cal rgb 300x72 City of Aliso Viejo

May 15, 2011

SENT BY ELECTRONIC AND POSTAL MAIL

RE: Recreation Committee and the Brown Act
DEMAND FOR CORRECTION

Honorable Carmen Cave, Mayor
City of Aliso Viejo
12 Journey, Suite 100
Aliso Viejo, CA 92656-5335

Dear Mayor Cave,

This letter is to caution you that the “Recreation Ad Hoc Committee” created by the City Council at its April 15, 2009 meeting is a legislative body required to comply with the Ralph M. Brown Act (Government Code Section 54950 et seq.). The Act in Section 54952 states:

As used in this chapter, “legislative body” means: *****
(b) A commission, committee, board, or other body of a local agency, whether permanent or temporary, decisionmaking or advisory, created by charter, ordinance, resolution, or formal action of a legislative body. . . advisory committees, composed solely of the members of the legislative body that are less than a quorum of the legislative body are not legislative bodies, except that standing committees of a legislative body, irrespective of their composition, which have a continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body are legislative bodies for purposes of this chapter .

The “Recreation Ad Hoc Committee,” despite the words “Ad Hoc,” is a standing committee having been given a continuing area of subject matter jurisdiction without a terminal point in terms of either date or task accomplishment.

As reflected in the minutes of the April 1, 2009 meeting of the Council, you (then a Council Member) suggested Council agendize the establishment of an ad hoc committee to conduct a needs analysis for recreational services in the City and the use of park improvement bonds and community enhancement fees for next fiscal year. The purpose of the ad hoc committee would be to work with potential user groups and stakeholders to enhance recreation opportunities in the City.

The April 2, 2009 press release announcing your suggestion and its positive reception by the Council stated:

The City Council on April 15 will consider forming an ad-hoc committee to analyze recreation needs citywide.
The subcommittee will talk to user groups to assess recreation needs in the community and satisfaction levels with the quality and quantity of existing parks, programs, facilities and services. The subcommittee would work to identify the community’s interest in the addition of future facilities and use at the City’s new Aquatic Center.
*****
Council members agreed Wednesday that addressing the issue of recreation enhancements with Glenwood residents and residents throughout the entire community is essential to aiding the City’s effort to meet the parks and recreation interests of Aliso Viejo residents now and for years to come.
The council in May will consider the broader recreation assessment study in its 2009/10 fiscal year budget as part of a proactive measure to weigh the community’s voice regarding recreation and leisure needs and enhancements.

The April 15, 2009 Council agenda included the following recommendation from City Manager Mark Pulone:

It is recommended that the Council establish a Recreational Services Ad Hoc Committee and appoint two Council Members to serve on said Committee.
   Fiscal Impact: The establishment of a Council Ad Hoc Committee to address recreational services does not have a direct fiscal impact. The cost for a recreational services needs analysis will be included in the 2009-10 budget.
   Background: The Council expressed an interest in conducting a needs analysis of recreational services in the community. On a related issue, residents in the Glenwood community recently voiced concern about the fees and limited accessibility to the Aquatic Center.
   Discussion: At the April 1, 2009 Council Meeting, the Council directed Staff to report back relative to establishing a Council Ad Hoc Committee to address recreational needs in the community. It is envisioned that the Ad Hoc Committee would work with potential user groups and stakeholders in the community to explore recreational needs and opportunities. The Ad Hoc Committee would also be instrumental in performing community outreach to get input from members of the community. In conjunction with the outreach efforts, the Ad Hoc Committee could also address the Aquatic Center issues raised by the Glenwood residents. Subsequently, the information would be utilized as part of a recreational services needs analysis.

The minutes of the April 15, 2009 Council meeting state as follows:

City Manager Pulone briefed the staff report dated April 15, 2009.
Discussion ensued regarding purpose and goals of the committee, reporting schedule, scope of the needs analysis, supply and demand of sports fields, role of other users such as city, school district and private landowners, and working in conjunction with AVCA and its Recreational Master Plan.
Mayor Garcia recommended the selection of Councilmember Cave and Mayor Pro Tem Tsunoda to serve on the ad hoc committee.
*****
MOTION: COUNCILMEMBER PHILLIPS MOVED AND COUNCILMEMBER FICKE SECONDED TO ESTABLISH A RECREATIONAL SERVICES AD HOC COMMITTEE AND SELECT COUNCILMEMBER CAVE AND MAYOR PRO TEM TSUNODA TO SERVE ON SAID COMMITTEE. MOTION UNANIMOUSLY CARRIED.

To summarize: Despite your and the City Manager’s previous expressions of the need for committee attention to various recreational issues and the minuted reference to Council discussion of the “purpose and goals of the committee” and its “reporting schedule,” the motion creating the committee set neither a functional nor calendar termination point for the committee, and in fact gave it only title and membership. The title designates the committee’s subject matter jurisdiction—municipal recreation issues. “Ad hoc” is particularly misapplied and misleading in that it suggests a focus on a particular, well-defined problem the resolution of which will terminate the committee’s reason for being and will thus discharge it.

The California Attorney General, in an opinion published in 1996, observed with respect to a water agency’s Administrative Committee, likewise asserted to be an ad hoc panel devoid of continuing subject matter jurisdiction and confined solely to an advisory function:

We note that a “standing committee ” is commonly defined as “a committee to consider subjects of a particular class arising during a stated period; specif[ically] a permanent committee of a legislative body.” (Webster’s Third New Internat. Dict. (1971) p. 2224.) “Permanent” may be commonly defined as “to endure, remain.” ( Id., at p. 1683.)

As for the phrase “continuing subject matter jurisdiction,” we find that “continuing” means “needing no renewal” (Webster’s, supra, at p. 493), “subject matter” means “matter presented for consideration” (id., at p. 2276), and “jurisdiction” means “power, right, or authority to hear . . . a cause” (id., at p. 1227).

Applying these common definitions in carrying out the Act’s purposes, we believe that the subcommittee in question has the authority to hear and consider issues relating to budgets, audits, contracts, and personnel matters and that its authority needs no renewal. As such, it is a “legislative body” under the terms of section 54952, subdivision (b), and its meetings are subject to the Act’s requirements of notice, a posted agenda, and public participation. Although under its local operating rule, the subcommittee “shall not exercise continuing subject matter jurisdiction,” we do not find such rule provision to be determinative. The language of the local rule appears inconsistent at best and may not be used to thwart the purposes and requirements of the Act.

We thus follow function over form in carrying out the Legislature’s purposes. In particular, this subcommittee does not have a limited term, and it is not an ad hoc committee charged with accomplishing a specific task in a short period of time. Further, it is irrelevant for purposes of section 54952 that the subcommittee is advisory rather than decision making, that its meetings are called by the chair of the subcommittee rather than by formal action of the legislative body, or that some, but not all, of the matters under its jurisdiction are referred to it. The purpose of the subcommittee is to advise the legislative body when requested on those matters within its continuing subject matter jurisdiction.

Opinion No. 95-614 (emphasis added).

The Recreation Committee has been operating for more than two years on a variety of recreation issues. For example we are informed that, quite beyond any of the information-gathering and “outreach” functions prescribed for it by you and staff at the time of its formation, the Committee has been meeting for many months with the major youth sports leagues in the city to negotiate field use deals in exchange for each league’s commitment to pay a percentage of the costs for park improvements.

Regardless of any inaccuracies in detail of this report (understandable, given the Committee’s failure to observe the Brown Act), it shows the community’s dependence on rumor and guesswork to divine the activities of a Council-created mechanism for informing the City’s recreational programs and priorities. This intolerable state of affairs must be corrected, promptly and decisively.

Mayor Cave, if there is no prompt and decisive correction as demanded below, I will recommend to our Litigation Committee that we file an action in Superior Court to seek:

  • a judicial declaration that the City, in authorizing the conduct of meetings of the Recreation Committee without adhering to the requirements of the Ralph M. Brown Act, is and has been since 2009 in violation of that statute;
  • an order to the City to commence compliance therewith; and
  • an award of costs and attorney’s fees in bringing the action.

By “prompt and decisive correction” I mean, no later than the Council meeting of June 1:

  • the Council’s public acknowledgment that the Recreation Committee has been conducting its meetings in violation of the Brown Act in that it is a standing committee for purposes of that statute;
  • the Council’s public commitment to conduct any future meetings of the Committee in compliance therewith; and
  • the Council’s public commitment to provide any member of the public with access to, on request, or to publish on its website, any and all agendas, minutes or other writings, within the meaning of Government Code Section 6252 (g), prepared in connection with such meetings, before or after the meetings, including but not limited to any communications with third parties by members of the Committee or staff in connection with its activities, since the Committee’s creation in 2009.

Please let me know if you need further information for your decision in this matter.

Cordially,

Terry Francke
General Counsel

cc: Mayor Pro Tem Donald A. Garcia
Council Member Greg Ficke
Council Member William Phillips
Council Member Phillip B. Tsunoda
City Manager Mark A. Pulone
City Attorney Scott Smith

ONGOING COMMUNICATIONS:

Response from Aliso Viejo (June 6, 2011)
Response from CalAware (August 2, 2011)
Response from Aliso Viejo (September 13, 2011)
Response from Aliso Viejo (October 17, 2011)
Response from CalAware (October 26, 2011)
Response from Aliso Viejo (November 3, 2011)