Peninsula Planning Board and City Sued by Board Member Over Ban on Slates

by on May 21, 2019 · 23 comments

in Ocean Beach

By Geoff Page

The Peninsula Community Planning Board meeting on Thursday, May 16, experienced something that was probably a first in its history when one of its members distributed his legal complaint against the PCPB and the City of San Diego.  What he handed out was a draft but he actually filed the suit the following day on May 17.

The whole PCPB meeting was devoted to hearing two complaints against board members Margaret Virissimo and Donald Sevrens filed by community members, including this reporter.  Briefly, this is what happened.

The way the complaint process works is that the complaint is reviewed by board officers and they decide whether to dismiss it or to pass it along to the full board. In the case of the two complaints, the officers decided to bring them both before the full board but they did not recommend an action, leaving that decision to the board.

The Virissimo complaint was discussed first.  Suffice to say, it was a scene man.  After about an hour of back and forth and discussion and emotion, including tears and accusations and apologies, the board made a motion to do nothing. Nothing at all. It made it pretty clear a board member could ignore, with impunity, the by-laws that are supposed to govern that body.

It was during the Virissimo discussion that Sevrens, clearly eager to show what he had, jumped in and passed out copies of his draft lawsuit. Amazingly, he had enough copies for all 14 board members and almost all of the audience. He was clearly making a point.  Rather than wait until the PCPB had actually done something to sue for, Sevrens did this in advance, and very publicly, for obvious reasons.  He did not give the board at least the courtesy of seeing the complaint in advance of the meeting.

Sevrens’s action became moot when the board decided to do nothing about Virissimo.  The complaints against Sevrens and Virissimo each contained claimed violations of the by-laws prohibition on creating and promoting candidate slates during elections. Here is what the PCPB by-laws state:

“Development and promotion of “slates” of candidates is contrary to the intent of Council Policy 600-24 and is not allowed.”

Council Policy 600-24 contains the template for all planning board by-laws.  Some of the template has language options for the planning boards but some of the language does not.  The language prohibiting slates was not an option for any of the city’s planning boards.

Sevrens’s lawsuit alleged a violation of his constitutional right to free speech because of the slate prohibition. Because guidance on the by-laws came from the city, the suit named the city. The board tabled a discussion of the complaint against Sevrens until next month because of the suit threat, so Sevrens’s pre-emptive action was partly successful.

There is no reason to go into the detailed complaint Sevrens filed but it is interesting reading.  One sentence is worth mentioning. Item 16 stated:

“The recommendations did not mention the party affiliation of any candidate, and the flier did not suggest that Sevrens was making the endorsements in his official capacity as a member of the board.”

The comment about party affiliation had no relevance to this issue, as candidates are never asked their party affiliations.  The second part of this sentence was the notable part for its flipped logic.  The document stated that the flier did not say PCPB member Sevrens was endorsing the candidates in his official capacity as a member of the PCPB. The message here is that there is no case against Sevrens because of this one technicality.

What that logic completely ignores is that PCPB member Sevrens admittedly knew that what he was doing was prohibited by the PCPB by-laws but did it anyway because he did not agree with the by-law prohibition against slates. Instead of working to change the by-laws, he just decided to ignore what he did not agree with.  The issue here is ethics not what was or was not on a flier.

Sevrens’s suit is asking for $100,000 in damages, “reasonable attorney’s fees,” “costs of suit,” and “For such other and further relief as the Court deems just, equitable, and proper.”

Finally, it was interesting that Sevrens did not include Virissimo in his action as she was facing the same complaint about slates as Sevrens was.  It would have seemed like a stronger case with two plaintiffs but that did not happen for some reason.

{ 23 comments… read them below or add one }

Avatar ZZ May 21, 2019 at 12:43 pm

Maybe he got the idea from my prior comment and went and found a lawyer.

In any case, I agree that saying a candidate for public office can’t campaign on a slate is definitely unconstitutional. The only real defense the city has here is that PCPB has no actual powers beyond giving advice the city is 100% free to ignore, nor is it required to even seek the PCPB approval for a project.

The prudent thing for the PCPB and city to do right now is delete the slate rule and also say they never planned to enforce it.

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Avatar bobo May 21, 2019 at 1:58 pm

Bullocks;
1. His or any other candidate’s “freedom of speech” isn’t being violated. He’s free to campaign on any local neighborhood improvement/development issue & platform as an INDIVIDUAL. There are specific reasons why slates are and should always be prohibited in community planning boards:

2. The existence of a slate is akin to a political party. Should a slate of candidates get elected and become a majority, not only would true representation of the neighborhood be eroded, but by-laws could be rewritten to enshrine the slate’s policies: a hyper-local version of a gerrymandered district. This would erode the trust in a board to not only be a true local voice of ALL residents and business owners in the neighborhood but also would have the effect of stifling the free speech of others who would “dare” to challenge an incumbent board’s majority slate.

3. There is no reason for individuals to join a slate. A potential board member should strive to be a broad representative of the neighborhood on a variety of development issues. Someone seeking to join the board should run on the merits of their experience with and knowledge of developmental processes, technical knowledge, understanding of the city and neighborhood precise plan and building codes.

4. A slate has the potential to violate the Brown Act because slate “mates” would collude to set their platform outside of the public meeting requirement of planning boards. They risk meeting in private and with a quorum of members to get policies. A clear risk of violation of law.

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Avatar Geoff Page May 21, 2019 at 2:12 pm

Well said, bobo, thanks for adding this to the discussion.

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Avatar Geoff Page May 21, 2019 at 2:07 pm

ZZ, Can you be more specific as to why you said the prohibition for developing and promoting a slate is unconstitutional?

Just to be sure the word “slate” is fully understood in this context. This is not a “platform” like the Republicans and Democrats create. This slate is only a list of specific people to vote for along with an admonition of who not to vote for. Unlike a platform, this slate does not express specific views like a Democratic platform might have such as being pro-choice or a Republican platform might have such as being pro-life.

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Avatar ZZ May 21, 2019 at 4:10 pm

The first amendment’s protection of candidate and other citizen speech isn’t limited to “platforms.”

Here, the slate is speech in the purest form: flyers telling people to vote for a group of candidates together.

I’m not going to write this guy’s case for him with a bunch of specific citations. But I promise you, the city’s only defense is the first amendment doesn’t apply because it is an advisory board with zero actual power. That might work, but it would be dumb in my view for the city to even try to defend itself.

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Avatar Geoff Page May 21, 2019 at 4:28 pm

Interesting, ZZ. I just wanted to be sure we were talking about the same thing when I said what I did about platforms, sometimes semantics get in the way. I’m curious what the city will do. That council policy has been around for many years and one would think that it was vetted by the city attorney when it was created. Attorneys make mistakes of course, but I have to think they have a response for this. If not, they need to do a complete review of that policy.

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Frank Gormlie Frank Gormlie May 21, 2019 at 1:48 pm

I think the point is, if a bylaw is wrong, change it.

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Avatar Geoff Page May 21, 2019 at 2:10 pm

Exactly, Frank. There was a complaint against Sevrens in the 2018 election for the same thing. Rather than follow the by-laws and working to change them, Sevrens just decided to ignore what he did not like and do the same thing again this year.

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Avatar Bob Goldyn May 21, 2019 at 4:47 pm

Council policy provides a shell for the bylaws with certain sections that can be edited and others that can not. The slate prohibition statement is part of the bylaws shell for all planning groups and is an item that can not be edited or changed. Each planning board is required to comply with this regulation until the city makes a general and universal change in council policy.

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Avatar kh May 23, 2019 at 12:31 pm

Mr. Goldyn,

Here are city documents providing explanation on the slates restriction. Lack of basis was one of Severin’s claims in the lawsuit.

https://www.sandiego.gov/sites/default/files/legacy/planning/community/pdf/cow/adminguide60024.pdf

“It is also important to maintain as much objectivity surrounding the committee elections as possible. For example, it is wise to detach any members competing for elected seats from the process. Experience has shown that when candidates running for seats, especially during re-election, are portrayed as being part of a “slate of candidates”, a perception arises that a planning committee is not interested in seeking new members or diverse viewpoints, or that the outcome of the election is pre-determined. This, of course, is contrary to the objectives of Council Policy 600-24. ”

https://www.sandiego.gov/sites/default/files/legacy/planning/community/pdf/cpg/adminguiderev020906.pdf

“Impartiality and Objectivity
It is important to maintain as much objectivity surrounding the recognized community planning group elections as possible. For example, it is wise to detach any members competing for elected seats from the process. Experience has shown that when candidates running for seats, especially during re-election, are portrayed as being part of a “slate of candidates”, a perception arises that a planning group is not interested in seeking new members or diverse viewpoints, or that the outcome of the election is pre-determined. This, of course, is contrary to the objectives of Council Policy 600-24. Planning groups should not use the word “slate” for the
elections since it implies a predetermination or preference for certain candidates by the Elections Committee.”

It looks like this narrative went away with the 2010 Admin Guidelines, but the foundation has been established and the bylaw provisions remain in place.

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Avatar Pete R May 21, 2019 at 5:23 pm

Filing a lawsuit against a bunch of volunteers, who also happen to be your neighbors? What a class act.

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Avatar zz May 21, 2019 at 7:19 pm

Here’s the info on the filing of the suit. It was actually filed in the 16th, possibly after 5pm resulting in it being “entered” the next day:

“Filed: 05/16/2019
Entered: 05/17/2019

Docket Text: COMPLAINT with Jury Demand against City of San Diego, Peninsula Community Planning Board of the City of San Diego ( Filing fee $ 400 receipt number 0974-12520967.), filed by Donald E. Sevrens. (Attachments: # (1) Civil Cover Sheet)

The new case number is 3:19-cv-00923-BEN-WVG. Judge Roger T. Benitez and Magistrate Judge William V. Gallo are assigned to the case.”

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Avatar Geoff Page May 22, 2019 at 9:28 am

The copy that Sevrens passed out at the meeting did not have a court stamp on it. If he filed it before the meeting, I wonder why he didn’t have stamped copies to pass out? Perhaps he wanted to give the impression that it was a cocked gun to be fired only in the event that the board voted to remove him for the slate. He never let on that he had already fired the gun. Makes it even odder, why spend money to file a suit before anything had happened? As it turned out, it was a waste of the $400 filing fee and whatever he paid the attorney to write the complaint.

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Avatar kh May 23, 2019 at 12:39 pm

Also a group that rebooted their election based on slates by outside parties, and other alleged violations:

https://www.sandiegoreader.com/news/2018/apr/23/stringers-barrio-logan-election-do-over/

Minutes:
https://www.sandiego.gov/sites/default/files/180404minutesbl.pdf

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Avatar Mat Wahlstrom May 22, 2019 at 12:59 pm

Interesting coincidence. I have an open request (not lawsuit) with the City Attorney for a follow-up determination over this same wording regarding slates, as it arose during the Uptown Planners election in March. In that situation, there was and is a slate by Rise-Up-Town.com, a partisan organization that canvassed votes on social media and in person, that swept all seven open seats and continues to solicit new candidates for future elections.

This request regards the response I received on 5/13 from the Planning Department: “As I mentioned previously, the provisions of Council Policy 600-24 do not apply to non-planning group members including candidates running for a seat. Article V Section 3 applies to the CPG and not to candidates for office. Candidates are not covered for several reasons, including that they may not win and they have not taken the Community Orientation Workshop training.”

As I have maintained, “Article V concerns ‘Elections’ and Section 3 specifically stipulates the terms under which they are to be conducted: ‘Development and promotion of ‘slates’ _of candidates_ is contrary to the intent of Council Policy 600-24 and is not allowed.’ So the question is about _qualification for election_. It would be not only nonsensical but contrary to the purpose of 600-24 to interpret it as only applying to the behavior of members once elected and/or in office.”

So back to this article, I look forward to seeing how the City responds, as this lawsuit won’t allow them to simply punt on this issue as they have with me.

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Avatar Geoff Page May 22, 2019 at 1:22 pm

Very interesting, Mat, thanks for sharing this. I put absolutely no faith in anything the Planning Department says. This argument that the by-laws do not apply to candidates makes no sense to me. The requirements to run for a board seat are in the by-laws, if the by-laws don’t apply to candidates then the requirements don’t apply. If the requirements do apply, then so does the entirety of the by-laws. There is nothing in them, or in Council Policy 600-24, that specifically says the by-laws do not apply to candidates or anything that says this does apply and that doesn’t. In the absence of specific language along these lines, the conclusion is that if anything applies to candidates then it all does. The only reason for the COW training is for a board member to be indemnified by the city, any member who does not attend the workshop is at risk until then do.

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Avatar Mat Wahlstrom May 22, 2019 at 1:52 pm

Unfortunately most every experience dealing with them confirms a low opinion of the Planning Department. In addition to this issue, they’ve dismissed complaints of elected members engaging in discrimination (supposedly because although elected they hadn’t had a “COW” yet), and failures of fully invested board members to recuse on blatant conflicts of interest (supposedly because it was their employer who benefited not they personally). Each time there’s any question of a legal nature, the Planning Department and the City Attorney engage in a “Who’s on First?” routine, carefully choreographed to absolve them of accountability while wearing the questioner out. The sad truth is the City only does what it’s supposed to when a lawsuit compels them.

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Avatar Geoff Page May 22, 2019 at 2:20 pm

I dealt with them a lot when I was chair of the PCPB. The fallback for both the Planning Department and the City Attorney was, and still is, that neither has jurisdiction over the planning boards and that they are self-governing. It is a waste of time to even talk to the Planning Department.

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Avatar Bobo May 22, 2019 at 1:50 pm

…thus my offense and objection to Slates:. Rrise-up town .com. A PARTISAN group that swept the elections and now control that board and all land use recommendations to the CPD. Are they developers? Are they NIMBYS? Either way, they most likely do not reflect the values of the neighborhood and have a clear agenda. AND make it impossible for an individual neighbor to participate on the board and represent their area.

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Avatar Geoff Page May 22, 2019 at 2:23 pm

This is one of the reasons for a push to have members elected from districts within the planning board areas, as OB does, so there is better representation. This is definitely needed in Point Loma.

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Avatar kh May 23, 2019 at 12:03 pm

Severins has a constitutional right to run a slate and to ignore the board’s bylaws. I have a constitutional right to tell my boss to f__ off. PCPB also has the right to take action against him for it, including dismissal. That’s how free speech works. I learned that in the 4th grade.

Severins does NOT have a constitutional right to serve on the PCPB.

I spoke with him after the meeting and told him he needs to take his beef to the city. That his suit against PCPB is without merit and a disgrace to the volunteers everywhere. I’d vote to dismiss him purely on that grounds alone.

The PCPB MUST follow their bylaws prescribed by the city in order to maintain their indemnity by the City Attorney’s office against nonsense such as this.

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Avatar Geoff Page May 23, 2019 at 12:40 pm

Well said, kh, I agree with all of that. This is not his first time running to the city and the city attorney. He is, shall we say, a bit disruptive and appears to enjoy being that way.

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Avatar Rufus May 24, 2019 at 7:17 am

I’m confused. Is this an elementary school’s student council or a community planning board?

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