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Livable California and CVP file cease & desist letter with ABAG Board for Brown Act violations

Members of Livable California (LC), Community Venture Partners (CVP), and other Marin Post journalists have written extensively about Senate Bill 50 (Wiener – San Francisco) and the “CASA Compact,” which is the most sweeping anti-local control planning concept in San Francisco Bay Area history. It represents well-financed efforts by major banking, real estate development and corporate interests, and power hungry politicians pushing to remove local control of zoning and planning to make way for the urbanization of the entire Bay Area.

As we reported, regarding our decision to file a cease and desist demand letter with the Board of BART, the roll-out of the CASA Compact and its companion legislation, SB 50, has included a rushed push by CASA supporters to secure the endorsement of major public agencies such as BART and also the Association of Bay Area Governments (ABAG). As a result, this agenda has been advanced and endorsed with little discussion or public input, and repeatedly in clear violation of California’s Open Meetings law, The Brown Act.

The ABAG Board violated the Brown Act at its January 17th hearing

During the wee hours of its meeting on the evening of January 17th that ran on into the morning of January 18th, the ABAG Board voted to reject a motion for ABAG to withhold endorsement of the CASA Compact, after which they immediately voted in favor of a second motion to endorse the CASA Compact. However, in the Board’s rush to vote down the motion to withhold endorsement, the Board’s action was in clear violation of the Brown Act and Article I, Section 3 of the California Constitution, because ABAG had a legal duty under the Brown Act [Government Code § 54953(c)(2)] to conduct a roll call vote and report publicly the individual votes of ABAG Executive Board members on all motions and votes. Instead, they conducted an illegal, hasty voice vote.

ABAG’s failure to publicly report votes on the first motion, in accordance with the Brown Act, clearly affected the vote on the second motion to endorse the CASA Compact, because the second vote was dependent upon the outcome of the first. In fact, the second vote was therefore illegitimate and would not have even occurred if the first vote had won a majority. The second motion was then arguably “fruit of the poisonous tree” of the illegally-conducted first vote, therefore the vote to endorse CASA was null and void.

Under normal circumstances with a smaller agency or with a much less sophisticated board (ABAG board members are predominately actively serving elected officials), and if the result of the votes was not so consequential, one might chalk this up to inexperience or a mistake (though it would still be a violation of the law). But in the case of ABAG, it would be impossible to reach that conclusion.

You can’t make this stuff up

In 2013, the California State Legislature enacted SB 751, which was signed by Governor Brown to address this exact circumstance. That legislation, which amended the Brown Act, contained very specific language. Effective on January 1, 2014. Government Code § 54953(c)(2) states,

The legislative body of a local agency shall publicly report any action taken and the vote or abstention on that action of each member present for the action.

This is not a vague legal requirement. SB 751 came about because critics raised concern that for agencies with large legislative bodies, the absence of either a roll call vote or a specific tally and report of the votes of each member of a board, made it difficult if not impossible to determine who voted for or against a measure. This information was and is considered vital for the public to know.

However, what is unique about this transgression by ABAG is that the requirements of the law ABAG violated were enacted specifically in response to similar actions taken by ABAG in 2012. Therefore, it is both ironic and troubling that ABAG’s present illegal behavior, which willfully and intentionally violated this new Brown Act provision, was the result of ABAG’s own past conduct!

Livable California and Community Venture Partners file a cease and desist demand letter

On April 17, 2019, LC and CVP filed their "Demand letter to cure or correct Brown Act violations at the January 17, 2019 ABAG Executive Board meeting" (a copy of full text is attached below). Based on the facts and circumstances described in that letter, LC and CVP allege that the ABAG Board’s vote to endorse the CASA Compact was illegal and therefore null and void.

To read the letter CLICK HERE

This allegation is based on the following:

The ABAG Board’s vote to endorse the CASA Compact was “fruit of a poisonous tree” and the result of an illegal vote on a motion against such endorsement. The evidence of this was captured on the video recording of the hearing, and in the conduct and statements of ABAG President Rabbitt, and corroborated by the Minutes of the hearing, which could only have been made up after the fact since it noted abstentions and absentees, which were unaccounted for at the time of the actual voting.

It appears that the ABAG Executive Board members intentionally and deliberately violated the Brown Act’s public vote counting requirement on the motion against endorsing the CASA Compact, in order to encourage “yes” votes on the motion to endorse the CASA Compact. But, of course, since neither the video nor the minutes tell us who actually voted against endorsing CASA, we will never know what really happened or if the voice vote count was even accurate.

But it gets worse

Something very strange happened at that January 17th hearing. The motion that was on the table at the beginning of the night was the motion not to endorse the CASA Compact until such a time when the staff and ABAG members could gather analyze detailed financial information about the potential impacts and outcomes of the CASA Compact regional planning proposals. However, no sooner had the Board conducted its illegal voice vote against that motion than Director Chavez suddenly presented a mysterious, newly revised motion to endorse CASA.

She referred to it as “the sheet that’s in front of all of you that we typed up.” Since it is presumed that ABAG staff are not empowered to advocate for or against the CASA Compact (before, during and after the vote), we do not understand how Director Chavez’s revised motion, especially the sheet of paper that she referred to, was somehow typed up, printed and distributed, absent assistance from ABAG staff. This implies some prior planning anticipating the failure of the vote against endorsing CASA and suggests institutional bias.

ABAG’s endorsement of the CASA Compact is null and void

We believe that the actions taken on the CASA Compact at the ABAG January 17-18,

2019 meeting are null and void, because of ABAG’s violation of the Brown Act statute, sections listed in Government Code § 54960.1, which says in part, “any interested person may commence an action by mandamus or injunction for the purpose of obtaining a judicial determination that an action taken by a legislative body of a local agency in violation of Section 54953 … is null and void.”

The Brown Act allows the legal remedy of judicial invalidation of illegally taken action. We contend that ABAG’s action taken at the January 17-18, 2019 meeting therefore has no validity. Pursuant to Government Code §§ 54960.1 and 54960.2, we demand that the ABAG Executive Board and/or General Assembly cure or correct the illegally taken action and cease and desist from future violations as follows:

  1. That ABAG’s general counsel immediately direct all ABAG personnel, contractors and other agents to cease all advocacy activities concerning the CASA Compact, including but not limited to the cessation of all legislative lobbying activities concerning the CASA Compact, SB 50, SB 330, AB 1487, ACA 1 and other CASA Compact-related bills;
  2. That members of the ABAG Housing Legislative Working Group immediately be informed of these allegations of illegal conduct, as that body exists only because of ABAG’s illegal actions concerning the CASA Compact;
  3. That the ABAG Board/Assembly formally rescind and/or otherwise declare null and void the actions taken concerning the CASA Compact at their January 17-18, 2019 meeting;
  4. That the ABAG Board/Assembly re-agendize votes on the CASA Compact, if the Board/Assembly so chooses and faithfully follow the Brown Act’s public notice, agenda, deliberative process and public comment requirements in so doing; and
  5. That the ABAG Board/Assembly unconditionally commit that it will cease, desist from, and not repeat the challenged violations of the Brown Act, especially the public reporting requirement of the individual vote of every board member.

As provided by §54960.1, ABAG has 30 days from the receipt of our demand to either cure or correct the challenged action, or inform us of their decision not to do so.