By Heather Gould | Original Tahoe Mountain News article here.
At the October 10 meeting of the city of South Lake Tahoe Planning Commission, some members of the audience noticed that Councilmember Devin Middlebrook, who was observing in the audience, and Commission Chair Jenna Palacio, appeared to be texting each other. A Public Records Act request for their cell phone activity was filed and it was discovered that the two indeed had been communicating about the redo of the Super 8 Motel which was on the agenda that day.
The pair commented on the design of the project, whether or not more chain businesses were desirable in the city and whether electric vehicle charging stations would be open to the public. The Super 8 project proposal was passed on a vote of 4-1, with Palacio dissenting. The matter brought to light an issue that has been on the rise with the proliferation of electronic devices. Whereas once people could only communicate by speaking or submitting written documentation, which was collected and filed publicly, now surreptitiously emailing or texting during public meetings is possible and public bodies have had to grapple with the consequences.
A quick internet search shows this issue is not unique to South Lake Tahoe – many jurisdictions have grappled with similar incidents and many have crafted policies or ordinances addressing it. In fact, the city of South Lake Tahoe has just such a policy applying to the city council though whether it also applies to the planning commission is somewhat unclear.
The policy reads:
“City Council members will not utilize electronic mail (email or text messages) to send messages during the Council meeting. Due process requires Council’s full deliberation during Council meetings on items before the Council for consideration. City Councilmembers will not utilize the internet during Council meetings to receive information on items on the agenda that are not disclosed to the entire City Council and public. Outside of City Council meetings, Councilmembers should not communicate via electronic communication (email/text) with more than one other member of the City Council on any issue regarding City business.”
This last sentence refers to the Brown Act, which prohibits building consensus to take any particular action or pass any motion, ordinance or action outside public meetings, i.e. behind closed doors. The public’s business must be conducted in public.
While the city attorney determined Palacio and Middlebrook did not violate the Brown Act, as no secret consensus was formed, it was still questionable.
Local good government advocate, political observer and former city manager, David Jinkens said,
“the planning commission is an independent planning body established by the City Council under State law. Typically, it would not be advisable for a commission member to be asking for advice/comments/suggestions from a city council member about an item on the commission agenda during the planning commission member’s deliberation because both bodies are supposed to hear matters before them independently and make judgments based on the facts. Council involvement could prejudice a planning commission matter if the matter went to appeal from the commission to the council.”
The First Amendment Coalition states that such nonpublic communications during public meetings could violate the California Public Records Act provision that
“any writing containing information relating to the conduct of the public’s business . . . regardless of physical form or characteristics — are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.”
The Coalition also notes that when “texting is happening during what is supposed to be an open meeting, it may (not) be an open meeting at all.”
The California Tahoe Conservancy has had a policy in place for some time prohibiting the use of electronic devices by board members during meetings except to “view meeting materials which are provided in an electronic format.” For her part, Palacio told the Mountain News, “I appreciate the concern, and will continue to practice transparency and compliance with City policy. Transparency is something I hold of the utmost importance, and this has been a learning opportunity for me in how I can be a better public servant for our community. I look forward to the continued hard work and deliberation of the Planning Commission.”
Middlebrook was reportedly travelling out of the country and could not be reached for comment by press time.