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Did City Violate Brown Act With Parking Call?

Street Parking Solely For One Shop

Did City Violate Brown Act With Parking Call?

Did City Violate Brown Act With Parking Call?


POSTED December 13, 2013 2:06 p.m.

 

Not only have questions arisen over the legitimacy and fairness of the Oakdale City Council’s Dec. 2 move to designate a portion of South Second Avenue for the exclusive parking of a single establishment, but the process in which it was administered raises serious concerns on potential violations of The Brown Act that governs how cities conduct business.

The basic premise of the Brown Act is that all business of a public agency, with a few select and specific exceptions, must be conducted in public view, with proper notice, and free of any conflicts of interest.

A review of the minutes for the City of Oakdale Traffic Commission shows that at its Sept.20 meeting it reviewed and discussed parking options for 131 S. Second Ave.

When the matter was presented, Traffic Commissioner Ed Viohl stated he felt the city would be setting precedence by granting special parking and feared other businesses would want the same benefits.

Oakdale resident Guy Berkey told the commission that when the community center was built, the adjoining lot was constructed and increased parking in that area. He further stated designating parking to the business could be a liability to the city since the business was within the Downtown Parking District. He suggested looking into any ordinances that would need to be amended if the request was approved.

The Traffic Commission is an advisory sommision to the city council to review and recommend solutions for problems relative to traffic matters, including circulation and parking concerns relating to businesses in Oakdale.

“When it first came out, we (commission) weren’t in favor because it was not fair to the other businesses,” said Traffic Commissioner J.R. McCarty when contacted this week. “We gave direction for staff to bring it back to us.”

At the subsequent Nov. 21 Traffic Commission meeting, the owner of Plaza 131, Kama Robinson, spoke about the parking situation in front of her establishment, but this was solely during a public comment portion of the meeting. The matter of the parking was not on the agenda.

City Manager Bryan Whitemyer, in his statement to The Leader after the Dec. 2 city council meeting, stated he got the sense, even though it had not been an agenda item, that “the commission was in agreement” so he moved the item to the council.

Commissioner J.R. McCarty disagreed, stating Robinson was told by the commission at the Nov. 21 commission meeting that no decision could be made because her concern was not up for discussion.

“We didn’t take a vote nor did anyone say they were ‘in agreement,’” said McCarty. “We may have said our votes could be swayed after we heard her if it was back on the agenda.”

According to the Brown Act, “no action or discussion shall be undertaken on any item not appearing on the posted agenda” since it would not allow for the public to be noticed or to provide input whether in support or against an item.

Also during the Nov. 21 commission meeting, Mayor Pat Paul addressed the commission stating she was a regular customer of Plaza 131.

When contacted, Paul said she was at the meeting to support Robinson. Paul said she spoke as “a patron” who frequents the business monthly and informed the commission that she gets facials and massages at the business. She talked about the need for parking and how using their service occasionally takes over the two hours that is allotted for parking on Second Avenue.

Without allowing public scrutiny or oversight, the matter was put as a consent agenda item by Whitemyer for the Dec. 2 council meeting. The consent agenda is used to streamline meetings by collecting normally routine, non-controversial items into a group where they all can be passed without discussion and by a single vote by council members.

The item was pulled at the start of the council meeting to be discussed and the council subsequently approved the item unanimously.

Evidence of this failure of commitment to Brown Act mandates can also be found in Paul failing to recuse herself from the vote and discussion of Whitemyer’s parking proposal for Plaza 131 at the Dec. 2 council meeting.

Paul, who was fined by the FPPC in 2007 for failing to disclose political gifts when she was a county supervisor, had already publically gave her opinion and identified herself as a customer of the establishment receiving the special treatment from the city, thus creating a perception of potential conflict of interest and improper influence in deciding the matter.

“I didn’t think of it as a conflict,” Paul later said. “I can see how that would be awkward though.”

After the Dec. 2 meeting Police Chief Lester Jenkins said the parking would be enforced by his department after the markings identifying the spaces on South Second St. for only Plaza 131 were in place.

However, for the restricted parking to be enforceable by the police, the council was to have enacted a city ordinance for a violation of the act. Additionally, there is no authority for a municipality to declare public roadways exclusively for the use of a sole private entity.

Ordinances are the actions or laws of a local municipality which are codified into the Municipal Code. They are a form of action taken by a city council, the violations of which may be a misdemeanor or an infraction. The enforceable ordinances will impose a penalty by fine, imprisonment or forfeiture.

According to the California Government Code, approval of an ordinance requires a first and second reading, with at least five days between them except in the case of urgency ordinances. With few exceptions, ordinances take effect 30 days after final passage.

To date, no known ordinance has been read or exists to enforce parking regulations at that location with the exception of the posted 2 hour time limit.

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