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San Diego City Council streaming video questioned

Mission Valley motion changed?

— If you ever suffer insomnia, you might play the streaming video of a San Diego City Council meeting. While you're at it, check whether the minutes of the council meeting are accurate. The video of a recent meeting and some of the meeting's minutes don't square too well. During the meeting in question, the council discussed the environmental document for the Pacific Coast Office Building. In September 2006, several community groups successfully appealed the document's approval. The council remanded the document to the Planning Commission, which approved it again with no changes. So, on July 31, the council heard a second appeal by the River Valley Preservation Project, the University Heights Planning Committee, Friends of San Diego, and the San Diego Chapter of the Sierra Club. Developer Robert Pollack intends to build the structure at the base of the southern Mission Valley hillside below Normal Heights.

Here's how the minutes of the July 31 meeting record a motion on the Pacific Coast Office Building's mitigated negative declaration. "Motion by [Sixth District councilwoman Donna] Frye to close the public hearing and to continue to...September 25, 2007, to allow Frye...to come back with findings for council's consideration."

A look at the streaming video for the July 31 meeting, however, reveals much that was left out. Council president Scott Peters is seen asking deputy city attorney Karen Heumann to state the motion. "As I understand it so far," says Heumann, "you [Frye] are asking that we take action under the municipal code...that you want to set aside the [mitigated negative declaration], that you would like to see an [environmental impact report]. However, you would like to...ask for a continuance...." Heumann goes on to characterize the "continuance" as intended to "clarify your position...in a more specific direction...."

"We have a September 25 date," says Peters. "Is that your motion?"

"That is my motion, Mr. Peters," Frye says.

How to interpret the motion may depend on the meaning of a single word. In Heumann's statement, does "however" only qualify Frye's attempt to make an environmental document change? All along, the appellants have wanted to force the project to provide an environmental impact report rather than the weaker mitigated negative declaration. The latter states only how the owner will compensate for the building's negative environmental effects. The former could result in an order that requires the owner to take the project elsewhere.

Or does "however" signify that Frye wants a continuance instead of the environmental document change? In the latter case, her request for a continuance would mean the environmental issues have yet to be decided. Such an interpretation would not agree, however, with how Karen Heumann thought she was stating Frye's motion on July 31. In an August 1 e-mail to Randy Berkman, who has fought Pacific Coast for several years, Heumann wrote: "The Council voted to require an [environmental impact report]. Now all that remains is a continued hearing to make...findings in addition to the findings Councilmember Frye already made and/or clarifying findings."

September 25, the day for the continuance, came and went with no resolution. A day earlier, Pollack's attorney Michael McDade sent a letter to each councilmember with a reminder that he would back his client's project with every legal remedy available. It looked as though the council would finally tip its hand on how to handle the Frye motion. Members first listened to a pitch by McDade, a member of the City's Charter Review Committee and former chief of staff to ex-mayor Roger Hedgecock. McDade wanted only, he said, to have a full council vote on his client's project. And all members were present. But Seventh District councilman Jim Madaffer, who missed the July 31 meeting, said he could not vote on Pacific Coast Office Building matters until he had seen the video of that day's discussion. He asked for, and was granted, another continuance. The project is now on the docket for next Tuesday, October 23.

Meanwhile, Randy Berkman asked the city clerk's office to explain the change of the Frye motion's wording. He had seen the "Results Sheet" for the meeting. Results Sheets are the first statement of the issues in council motions as transcribed during the meetings. For the Pacific Coast Office Building motion on July 31, the sheet indicated that those issues involved "granting or denying the appeal and upholding or overturning the mitigated negative declaration."

On September 27, Berkman e-mailed the clerk's legislative recorder, Sara Richardson. "Did any member of the City Council," he asked, "contact you and request that draft...minutes be changed for the July 31 [discussion] of the Pacific Coast Office Building?... Is it not standard practice to record Council motions...exactly as they were stated?"

Richardson did not answer the questions but wrote back, "The motion captures the action of Council.... If you need further clarification, please feel free to come to the Council meeting...when the item will be heard again."

Berkman also filed with the city clerk a California Public Records Act request for e-mails and documents that discuss the item's wording. In an October 3 e-mail promising to fulfill the request, City Clerk Elizabeth Maland wrote to Berkman: "I must caution you that the Results Sheet is not equivalent to the minutes. It never goes before City Council for approval and is considered a draft."

Maland then described a process of review that she initiated after learning there was trouble ahead. "It was only after discussing it with Assistant City Attorney Karen Heumann that a question was raised about the continuance," wrote Maland. "Once a question was raised, I asked my staff to research the issue. In deference to the City Attorney, the original Results Sheet reflected her view until we could properly research the item. This research is typical on a contested item...." It involves consultations with the maker of the motion, the seconder, the Director of Legislative Affairs, the Development Services manager for the project, and the City Attorney's office. Only after these talks is a transcript made of "the discussion surrounding the motion and the vote." (Apparently, no representative for the appellants was contacted.)

"My office is independent," Maland went on. "We capture what occurs at City Council meetings. When there is disagreement about a motion or a particular aspect of the minutes or the Results Sheet, my staff conducts extensive research to ensure we 'get it right.' We gather all the facts, and I make my determination based on those facts."

On October 5, Maland e-mailed Berkman again, this time addressing his continuing queries about possible councilmember interference behind the scenes. "The final decision about the motion is mine and mine alone," she wrote, "so regardless of what a council office requests, I make the final call. I believe the transcript makes it clear that the motion before Council was a continuance."

No one contests this point. The question is whether the motion also included setting aside the mitigated negative declaration and calling for an environmental impact report, the purpose of the continuance being only to "clarify [the] position...in a more specific direction...." Maland's position seems to be that if the motion is a continuance, it could not be anything in addition.

Last week Berkman received the e-mails and documents he sought. They reveal that, within days of the July 31 city council meeting, developer Robert Pollack and attorney Robert Vacchi were contesting the wording of the original Results Sheet for the Pacific Coast Office Building project. On their behalf, the Development Services Department's Bob Manis contacted council president Peters' office, setting in motion efforts to change the wording. On August 2, legislative recorder Sara Richardson, however, wrote to Peters' office, saying, "I was the recorder at Tuesday afternoon's Council meeting. From what I understood Council granted the appeal and overturned the [mitigated negative declaration], closed the hearing and directed it to come back...to show steps that were taken toward further mitigation. Is this correct or was the entire item continued?"

Michelle Strauss of Peters' office responded the following day. "This item was continued," wrote Strauss. "No other action was taken. I spoke with Council President Peters and the continuance was his request.... He would never have supported granting the appeal.... It...wouldn't make sense to name [September] 25 if there was actually a motion as you noted...."

Peters' office, however, soon became aware of deputy city attorney Karen Heumann's different view. "I...read back the motion during the hearing," Heumann wrote to Strauss on August 28. "I understand that Councilmember Frye granted the appeal and asked to come back to make findings to support the appeal. Those findings would come from her, not from [Development Services Department].... I realize this has been rather convoluted for everyone. Fortunately, with the continuation of the findings, there is an opportunity to clarify the record for everyone."

To follow up, I call Councilwoman Donna Frye, author of the motion. "Were you consulted," I ask Frye, "about the change to your motion? Did Scott Peters say he was changing the minutes?"

"My staff was notified not long after the [July 31] meeting that there was a problem with the minutes," says Frye. "Whether it was the office of Councilman Peters or the city clerk's office, I don't recall."

Apparently, Frye had no objections. When the abbreviated wording of her motion appeared on the agenda for the September 25 meeting, she did not object. She didn't have much time during the meeting, of course, because the discussion was over as soon as Councilman Madaffer requested the second continuance to October 23.

"But did you intend your July 31 motion," I ask, "to call for the mitigated negative declaration to be put aside and an environmental impact report to be required?"

"Absolutely," says Frye, "and a hundred thousand times over I believe that the project needs to be changed. There are not only the brush-management problems [below Normal Heights, where the 1985 devastating fire occurred], but the project violates the hillside height limits and other aspects of the Mission Valley Community Plan."

Will environmental-document issues still be unsettled when the project gets taken up again?

"There will have to be a new vote," says Frye. "I put the continuance into my motion to err on the side of caution. I want to make my findings very specific so that it's a completely legal action. The applicant's attorney -- you know, Mr. McDade -- is sitting in the wings."

Could McDade have done more than sit in the wings? On the agenda for this past Tuesday's council meeting was an attempt to approve the minutes for the July 31 meeting. Behind closed doors, the wording of Frye's Pacific Coast Office Building motion morphed even further. It read: "Motion by Frye to continue...to allow the applicant to return with report of steps taken in mitigation."

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— If you ever suffer insomnia, you might play the streaming video of a San Diego City Council meeting. While you're at it, check whether the minutes of the council meeting are accurate. The video of a recent meeting and some of the meeting's minutes don't square too well. During the meeting in question, the council discussed the environmental document for the Pacific Coast Office Building. In September 2006, several community groups successfully appealed the document's approval. The council remanded the document to the Planning Commission, which approved it again with no changes. So, on July 31, the council heard a second appeal by the River Valley Preservation Project, the University Heights Planning Committee, Friends of San Diego, and the San Diego Chapter of the Sierra Club. Developer Robert Pollack intends to build the structure at the base of the southern Mission Valley hillside below Normal Heights.

Here's how the minutes of the July 31 meeting record a motion on the Pacific Coast Office Building's mitigated negative declaration. "Motion by [Sixth District councilwoman Donna] Frye to close the public hearing and to continue to...September 25, 2007, to allow Frye...to come back with findings for council's consideration."

A look at the streaming video for the July 31 meeting, however, reveals much that was left out. Council president Scott Peters is seen asking deputy city attorney Karen Heumann to state the motion. "As I understand it so far," says Heumann, "you [Frye] are asking that we take action under the municipal code...that you want to set aside the [mitigated negative declaration], that you would like to see an [environmental impact report]. However, you would like to...ask for a continuance...." Heumann goes on to characterize the "continuance" as intended to "clarify your position...in a more specific direction...."

"We have a September 25 date," says Peters. "Is that your motion?"

"That is my motion, Mr. Peters," Frye says.

How to interpret the motion may depend on the meaning of a single word. In Heumann's statement, does "however" only qualify Frye's attempt to make an environmental document change? All along, the appellants have wanted to force the project to provide an environmental impact report rather than the weaker mitigated negative declaration. The latter states only how the owner will compensate for the building's negative environmental effects. The former could result in an order that requires the owner to take the project elsewhere.

Or does "however" signify that Frye wants a continuance instead of the environmental document change? In the latter case, her request for a continuance would mean the environmental issues have yet to be decided. Such an interpretation would not agree, however, with how Karen Heumann thought she was stating Frye's motion on July 31. In an August 1 e-mail to Randy Berkman, who has fought Pacific Coast for several years, Heumann wrote: "The Council voted to require an [environmental impact report]. Now all that remains is a continued hearing to make...findings in addition to the findings Councilmember Frye already made and/or clarifying findings."

September 25, the day for the continuance, came and went with no resolution. A day earlier, Pollack's attorney Michael McDade sent a letter to each councilmember with a reminder that he would back his client's project with every legal remedy available. It looked as though the council would finally tip its hand on how to handle the Frye motion. Members first listened to a pitch by McDade, a member of the City's Charter Review Committee and former chief of staff to ex-mayor Roger Hedgecock. McDade wanted only, he said, to have a full council vote on his client's project. And all members were present. But Seventh District councilman Jim Madaffer, who missed the July 31 meeting, said he could not vote on Pacific Coast Office Building matters until he had seen the video of that day's discussion. He asked for, and was granted, another continuance. The project is now on the docket for next Tuesday, October 23.

Meanwhile, Randy Berkman asked the city clerk's office to explain the change of the Frye motion's wording. He had seen the "Results Sheet" for the meeting. Results Sheets are the first statement of the issues in council motions as transcribed during the meetings. For the Pacific Coast Office Building motion on July 31, the sheet indicated that those issues involved "granting or denying the appeal and upholding or overturning the mitigated negative declaration."

On September 27, Berkman e-mailed the clerk's legislative recorder, Sara Richardson. "Did any member of the City Council," he asked, "contact you and request that draft...minutes be changed for the July 31 [discussion] of the Pacific Coast Office Building?... Is it not standard practice to record Council motions...exactly as they were stated?"

Richardson did not answer the questions but wrote back, "The motion captures the action of Council.... If you need further clarification, please feel free to come to the Council meeting...when the item will be heard again."

Berkman also filed with the city clerk a California Public Records Act request for e-mails and documents that discuss the item's wording. In an October 3 e-mail promising to fulfill the request, City Clerk Elizabeth Maland wrote to Berkman: "I must caution you that the Results Sheet is not equivalent to the minutes. It never goes before City Council for approval and is considered a draft."

Maland then described a process of review that she initiated after learning there was trouble ahead. "It was only after discussing it with Assistant City Attorney Karen Heumann that a question was raised about the continuance," wrote Maland. "Once a question was raised, I asked my staff to research the issue. In deference to the City Attorney, the original Results Sheet reflected her view until we could properly research the item. This research is typical on a contested item...." It involves consultations with the maker of the motion, the seconder, the Director of Legislative Affairs, the Development Services manager for the project, and the City Attorney's office. Only after these talks is a transcript made of "the discussion surrounding the motion and the vote." (Apparently, no representative for the appellants was contacted.)

"My office is independent," Maland went on. "We capture what occurs at City Council meetings. When there is disagreement about a motion or a particular aspect of the minutes or the Results Sheet, my staff conducts extensive research to ensure we 'get it right.' We gather all the facts, and I make my determination based on those facts."

On October 5, Maland e-mailed Berkman again, this time addressing his continuing queries about possible councilmember interference behind the scenes. "The final decision about the motion is mine and mine alone," she wrote, "so regardless of what a council office requests, I make the final call. I believe the transcript makes it clear that the motion before Council was a continuance."

No one contests this point. The question is whether the motion also included setting aside the mitigated negative declaration and calling for an environmental impact report, the purpose of the continuance being only to "clarify [the] position...in a more specific direction...." Maland's position seems to be that if the motion is a continuance, it could not be anything in addition.

Last week Berkman received the e-mails and documents he sought. They reveal that, within days of the July 31 city council meeting, developer Robert Pollack and attorney Robert Vacchi were contesting the wording of the original Results Sheet for the Pacific Coast Office Building project. On their behalf, the Development Services Department's Bob Manis contacted council president Peters' office, setting in motion efforts to change the wording. On August 2, legislative recorder Sara Richardson, however, wrote to Peters' office, saying, "I was the recorder at Tuesday afternoon's Council meeting. From what I understood Council granted the appeal and overturned the [mitigated negative declaration], closed the hearing and directed it to come back...to show steps that were taken toward further mitigation. Is this correct or was the entire item continued?"

Michelle Strauss of Peters' office responded the following day. "This item was continued," wrote Strauss. "No other action was taken. I spoke with Council President Peters and the continuance was his request.... He would never have supported granting the appeal.... It...wouldn't make sense to name [September] 25 if there was actually a motion as you noted...."

Peters' office, however, soon became aware of deputy city attorney Karen Heumann's different view. "I...read back the motion during the hearing," Heumann wrote to Strauss on August 28. "I understand that Councilmember Frye granted the appeal and asked to come back to make findings to support the appeal. Those findings would come from her, not from [Development Services Department].... I realize this has been rather convoluted for everyone. Fortunately, with the continuation of the findings, there is an opportunity to clarify the record for everyone."

To follow up, I call Councilwoman Donna Frye, author of the motion. "Were you consulted," I ask Frye, "about the change to your motion? Did Scott Peters say he was changing the minutes?"

"My staff was notified not long after the [July 31] meeting that there was a problem with the minutes," says Frye. "Whether it was the office of Councilman Peters or the city clerk's office, I don't recall."

Apparently, Frye had no objections. When the abbreviated wording of her motion appeared on the agenda for the September 25 meeting, she did not object. She didn't have much time during the meeting, of course, because the discussion was over as soon as Councilman Madaffer requested the second continuance to October 23.

"But did you intend your July 31 motion," I ask, "to call for the mitigated negative declaration to be put aside and an environmental impact report to be required?"

"Absolutely," says Frye, "and a hundred thousand times over I believe that the project needs to be changed. There are not only the brush-management problems [below Normal Heights, where the 1985 devastating fire occurred], but the project violates the hillside height limits and other aspects of the Mission Valley Community Plan."

Will environmental-document issues still be unsettled when the project gets taken up again?

"There will have to be a new vote," says Frye. "I put the continuance into my motion to err on the side of caution. I want to make my findings very specific so that it's a completely legal action. The applicant's attorney -- you know, Mr. McDade -- is sitting in the wings."

Could McDade have done more than sit in the wings? On the agenda for this past Tuesday's council meeting was an attempt to approve the minutes for the July 31 meeting. Behind closed doors, the wording of Frye's Pacific Coast Office Building motion morphed even further. It read: "Motion by Frye to continue...to allow the applicant to return with report of steps taken in mitigation."

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