An article in the March 19 Marin Independent Journal, “Mill Valley skate park rollout marked by conflict,” instantly caught my eye. It covered a discussion at the Mill Valley Parks and Recreation Commission (P&RC) meeting on March 6, on conflicts between different types of users at the new skate park. I’d served five years on the commission, including one year as chair, and participated in discussions about the project.
It was dismaying to learn of its troubled opening, which seemed so preventable. Especially troubling was one child’s testimony, quoted in the IJ article, stating, “I saw a biker hit a small child and the child just went flying. … Our poor friend Tyler has stitches.” I wanted to know if there was any more information about this disturbing testimony.
I went to the Mill Valley website to learn more and find the online video of the meeting. But discussion about the skate park was not on the agenda, even though it was substantial enough to warrant press coverage. It turns out this discussion took place during “Public Open Time,” which is a time set aside for people to speak on any topic not on the agenda, for up to three minutes. However, this skate park discussion was nearly 30 minutes long and included commentary by the chair, who invited other commissioners to comment, and by the staff liaison.
It’s a violation of state’s open meeting law, the Brown Act, to discuss items at length that are not on the agenda. In fact, the City of Mill Valley’s handbook for new commissioners includes this advisory (written in bold): “The Brown Act prohibits discussion and action on any business item not listed on the agenda.”
The Brown Act is a cornerstone of healthy civic life, and a judge in 2016 found the County Board of Supervisors violated the Brown Act in a similar scenario – a 26-minute un-agendized discussion about housing, with no particular action taken – and awarded $72,000 in attorney’s fees.
Passed in 1953, the spirit of the Brown Act is to ensure the public’s right to participate in meetings of local legislative bodies, and to engage in all phases of public discussions and decision-making.
Surely, all the Parks & Rec commissioners, and certainly the staff liaison assigned to run the meeting – in this case the director of the Recreation department – are trained in this most basic law about open meetings
The irony of discovering this un-agendized “hearing” about the skate park, was that I’d resigned the Parks and Rec Commission one year earlier due to lack of adherence to rules and management issues. Yet after all efforts to address this, clearly these problems persist.
Before joining the Parks & Rec commission, I’d worked for 12 years as a health and science reporter for the Bay Area News Group, during which time government transparency was doggedly pursued by the newspaper chain – and had I thoroughly studied the importance to healthy democracies of this transparency while earning a Master’s Degree in journalism at Stanford. I also spent six years reporting throughout the state on efforts to create healthy communities, for a book on the topic.
Bob Silvestri, the president of Community Venture Partners, which advocates for civic transparency, and I met with Jim McCann, the city manager, on March 28 to discuss this latest breach. The letters below, one from Bob and the other from me, summarize that discussion with the city manager. Bob had opened the meeting with an important question for Jim: Did he agree that residents have a right to expect the consistent and reliable following of rules across all city-run groups? Jim McCann agreed they did. We also pointed out this never would have happened at a City Council meeting.
The situation reminded me of a Mill Valley planning commissioner who in 2013 warned the City Council about dysfunction in the planning department, and the rubber-stamping of projects. The commissioner, then the chair of the Planning Commission, was rebuked for openly criticizing the department director during a routine annual presentation to the City Council. Yet the following year, that planning director resigned under a cloud, after Jim McCann admitted at a city meeting that a permit for a controversial residential project “was in violation of the code,” and due to “improper judgment.”
After that debacle, Dick Spotswood, a Marin IJ columnist, wrote a piece urging elected officials in Mill Valley to “listen to the public and their volunteer commissioners when they sound an alarm.”
As often is the case, there may be denials or comments that this was just an anomaly. But there are many documented incidents about irregularities that I experienced as a member and chair of this commission.
The City Council needs to ensure that all boards and commissions – which they appoint – run with the same procedures and professionalism as the Council’s meetings, and to provide a conduit for any volunteer member of these groups to seek effective assistance when concerns arise.
This is why I continue to advocate for a city councilmember liaison to each of the city’s boards and commission. It is good policy, good sense, and simply respectful of the time volunteers donate to these city-run groups.
To: Jim McCann @cityofmillvalley.org>
Sent: Friday, March 29, 2019
Subject: Following up on our meeting on 3/28/19
I wanted to thank you for your time yesterday and to memorialize our conversation about the recent Parks & Recreation Commissions discussions about the new skate park.
Our mutual interest is that everyone member of the public be availed an opportunity to speak on any subject, particularly one as controversial at the use of the new skate park. And, as we discussed and agreed the public has the right to reasonably expect and the city has a responsibility to conduct its business in a manner that is consistent and fair to all residents. How public hearings are conducted would fall under this category of responsibilities.
We also agreed that public open time at the recent March 6th Parks & Recreation Commission was not conducted entirely properly in a number of respects, in that it blurred of the lines between the state purposes of public open time (to hear comments on subjects that are not on the agenda) and the kinds of interactions, declarations, and discussions that are more appropriate for an agendized and publicly noticed hearing. Both the chairman and the staff liaison, Jenny Rogers, appeared to be at fault in this regard.
What is unfortunate is that the hearing was allowed to wander far afield of how public open time is typically handled in Mill Valley, to the point of trampling on the spirit of the Brown Act, at a minimum. By holding what essentially amounted to a 26 minute one sided hearing on why only skateboarders should be allowed in the skate park, without notice, all those who might have come to speak out in support of bicycles or scooters were denied that opportunity.
We were grateful to hear that you were equally concerned and are committed to working with staff and the commissioners to clarify the procedures they are advised to adhere to in the future. It is also good to hear that the rules of conduct that Suzanne Thompson has worked so hard on, and which have been endorsed by the City Council, are moving forward in establishing rules for all commissions in the City.
Finally, it was good to know that the City and the Parks & Rec Commission intends to remedy the defects of the March 6th meeting, by holding a fully noticed public hearing on the subject of the permitted uses in the skate park, in the coming weeks. I think Suzanne's suggestion that some mea culpa regarding the March 6th meeting be included in the introduction to that public meeting, is a good one.
Thanks again for your time and consideration.
Community Venture Partners
A Catalyst for Sustainable Solutions
To: Jim McCann
Cc: Stephanie Moulton-Peters
Sent: Monday, April 1, 2019
Yes, we appreciated the meeting on Thursday to discuss the un-agendized hearing on the skate park during the March 6 Parks & Recreation Commission meeting, which led to a Marin IJ article titled "Mill Valley skate park rollout marked by conflict." (And a political cartoon in the same paper.) And we appreciate your quickly making time to meet.
Bob Silvestri has summarized the issues well. And as we mentioned, also lost was an opportunity to teach kids about well-run public discussions on a matter important to them. Instead of launching into a 26-minute unannounced hearing with no preparation on a contentious topic, commissioners and staff could have listened respectfully to the testimony of the children and their parents during public open time. The chair and staff liaison could then have let speakers know their concerns were being taken seriously, and explained the rules requiring advance notice of public discussions so all interested parties could attend.
These are of course grounded in principles of fairness and openness in discussions and decisions about public resources, and exactly why the state Brown Act prohibits unagendized discussions in public meetings. Instead, the public heard from only skaters - with two describing skater injuries - against bikers and scooter users, with no one from the two latter groups present. And no staff report to provide context, data and recommendations. And it is important for the commission chair and the staff liaison to acknowledge at the next meeting what you agreed was an improper discussion.
Ironically, a neighbor approached me yesterday, knowing I had served on the Parks and Recreation Commission. He was upset about the skate park, and that his son has been "booted out" because he's a scooter user, and that he pays taxes for these facilities. He also said he heard after the fact about the parks and rec meeting last month, and was troubled that he didn't know about it, as he would have shown up.
As you know, I have spoken with you, as well as the mayor who is cc'd here, several times during my tenure about my alarm over the lack of adherence to rules and about management issues I witnessed while on the Parks and Recreation Commission. That ultimately led to my resigning one year early, as all efforts to remedy the situation were failing.
Those attempted remedies included my spending roughly one year drafting and seeking approval for Rules of Conduct for commissioners and staff, which passed unanimously by both the commission and the City Council. Critically, the rules codified the role of the commission in setting the agenda, along with staff. Those rules were sorely needed, as when I started as chair, the department director asserted that staff had the "prerogative" to unilaterally set the Parks and Rec meeting agenda, and that she only showed it to the chair "as a courtesy." That stymied efforts to get matters on the agenda which staff didn't support, and had consequences for several matters of importance for various groups.
The City Council recommended that the Rules of Conduct for the Parks and Rec Commission - in addition to being used immediately by the commission - also be used as a template for all boards and commissions in the city, which was a good suggestion. While it's taken nearly two years to arrive at this point, I was heartened to hear that the drafting of rules for all boards and commissioners is moving forward. ("Rules" or "regulations" are the terms used in our Municipal Code that authorizes boards and commissions to create these.)
Oddly, however, while the citywide rules for boards and commissions are being drafted, the implementation of the approved rules for the P&RC have been abandoned since my departure, a situation you acknowledged. That lack of implementation raises separate questions, and their implementation would provide a perfect test case while citywide rules are drafted. They were honed by P&R commissioners over several meetings, and no one on the City Council suggested any changes to the rules.
I'll also be renewing my calls for the reinstatement of a City Council liaison for each board and commission in the city. The Council appoints these members, and it's essential that an official conduit of communication exist for any board or commission member to discuss concerns that may arise during the member's volunteer work, rather than being directed to staff.
Suzanne B. Thompson