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Atherton council members accuse their colleagues of censorship over agenda rules

Two members of the Atherton City Council are accusing their colleagues of censorship for making it harder to place issues on meeting agendas.

Until recently, Atherton had no formal process for a member of the council to add an item to a meeting agenda, leaving it up to the city manager to set the agenda. In March, a new policy was adopted requiring the approval of two council members before an issue could be placed before the entire council.

But now that's going to change. At the June 17 meeting, a divided City Council passed new rules requiring an additional step -- not only does a pair of council members have to agree in order to propose an agenda item, but it will require a majority vote of the council to authorize the item's placement on a future meeting agenda.

So, if three or more members of the council vote against a proposed item, that item won't get on a meeting agenda and won't be discussed by the City Council.

The vote was 3-2, with Elizabeth Lewis and Charles Marsala opposed.

"Agenda items can be very dangerous if they're not approved by the council," said Councilman Jim Dobbie.

Getting something on a council meeting agenda is important because, under the state's open meeting law known as the Brown Act, an elected body can't take action on anything that hasn't been placed on an official agenda and published at least 72 hours in advance. The rules can be cumbersome, but they serve a purpose -- to prevent the public from being blindsided by government decisions.

Mr. Marsala said that a lot of controversial issues faced by the town in the past few years would have benefited from a public airing, if only he had been allowed to get them on the council's agenda.

"If there is an issue that needs to be brought out and vented, then let that happen," he said. "I like the idea that if two council members want to bring something to the attention of the full council, (they can). I'm in favor of leaving things the way they are."

Mr. Dobbie said there could be "absolute chaos" if the rules weren't changed. If an issue is important, the council will approve hearing it, he said.

"If the council doesn't allow it, we'll have to take the flak from the public," said Councilwoman Kathy McKeithen.

She said that there is often a very good reason to delay discussion of a topic, such as waiting until a report about it is completed.

"I feel this is censorship," said Mr. Marsala.

The change in rules was likely triggered by last month's controversy over Mr. Marsala's idea for financing a new town hall. He proposed "selling" to the library the town's council chambers to expand the library, and using the proceeds from the sale for a new town hall building. The library has a reserve fund of several million dollars, whereas the town has little money for financing a new administrative building.

It wasn't only Mr. Marsala's idea, but the way it was presented, that generated a storm of criticism and led to the protest resignation of Joan Saunders, a member of the task force charged with getting a new town hall built.

Ironically, the library funds topic was put on the council agenda by a town committee, not via the policy that allowed a pair of council members to put forward an agenda item.

Ms. Lewis said she was truly at a loss as to why council members McKeithen and Dobbie proposed changing the rules, saying they are making the process "more cumbersome."

"We as council members are public servants; we aren't here to toot our own horns or grandstand," Ms. Lewis said.

Without comment, Mayor Jerry Carlson joined with Ms. McKeithen and Mr. Dobbie in voting to approve the tougher rules on placing items on council agendas.

"Council members McKeithen and Dobbie, and the mayor, are trying to censor and squash discussion in this town," said Ms. Lewis.

Comments

 +   Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Jun 23, 2009 at 12:27 pm

The Town Council would be well advised to follow the agenda setting process of the Fire District under which any single Board member can place an item on the agenda without any other review or approval. In addition, it is the practice of the Fire District to allow any citizen to request an item be placed on the Fire Board agenda subject to a determination by the Board President and the Fire Chief that the matter is relevant to the mission of the Fire District.

Both the Town Council and the Fire District serve the citizens - we are not autocrats. Failing to listen to the concerns of individual elected officials and individual citizens is both arrogant and unwise.


 +   Like this comment
Posted by Charles Marsala
a resident of Atherton: West Atherton
on Jun 23, 2009 at 2:26 pm

To my knowledge the ability of two council members to place an item on the agenda is standard practice in most cities. In January of this year I presented this concept to the Atherton Council after reviewing what other council do, including Menlo Park. It was approved 3-2.

In early March 2009, the San Mateo Grand Jury issued a report rebuking Atherton's Special Events Ordinance imposing restrictions on non-school groups using facilities at Menlo-Atherton High School. The report also listed Finding number 7 as. "The Atherton Planning Commission does not appear to be broadly representative of the Town of Atherton."

Discussion of this report was not on the March City Council agenda, but council members Dobbie and McKeithen made comments expressing their disapproval of the report. Council member Lewis and I found constructive some of the advice in the Grand Jury report but did not express our approval, as discussion of a non-agenda item during a council meeting is a Brown Act violation. We waited till the item was on the April agenda.

For the April Council meeting Council Member Lewis and I wrote a colleagues' memo requesting an agenda item to review the California Brown Act and Atherton Council Code of Conduct.

This may also have been part of what triggered the request of council members Dobbie and McKeithen to place this item on the agenda. We have now eliminated the ability of two council members to place an item on the agenda for discussion and action.

Examples of an instance where putting something on the agenda would have helped the town or given residents in disagreement a chance to express their opinion and request the council change an ordinance include:

1. The Business License Tax BLT. The BLT was re-engineered in 2003, but was found to be doubling charging residents and schools building permits and charging on permits for more contractors then were needed and used to do jobs. The re-engineering lead to annual revenue to increase from $150,000 to $450,000.

In November 2007, Interim City Manager Wende Protzman informed the council of this problem. In 2008, I began pressuring for the Town to revert back to previous method and issue the refunds for overcharging, as the impact to Atherton's budget and reserves would be approximately $1M.

In May of 2008, a member of the ACIL asked Interim Finance Director if my comments were correct. The Interim Finance Director confirmed by comments, however we did not address this illegal tax and announce we would issue refunds until after the November election of 2008. By waiting to address this problem until December, the town lost most of the legal revenue (approximately $100,000) it could have collected for FY2009-2010.

Had the ability to put the BLT on an agenda existed in 2008, Atherton might have collected an extra $100,000 in FY2009-2010.

2. Another example is basements. In 2006 a couple of residents who had bought adjoining acres, wanted to place basements under the accessory structures for children's play areas. For months, I was not able to get this on the agenda. However when the Planning Commission sent an item to Council to eliminate garage basements, I advised those residents that basements would finally be an agenda item. A large number of residents organized and spoke at the council meeting requesting council end the five year probation on accessory structure basements.

After several more months and being sent to several committees, council reversed its position and basements under accessory structures are now allowed.

I do disagree with the above story's comment that I "proposed selling to the library the town's council chambers to expand the library." While I think that concept has merit given the library has $4,019,000 in reserves, the reserve is growing at over $600,000 annually, and library programs need a better presentation place; what I proposed after referral from a town committee was for Atherton to approach the San Mateo Library JPA for approval of this possibility and continue Atherton's review of the option.

Another option could be to simply use the funds to connect the library and council chambers, renovate the new facility to accommodate library programs and give the town use of the new facility for council, committee, and commission meetings.

Or if deemed appropriate transfer the building and land asset (valued at $800,000 to $1.3M) for appropriate library funds and use the remaining funds and surpluses from future years to cover the renovation. The appropriate value could be used towards an Emergency Operations Center for the town or to renovate the Pavilion to accommodate council meetings and wedding reception rentals during the winter months. This could bring in ten of thousands of dollars annually to the park's budget, which could be spent on other Park needs. All ideas need resident input.

As council members I believe it is our duty to present solutions for consideration and the council agenda is the means for process.

Charles Marsala
Council Member


 +   Like this comment
Posted by STOP IT
a resident of Atherton: West Atherton
on Jun 23, 2009 at 4:19 pm

A quote by Sir Winston Churchill that should be better known than it is: "Never before have the politics been so savage, yet the stakes so small." He was talking about Oxford University, but could well be speaking about Atherton.

Now the council is actually fighting about what to fight about. Unbelievable.

The bickering on this council has gone on for so long that it has turned the council into a set of rodeo clowns that mask the real issues for Atherton and let the city manager operate in a totally unchecked manner. For example, as this is just one, the out of control litigation.

A quick search of the web shows that the budget for the Foster City legal department for 2008/9 is $197,807. The most recently requested legal budget for Atherton is over $500,000 per year. Foster City is about four times the size of Atherton. This came up on google first, but I"m sure the comparison with other well managed cities on the Peninsula such as Foster City is just as stark.

Atherton will be holding some public hearings soon to let residents speak about the increased parcel fees to support all of this mayhem.

Council members Marsala and McKeithen should resign. Both of them. We need people who can concentrate on the meaningful issues facing this town in a constructive way. The amount of politicking going on here is way out of proportion to the nature of this office.


 +   Like this comment
Posted by Elizabeth Lewis
a resident of Atherton: West Atherton
on Jun 23, 2009 at 5:45 pm

I would like to echo the opinion of Peter Carpenter above and say that during the discussion period of this motion at the June 17 Council meeting, I made reference to the fact that the Fire District Board was open enough to allow any citizen to place an item of relevance on the Agenda and also allowed any one board member to place an item on the agenda. Unfortunately, this part of my comments did not make it into the Almanac article.

I am truly distressed at the action our Council took on June 17 making the placing of an item of town business on the agenda such a cumbersome process. By requiring a majority of the entire Coucil -- 3 members to agree to place a topic on the agenda -- in essence is an attempt to censor the public debate. I am hopeful that we will be able to find a way to be able to discuss all issues in an open, non-hostile, and productive forum.

As elected officials it is our duty to serve the residents of our Town in the most transparant and diligent way possible...withoout using our position to grandstand or be self-serving by trying to mis-represent our colleagues intentions or motives.

Sincerely,
Elizabeth Lewis
Council Member
Town of Atherton


 +   Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Jun 23, 2009 at 6:30 pm

Democracy is based on the principle that each individual's views are important and the current Town Council agenda setting process is fundamentally offensive to the democratic process.

Given that the Town will be asking its residents to approve a new parcel tax sometime in the next year or so, it would be wise for the Town Council to demonstrate its respect for the views and opinions of those residents, including each of their elected representatives.

What does the Town Council fear from a more open and permissive agenda setting process? If they simply want shorter meetings or more control then they have chosen the wrong calling in serving as our elected officials. We, as elected officials, serve the public - not the reverse.

Director
Menlo Park Fire Protection District


 +   Like this comment
Posted by Lulu
a resident of Atherton: West Atherton
on Jun 23, 2009 at 11:37 pm

Peter---Clearly the council majority has been forced to come up with some way of saving town time and any more money from being highjacked by Charles's endless need for attention--


 +   Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Jun 24, 2009 at 10:01 am

Clearly dictatorships are much more efficient than democracies but they seldom serve the needs of the citizens very well.

Since the Brown Act precludes discussing items which are not on the agenda it is essential that the agenda be inclusive. It is also important that agenda setting decisions not be made behind closed doors. Elected Councils and Boards serve the citizens of their respective jurisdictions and their agendas should reflect the needs and desires of those citizens. Certainly someone who has been elected by the citizens as their representative should have the unrestricted ability to place an item on the agenda.

While I served as President of the Fire Board we even had one unelected Director, as the result of an uncontested election, who constantly raised issues that were inappropriate. The response was to agendize his requested issues and then deal with them in open session. Yes, it took some time and yes, it was frustrating, but we preserved the principle that the agenda should reflect the needs of the citizens and not the convenience of the Board.


 +   Like this comment
Posted by Lulu
a resident of Atherton: West Atherton
on Jun 24, 2009 at 10:57 am

Peter I happen to believe your reasoning is sound--but what to do about Charles??? I suppose there there is an election comming up this fall --if we can survive him that long


 +   Like this comment
Posted by Nick
a resident of Atherton: West Atherton
on Jun 24, 2009 at 1:37 pm

Lulu, Charles' term won't expire until 2010, there's no council election in Atherton this year.


 +   Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Jun 24, 2009 at 1:57 pm

Simple, an item requested by a Council member goes on the next agenda. The Council as a whole and in public session then discusses the item and decides if a majority of the Council wishes to take any action. If no action is desired then a motion to table is in order and such a motion takes precedence and is not debatable - end of issue.

Advantages - the process is done in open session, if members of the public are interested in the agendized item then they can attend the meeting and support a discussion, and the principles of democracy are upheld.

Disadvantages - under a well run chair such an item might require as much as 3 minutes to dispose of IF there was no public or other council member interest.


 +   Like this comment
Posted by Anonymous
a resident of another community
on Jun 24, 2009 at 4:24 pm

I'm not a resident of Atherton but I served on the city council of a neighboring city for eight years.

Peter Carpenter is exactly right. Any one council member should be able to add an item to the agenda. The council can very quickly dispatch any item - but at least it will be aired for the public. That's just good governance.

You should be very careful of unintended consequences of limiting the agenda. You may one day find yourself with just one sympathetic council member and you'll be happy that they (alone) can put your grievance on the agenda for the public to hear!


 +   Like this comment
Posted by R.GORDON
a resident of another community
on Jun 24, 2009 at 4:58 pm

R.GORDON is a registered user.

In Half Moon Bay, there is censorship in the press. If the editors do not like what is said or suggested, they block your suggestions, and even your name.
Sadly, the city is in bankruptcy for one major reason, and it has to do with closed minds.


 +   Like this comment
Posted by Lulu
a resident of Atherton: West Atherton
on Jun 24, 2009 at 7:03 pm

I feel terrible about what happened to HM Bay and you are right about the press--the way San Francisco ended up owning all of SM county's water rights was by buying up all the local papers--this was before the turn of last century so it's not a new trick---anyway we are in the same boat as you now with the development interests--it's the weapons of mass contruction as usual.


 +   Like this comment
Posted by Charles Marsala
a resident of Atherton: West of Alameda
on Jun 27, 2009 at 8:24 pm

Lulu and Stop It,

I appreciate your interest in Atherton and would be happy to meet with either of you. I can be contacted through town hall.

I agree that our legal expenses have been way too high and if you look at the record you will see I voted several times against costly legal action, which would have also eliminated press coverage.

I voted against the three abatements to residents in 2007 which resulted in lawsuits and cost the town over $35,000. On one lawsuit there was a note written from a inspection consultant that he found nothing wrong with the property; on the others I felt the matter should not have gone to abatements and eight months of press. Press coverage I wanted to avoid by not issuing the abatements.

From December 2006 thorough 2007 I opposed the lawsuit against the MA Performing Arts Center and voted against continuing the lawsuit in November 2007. Total cost to the town for this lawsuit was over $100,000. Press coverage I wanted to avoid.

I voted against overturning of the Planning Commission's approval to let two urns be moved across town. The lawsuit that resulted from this vote cost the town over $250,000.
Press coverage I wanted to avoid.

I supported giving Pop Warner a permit in May 2006 and supported modifying the Non School Events Guidelines policy. Not sure what the costs have been, but the recent Grand Jury report and press coverage would not have happened.

I was not the one who called the Press to the June 28, 2006 Finance Committee meeting, that meeting resulted in headlines about "apparent violations" from something that happened all the way back to May 2005 in administering the collections of the new Off-Haul fee and had already been handled by the city manager. I did suggest at the September 2006 council meeting we should get an independent opinion on the accusations as it looked to me during the personal investigation (pages 44-53)of the Building Deptartment, Mike Hood explained that he was following state law; so there was no violation and we could have avoided much press coverage.

If you research the Almanac archives of 1999 & 2000, before I was on the council, you will find Atherton was receiving much negative press. In was in 2000 that several leading citizens asked be to run for council to bring the focus back to real issues.

In spite of all of the above distractions, I have focused on several issues facing Atherton such as Emergency Preparedness, Environmental Protection, High Speed Rail, Finances, Park and Recreation, Public Safety, Employee Relations, and more.

Over the last seven years I have also been asked to be involved in several Non-Profits of Atherton residnets such as the Peninsula Volunteers, the Knights of St. John, the San Francisco Symphony, the Heart of Silicon Valley, Silicon Valley Social Fund, Stanford Delt Legends for Youth Programs, the Boys and Girls Club, and Full Circle Fund. Helping Atherton residents with their philanthropies, which are working on solving real issues facing the Bay Area and beyond I see as a rewarding part of being a council member. It is also the positive image I would like to see Atherton known for.

The media does cover these events and political figures do get reported as having been in attendance. Hopefully that attention, helps bring awareness to the purpose of the non-profit.

The issue for this story is having a process to allow resident concerns to be placed on the agenda and discussed. Often in the last six and half years someone has come to me with a community wide concern that I have wanted on the agenda. In January of this year I proposed that two council members be allowed to place an item on the agenda, as our policy did not address this.

By having the threshold for agenda items be two council members the chances of having something that was inappropriate is remote- this item passed 3-2. I also proposed that one council member could bring up something at the end of a meeting and see if there was support to have it on a future meeting- this passed 5-0.

At the June council meeting the ability of two council members to place something residents want on the agenda was taken away by a 3-2 vote. The new method will be at the end of the meeting for the full council to discuss and decide to have it on the following month's agenda by at least three council members. So if residents are interested in discussing something, they will have to wait till the end of the agenda to advocate the item be placed on a future agenda.

Now we end meetings at 10:30pm regardless. If we have not gotten to the discussion for a future agenda item, we will reschedule the unfinished meeting, and people who have waited till 10:30pm will not be heard. What happens if they have kids and need to get home to put them to sleep? They can not stay till 10:30pm.

I am glad you agree with Peter's reasoning supporting this issue to be sound. Citing the accessory structure basement prohibitaion from 2002-2007 as an example I also believe that there are issues that a majority of the coucnil may feel one way and a majority of the council another. I am concerned that the new policy will not allow the opinions of residents to be heard on certain issues.

Regards,

Charles Marsala
Council Member


 +   Like this comment
Posted by lefty
a resident of Woodside: Woodside Glens
on Jun 27, 2009 at 9:25 pm

Is the Peter Carpenter who is posting the same Peter Carpenter who was on the Menlo Fire District Board and who kept flashing his badge so that they had to take it away from him?


 +   Like this comment
Posted by GetItStraight
a resident of Menlo Park: Linfield Oaks
on Jun 27, 2009 at 10:23 pm

No. Peter Carpenter is on the fire board, but he didn't have his badge taken away from him. He was never accused of flashing it inappropriately. You are confusing him with Steve Kennedy, who was voted out of office.


 +   Like this comment
Posted by even straighter
a resident of Atherton: other
on Jun 28, 2009 at 12:04 am

Actually you are both confusing the badge with Charles' fake press pass flashing


 +   Like this comment
Posted by Lisa
a resident of Atherton: West Atherton
on Jun 28, 2009 at 9:24 am

What is the current council so afraid of getting put on the agenda that they would want to limit what can be discussed in a council meeting? Are they afraid that they might be caught off-guard on an issue? I don't get it. I thought we put council members in place to help our town and it's citizens work through it's issues (good one's and bad one's). This is complete censorship. Any member of our council who would agree to this does not truly represent the people. I agree with Peter Carpenter this could have some unintended consequences.

One more concern, why is it that so much mud slinging must go on in our town. This is what creates interest to the press! They love to hear about Atherton's 'cat fights' and we just keep giving them more to write about.


 +   Like this comment
Posted by Concerned Again
a resident of Atherton: West Atherton
on Jun 28, 2009 at 11:43 am

I have attended Atherton's council meetings on and off for the last 6 years and am very disturbed to see what is now going on within our council chambers. I thought that it could not get any worse but here we go again! When will the current council stop trying to implement the thoughts and views of the minority not the majority. They continually try and take the rights of the people away from the people. They continually speak as if they had the pulse on our community. The majority of the council is out of touch with the majority of people who live in Atherton. Do they not get that most of us are very content living our lives and just don't want to be bothered with the manusha they keep bring to the press.

What really matters to me is that we balance our budget, protect the people who live in our town, provide a safe place for our children to be raised, create parks and facilities that we can be proud of and our children and their children will be able to use for many more years to come. The only members of our council who seem to get this are Marsala and Lewis perhaps this is because they do have the pulse on the people in the town. They listen and seem to be the voice of reason on the council.

If you look back at all the minutes of meetings passed you will see who is behind all the lawsuits and it has not been Marsala and Lewis. McKeithen and her fellow council members Dobbie and Carlson have all voted in favor of the lawsuits against 1. Sequioa Union School District ($100,000.00), 2. Three abatements ($40,000.00), 3. Privately owned Urns ($250,000.00). In addition to these items Mrs. McKeithen is in Mr. John's corner and has given Mr. John's a declaration in support of his lawsuit against the very town she is supposed to be representing. This alone is helping to drive up the towns legal bills. If she is so concerned about the towns budget why in "Gods Green Earth" would she be giving a declaration to help out someone who is suing the very town she was elected to represent! This man was fired from the town for wrong doings.

It's time to get back on track and back to the basics, let's learn from Half Moon Bays mistakes and not repeat it.


 +   Like this comment
Posted by red herring
a resident of Atherton: other
on Jun 28, 2009 at 9:42 pm

Concerned again is missing something.

Kathy McKeithen may very well have been speaking the truth when she made the delcaration Concerned Again speaks of. To that point, time will tell. It always does.


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