Examining Planning Commissioner Conduct

One or more planning commissioners have never seen, received or used the Planning Commissioner's Handbook that was provided to the Grand Jury by the Planning Department. Recommended Response As the Department of Planning and Building is responsible for the distribution of the Planning Commissioner's Handbook, the Board adopts the response from the Department of Planning and Building as its response and agrees with this finding (see attached responses from the Department of Planning and Building and County Counsel).

The Planning Commissioner's Handbook does not explain the difference between the quasi-legislative and quasi-judicial roles of the Planning Commission and the possibility that the same planning commissioner conduct which is appropriate in one role may violate one or more due process requirements applicable to the other role. Recommended Response The Board of Supervisors agrees with this finding.

The Planning Commissioner's Handbook does not describe or explain how ex parte contacts by planning commissioners may violate the due process requirements for quasi-judicial hearings. Recommended Response The Board of Supervisors agrees with this finding.

The Planning Commissioner's Handbook does not describe or explain the concept of a non-economic conflict of interest or how such a conflict of interest may violate due process requirements for quasi-judicial hearings. Recommended Response The Board of Supervisors agrees with this finding.

The 2005 revision to the Planning Commission Rules of Procedure deleted an explanation of how ex parte contacts by planning commissioners might violate due process requirements for quasi-judicial hearings and adversely affect the actions and decisions of the Planning Commission. Recommended Response The Board of Supervisors adopts the Department of Planning and Building response as the Board's response to this finding (see attached response from the Department of Planning and Building).

Planning commissioners do not always include sufficient detail in their disclosures to provide adequate information as to the substance of their ex parte contacts as required by the Planning Commission Rules of Procedure. Recommended Response Based upon the response from the Planning and Building Department, the Board of Supervisors agrees with this finding. However, the Board notes that the Planning Commissioners do, in fact, disclose ex parte contacts although there may be some inconsistency in the level of detail provided by these disclosures.

Ex parte contacts and a pre-hearing comment by one planning commissioner raised a legitimate concern that this planning commissioner had an unacceptable probability of actual bias by possibly deciding to deny one of more Conditional Use permit applications before the public hearings on the applications. Recommended Response The Board of Supervisors does not agree with this finding. The Grand Jury did not provide evidence that would clearly support this finding. The Grand Jury states that it "believes" a statement made by a planning commissioner suggested that the commissioner had already decided to vote against the project. The conclusion reached by the Grand Jury is more conjecture than fact and as such lacks the clear and factual evidence needed to be considered a supportable finding. Grand Jury Re Recommendations and Recommended Board Responses 1. The Planning Department, with the assistance of County Counsel, should revise and update the Planning Commissioner's Handbook to include explanations of the following: a. The quasi-legislative and quasi-judicial roles of the Planning Commission and the reasons why planning commissioner conduct in one role is not necessarily acceptable in the other role. b. The due process requirements and legal standards of conduct for quasi-judicial proceedings conducted by the Planning Commission, including but not limited to the right of an applicant to hear and respond to evidence being considered by the planning commissioners and the right to reasonably impartial, non-involved reviewers. c. The reasons why ex parte contacts by planning commissioners have the potential to violate due process requirements. d. Non-financial conflicts of interest such as loyalties to groups or organizations with positions on land use planning and regulation. Recommended Response Recommendations 1a, 1b, and 1c have been implemented. Recommendation 1d will not be implemented as it is not warranted. The Board of Supervisors adopts the response from the Department of Planning and Building and the response from County Counsel as the Board of Supervisor's response to this recommendation (see attached responses from the Department of Planning and Building and County Counsel).