Local Government 101

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Atherton is a "General Law" community

In California, there are two kinds of cities: charter cities and general law cities. Of the 478 cities in the state, 125 are charter cities and 353, including Atherton, are general law. A general law city is bound by the State's general laws, regardless of whether the subject concerns a "municipal affairs." General law cities are organized as provided for in the California Government Code. For example, the Government Code authorizes general law cities be governed by a city council of five members, a city clerk, a city treasurer, a police chief and any subordinate officers or employees was required by law. Some Government Code provisions apply only to general law cities and others apply generally to both. Many of the recent State laws have been clear that the State is taking a more active role in municipal affairs and is promulgating legislative requirements that apply to both types of cities. By and large, cities that are organized under the general laws of the State are subject to all constraints imposed by the State, even those applicable to municipal affairs. 

There is authority provided in the State Constitution to organize as a charter city. Charters are adopted by cities where special conditions create needs that can’t be adequately met by the general laws. Since the powers of a charter city are not restricted to only those outlined in the general state municipal law, a city can adopt a charter and custom-tailor its organization and elective offices to provide for unique local conditions and needs. A charter can only be adopted and /or changed by a majority vote of city residents -- not by a vote of the city council. Citizens can establish the terms and number of council members and impose other limitations upon their city council through a charter provision. Charter cities are typically larger cities.

There is no exact definition of "municipal affairs" and what is deemed a municipal affair changes. A matter is of general statewide concern rather than only a municipal affair when its impact is primarily regional, even if its impacts are not truly statewide. At issue is preemption. If there is no conflict between state and local law, generally local law will prevail. However, if State law (or Federal law) occupies the field, local law is pre-empted. As a general law jurisdiction, the Town has only those corporate powers expressly conferred on it by the State Constitution or Legislature.

Atherton uses the “Council-Manager” form of government

Atherton operates under the ‘council-manager’ form of government, meaning that the Council appoints the City Manager, who is then responsible for the administrative and staff-appointment duties. Under this form of government, power is concentrated in the elected council, which hires a professional administrator to implement its policies. City Managers are typically highly-trained and experienced individuals that serve at the pleasure of the elected governing body. City Managers have general responsibility for preparing the budget, directing day-to-day operations, hiring, firing and disciplining personnel, and serving as the City Council's chief policy advisor. The City Manager's profession subscribes to a Code of Ethics that defines the principles of local government management and set the standard for excellence. Leadership is committed to equity, transparency, integrity, stewardship of public resources, political neutrality, and a respect for the rights and responsibility of elected officials and residents.  

The City Council’s Policy-Making Role

The City Council consists of five members, elected by the voters of the Town to staggered terms of four years each. Councilmembers do not receive compensation. The City Council meets twice per month. The 1st Wednesday, the Council meets for a Study Session @ 4 pm. Study Sessions are Special Meetings of the City Council and are usually limited to 2 hours in duration and limited topics. The format is more informal and allows the Council to have more of a discussion around issues. The 3rd Wednesday of each month the Council meets for its Regular Meeting @ 6 pm. Regular Meetings are more formalized and this is where the Council will regularly take action on particular issues. The Council may call additional special meetings as required.

The City Council is the only body elected directly by the residents. The City Council is the primary legislative body of the Town. The City Council approves the budget, and adopts local laws and regulations. The Council appoints all members to Town Committees and the Planning Commission. The Council focuses on the community's big-picture goals. The City Manager focuses on the how to accomplish. 

The Council/City Manager/Staff relationship

The City Council develops broad policy priorities which are updated annually. Each priority contains a range of specific programs, projects, policies, or processes which the City Manager, Department Directors, and staff use in developing the actual detailed work programs for the various departments. In short, the Council develops policy, and the City Manager and staff implement those policies on a day-to-day basis.

In addition to the two public Council meetings every month, the City Manager meets weekly with each member of the City Council, individually or with up to 2 members as part of any Ad Hoc or Standing Committee formed on an as-needed basis. Through these meetings and other contact with Council members, the City Manager is distills policy direction into action for the Town. However, the City Manager takes formal direction from the entirety of the City Council at a public meeting and not one or more particular members. 

The City Manager manages the department directors, who in turn supervise the managers within that department. The City Manager enjoys a great deal of authority which allows staff to make decisions at every level of the organization. This provides the ability to react quickly to changing circumstances, to revise our priorities as needed, and to best address resident needs. That said, the City Manager is also governed by the authority granted to them by the City Council and is typically limited in spending authority and approval authority by local and State law. 

The City Manager meets weekly with the entire group of department directors, and individually on an as-needed basis. The purpose of these meetings is to provide direction and guidance to the directors in carrying out the policies of the Council.

What's the Difference? Public Meeting, Public Hearing, Regular Meeting, Special Meeting, Closed Session...

The California Brown Act requires that meetings of "legislative bodies" of local public agencies be open and public. More on the "transparency" part of the Brown Act below; but one of the key parts of the Brown Act is what constitutes a "legislative body". For the purposes of the Law, a legislative body is the governing body and any other local body created by that body. For example, in addition to the City Council, other Atherton "legislative bodies" are the Planning Commission, Town Committees, and Standing Committees of the City Council. Standing Committees are committees that have a continuing subject matter; or have a fixed meeting schedule; or is create by an action of the City Council; or meets with members of the public who become part of their committee. Ad Hoc Subcommittees of the City Council or other legislative bodies are not legislative bodies for the purposes of the Brown Act and open meeting laws. Ad Hoc Subcommittee have a discrete defined task, are of limited duration, and constitute less than a quorum of the body. 

Regular Meetings are meetings that are set by formal action of the Council. The City Council adopts an Ordinance that sets the regular meeting location (80 Fair Oaks Lane) and adopts a Resolution that prescribes the time and day of Regular Meetings (6 pm on 3rd Wednesdays). Regular Meetings are typically where normal business of the City Council is transacted and the Brown Act requires that Agendas for these meetings be published (online and at City Hall) 72 hours in advance of the meeting. 

Special Meetings are meetings that are called by the Council (or a subset thereof) for special discussions. The City Council meets for its Study Session on the 1st Wednesday of each month at 4 pm. Because these are not Regular Meetings, they are called as special meetings. The Council and public are limited to those items that are noticed on the Special Meeting Agenda. The Brown Act requires that Agendas for these meetings be published 24 hours in advance of the meeting. 

Closed Sessions are provided for under the Brown Act and allow the City Council to meet in private; but, the items for which the Council may meet are narrowly tailored under the law. The Council may meet in Closed Session to discuss litigation (pending, threatened, or initiation), labor negotiations, real estate negotiations, or specific public employment issues. Closed Sessions are either fully open or fully closed; there is nothing in between. If members of the general public are allowed to attend Closed Sessions, the entire meeting must be made open to the public. Therefore, Closed Sessions generally involve only the members of the Council, City Attorney and associated counsel, management, support staff, and consultants necessary for the considered item. 

A Public Meeting is any of the above. At all of the aforementioned meetings, the City Council must allow for public comment. In the instance of Regular Meetings, the Public Comment period can be for any item on or off the Agenda. For Special Meetings and Closed Sessions, the Public Comment period is solely for items that are on the Agenda. 

The difference between a Public Meeting and a Public Hearing is that Public Hearings are related to specific legislative issues, such as zoning changes, use permits, and other quasi-judicial decisions. Public Hearings are required to have specific and timely notice that is prescribed differently than a specific meeting. For example, as noted above, the agenda for a regular meeting is required to be published 72 hours in advance. However, if there is a Public Hearing on that agenda, the information regarding the item under the Public Hearing may have specific additional noticing requirements. In many cases this may involve publishing in a newspaper, mailed notice, advance availability of item details, and more. This is only required for public hearing items; not for all regular items on agendas. 

The California Brown Act

The California Brown Act covers members of virtually every type of local government body, elected or appointed, decision-making or advisory. As such, it not only covers the City Council, but also every Town Committee and the Planning Commission. The express purpose of the Brown Act is to assure that local government conducts the public's business openly and publicly. The Brown Act applies to meetings among a majority of the members of multi-member bodies (a quorum). Meetings are defined broadly and are not just limited to in person meetings. Collective decision-making or discussion that occurs in serial, electronically or in person are all covered by the Brown Act. It does not, however, apply to independent conduct of individual decision-makers and does not apply to ceremonial, educational, and other gatherings so long as a majority of the members of a body do not discuss issues related to their local agency's business. Transparency is a foundational value for ethical government practices. The Brown Act is a floor not a ceiling, for conduct.

Violations of the Brown Act can lead to invalidation of an agency's action, payment of a challenger's attorney's fees, public embarrassment, even criminal prosecution. The Brown Act cals for openness in local government, yet should also allow government to function responsibly and productively. The ability of an elected official to confer with constituents or colleagues must be balanced against the important public policy prohibiting decision-making outside of public meetings. 

The City Council as well as all Town Committees and the Planning Commission must abide by the Brown Act. A quorum of such bodies cannot make a decision, deliberate about a policy, or discuss Town business outside of a publicly noticed meeting of the legislative body. This effectively means that Councilmembers (and Commission or Committee members) cannot engage in private electronic communications about Town business where a quorum of the body is engaged (even in serial). Members cannot meet as a Subcommittee (2 members) and then discuss the same issues with a 3rd member. Members cannot meet informally one by one with members of the public and then use that member of the public to carry information amongst the three. 

In short, the Brown Act prohibits local government from forming decisions, deliberating or discussing Town business in private. It also means that in order to accommodate this transparency, government often moves slower than the private sector as the Council must discuss the issues in public and may, for the first time, be hearing perspectives from their colleagues at the same time. Decisions often end up taking more than one meeting to reach consensus. 

As residents, it is important to stay engaged and aware by signing up for any electronic communications or  notifications, and regularly reviewing items on the City Council agenda. Regular meeting agendas must be posted at least 72 hours before the meeting in a location that is freely accessible to the public. Agendas must also be posted on the Town's website at least 72 hours before the meeting. Special meeting notice provisions are 24 hours. With narrow limited exception for emergencies, no discussion by the City Council (or legislative body) can occur and no action can be taken about any item that is not specifically appearing on the posted agenda.    

What is a General Plan?

The General Plan is a jurisdiction's basic planning document. It provides a blueprint for development of the community and is one of the mechanisms by which the competing interests and needs of the citizenry are balanced. The General Plan, by State law, addresses several aspects of development: housing, traffic, natural resources, open space, safety, land use and public facilities. Before 1971, State law provided that General Plans were "advisory" documents. After 1971, the Government Code was expanded to require that all land use approvals be consistent with the General Plan. When the Planning Commission reviews and approves land use applications, the Commission must make a determination of consistency with the General Plan as part of any findings of approval. Prior to 2012, the Town had a Planning Commission and a separate General Plan Committee. The ongoing role of the General Plan Committee was largely to review land use issues for appropriateness and consistency with the General Plan. In nearly all communities, the role of the General Plan Committee and Planning Commission are concurrent. In 2012, the City Council disbanded the General Plan Committee and shifted its role and responsibility to the Planning Commission. 

There are seven mandatory "elements" of the General Plan: Land Use, Circulation, Housing, Conservation, Open Space, Noise and Safety. Over the years, some of these elements have been expanded and now include some aspect of climate change and other more current issue. Often, Open Space and Conservation Elements are combined. An update to any of these "elements" is considered a General Plan Update. While some of the elements are updated periodically by jurisdictions as they evolve and are not required by State law to be updated on any set cycle (such as the Noise Element or Conservation Element), some are required to be updated at specific intervals. For example, the State requires that jurisdictions update their Housing Element every 8 years. Independent updates to other elements, such as the Safety Element, are triggered by new State legislation. 

The Town's last comprehensive update to the General Plan was in 2019. The 2019 update incorporated updates to every element EXCEPT the Housing Element. At the time, the Housing Element had been independently updated pursuant to the State's mandatory Housing Element Update schedule in 2007 and again in 2014. Prior to the 2019 update, the General Plan was last updated in 2002. The 2019 update occurred over the course of about 18 months during 2018 and 2019. Staff prepared administrative drafts of the updated pieces of the General Plan from time to time to the Planning Commission, one Public Workshop was held on February 23, 2019, there was a required California Environmental Quality Act (CEQA) review and a City Council Public Hearing and adoption on January 15, 2020. When the Housing Element is updated (2002, 2007, 2014, 2022, etc.), there are typically corresponding updates that trickle down to other elements of the General Plan, such as the Land Use Element or the Circulation Element. These are updated, as needed, based on the adopted changes in the Housing Element. 

What is CEQA?

The California Environmental Quality Act (CEQA) requires government agencies to consider the environmental consequences of their actions before approving plans and policies or committing to a course of action on a project. In enacting CEQA, the State Legislature explained that the process is intended to 1) inform governmental decision makers and the public about the potential environmental impacts of activities; 2) identify ways that those impacts can be avoided or reduced; 3) prevent significant and avoidable damage by requiring changes; and 4) disclosing to the public why the project was approved if that project would have impacts. CEQA compliance must occur before a public agency approves a project. 

The hiccup in CEQA is - what is a project? CEQA defines a project as:

"An activity that may cause either a direct physical change in the environment, or a reasonably foreseeable indirect change in the environment and that is any of the following:

  • An activity directly undertaken by any public agency;
  • An activity undertaken by a person that is supported, in whole or in part, through contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies; 
  • An activity that involves the issuance to a person of a lease, permit, license, certificate or other entitlement for use by one or more public agencies."

But, as with many sweeping governmental requirements, there are categorical and statutory exemptions. Statutory exemptions cover a wide range of activities, some limited to particular types of projects and some having more widespread application. Categorical exemptions are classes of projects that the State has determined do not have a significant effect on the environment. For example, several statutory exemptions provide for limited review for projects that are "consistent with an adopted General Plan, or community plan, or specific plan, or local zoning ordinance". This is why improvements to a single family residential development are usually exempt from CEQA review. The project in question must qualify for statutory or categorical exemption without modification. In other words, the agency cannot adopt mitigation measures to make a project categorically exempt. CEQA does not have a process for making an exemption determination; however, if the agency's determination is that a project is exempt, the public record must show that the project does indeed fall within the exemption claimed. 

If a project is not categorically or statutorily exempt from CEQA, additional work must be done. The public agency must undertake an ""initial study" - a preliminary analysis to determine whether a full Environmental Impact Report (EIR) must be prepared or whether the agency can adopt a Negative Declaration or Mitigated Negative Declaration. A Negative Declaration is a determination that after the study, there are no significant impacts. No further analysis or mitigation is required. A Mitigated Negative Declaration is a determination that after the study there are conditions that can be added to the project that would mitigate potential environmental impacts and that after the project is revised with the conditions, there are no impacts. 

An agency cannot adopt a Negative Declaration or a Mitigated Negative Declaration and must instead prepare a full EIR if it can be fairly argued on the basis of substantial evidence that the project may have a significant environmental impact. Arguments, speculation, inaccurate information, unsubstantiated opinion, or social or economic impacts unrelated to physical changes to the environment do not constitute substantial evidence under State law. 

What's the difference between an Ordinance and a Resolution?

In the absence of a statutory provision otherwise, a legislative act may be by resolution or ordinance. An ordinance, in its primary and usual sense means "local law." It prescribes a rule of conduct prospective in operation, applicable generally to persons and things subject to the jurisdiction of the Town. A "resolution" denotes something less formal. It is often the mere expression of the opinion of the legislative body concerning some administrative matter for the disposition of which it provides. Resolutions are often used to express support or approve general direction. 

A resolution is usually effective upon adoption. An ordinance, by statute, typically requires a formal public hearing for what's called an "Introduction for 1st Reading" and then a second public meeting for approval of what's called a "2nd Reading and Adoption." Following adoption, an ordinance is typically effective 30-days later. Ordinances may only be passed at a regular meeting or at an adjourned regular meeting (except for urgency ordinances). If an ordinance, other than an urgency ordinance, is altered after introduction, it may be passed only at a regular or an adjourned regular meeting held at least 5 days after alteration. 

Violations of an ordinance are a misdemeanor, unless by ordinance, it is made an infraction. 

How do items get on the Council Agenda?

The City Manager, in consultation with the Mayor and/or the City Staff, schedules items for City Council agendas. Other Councilmembers, as well as members of the public, may also request that certain topics be placed on the agenda; however, the agenda is ultimately the responsibility of the City Manager, and he or she is not required to add items simply because a request has been made. Because of the posting requirements of the Brown Act, requests for additions to the agenda must be made at least 72 hours prior to a meeting. 

Prior to each Regular or Special Meeting, the City Clerk compiles an agenda packet which contains the agenda, all staff reports, communications, resolutions, ordinances, and other relevant supporting materials. Agenda packets for City Council meetings are usually available at City Hall at least three days before each scheduled meeting. In addition, the Brown Act requires that the City Clerk print and post the agendas at least 72 hours before Regular Meetings and 24 hours before Special Meetings. 

The City Clerk’s Office posts the City Council agenda at the following locations: (a) Atherton Town Offices; (b) Atherton Branch Library; (c) Town Council Chambers; (d) on the Town’s website and usually through the website's online newsflash. The agenda specifies the time, date, and location of the meeting and contains a brief description and proposed action of each item of business to be transacted or discussed at the meeting. 

Any citizen may submit written comments to the Council through the City Clerk or City Manager’s office or to the City Council @ council@ci.atherton.ca.us.  Council will receive copies in the agenda packet, provided such comments are received before the scheduled meeting. Written comments can be submitted to the City Clerk or City Manager’s office up to the time of the meeting and distributed to the Council and the public at the meeting. 

Are Councilmembers required to go to training?

Members of the City Council are not required to be trained prior to reaching elected office. However, once in elected office, State law requires that Councilmembers complete two courses of training: Ethics Training (Assembly Bill 1234) and Sexual Harassment Prevention Training and Education (Assembly Bill 1661). Ethics training is required to be renewed every two years. Sexual Harassment Prevention Training is required to be renewed only if the members receive compensation as a Councilmember. Atherton Councilmembers do not receive compensation for their service as elected officials. Beyond those two required trainings, there are no pre-requisite or post-election requirements to serve as a member of the City Council (other than those prescribed by the Elections Code related to age, residency, and registration to vote).  

While in office, Councilmembers do attend meetings, educational conferences, orientation meetings, and other local, regional, and State meetings that provide the Councilmember with a wide range of information and data on a wide range of governmental topics. Some of these meetings are learning experiences and some are meetings where decisions are required.