News - June 24, 2009

Atherton council members accuse colleagues of censorship

by Andrea Gemmet

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.


Posted by Charles Marsala, a resident of Atherton: West Atherton
on Jun 23, 2009 at 2:27 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

Posted by Renee Batti, news editor of The Almanac
on Jun 23, 2009 at 2:37 pm

Renee Batti is a registered user.

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