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The community planning process in the city of San Diego is important because it allows the public to engage with land use and transportation decisions. The public must have confidence in the integrity of that system if it is to achieve its goals.
A recent city audit identified several problems with community planning groups and made recommendations for reform, which the city’s planning department has committed to implementing. This is a good start and an opportunity to reexamine how community planning groups fit into the requirements imposed by both state and municipal law.
There are still legal issues with the current governance of community planning groups, which we recently described in a memo to City Attorney Mara Elliot. These concerns must be addressed to ensure compliance with state law and to ensure that community planning groups follow the rules approved by voters in the City Charter.
First, the city should address how members of community planning groups are selected. In the same way our federal government must comply with the Constitution, the structure of community planning groups cannot conflict with San Diego’s governing document. The City Charter permits the City Council to “create and establish advisory boards” And the City Council policy governing community planning groups acknowledges they “are advisory bodies created by an action of the City Council.” But the charter also mandates that members of advisory bodies created by the City Council “shall be appointed by the Mayor with Council confirmation.”
Community planning group members are not appointed by the mayor, but instead are largely elected by their neighbors. This apparent conflict with the City Charter has never been addressed. We are not arguing specifically for appointment of community planning groups members by the current or future mayor. Maintaining community planning group elections, however, may require an amendment to the City Charter.
Second, San Diego should live up to its responsibilities and take ownership over how community planning group members participate in decisions. California adopted the Political Reform Act in 1974 with the goal of ending political corruption. The act requires public officials with “decisionmaking authority” to disclose their economic interests and recuse themselves when a conflict of interest arises. Local entities are responsible for determining which officials are subject to the Political Reform Act and for enforcing their own conflict of interest codes.
Some public officials serving in “advisory” roles may nevertheless have “decisionmaking authority” if over the long-term, according to the state, they make “substantive recommendations” that are “regularly approved without significant amendment or modification by another public official or governmental agency.” This is called the “rubberstamp” test.
The city attorney’s office has repeatedly concluded the Political Reform Act does not apply to community planning groups. In the most recent analysis, the city attorney’s office applied the test but concluded without further explanation that community planning group members “are not public officials under the Political Reform Act” because “there is no history” that their recommendations are rubber-stamped by other officials.
The city’s analysis may be incomplete. In 2013, San Diego County sought advice from California’s political watchdog, the Fair Political Practices Commission, about applying the Political Reform Act to its community planning groups. When it comes to the “rubberstamp” test, the FPPC explained, the county bears the burden of reviewing the history of each group to determine how often its recommendations were adopted by the Board of Supervisors.
In response, the county skipped the extensive study and simply conceded that the Political Reform Act applies to its own community planning group members. Those members are now chosen through general election ballots, required to disclose campaign contributions, file economic interest statements and expected to recuse themselves when a conflict arises.
San Diego cannot passively avoid this issue for its own community planning groups by declining to conduct the study required by state law. At the same time, the city should consider whether the Political Reform Act applies to community planning group elections. If any doubt remains, the city should follow the county’s lead by asking the FPPC for guidance or conduct its own study.
The city attorney has the expertise to consider these issues and the duty to advise the city on the legal aspects of community planning group reform. To ensure these reforms do not subject San Diego to any legal uncertainty, these issues should be thoroughly analyzed to ensure the public’s interests are adequately protected and represented.
Colin Parent is the executive director of Circulate San Diego, a transportation and housing advocacy group, and a La Mesa City Councilman. Matt Stucky is an attorney, member of the Circulate San Diego Policy Committee, and member of the North Park Planning Committee.