Mayor Bill Yates' attempt to have the Morro Bay City Planning Commission fired, after commissioners opposed the city's proposed new wastewater treatment plant, failed when most other City Council members opposed his move and Council member Noah Smukler said Yates was "attacking their [commissioners'] character," being disrespectful, making accusations "bordering on slander," inciting "political and public ridicule" toward the Council, and that he took "offense."
Smukler called on Yates to apologize.
Yates shot back that, "You offended me, saying I should apologize. That's offensive."
"When you accuse someone of a conflict of interest in a document like this [Yates' motion on the Council agenda to fire the Commission] without any evidence, that's a very serious accusation," Smukler said. "It borders on slander. I think it does. You have done something as a public official with the microphone that, as a responsible member of the Council, I can't condone, I can't allow."
Yates then seemed to cut off Smukler, saying "You are repeating yourself. You made your point." Smukler did not object to ending his comments.
When council members Carla Borchard and Nancy Johnson said they would not vote to dismiss the Planning Commission, Yates saw that he did not have a majority of three votes to adopt his proposal to fire the Commission, withdrew it, and no vote was taken at the January 11 Council meeting.
John Diodati's and Jamie Irons' terms on the Planning Commission have not yet expired, but the terms of Gerald Luhr and Michael Lucas expired in January. So the proposed firing only directly affected Diodati and Irons. Johnson had been chair of the Commission until her election to the Council on November 2.
Yates says he wrote the agenda item calling for the firing of the Commission, an unusual step since city staff almost always prepares agenda materials. (It is on the Council agenda. )
The item "recommended the Planning Commission be replaced in their entirety."
"The Planning Commission should be business and citizen friendly, and should be respectful of the enormous amount of time applicants and staff put into a project to prepare the project for presentation before the Planning Commission," he said "In recent years, the Commission has repeatedly nit-picked projects, attempted to act as a Design Review Board, and generally been non-supportive and combative with staff's decisions."
Yates cited two examples of such projects. Regarding a Great American Fish Company project, "a Commissioner had a condition added to the project that required, if replaced, the roof be replaced with a metal roof, not a shingle one as currently exists." He said, "This type of review, adding subjective design requirements, is not within the purview of the Planning Commission."
At the Planning Commission meeting last December 20 where the Draft EIR (Environmental Impact Report) for the proposed Waste Water Treatment Plant was presented, Yates said the Commissioners, "after grinding away at staff, were advised by the City Attorney that their duty was to discuss the EIR among themselves, and then make their recommendation(s). The response from the Planning Commission was they didn't agree with him and they continued on.
"In all my years as witness of our governmental process, I have never seen the City Attorney's public advice refuted [he may have meant rejected] in that manner. It is difficult to imagine a similar situation during a City Council meeting, with the City Attorney standing before the City Council giving us legal advice, and then ignoring him and publically telling him we don't agree with his advice. This alone is grounds for removal."
Then, the Commission on December 20 where it recommended against certification of the EIR by the Council "voted to send a letter to the [California] Coastal Commission regarding their findings on the EIR. I submit the Planning Commission has no authority to write a letter to any outside agency on behalf of the City." The video of the meeting does not show the Commission voting to send a letter to the Coastal Commission.
He said the Commission "also complained there wasn't a workshop on the EIR so they could gather more information; however, there was a workshop as well as a number of JPA meetings where the project was discussed." (Some residents complained that the meetings and single workshop were poorly publicized. Eleven people showed up for the workshop.)
One Commissioner, Yates claimed, "suggested that the WWTP site be moved to the Chevron property. He stated this site was outside our sphere of influence, and inferred that county planning could handle the project. This Commissioner works for the county and once he suggested this, I felt that he was potentially entering the realm of conflict of interest."
Yates was referring to Diodati, who has denied that accusation. The video tape of the meeting does not show him doing it.
Yates said he understood that "other City Council members feel that if the City Council is not happy with the two remaining Commissioners, they could be replaced later in the year. However, replacing later seems cumbersome and has not occurred in the past." But "there is precedence for replacing the Commission at this time," he said.
"I have heard from fellow City Council members if we choose three new Commissioners, they will 'keep the other two in check.' I am concerned that while three Commissioners is a majority, it would only take one of our new appointees to change his/her mind and have a similar majority as currently exists in the Planning Commission. I also am not confident that the two remaining Commissioners would allow themselves to be 'kept in check.'"
In his item's conclusion, Yates said that "based on recent actions of the existing Planning Commission, I recommend the City Council agree to replace the entire Planning Commission. This decision works well with the application deadline for Advisory Board vacancies of January 19, 2011 and interview date of January 24, 2011 [by the City Council]."
At the meeting, he introduced the agenda item by saying "I don't take exception to nor do I say anywhere in my report [agenda item] [about] the decisions the Planning Commission made [on the WWTP project]. I never used the word anger or felt that feeling. I felt frustrated."
Yates said he discusssed the firing with city manager Andrea Lueker and city attorney Rob Schultz. "Before and after the election we talked about firing the Planning Commission, but I didn't see any support and I let it drop."
But after the EIR meeting, "I felt these guys have to go," he said, and "saw them as out of control, or what I call a runaway freight train. They acted like a City Council. I think they acted arrogantly. I'm not talking about their decisions or their feelings about the wastewater treatment plant. I'm talking about behavior."
One thing that "got me the most," he said, was the city attorney giving the commissioners advice and "them blowing him off." For the six years he was mayor, Yates said "I have never seen" any city body doing that. There are "grounds right there" for removing them, he said.
In addition, the Commission "had no right" to approve a letter from them to the Regional Water Quality Control Board asking for a time extension of the deadline for developing and building a new plant by March, 2014, to provide more time to conduct an analysis of additional sites for the plant. "They could have recommended that to the Council or staff. That is out of control."
As far as a suggestion that the Council could appoint three new members who could outvote Diodati and Irons, they [Diodati and Irons] could still "get back in control. Not that I want to clone the Planning Commission. I think we need a clean sweep."
Yates said "it's not about political philosophy. With me, its about behavior and how they act. I don't think we can scold them. I don't see them changing."
He said the Commission has been acting as an architectural review board. "I have seen how they have acted, constantly trying to redesign projects. All year long. I don't agree with that. I'm not saying I want a rubber stamp commission. They have nitpicked projects to death."
The last time a Planning Commission was fired was in 2005, Yates said. It was after he had been defeated for reelection as mayor by Janice Peters. But it was done before in 1994 at Yates' instigation as mayor, according to Chuck Reasor, a former commissioner who was among those fired.
Council member George Leage said, "I'm asking people sitting up here with me to consider letting these people [commissioners] go. We are at a critical time now and we need to work together" and find people who are "willing to work with the City Council and get on the same page."
Smukler began by saying he was "pretty disappointed to see this on the agenda, particularly because we had no previous conversation on this, no outreach to the Council." He asked Schultz about the Dec. 20 meeting and whether when he asked the commissioners to stop asking questions of staff, whether that was "legal advice or your opinion of where they were going?"
Schultz said that after he intervened at the meeting , he told the commissioners to go ahead because his advice "seemed to be falling on deaf ears."
He said it was a matter of Robert's Rules of Order and Council policies and procedures that outline the exact process that should be followed in a public hearing. "Once the commission started to deliberate, it shouldn't go back to questions [of the staff]," he said. "It became a deliberation problem with staff, slipping back and forth."
Smukler said what he saw was a "complex hearing" dealing with the "largest infrastructure, capital investment we have ever had in the city. I'm willing to give the Planning Commission some leeway on those questions particularly because I feel like they weren't disrespectful of staff. They were asking tough questions about an important project. I thought they were very level-headed."
He called attention to the practical and professional experience of the commissioners, "particularly Diodati" and his role in the discussion of the wastewater treatment plant project with his background as a county public works administrator involved in the Los Osos sewer plant project. (Lucas is a Cal Poly architect, Luhr is a contractor and Irons is a Morro Bay Power Plant administrator). "These are the kind of people I want to see on the Planning Commission, independent thinkers and going at it from the perspective of the Morro Bay community, and the work they have done so far has been excellent.
"I take offense and am very disappointed we have a report from an elected official that basically is attacking their character and saying there was a conflict of interest in what they were trying to accomplish in their goals, really disrespecting some extremely hard work and time that has been committed to that position. I don't think it is fair to the commissioners involved. I think it disrespects their time [they have devoted to serving on the commission].
"And I definitely don't like the message that sends to people who may be interested in spending some time in helping us on important advisory bodies, and to see a report like this and the media that it has generated, I couldn't blame someone if they said, 'You know what, it's just not worth my time,' and that saddens me because I think this is an important time for more people to get involved with our government and help us address the many problems we have. I feel they actually deserve an apology."
Smukler said Yates seemed to be conveying the notion that since a Planning Commission had been fired before, it is okay. "That is not just bad philosophy to follow through with, but I have to wonder where does it stop, what does it mean to the community to expect drastic back and forth" in appointing advisory board members and then firing them, he said.
The Council complimented the Commission for the work it did on the solar panels issue at Morro Bay High School, he said, and "yet we are saying they don't do good work. I think we are trying to to control this too much, and in a way, I just wonder, is this really worth the political and public ridicule we all will be coming under because of this action?"
Yates countered that "I hear the other side. I hear from people who have applied [for advisory boards] but who didn't want to serve because of concern about people [on the boards]. It all depends on the side of the looking glass you are on. You offended me by saying I should apologize. That's offensive."
Smukler told Yates that "when you accuse someone of a conflict of interest in a document like this without any evidence, that's a very serious assertion. It borders on slander. I think it does. You have done something as a public official with the microphone that, as a responsible public member of the Council, I can't condone. I can't allow."
Yates then said, "You are repeating yourself, you made your point." Smukler said no more.
Johnson said the Planning Commission in question "doesn't know what its responsibilities and powers are. They need adequate training. I heard a commissioner say extremely rude things to staff." Also, it has engaged in "nitpicking things." The applicants need to be treated with respect, she said, and "verbally attacking staff on TV is never acceptable. I have seen it happen many times."
But, Johnson said she would vote against firing the Commission "at this time." Perhaps the Council should appoint alternates for the advisory board members. "We need to evaluate the Planning Commission," she said, and "we need to be specific in our directions from the Council and they should hear what we are saying."
Borchard said "we are probably to blame for their [commissioners] lack of knowledge, and the concerns with them challenging the city attorney shows they haven't had the training. We didn't provide it."
She said "removing the two [remaining] commissioners would be divisive in the community. I probably don't agree with a lot of some comments [made by commissioners] on land issues. I agree they nitpicked some projects. But I believe in diversity. I agree with council members Smukler and Johnson."
As soon as Borchard finished, Yates said, "Okay, I am obviously outvoted on this so I am withdrawing this item. I can't take my words back. I reach out to Mr. [John] Diodati and [Jamie] Irons and state my hand is extended, and if can get past this, I am past it and want to work with you successfully. That's that."
