppose a
project without first asking if the applicant has met with two other Councilmembers. If an
applicant has already met with two or more Councilmembers and is seeking a statement from
a third Councilmember concerning an inclination of support for a project, it has been the
City Attorney's advice to decline such a meeting with the applicant. Pre-development
conferences at workshop meetings of the Council are available for a project proponent to
obtain such feedback from the Council in a public setting.
Except where information is received outside of a public meeting on which a
Councilmember will rely in voting at the public meeting, it is the opinion of the City
Attorney that the law does not require disclosure by one City Councilmember of the fact that
a meeting has taken place with a project proponent (or opponent). The law does not support
the proposition that each public meeting item must begin with a recitation from each
Councilmember of any and all contacts made by each Councilmember concerning a project
before the public meeting on that project. However, if a Councilmember will rely on
information in making a decision that was not presented during the public meeting, the
Councilmember should disclose that information at a time during the public meeting when the
public and other Councilmembers may comment upon it.
FINDINGS:
The City Council wishes to formally adopt a policy concerning Councilmember
contacts with potential project applicants. A draft policy is attached to this staff report.
Adoption of such a policy would serve the public's interest in assuring that all legal
requirements are met.
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AGENDA REPORT
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Page Three
ENVIRONMENTAL REVIEW:
None required.
FISCAL IMPACT:
None.
ADDITIONAL PUBLIC NOTIFICATION AND CORRESPONDENCE:
None.
RECOMMENDATION:
It is recommended that the City Council review, modify as appropriate, and adopt the
attached resolution stating the Council policy concerning contacts with potential project
applicants.
Attachments: Exhibit A - Resolution
Exhibit B - September 15, 1994 Memorandum
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APR 4 1995 OTE 5 , 1
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RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF POWAY, CALIFORNIA
ESTABLISHING CITY COUNCIL POLICY
CONCERNING CONTACTS WITH
POTENTIAL PROJECT APPLICANTS
WHEREAS, the Ralph M. Brown Act prohibits certain contacts regarding City business
outside of a public meeting; and
WHEREAS, constitutional due process prohibits Councilmembers from making
commitments for or against a proposed project prior to a public meeting; and
WHEREAS, constitutional due process requires that all Councilmembers and members
of the public have the same information upon which to rely in the decision-making process; and
WHEREAS, the City Council wishes to adopt a formal written policy concerning contact
by City Councilmembers with potential project applicants prior to public meetings.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF POWAY RESOLVES
THAT THE FOLLOWING SHALL BE THE POLICY OF THE CITY COUNCIL:
1. For purposes of this policy the following definitions shall apply:
a. "Project applicant" means one who has submitted an application for a land
use approval.
b. "Potential project applicant" means one who has expressed an interest in
submitting an application for a land use approval but has not done so at
the time of the meeting requested with a Councilmember.
2. A City Councilmember may meet with a potential project proponent or applicant
prior to a public meeting to listen to the applicant's proposal.
3. No City Councilmember shall make any commitment or promise of support or
opposition to a potential project prior to the public meeting concerning the project.
4. No City Councilmember shall express to a project applicant an inclination to
support or oppose a project if the project applicant has received the expression of such an
inclination from two other Councilmembers. A potential project applicant shall be advised to
use the predevelopment conference procedure to receive input from more than two
Councilmembers on a project.
APR 4 1995 ITEM 5
5 of 7 EXHIBIT A
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RESOLUTION NO.
Page Two
5. A City Councilmember shall disclose in the public meeting concerning the project
any and all information received by the Councilmember outside of the public meeting on which
the Councilmember intends to rely in making the decision on the project, unless that information
has been disclosed in writing or orally by others during the public meeting.
PASSED, ADOPTED AND APPROVED by the City Council of the City of Poway,
California at a regular meeting thereof this day of , 1995.
DON HIGGINSON, Mayor
ATTEST:
MARJORIE K. WAHLSTEN, City Clerk
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r MEMORANDUM G�, •�.�
CITY OF POWAY . 2
CifI\' THE co"
TO: Honorable Mayor and Members of the City Council
FROM: Stephen M. Eckis, City Attorne
DATE: September 15, 1994
RE: Fx Parte Contacts With Potential Project Applicants
It is the advice of the City Attorney that Councilmembers meet with project applicants
prior to public meetings on a project only in accordance with the following guidelines:
1. It is lawful to meet with applicants to listen (subject to No. 4 below).
2. No commitment or promise should ever be made.
3. Don't express a "leaning" or an inclination to support or oppose without first
asking if the applicant has met with two or more other Councilmembers. If the
response is "yes," do not indicate any inclination on the project. In fact, you
may wish to decline meeting with the applicant in this situation. Again, in no
event should you promise or commit.
4. If you obtain information outside the public meeting on which you will rely in
supporting or opposing the project at the public meeting, you should disclose that
information during the public meeting so that the applicant, the public, and your .
colleagues can consider and comment upon that information.
7 of 7 EXHIBIT B
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