body,date,page,text,path
OpenGovernmentCommission,2012-05-07,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY-MAY 7,2012--7:00 P.M.
The meeting was convened at 7:07 p.m.
ROLL CALL -
Present:
Commissioners Jensen, Oddie, Peterson, Spanier,
and Wong - 5.
[Note: Commissioner Jensen arrived at 7:15 p.m.]
Absent:
None.
ORAL COMMUNICATIONS, NON-AGENDA
None.
AGENDA ITEMS
3-A. Approve Commission By-Laws.
The City Clerk gave a brief presentation.
Commissioner Spanier stated that she envisions the Commission as a body that would
respond to complaints; the purpose of the Commission would be to develop an
infrastructure that would include goals; that she would like to understand the
overwhelming thrust of the Commission.
The City Clerk stated the Commission's purpose was taken from the Sunshine
Ordinance; the Sunshine Ordinance established the role of the Commission.
Commissioner Spanier stated the Commission has quite a few duties and
responsibilities; regular meetings will be held, goals will be set, and the Commission will
be somewhat involved in a lot of other committee work.
The City Clerk stated the Commission is required to meet semi-annually and as
complaints are filed; the Commission would tally up complaints and report back to
Council; the Commission would review how the ordinance is working.
In response to Commissioner Oddie's inquiry regarding review of notices, the City
Attorney stated the Commission could look back in six months to ensure that staff
is
meeting the Sunshine Ordinance requirements; review would not be needed after every
meeting.
The City Clerk stated a particular section of the Sunshine Ordinance addresses
language and timing of particular notices; the Commission would review the boiler plate
format.
Meeting of the
Open Government Commission
1
May 7, 2012",OpenGovernmentCommission/2012-05-07.pdf
OpenGovernmentCommission,2012-05-07,2,"Commissioner Peterson inquired whether the Commission would need to review a
complaint the following Monday after a complaint has been brought to the Commission's
attention, to which the City Clerk responded in the negative; stated the matter would
need to be reviewed within thirty days.
Commissioner Peterson suggested providing some type of notice that the Open
Government Commission exists.
The City Attorney stated that the Brown Act requires the Commission to discuss each
item as agendized; staff is requesting the Commission to adopt he By-laws; after
adoption of the By-laws, a Chair needs to be assigned; then, the Commission would be
able to have a complete discussion on complaint procedures.
In response to Commissioner Peterson's inquiry, the City Attorney stated special
meetings can be scheduled; regular meetings are part of the ordinance and would occur
twice a year; if additional meetings are necessary there is a provision for special
meetings.
Commissioner Jensen inquired whether Commissioner Peterson is concerned about
meetings not being scheduled.
Commissioner Peterson responded his intent is to make sure it is easy for people to be
involved with the government.
Commissioner Jensen inquired whether scheduling regular, semi-annual meetings
should be noted in the By-laws; suggested that the regular meetings be held in March
and September; stated special meetings would be scheduled whenever a complaint is
filed.
Commissioner Jenson moved approval of having regular meetings scheduled in March
and September. [Note: September was changed to October due to the Labor Day
holiday.]
Commissioner Wong seconded the motion, which carried by unanimous voice vote - 5.
Commissioner Jensen moved approval of the Commission By-laws.
Commissioner Wong seconded the motion, which carried by unanimous voice vote - 5.
Commissioner Spanier stated the Commission seems to have a passive and active role.
Commissioner Peterson stated that he has a concern with the regular meeting
schedule; the Commission is scheduled for two meetings unless there is an alleged
complaint.
Meeting of the
Open Government Commission
2
May 7, 2012",OpenGovernmentCommission/2012-05-07.pdf
OpenGovernmentCommission,2012-05-07,3,"Commissioner Spanier stated that she understood that the Commission would be
meeting once per month.
The City Clerk stated the Commission would meet the first Monday of the month semi-
annually and as needed.
In response to Commissioner Oddie's inquiry, the City Clerk stated the public comment
period is limited to three minutes.
3-B. Select Chair and Vice Chair.
Commissioner Wong moved approval of nominating Commissioner Oddie as Chair.
Commissioner Jensen seconded the motion, which carried by unanimous voice vote -
5.
Commissioner Peterson moved approval of nominating Commissioner Jensen as Vice
Chair.
Commissioner Wong seconded the motion, which carried by unanimous voice vote - 5.
3-C. Review the Form and Process for Filing Sunshine Ordinance Complaints.
The City Clerk gave a brief presentation.
The City Attorney noted that she has provided a substitute page which is the last page
just before the Frequently Asked Questions section; stated the last item regarding
individual complaints outlined in Item 3 has been changed to: ""a person who makes
more than two complaints in a twelve-month period determined by the Commission to
be unfounded is prohibited from making a complaint for the next five years;"" stated
everything in the packet is part of the Ordinance.
Chair Oddie inquired whether the Commission has the authority to change the process.
The City Attorney responded the Commission cannot change what is in the ordinance
but can be more specific.
Commissioner Peterson inquired whether Item G-3 is part of the Ordinance, to which
the City Attorney responded in the affirmative.
Vice Chair Jenson stated complaints would be filed with the City Clerk; inquired whether
the City Clerk would be responsible to meet the thirty-day deadline.
The City Clerk responded that she would count out thirty days upon receipt of a
complaint to see whether the complaint could be heard on the first Monday with proper
seven day noticing; if not, a special meeting could be scheduled.
Meeting of the
Open Government Commission
3
May 7, 2012",OpenGovernmentCommission/2012-05-07.pdf
OpenGovernmentCommission,2012-05-07,4,"Commissioner Peterson stated a website [email address] would be set up in the future
for filing a complaint directly with Chair Oddie also.
Vice Chair Jensen inquired whether someone might file a complaint on the website and
not with the City Clerk's office.
The City Clerk responded a generic email address is being set up; stated the email
would go the Chair and staff; complaints can also be filed via FAX or walk-ins; she
would be happy to accept complaints in any format; the City Manager's office is in the
process of setting up Boards and Commissions emails; the matter could be reviewed
later.
Chair Oddie stated that he thinks a complaint should be emailed to everyone [on the
Commission].
The City Clerk stated that she could inform all Commissioners about complaints
received and would contact the Commissioners to scheduling a meeting.
Vice Chair Jensen inquired about the Commission's responsibility to address Sunshine
Ordinance complaints with a quick turnaround time.
The City Clerk noted a complaint could be filed before a City Council meeting even
occurs because Council agendas are put out twelve days before a Council meeting is
held; that she would calculate the thirty days and try to have the complaint addressed
on the first Monday.
Chair Oddie stated having all Commissioners receive a copy of the complaint would
work better; other Commissioners might disagree that the Chair thinks that an issue is
not worth holding a meeting.
Commissioner Peterson stated what one person might consider important, another
might not.
The City Attorney stated complaints cannot be discussed unless at a public meeting;
complaints would be taken seriously.
In response to Commissioner Spanier, the City Attorney stated once a complaint is
received, the City Clerk will set a meeting within the thirty day timeframe; there is no
need for the Commissioners to discuss the matter prior to the meeting.
Commissioner Peterson inquired whether it would be the sole determination of the
Commission to determine whether the complaint is a violation, to which the City Clerk
responded in the affirmative.
Vice Chair Jensen stated perhaps the complaint process should include an explanation
Meeting of the
Open Government Commission
4
May 7, 2012",OpenGovernmentCommission/2012-05-07.pdf
OpenGovernmentCommission,2012-05-07,5,"that complaints the Commission determines have no merit would be determined to be
unfounded and also what happens if a complaint is unfounded.
The City Attorney stated a determination is needed when a complaint comes before the
Commission; the Commission determination is either the complaint is legitimate or the
complaint is unfounded.
Vice Chair Jensen stated the determination should have some provision stating that the
complaint, while not a violation, has been either unfounded or was a legitimate
complaint.
The City Attorney stated that she would be happy to add said provision.
Chair Oddie stated if the Commission finds there is not violation, there has to be a way
to indicate the Commission's finding.
The City Clerk noted there would be a learning curve.
The City Attorney stated the Sunshine Ordinance complaint form requires picking an
alleged violation of public records or a public meeting and the section of the Sunshine
Ordinance violated.
Vice Chair Jensen moved approval of the form and process with the caveat to review
issues at the next meeting.
Commissioner Wong second the motion, which carried by unanimous voice vote - 5.
3-D. Set Next Meeting.
Since the first Monday is Labor Day, Commissioner Jensen moved approval of setting
October 1, 2012 as the next meeting date and amending the By-laws to October.
Commissioner Wong seconded the motion, which carried by unanimous voice vote - 5.
COMMISSIONER COMMUNICATIONS
Commissioner Spanier reiterated the proactive role of the Commission.
Commissioner Peterson discussed the need for open transparency and having key
issues addressed at regular meetings.
Commissioner Spanier stated any process has a certain structure to ensure that things
happen.
Commissioner Peterson stated getting better feedback on what people want would
result in improvements.
Meeting of the
Open Government Commission
5
May 7, 2012",OpenGovernmentCommission/2012-05-07.pdf
OpenGovernmentCommission,2012-05-07,6,"Commissioner Wong stated everyone wants open government and wants to be heard;
however, the confines have to be right.
Chair Oddie noted the Commission's position is not to second guess a judge.
Commissioner Peterson stated the Commission should do everything possible to
ensure the process is easy and simple.
ADJOURNMENT
There being no further business, Chair Oddie adjourned the meeting at 8:19 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
6
May 7, 2012",OpenGovernmentCommission/2012-05-07.pdf
OpenGovernmentCommission,2012-10-01,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION
MONDAY
OCTOBER 1, 2012 - - -
7:00 P.M.
The meeting was convened at 7:00 p.m.
ROLL CALL -
Present:
Commissioners Jensen, Oddie, Peterson, Spanier,
and Wong - 5.
Absent:
None.
ORAL COMMUNICATIONS, NON-AGENDA
2-A. Matthew James Fitzgerald, Alameda, introduced himself.
AGENDA ITEMS
3-A.
Approve the May 7, 2012 Meeting Minutes.
Commission Jensen moved approval of the minutes with correction to the spelling of her
last name on page 3.
Following Commissioner Spanier's comments, the City Clerk clarified that agendas
need to go out twelve days before a City Council meeting; stated a noticing complaint
could be filed before a meeting is held.
Commissioner Wong seconded the motion, which carried by unanimous voice vote - 5.
3-B. Receive a Status Update on the Public Records Index.
The City Clerk stated the Public Records Index is required by the Sunshine Ordinance
and would be posted on the City's website to inform people about the types of
documents maintained in each department; the Sunshine Ordinance requires that
documents be labeled ""Open,' ""Partially Open,"" or ""Has been determined Exempt;"" the
list has been drafted and staff is finalizing the documents' open or exempt status; the
Index would be brought back to the Commission once the status has been finalized.
Commissioner Jensen inquired whether current City website documents would need to
be categorized or just the new documents, to which the City Clerk responded all
documents would be categorized.
COMMISSIONER COMMUNICATIONS
4-A. Commissioner Peterson discussed the public's lack of awareness of the
Commission; stated the Sunshine Ordinance should be added to the Open Government
section on the website; future meeting dates should be on the calendar now; that he is
still concerned with not having Commissioners' email addresses on the website; he
Meeting of the
Open Government Commission
1
October 10, 2012",OpenGovernmentCommission/2012-10-01.pdf
OpenGovernmentCommission,2012-10-01,2,"does not believe public correspondence should go through the City Clerk's office but
should go directly to the Commission; not having Commissioners' email addresses on
the website by now is inexcusable and unacceptable; that he has addressed said
concern with the Deputy City Manager.
Commissioner Jensen concurred with Commissioner Peterson; urged adding
Commissioner e-mail addresses and fax number on letterhead; stated Commissioner
email addresses should be unique rather than using the City Clerk's office email
address to ensure continuity and privacy.
Chair Oddie noted the Commission's meeting date and minutes are listed on the City's
website.
Commissioner Petersen stated no one attended tonight's meeting; that he does not
understand why Commission meeting dates are only calendared on the City's website
shortly before a meeting.
The City Attorney stated Commissioner Petersen's concern [regarding email addresses]
would be restated to the Deputy City Manager; a major revamp of the City's website is
underway; domain names have been discussed; clarified that the City Clerk is the
repository of all City records and complaints need to go through the City Clerk's office.
Chair Oddie inquired whether any complaints have been filed, to which the City Clerk
responded in the negative; stated a meeting would have been scheduled if a complaint
was filed.
Commissioner Jensen requested that the City Clerk's email address be placed on the
next agenda.
The City Clerk stated all agendas contain said contact information.
ADJOURNMENT
Commissioner Wong moved approval of adjourning the meeting at 7:15 p.m.
Commissioner Jensen seconded the motion, which carried by unanimous voice vote -
5.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
2
October 10, 2012",OpenGovernmentCommission/2012-10-01.pdf
OpenGovernmentCommission,2013-02-04,1,"APPROVED
MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY FEBRUARY 4, 2013 7:00 P.M.
The meeting was convened at 7:00 p.m.
ROLL CALL -
Present:
Commissioners Aguliar, Cambra, Spanier, Tilos,
Wong - 5.
Absent:
None.
1-A.
Select Chair and Vice Chair.
Commissioner Spanier moved approval of nominating Commissioner Cambra as Chair.
Commissioner Wong seconded the motion, which carried by the following voice vote:
Ayes: Commissioners Aguliar, Spanier, Tilos, and Wong - 4. Abstention: Commissioner
Cambra - 1.
Commissioner Spanier moved approval of nominating Commissioner Aguliar as Vice
Chair.
Commissioner Tilos seconded the motion, which carried by unanimous voice vote - 5.
ORAL COMMUNICATIONS, NON-AGENDA
None.
AGENDA ITEMS
3-A. Approve the October 1, 2012 Meeting Minutes.
Commissioner Wong moved approval of the Minutes.
Commissioner Tilos seconded the motion, which carried by unanimous voice vote - 5.
3-B.
Review the City of Alameda Public Records Index.
The City Clerk gave a brief presentation.
Commissioner Tilos inquired about the City of Berkeley's numbering system.
The City Clerk responded Alameda would not use Berkeley's numbering system; the
Index would be customized for Alameda.
Meeting of the
Open Government Commission
February 4, 2013
1",OpenGovernmentCommission/2013-02-04.pdf
OpenGovernmentCommission,2013-02-04,2,"Vice Chair Aguliar inquired whether the list presented tonight would be on the City's
website.
The City Clerk responded the list would be posted on the website following City Council
review.
Chair Cambra stated having an Index which the average citizen can understand is
important; questioned whether the Index should be available in other languages; stated
there should be a brief explanation in layman's terms for why a document would be
""Exempt;"" some records, such as autopsies and real estate transactions, might require
a split status that changes from ""Exempt"" to ""Open;"" some documents are prevented
[from disclosure] by operation of law, such as personnel records; however, the ""Exempt""
status of some records might be discretionary, which should be reviewed.
Vice Chair Aguliar stated citations to Code Sections should be included.
The City Clerk stated said citations are required by the Sunshine Ordinance.
Commissioner Tilos suggested a hyperlink be created when the list is posted to the
website.
Chair Cambra inquired whether a hyperlink would incur increased costs, to which the
City Clerk responded additional staff time would be needed.
Chair Cambra stated everyone needs to be mindful of the possible burden of increased
staff time and costs.
The City Clerk stated there are going to be costs to develop a new Citywide digital
records program; staff is identifying funding; records management is a Council priority.
Commissioner Tilos noted translating the Index into other languages would be an extra
cost.
Chair Cambra stated Google has a language conversion tool; however, the City would
have an obligation to ensure translation is accurate.
Vice Chair Aguliar inquired whether Chair Cambra is suggesting that only the
explanation of the Index be translated into different languages.
Chair Cambra responded that he would want to know what the expense would be to
translate the entire Index.
Vice Chair Aguliar suggested only translating the explanation and not translating the
entire Index.
Chair Cambra stated that he would like staff to explore translation benefits and burdens.
Meeting of the
Open Government Commission
February 4, 2013
2",OpenGovernmentCommission/2013-02-04.pdf
OpenGovernmentCommission,2013-02-04,3,"Commissioner Tilos stated that he is leaning toward only having the Index in English.
Commissioner Spainer stated that she is not opposed to the idea [of multiple
languages], but she concurs with Commissioner Tilos.
In response to Commissioner Tilos's inquiry regarding documents with a split status, the
City Clerk stated one option would be to list a document as ""Partially Open"" since a
document could change from ""Exempt"" to ""Open.""
Chair Cambra questioned whether having two separate categories, such as: Real
Estate Transactions - Under Negotiation and Real Estate Transactions - Completed
might be clearer; further stated records prevented by operation of law could be
discussed at a later meeting.
Vice Chair Aguliar inquired whether Chair Cambra is suggesting that a record be
exempt as a matter of law versus discretionary.
Chair Cambra responded State law allows cities to exempt certain documents; however,
the City could chose to disclose some of said documents.
The Assistant City Attorney stated some cities keep arrest logs, some do not; normally,
some arrest related information is contemporaneous and would be subject to the Public
Records Act; only a certain amount of information would be released; however, health
related information cannot be disclosed.
Chair Cambra stated once the final Index is created, documents could be reviewed to
determine if the City wants to accept the ""Exempt"" status.
COMMISSIONER COMMUNICATIONS
4-A. Chair Cambra stated former Commissioner Petersen addressed having email sent
to someone other than City staff and staff was going to research the matter.
The
City
Clerk
stated
the
Commission's
email
address
is
pengovcomm@alamedaca.gov; emails would automatically forward to the Chair and
Vice Chair so the Chair and Vice Chair would receive any complaints; noted the
complaint form is on the website and a meeting has to be called within thirty days of
receiving a complaint.
Chair Cambra stated the concern was a complaint filed against the City Clerk's Office
should not go to the City Clerk only.
The City Clerk noted the Commission meets semi-annually; the next meeting will be in
October unless a complaint is filed or if staff presents the Index to the Commission.
Meeting of the
Open Government Commission
February 4, 2013
3",OpenGovernmentCommission/2013-02-04.pdf
OpenGovernmentCommission,2013-02-04,4,"ADJOURNMENT
There being no further business, Commissioner Wong moved adjournment at 7:30 p.m.
Commissioner Tilos seconded the motion, which carried by unanimous voice vote - 5.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
February 4, 2013
4",OpenGovernmentCommission/2013-02-04.pdf
OpenGovernmentCommission,2013-10-07,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY OCTOBER 7, 2013 - - 7:00 P.M.
[Note: Revisions made by Commissioner Dieter and approved by the Commission at the
February 2, 2015 meeting are reflected in bold and by strikethrough.]
Chair Cambra convened the meeting at 7:00 p.m.
ROLL CALL -
Present:
Commissioners Aguilar, Spanier, Tilos, and Chair
Cambra - 4.
Absent:
Commissioner Wong - 1.
ORAL COMMUNICATIONS, NON-AGENDA
None.
AGENDA ITEMS
3-A. Approve the February 4, 2013 Meeting Minutes.
Vice Chair Aguilar noted a correction on page 2, paragraph 3: ""Vice Mayor Aguilar""
should be ""Vice Chair Aguilar"". Assistant City Clerk Glidden noted the change.
Vice Chair Aguilar moved approval of the Minutes with the change.
Commissioner Tilos seconded the motion, which carried by unanimous voice vote - 4.
3-B. Status Update on the Public Records Index.
The Assistant City Clerk gave a brief presentation that stated that Alameda follows
Berkeley's Index; it has two parts; that everything will be kept for five years at a
minimum; disclosures would be added at a later date and will go to Council for
approval.
Assistant City Attorney Cohen stated there may be minor changes to the retention
schedule; the City Attorney's office will cross check the schedule to the Secretary of
State and City of Berkeley general guidelines.
Chair Cambra inquired if a column which indicates the status of items would be added
to the schedule, to which the Assistant City Clerk responded in the affirmative.
In response to Chair Cambra's inquiry, the Assistant City Attorney stated that adding the
statutory references is a work in progress and may not be complete before the matter is
brought to Council.
Meeting of the
Open Government Commission
February 4, 2013
1",OpenGovernmentCommission/2013-10-07.pdf
OpenGovernmentCommission,2013-10-07,2,"Chair Cambra inquired whether the Council would know what the document will look like
before it is posted on the City's website.
Assistant City Manager Nguyen responded in the affirmative; stated the key goal is to
have the policy and schedule completed with an ongoing update of the reference
categories.
The Assistant City Attorney added that the Open Government Commission will see the
document before it goes to Council.
Chair Cambra inquired if the schedule will include an index page, to which the Assistant
City Manager responded in the affirmative; stated the schedule will have a table of
contents.
The Assistant City Manager noted that Alameda's schedule is in line with other cities;
the key distinction is that Alamoda has decided to increase the minimum retention to
five years instead of the two years required by law.
3-C. Discuss and Comment on City Council Agenda Titles.
Chair Cambra clarified that he requested this item be placed on the agenda as
information to educate the public; stated it was not brought to the Commission as a
complaint.
The Assistant City Clerk gave a brief presentation; stated that a meaningful description
of the item should be included in plain English.
The Assistant City Attorney summarized the section in the Sunshine Ordinance
regarding agenda title description.
Chair Cambra inquired where the summary caption would originate.
The Assistant City Attorney responded the summary would originate from the City
Attorney's office.
The Assistant City Clerk clarified the summary caption would be included in layman's
terms preceding the agenda title.
The Assistant City Attorney stated the goal is for agenda titles to be concise and
understandable to the general public, but also include enough information so the public
knows the precise actions Council will be taking.
Commissioner Spanier stated a good editor could find middle ground.
Commissioner Tilos stated with the popularity of Twitter, the City could develop a similar
system using abbreviations.
Meeting of the
Open Government Commission
October 7, 2013
2",OpenGovernmentCommission/2013-10-07.pdf
OpenGovernmentCommission,2013-10-07,3,"The Assistant City Clerk clarified titles are typically submitted in regular and
understandable language; stated the issue being addressed is lengthy legislation
language.
The Assistant City Attorney stated the requirement is that titles be consistent with
federal securities disclosure laws.
Chair Cambra inquired if the new procedure would comport with State and federal laws,
to which the Assistant City Clerk responded in the affirmative.
Chair Cambra requested a recap of the Council's decision regarding agenda titles.
The Assistant City Clerk stated the Council decided to implement a new practice that if
a title is lengthy or contains a lot of legal terms, staff will include a summary sentence
above the title to describe the action in plain English.
Stated that she doos not agree with using lawyer catch-phrases that she felt the
lawyer catch phrases, such as relating thereto and with respect thereto, are not
needed; they should not be used; and she supports making all agenda titles clear:
Jane Sullwold, Alameda.
Chair Cambra inquired if Council is limiting the summary sentences to legislative items
only.
The Assistant City Clerk responded the matter was discussed at the last Council
meeting, but there was no official vote or action taken.
Chair Cambra inquired how the Commission could make a recommendation to the
Council to expand the practice to all titles.
The Assistant City Clerk responded the Commission could submit a referral to have the
item placed on the City Council agenda.
Commissioner Spanier stated she supports the practice of writing titles less onerous for
the public.
The Assistant City Attorney stated staff will continue to strive to make the agenda titles
more transparent.
Chair Cambra inquired if it makes sense to apply the practice of summary sentences to
all titles, not just legislation.
Commissioner Aguilar pointed out that non-legislative agenda items are already
required to be short and clear, having a caption on non-legislative items would be
redundant; it is the legislative titles that have less flexibility.
Meeting of the
Open Government Commission
February 4, 2013
3",OpenGovernmentCommission/2013-10-07.pdf
OpenGovernmentCommission,2013-10-07,4,"The Assistant City Attorney stated it is the legislative titles that have less
flexibility.
Chair Cambra concurred with Commissioner Aguilar; stated the Commission will meet
again next year, and any additional public concerns regarding agenda titles can be
brought to the Commission at that time.
COMMISSIONER COMMUNICATIONS
None.
ADJOURNMENT
There being no further business, Chair Cambra adjourned the meeting at 7:26 p.m.
Respectfully submitted,
Irma Glidden
Assistant City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
October 7, 2013
4",OpenGovernmentCommission/2013-10-07.pdf
OpenGovernmentCommission,2014-02-03,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY FEBRUARY 3, 2014 7:00 P.M.
The meeting was cancelled.
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
February 3, 2014
1",OpenGovernmentCommission/2014-02-03.pdf
OpenGovernmentCommission,2014-10-06,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY OCTOBER 6, 2014 - - 7:00 P.M.
[Note: Revisions made by Commissioner Dieter and approved by the Commission at the
February 2, 2015 meeting are reflected in bold and by strikethrough.]
Chair Cambra convened the meeting at 7:03 p.m.
ROLL CALL -
Present:
Commissioners Spanier, Tuazon, and Chair Cambra
- 3.
Absent:
Commissioner Aguilar and Wong - 2.
ORAL COMMUNICATIONS, NON-AGENDA
None.
AGENDA ITEMS
3-A. Approve the October 7, 2013 Meeting Minutes. Continued.
In response to Chair Cambra, City Clerk Weisiger stated the minutes could be
continued to the next meeting.
3-B. Consider potential revisions to the City's Sunshine Ordinance.
Chair Cambra stated two commissioners are missing and the commission membership
might change after the election; inquired whether the matter should be addressed.
Commissioner Spanier stated the potential revisions seemed to be housekeeping;
suggested the Commission review the list and decide about table any controversial
items.
Commissioner Tuazon inquired whether five members need to be present, to which
Chair Cambra responded the three members present represent a quorum.
Interim Assistant City Attorney Roush gave a brief presentation about some
housekeeping and substantive changes to the Sunshine Ordinance were needed
and to ask for direction to send to the City Council.
In response to Chair Cambra's inquiry about numbering issues, the Interim Assistant
City Attorney stated that he was using the on-line version, which differed.
The City Clerk stated the City's codifiers made an error, which is being corrected.
The Interim Assistant City Attorney clarified the numbers.
Meeting of the
Open Government Commission
October 6, 2014
1",OpenGovernmentCommission/2014-10-06.pdf
OpenGovernmentCommission,2014-10-06,2,"Chair Cambra inquired whether the numbering has been corrected, to which the City
Clerk responded in the affirmative.
Chair Cambra suggested each item in the staff report be addressed individually; noted
Section 2-91.1.d defines policy body, but policy body is referred to before the definition.
The Interim Assistant City Attorney stated clarification could be done.
In response to Chair Cambra's inquiry regarding Section 2-91.1.c. defining occasion,
the City Clerk stated the definition is to address what is not a meeting.
Chair Cambra stated ""passive meeting body"" should be a definition of the people that
make up the body, not the event; suggested ceremonial occasions be addressed under
the meeting section.
The Interim Assistant City Attorney responded the matter could be clarified to include
advisory committee or advisory body.
The City Clerk stated the definition ties into Section 2-91.2; noted the definition attempts
to capture what is noticed and not noticed, does not require an agenda.
Chair Cambra stated the intent is understood, but the Section should be moved.
The City Clerk stated Section 2-91.2 would also have to be revised; ""passive meeting
body"" is social and does not require an agenda.
The Interim Assistant City Attorney stated staff could work on the language; reviewed
the first item in the staff report: use of electronic devices.
In response to Commissioner Spanier's inquiry, the City Clerk stated the Council uses
iPads to view the packet.
Chair Cambra inquired whether a phone call could be made and whether the iPads
have internet access, to which the City Clerk responded the iPads do have internet
access and could be used to text or email.
Chair Cambra inquired whether the internet access could be disabled.
The City Clerk responded the packet is on the internet and one Councilmember uses a
computer.
Commissioner Tuazon inquired whether a phone call could be made, to which Chair
Cambra responded the device could be used to email and text.
Meeting of the
Open Government Commission
October 7, 2013
2",OpenGovernmentCommission/2014-10-06.pdf
OpenGovernmentCommission,2014-10-06,3,"The City Clerk noted the application uses a wireless signal to view the packet unless the
Councilmember has downloaded the packet prior to the meeting.
The Interim Assistant City Attorney stated if the requirement is moved to the substantive
part of the Ordinance, the assumption has to be that the officials are going to abide by
it; there would be consequences for not following the requirement; suggested moving
the section and staff could come up with appropriate language.
In response to Chair Cambra's inquiry whether a vote is needed, the Interim Assistant
City Attorney stated only direction is needed; a redline version of the ordinance would
be brought to the Commission at the February meeting.
The Interim Assistant City Attorney reviewed the second item in the staff report: passive
meeting bodies.
Chair Cambra stated passive meeting body is defined as an advisory committee;
suggested changing the term passive meeting body to advisory committee.
Commissioner Spanier stated changing it to advisory committee is very clear.
Chair Cambra stated there might be confusion when a policy body has a passive
meeting; inquired whether the Council tour of the estuary was a passive meeting.
The City Clerk responded in the negative; stated the meeting was noticed; a passive
meeting would be when the body is invited to a non-City event and the majority are
present but no City business is discussed.
Chair Cambra inquired whether said type of events are covered under Section 2-
91.1.b.4.C, to which the Interim Assistant City Attorney responded in the affirmative;
noted advisory committee is the more commonly used term; stated all references would
have to be changed and a better definition could be done; the City Clerk said the only
future references to the advisory committee were on pages 4 and 5 so it would be
easy to correct.
The Interim Assistant City Attorney outlined the third item: gatherings.
Chair Cambra stated the term ""gathering"" might have been used in order to not call
social events a meeting; noted the Ordinance was created cutting and pasting multiple
ordinances together.
The Interim Assistant City Attorney stated staff would review the matter; reviewed
changing ""spectators"" to ""members of the public;"" inquired whether a passive meeting
body would ever meet in closed session.
Chair Cambra provided an example from his previous work at a city where he was
once called into a closed session to provide legal advice to an advisory body.
Meeting of the
Open Government Commission
October 6, 2014
3",OpenGovernmentCommission/2014-10-06.pdf
OpenGovernmentCommission,2014-10-06,4,"The Interim Assistant City Attorney stated the language should remain; noted Item 4
from the staff report would be covered by addressing passive meeting bodies; reviewed
Item 5: commissioners submitting written comments when absent.
Commissioner Spanier stated that she does not think doing so is a good idea; the
written comments could backfire or be awkward because the member is not present to
respond to questions or contentious issues; that she does not know whether there is a
legal issue.
Commission Tuazon concurred; stated the comments could not be challenged or
questioned if the person is absent.
Chair Cambra requested a review of the deliberative process required before rendering
a decision.
The Interim Assistant City Attorney stated the deliberative process drove his analysis; a
decision maker is supposed to hear the comments of other members and the public;
stated the member could be pre-judging the issue and other board members might give
the comments more weight than those submitted by a member of the public; he
suggests having a rule that says not being able to attend is like having a financial
conflict of interest and participation is not allowed.
Chair Cambra outlined a lawsuit that he recalled from law school.
The Interim Assistant City Attorney outlined the issue of first amendment rights versus
violating due process; noted the member could request the item be continued to another
date; if you are not present and have not requested a teleconference, written
comments are not entered into the record.
The City Clerk noted teleconferencing is another option.
In response to Chair Cambra's inquiry regarding agreeing with the staff
recommendation, the Commission concurred.
The Interim Assistant City Attorney reviewed Items 6: retention of video recordings.
The City Clerk provided background in regards to length of time audio recordings
must be retained; and that we have the capacity so that we keep everything and
starting in [August] 2006, everything has been posted on line.
Chair Cambra stated the ordinance says keep it permanently in one spot and keep it 10
years in another spot; inquired whether the records retention policy requires keeping
anything forever.
The City Clerk responded some records are permanent, such as City Council minutes.
Meeting of the
Open Government Commission
October 7, 2013
4",OpenGovernmentCommission/2014-10-06.pdf
OpenGovernmentCommission,2014-10-06,5,"Commissioner Spanier inquired whether only the Council videos would be retained.
The City Clerk responded all videos are retained, including tonight's meeting, and the
meetings of the Planning Board and Recreation and Parks Commission.
Commissioner Spanier inquired whether there is a way to prioritize what is kept.
The City Clerk responded the current contract does not limit the number of videos which
can be kept.
Chair Cambra stated the matter could be deferred if there is no financial or storage
burden.
The Interim Assistant City Attorney concurred; state the matter could be brought back if
it becomes an issue; reviewed Item 7: public testimony on an item after being heard by
a subcommittee; the [Interim Assistant City Attorney explained that as written the
public could not comment on items after being heard by a subcommittee.
Chair Cambra provided an example of a Council subcommittee.
Commissioner Spanier stated that she can see how the public would be not be happy
with the restriction.
In response to Chair Cambra's inquiry about the subcommittee reporting back to the
Council, the City Clerk stated the matter was prior to the Sunshine Ordinance; public
comment was allowed when the subcommittee reported back to the Council.
Commissioner Spanier expressed concern that the matter might seem like a backroom
deal.
The Interim Assistant City Attorney stated the exception is rarely going to be applied;
stated the language should be made clear so that the public can speak.
The Commission concurred.
The Interim Assistant City Attorney noted Item 8 addresses an absent member
commenting, which has already been resolved.
Regarding Staff Report Item 9: public information requests, Chair Cambra inquired
whether the City has a timeframe to respond that the request has been received and
there is another timeframe to actually provide the information.
The City Clerk responded the Public Records Act includes the requirement mentioned;
the Sunshine Ordinance adopted stricter, faster timelines; stated response is to be
Meeting of the
Open Government Commission
October 6, 2014
5",OpenGovernmentCommission/2014-10-06.pdf
OpenGovernmentCommission,2014-10-06,6,"provided within ten days a few days; there are times the City cannot respond within 10
days.
Chair Cambra stated Section 2-92.2 C requires completion within 10 days; Section 2-
92.2.d requires response in three days; there is no mechanism for extending the
deadline in Section 2-92.2.c.
The Interim Assistant City Attorney stated the phrase ""paid or elected agent"" seems
unclear.
Chair Cambra provided the example of a resident speaking to someone with apparent
authority; stated the language makes asking a Councilmember the same as telling staff.
The Interim Assistant City Attorney suggested the word agent be changed to employee.
The Commission concurred with changing the word.
Chair Cambra inquired whether the Commission would like to include language in case
the City cannot comply with a 10 day request.
The Interim Assistant City Attorney stated there has to be some rule of reason when
there is a voluminous request; language tracking the Public Records Act could be used
to allow for reasonable extension within a specified timeframe.
Chair Cambra stated perhaps the term ""unreasonable delay"" sufficiently protects the
City.
The Interim Assistant City Attorney stated staff could come up with language; stated
regarding Item 10, ""legislative body"" should be changed to ""policy body"" to be made
consistent; reviewed Item 11: moving the State of the City Address.
Chair Cambra stated the issue was included in the ordinance to give public notice.
Commissioner Spanier stated the suggestion is to move the requirement of the State of
the City Address to a different Section of the Ordinance.
The Interim Assistant City Attorney stated staff would review the matter to see where it
belongs.
Chair Cambra concurred staff should review the matter to see if there is a better place.
The Interim Assistant City Attorney noted Item 12 regarding posting documents on the
website for four years could be addressed when storage becomes an issue.
Chair Cambra stated having the City documents on the website seems appropriate.
Meeting of the
Open Government Commission
October 7, 2013
6",OpenGovernmentCommission/2014-10-06.pdf
OpenGovernmentCommission,2014-10-06,7,"The City Clerk noted ""four years"" could should be removed because the documents
listed would always be posted on the website.
The Interim Assistant City Attorney stated Item 13 is regarding expressing personal
opinions while not on duty; that he was not sure if the item was of concern when the
ordinance was drafted; provided an example of union members on duty being given
leave to participate in collective bargaining.
Chair Cambra stated that he thought the requirement applies to employees on a break,
for example.
The Interim Assistant City Attorney stated the Section has not been an issue and could
be left alone.
Commissioner Spanier provided an example of working for a corporation not releasing
information to the media.
The Interim Assistant City Attorney outlined public interest versus complaining about the
work environment.
The Commission concurred with leaving the Section as is.
The Interim Assistant City Attorney stated Item 14 language could be easily cleaned up.
The Commission concurred.
The Interim Assistant City Attorney stated Item 15 on Environmental Impact Reports
(EIR) could be moved to another Section of the Ordinance.
Chair Cambra stated that he was not sure whether the requirement was to allow access
to the document or to allow people to save on copy costs.
The Interim Assistant City Attorney stated most EIRs are posted on the City's website;
that he could review the matter and determine if it should be moved.
The City Clerk noted the language could be moved to Section 2-94.2.
The Interim Assistant City Attorney stated Item 16 stated Section 2-92.15 should be
moved to Section 2-92.2.
The Commission concurred.
The Interim Assistant City Attorney stated Item 17 would change requiring the training to
every three years instead of every year; the training is videotaped; new employees can
watch the video; absent major revisions to the ordinance, training could be done every
three years.
Meeting of the
Open Government Commission
October 6, 2014
7",OpenGovernmentCommission/2014-10-06.pdf
OpenGovernmentCommission,2014-10-06,8,"In response to Chair Cambra's inquiry regarding live training, the Interim Assistant City
Attorney stated the training session took one hour; live training allows an opportunity to
ask questions; rather than mandating annual training, three years seems adequate.
In response to Commissioner Spanier's inquiry, the Interim Assistant City Attorney
responded the live training could be done every three years and new hires could watch
the video.
The Commission concurred.
ORAL COMMUNICATIONS, NON-AGENDA
Bill Smith, on behalf of Renewed Hope Housing Advocates, stated the Rent Review
Advisory Committee (RRAC) agenda does not have public comment; in the Spring, he
suggested publicizing what the RRAC does; nothing has happened; the City Attorney
told the RRAC not to do anything for a while; the RRAC does not have term limits;
asked the Open Government Commission to review RRAC proceedings; stated the
RRAC is effective at its core function; however, not enough people know about the
function.
COMMISSIONER COMMUNICATIONS
None.
ADJOURNMENT
There being no further business, Chair Cambra adjourned the meeting at 8:14 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
October 7, 2013
8",OpenGovernmentCommission/2014-10-06.pdf
OpenGovernmentCommission,2015-02-02,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY FEBRUARY 2, 2015 7:00 P.M.
The City Clerk convened the meeting at 7:00 p.m.
ROLL CALL -
Present:
Commissioners Bonta, Dieter, Foreman, Tuazon, and
Chair Aguilar - 5.
Absent:
None.
ORAL COMMUNICATIONS, NON-AGENDA
None.
AGENDA ITEMS
3-A. Select Chair and Vice Chair
Commissioner Dieter requested an explanation of the responsibilities of the Chair and
Vice Chair.
City Clerk Weisiger stated the Chair runs the meetings and the Vice Chair would run the
meetings in the Chair's absence.
Commissioner Dieter inquired whether it [the Chair and Vice Chair responsibility] is only
at the meetings, to which the City Clerk responded in the affirmative.
Commissioner Tuazon suggested that the Chair and Vice Chair be the representatives
appointed by the Mayor and Vice Mayor.
Commissioner Foreman noted that he was appointed by the Mayor; inquired who was
appointed by the Vice Mayor.
Commissioner Dieter responded that she was appointed by the Vice Mayor.
Commissioner Bonta inquired how long Commissioner Aguilar has served on the
Commission, to which Commissioner Aguilar responded one year.
Commissioner Bonta inquired how long others have served, to which Commissioners
Foreman and Dieter noted they were newly appointed.
Commissioner Bonta stated that she would like to have Commissioner Aguilar serve as
the Chair.
Commissioner Dieter inquired whether the Commissioners suggested are interested in
serving as the Chair.
Meeting of the
Open Government Commission
February 2, 2015
1",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,2,"Commissioner Aguilar and Foreman both responded that they are interested.
Commissioner Dieter stated that she would be fine with being the Vice Chair.
Commissioner Bonta moved approval of selecting Commissioner Aguilar as the Chair.
Commissioner Tuazon seconded the motion since Commissioner Aguilar is more
experienced.
On the call for the question, the motion carried by unanimous voice vote - 5.
Commissioner Dieter moved approval of selecting Commissioner Foreman as the Vice
Chair since he was appointed by the Mayor.
Commissioner Tuozon seconded the motion, which carried by unanimous voice vote -
5.
3-B. Approve the October 7, 2013 and the October 6, 2014 Meeting Minutes
The City Clerk noted that she asked Commissioners to view videos in order to weigh in
[on the minutes] since there was change in the majority [of the Commission
membership]; stated hopefully, at least three members are prepared to vote on the
minutes.
Vice Chair Foreman inquired whether everyone read the minutes and watched the
video, to which the Commissioners responded in the affirmative.
Commissioner Dieter stated that she finds it disturbing for the Open Government
Commission that one of the meetings was two years old; the Commission should not let
that happen; that she hopes this Commission tries to approve the minutes at the
consecutive meeting immediately following; plus, if it is close to an election cycle, she
would not mind having a special meeting just to approve the minutes so that the next
Commissioners that take our place are not faced with trying to understand the intent
behind other people and what they were saying to approve the minutes.
The City Clerk stated unfortunately the meeting last February ended up being canceled
due to lack of a quorum; for the October meeting, two members ended up being absent
and Commissioner Tuazon was new; staff did not anticipate that [absences] and did not
request members to view [the video] ahead of time; apologized for the circumstance;
stated that she appreciated the suggestion to hold a special meeting to approve the
minutes in the future.
Commissioner Dieter stated that she has changes according the video she watched;
she would like the minutes to reflect who the members were in terms of the City Clerk
and Assistant City Attorney so the Commission would know the names of who was
Meeting of the
Open Government Commission
February 2, 2015
2",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,3,"present; the minutes do not reflect that [staff names]; under Item 3-B: Status Update of
the Public Records Index, it says: ""The Assistant City Clerk gave a brief presentation;""
she thinks the minutes should stand on their own and a person should not be forced to
have to go look at a video to understand what took place at a meeting; she thinks the
minutes should say what was said and should say something to the effect of: ""The
Assistant City Clerk gave a brief presentation that stated that Alameda follows
Berkeley's Index; it has two parts; everything will be kept for five years at a minimum;""
this is what was said; and [it should say:] ""disclosure will be added at a later date and
will go to Council for approval;"" that way no one is forced to have to go look at the video.
The City Clerk suggested that she modify the minutes and bring them back to the
Commission at the following meeting; she could capture the presentation, then, the
Commissioners could read the minutes ahead of time.
Commissioner Dieter stated if there are not enough changes, perhaps the minutes can
be approved tonight.
Vice Chair Foreman moved approval of the minutes as corrected.
Commissioner Dieter stated that she is not finished; the very last line says: ""The
Assistant City Manager noted that Alameda's schedule is in line with other cities;"" that
she suggests deleting the following clause: ""the key distinction is that Alameda has
decided to increase the minimum retention to five years instead of two years required by
law;' actually, the [Assistant] City Manager talked about various requirements; some are
two years, some are three years, and some are ten years, so she thinks it is
unnecessary to include that [clause]; it is confusing; unless staff wants to change it to
say: ""two or three years or other time frames as required by law;"" those are the only two
changes she has for that meeting [October 7, 2013].
Vice Chair Foreman moved approval of the minutes as corrected.
Chair Aguilar seconded the motion, which carried by unanimous voice vote - 5.
Following Agenda Item 3-C being called, Commissioner Dieter stated the Commission
still needs to approve the minutes of the next meeting [October 6, 2014].
The City Clerk and Chair Aguilar stated both sets were approved.
Commissioner Dieter stated the Commission has approved the first set of minutes
[October 7, 2013]; for the second set of meeting minutes [October 6, 2014], [she has]
the same issue; it [the minutes] starts off by saying: ""The Assistant City Clerk gave a
brief presentation"" but does not say what the [Assistant] City Clerk said, so the only way
a person from the public would know would be to watch the video; that she thinks the
meeting minutes should reflect what was said; suggested adding the statement: ""The
Assistant City Clerk gave a brief presentation, which included that titles go through an
approval process in various departments, then it goes to the City Attorney's Office, then
Meeting of the
Open Government Commission
February 2, 2015
3",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,4,"it goes to the City Manager's Office, and, if by chance a title is legislative, it goes
through only the City Attorney's office and it does not get changed; if by chance, a
legislative title is unclear, then a clarifying sentence will be added so that the public will
understand the agenda meeting.""
The City Clerk inquired which set of minutes Commissioner Dieter is addressing; noted
that she is having trouble finding it [the section being revised].
Chair Aguilar inquired what page.
Commissioner Dieter responded page 2; stated it says Item 3-C Discussion and
Comment on City Council Titles.
The City Clerk stated the minutes being addressed are the October 7, 2013 set.
Commissioner Dieter concurred; stated trying to decipher the minutes is very confusing;
stated that she is still on the same set [October 7, 2013]; stated [the minutes state:]
""The Assistant City Attorney summarized a section of the Sunshine Ordinance"" but it
does not say what the [Assistant] City Attorney said, so the Commission should add:
""stated that a meaningful description of the item should be included in plain English;""
that way someone does not have to look at the video to find out what the [Assistant] City
Attorney said; on the next page, there was a public speaker; it is a little unclear in these
minutes that it was a public speaker; it is underlined; she [the public speaker] actually
said: ""that she felt the lawyer catch phrases, such as relating thereto and with respect
thereto, are not needed; they should not be used;"" considering there was only one
speaker, the Commission might as well get that [comment] right; that [comment] was by
Jane Sullwold; on the next page at the top, it says: ""Commissioner Aguilar pointed out
that non-legislative agenda items are already required, having a caption on non-
legislative items would be redundant; it is the legislative titles that have less flexibility;""
the [Assistant] City Attorney actually said that [""it is the legislative titles that have less
flexibility""], not Commissioner Aguilar; that those are her suggested changes for the
October 7, 2013 meeting.
Commissioner Bonta and Vice Chair Foreman noted the [October 7, 2013] minutes
were already approved.
Commissioner Dieter stated that was a mistake.
Commissioner Tuazon stated [the minutes should be approved] as correct.
Chair Aguilar stated the minutes continue to be approved as corrected.
Vice Chair Foreman inquired whether Commissioner Dieter has something for the next
meeting [October 6, 2014], to which Commissioner Dieter responded in the affirmative.
Meeting of the
Open Government Commission
February 2, 2015
4",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,5,"Commissioner Dieter inquired whether no one else had any suggested changes [to the
October 7, 2013 minutes], to which Chair Aguilar responded in the negative.
Commissioner Dieter stated in the next one [the October 6, 2014 minutes] on page 5
under 3-B [Consider potential revisions to the City's Sunshine Ordinance], the
paragraph says: ""Commissioner Spanier stated that potential revisions seemed to be
housekeeping; suggested the Commission review the list and decide about
controversial items;"" actually, what Commission Spanier said was: ""to table
controversial items for the next Commissioners;' delete the words ""decide about"" and
make it ""table;"" down a couple of paragraphs it says: ""The Interim Assistant City
Attorney gave a brief presentation;"" again it does not say what the presentation was;
she suggests adding a few words to explain what that [the presentation] was: ""gave a
brief presentation about some housekeeping and substantive changes to the Sunshine
Ordinance were needed and to ask for direction to send to the City Council;"" down near
the bottom of the page it says: ""The Interim Assistant City Attorney responded the
matter could be clarified;"" that she thinks the Commission needs to clarify that sentence
and add to the end of it: ""to include advisory committee or advisory body;"" stated that
she is not trying to be petty; she is just trying to shed some sunshine on the minutes for
the public; she thinks it is really important for this body to lead by example; the next to
the last paragraph ""and not noticed"" could include: ""does not require an agenda;' that
she is going to let a few things go; on the top of page 7 the last part of the end of the
second paragraph, she thinks what needs to be added is: ""the City Clerk said the only
future references to the advisory committee were on pages 4 and 5, so it would be easy
to correct;"" longer [farther] down under Item 3 it says: ""The Interim Assistant City
Attorney stated the language should remain;"" it is unclear about what language; that she
watched the video about three times and could not quite figure that [statement] out; but
what happened before that [statement] was [former Chair] Cambra talked about an
example from his previous work when he worked for another city where he was once
called into a closed session to later give legal advice to an advisory committee; ""Chair
Cambra provided an example from his previous work at a city"" does not tell the public
any context; she thought it might be important to add that: ""where he was once called
into a closed session to later give legal advice to an advisory committee;"" she is willing
to let this [language which reads: ""The Interim Assistant City Attorney stated the
language should remain""] stand for the ease of reference for the Commission; the
Commission can still approve it [the October 6, 2014 minutes] even though it is unclear
to her; it is fine, but she wanted to at least add why [former Chair] Cambra provided that
example; otherwise just delete the entire thing altogether; on page 8, the first sentence
needs to continue so that it is clear to the public what was actually decided upon; it ends
by saying: ""noted the member could request the item be continued to another date;""
then, what should be added is: ""if you are not present and have not requested a
teleconference, written comments are not entered into the record;"" that is what was
decided but it was omitted from the minutes; down under Item 6, it says: ""The City Clerk
provided background;"" it does not say what background; for the purpose of making it
easy on the public, she would like to add: ""in regards to length of time audio recordings
must be retained; and that we have the capacity so that we keep everything and starting
in [August] 2006, everything has been posted online;"" that [statement] was the
Meeting of the
Open Government Commission
February 2, 2015
5",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,6,"background the City Clerk provided; down closer to the end of the page [it states:]
""reviewed Item 7: public testimony on an item after being heard by a subcommittee;""
she thinks this should be added: ""the [Interim Assistant] City Attorney explained that as
written the public could not comment on items after being heard by a subcommittee;""
that is why it was being brought before the Commission; he [the Interim Assistant City
Attorney] did not think there was a reason to have that [sentence in Section 2-91.15a
included]; that it should be repealed; at the top of page 9 the end of the first sentence
[reads]: ""stated the language should be made clear"" [that she would like to add:] ""so that
the public can speak;"" ""stated the language should be made clear"" does not say what
language; again, you [the public] would have to watch the video to figure out what
language and it goes back to what was said previously about advisory committee
meetings so the public can speak; down to about the fifth paragraph [it reads:] ""The City
Clerk responded the Public Records Act includes the requirement mentioned; the
Sunshine Ordinance adopted stricter, faster timelines; stated response is to be provided
within"" [the language should read:] ""a few days"", not ""ten days;' delete ""ten days"" and
put ""a few days;"" [the minutes continue:] ""but there are times the City cannot respond
within ten days;"" the City Clerk probably knows exactly what she meant by that
[statement]; the City provides a response to whoever is requesting the record, but the
City has ten days in which to respond; the next page second line [states:]
""Commissioner Spanier stated that the suggestion is to move the requirement to a
different Section of the Ordinance"" does not say what requirement; [she would like to]
add the words: ""of the State of the City Address;"" [the language should read:] ""move the
requirement of the State of the City Address to a different Section of the Ordinance;""
down to about the sixth paragraph [it says:] ""The City Clerk noted ""four years"" could be
removed""; [should be changed to:] ""The City Clerk noted ""four years"" should be
removed"" not ""could be removed;"" a few more lines down [states]: ""Commissioner
Spanier provided an example of working for a cooperation [corporation]"" but it does not
say anything about the example, so that example is not releasing information to the
media, so that [""not releasing information to the media""] can be added to the end of the
sentence; on page 11 under Oral Communications Non-Agenda, a member of the public
spoke, Bill Smith; she thinks it should say: ""on behalf of Renewed Hope Housing
Advocates"" unless everybody understood that; those are all of her suggested changes.
Vice Chair Foreman moved approval of the October 6, 2014 minutes as corrected.
Chair Aguilar seconded the motion, which carried by unanimous voice vote - 5.
3-C. Potential revisions to the City's Sunshine Ordinance
Assistant City Attorney Roush stated that he reviewed the Sunshine Ordinance to give
the most recent training and came across a number of items that he thought could be
improved upon; he found items in conflict; he brought the matter to the Commission in
October 2014; the Commission gave direction and he put together the staff report
outlining the substantive changes; he can walk through the changes with the
Commission; given the membership changes, the Commission could have the matter
come back later or address it tonight.
Meeting of the
Open Government Commission
February 2, 2015
6",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,7,"Vice Chair Foreman stated that he spent a lot of time on the matter today; the whole
construct of the ordinance bothers him; he became really embroiled in the Sunshine
Ordinance when he was working on the Mayor's campaign and the Del Monte
development; he finds the ordinance to be very confusing and in some cases
contradictory, which the Assistant City Attorney pointed out in past meeting videos; the
basic law is the State law, which sets the minimum standards; the only thing the City of
Alameda can do is expand public access; questioned why the approach is basically
restating the entire Government Code in the Municipal Code; stated if he had worked on
the ordinance when it was created, he would have suggested an ordinance to
supplement the [State] sunshine code, not completely restate it; a person has to read
both when doing research as he had to do; his suggestion would make it [the City's
Sunshine Ordinance] much shorter; that he would publish the Government Code on the
City's website and this [City Sunshine Ordinance] would be a supplement; in the notice
area, one expansion is going from a three day notice to a 12 day notice; almost
everything else is repetition of what is already in the Government Code; that [his
proposal for a shorter ordinance] is one approach; the other approach is to do what has
been done; using the City existing ordinance in its current form needs to use the same
language [as the Government Code]; for instance, the word ""policy body"" does not
appear in the Government Code; the closest synonym for ""policy body"" is ""legislative
body;"" if State law, which provides the minimum standards, uses the term ""legislative
body,"" Alameda should not be using the word ""policy body"" because it leads one to the
conclusion that they are two separate things and they are not; it would be very difficult
even for an accomplished lawyer to try to figure out some of these inconsistencies;
another example would be ""passive body;"" there is no terminology ""passive body"" in the
Government Code; that he understands why it is in the City's ordinance because the
City is expanding public access, which the City has a right to do; ""passive bodies"" have
some obligations of notice, not to the same level as legislative or policy bodies; he
would not call them ""passive bodies;' he would call them ""non-legislative bodies;"" a
body is either a legislative body which is covered by the State law or a non-legislative
body, which is not covered by State law; the City is expanding the [State] law; where it
[the City's ordinance] really gets complicated is in the notice section using the terms
""advisory body"" and ""passive body"" interchangeably; the references keep changing and
they are two different things; ""advisory bodies"" are subject to the Sunshine Ordinance
and the State law; non-passive bodies are not; it boils down to two things: 1) it would be
his preference to basically start all over again with the ordinance and have it only
supplementary; you talk about simplicity, this [City ordinance] is not simple; one has to
be a lawyer to understand it; the last law that should need a lawyer to understand
should be the Sunshine [Ordinance]; if that approach does not sit well, at least use the
same language in the State law; do not create something that is not there.
The Assistant City Attorney stated that he was present when the ordinance was going
through a year-long process; he would defer to the City Clerk who may have more
background information; he does not disagree with what Vice Chair Foreman said in
terms of having essentially different terms being used for the same thing; if the
Commission feels it would be a better approach to have either a simpler ordinance or at
Meeting of the
Open Government Commission
February 2, 2015
7",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,8,"least have the ordinance track what is in State law, the Commission can make a
recommendation to go to the Council and get said direction.
The City Clerk stated that she could provide a little background; the year-long process
was comprised of a group just like the Open Government, one member put on by each
Councilmember; the group reviewed various sunshine ordinances from other cities and
complied them together at public meetings with public input; a piecemeal approach was
used; the group liked some things from some cities and liked some things from other
cities, which was used to come up with an ordinance specifically catered for Alameda;
language could be different because it could have possibly been cut and pasted from
different cities; the group was supposed to create the Ordinance in three meetings, but
ended up meeting 11 times; then, they finalized the Ordinance and sent it to Council;
the process was lengthy.
Vice Chair Foreman inquired whether that is pretty much in place, to which the City
Clerk responded in the affirmative; stated that [process] is how the Ordinance was
established.
Vice Chair Foreman stated it might be difficult to switch horses now, but the matter
should at least keep that in mind going through the Ordinance; for one more example,
State law defines ""meeting;"" Alameda's law defines ""meeting;"" there is really no
difference between the two, but the same language is not used; if there is no difference,
the City should use exactly the same language, not a paraphrase; changing the
language creates risk; that he understands if the Commission wants to remain on the
current track and just try to be consistent with State law; the Ordinance has been
through a process; the Commission cannot very well turn it upside down.
The Assistant City Attorney stated if the Commission's direction is to see that the
language in the Ordinance tracks what is in State law to the extent possible, staff can do
that; the matter could be brought back to the Commission; the task is a doable task, but
will take a little time.
Chair Aguilar stated the problem for her is that she does not know it well enough to
know whether the distinctions are substantive and big differences; somebody would
need to go through the Ordinance piece by piece to know that; stated she could not give
said direction.
Vice Chair Foreman stated that he spent a few hours on it; someone would have to look
at each section and see if there are any real differences; if there are no real differences,
the exact language of the State law should be used so as not to confuse it; if there is a
difference, then point that out and try to use the same terminology throughout; how
""policy body"" got in the Ordinance is beyond him.
Commissioner Bonta inquired whether the requirement of the local ordinance is that it
does not controvert the [Government] Code, to which the Assistant City Attorney
responded in the affirmative; stated it can allow for additional transparency; for example,
Meeting of the
Open Government Commission
February 2, 2015
8",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,9,"if the State law says the agenda has to be posted 72 hours before the meeting, the local
ordinance, even with a Charter City, probably could not say it only has to be 48 hours;
on the other hand, it could have 12 days rather, than three days for Council and 7 days
for commissions.
Commissioner Bonta stated it is likely that a lot of these analogs that were created, such
as the use of policy bodies in the ordinance, are largely driven by the fact that the local
government bodies are groupings working together at the City level; stated that she
would be inclined to not undo the work of an open process and the year of work to come
to this Ordinance; the work would be undone by thinking that the State code language
could just be slapped on; that she agrees that there are some areas where the
ordinance could have some clarification; the idea of a policy body was probably
generated because the City is a local government.
Vice Chair Foreman stated the State law is written for local government; it is not written
for the State legislator; it is written almost exclusively for local government; that he does
not know why policy body was put in there; when you read policy body and you read
legislative body it is exactly the same thing.
The Assistant City Attorney stated that he can speculate that the thought might have
when you read legislative bodies many people might think that is simply the City Council
because Council makes final decision as opposed to a policy body which might sound
broader to a layperson; he does not know if that would enter the equation or not; that he
can see how that could have played a part in coming up with that term rather than
legislative body; that is just a guess on his part, but it sounds logical that may have
been part of the reasoning process.
Vice Chair Foreman stated the Commission can just go through the Ordinance piece by
piece and vote.
Commissioner Bonta inquired whether staff recommends reviewing the Ordinance or
tabling the questions until the Commission has had a clear opportunity for review.
The Assistant City Attorney responded his concern is that three people have just been
appointed; Commissioner Tuazon has only been on the Commission a short while; that
he did not know whether ample time had been provided to allow the Commission to
digest the relatively few changes staff is recommending; if more time is needed,
a
special meeting could be set up in March or April to bring back the matter along with
any other items that the Commission might feel would be appropriate to consider; if the
Commission feels comfortable considering the matter tonight, that is fine too; staff would
always bring back further amendments if the Commissions so desires.
Commissioner Dieter stated that she spent hours on the staff report; she would like to
go over what is before the Commission; what works, what does not work, what needs to
come back and go from there; then, the Commission can always expand what is
discussed at the next meeting if that sounds reasonable.
Meeting of the
Open Government Commission
February 2, 2015
9",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,10,"Commissioner Tuazon stated that sounds reasonable.
Vice Chair Foreman stated the Commission can just work from the red lines.
Commission Dieter stated the Commission can just go down [the redline]; inquired
whether anybody has input under findings or if the Commission is okay with the findings
the way that it has been edited.
Vice Chair Foreman stated that he is okay with it.
Commissioner Dieter stated that she is okay with the first section.
The Assistant City Attorney stated [on Section 11 staff is not deleting the section entirely
from the ordinance; that he simply moved it to a substantive section where he thought it
made more sense.
Vice Chair Foreman stated the Commission will talk about that when the section is
addressed.
Chair Aguilar inquired whether having the Assistant City Attorney identify the changes
would be easier, to which the Assistant City Attorney responded he can walk through
the red line; stated for Section 1 on Findings, the concept was that the matter seemed
to be more of a substantive issue rather than a finding; he moved the Section to Section
2-91.4(h); similarly, Section 2 on Responsibility of the City Manager and Mayor were in
other portions of the Ordinance but having the Sections standalone made more sense.
Chair Aguilar inquired whether there are any comments on Section 2, to which
Commissioner Dieter responded in the negative; stated this is exactly what was decided
upon by the former Commissioners; it was achieved and clear.
The Assistant City Attorney stated Section 3 on Definition of Passive Meeting Body,
described more of a passive meeting itself, not a body, so the Section was deleted.
Vice Chair Foreman stated that he has a comment on Section 2-91.1; suggested
Subsection B be revised to quote the Government Code definition of a meeting word for
word; stated the definition should be word for word and in the same order, unless the
term meeting is being expanded and broader than the Government Code; otherwise,
the City is bound by a definition in the State Code and bound by a slightly different
definition in this Code; it does not jive in his mind.
Commissioner Dieter stated that she has not read the State Code and does not know
the difference between the State Code and the Ordinance; she is assuming Vice Chair
Foreman has done so and it is pretty much the same thing.
Meeting of the
Open Government Commission
February 2, 2015
10",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,11,"Vice Chair Foreman moved approval of directing the [Assistant] City Attorney to review
the definition of meeting in Section 2-91.1(B); if he determines it to be identical to the
Government Code Section, he use the Government Code language; if he believes it not
to be identical, he make whatever edits he believes are appropriate.
Chair Aguilar inquired whether the motion is to have the changes come back to the
Commission for approval, to which Vice Chair Foreman concurred.
Commissioner Dieter stated the direction is fine with her.
On the call for the question, the motion carried by unanimous voice vote - 5.
Vice Chair Foreman stated his opinion is that the term passive meeting body, wherever
it occurs in the Ordinance, be changed to non-legislative body.
Commissioner Dieter stated before the Commission goes there [addresses said
change], the former Commissioners had a long discussion on the matter at the previous
meeting; everyone had a problem with the word ""passive body"" and ""passive meeting
body;"" what was agreed upon was that it would be changed to something that everyone
would understand: advisory committee or advisory body.
Vice Chair Foreman stated that he recalls that; the problem with it is that advisory
bodies formed by the Council as a whole, by ordinance or an official Council action, are
not passive meeting bodies as defined in the document; advisory bodies are subject to
the Sunshine Ordinance just as much as City Council with a few minor exceptions; the
word ""advisory"" cannot be used interchangeably with passive or non-legislative; most
advisory bodies, such as the Open Government Commission, are not passive bodies;
Commissioner Dieter is right the discussion did occur; that he is suggesting using the
word ""non-legislative.""
Commissioner Dieter inquired the difference between a policy body and an advisory
body.
The Assistant City Attorney responded the difficulty is that as defined, advisory bodies,
such as the Planning Board, Open Government Commission or Recreation and Park
Commission, are advisory commissions and are also policy bodies [under the Sunshine
Ordinance] or are legislative bodies under the Government Code; to address Vice Chair
Foreman's concern, he tried to limit passive meeting bodies to just one category of
things: an advisory committee created by a single member of a policy body, including
the Mayor or a department head; that is the only body that would qualify as a passing
meeting body; taking out the section subsection would limit the number.
Vice Chair Foreman stated that he does not see a need for adding Item 3; a committee
that exists solely of City employees would fall under Item 1; inquired whether Item 3 is
needed and differs from Item 1.
Meeting of the
Open Government Commission
February 2, 2015
11",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,12,"The Assistant City Attorney stated that he would surmise the thought was whenever a
committee of only City employees met, it would not be subject to the requirements for
passive meeting bodies.
Vice Chair Foreman stated that he is not hung up on non-legislative; it is fine if other
Commissioners want to leave passive meeting body, which is not in State law at all.
In response to Commissioner Dieter's inquiry about the Assistant City Attorney not
following the previous Commission's suggestion to use advisory, the Assistant City
Attorney stated the concern was using the term ""advisory"" would get confused with the
term ""policy bodies"" which are advisory bodies under the Government Code; that he
thought it would be better to leave the terminology as is even if it is somewhat odd; the
definition is not going to apply to many committees.
Commissioner Dieter stated that she is okay with the Section.
Vice Chair Foreman stated there is still Section D.
The Assistant City Attorney stated he added ""as a whole"" to make it clear and less
ambiguous; read the Section.
Vice Chair Foreman stated that his personal problem with Section D is that he would
love to see the word ""policy body"" removed; things governed by State law are being
addressed; the State law calls them legislative bodies and the City is calling the exact
same thing a policy body; one is talking Spanish and the other is talking Greek; the
same subject is being addressed but different labels are being given.
Commissioner Dieter inquired whether the Commission could table the term until getting
through the redline.
Vice Chair Foreman responded in the affirmative; stated the Assistant City Attorney can
make a note of it and decide what he wants to do with it.
Chair Aguilar inquired whether the Assistant City Attorney could take a look at it to see
if
policy body and legislative body are the same, to which the Assistant City Attorney
responded if the Commission's direction is to make amendments to the Ordinance to
have legislative body appear instead of policy body, staff can do that.
Vice Chair Foreman inquired what is the Assistant City Attorney's opinion, to which the
Assistant City Attorney responded his only reticence is that from a year-long process, a
group of citizens decided that policy body better fits the Ordinance than legislative body;
that he does not have a strong feeling one way or the other; how to define it is a policy
call.
Meeting of the
Open Government Commission
February 2, 2015
12",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,13,"Chair Aguilar inquired whether there are meeting minutes for the committee that created
the Ordinance which might shed some light on the matter, to which the City Clerk
responded the minutes were action minutes and were not detailed.
Chair Aguilar inquired whether the minutes will not necessarily be that helpful as to why
certain things were followed, to which the City Clerk responded that she does not know
if policy body was heavily discussed; it might have just been the wording that was in that
section of what [City] the Task Force was cutting and pasting from; she can research
the history.
Commissioner Dieter stated before moving on to the next section, at the last meeting
[former] Chair Cambra noted that policy body is being defined at a later time then when
it
is used and suggested moving that definition up under definitions; that she still thinks
that is a good idea.
Vice Chair Foreman stated it is under definitions.
Commissioner Dieter stated the Assistant City Attorney indicated alphabetical order is
the reason for where the definition is; the term is used numerous times before defining
it; there was talk about just not paying attention to alphabetical order; maybe that
definition should be moved to B rather than keeping it D.
Vice Chair Foreman inquired where it is used before the Section, to which the Assistant
City Attorney responded in the definition of meeting under Section 2-91.1, the term
policy body shows up there and a number of different places and that was a little bit of a
concern but it is the definition section.
Vice Chair Foreman stated ordinarily definitions are put in alphabetical order because if
someone is researching it, they are going to have a hard time finding it if it is not in
alphabetical order.
Chair Aguilar stated that she agrees that it needs to stay in alphabetical order; even if it
is above, someone would look in the definitions to see if it is defined.
Commissioner Dieter stated other than that, she is fine with that section; the
Commission can move onto the next one called passive meetings.
The Assistant City Attorney stated Section 4 on Section 2-91.2 on Passive Meetings
now references where the definition section shows up, rather than writing out what a
meeting means; the word ""gatherings"" has been deleted and changed to meetings; the
changes to the Section are fairly innocuous.
Chair Aguilar stated the section is clearer.
The Assistant City Attorney stated Section 2-91.4 on Conduct of Business is where the
term ""advisory bodies"" shows up; the term is not defined; the intent was policy bodies
Meeting of the
Open Government Commission
February 2, 2015
13",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,14,"must do something and passive meeting bodies may do something in terms of
conducting business.
Vice Chair Forman stated that he has a problem with that; the State Code uses the term
""advisory bodies"" in the Section that matches this; what the State Code basically says is
that the City Council has to have regular meetings, but advisory bodies, such as the
Planning Board, do not have to have regular meetings; then, it goes on to talk about
how their [board/commission] meetings shall be considered like regular meetings; the
Ordinance takes from a Section that has nothing to do with passive meeting bodies;
advisory bodies cannot be removed because unless the intent is to broaden the State
law to say that not just City Council but advisory bodies also have to give all these
notices, then there is nothing wrong with taking out ""except for advisory bodies"" if that is
the intent.
Chair Aguilar inquired whether policy bodies as defined in the Ordinance include
advisory bodies, to which Vice Chair Foreman responded in the affirmative.
The Assistant City Attorney stated to address Vice Chair Foreman's concern, perhaps
the intent was the City Council must have regular meetings that advisory bodies as
used in the Government Code do not; if that is the intent, staff would have to indicate
that it is only the City Council that must do this and other policy bodies do not; that
wordsmithing can be done if that is where the Commission wants to go with not
requiring all bodies, other than City Council, to establish a time and place for holding
regular meetings.
Vice Chair Foreman stated he gets the impression the intent was to mimic State law,
except when you get over to F, which really starts getting confusing; F says special
meetings of any policy body, including advisory bodies, that may choose to establish
regular meeting times may be called at any time by the presiding officer; then, it goes
back to passive meeting bodies.
The Assistant City Attorney stated that he is not clear whether the intent was advisory
bodies referred to passive meeting bodies or whether the intent was to refer to passive
meeting bodies, such as the Planning Board, Open Government Commission and
Recreation and Park Commission; that he is not certain of the intent.
Commissioner Dieter stated there would not be any problems if they were called boards
and commissions.
Chair Aguilar inquired whether there was not a definition for advisory bodies, which is
why it was being taken out, to which the Assistant City Attorney responded in the
affirmative; stated there was not a definition of advisory body.
Vice Chair Foreman stated the problem is that there are two different kinds of advisory
bodies; there are advisory bodies that are established by formal action of the Council,
which come under the State law and there are advisory bodies that are appointed by
Meeting of the
Open Government Commission
February 2, 2015
14",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,15,"one Councilmember that do not; the matter has been clarified; E also jumps around and
addresses advisory bodies; that he does not know how passive body got mixed in with
advisory body because they are two different things; they are two different things even
in the context of the section.
Chair Aguilar questioned whether defining advisory bodies would clarify the matter;
stated passive meeting bodies have now been defined.
Vice Chair Foreman inquired whether advisory bodies formed by Council follow all these
rules, such as the 12 day rule, to which the City Clerk responded they have a seven day
rule; the Council is the only one with the 12 day [publication rule], all of the rest have 7
[day publication requirements].
Vice Chair Foreman inquired whether that is written in the Sunshine Ordinance, to
which the City Clerk responded in the affirmative.
In response to Vice Chair Foreman's inquiry where is the 12 and 7 day rule, the
Assistant City Attorney stated said Section was not changed.
Commissioner Dieter stated it is in F.
Vice Chair Foreman inquired where is the 7 days for the advisory board, to which the
Assistant City Attorney responded probably in one of the sections that is not being
changed.
The City Clerk stated it is in Section 2-91.5 on agenda requirements for regular
meetings in the Sunshine Ordinance; there was no change, so it is not in the red line.
Vice Chair Foreman inquired whether all the bodies have regular meetings, to which the
City Clerk responded in the affirmative.
Vice Chair Foreman stated the fact of the matter is that they have all chosen to have
regular meetings.
The City Clerk stated all standing boards and commissions, such as the Open
Government Commission and Planning Board, have regular meeting dates that they
have established.
Vice Chair Foreman inquired whether there is no commission appointed by formal
action that is appointed by the Council that does not have regular meetings, to which
the City Clerk responded it could happen; the deadline is the same for special or regular
meetings of boards and commissions; it is [always] 7 days; it does not matter if it is a
regular or special meeting.
Vice Chair Foreman stated in effect, the way the City treats advisory bodies the same
as the City Council with regard to having regular meetings; they do have regular
Meeting of the
Open Government Commission
February 2, 2015
15",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,16,"meetings; they are required to have regular meetings even though the Sunshine
Ordinance says they are not; they have chosen to do it; that he is wondering if the
Section should just be taken out altogether; leave the deletion so even advisory bodies
have to have regular meetings.
The Assistant City Attorney stated that is what he was trying to do; all advisory bodies
seem to have regular meeting dates; so it seemed de facto that is what was going on.
Commissioner Bonta inquired whether there is a big difference between shall versus
must.
Vice Chair Foreman responded shall is mandatory by law and really means the same as
must.
The Assistant City Attorney stated that he is simply trying to indicate that passive
meeting bodies would not have to follow the same requirement.
Vice Chair Foreman stated maybe the way to write it is to scratch out advisory bodies;
inquired whether the Assistant City Attorney has already taken advisory body out of this
altogether, to which the Assistant City Attorney responded in the affirmative.
Vice Chair Foreman stated that makes sense and means any commission or committee
created by formal action has to have regular meetings and follow these rules; for
passive meeting bodies, it is optional; that he is okay with it if everybody else is; he is
not sure that it was intended originally, but it makes sense in practice.
Chair Aguilar inquired whether everyone agrees and there were no objections.
The Assistant City Attorney stated Section H on Use of Electronic Communication
Devices was moved down from the findings.
Vice Chair Foreman stated that he does not like it; his argument with it is not legalistic;
this is the modern age; the Section is to stop secret meetings during a meeting by text
or email; all this stuff is done in secret whether it is done in front of the public; you have
to catch somebody doing it; it is a violation for more than two people to have a
discussion.
The City Clerk stated that she could provide some background information; the Section
was very important to the Sunshine Task Force; the intent was to prohibit
communication, not within the members themselves, but from somebody outside who
did not want to get up and publically state their opinion from influencing the decision
during the public process; the concept was to keep from communications, not just
amongst themselves, but from private influences.
Vice Chair Foreman stated his concern was making them shut it down all together; if he
is in a meeting and he has a question such as what the Del Monte project looks like, he
Meeting of the
Open Government Commission
February 2, 2015
16",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,17,"could look up overhead Google view or if there is a State Code provision that might
affect the decision, questioned why he should not be able to reference something on his
iPad; that he wishes the Section was written in a way that does not require shutting it
down and simply tells you certain things that you cannot do that would be a violation;
some of them [Councilmembers] have computers; questioned whether members never
refer to their computers for anything on an agenda.
Commissioner Tuazon stated this is about sending and receiving email or texts.
Commissioner Bonta stated Vice Chair Foreman is responding to this second sentence,
which says: ""the use of electronic communication devices other than the purpose of a
member accessing agenda material.'
Vice Chair Foreman stated ""use of electronic material other than the purpose of a
member accessing agenda materials shall be prohibited during meetings"" is what he
does not like; there should be a little more leeway; it should not be limited to just agenda
items.
Commissioner Bonta stated the thing trying to be prevented is specific communications;
that she agrees with Vice Chair Foreman.
Vice Chair Foreman stated there are so many things on the Internet that could be
helpful to any Councilmember; saying what members cannot do would make sense.
The Assistant City Attorney stated the concern would be that if a person is using a cell
phone at all, how is the public going to know whether it is being used to access a State
Code or if it is being used it to get information from an outside source.
Vice Chair Foreman inquired how the public is going to know that he does not call
Mayor Spencer, Vice Mayor Matarrese and Councilmember Ezzy Ashcraft and get them
together on a conference call; you have to catch someone; that he does not see how
they would know that any more than they would know what is being viewed on a
computer.
Chair Aguilar stated Councilmembers are given all the [agenda] information ahead of
time and do not have to look things up at the meeting.
Vice Chair Foreman stated a question could arise during a meeting; that he might want
to look up a City record that is already on the website that is not on the agenda; his
opinion is it is a little too restrictive.
Commissioner Dieter stated that she does not know what they were thinking exactly;
perhaps at a City Council meeting, a consultant might speak; then, a member of the
audience at that moment might email the Councilmember to say ask the person this and
say this.
Meeting of the
Open Government Commission
February 2, 2015
17",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,18,"Vice Chair Foreman stated a Councilmember cannot respond to that; that he has no
problem with prohibiting that.
Commissioner Dieter inquired whether what Vice Chair Foreman is saying is that he
does not like the fact that the member cannot access material.
Vice Chair Foreman responded they cannot access any material other than agenda
material; stated Councilmember Daysog has a computer up at every meeting; no one
knows what he is looking at; the law has been in effect, not that he is not accusing
Councilmember Daysog of anything.
The City Clerk stated the Section does not just apply to the Council, it applies to all
boards and commissions.
Vice Chair Foreman stated it seems that language can be written that says a device
cannot be used to communicate to another member of the board about any meeting
subject or to receive any communications; language can be drafted; something can be
drafted about what members are prohibited from doing with electronic devices.
Commissioner Dieter stated Vice Chair Foreman's proposal is to delete the last
sentence and include what, to which Vice Chair Foreman responded it is going to take
some drafting; that he cannot sit here and draft it by himself.
The Assistant City Attorney stated essentially what he is hearing, if this is the direction
of the Commission, is that the second sentence would essentially largely track what is in
that first sentence; the first sentence states the rule; the second sentence states the
prohibition; that he could add language about communication with other policy board
members as well as members of the public to avoid a Brown Act issue as well as the
outside information; that would be more restrictive than what the second sentence
reads; it can be written that way if it is the Commission's direction.
Vice Chair Foreman inquired whether the Assistant City Attorney would draft something
that the Commission could review, to which the Assistant City Attorney responded in the
affirmative; stated the Commission seems okay with certain things and some other
things will be brought back; if the Commission wants to review the language, staff can
provide a draft.
Chair Aguilar stated that would be good.
Vice Chair Foreman stated the suggestion is fine with him.
The Assistant City Attorney stated Section 6 on Public Notice Requirements was
discussed at the last Commission meeting; if a member of a policy body is unable to
attend a meeting at which an item is going to be discussed, the Section would prohibit
the absent member from submitting written comments to be read into the record at that
meeting; the former Commission thought that was a good idea so it has been added.
Meeting of the
Open Government Commission
February 2, 2015
18",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,19,"The Commissioners expressed support.
The Assistant City Attorney stated Section 7 on Video Recording has been revised to
add ""for at least 10 years"" to put the requirement in writing; the City Clerk indicated that
videos are probably held longer.
Commissioner Dieter stated the previous Commissioners thought that the reference to
years should be left out altogether because it is not an issue; the matter could be
brought back if it ever becomes an issue; suggested leaving out the references to the
time frame at all because it is not a storage issue; questioned why even raise a flag that
after 10 years maybe the City will get rid of it.
Commissioner Bonta stated the issue was that there was unlimited storage capacity but
there could be other reasons.
Commissioner Dieter stated the City Clerk indicated everything is kept and capacity is
not an issue.
Commissioner Bonta stated adding a timeframe makes sense to give guidance about
what the limitations should be; there might be a different driver beyond storage capacity.
Commissioner Dieter inquired how would the public know if they want to look at
something over 10 years ago that the City might have decided to get rid of that
information because the Sunshine Ordinance says that the City only had to keep it for at
least 10 years.
Commissioner Bonta responded that is exactly what the City would want; stated the City
would want the public to have some indication about the requirements to store the
information for at least 10 years; the fact that there is information beyond that available
perhaps is another articulation; it does not make it lower.
Commissioner Dieter inquired what is the purpose of including it, to which the Assistant
City Attorney responded that he recalled that there was a 10 year period.
The City Clerk stated 10 years was included and is being expanded to at least 10 years
because the City is going beyond it; ""at least"" was clearing up that it was going to go
beyond; right now, the City currently has nine years of video posted on the web; starting
next year, the City will probably be going beyond [10 years].
Commissioner Dieter inquired if something happened 12 years ago, will the public think
it is no longer around until they ask the City Clerk, to which the City Clerk responded
this section only pertains to videos; stated the prior videos are VHS, which are old and
deteriorating; there is going to be a point where they are not going to play anymore; the
Council direction in the past was to retain the VHS, but they are not being archived;
2006 is when the City started having video available on the web.
Meeting of the
Open Government Commission
February 2, 2015
19",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,20,"Commissioner Dieter stated this is for the old VHS because for the new videos, the City
has a contract with no limit; the City could keep videos for 40 or 50 years.
The City Clerk stated the way technology and capacity are increasing, she would
assume that the City would be able to keep that up; at this point, the City does not have
10 years, but videos would be kept up once the City goes past the 10 years.
Vice Chair Foreman stated he is okay with leaving it the way it has been changed.
The Assistant City Attorney stated the other part of Section 7 is that with the dissolving
of redevelopment agencies, the Community Improvement Commission is now the
Successor Agency to the Community Improvement Commission; a technicality in terms
of the name of that particular policy body.
Commissioner Dieter stated there are two references in the Sunshine Ordinance to the
Alameda Reuse and Redevelopment Authority (ARRA) which has been disbanded; the
City does not even have that anymore.
The Assistant City Attorney stated he asked the Community Development Director
about whether that should stay and she suggested that it stay in there.
Commissioner Bonta stated if the City is keeping videos from the prior 10 years, the
ARRA did exist at that time; this is to make sure that the City keeps the ARRA videos.
The Assistant City Attorney stated Section 8 on Public Comment by Members of the
Policy Body has some language added at the end to make it clear that while members
of policy bodies certainly have the right to voice their opinion, it is not intended to
prohibit the City Council from removing members if the Council feels the member has
gone beyond their assigned duties.
Vice Chair Foreman stated that he is not sure why it is in there; if it is a constitutional
right, it is a constitutional right; questioned why does it have to be codified; stated what
bothers him about it is there are certain things that City Council members cannot
comment on as a matter of law if Councilmembers are playing a judicial role; for
instance the rules of procedure state that if there is a public hearing on a matter, such
as a development plan, Section 1-C prohibits a Councilmember from discussing or
commenting on a public hearing issue outside of a Council meeting; certain proceedings
are considered to be judicial in nature and Councilmembers are not allowed to make
comments until they vote.
Commissioner Dieter inquired whether Vice Chair Foreman is commenting on the
addition or the entire provision, to which Vice Chair Foreman responded the entire
provision; stated because Councilmembers do not have a full constitution right to
comment on these things if Council is going to be making a judicial type of decision;
during the campaign, certain candidates said they could not comment on a matter
Meeting of the
Open Government Commission
February 2, 2015
20",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,21,"because it is a judicial matter that they would have to act on; that was wrong because
there is an exception that if you are in a campaign, you can comment; but if you are not
in a campaign, you cannot comment because you would be disqualifying yourself from
making the decision; stated that he does not know why this language is included or
needed; stated that he does not need the Code to tell him that he has a constitutional
right to say what he wants to say; in this particular case, it may lead a Councilmember
to believe that they can make a comment on a zoning matter when they are specifically
prohibited from doing so.
Commissioner Dieter stated it makes no sense to say that the Council can remove a
member; that she is not sure why that is in the Sunshine Ordinance; they also cannot
write a letter that contradicts a policy.
Vice Chair Foreman inquired why it is in the Sunshine Ordinance.
Commissioner Dieter concurred; stated the entire Section could be removed;
particularly the addition; otherwise it should include that members of the City Council
can be removed by referendum and address how they could be removed.
Commissioner Bonta stated the general structure is that the City Council appoints other
policy bodies that serve at the pleasure of the Mayor and Council; it might be ill placed;
Council does have the ability to remove members of a policy body.
Vice Chair Foreman stated that does make sense but he does not know why it is in the
Sunshine Ordinance.
Commissioner Dieter inquired what does the section have to do with accessing
government, to which the Assistant City Attorney responded he thought that revising the
ordinance that members of policy bodies can make public comment, it should be clear
some right was not being created that would prevent the City Council from removing a
member; then, the person could turn around and sue the City under some right that has
been now created in the Ordinance; the addition is a protective measure; Vice Chair
Foreman makes a good point that the statement is probably broader than what it really
says; the intent was to make sure a person still has a right as a citizen to make
comments, but it is not quite as black and white as the language would suggest.
Commissioner Dieter inquired whether the City Charter includes that Council can
remove a member of an appointed body, to which the Assistant City Attorney responded
that he does not recall it being included.
Commissioner Dieter inquired if it is not in the City Charter why is it in the Sunshine
Ordinance, to which the Assistant City Attorney responded the ordinance indicates that
policy body members have a right to comment on governmental actions; that would not
necessarily preclude a majority of the City Council from being able to remove them; that
he does not want the Ordinance giving a person a right to sue the City on the grounds
that they were illegally removed.
Meeting of the
Open Government Commission
February 2, 2015
21",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,22,"Vice Chair Foreman suggested that the Commission take the position that the matter is
outside of its jurisdiction and refer it back to the City Council; this is not a public access
issue.
Commissioner Dieter concurred.
Vice Chair Foreman stated it has to do with Council's power to go over agencies they
create; it has nothing to do with sunshine.
Councilmember Dieter stated if that is a motion, she seconds it.
Vice Chair Foreman stated that is a motion.
Commissioner Bonta inquired whether Vice Chair Foreman is referring to the second or
third clause, to which Vice Chair Foreman responded that he is referring to the whole
section; stated it is not wrong, it is misplaced; it is outside of the Commission's purview.
Commissioner Bonta stated every policy body member retaining the constitutional right
to comment publically has relevance to how a member of a policy body might continue
to speak in public; having something in full transparency and openly available that
members are able to speak their mind, which is the intent, is a helpful thing to have in
the Sunshine Ordinance.
Commissioner Dieter suggested a compromise: leaving in the first part of the provision
that was already there that goes with sunshine; the addition added by staff does not
belong in the Sunshine Ordinance and actually causes problems.
Commissioner Bonta stated the intent is that the City would not have any future liability
from exercising its right to remove members.
Commissioner Dieter stated that should go somewhere else, such as the City Charter.
Commissioner Bonta stated reading the section, people would understand they would
be able to speak their mind even sitting on a policy body; after choosing to speak their
mind, if the City removed the member, it would not be because they choose to speak
their mind; there is a relationship; that she would recommend the language be
redrafted.
Vice Chair Foreman concurred the language needs to be redrafted; stated that he is
worried about the first line; if the Planning Board has to approve a development plan,
the burden of proof is on the developer; it is something that is supposed to be
determined after the hearing and is not something that can be prejudged; if a member of
the Planning Board is quoted in the paper a week before the meeting saying: ""the plan
is lousy and I and not going to vote for it;"" that is illegal; yet the Ordinance is saying the
member has a full constitutional right to do it; somehow it has to be redrafted; it could be
Meeting of the
Open Government Commission
February 2, 2015
22",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,23,"redrafted pretty easily to say that members cannot comment on items they are going to
make a judicial decision on.
The Assistant City Attorney stated this area of the law is murky; development plan in
Alameda are legislative acts, not quasi-judicial, so the judicial rules would not apply;
however, for a use permit, which is quasi-judicial, the point is well taken; on the other
hand, courts recognize that elected and appointed officials are out in the community;
part of being an elected official is listening to the community; the community wants to
hear official's opinions on matters; there is a fine line between expressing interest and
listening to people, but not showing improper bias; the line can be difficult to draw;
drafting something may be difficult, but he will take a stab to try to address the issue
more clearly.
Commissioner Dieter requested the Assistant City Attorney to explain the last sentence:
appointed policies bodies moreover may not take formal action nor undertake activities
such as writing a letter that contradicts a policy or a position that the City Council has
adopted or expressed.
The Assistant City Attorney stated that he has seen situations were an advisory body
takes formal action, such as writing a letter, that is contradictory to what the City Council
has done; it cases the City and City Council some embarrassment; the idea is to put
into written form that advisory bodies are not to do that; it is a policy decision; the
language can be left or removed; he has seen it cause difficulty for a City Council in the
past, so he put it in.
In response to Commissioner Bonta's inquiry, the Assistant City Attorney stated the line
is not always bright; a commission can express reservation about a City Council policy
or action; however, the commission communicating in a formal way is what this is
intended to say should not be done.
Commissioner Dieter inquired whether it has ever happened in Alameda, to which the
Assistant City Attorney responded that he does not know if it has happened in Alameda;
stated that he is aware of it happening in other jurisdictions.
Commissioner Dieter inquired whether writing a letter means writing a letter to the City
Council, to which the Assistant City Attorney responded it would mean writing a letter to
an outside agency for example.
Commissioner Dieter stated the language should definitely say ""to an outside agency. ""
The Assistant City Attorney responded the Section is not intended to prevent
communication between a commission and the City Council; the language could be
clearer.
Vice Chair Foreman stated there should be something somewhere about how to
remove people from commissions.
Meeting of the
Open Government Commission
February 2, 2015
23",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,24,"The City Clerk stated by majority [Council] vote.
Vice Chair Foreman stated his compromise would be to leave in the first part and leave
out the last part; the particular sentence is not sunshine and has to do with when you
can and cannot remove a member from a body.
The City Clerk stated the Section was added to inform a member of a body; since
sunshine is about providing information, the Attorney's idea is to put more information
out there and inform them if they have not read the other provisions that they could be
taken off because they might not be aware.
Vice Chair Foreman stated inform them in the right section of the law; inquired why it
would it be here.
The City Clerk responded every board and commission member is required to read the
ordinance; they are not required to read the other sections of the law; they are all
annually required to read it.
The Assistant City Attorney stated that he would redraft and bring back some language
that might be more acceptable to the Commission.
Commissioner Dieter stated out of all of the Sections, this is the one that is being tabled
all together; there is a problem with it.
The Assistant City Attorney stated Section 9 the first sentence under 2-92.2 has been
moved to the front of the ordinance; in October, the Commission talked about the fact
that sometimes the 10 day rule could not always be met and that there are
circumstances when additional time is needed; he pulled the language out of the Public
Records Act and put it into Subsection C to allow additional time for the custodian of
records to respond as long as they gave the reasons for the extensions and the date on
which the determination was supposed to be provided.
Commissioner Dieter inquired whether there was a typo with the part that was added in
Section D should it say employee ""or"" elected official rather than ""of,"" to which the
Assistant City Attorney responded in the affirmative.
The Assistant City Attorney stated the new Subsection G has been moved up from a
different Section; Section 10 on Responsibilities of the Mayor, has been moved to a
different section in the front; Section 11 explains what is going to be available on the
City's website for a certain period of time and what would be on essentially forever.
Commissioner Dieter stated she had a hard time understanding the additions to Section
2-92.4: documents must be posted on the City's website, but these particular
documents may be removed.
Meeting of the
Open Government Commission
February 2, 2015
24",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,25,"The Assistant City Attorney continued the sentence: four years after they are filed or
adopted; stated the items may be kept, but it is a matter of whether they should be kept
on the City's website all the time; it is not that they would not exist, but they would not
be on the City's website.
Commissioner Dieter stated at the last meeting, discussion was that there is no problem
with keeping items on the City's website; space is not a problem; questioned whether
agendas and minutes would be removed after four years, to which the Assistant City
Attorney responded in terms of the website, correct.
Commissioner Dieter inquired why it says agendas and minutes would be removed after
four years if there is no capacity problem, to which the Assistant City Attorney
responded information would be stale after said length of time.
The City Clerk stated some of the things that would change over time would be the
Executive Management Work Plans, Capital Improvement Plans and Environmental
Impact Reports (EIR), which are very large and could be removed after the project has
been approved and completed; said documents get updated so retaining them for a
long period might be harder; agendas and minutes are in a database; maybe agendas
and minutes can be removed from the Section.
Vice Chair Foreman noted the Planning Board never post minutes; inquired if it is
violation of the Section, to which the City Clerk responded that she would follow up on
the matter.
Commissioner Bonta stated there seem to be some things, such as the Alameda
Municipal Code, which have the current version, not the prior version for four years
past, to which the City Clerk concurred.
Chair Aguilar stated the addition should be added at the bottom [of the Section].
Vice Chair Foreman and the Assistant City Attorney concurred.
The Assistant City Attorney stated the items could be asterisked with an explanation at
the bottom; agendas and minutes will not be asterisked; the rest will because they
change after four years.
Chair Aguilar inquired whether what would be posted is always going to be the most
recent version.
The City Clerks responded in the affirmative; stated the [Municipal] Code, in particular,
is always up to date.
Commissioner Tuazon stated that he understands removing from the website; inquired
whether the information completely deleted, to which the City Clerk responded in the
negative.
Meeting of the
Open Government Commission
February 2, 2015
25",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,26,"Commissioner Tuazon stated it is still stored somewhere, just out of the website.
Commissioner Dieter stated she is glad agendas and minutes are going to be removed;
she also has a problem with EIR's, which can take up a lot of space because they are
often big; however, when a project is still being built, people may want to go back to
that, Alameda Point in particular, which was just passed last year; chances are the City
will not move forward with building anything for a couple more years; in four years when
the City is getting ready to start with one section, the EIR will already have been
removed from the website; it makes more sense to remove it from the City's website
once the project is final and has been built out.
The City Clerk stated the Alameda Point EIR would be an exception and would be left
up; people are going to be referring to it during all the phases; the Section is addressing
the more typical EIR for a smaller project that would be completed within one year.
Commissioner Dieter inquired could the language be that the EIR would be removed
[from the website] when the project has been completed, to which the Assistant City
Attorney responded staff can get terminology from Community Development to reflect
the concept, which is a valid point.
The Assistant City Attorney stated Section 12 on Public Records Index, struck language
that was supposed to happen within 12 months from the enactment of the ordinance
has been accomplished; there is no reason to keep it in the ordinance any longer;
Section 13 on Matters of Public Concern, the attempt was to rework the language
without changing the substance; the concern was it was not particularly clear; basically
saying that an employee or policy board member can express an opinion as long as it
does not materially misrepresent the position of the City or the department or the policy
by which a member belongs.
Commissioner Dieter inquired if it is similar to the one that the Commission tabled, to
which the Assistant City Attorney responded it is similar but goes to a little different
issue; stated if he is speaking as a member of the public but he happens to be on the
Planning Board, he can indicate that he is a Planning Board member but he is only
speaking on behalf of himself and not the Planning Board; he should not represent that
he is representing the Planning Board, which is what this language is intending to
address and is fair and accurate.
Vice Chair Foreman stated that he has a little bit of a problem with it; he is conflicted;
provided an example from last Council meeting when Karen Lucas spoke about the City
trying to make peace with East Bay Regional Park District and suggested the City
Manager be disqualified; stated that he can see a public employee making a public
statement that he has every right to make but that makes it difficult for the City to
perform its business; he not saying this [Ms. Lucas's commenting] is an example.
Meeting of the
Open Government Commission
February 2, 2015
26",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,27,"Commissioner Dieter stated the City Manager might make a statement that does not
necessarily represent the City.
Vice Chair Foreman added or the Mayor or a Councilmember or a member of the
Planning Board; stated they have a right to state their opinion, but questioned not to be
disciplined or reprimanded for it; someone can state any opinion on anything and it can
be as out in left field and prejudicial to the City, but if you state it as an individual, not as
a member of the body, it is not disciplined; there is case law about statements that can
be made and not be disciplined under freedom of speech; however, the language is
kind of carte blanche.
The Assistant City Attorney stated similar to the previous section, the issue is very
difficult and contentious; the courts bound around about whether or not a person is
bringing forth a matter that is of public concern, which one has the right to do,
notwithstanding the fact that the person is an employee, versus bringing forth something
that is really just complaining about one's job, which the person does not have the right
to do in a public forum; he is just trying to clarify the existing language; that is the only
purpose of making the amendments; he attempted to work with what was initially
adopted rather than trying to write a very nuanced dissertation about when an employee
can and cannot be disciplined.
Vice Chair Foreman stated his thoughts would be to not have the Section at all; leave it
to the courts to determine in individual situations because the cases are all over the
place.
The City Clerk stated the intent of the Sunshine Task Force adding the section was so
that employees or board and commission members would not feel like if they had an
opinion on a project as an individual, they could not come to a Council meeting [to
express the opinion]; people would be getting up as an individual and allowed to still
have an opinion on a specific project.
Vice Chair Foreman stated there is no such thing as the Mayor getting up in public and
making a statement about a City matter, but saying she is not doing it as Mayor.
The City Clerk noted the language used to say City board, commission or committee,
which could be changed back; specifying public employees, boards, commissions or
committees excluded the Council in the past; perhaps staff can provide that distinction;
stated just because a person on a City board does not want to feel like they are losing
their right to come, as an individual, and comment, which is the intent.
The Assistant City Attorney stated the idea is that it would be applicable to public
employees and policy bodies, other than the elected officials.
Vice Chair Foreman stated the language he does not like is: ""shall not be disciplined
for;"" ""nothing in this section shall be construed to provide rights to public employees or
policy board members beyond those recognized by law or agreement or create a new
Meeting of the
Open Government Commission
February 2, 2015
27",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,28,"private cause of action or offense to disciplinary action"" is really good language, except
it has been negated in the first sentence; the last sentence says an employee can be
disciplined and this first sentence says cannot.
Commissioner Bonta stated the first sentence says an employee cannot be disciplined
for expression of personal opinions when not materially misrepresenting their position
as an employee of the City.
The Assistant City Attorney stated this area of the law is not clear; a person has certain
constitutional rights; the idea is that the ordinance should not create additional rights
beyond that which is already recognized by law; in other words, the ordinance would not
give a separate cause of action if someone expresses an opinion and is disciplined for
it; the City does not want the fifth cause of action to be a violation of Section 2-92.6 of
the Alameda Municipal Code.
Commissioner Bonta suggested the Section be redrafted perhaps adding the language
provides ""additional rights"" to the last clause.
The Assistant City Attorney stated Section 14 is just housekeeping, clarifying language;
Section 15 has been moved to the Section on posting of information; Section 16 has
been moved into a previous section dealing with providing records; Section 17 would
change the training from every year to every third year; the video is available to
anybody elected, appointed or hired.
Commissioner Bonta questioned whether Section 2-92.15 on requests by email stating
an email has to be acknowledged by similar communication is limiting; stated there are
probably instances when calling would be helpful.
The Assistant City Attorney stated the Section can be made broader; continued that
completes [the review] all of the changes which were discussed in October; staff will
redraft the ones the Commissions suggested be worked on; if there is anything else the
Commission feels needs some fine tuning or wholesale changes, please let staff know.
Vice Chair Foreman inquired when it will be ready; stated there is no hurry but the
Commission is going to have to have a special meeting.
The Assistant City Attorney responded sometime in March or April.
Vice Chair Foreman inquired whether the Commission should schedule the meeting.
The City Clerk responded the bylaws set Mondays at 7:00 p.m. as the meeting date;
stated March 2nd would require the packet to go out February 23rd, which is a little tight;
for April 6th, the Commission would receive the packet on March 30th.
The Assistant City Attorney stated April 6th is doable.
Meeting of the
Open Government Commission
February 2, 2015
28",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,29,"Commissioner Dieter stated the Commission was provided a full copy of the Sunshine
Ordinance; having the complete Sunshine Ordinance include redlines would be easier
to follow versus going back and forth; when there is a redline suggested including a
notation, such as moved to versus deleted in its entirety; the City Council would also
really appreciate knowing what has been deleted and what has just been rearranged.
In response to Commissioner Bonta's inquiry regarding the meeting date, the City Clerk
responded the meeting could be held May 4th
Commissioner Bonta inquired whether the meeting have to be held on the first Monday,
to which the City Clerk responded the Council Chambers are available the first Monday;
that she could check availability for other dates.
The Commission agreed to hold the next meeting March 30th.
Commissioner Dieter addressed the minutes; inquired whether new agenda items could
be on a new line; stated it was extremely difficult to read a new line item at the end of
the previous line on the current minutes; if the Commission is discussing a particular
Section, have it start on a new line; even the agenda item itself could be listed; in this
particular one, there was no explanation for potential revisions; in the future, suggested
copying and pasting from the agenda into the minutes so the public would know what
the actual agenda item was.
The City Clerk inquired whether Commission Dieter is asking for example: ""3-C
Potential Revisions to the City Sunshine Ordinance,"" to which Commissioner Dieter
responded in the affirmative.
The City Clerk stated it [the agenda title] is always carried over.
Commissioner Dieter stated on the minutes we just approved they were not there.
The City Clerk responded it was there.
Commissioner Dieter stated that she would show the City Clerk after the meeting.
Vice Chair Foreman inquired how Commissioners can add things to the agenda;
inquired who does the agenda.
The City Clerk responded the City Attorney's Office and City Clerk's office staff the
Commission and add agenda items; stated if Commissioners have items to bring
forward, sometimes they have raised them during Commissioner Communications.
Vice Chair Foreman inquired what if a Commissioner wants to add an item before the
agenda goes out, to which the City Clerk responded it could be added under
Commissioner Communications; requested an example.
Meeting of the
Open Government Commission
February 2, 2015
29",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-02-02,30,"Vice Chair Foreman provided an example: recommend to Council under that the
Commission's jurisdiction should be expanded; stated the Commission is called Open
Government but the actual grant of authority is Sunshine Ordinance; other aspects of
the law pertain to open government and the Commission's role should be expanded.
The City Clerk stated the Commissioners need to provide the item greater than the
seven days ahead of [publication] time; that she would indicate that it is coming from the
Commissioner so the other Commissioners understand it is not staff generated.
Commissioner Dieter stated it is a little bit more free flowing than the City Council, to
which the City Clerk responded the City Council has an extensive Council referral
process but the Commission does not have that.
Commissioner Dieter inquired when Commissioners have referrals, should it have a
staff report.
The City Clerk responded typically, staff would want to wait to get direction from the
whole Commission before putting too much work into the matter; if the rest of the
Commission does not agree with going in that direction; stated it is easier for staff to get
direction from the whole Commission.
The Assistant City Attorney stated it is similar to a referral; if a Commissioners wants to
bring something forward, they would communicate it to the City Clerk; it would then
appear under Commissioner Communications; the Commission would have a chance to
talk about it because it would be noticed; then if there is support to bring something
back, staff would do it; if there is not support, it does not go anywhere.
COMMISSIONER COMMUNICATIONS
None.
ADJOURNMENT
There being no further business, Chair Aguilar adjourned the meeting at 9:25 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
February 2, 2015
30",OpenGovernmentCommission/2015-02-02.pdf
OpenGovernmentCommission,2015-03-30,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY MARCH 30, 2015 7:00 P.M.
Chair Aguilar convened the meeting at 7:06 p.m.
ROLL CALL -
Present:
Commissioners Dieter, Foreman, and Chair Aguilar - 3.
Absent:
Commissioners Bonta, Tuazon - 2.
ORAL COMMUNICATIONS, NON-AGENDA
None.
AGENDA ITEMS
3-A. Minutes of the February 2, 2015 Meeting
Chair Aguilar stated there were a couple places in the meeting minutes said Vice Mayor
which should say Commissioner and the Sunshine Ordinance should be capitalized,
in
a few places.
Vice Chair Foreman moved approval of the minutes as amended.
Commissioner Aguilar seconded the motion, which carried by unanimous voice vote - 3.
3-B. Potential Revisions to the Sunshine Ordinance
Assistant City Attorney Roush gave a brief presentation outlining the changes in the
redlined version of the Sunshine Ordinance.
Vice Chair Foreman stated that he was the one who raised the issue; he is satisfied with
the changes.
Commissioner Dieter thanked the Assistant City Attorney for the layout of the revisions;
stated it is easier to follow.
The Assistant City Attorney continued the presentation.
Commissioner Dieter stated that she has problems with Section 2-91.17; the title is:
""Public Comment by Members of Policy Bodies;"" in general, the Section is not about
public comment by policy bodies; it is about individuals, which led her to reread this
clause again; she expressed concern at the last meeting and continues to have the
same concern; the issue is not a sunshine issue; the role and limitations of boards and
commissions is spelled out in the Charter; the last sentence which addresses appointed
policy bodies should be deleted.
Meeting of the
Open Government Commission
March 30, 2015
1",OpenGovernmentCommission/2015-03-30.pdf
OpenGovernmentCommission,2015-03-30,2,"Vice Chair Foreman concurred; stated the Section should be deleted it in its entirety;
that he does not need to be told he has a constitutional right to speak out; he does not
know why the Section would be in the Sunshine Ordinance; everyone has the right to
speak out as individuals as long as long as speaking for themselves; boards and
commissions have the right to speak out as a body even if disagreeing with Council; the
only control Council should have is to relieve members of duties; the Section does not
add anything.
Chair Aguilar sated the Section is not just indicating members have a constitutional right
to speak out; inquired if Vice Chair Foreman wants to remove the entire Section, to
which Vice Chair Foreman responded in the affirmative.
Chair Aguilar inquired if Commissioner Dieter want to remove the last sentence, to
which Commissioner Dieter responded in the affirmative.
Vice Chair Foreman read the Section; stated if Council disagrees with a Commission on
something the only right is what they have in the Charter, to relieve members of duties;
that he does not have any idea what the second sentence accomplishes; in the next
part simply restates what is in the Charter; he does not see a purpose served by any of
it.
Commissioner Dieter stated that she does not mind having everybody know that they
can speak out for themselves; she does not have a problem reminding folks that just
because they are on a board or commission does not mean they do not have a voice in
the community; what she does have a problem with is telling policy bodies that they
cannot take a position that contradicts a policy or decision of the City Council, which is
the opposite of the intent of Boards and Commissions that exist to advise Council; for
instance, if the City Council decides not to implement bus rapid transit on the West End
and the Transportation Commission strongly opposes the position, they should have a
right to address or send a letter to the City Council; the whole purpose of Boards and
Commissions is to advise even if it against what the City Council deems fit.
Vice Chair Foreman stated as a compromise, he would not have any problem with
leaving in the first sentence through ""Section 2-91-6(e)"" and leaving out the next
sentence: ""Policy bodies shall not sanction, remove or deprive members of the rights;""
he does not know what purpose the language serves; he does want to deprive the City
Council from criticizing members any more than he wants to deprive any member from
criticizing the City Council; he would take the sentence out altogether and leave in the
part about the City Charter even though it is just restated; he would take out the
sentence prohibiting formal action; stated the first sentence should stay in, the second
sentence should be deleted, the third underlined sentence should stay in, and the final
sentence should be deleted.
Commissioner Dieter stated she had no problem with the Vice Chair Foreman's
recommendation.
Meeting of the
Open Government Commission
March 30, 2015
2",OpenGovernmentCommission/2015-03-30.pdf
OpenGovernmentCommission,2015-03-30,3,"Chair Aguilar stated that she is not sure why the second sentence is included; she
hesitates because the ordinance has gone through a committee and was accepted by
the City Council; she is a hesitant to just start deleting things; stated she does not know
that she would necessarily take out the sentences.
In response to Commissioner Dieter's inquiry about the last sentence, Chair Aguilar
stated the language is new.
In response to Commissioner Dieter's further inquiry, Chair Aguilar responded the
second sentence is being discussed.
Commissioner Dieter stated in order to reach a compromise she does not mind keeping
the language in, as long as that last sentence about policy bodies is removed.
Vice Chair Foreman stated that he does not have a problem with said suggestion; the
second sentence is meaningless to him; drafters work can be respected; however, he
questions why is the ordinance being reviewed if so much respect is given that the
Commission cannot improve it; he respects her view and would agree to keep
everything except the new sentence.
Chair Aguilar inquired if the Assistant City Attorney added the last sentence for a
reason.
The Assistant City Attorney responded in the affirmative; provided an example of the
City Council adopting a particular policy and a Commission writing a letter to an outside
agency that not necessarily contradicted what the Council had done, but certainly raised
an issue; there was some concern expressed at the Council meeting about whether or
not Commissions should do so; there is not an adopted Council policy concerning the
matter; the Section would address the matter, which does not have to be in the
Sunshine Ordinance; the City Council could adopt a standalone policy; the Sunshine
Ordinance seems an appropriate place to put it, is not necessarily the only place it has
to go; if the Commission feels the matter might be better addressed somewhere else
then staff will take that recommendation.
Commissioner Dieter stated raising the matter with Council is a good idea; that she
recalls the letter was to the Mayor, not an outside agency; the City Council can address
the policy, but she would not want to make it part of the Sunshine Ordinance.
The Assistant City Attorney stated that he drafted the language so it would not apply to
a Commission writing to the Council; it is directed to an outside agency or organization.
Chair Aguilar stated that is what it says.
Commissioner Dieter stated the language achieves prohibiting appointed policy bodies
from writing letters to outside agencies or organizations that contradicts a Council policy
Meeting of the
Open Government Commission
March 30, 2015
3",OpenGovernmentCommission/2015-03-30.pdf
OpenGovernmentCommission,2015-03-30,4,"or position, but when broadened other formal actions and activities could be constituted
as all different situations.
Vice Chair Foreman suggested taking the suggested position that it is an inappropriate
revision to the Sunshine Ordinance.
The Assistant City Attorney stated Council could take up the matter as a separate item;
inquired if the approach is acceptable, to which the Commissioners responded in the
affirmative.
The Assistant City Attorney continued the presentation.
Vice Chair Foreman stated his position last time about Section 2-92.6 was that it should
not be included; the more he reviews it, the stronger he feels that it should not be
included; if it is going to be included, it should not be under Section 2-92.6 which has to
do with records; it should be moved to Section 2-91.18; he did research on the City
employee issue; the term City employee is better; public employee could be somebody
who works for the County, federal government or State; a City employee, under case
law, can speak out on a matter of public concern other than his/her duties; speaking
pursuant to official duties does not allow first amendment protection; provided an
example: a Police Officer talking about the new fire station, which is not part of his
duties, has protection; however, if what the Officer says is knowingly or recklessly false
or if it makes it impossible for him to carry out his duties, he is not protected; inquired
whether the interpretation is generally right.
The Assistant City Attorney responded in the affirmative; stated the difficulty is trying to
distinguish between is the person speaking within his or her official duties or if the
matter is really of public concern; it is a very slippery slope.
Vice Chair Foreman stated it is a very slippery slope, which is why he thinks the Section
should not be included; stated there should not be any reference to a City Board,
Commission or Committee, which is already covered.
Chair Aguilar noted it does not [have any such reference].
Vice Chair Foreman read the first sentence; provided the argument he would use if he
were representing an employee; stated the employee can say anything he/she wants to
say and there is nothing the City can do about it; he knows that is not the intent; the
information belongs in an employee handbook.
Commissioner Dieter stated the Section does piggyback on the other Section just
discussed; roles and responsibilities of policy bodies or City employees do not seem
appropriate for a Sunshine Ordinance because the whole purpose of the Sunshine
Ordinance is to make government more transparent and give people access to their
government; to include what people are not allowed to do it is a fine line; the clause
Meeting of the
Open Government Commission
March 30, 2015
4",OpenGovernmentCommission/2015-03-30.pdf
OpenGovernmentCommission,2015-03-30,5,"says: ""so as long as an opinion does not materially misrepresent the position of the
City;"" inquired how the clause is tested.
Chair Aguilar responded there is case law.
Commissioner Dieter provided an example of the City Clerk and City Manager giving
different information resulting in an employee being fired; stated understanding this part
of the Sunshine Ordinance is a little difficult.
Vice Chair Foreman stated it is a balancing act, is very complicated and is based on the
individual facts in each case, which is another reason it is a bad idea; he does not have
a problem with including the Section for Commission members because they have an
absolute unfettered first amendment right subject to only being relieved of their duties;
however, employee do not have the same right and he does not want to mislead
employees or put the City in a position of giving an employee more rights.
The Assistant City Attorney stated the Commission is really dealing with policy issues;
dealing with policy bodies could be moved; the Section on employees can be removed
entirely or moved to Section 2-91.
Vice Chair Foreman moved approval of recommending that this provision be deleted.
Commissioner Dieter inquired how does this clause make government more
transparent, to which the Assistant City Attorney responded the City Clerk's recollection
was that the Section was included so that employees understand they have the ability to
have their voices heard in front of policy bodies without worrying about being
disciplined; Commissioners should be to so as well as long as they do not materially
misrepresent their body.
Commissioner Dieter inquired whether when the public sees a Board or Commission
member speak, they are not doing anything wrong and it is their right, to which Vice
Chair Foreman responded Board members are not being discussed; the discussion is
about city employees.
The Assistant City Attorney stated there are two parts to Section 2-92.6: one deals with
public employees and the other deals with members of a policy body; there are reasons
for including both.
Vice Chair Foreman inquired whether the Assistant City Attorney deleted some of the
Section, to which the Assistant City Attorney responded in the affirmative; stated he
separated the two.
Chair Aguilar stated the first portion deals with city employees and the second portion
deals with policy bodies.
Meeting of the
Open Government Commission
March 30, 2015
5",OpenGovernmentCommission/2015-03-30.pdf
OpenGovernmentCommission,2015-03-30,6,"Vice Chair Foreman inquired whether policy bodies are being discussed, to which the
Assistant City Attorney responded before, the Section dealt with both employees and
advisory policy bodies; stated that he was trying to be true to the previous work but
separate the Sections because different standards apply to employees and policy body
members.
Vice Chair Foreman stated if the Section is moved after the Section that covers boards,
it is totally confusing; there is one Section on policy bodies and another Section on
policy bodies and employees; the Section on policy bodies repeats the previous
Section.
Commissioner Dieter stated the matter should be in an employee handbook; as
somebody who has gathered signatures for petitions, she has often heard City
employees say they cannot sign; there is a misconception that employees do not have
the right to speak out; employees should be told what they can and cannot do when
they are hired; she understands what Vice Chair Foreman is saying.
Commissioner Dieter stated that she would second the motion as long as the
Commission is clear that City employees should be made aware what they can and
cannot do when they are hired.
Vice Chair Foreman amended his motion to recommend that the Section be deleted
from the Sunshine Ordinance and that the employee handbook include a Section which
explains to employees under what circumstances they are allowed to speak out on
matters.
Commissioner Dieter seconded the motion.
Chair Aguilar agreed with the motion.
The Assistant City Attorney noted the sentence dealing with appointed policy bodies
has already been adequately covered in the previous Section.
On the call for the question, the motion carried by unanimous voice vote - 3. [Absent:
Commissioners Bonta and Tuazon - 2.]
The Assistant City Attorney continued the presentation on the definition of meeting.
Vice Chair Foreman discussed the prior Commission unanimous vote on adopting the
Brown Act language; stated even though the structure of the ordinance's definition of
meeting is different than the structure of the Brown Act, it basically says the same thing;
the only real substantive exception being the last sentence of 2-91.1(b)(4)(C), which is
more restrictive as to what meetings would not be subject to the Brown Act.
The Assistant City Attorney responded the Section does not specifically track the Brown
Act; if anything the Sunshine Ordinance is slightly more restrictive than the Brown Act.
Meeting of the
Open Government Commission
March 30, 2015
6",OpenGovernmentCommission/2015-03-30.pdf
OpenGovernmentCommission,2015-03-30,7,"Vice Chair Foreman inquired whether [the Sunshine Ordinance is more restrictive]
simply on the issue on you a meeting cannot be held in a place charging admission, to
which the Assistant City Attorney responded in the affirmative.
Vice Chair Foreman stated Section 2-91.1(b)(4)(C) is not in the Brown Act; in respect to
what Chair Aguilar said about not wanting to turn the language inside out, he would say
to use the existing language; at the same time, he is very concerned about using
different language because using different language there is always the possibility that
some word splitting lawyer is going to say there is a difference; suggested adding a
parenthetical after ""meeting shall mean anything of the following"" which reads: ""this
definition is intended to be synonymous with meeting as defined in the Brown Act,
except for Section 2-91.1(b)(4)(C) which is intended to be more restrictive than the
Brown Act:"" then it would be crystal clear that the same thing is meant.
The Assistant City Attorney stated the language can be added if it is the direction of the
Commission.
Chair Aguilar inquired if it is meant to be synonymous; stated it is very similar
Vice Chair Foreman responded the Assistant City Attorney stated it is synonymous.
The Assistant City Attorney stated the Brown Act covers more things that are not
considered meetings; there are a couple of additional items; the fact that the Sunshine
Ordinance does not cover everything does not mean the City does not have to observe
both the Brown Act and the Sunshine Ordinance, whichever is more restrictive; all the
exceptions to meetings are not covered; it is okay to indicate that there is a particular
Subsection that, while it intended to paraphrase what is in the Brown Act, is more
restrictive; a parenthetical can be added.
Vice Chair Foreman moved that the parenthetical be added at the beginning of the
definition of the term meeting.
Commissioner Dieter seconded the motion, which carried by unanimous voice vote - 3
The Assistant City Attorney continued the presentation
Vice Chair Foreman stated he has the same issue with regard to policy body which is in
the same Section.
The Assistant City Attorney stated that he assumes Vice Chair would want to add a
parenthetical that policy bodies shall mean legislative bodies.
The Vice Chair stated that he would add a parenthetical that the definition of the term
policy body tends to be synonymous with the term legislative body in the Brown Act; the
purpose is that policy body is thought to be more descriptive.
Meeting of the
Open Government Commission
March 30, 2015
7",OpenGovernmentCommission/2015-03-30.pdf
OpenGovernmentCommission,2015-03-30,8,"Chair Aguilar stated she does not have the Brown Act in front of her so she does not
know if legislative body and policy body are synonymous.
The Assistant City Attorney responded they are; stated that he is surmising that if the
term legislative body had been used, people might be confused that it is just the City
Council and not advisory bodies, so policy bodies was used instead; if agreeable to the
Commission, a definition of policy bodies could be added because he is not sure if it is
defined.
Vice Chair Foreman stated it is defined.
Chair Aguilar stated it is Subsection 2-91.1(b)(3).
Vice Chair Foreman stated all it would say is the term is intended to be synonymous
with the term legislative body as defined in the Brown Act; stated using policy bodies
was a good idea; all bodies are not legislative bodies; policy bodies is smarter.
Vice Chair Foreman moved approval of the change stated.
Commissioner Dieter seconded the motion, which carried by unanimous voice vote - 3
The Assistant City Attorney inquired whether the Commission wants to make a motion
to adopt all the changes, including the changes made tonight; stated an overall motion
should be made to take forward to the Council.
Commissioner Dieter moved approval of recommending to City Council the adoption of
the changes that have been approved tonight and previously.
Vice Chair Foreman seconded the motion, which carried by unanimous voice vote - 3
COMMISSION COMMUNICATIONS
Commissioner Dieter stated the Commission is supposed to report to the City Council at
least once a year in writing on any practical or policy problems encountered; read the
Section of the Ordinance; inquired how the Commission plans on doing so; stated
perhaps staff wants to bring back a proposal on how to accomplish doing so; the
Commission only meets twice a year; she is not sure if it is possible for the Commission
to write an annual report; the Sunshine Ordinance says that the Open Government
Commission shall review public notices to ensure that they conform to the requirements
of this article and work to improve publicly accessible information; under said clause,
the Commission is not only supposed to be a reactive body, but is supposed to be
proactive to make sure that government is achieving its goal of transparency; it is up to
the Commission to monitor said sorts of things and come back and report if anything
could be improved upon; the City Council deserves to know the Commission is doing
right and where improvements can be made, which requires the Commissioners to work
Meeting of the
Open Government Commission
March 30, 2015
8",OpenGovernmentCommission/2015-03-30.pdf
OpenGovernmentCommission,2015-03-30,9,"independently outside of meetings; perhaps the City Attorney can help out; inquired if
Commissioners should raise issues under Communications or do as agenda items;
further inquired does it have to be formal or can it be informal; stated it is something for
the Commissioners to think about; if the Commission really want to do its job well,
Commissioners have to do something while not here sitting at the dais.
In response to Vice Chair Foreman inquiry, Commissioner Dieter stated the
Commissioners would look at City Council and Planning Board agendas and see if titles
do not meet the muster of what people can understand.
Vice Chair Foreman stated that he understands the suggestion; questioned how do to
do so as a Commission; do members take turns reviewing agendas or review them as a
group; stated he does not know how to do it; stated the next Council meeting could be
assigned to a Commissioner.
Chair Aguilar inquired in perpetuity, to which Commissioner Dieter responded the
Ordinance says the Open Government Commission shall review public notices.
Vice Chair Foreman stated that he can see doing it reactivity when a complaint is
received from someone who says an item was not properly noticed.
Chair Aguilar stated that is what has been done in the past; when there is a complaint,
the Commission addresses it; that she does not know if there has been any formal
complaints; one came up and was withdrawn; the Commission has to think about what
the Section means because the Commission only meets twice a year; both the bylaws
and the Sunshine Ordinance require meeting twice a year.
Commissioner Dieter stated that she did not set up meeting twice a year so she does
not know how that happened; the requirement is in the Sunshine Ordinance so the
Commission needs to know how to accomplish it; that she tends to look at City Council
agendas anyway so for her it is no big deal; however, when all the Commissioners
signed on, this is what the Ordinance includes as a duty.
Vice Chair Foreman stated Commissioners can informally review agendas; inquired
what a Commissioner would do if an agenda is reviewed and there is a problem.
Commissioner Dieter stated that she does not know; inquired if the matter should be
brought back under Communications.
The Assistant City Attorney stated if Commissioners see items which do not provide the
kind of information that would be most helpful to the public to understand what is being
discussed, the item could be noted to find whether there is a pattern; the Chair could
work with the City Clerk and the matter could added as an agenda item; the item could
be addressed by the Commission to determine whether or not there is a need to make a
recommendation to the Council that there needs to be some direction to clean up the
matter; the City Attorney's office strives to make sure that what is on the agenda
Meeting of the
Open Government Commission
March 30, 2015
9",OpenGovernmentCommission/2015-03-30.pdf
OpenGovernmentCommission,2015-03-30,10,"translates to the public; Commissioner could review agenda and making notes if there is
an issue that needs to be addressed.
Chair Aguilar stated Commissioners should save examples and inform her and the City
Clerk to have the matter agendized for the next meeting.
Vice Chair Foreman inquired get what agendized, to which Chair Aguilar responded the
issue; whatever the issue is that comes up.
The Assistant City Attorney provided an example of half a dozen items occurring
between now and December; when Commissioners discover items, they should notify
the Chair and the City Clerk to create a running tab and get a scope of the problem.
Chair Aguilar stated the Commission would see whether there is just one item or
several, if it global or something particular; the discussion is just hypothetical.
Commissioner Dieter stated the Ordinance says to work to improve publically
accessible information; inquired whether that is another thing or part of this.
Chair Aguilar responded it would be a part of the matter.
Commissioner Dieter stated she talked to the Assistant City Attorney; on the website,
when a meeting is canceled giving the reason would be nice, such as lack of a quorum
or lack of business; for example, that would be helpful to the public; another issue is it is
hard to find Rent Review Advisory Committee agendas on the City website.
Vice Chair Foreman stated maybe said matters ought to be included in the annual
report.
Commissioner Dieter stated the Commission has to meet to create the annual report.
Vice Chair Foreman stated the annual report is a good idea.
The Assistant City Attorney stated the Ordinance amendments could be included as
part of the annual report; if other items come to Commissioners' attention that should be
included in the report, the City Clerk and City Attorney know; a report will be drafted for
the Commission to review and make changes or additions; something can be presented
in October that can then be put into final form and sent to the City Council.
Vice Chair Foreman inquired if the Commissioners would individually do so, to which
the Assistant City Attorney responded in the affirmative; stated the Commission can
decide whether or not items should be included in the annual report.
Commissioner Dieter stated the suggestion sounds like a great plan.
Meeting of the
Open Government Commission
March 30, 2015
10",OpenGovernmentCommission/2015-03-30.pdf
OpenGovernmentCommission,2015-03-30,11,"The Assistant City Attorney stated staff can put something together and the
Commission can review it to decide what to include.
Commissioner Dieter stated there are two clauses in the Sunshine Ordinance that she
does not know if it has ever been adhered to or enforced: 1) the City Attorney shall
semi-annually make a determination about whether any closed session minutes should
continue to be exempt from disclosure based on whether the disclosure would be
detrimental to the City; 2) the City Attorney's office shall prepare and present on the City
Council Consent Calendar a list of documents which have determined to be public after
previously being determined to be unavailable; the Commission should hear whether or
not documents have been declassified at the next meeting.
The Assistant City Attorney stated that he would find out and bring back a report.
ADJOURNMENT
There being no further business, Chair Aguilar adjourned the meeting at 9:25 p.m.
Respectfully submitted,
Irma Glidden
Assistant City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
March 30, 2015
11",OpenGovernmentCommission/2015-03-30.pdf
OpenGovernmentCommission,2015-06-27,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY JUNE 28, 2015 - 2:00 P.M.
A Special meeting was called to allow the Commission to attend a Small Group
Discussion is being conducted by the League of Women Voters concerning the
Governmental Transparency.
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
June 27, 2015
1",OpenGovernmentCommission/2015-06-27.pdf
OpenGovernmentCommission,2015-10-14,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
WEDNESDAY OCTOBER 14, 2015 - - 7:00 P.M.
Chair Aguilar convened the meeting at 7:02 p.m.
ROLL CALL -
Present:
Commissioners Bonta, Dieter, Foreman, Tuazon, and
Chair Aguilar - 5.
Absent:
None.
ORAL COMMUNICATIONS, NON-AGENDA
None.
AGENDA ITEMS
3-A. Minutes of the March 30, 2015 Meeting
Commissioner Bonta stated she would pass on a few typos to the City Clerk.
Commissioner Dieter moved approval of the minutes as corrected.
Vice Chair Foreman seconded the motion, which carried by unanimous voice vote - 5.
3-B. Hearing of Sunshine Ordinance Complaints filed September 15, 2015
The Assistant City Attorney gave a brief presentation.
John Klein stated he is embarrassed about needing to be present and thought about
withdrawing the complaint because it seems trivial; however, it is not trivial; through the
whole process, which has been skeletal, the response has not been as it should be; he
submitted five individual records requests directly to the Mayor and each
Councilmember because that is the way he wanted to do it; if the City Attorney wanted
to consolidate the response, it would have been fine; however, the City Attorney's
response on the 11th does not even say who he is responding for; the City Clerk is the
custodian of records; that he did not know why he was getting an email from the City
Attorney; he thought maybe it is on behalf of the Mayor, but did not know; while the
response was timely, it did not include the information the rule requires, which is: when
the documents will be ready, how the documents will be delivered and by whom; said
information is not in the City Attorney's September 11th response; he did not know who
the Attorney was responding for and the required information was not included in the
three day response; the Attorney said he needed clarification; the City Attorney inquired
if they could talk Wednesday; when they did talk Wednesday, the clarification the
Assistant City Attorney needed was the timeframe of the requested documents;
questioned why the City Attorney did not simply ask in the original email; by that time,
the response was getting really late and he was feeling that the City's response was
Meeting of the
Open Government Commission
October 14, 2016
1",OpenGovernmentCommission/2015-10-14.pdf
OpenGovernmentCommission,2015-10-14,2,"disingenuous; he did not need to deal with a particular Attorney; if an Attorney is out of
the office for three days, the City should assign someone else to be responsible for a
response; eight days into the ten day period after the conversation with the Attorney, a
14 day extension was requested because the request was voluminous; the conversation
was at 2:30 p.m. in the afternoon, by 5:30 p.m., the Attorney knew that the response
was voluminous; questioned how he learned so much so quickly; following the emails
provided, the Attorney was asked about the definition of voluminous and never replied;
the September 11th response was inadequate because it did not include when, how and
by whom; if the City's position is that the complaint is frivolous, he suggests timelines
mean something under the rule; provided an example of timeliness involved with
receiving a parking ticket; timeliness should mean something in this instance and should
be more meaningful for the City Attorney; the responsibility to timelines does not
decrease as it goes up, but rather includes all of the responsibilities and assumes a
much higher standard; that he is a consumer of public records; he has done a number
of public record requests with the City Clerk; it is never an issue; rather than getting an
email in three days telling him when he will receive the documents, he gets the
documents; he is never told the documents will be provided next week; by the end of
three days, he has the documents; he submitted a records request this week; 12
minutes later, he received an email from the City Clerk telling when, by whom and how;
timelines matter; the complaint is not trivial given all the other incidentals of the
interaction and the disingenuous nature of how the request was handled by the
Attorney.
Vice Chair Foreman inquired if Mr. Klein has received the documents, to which Mr. Klein
responded in the affirmative.
Vice Chair Foreman inquired if he received the documents on October 2nd, to which Mr.
Klein responded that he received them on October 1st
Vice Chair Foreman inquired how voluminous were the documents, to which Mr. Klein
responded 475 pages, which is not voluminous.
Vice Chair Foreman inquired how many emails [were provided in response to the
request], to which Mr. Klein responded that he has not been through or counted the
emails; stated there are a lot of repetitive emails.
Vice Chair Foreman stated that he apologies he does not have the documentation;
however, he has read it all; inquired whether there was a statement by the City Attorney
in one of his emails to Mr. Klein that the documents had to be reviewed before they
could be released because there might be privileged material.
Mr. Klein responded that he does not have his copy; it was voluminous; eight days into
the request, it seems disingenuous to suddenly ask for an extension because the
documents are voluminous.
Vice Chair Foreman stated that he is looking at an email sent by Attorney Alan Cohen.
Meeting of the
Open Government Commission
October 14, 2015
2",OpenGovernmentCommission/2015-10-14.pdf
OpenGovernmentCommission,2015-10-14,3,"Attorney to do so during the phone call.
Vice Chair Foreman stated to understand the complaint, what Mr. Klein is saying now is
that he is not objecting to an Attorney responding as opposed to a Councilmember;
inquired whether Mr. Klein is objecting to the Attorney not disclosing who he was
representing.
Mr. Klein responded in the negative; stated when, how and who within three days; the
Attorney gave no information and left the office for three days; his request was on ice for
eight days; the issue is the response was not adequate with regard to the rule of three
days of giving who, when and how, which may seem trivial; however, it is the behavior
around it; the Attorney could have said sorry he was late and that he would do his best
to get the documents but might need a few more days; it was not like that; the
Attorney's response was defensive; he has had a lot of success of rapid turnaround
customer service with the City Clerk's office.
Vice Chair Foreman inquired if Mr. Klein had ever requested emails before, to which Mr.
Klein responded not specifically.
The Assistant City Attorney stated that he does not think anyone from his office or the
City has indicated that the complaint is trivial or frivolous; looking at Mr. Cohen's
response, it says he would like to obtain some clarification on the request and it would
be helpful to discuss it; Mr. Cohen stated he would be out of the office until Wednesday
morning; that he does not read the email as defensive; it seems reasonable for a
person trying to respond to a public record act request to want to better understand
what is being requested; when something comes to the Council, there is a responsibility
Meeting of the
Open Government Commission
October 14, 2016
3",OpenGovernmentCommission/2015-10-14.pdf
OpenGovernmentCommission,2015-10-14,4,"for the City Attorney's office to check with the Councilmembers about their individual
emails; more time is involved when making a records request of a public official as
opposed to walking into the City Clerk's office where documents can be obtained
immediately; there were reasons why it took longer than what otherwise would be
allowed; the email speaks for itself; that he does not find it to be offensive; Mr. Cohen
was trying to get some clarification; it is true the email does not say it is on behalf of the
five Councilmembers; however, since all of the requests came in on September 7th, if he
were the recipient, he would think it would be reasonable to assume it is in response to
the requests from that date.
Vice Chair Foreman stated that he does not see a problem; the Attorney should have
indicated who he was representing; however, he thinks it is obvious; when he read all of
the emails, he assumed that the Attorney was responding for everybody; Mr. Klein does
have a point that the Attorney said he wanted clarification and what he wanted to know
was the timeframe; he understands how Mr. Klein could assume there was something
ambiguous in his request; the very simple clarification could have been stated in the
Attorney's email.
The Assistant City Attorney stated the point of clarification was about the beginning
timeframe; correspondence relative to rent control issues have been before the City
Council since September, 2014; Mr. Cohen was simply asking how far back in time to
go; after a telephone conversation, the email Mr. Cohen sent to Mr. Klein on September
16th indicates that the time frame is June 1st through September 1st; that [timeline]
seems to be the point of clarification; there were emails and other material relative to
rent control that predated September 2015; that he does not disagree the email could
have been more artfully written; however, eventually Mr. Klein received the documents
within a reasonable time and within the 14 day extension.
Commissioner Bonta stated there is one way to look at the email from Mr. Cohen; ""by
whom"" is Attorney Cohen; ""how"" is by having a conversation to seek clarification;
""when"" was Wednesday morning to schedule a time; it is very clear that Mr. Klein was
frustrated by the engagement; she agrees there could have been more clarity in the
initial email response; however, it does seem like there was intention to be responsive
in the areas that Mr. Klein is primarily concerned with: when, how and whom, within the
three day timeframe.
Commissioner Dieter thanked Mr. Klein for bringing the matter before the Commission;
even if there was not a violation of the Sunshine Ordinance, the Commission strives to
make government more transparent and more accessible to individuals; Mr. Klein's
feedback may actually improve a couple of things.
Mr. Klein stated the Attorney's response sounds a lot like someone trying to talk their
way out of a parking ticket.
Commissioner Dieter inquired whether the City did respond within three business days;
and whether then, within ten days, the City stated that the request was voluminous so it
Meeting of the
Open Government Commission
October 14, 2015
4",OpenGovernmentCommission/2015-10-14.pdf
OpenGovernmentCommission,2015-10-14,5,"would take a little bit more time; stated the criteria in Sunshine Ordinance Section 2-
92.9 was met.
Mr. Klein responded the language specifies the response has to address by whom,
when and how the request will be fulfilled.
Commissioner Dieter stated that she is reading Section 2-92.9, which states a request
to inspect or obtain copies of public records that is submitted to any department or
anybody shall be satisfied no later than 10 business days unless the requester is
advised in writing within three business days that additional time is needed to determine
whether the request for records is likely to comprise a voluminous amount of separate
and distinct writings.
Commissioner Bonta inquired if Section 2-92.5 is being referenced, which indicates a
request for information to any agent of the City requires the agent to respond to said
request within three business days by providing or explaining how, when and by whom.
Mr. Klein responded in the affirmation; stated said Section is the one in his complaint.
Vice Chair Foreman stated that he thought the issue was frivolous when he first looked
at it; however, the more he reviews it, the more he is a little bit concerned; he
understand Mr. Klein received the documents in time; Mr. Klein is not complaining about
that; he is putting himself in Mr. Klein's shoes; a response was due in three days; the
response came in on the third day, which is perfectly okay; the response is clarification
is needed; Mr. Klein wrote back less than two hours later asking the Attorney to tell him
what is unclear; in hindsight from the 16th, Attorney Cohen could have very easily met
the three day requirement and still could have asked for the extension; that he does not
have a problem with staff asking for the extension; these are emails and over 400
pages, which might include privileged material; he has no problem whatsoever with the
extension; if he were in Mr. Klein's shoes, he would say the Attorney is dragging his
feet; he does not know why the Attorney was dragging his feet; it may be totally
innocent; maybe he was just going away for the weekend, but he is dragging his feet;
that he does not want the public or anyone asking for documents to feel like they have
to drag the documents out of the City; he is concerned because clearly the three day
timeline could have been met.
The Assistant City Attorney stated when a complaint has been filed under the
ordinance, the Commission hears the evidence and arguments and has to render a
formal written decision on the matter; staff needs the Commissions direction.
Commissioner Tuazon stated the way everyone communicates now with text and email
is so easy to just write something that causes more questions; if he asks somebody a
question through email, the response comes back with more questions or creates more
problems instead of addressing the issue; people need to be very careful when
answering an email; he is not saying that Mr. Cohen was reckless here; however, he did
not address the whom, when and how.
Meeting of the
Open Government Commission
October 14, 2016
5",OpenGovernmentCommission/2015-10-14.pdf
OpenGovernmentCommission,2015-10-14,6,"Commissioner Bonta stated Mr. Cohen did respond via email within the three day time
period and followed up with a phone call to get clarifying information; the height of
customer service is to actually speak to someone directly and try to get the information.
Mr. Klein stated it is difficult to understand said reasoning when the rule clearly states
within three days the requester will get a response with regarding to when, how and by
whom the request will be fulfilled.
Vice Chairman Foreman stated that is the issue; Mr. Klein is not complaining about not
getting the documents; his formal complaint is limited to the three day rule; that he leans
toward the three day rule was violated; what bothers him is that Attorney Cohen may
have a perfectly good explanation, but is not here; Attorney Cohen is the one who wrote
the email and the Commission is supposed to be having a hearing about the email.
Mr. Klein inquired whether the other party is supposed to present, to which the Assistant
Attorney responded he is present on Mr. Cohen's behalf because the documents speak
for themselves; the Commission has enough information to determine whether or not
there was or was not a violation of the ordinance; that he does not think intent, except
as read through the email, is relevant.
Vice Chair Foreman stated that is a good point; it is not a question of intent.
Vice Chair Foreman moved approval of finding that there was a violation of the three
day rule and [staff] did not comply with the requirements thereof; the needed
clarification could have easily been satisfied in three days.
Chair Aguilar stated the City met ""by whom:"" the City Attorney would be responding on
behalf of the Councilmembers; ""when"" was going to be discussed; the Attorney could
not answer ""when"" because he needed information on the timeframe; he needed to
know where to start and stop gathering information; maybe the Attorney could have put
the timeframe of the documents in the email or maybe he could not have; maybe he
thought it was going to take a lot more back and forth discussion; the Attorney needing
clarification on ""when"" then it is ""how;"" as far as she is concerned ""how"" is the only
outstanding thing.
Vice Chair Foreman stated the Attorney could not really answer ""how"" until ""when"" was
answered.
Chair Aguilar stated the Attorney needed information; maybe in his judgement a phone
call was the best way to get to the bottom of what Mr. Klein wanted without having 16
emails go back and forth; the Attorney was out of the office and said he was not going
to be available; she is having a hard time saying that the Attorney violated the Sunshine
Ordinance because the email has whom and when; how was the problem because the
Attorney needed clarification and could not address how without when.
Meeting of the
Open Government Commission
October 14, 2015
6",OpenGovernmentCommission/2015-10-14.pdf
OpenGovernmentCommission,2015-10-14,7,"The Assistant City Attorney stated the original motion failed and there needs to be
another motion or some decision made.
Chair Aguilar moved approval that the Sunshine Ordinance was not violated.
Commissioner Dieter seconded the motion, which carried by the following voice vote:
Ayes: Commissioners Bonta, Dieter, Tauzon and Chair Aguilar - 4. Noes: Vice Chair
Foreman - 1.
The Assistant City Attorney stated that he draft the decision and provide it to the
Commission.
COMMISSIONER COMMUNICATIONS
The Assistant City Attorney stated the [Sunshine Ordinance] amendments were heard
by the City Council in October; the Council has a very lively hour and a half discussion;
Council agreed with most of the non-substantive issues that the Commission agreed
with; the Council did not accept or wanted further clarification on the more difficult
issues that the Commission struggled with; the Council also raised some other issues;
he intends to bring a report back to the Commission in January or February for further
consideration of the items that the Council had concerns about, plus some new items
that have risen in the interim.
Vice Chair Foreman inquired if Commissioners could comment on the matter now, to
which the Assistant City Attorney responded the matter is not on the agenda; he was
providing information about what transpired.
Vice Chair Foreman stated that he took it upon himself to defend the Commission's
views; he very carefully limited himself defending the Commission's statements; he also
very carefully stated his personal opinion but did comment on other issues; the Council
had a problem with whether a Commission can write a letter.
The Assistant City Attorney stated the matter will be brought back.
Commissioner Dieter stated she does not mind meeting in January.
The City Clerk stated the next regular meeting is February 1st
Chair Aguilar stated maybe the matter should be addressed February 1st
Commissioner Dieter inquired if the Commission would be discussing the other two
pending issues from the last Commissioner Communication: the Commission is
supposed to issue an annual report and needs to figure out how to do so, and the City
Attorney's office is supposed to issue a report about whether or not any documents
have been declassified.
Meeting of the
Open Government Commission
October 14, 2016
7",OpenGovernmentCommission/2015-10-14.pdf
OpenGovernmentCommission,2015-10-14,8,"The Assistant City Attorney responded both matters will be placed on the agenda.
The City Clerk noted Vice Mayor Matarrese requested clarification on the annual report
as part of the Sunshine Ordinance discussion.
ADJOURNMENT
There being no further business, Chair Aguilar adjourned the meeting at 7:41 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
October 14, 2015
8",OpenGovernmentCommission/2015-10-14.pdf
OpenGovernmentCommission,2016-02-01,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY FEBRUARY 1, 2016 7:00 P.M.
Acting Chair Foreman convened the meeting at 7:06 p.m.
ROLL CALL -
Present:
Commissioners Dieter, Tuazon, and Acting Chair
Foreman - 3.
Absent:
Commissioner Bonta and Chair Aguilar - 2.
ORAL COMMUNICATIONS, NON-AGENDA
None.
AGENDA ITEMS
3-A. Minutes of the October 14, 2015 Meeting
Commissioner Dieter moved approval of the minutes.
Commissioner Tuazon seconded the motion, which carried by unanimous voice vote -
3. [Absent: Commissioner Bonta and Chair Aguilar - 2.]
3-B. Consider Further Revisions to the Sunshine Ordinance Amendments
Acting Chair Foreman outlined the packet documents; inquired how the Commission
should review the items.
The Assistant City Attorney responded the City Council concurred with the changes that
the Commission made with the exception of the items identified in the staff report.
Acting Chair Foreman stated there are four items: 1) use of electronic communication
devices; 2) submitting comments when a policy body member is not present at a
meeting; City staff disagreed with the Commission's recommendations on said two
items; 3) requiring all City Council meetings to be live streamed; and 4) responding to
public records requests.
The Assistant City Attorney stated there is also an item about public comments by
members of policy bodies and opinions of public concern; with respect to the use of
electronic communication devices, staff recommended a rule that the Council thought
would prevent use of any type of device except iPads or laptops when accessing
agenda materials; the Commission felt the provision was too restrictive and thought that
there should be a little more leeway; the City Council agreed; staff has divided the item
into three parts: 1) when a policy body is considering a general legislative matter, the
use of devices would be strongly discouraged, but not prohibited; 2) when the policy
body is considering a quasi-judicial matter, electronic communication devices would be
Meeting of the
Open Government Commission
February 1, 2016
1",OpenGovernmentCommission/2016-02-01.pdf
OpenGovernmentCommission,2016-02-01,2,"prohibited except for accessing agenda materials; and 3) not withstanding those
admonitions, devices could be used for innocuous purposes, such as a calculator,
looking up a date or contacting a family member; the provision would be largely self-
policing.
Acting Chair Foreman provided a handout; stated after he reviewed the October Council
staff report, which rejected the Commission's more liberal approach, he took it upon
himself to attend the Council meeting and defend the Commission's language; he also
presented his personal view that the language should be even broader, should not tie
into devices, and should address what is prohibited; suggested the language at the
bottom of his handout; stated the language does not say what can be done, rather it
says what cannot be done with devices; the only thing that should be prohibited is
receiving or sending private communications about the meeting; outlined the City
Council discussion from the minutes; stated the majority of the Council provided
direction to staff; however, staff has come up with something that is almost directly
contradictorily to what at least three Councilmembers want; he has drafted a paragraph
in line with what a majority of Council requested; he talked with the Assistant City
Attorney who raised the issue of quasi-judicial matters; provided the example of the
Commissions' quasi-judicial complaint hearing; stated the complainant and public have
a right to see everything Commissioners consider in making a decision; suggested a
two tier system: one for general legislative matters and one for quasi-judicial matters;
stated his recommendation is much shorter and does not provide the rationale.
Commissioner Dieter provided a handout; stated that she listened to the City Council
discussion; everyone agrees the purpose of the provision is to prohibit communicating
electronically with others during meetings because of the appearance it gives; rather
than spelling out all of the different allowable scenarios, the provision should be kept
general and say what members should do; the language could be even shorter than
Acting Chair Foreman's suggestion; the first original sentence could be retained and
rather than staff's proposed language, one sentence could cover everything; the
sentence would be: ""therefore communicating electronically with others during meetings
is prohibited;"" it is not necessary to tell anybody using a device is allowed if there is an
emergency; the language can be streamlined a little bit more to achieve the purpose.
In response to Acting Chair Foreman's inquiry, Commissioner Dieter stated her
understanding is the provision's purpose is to have members not communicate with
each other; members should be paying attention to what's being done; using an
electronic device to look up a word is fine; communicating gives a bad appearance.
The City Clerk stated the Sunshine Task Force included the provision because they did
not want somebody to not go on record publicly and try to influence the decision makers
during the meeting; communication is what the Task Force honed in on.
Commissioner Dieter stated the Sunshine Ordinance just states do not communicate on
electronic devices while at the dais, which covers everything and is very simple.
Meeting of the
Open Government Commission
February 2, 2015
2",OpenGovernmentCommission/2016-02-01.pdf
OpenGovernmentCommission,2016-02-01,3,"Commissioner Tuazon stated the matter is common sense; the public wants 100%
attention; questioned why members would be communicating with someone else.
Commissioner Dieter stated that is the whole point.
Acting Chair Foreman stated everyone agrees on said matter.
The Assistant City Attorney stated the language suggested by Acting Chair Foreman or
Commissioner Dieter certainly works; the Mayor has asked on a couple occasions
whether or not she can use an electronic device calendar or calculator and is wondering
whether language should be added to indicate that there is an exception for innocuous
use, such as a calendar, calculator, or communicating with a family member; not
allowing innocuous use would prohibit calling a spouse; language does not have to be
added; he could indicate to Council that it is understood and implicit, but he questions
whether it should be expressed.
Commissioner Dieter stated it is expressed in the first part.
Acting Chair Foreman stated he has a problem with the first sentence.
Commissioner Dieter stated the first is not her language, which was already there.
In response to Acting Chair Foreman's inquiry, Commissioner Dieter stated that she is
suggesting a sentence in place of the language provided by staff.
Acting Chair Foreman stated he does not want the first sentence included.
Commissioner Dieter inquired whether Acting Chair Foreman would like to eliminate the
whole provision and start from scratch.
Acting Chair Foreman responded the reason he is opposed is that he does not agree
with it at all; stated he made that point to Council and convinced three of them that in
this day and age, the use of electronic communication devices does not lead to the
public perception that a member is receiving information, everybody uses devices all the
time;
Commissioner Dieter's language regarding prohibiting electronically
communication with others during meetings creates the exact problem that the Assistant
City Attorney and the Mayor have referenced; his language includes that members are
prohibited from sending or receiving business related emails, texts and instant
messages during the meeting; members would be allowed to email a spouse or family
member and could use electronic devices for anything other than communicating with
others regarding business related matters; said language is what is missing.
Commissioner Dieter stated the language is not missing.
Acting Chair Foreman stated he does not like the first part.
Meeting of the
Open Government Commission
February 1, 2016
3",OpenGovernmentCommission/2016-02-01.pdf
OpenGovernmentCommission,2016-02-01,4,"Commissioner Dieter stated that she is open to scratching the entire thing and starting
over; she tried to rewrite the provision; the language already addresses receiving
information relative to the subject matter at hand.
The Assistant City Attorney inquired whether the two suggestions could be combined;
stated language could state: in order to ensure that all communications to policy board
members presented in a public meeting are shared with the public, communicating
electronically with others during public meetings is prohibited when pertaining to the
business thereof.
Commissioner Dieter and Acting Chair Foreman stated said language is fine.
Acting Chair Foreman stated the Commission agrees on the language except he still
thinks separate language is needed for quasi-judicial proceedings.
Commissioner Dieter stated that she does not think that the general public will know
what quasi-judicial means.
Acting Chair Foreman stated that he is not concerned about the general public not
knowing; the term can be explained; the important thing is the City has to let
Councilmembers know that they cannot refer to anything that is not in public view at a
quasi-judicial hearing.
Commissioner Dieter stated she has no problem if someone wants to look up a word.
The Assistant City Attorney stated a conditional use permit would be a good example; if
somebody applies to sell liquor at a gas station, a conditional use permit would be
needed and would come before the Planning Board; if the use is denied, the applicant
would have to appeal the matter to the City Council.
Acting Chair Foreman stated the applicant has no idea what the Councilmember is
checking; the applicant has the right to know everything being considered in a quasi-
judicial proceeding.
Commissioner Dieter stated the problem lies with communicating to outside people
which is the intent behind the provision; anyone can be at home and look up anything
so nothing would be hidden from the public; the main issue is not having people
communicate with others.
Commissioner Tuazon stated that he feels strongly about it; members need to give
100% of their attention; outside communication should be prohibited; noted that he does
not have a cell phone or laptop.
Commissioner Dieter inquired whether Commissioner Tuazon would have a problem
with a Councilmember looking something up on the Internet while at the dais to help in
making a decision or become more informed.
Meeting of the
Open Government Commission
February 2, 2015
4",OpenGovernmentCommission/2016-02-01.pdf
OpenGovernmentCommission,2016-02-01,5,"Acting Chair Foreman stated a Councilmember might want to look at a Google map
regarding rezoning a piece of land.
Commissioner Dieter inquired whether Commission Tuazon would be offended by said
Councilmember.
Commissioner Tuazon responded in the affirmative; stated homework should be done in
advance.
Acting Chair Foreman inquired about the Assistant City Attorney's view on the quasi-
judicial issue; further inquired whether he is being too legalistic.
The Assistant City Attorney responded that he thinks the way the first sentence has
been redrafted is probably broad enough to cover the quasi-judicial issue; in an
abundance of caution, language could be added; however, in the staff report to Council,
he could indicate that implicit in the language is honoring the notion that quasi-judicial
matters have to be observed.
The Commissioners expressed consensus.
The Assistant City Attorney stated that he understands the introductory non-substantive
sentence would be deleted.
Acting Chair Foreman inquired what section the Assistant City Attorney is referring to.
The Assistant City Attorney responded Section 2-91.4H; stated the sentence would
state: in order to ensure that all communications to policy board members presented in
a
public meeting are shared with the public, members are prohibited from
communicating electronically with others during public meetings that pertain to the
business thereof.
Acting Chair Foreman inquired whether staff would go to the Commission or Council, to
which the Assistant City Attorney responded based on the outcome tonight, he will
prepare an agenda report that will go to Council that would reflect the Commission
direction.
Acting Chair Foreman stated the next item is regarding submitting comments when a
policy body member is not present at a meeting.
The Assistant City Attorney stated the Commission discussed the matter before and felt
comfortable that if a member was not present at a meeting, the member should not be
able to submit comments on the item; the City Council did not agree and directed that
the prohibition be deleted; it has been deleted, but the Commission has the discretion
to
add the item back.
Meeting of the
Open Government Commission
February 1, 2016
5",OpenGovernmentCommission/2016-02-01.pdf
OpenGovernmentCommission,2016-02-01,6,"Commissioner Dieter stated that she is fine with the City Council's recommendation;
she listened to their deliberation and it made sense to her.
The Commissioners expressed consensus.
Acting Chair Foreman stated the next item is requiring all City Council meetings to be
live streamed.
The Assistant City Attorney stated live steaming is a new issue that came up as a result
of a rent control meeting; the matter became an issue regarding not being able to move
the meeting location because of the inability to live stream; the public safety issue
needed to be addressed; the idea was to bring some amendments to the Commission
to allow for relocating a meeting even though the proceedings could not be live
streamed; hopefully, these situations will be few and far between; public safety has to
be paramount to live streaming; the audio and video would be recorded and available,
but the meeting would not be live streamed.
Commissioner Dieter stated that she read the matter over and had a question at the
very beginning; the ordinance states meetings shall be audio or video recorded; she
does not know whether it should actually say live streamed recorded; it is fine the way it
is; her recommendation to make it a little shorter has been provided to the Assistant City
Attorney; rather than spelling out due to the nature of the item or items under
discussion, one sentence should read: meetings held outside City Hall may not be
available via live streaming; instead of spelling out audio and video every time, it should
just say all recordings will be archived; that she looked back at the minutes from a year
ago and understands why archiving for 10 years was used; when storage becomes an
issue, the matter might come back to the Commission; right now, the matter is not an
issue; 10 years should be changed to indefinitely.
Acting Chair Foreman inquired how the City Clerk feels about the recommended
changes, to which the City Clerk responded the way that technology and storage
capacity is going, videos will probably be kept indefinitely; stated the City is under
contract; all data is kept on a server; the City pays a fee; there are backups if anything
happens to the data; suggested adding: a minimum of 10 years and potentially
indefinitely based on storage capacity.
Commissioner Dieter stated that including both is confusing to the public; if the City is
trying to communicate that things would not be deleted, just say indefinitely, so the
public knows that they can check with the City Clerk to find something; if it becomes
a
problem, it can be addressed at that time; this is the City's history; it is important that the
public be able to view the archives in the future; that she feels very strongly about the
matter; no one knows how a historical reference could impact something down the road
or whether someone might want to understand the history of something; it is important
to strive for indefinitely until it becomes a problem.
Meeting of the
Open Government Commission
February 2, 2015
6",OpenGovernmentCommission/2016-02-01.pdf
OpenGovernmentCommission,2016-02-01,7,"Acting Chair Foreman stated the only problem he has with the issue is that the matter
was brought up because of the problem of moving the meeting; nobody has asked the
Commission to change the archive section; when the Commission went over the entire
Code, the decision was to leave in 10 years; that he is not saying the issue should not
be reviewed; however, he questions whether this is the time to do so; a separate
section addresses keeping records; the Commission reviewed the matter and voted on
10 years; some Commissioners might have voted against it but it was kept at 10 years;
the matter was sent back to the Commission because of the live streaming issue.
The City Clerk noted Section 2-91.4C reads for a period of at least 10 years.
Acting Chair Foreman inquired about the written record, to which the Assistant City
Attorney responded the Commission talked about Section 2-92-4, which requires
documents to be posted on the website for at least four years; stated some
modifications have been made.
Acting Chair Foreman inquired where the 10 years is coming from, to which the City
Clerk responded the original ordinance.
Acting Chair Foreman stated 10 years is underlined like it is new language, inquired
whether the current section says 10 years.
The City Clerk responded in the affirmative; stated the section states: the City shall
make such audio or video recordings available via live streaming, as well as archived in
a digital form, in a centralized location on the City's website within 72 hours from the
date of the hearing and for a period of at least 10 years after the date of the meeting.
Acting Chair Foreman stated the language is not new.
The Assistant City Attorney stated the idea is that 10 years would be referenced in the
following sentence.
Acting Chair Foreman inquired why the matter is being raised.
The Assistant City Attorney responded the issue of allowing meetings to be held at
places where live streaming is not available arose because of the hiccup when trying to
locate a meeting outside of City Hall.
Acting Chair Foreman stated the Commission reviewed the whole statue last year and
did not change the language; now the Commission is being asked to deal with one
issue, which is being used as a device to change other language, which he does not
necessarily disagree with.
The Assistant City Attorney stated it is incumbent on staff to bring proposed
amendments to the ordinance to the Commission's attention when issues are found;
Meeting of the
Open Government Commission
February 1, 2016
7",OpenGovernmentCommission/2016-02-01.pdf
OpenGovernmentCommission,2016-02-01,8,"staff felt that it was timely to bring the matter to the Commission's attention; the
Commission can either revise the language to leave it.
Commissioner Dieter stated the Open Government Commission is here to make
revisions; nothing is ever set in stone; the Commission can always make changes;
things can always be made better; public records should be saved forever since they
contain historical information about how and why certain laws were enacted; money has
been spent on holding meetings; money should be spent to preserve meetings; history
matters; the past is a valuable primary source for future generations, which the public
will be able to see historic events as they unfolded; no one knows which decisions will
be the most valuable; being able to see the Council and those who spoke connects
future generations; that she feels very strongly that 10 years should not be used unless
storage becomes a problem for the City.
Acting Chair Foreman inquired whether Commissioner Dieter is making a motion to
change the language, to which Commissioner Dieter responded the language should be
to what she provided.
Acting Chair Foreman called for a vote on keeping the records indefinitely, which did not
receive three affirmative votes by the following voice vote: Ayes: Commissioners Dieter
and Tauzon - 2. Abstentions: Acting Chair Foreman - 1. [Absent: Commissioner
Bonta and Chair Aguilar - 2.]
The Assistant City Attorney stated the language would be brought to the Council with
the note that there was not a majority vote.
Acting Chair Foreman stated he would change his vote to aye, which caused the motion
to carry by unanimous voice vote - 3. [Absent: Commissioner Bonta and Chair Aguilar
- 2.]
Acting Chair Foreman stated the next item is public comments by members of policy
bodies and opinions of public concern.
The Assistant City Attorney stated the Commission did not feel that there is a particular
reason to include the two sections in the ordinance, but reluctantly went along with the
language recommended by staff; Council felt that neither section is really important or
critical to the Sunshine Ordinance; the Commission and Council recommendation is that
the sections be deleted; deletion is proposed unless the Commission feels differently.
Commissioner Dieter moved approval of the City Council recommendation to delete the
sections.
Commissioner Tauzon seconded the motion, which carried by unanimous voice vote -
3. [Absent: Commissioners Bonta and Chair Aguilar - 2.]
Acting Chair Foreman stated the next item is responding to public records requests.
Meeting of the
Open Government Commission
February 2, 2015
8",OpenGovernmentCommission/2016-02-01.pdf
OpenGovernmentCommission,2016-02-01,9,"The Assistant City Attorney stated the issue arose from Mr. Klein's complaint
concerning the time to respond to requests and the Sunshine Ordinance not mirroring
the timeframes under the Public Records Act (PRA) when a local agency needs longer
than 10 days; staff drafted language to delete the need to respond within three days and
added a provision to allow a reasonable extension not to exceed 14 days if the material
cannot be readily accessed or made available to the requester.
Commissioner Dieter stated she has no problem with the suggested edit.
Acting Chair Foreman stated that he thought the response period is 10 days.
The Assistant City Attorney stated 10 days is for a typical situation, but staff added
language; when there are unusual circumstances, the time to respond can be extended
which, is consistent with the PRA.
Acting Chair Foreman inquired whether it is under Section 2-92.2, to which the Assistant
City Attorney responded in the affirmative; stated it is Subsection C.
Commissioner Dieter stated that she has a slight aversion to citing the Government
Code because the reader has to look up the Government Code to see the provision;
she is flexible; suggested adding a qualifier, such as the need to compile data from a
voluminous record; she is open if other commissioners want to have people read the
Government Code.
Acting Chair Foreman inquired whether a lot of extra language would need to be added,
to which the Assistant City Attorney responded that he was simply trying to not be
wordy; stated the language could be added.
Acting Chair Foreman stated Commissioner Dieter has made him more conscience of
the issue; that he originally thought that the Sunshine Ordinance should be cut down
and not include parts that are redundant; however, Commissioner Dieter has convinced
him this section pertains directly to members of the public and needs to be understood;
that he does not want the public to have to refer to the Government Code.
The City Clerk stated if the Government Code changes, the Sunshine Ordinance would
be out of sync which could cause a problem and is often why only the citation is given.
Commissioner Dieter suggested including a qualifier, such as the need to compile data
from a voluminous record.
The Assistant City Attorney stated doing so is easy enough.
Acting Chair Foreman inquired if everyone is in favor.
Commissioner Tauzon stated he is in favor of the Council recommendation.
Meeting of the
Open Government Commission
February 1, 2016
9",OpenGovernmentCommission/2016-02-01.pdf
OpenGovernmentCommission,2016-02-01,10,"Commissioner Dieter inquired about an issue on the last page of the Sunshine
Ordinance, which is not on the agenda, regarding providing training for City employees
and officials.
The City Clerk responded training is recorded and available.
Commissioner Tauzon inquired whether every employee has to go through the training,
to which the Assistant City Attorney responded in the affirmative.
3-C. Adopt the Annual Public Report
Acting Chair Foreman stated the Annual Public Report is posted on the City's website;
the report addresses alleged violations brought to the Commission's attention during the
previous calendar year; inquired what Commissioners think about the wording.
Commissioner Dieter responded the wording is fine; suggested adding reference to
Sunshine Ordinance Section 2-93.6.
Acting Chair Foreman inquired whether the Commission concurred.
Commissioner Tauzon inquired whether a report would need to be filed if there is
nothing to report, to which Commissioner Dieter responded in the affirmative.
Acting Chair Foreman stated the public wants to know whether or not complaints have
been filed.
The Assistant City Attorney stated that he wanted to ensure the item is responsive to
what Commissioner Dieter is looking for.
3-D. Informational Report Concerning Disclosure of Documents that have been
Determined to be Public After Previously Determined as Unavailable to the Public
Commissioner Dieter stated two relevant sections deal with City Attorney reports:
Sections 2-91.8 and 2-91.12E inquired whether a report would be presented to Council
on the Consent Calendar as a public report.
The Assistant City Attorney responded the report, which makes reference to a list of
various litigation, claims etc., goes to Council twice a year.
Commissioner Dieter stated Section 2-91.8 addresses making a determination about
whether documents can be disclosed; inquired whether the matter would also go to
Council on the Consent Calendar.
The Assistant City Attorney responded that he does not know; stated he would bring the
matter to the City Attorney's attention.
Meeting of the
Open Government Commission
February 2, 2015
10",OpenGovernmentCommission/2016-02-01.pdf
OpenGovernmentCommission,2016-02-01,11,"Commissioner Dieter stated the public would realize nothing has been declassified even
though it is required semiannually.
The Assistant City Attorney stated said matter can easily be included with the report.
Commissioner Dieter stated at least once annually, the Commission also needs to
report to the Council, in writing, any practical or policy problems encountered in the
administration of the Sunshine Ordinance; that she is wondering if the issue of
declassifying documents should be reported to the City Council; it is difficult for the
Open Government Commission to weigh in on documents being declassified because
the provision is not clear; things need to be spelled out and perhaps included in the
Sunshine Ordinance, which the Council can discuss; clarification is needed on the
criteria for disclosure, the process to determine the risk of disclosing documents, who
decides to take the risk--the Council or City Attorney, and who decides when something
can be disclosed; a mechanism needs to be put in place for community members to
request classified documents to be declassified; a Commissioner or Councilmember
might want something to be declassified; a mechanism needs to be in place for the
public to ask for something and get a response about why something may or may not
be able to be disclosed.
The City Clerk stated in the past on several occasions, the Council has voted to allow
closed session information to be disclosed; when a request is made from a member of
the public, staff will provide the legal reasoning why the information is not being
disclosed; provided an example of the recent hiring of the City Manager; stated an
explanation is given to the requestor.
Commissioner Dieter stated the Commission does not know the criteria used to judge
the matter; something should be added to the Sunshine Ordinance to make things more
transparent so that the Commission can handle complaints.
The Assistant City Attorney stated the sentence in question says: the Commission shall
report, in writing, to the City Council at least once annually about any practical or policy
problems encountered in the administration of this chapter; if the Commission wants to
identify what it sees as practical or policy problems, it is within the Commission's
jurisdiction; that he is not sure whether staff can do so; the Commission might want to
appoint an ad hoc committee to address the matter and return back to the Commission.
Acting Chair Foreman stated Commissioner Dieter has already laid out the issue;
requested that the matter be put in writing and considered at the next meeting;
questioned if spelled out in State law; stated real property transactions, contracts, and
labor agreements that take place in closed session typically end up in open session;
outlined an example of closed session information being requested on the
subcommittees set up to help Council select the new City Manager; questioned whether
there is a way to challenge the issue.
Meeting of the
Open Government Commission
February 1, 2016
11",OpenGovernmentCommission/2016-02-01.pdf
OpenGovernmentCommission,2016-02-01,12,"Commissioner Dieter added another example of when the Del Monte project was
addressed, the Council indicated the City would open itself up to litigation if the
ordinance was repealed; the ordinance was not repealed; seeing the legal reasoning
behind the matter would be interesting; it is important that the City Attorney include the
matter regarding closed session minutes in the report on the Council's Consent
Calendar.
Acting Chair Foreman inquired whether Commissioner Dieter would draw something up
to review in October.
Commissioner Dieter responded the first thing is to have the Assistant City Attorney talk
to the City Attorney to ensure that the report on documents that are determined to be
undisclosed will be added to the Consent Calendar.
The Assistant City Attorney stated Section 2-91.8A refers to any closed session minutes
being exempt from disclosure based on whether the disclosure would be detrimental to
the City and a report should be provided to Council.
Commissioner Dieter stated the report should be on the Consent Calendar for the
public; that she would provide ideas to incorporate in a staff report for the Commission
to figure out 1) criteria for disclosure, 2) the process to determine risk, 3) who decides
the risk, and 4) a mechanism for the public.
Acting Chair Foreman inquired whether Commissioner Dieter had a chance to talk to
the Assistant City Attorney about the fact that the Sunshine Ordinance requires that
there be a new Chair every year; stated the matter is not on the agenda; inquired how to
handle the matter.
The Assistant City Attorney responded it would probably be best to place the item on
the October agenda.
Commissioner Dieter inquired whether it would be okay to wait until October to work on
the other part [disclosing documents].
The Assistant City Attorney responded in the affirmative; stated a special meeting could
be held assuming there is Commission interest and space availability.
Commissioner Dieter stated City staff has to prepare a report; disclosing documents is a
big deal in the community right now; the matter can be put on the shelf until October or
could be discussed at an earlier date.
The City Clerk stated a meeting has to be held if a complaint is filed and the item could
be added.
Commissioner Dieter stated that she hopes that a complaint is not filed.
Meeting of the
Open Government Commission
February 2, 2015
12",OpenGovernmentCommission/2016-02-01.pdf
OpenGovernmentCommission,2016-02-01,13,"The Commission agreed to wait until October.
The Assistant City Attorney stated if the report is prepared earlier and ready to go, a
meeting could take place after being noticing.
Acting Chair Foreman stated the Chair could be addressed then too.
COMMISSIONER COMMUNICATIONS
Commissioner Dieter stated part of the Commission's responsibility is to review public
notices to confirm that they conform to the requirements of the Sunshine Ordinance and
to work to improve public accessible information.
The Assistant City Attorney stated the gist is to ensure that public notices adequately
communicate what is being considered; a person off the street who may not otherwise
be interested should be able to understand the agenda.
Acting Chair Foreman inquired what should be done if something on an agenda is
ambiguous.
The City Clerk responded a Commissioner can let her know; stated summary titles have
been added as a result of people pointing out ambiguity at a past Open Government
Commission meeting; a summary title is used when a title seems legalistic and lengthy,
including multiple resolutions or actions; the summary title is in plain English; staff has
been very careful and diligent with titles.
Acting Chair Foreman stated people can get detail of by clicking on the number to the
left online; perhaps stock language should be added to the agenda item providing
instruction on how to locate details.
The City Clerk stated instructions are available in a separate document online.
ADJOURNMENT
There being no further business, Acting Chair Foreman adjourned the meeting at 8:26
p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
February 1, 2016
13",OpenGovernmentCommission/2016-02-01.pdf
OpenGovernmentCommission,2016-07-14,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
THURSDAY JULY 14, 2016 10:00 A.M.
A Special meeting was called to allow the Commission to attend Sunshine Ordinance
Training.
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
July 14, 2016
1",OpenGovernmentCommission/2016-07-14.pdf
OpenGovernmentCommission,2016-10-03,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY OCTOBER 3, 2016 - - 7:00 P.M.
p
Chair Aguilar convened the meeting at 7:00 p.m.
ROLL CALL -
Present:
Commissioners Dieter, Foreman, Tuazon, and Chair
Aguilar - 4.
Absent:
Commissioner Henneberry - 1.
ORAL COMMUNICATIONS, NON-AGENDA
None.
AGENDA ITEMS
3-A. Select Chair and Vice Chair
Commissioner Dieter moved approval of nominating Commissioner Foreman as Chair.
Commissioner Tuazon seconded the motion, which carried by unanimous voice vote -
4. [Absent: Commissioner Henneberry - 1.]
Chair Foreman moved approval of nominating Commissioner Dieter as Vice Chair.
Commissioner Tuazon seconded the motion, which carried by unanimous voice vote -
4. [Absent: Commissioner Henneberry - 1.]
3-B. Minutes of the February 1, 2016 Meeting
Commissioner Dieter noted that she provided some corrections to the February 1
minutes to the Assistant City Clerk.
Commissioner Aguilar moved approval of the minutes with the corrections.
Commissioner Tuazon seconded the motion, which carried by unanimous voice vote -
4. [Absent: Commissioner Henneberry - 1.]
3-C. City Attorney Semi-Annual Reports to the City Council
The City Attorney stated her office complied with the Sunshine Ordinance requirement
and is showing evidence of the same in the staff report.
Vice Chair Dieter inquired whether the discussion about the closed session minutes
remaining exempt from disclosure is included under the background or discussion
section of the staff report.
Meeting of the
Open Government Commission
October 3, 2016
1",OpenGovernmentCommission/2016-10-03.pdf
OpenGovernmentCommission,2016-10-03,2,"The City Attorney responded the Sunshine Ordinance requires a semi-annual report to
determine whether items that were not previously disclosed publicly could be made
available for public disclosure or should remain exempt from public disclosure; stated
items that are determined not to be disclosed could be made available later.
Vice Chair Dieter stated the determination of the items should be placed under the
discussion section of the staff report so as not to confuse the public; placing it under the
background section implies that items previously not disclosed publicly are forever more
undisclosable.
The City Attorney stated her office will comply with Vice Chair Dieter's request to place
items under the Discussion section.
Vice Chair Dieter suggested different language for the title of the semi-annual report:
""Recommendation to Accept a List of Documents Which Have been Determined to be
made public after being determined not being made available to the public"" instead of
""
Litigation and Liability Claim Settlements.
""
The City Attorney stated that she is willing to modify language to satisfy the
Commission's concerns; it is not necessarily that items are being disclosed that were
not previously disclosed, but even before the Sunshine Ordinance, the City Attorney's
office was required to submit a semi-annual report on litigation and liability claim
settlements; the report also includes settlements; the report has two parts.
Commissioner Aguilar stated it may be easier for the public to understand if the report
title distinguishes the two parts; suggested the title include numeration i.e., 1) the
settlements, and 2) documents disclosable to the public.
Vice Chair Dieter concurred with Commissioner Aguilar's suggestion; inquired whether
the word ""declassified"" could be used instead of ""disclosed"" in terms of the documents.
The City Attorney responded the City does not have secret, classified documents, so
the term does not apply.
Vice Chair Dieter stated that she is concerned that when did an online search of the
City's website using the general search bar, no results would come up; inquired whether
there is an easier way to find documents using the search feature.
The Assistant City Clerk responded documents are not housed on the main website;
suggested searching under Key Documents.
Commissioner Aguilar inquired whether Vice Chair Dieter was searching for the reports
stating which documents were disclosable, instead of for the documents themselves, to
which Vice Chair Dieter responded in the affirmative.
Meeting of the
Open Government Commission
October 3, 2016
2",OpenGovernmentCommission/2016-10-03.pdf
OpenGovernmentCommission,2016-10-03,3,"Vice Chair Dieter stated that she could not find the report online on the City's website;
part of the Commission's responsibility is to peruse the database; if she could not find
the document, the public would not be able to find it; the report is routinely prepared
every six months; she would like to be able to search to find past documents.
The Assistant City Clerk stated that whenever a meeting packet is distributed, it is also
published online, archived, and should be searchable; stated she would find out how
Vice Chair Dieter was conducting her search and help her with the search feature.
Commissioner Tuazon stated that he has not had any problems finding documents he
searches for on the City website.
In response to Vice Chair Dieter's inquiry regarding how to address a complaint from
the public regarding why documents are not disclosable to the public, the City Attorney
stated a Commissioner making a judgment on legal judgments would be going beyond
what the Commission is impaneled to do; the City Attorney's office gives legal advice to
the City Council and the Council makes the determination; it is not the charge of the
Commission to be second-guessing the legal advice.
In response to Chair Foreman's inquiry, the City Attorney stated it is not this
Commission's role to be a substitute for legal judgment.
In response to Vice Chair Dieter's inquiry, the City Attorney stated if someone wants to
complain about why documents are not being disclosed, there is no known avenue for
recourse, short of filing a lawsuit where they felt they have the right to see documents
were pertinent to their case.
Vice Chair Dieter inquired what is the recourse if a Councilmember wants to have a
document disclosed to the public, to which the City Attorney responded the
Councilmember would have to make the request in Closed Session and the issue would
be voted on; a single Councilmember cannot decide to waive attorney-client privilege, it
has to be approved by the Council as a whole.
The City Attorney inquired whether there is a specific reason why the matter has
become a concern for the Commission, or if there is an issue the Commission feels the
City is not addressing appropriately.
Vice Chair Dieter responded in the negative; stated the issue has been discussed on a
few blogs; she wanted to hear the information and provide background to anyone
listening.
Commissioner Aguilar stated, in her experience, closed session minutes are not
disclosed.
The City Attorney concurred with Commissioner Aguilar; stated there has never been a
process of disclosing closed session minutes in her experience with three different
Meeting of the
Open Government Commission
October 3, 2016
3",OpenGovernmentCommission/2016-10-03.pdf
OpenGovernmentCommission,2016-10-03,4,"cities, including Alameda; the Council does, however, report on claim settlements
previously discussed in closed session after an agreement has been signed; there are
many other issues discussed in closed session, including personnel issues, legal
strategies, legal advice, etc., which would be detrimental to the City if disclosed to the
public.
COMMISSIONER COMMUNICATIONS
Vice Chair Dieter stated it is that time again for the Commission to provide their annual
report; recommended combining two issues into one report, including policy problems
and alleged violations.
The City Attorney inquired whether the Commission's annual report would be presented
to the Council, or just fulfilling a requirement of the Commission.
Vice Chair Dieter responded the annual report is a requirement the Commission needs
to fulfill under Section 2-93.6, the section also states that the Commission could
request, with advanced notice, a tally of the number of records requests made of the
City Clerk's office; stated she thinks the public would find it fascinating to know how
many public records requests the clerk's office has to process.
Chair Foreman stated the items should be included on the agenda for the next meeting.
ADJOURNMENT
There being no further business, Chair Foreman adjourned the meeting at 7:37 p.m.
Respectfully submitted,
Irma Glidden
Assistant City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
October 3, 2016
4",OpenGovernmentCommission/2016-10-03.pdf
OpenGovernmentCommission,2017-02-06,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY FEBRUARY 6, 2017 7:00 P.M.
Chair Foreman convened the meeting at 7:00 p.m.
ROLL CALL -
Present:
Commissioners Aguilar, Dieter, Little, and Chair
Foreman - 4.
Absent:
Commissioner Henneberry - 1.
ORAL COMMUNICATIONS, NON-AGENDA
None.
AGENDA ITEMS
3-A. Minutes of the October 3, 2016 Meeting
Vice Chair Dieter moved approval of the October 3, 2016 Minutes.
Commissioner Aguilar seconded the motion, which carried by unanimous voice vote
-
4. [Absent: Commissioner Henneberry - 1.]
3-B. Accept the Annual Public Report
Vice Chair Dieter stated she thinks the agenda title, ""Accept the Annual Public Report""
is unclear; she suggested adding the words ""on alleged violations of the Sunshine
Ordinance and the Number of Public Records Requests"" to the title the next time the
report is on the agenda, so that the public will know exactly what the report is when
reading the agenda title.
The Assistant City Attorney took note of Vice Chair Dieter's comments.
Commissioner Aguilar moved approval of accepting the annual report.
Commissioner Little seconded the motion, which carried by unanimous voice vote - 4.
[Absent: Commissioner Henneberry - 1.]
COMMISSIONER COMMUNICATIONS
Vice Chair Dieter inquired the time frame of the Semi-Annual and Annual Reports, to
which the Assistant City Attorney responded she does not know at the moment, but will
provide the answer at the next meeting.
Vice Chair Dieter requested a copy of the revised Sunshine Ordinance.
Meeting of the
Open Government Commission
February 6, 2017",OpenGovernmentCommission/2017-02-06.pdf
OpenGovernmentCommission,2017-02-06,2,"The Assistant City Clerk stated she would provide copies to all Commissioners.
In response to Chair Foreman's inquiry about when he was elected Chair, the Assistant
City Attorney stated the Commission meets twice a year and he was elected in October
2016.
Chair Foreman stated he thought the election of officers takes place at the first meeting
in February.
The Assistant City Attorney stated she will check on the practice, review the by-laws,
and inform the Commission.
ADJOURNMENT
There being no further business, Chair Foreman adjourned the meeting at 7:09 p.m.
Respectfully submitted,
Irma Glidden
Assistant City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
February 6, 2017
2",OpenGovernmentCommission/2017-02-06.pdf
OpenGovernmentCommission,2017-10-02,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY
OCTOBER 2, 2017 - - - 7:00 P.M.
Vice Chair Dieter convened the meeting at 7:05 p.m.
ROLL CALL -
Present:
Commissioners Henneberry, Little, Schwartz, and
Vice Chair Dieter - 4.
Absent:
Chair Foreman - 1.
ORAL COMMUNICATIONS, NON-AGENDA
None.
AGENDA ITEMS
3-A. Minutes of the February 6, 2017 Meeting
Vice Chair Dieter stated the minutes should reflect a minor change to correct her
suggested title to ""Accept the Annual Public Report on Alleged Violations of the
Sunshine Ordinance and the Number of Public Records Requests.""
The Assistant City Clerk took note of Vice Chair Dieter's comments.
Commissioner Schwartz moved approval of the February 6, 2017 Minutes.
Commissioner Little seconded the motion, which carried by unanimous voice vote - 4.
[Absent: Chair Foreman - 1.]
3-B. Select Chair and Vice Chair
Commissioner Little inquired what the discussion was at the February 6 meeting
regarding the election of officers.
The Assistant City Clerk responded that in response to an inquiry by Chair Foreman
about when the election of officers took place, it was determined that the election takes
place in February, according to the by-laws; however, the last election was in October,
2016; the Commission could do the election tonight or wait until February 2018.
Vice Chair Dieter stated that she recommends doing the election tonight since there are
no other agenda items.
Commissioner Henneberry stated that on most of the Boards and Commissions he has
served, the Vice Chair steps up to the Chair, and then another member, usually the
most senior person on the Board, fills the Vice Chair seat; stated he is prepared to
make a motion.
Meeting of the
Open Government Commission
October 2, 2017",OpenGovernmentCommission/2017-10-02.pdf
OpenGovernmentCommission,2017-10-02,2,"Commissioner Henneberry nominated Vice Chair Dieter as Chair and Commissioner
Little as Vice Chair.
Commissioner Schwartz seconded the motion, which carried by unanimous voice vote -
4. [Absent: Chair Foreman - 1.]
COMMISSIONER COMMUNICATIONS
Commissioner Schwartz stated there was a recent California Supreme Court case that
directly addresses the California Public Records Request Act; inquired whether the
Assistant City Attorney could share more information on the case.
The Assistant City Attorney stated the California Supreme Court ruled on whether or not
an email on a personal electronic device is considered public record; the California
Supreme Court stated public records requests need to involve factual findings and
materials from a personal device may be reviewed so long as it is relevant to the
inquiry; further stated that Alameda has not had such a request since the Supreme
Court ruling.
Commissioner Schwartz stated a balancing test would eventually be developed so
requests are not overly invasive, especially for public officials and volunteer
commissioners/board members.
Chair Dieter inquired the time frame of the annual report, to which the Assistant City
Attorney responded the report will be provided at the next meeting.
Chair Dieter stated the City Council discussed bringing its Rules of Order to the Open
Government Commission for feedback; inquired the status.
The Assistant City Attorney responded a Council subcommittee will review the Rules of
Order and plans to do so in conjunction with the Open Government Commission; stated
it has not happened due to the current Council workload; the City Manager placed the
item on the referral status spreadsheet; he will provide a status update to the
Commission.
In response to Commissioner Schwartz inquiry on the time frame, the Assistant City
Attorney stated he will have a better idea of the time frame once the Council is able to
begin addressing the items on the spreadsheet; hopefully, it will be reviewed and placed
on the next Open Government Commission meeting agenda in February.
ADJOURNMENT
There being no further business, Chair Dieter adjourned the meeting at 7:20 p.m. in
honor of the Las Vegas shooting victims.
Meeting
Open Government Commission
February 6, 2017
2",OpenGovernmentCommission/2017-10-02.pdf
OpenGovernmentCommission,2017-10-02,3,"Respectfully submitted,
Irma Glidden
Assistant City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
October 2, 2017",OpenGovernmentCommission/2017-10-02.pdf
OpenGovernmentCommission,2018-02-05,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY FEBRUARY 5, 2018 7:00 P.M.
Chair Dieter convened the meeting at 7:00 p.m.
ROLL CALL -
Present:
Commissioners Foreman, Henneberry, Little, and
Chair Dieter - 4.
Absent:
Commissioner Schwartz - 1.
ORAL COMMUNICATIONS, NON-AGENDA
None.
AGENDA ITEMS
3-A. Minutes of the October 2, 2017 Meeting
Commissioner Henneberry moved approval of the minutes with a comment; noted that
he made comments about his experience on the Planning Board prior to the nomination
of Chair and Vice Chair; requested the comment be included in the October 2, 2017
minutes.
Vice Chair Little seconded the motion, which carried by the following voice vote: Ayes:
Commissioners Henneberry, Little and Chair Dieter - 3. Abstention: Commissioner
Foreman - 1. [Absent: Commissioner Schwartz - 1.]
3-B. Presentation on Repairing Alameda's Aging Infrastructure and Related Survey
The Public Information Officer gave a Power Point presentation.
In response to Vice Chair Little's inquiry regarding local funding options, the Public
Information Officer stated nothing has been proposed at this point; a question was
included in the telephone survey.
Vice Chair Little stated infrastructure improvements are dependent on development;
inquired whether there are alterative ideas if development, such as the Del Monte or
Alameda Point projects, are not able to acquire funding.
The Public Information Officer responded that she is not sure, but she would ask the
Public Works Director and provide a response.
Commissioner Henneberry inquired whether Alameda really has the third oldest park
system in the nation, to which the Public Information Officer responded that she is sure
it is true; stated the City should have more information about it online, which she would
add to the City's website.
Meeting of the
Open Government Commission
1
February 5, 2018",OpenGovernmentCommission/2018-02-05.pdf
OpenGovernmentCommission,2018-02-05,2,"Vice Chair Little noted Jean Sweeney Park will be one of the largest inner City Parks,
which should also be honored as part of the process.
Commissioner Dieter inquired why the survey is posted at two different online locations.
The Public Information Officer responded the survey is posted in a number of places;
stated there are several versions of the Survey Monkey survey and links to the main
survey have been posted on social media; outlined other users who have received
surveys, such as See Click Fix and Peak Democracy; stated a mailer was sent to
people across Alameda; the survey has also been publicized in the newspaper; the City
has tried to give access to as many people as possible and did not want to limit it to just
people who would take a survey on Survey Monkey; over 3,500 responses have been
received.
Commissioner Dieter inquired about the outreach online; stated the City's website
survey has been discussed verbally, but there have only been tweets about Peak
Democracy.
The Public Information Officer responded some people like Peak Democracy and others
do not; stated whether people want to fill out the survey on Survey Monkey, Peak
Democracy or via the mail is a personal choice; the data is being collected in the exact
same way for everyone who responds.
Commissioner Dieter stated there is also a telephone survey for an infrastructure parcel
tax that would cost $23 per month per $100,000 of assessed valuation; inquired
whether the surveys are related.
The Public Information Officer responded in the affirmative; stated the telephone survey
just started.
Commissioner Dieter inquired whether the City is doing the survey in order to move
forward in a campaign, to which the Public Information Officer responded not
necessarily; stated the City is trying to figure out options to pay for infrastructure needs;
once the City has collected the data from all of the surveys, the City will present the
results to Council for Council to decide if and how to move forward.
Commissioner Dieter stated thoughts on infrastructure immediately go to sidewalks and
streets; when she took the survey, there was an option for affordable housing; inquired
about affordable housing being included in an infrastructure survey.
The Public Information Officer responded that she would have to talk to the Public
Works Director to specifically answer the question; stated that she thinks it has to do
with the original phone survey, which included housing and traffic; she believes it was
included to see the public's priorities in total; she would want to provide a response after
asking the Public Works Director.
Meeting of the
Open Government Commission
February 5, 2018
2",OpenGovernmentCommission/2018-02-05.pdf
OpenGovernmentCommission,2018-02-05,3,"Chair Dieter stated that she would not recommend conflating affordable housing into an
infrastructure bond measure or future surveys; it dilutes the issues and is a little
confusing to the public.
3-C. Review the Rules of Order for City Council Agendas and Meetings
The City Clerk gave a brief presentation.
Vice Chair Little inquired whether the Commission should go through the list of items
that was provided by the Council subcommittee; stated that she has questions and
comments throughout the list; going through the list one item at a time might be easiest.
Chair Dieter stated that she has a motion that she would like to make which might clarify
how the Commission moves forward.
In response to Chair Dieter's inquiry regarding the agenda title, the City Clerk stated the
Commission's feedback will be provided to the City Council; the review encompasses
the Commission's discussion, which will be passed onto the City Council.
Chair Dieter inquired whether the complete rules of order do not exist as one document,
to which the City Clerk responded in the affirmative; stated the resolution has been
amended.
Chair Dieter inquired whether the rules are posted on the City's website, to which the
City Clerk responded in the negative; stated the resolutions are all posted separately.
Chair Dieter inquired whether the rules of order and order of business are two separate
things, to which the City Clerk responded in the affirmative.
Chair Dieter stated the Commission is discussing the rules of order tonight, which is
how to conduct meetings; inquired whether the Commission could also provide input on
how the public could easily access the rules in the future.
The City Clerk responded in the affirmative.
Commissioner Foreman stated said matter is the first thing that should be addressed.
Stated that he had not paid attention to the details of running meetings or heard of
Rosenberg's Rules of Order; discussed the two methods for counting an abstention;
stated one counts an abstention as a no; the other method, called present and voting,
does not count abstaining as a no vote; he reviewed the rules and did not see the
method used to count votes; custom has been an abstention is the same as a no vote; it
does not happen often; discussed a recent example: Richard Bangert, Alameda.
Meeting of the
Open Government Commission
3
February 5, 2018",OpenGovernmentCommission/2018-02-05.pdf
OpenGovernmentCommission,2018-02-05,4,"Chair Dieter stated that she would like to make a motion to repeal the original resolution
and any resolution amending it altogether, introduce a new resolution that adopts
Rosenberg's Rules of Order, unless it conflicts with an express rule adopted by
resolution of the City Council, and where Rosenberg is silent, provisions would be
added to the resolution; in other words, standard parliamentary rules would be adopted
and special rules would be passed as needed; further stated to try to guide the
discussion, she would share a handout with follow Commissioners because it is in
writing and will be made part of the public record.
The City Clerk inquired whether the motion would be to make a recommendation to
have Council repeal the resolutions because Council has to repeal its resolutions, to
which Chair Dieter responded correct.
Chair Dieter stated what she has handed out includes her outline of Rosenberg's Rules
of Order, which is part of the staff report, and clauses needed in the new resolution; the
items Rosenberg's Rules is silent on and the City Council has taken a position on are in
the list of clauses; the first is counting votes, which the public speaker addressed; read
the proposed clauses; stated that she reviewed the daisy chain of resolutions and
included what she considered to be important or missing and came up with the list of
clauses that the Commission could consider adding to Rosenberg's Rules or Order;
stated that is her motion.
Commissioner Foreman requested the motion be read back.
Chair Dieter stated the motion is to consider suggesting that the City Council repeal the
original resolution and any resolutions amending it and introduce a new resolution
adopting Rosenberg's Rules of Order, unless it conflicts with an express rules adopted
by resolution of the City Council; where Rosenberg's Rules is silent, add provisions to
the resolution which she specifically named.
Commissioner Foreman stated the handout is simply an outline of how to attack the
matter and does not necessarily become part of the motion; leases and land sales are
covered under the Charter, which is kind of redundant; without going over everything
section by section, he does not know that everything has been covered; he is assuming
the motion is just how the Commission proceeds, not necessarily that the handout is
where the Commission will end up; inquired whether or not his understanding is fair.
Chair Dieter respond a little of both; stated that she would like the Commission to end
up here, but she thought maybe the Commission may have something to add if
members feel there is something important she may have missed; Rosenberg's Rules
of Order were part of the agenda packet; she decided to write an outline to help the
Commission focus because it is too hard to read quite a few pages.
Commissioner Foreman stated that he likes the list, but may have an issue with closing
debate; he thinks it should be very difficult to close debate, not just a majority vote; he
Meeting of the
Open Government Commission
February 5, 2018
4",OpenGovernmentCommission/2018-02-05.pdf
OpenGovernmentCommission,2018-02-05,5,"might be able to support the general motion, which really does not include the outline;
however, if voting for the motion is for the limited outline, he would have troubles.
Chair Dieter stated that she envisions Rosenberg's Rules of Order as part of the new
resolution; the special rules would be at the bottom to add items which are applicable to
the City of Alameda; rather than reinvent the wheel, Rosenberg's entire text should be
adopted; then, the special rules should be added to the end; it would all be one
resolution.
Commissioner Foreman inquired whether items which contradict Rosenberg's Rules
would be included, to which Chair Dieter responded correct.
Commissioner Foreman inquired whether the motion is Rosenberg's Rules, plus
whatever the Commission decides as a group, not necessarily the list, to which Chair
Dieter responded correct.
Vice Chair Little stated something in Rosenberg's Rules that might not be applicable to
what is happening could be scratched; she loves the spirit of Chair Dieter's proposal;
trying to figure out which version was the most current gave her a headache; she would
love to see a new version in one document; when she was doing her research,
Rosenberg's versus Robert's, she appreciates the more simplistic, user friendly
Rosenberg's Rules; however, the current City Council structure is run a little differently;
if the Commission is going to make a recommendation tonight, she is not comfortable
and would want to go through the finer points to ensure nothing is being missed; for
example, Rosenberg's Rules recommends that the presiding officer take a less active
role, defer to others and speak last, which is not necessarily how the City Council is
currently being managed; she would want to make sure that the Commission goes
through the provisions with a little more detail; her understanding was that the intent of
going through the Rules of Order was to ensure that City Council meetings do not go
until 3:19 a.m.; a wide gamut of recommendations could be proposed to the City
Council that should be put on the table to consider.
Commissioner Henneberry seconded the motion.
Under discussion, Chair Dieter stated when she read Rosenberg's Rules of Order, she
discovered it is basically how things are run now; the Chair usually does wait to speak
last; the only thing that she saw different was that the Chair invites a motion after public
comment, which she thinks would be wonderful; it would focus the debate, rather than
having an hour discussion with the public waiting for a motion; that is the only thing she
saw which was different.
Commissioner Foreman stated that he is in favor of repealing and staring all over; the
Commission should start with the current rules of order and go through item by item to
decide what should be kept; then, wherever the City is silent, Rosenberg's Rules would
be followed; it is being flipped to say the rules are Rosenberg's Rules, which is not what
Meeting of the
Open Government Commission
5
February 5, 2018",OpenGovernmentCommission/2018-02-05.pdf
OpenGovernmentCommission,2018-02-05,6,"the Council asked the Commission to do; that he does not think he will be able to
support doing it the way proposed.
Chair Dieter inquired whether there is any special rule that she forgot to include, to
which Commissioner Foreman responded that he cannot answer that because he did
not have an opportunity to compare; stated that he is worried something will be missed;
history has to be respected; starting with the original document makes more sense; it
should be repealed and codified in one document.
Commissioner Henneberry inquired what was the genesis for the matter coming forward
and what the City Council wanted out of it.
The City Clerk responded the matter was raised via a referral; Councilmember
Matarrese brought it forward to have changes made.
Commissioner Henneberry questioned whether Councilmember Matarrese thought
meetings were going too long; stated the rules are not the problem.
Chair Dieter stated the impetus was there was a question about public comments non-
agenda.
The Assistant City Attorney outlined the public comment issue that lead to the referral.
Commissioner Henneberry stated the entire issue came out of a specific arcane item;
he has been dealing with Robert's Rules of Order for 30 years; the rules are not the
issue if there is concern about the length of meetings, which is due to the Chair and
meeting participants; he thinks Rosenberg's Rules look pretty good, clean and like a
nice breath of fresh air compared to Robert's Rules; he does not want to go through
every resolution because there was a non-agenda comment issue.
Chair Dieter stated when looking at the issue, Councilmember Matarrese noticed there
were other rules which are not being followed because they are not clear, such as
Councilmembers are only allotted three minutes to speak; there was a whole host of
things; it is great that the Council subcommittee looked to Rosenberg's Rules of Order;
the League of California Cities (LCC) recommends Rosenberg's Rules; the City is pretty
much following Rosenberg's Rules already and just needs to apply special rules; she
spent hours and hours going through all the resolutions trying to find things that were
not covered by Rosenberg's Rules, which are the ones she added to the end; she felt
everything else was covered.
Vice Chair Little stated going through her list, she is finding similarities between the
notes she took on the various resolution items and Chair Dieter's list; she just wants to
be cautious that the Commission is not missing something; she finds the City's rules
terribly confusing; the language is circular and not understandable; she appreciates
Rosenberg's Rules; she would consider moving forward and not going through
everything line by line as long as there is agreement that there is a comparison between
Meeting of the
Open Government Commission
February 5, 2018
6",OpenGovernmentCommission/2018-02-05.pdf
OpenGovernmentCommission,2018-02-05,7,"what Rosenberg is recommending and the current rules to make sure nothing missing;
for meeting hours, Chair Dieter's list recommends midnight; she saw it was 11:00 p.m.,
then midnight and back to 11:00 p.m.; she thought the current time is 11:00 p.m. now.
The City Clerk stated midnight is not reflected as the time in the Sunshine Ordinance;
amending the ending time and the 10:30 p.m. vote to consider remaining items would
require an ordinance amendment.
Commissioner Foreman stated it does not matter if the Commission proceeds as he is
suggesting or as the motion is suggesting, except he does not see a way to not go
through article by article; he opposes adopting the proposal; the review needs to be
done as a group; he is willing to support the motion, but he is still going to want to go
through every item.
Chair Dieter stated the Commissioners all like Rosenberg's Rules of Order; the
Commission wants to make sure it has not missed anything for only the special rules;
she went line by line through it; suggested coming back again with the special rules to
give Commissioners an opportunity to study the resolutions to see if anything has been
missed.
Commissioner Foreman stated the suggestion makes sense; that he would be more
comfortable and the Commission might save time.
Chair Dieter stated there is a motion and a second; perhaps the Commission should
take a vote.
Commissioner Henneberry stated that he has a timing question; the Commission is
scheduled to meet twice per year; the next meeting is October; however, the
Commission can meet in the interim if there is a reason to meet; inquired whether a vote
of the Commission decides scheduling.
The Assistant City Attorney responded in the affirmative.
The City Clerk stated the Commission's meetings are typically held the first Monday; in
the past, the Commission met the next month to continue review.
Commissioner Foreman moved approval of tabling the motion until the next meeting in
the next 30 days.
Chair Dieter inquired whether the meeting would be held the first Monday, to which
Commissioner Foreman responded that is fine with him.
The Assistant City Attorney stated that he will be gone the first Monday in March;
inquired whether the Commission would agree to the first Monday in April.
Commissioner Foreman inquired whether other days are available.
Meeting of the
Open Government Commission
7
February 5, 2018",OpenGovernmentCommission/2018-02-05.pdf
OpenGovernmentCommission,2018-02-05,8,"The Assistant City Attorney responded perhaps later in February or mid-March.
Commissioner Foreman rephrased the motion; moved approval of the same motion with
the meeting date being the first Monday in April.
Vice Chair Little seconded the motion.
Under discussion, Commissioner Henneberry inquired whether a subcommittee would
go over the matter prior to the next meeting.
Commissioner Foreman stated the Commissioners could all share their comments with
each other prior to the next meeting, which cannot be done.
The Assistant City Attorney stated each Commissioner can send comments to the City
Clerk for distribution, but the Commissioners cannot collectively discuss the matter until
the meeting.
Chair Dieter inquired whether she could have sent her list to the City Clerk after the
agenda was posted, to which the Assistant City Attorney responded in the affirmative;
stated communications should be sent to the City Clerk to be sent out to everyone at
the same time; after communications are sent out, three members cannot discuss the
matter outside of a meeting.
The City Clerk noted communications are posted and made public.
Chair Dieter stated that she will withdraw her motion.
Commissioner Foreman inquired why the motion is being withdrawn; stated that he is
tabling Chair Dieter's motion.
Commissioner Henneberry inquired whether it would be permissible to have a two
person subcommittee of Chair Dieter and Vice Chair Little, to which the Assistant City
Attorney responded in the affirmative.
Commissioner Henneberry stated the subcommittee could put something together for
distribution to the rest of the Commission prior to the next meeting.
Vice Chair Little and Chair Dieter both expressed a willingness to do so.
Chair Dieter stated there is a motion to table the matter until the next meeting.
On the call for the question, the motion carried by unanimous voice vote - 4. [Absent:
Commissioner Schwartz - 1.]
Chair Dieter inquired whether there is another motion to set up a subcommittee.
Meeting of the
Open Government Commission
February 5, 2018
8",OpenGovernmentCommission/2018-02-05.pdf
OpenGovernmentCommission,2018-02-05,9,"Commissioner Henneberry inquired whether a motion is needed, to which the Assistant
City Attorney responded a motion should be done to determine the subcommittee
membership and direction.
Commissioner Henneberry moved approval of having a subcommittee comprised of the
Chair and Vice Chair Little to put together a proposal, provide it to the City Clerk and
have it distributed to the Commission prior to the next meeting.
In response to Commissioner Foreman's inquiry, the City Clerk stated the meeting
packet goes out seven days prior to the meeting, which would be March 26th.
Vice Chair Little stated that she thought the meeting would be in March.
Commissioner Foreman stated the Assistant City Attorney is not available.
The Assistant City Attorney stated if the Commission would rather meet in March,
someone else from the City Attorney's office could attend.
Commissioners Henneberry and Little stated that they would prefer to meet in March.
Commissioner Foreman noted the Commission already voted on the motion.
The Assistant City Attorney stated the Commission is considering forming a
subcommittee and could direct the matter be brought back the first Monday in March.
Commissioner Henneberry clarified the motion is to form the subcommittee and meet
the first Monday in March.
Commissioner Foreman seconded the motion, which carried by unanimous voice vote -
4. [Absent: Commissioner Schwartz - 1.]
3-D. Recommendation to Approve the Records Retention Schedule
The City Clerk gave a brief presentation.
Chair Dieter inquired whether the retention schedule is considered the Public Records
Index (PRI).
The City Clerk responded the two were separated; stated the League of California Cities
(LCC) index, which provides a general guide of the documents that are open or closed,
was adopted by the City Council; the retention schedule informs when records, which
are listed by department, would be destroyed.
Chair Dieter inquired whether the City has two different retention schedules: the PRI
and one by each department.
Meeting of the
Open Government Commission
9
February 5, 2018",OpenGovernmentCommission/2018-02-05.pdf
OpenGovernmentCommission,2018-02-05,10,"The City Clerk responded the PRI is used to disclose whether documents are public or
partially public.
Chair Dieter inquired whether the PRI does not include when to destroy records, to
which the City Clerk responded in the affirmative.
Chair Dieter inquired whether the schedule does not need to come before the Open
Government Commission, to which the City Clerk responded the schedule was
presented to the Commission in the past.
Chair Dieter stated the Sunshine Ordinance does not require the schedule to come
before the Commission; inquired where the standards come from and whether there are
different types of records; stated the Secretary of State, with the LCC, came up with
guidelines; the City Clerk's Association also has guidelines; inquired where the City's
standards for disposing of documents was formed.
The City Clerk responded the last column has the statutory reference and draws on
many different sources, such as the Government Code and Elections Code; stated each
department draws from different Codes; the citation of the statutory reference would be
very similar in the City's schedule versus the Secretary of State guidelines; the City tried
to whittle down its list to inform the public what documents the City has and retains.
Chair Dieter stated the schedule is not arbitrary; inquired whether the department heads
are not just deciding how long to keep something and actually turn to a statutory
reference.
The City Clerk responded in the affirmative; stated the City exceeds statutory reference
in some instances, but it is never shorter.
Chair Dieter stated sidewalk repair requests would be deleted after five years, which
means the records could be destroyed before the repair is done.
The City Clerk stated the clock starts ticking after the issue is resolved.
The Assistant City Attorney stated citizens' complaints for Police Officers have a five
year retention period and start at the complaint date as opposed to resolved; the
general rule is what the City Clerk indicated, but there are some situations where the
clock might start at occurrence.
Vice Chair Little inquired how someone could figure out which is the case.
The Assistant City Attorney responded it is typically by statute; provided an example of
hiring.
Meeting of the
Open Government Commission
February 5, 2018
10",OpenGovernmentCommission/2018-02-05.pdf
OpenGovernmentCommission,2018-02-05,11,"The City Clerk stated there are retention codes at the bottom of the page; provided an
example of current year end, which is very specific.
Chair Dieter stated the main thing is for the public to understand; suggested adding
footnotes for some about when the time starts.
Commissioner Foreman inquired whether the Commission needs to approve the
schedule.
The City Clerk responded the City Council will be informed if the Commission takes
action.
Commissioner Henneberry moved approval of approving the Records Retention
Schedule.
Commissioner Foreman seconded the motion.
Under discussion, Chair Dieter stated that she plans on voting no because she does not
think that technology should be driving public policy; if there were other reasons for
wanting to change five years to three years, it would make more sense to her; just
because the City does not have storage capacity is a bad precedent.
On the call for the question, the motion carried by the following voice vote: Ayes:
Commissioners Foreman, Henneberry and Little - 3. Noes: Chair Dieter - 1. [Absent:
Commissioner Schwartz - 1.]
COMMISSIONER COMMUNICATIONS
Commissioner Foreman inquired whether Municipal Code amendments prior language
goes away and the Code reflects the current law, to which the City Clerk responded in
the affirmative.
Commissioner Foreman inquired whether resolutions could be codified; stated the new
rules of order will be neat, but could end up with the same mess.
The Assistant City Attorney responded the way to handle the matter would be to repeal
the entirety and adopt a new resolution with all changes; stated discrete pieces of the
original resolution were changed by just amending the section; the point is well taken-it
makes it difficult to go to one document and figure out the rules.
Commissioner Foreman inquired whether that is the only way, to which the Assistant
City Attorney responded as a practical matter.
Chair Dieter stated the City Council current version could have a legislative history with
previous versions underneath.
Meeting of the
Open Government Commission
11
February 5, 2018",OpenGovernmentCommission/2018-02-05.pdf
OpenGovernmentCommission,2018-02-05,12,"The City Clerk stated the issue can be discussed when the matter returns to the
Commission.
ADJOURNMENT
There being no further business, Chair Dieter adjourned the meeting at 8:10 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
February 5, 2018
12",OpenGovernmentCommission/2018-02-05.pdf
OpenGovernmentCommission,2018-03-05,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY - - MARCH 5, 2018 7:00 P.M.
Chair Dieter convened the meeting at 7:01 p.m.
ROLL CALL -
Present:
Commissioners
Foreman,
Henneberry,
Little,
Schwartz and Chair Dieter - 5.
Absent:
None.
ORAL COMMUNICATIONS, NON-AGENDA
None.
AGENDA ITEMS
3-A. Review the Rules of Order for City Council Agendas and Meetings
Chair Dieter made brief introductory comments and provided background information.
In response to Chair Dieter's inquiry, the City Clerk agreed that staff would not provide a
report and would raise questions as the Commission reviews the subcommittees
proposed recommendations.
Commissioner Foreman stated the subcommittee is proposing the current rules be
repealed, and Rosenberg's Rules of Order be adopted along with special rules; inquired
whether or not the subcommittee went through each individual section of the current
rules.
Chair Dieter responded the subcommittee went through all the resolutions and pulled
out all of the existing rules and reworded them, which are the nine special rules; stated
the subcommittee tabled two rules; if Commissioner Foreman found something that the
subcommittee forgot, the Commission can address it.
Commissioner Foreman stated Council's charge was to review and update the rules;
instead, it looks like the Commission is writing its own set of rules without specific
reference to the existing rules; for instance, there are six different items under public
discussion under the old rules; under the supplemental rules, there are a lot less; the
same thing for Council deliberations; he has a problem with the structure; he anticipated
the subcommittee would be going through each of the existing sections.
Chair Dieter stated a lot of the existing rules are already in Rosenberg's Rules of Order;
the subcommittee did not want to duplicate the rule.
Vice Chair Little stated one of the subcommittee tasks was to go through the existing
rules; she did a line by line comparison of the five different versions of the current rules
Meeting of the
Open Government Commission
1
March 5, 2018",OpenGovernmentCommission/2018-03-05.pdf
OpenGovernmentCommission,2018-03-05,2,"and Rosenberg's Rules; the only time the subcommittee added a supplemental rule was
when Rosenberg's Rules were silent; the current rules of order required looking in five
different resolutions; after doing the comparison, Rosenberg's Rules are much more
accessible to the average person to understand; items were accounted for by identifying
and adding in special rules; she feels confident, the document is complete.
Stated the adjournment time should be switched back to midnight; three meetings per
month could be held, but he does not know how the 10-day advance notice could be
done; if there are concerns over late meetings crimping public participation, the public
can submit a letter to the City Council starting 10 days before any meeting; letters can
be longer than what someone can say in three minutes; waiting until 11:00 p.m. to
speak is bad; sitting through a meeting and not having the item called is worse: Richard
Bangert, Alameda.
Stated Council meetings are painful; comments on matters is often not heard until 9:30
p.m.; it does not feel democratic; urged the Commission to do anything it can to guide
the Council; stated items should be moved to action or delayed for more study or
additional hearings; outlined her experience with an item not being heard; stated the
Council should have to make motions to discuss and either approve or vote down;
stated the Planning Board could also use the rules; suggested a training session be
held and there be guidance regarding referrals and hearing referrals faster: Pat
Lamborn, Alameda.
Chair Dieter suggested the Commission go through the nine special rules one at a time;
started with Counting Votes.
Commissioner Foreman inquired where Counting Votes is in the existing rules.
Chair Dieter responded it is not in the existing rules; stated it is in the City Charter.
Commissioner Foreman inquired whether three affirmative votes are require for any
action, to which the City Attorney responded in the affirmative; stated the language is
straight from the Charter.
Commissioner Foreman stated abstentions were discussed at the last meeting; inquired
whether abstentions count as a no vote, which cannot be changed.
Chair Dieter responded in the affirmative.
Commissioner Schwartz stated that he could not agree more with Ms. Lamborn; he is
grateful to the subcommittee for coming up with the rules; making the City Council
meetings run better is enormously important and would be a major accomplishment for
the Commission; speaking should be limited, while preserving the public's right to be
heard; it should be clear that the limit is three minutes per person; he supports not
ceding time; inquired whether or not people could subvert the rules and get extra time at
some other point in the proceeding.
Meeting
Open Government Commission
March 5, 2018
2",OpenGovernmentCommission/2018-03-05.pdf
OpenGovernmentCommission,2018-03-05,3,"Chair Dieter and Vice Chair Little expressed that they could not think of such an
instance.
The City Clerk provided a scenario of someone speaking on the same topic under
Public Comment at the closed session and again under Oral Communications Non-
Agenda on the regular meeting the same night.
Chair Dieter stated the subcommittee discussed the matter; non-agenda items are only
for matters not on an agenda, whether closed session or not; the subcommittee wanted
to be clear.
The City Attorney provided a specific example prohibiting a speaker from commenting
under non-agenda items on the regular agenda after having an opportunity to comment
on the agenda item at a prior closed session meeting the same night; Council wants to
hear from the Commission on the issue.
Chair Dieter stated the subcommittee's intent was to do so; questioned whether
language should be added to clarify speakers can comment once on a particular night.
There was consensus to add language.
The City Attorney stated limiting speakers would not be fair if the meetings were on
different nights.
Commissioner Foreman inquired whether someone wanting to comment after the
closed session announcement is a legitimate non-agenda item.
Chair Dieter responded in the negative; stated the person is commenting on the closed
session item, which is on the agenda.
Commissioner Foreman stated the speaker would not be given an opportunity to
comment after the Closed Session action is announced.
The City Attorney stated comments are given prior to Council going into closed session;
provided an example.
Commissioner Foreman stated the public having to be present to comment at the start
of the closed session is fine.
Vice Chair Little stated the language should be tightened up.
Commissioner Foreman stated that he is opposed to the restriction about ceding time;
he could support the Mayor getting assurance that the person ceding time is present;
there are better ways to shorten meetings; inquired why public comments not being a
debate has not been included.
Meeting of the
Open Government Commission
3
March 5, 2018",OpenGovernmentCommission/2018-03-05.pdf
OpenGovernmentCommission,2018-03-05,4,"Chair Dieter responded the matter is addressed in Rosenberg's Rules of Order.
Commissioner Foreman stated that he has not seen it.
Vice Chair Little stated Rosenberg's Rules specifically talks about public comment not
being a debate.
Chair Dieter concurred; stated Rosenberg's Rules address what is debatable and not
debatable.
Commissioner Foreman stated it is not included the short version.
Chair Dieter concurred; stated it is in the long version.
Vice Chair Little stated the subcommittee thought it was reasonable.
Commissioner Foreman stated that he does not read Rosenberg's Rules as relating the
issue to public comment; it relates to Council discussions.
In response to Chair Dieter's inquiry, Commissioner Foreman stated language exists;
he does not like the language; under non-agenda comment, a sentence says City staff
or members of the body may briefly respond, but no action or discussion follows at the
meeting; there is not a provision covering agenda items; public comment takes place
before the motion; the language in Rosenberg's Rules relates to debate on a motion,
which is not the same thing; there needs to be guidelines one way or another.
Chair Dieter stated a sentence could be added.
Commissioner Foreman suggested adding the same language under public comment
non-agenda items: ""staff or members of the body may briefly respond;"" a clarifying
question could be asked; Council typically does not respond to speakers; people want a
response, not a debate; once in a while a response is appropriate.
Vice Chair Little expressed concern if 30 other people are waiting to speak.
Commissioner Foreman stated public comment is not time for a debate; a clarifying
comment would be appropriate.
Vice Chair Little stated adding a sentence to clarify there is no debate during public
comment would be okay.
Commissioner Foreman stated language has been included for non-agenda items;
inquired why language would be included for one and not the other.
Meeting
Open Government Commission
March 5, 2018
4",OpenGovernmentCommission/2018-03-05.pdf
OpenGovernmentCommission,2018-03-05,5,"The City Attorney responded a decision cannot be made about non-agenda items
because the matter has not been publically noticed; stated the rule is that the Council
and staff do not respond; provided an example of the City Manager indicating someone
would follow up with the speaker; questioned whether interrupting the speaker would
count towards the speaker's three minutes.
Commissioner Foreman stated the situation is not easy; he is trying to make it more
interactive; he does not know how it should be done.
Vice Chair Little stated the rules are to set the public's expectation; allowing response
does not provide a clear expectation.
Commissioner Schwartz stated including the sentence about responding under non-
agenda items opens the door for chaos without qualifying brief response; suggested
making it clearer, such as a response of 60 seconds or less on logistical concerns.
Chair Dieter suggested removing the last sentence from Rule 3; stated both would
match.
Commissioner Foreman stated then there would be no guidelines at all.
Chair Dieter stated City staff rarely has to interrupt; questioned why something should
be written down that rarely ever happens; stated Rules 2 and 3 were addressed
together.
The City Clerk clarified the first agenda section of non-agenda comment is limited to 15
minutes; stated the additional section at the end of the meeting is for further comment.
Commissioner Foreman inquired whether the second section of non-agenda comment
is unlimited, to which the City Clerk responded in the affirmative; stated the Sunshine
Ordinance moved non-agenda comments to the beginning of the agenda, but limited the
first section to 15 minutes in order to get to business.
Chair Dieter stated that she did not know there was no time limit at the end of the
meeting; stated clarifying language be added.
The City Clerk inquired whether the Commission would like to address speakers only
being able to speak under one section of Oral Communications, not both.
Commissioner Foreman responded that is pretty much understood.
Commissioners Schwartz and Little expressed support for clarifying the language.
In response to Chair Dieter's inquiry, Vice Chair Little stated the question came up
about speaking multiple times; someone should not speaking under both non-agenda
sections on the same topic.
Meeting of the
Open Government Commission
5
March 5, 2018",OpenGovernmentCommission/2018-03-05.pdf
OpenGovernmentCommission,2018-03-05,6,"Chair Dieter stated that she has spoken under both sections on two different topics.
The matter was briefly discussed to clarify that a speaker could comment under each
section, but not on the same topic.
The City Clerk noted the non-agenda section could be moved after Council referrals to
address the concern about not getting to referrals.
Commissioners Foreman, Schwartz and Little expressed support for doing so.
The City Clerk noted the order of business of the meetings would have to be amended
via resolution.
In response to Chair Dieter's inquiry, Vice Chair Little outlined the changes: 1) the last
line under the Supplemental Rule 3 would be deleted, 2) language that specifies a
speaker can only speak for a maximum of three minutes on one topic would be added,
and 3) the second section of oral communications is considered a continuation of the
first.
The City Clerk inquired whether the Commission has an interest in limiting the speaker
time limit in the instances when there are many speakers.
Vice Chair Little responded the subcommittee discussed the issue.
Chair Dieter stated the subcommittee decided to leave the matter at the discretion of the
Chair; the Chair should be encouraged to make the judgement call; questioned whether
the Commission thinks a recommendation is needed to lower the time limit to two
minutes for items with over 20 speakers.
Commissioner Foreman stated that he has seen Council vote to change the time limit.
The City Attorney stated Council can modify any of the rules; noted trying to decide to
make changes during the meeting takes time; a policy might make it simpler.
Chair Dieter stated any member could make a motion to suspend the rules to lower the
time limit; the Chair would be overruled if the super majority agrees.
Commissioner Schwartz stated pre-establishing guidance would do the Chair a favor.
Commissioner Henneberry stated when he was on the Planning Board, if there were
multiple items with lots of speakers, the limit would be two minutes; there was not a
hard and fast rule; if there was only one item with many speakers, three minutes was
allowed.
Meeting
Open Government Commission
March 5, 2018
6",OpenGovernmentCommission/2018-03-05.pdf
OpenGovernmentCommission,2018-03-05,7,"In response to Commissioner Foreman's inquiry, Commissioner Henneberry stated the
Planning Board would discuss the speaker time limit.
Commissioner Foreman stated that he thinks the Council should vote on the time limit.
Chair Dieter stated it can be voted on under the proposed rules.
Commissioner Foreman inquired what if the Mayor makes a decision which the rest of
the Council does not like.
Chair Dieter responded the Mayor could be overruled; the super majority can suspend
any rule.
Commissioner Foreman stated that he would prefer a vote be required.
Chair Dieter stated if discretion is not given to the Chair, the rules could still be
suspended by super majority; the language could be deleted.
Commissioner Schwartz questioned whether the Chair's discretion is being taken away.
Commissioner Foreman stated that he could live with having to cut his comments to two
minutes if four members of the Council vote on it, rather than just at the discretion of the
Mayor.
Chair Dieter stated the consensus is to take out the phrase: ""at the discretion of the
Chair.'
In response to Commissioner Schwartz's inquiry regarding the downside of limiting the
speakers over a certain threshold, Chair Dieter stated as Commissioner Henneberry
pointed out, an agenda might have only two items and there would be plenty of time.
Commissioner Schwartz stated the super majority could vote to increase the time.
Chair Dieter stated doing so seems more complicated; stated that she hears there is a
consensus on everything except Commissioner Foreman does not like the idea about
eliminating ceding time; inquired whether anyone else has a problem.
Commissioner Henneberry responded that he does not think ceding time should be
allowed.
Commissioner Schwartz stated that he agrees with the proposal as written.
Chair Dieter inquired whether anyone has issues with Rule 4.
Meeting of the
Open Government Commission
7
March 5, 2018",OpenGovernmentCommission/2018-03-05.pdf
OpenGovernmentCommission,2018-03-05,8,"Commissioner Schwartz responded the amount of time is tremendous; he does not see
why someone would need to speak three times for three minutes on one agenda item;
the amount is way too much.
In response to Chair Dieter's inquiry, Commissioner Schwartz stated five minutes total
is hefty.
Chair Dieter stated a Councilmember speaks for 10 minutes and the same person
comments on what others have said; time has to be allotted for deliberations to go back
and forth.
Commissioner Schwartz suggested the times be three minutes, two minutes and one
minute.
Vice Chair Little stated meetings are the only time the Council can discuss a topic as a
group; for a lot of the topics, such as rent control, the public needs to see time is being
taken to delve into, engage, interact and respond to some of the comments made; the
subcommittee went back and forth about the right amount of time; providing a
framework will afford the opportunity to engage in conversation, but puts a limit; only
giving three chances to speak would already impact the process.
Commissioner Foreman stated compared to what is in writing, a lot more time is being
given; compared to what is actually happening at Council meetings, it is a lot less time;
the rule is reasonable if it can be enforced.
Chair Dieter stated part of why three minutes is being suggested is because the City
Clerk will have to enforce the rule.
The City Clerk inquired whether the Commission is suggesting a timing system to allow
Councilmembers to see the countdown.
Commissioners Schwartz, Little and Foreman expressed support for doing so.
Commissioner Schwartz stated speaking three times for three minutes each is still a lot.
The City Clerk noted staff would be able to execute the recommendation.
Vice Chair Little inquired whether the City Clerk would keep track.
Chair Dieter responded the timekeeper would have to do it.
Vice Chair Little stated Rosenberg's Rules include a rule of decorum and agreeing to a
process, so it is on the members to know and stop.
Commissioner Henneberry stated the proposal on the table is better than what is going
on; sometimes progress is incremental; he supports the subcommittee's proposal.
Meeting
Open Government Commission
March 5, 2018
8",OpenGovernmentCommission/2018-03-05.pdf
OpenGovernmentCommission,2018-03-05,9,"Chair Dieter inquired whether anyone has issues with the rule on ceremonial
presentations and proclamations.
Commissioner Foreman responded 15 minutes is not doable.
Vice Chair Little stated the time can be extended.
Chair Dieter stated 15 minutes is the current rule; getting through proclamations the last
few meetings has taken one hour; she thinks the rule is important; inquired how
proclamations are added to the agenda.
The City Clerk responded many proclamations are repeated annually; stated outside
groups make requests; work is currently being done to limit proclamations to three per
meeting; a suggestion has been made to only read part of the proclamation.
The City Attorney noted an excerpt could be read since the proclamations are included
in the packet.
Vice Chair Little stated the following commentary often tends to go on for a long time.
Commissioner Foreman stated no matter what rule is written, it will be ignored; it is very
difficult; provided an example.
Chair Dieter stated in all fairness to the City Council, she does not think people have
been cognizant of the rules; this is a new starting point; she thinks there will be
teamwork; the Chair is responsible for keeping the process going.
Commissioner Foreman stated that he would be more comfortable with limiting the
amount of time to 10 minutes per proclamation.
Vice Chair Little stated it is up to the Chair to get through the proclamations in 15
minutes; if there are three, the Chair should explain each gets five minutes; if there is
one, it can have the full 15 minutes; creative scheduling might be in order as well.
Chair Dieter stated perhaps every person being honored might not speak;
recommended deleting the last clause that says the time can be extended by majority
vote.
Commissioner Foreman stated that he has no problem with that.
Chair Dieter moved on to Rule 6 on consent items, which did not have any issues;
inquired whether there are issues with Rule 7 regarding referrals.
Commissioner Foreman responded referrals are not in the current rules.
Meeting of the
Open Government Commission
9
March 5, 2018",OpenGovernmentCommission/2018-03-05.pdf
OpenGovernmentCommission,2018-03-05,10,"Chair Dieter stated referrals are not in the current rules and have never been adopted
by resolution or ordinance.
Commissioner Foreman inquired whether referrals have been adopted in any way.
Chair Dieter responded referrals were adopted by motion; stated since the issue is
being visited, referrals should be codified; before the meeting, the subcommittee
decided to add one more element to the provision that is not included: Councilmembers
would be limited to three referrals per year, which is important because some items can
be done behind the scenes by working with the City Manager, City Attorney or the
department head; after a little behind the scenes, the City Manager could agendize the
matter if it is important.
Commissioner Foreman stated that he would go to the City Manager first if he was on
the Council; questioned whether the referral process is not used unless
Councilmembers cannot get cooperation.
Commissioner Henneberry inquired what are the current rules on referrals; inquired
whether there is any limit.
Chair Dieter responded there are no limits.
Commissioner Henneberry inquired where the limit of three came from, to which Chair
Dieter responded sticking with the three on all the rules; everything is three.
Commissioner Henneberry stated that he thinks three is too limited.
Commissioner Foreman concurred.
Chair Dieter stated three referrals per Councilmember is 15 referrals per year that would
have to come back 15 more times, which is more referrals than there are meetings per
year since there are 22 meetings.
Commissioner Henneberry inquired how many referrals are being made by each
Councilmember.
The City Clerk responded she could do a tally; stated some do more than three.
Commissioner Henneberry stated the number would be useful; three seems low.
Commissioner Schwartz stated the rule feels distinct from everything else being done,
which are explicitly about time management in meetings; limiting referrals seems far
afield; the matter could be addressed separately after further investigation; he would
leave the amendments to addressing number of minutes, etc.
Vice Chair Little stated a little more research might be needed.
Meeting
Open Government Commission
March 5, 2018
10",OpenGovernmentCommission/2018-03-05.pdf
OpenGovernmentCommission,2018-03-05,11,"Chair Dieter stated the start of the process has been geared toward the orderly conduct
of meetings and nothing that goes on outside meetings; Commissioner Schwartz is right
that the subcommittee stepped over the line a little bit.
Commissioner Foreman stated dealing with referrals altogether stepped over the line.
Chair Dieter stated not really because the public never knows what to expect from a
Council referral; right now, a matter may come back or be decided on that night; the
agenda title gives the impression that a decision could be made that night; provided an
example; stated that she thinks Council referrals are out of hand; a lot of time is spent
on the merits of an issue and whether the issue is important enough to bring back at
another meeting, which was the whole impetus of Council referrals; referrals come from
one person, rather than have it agenized, Council is supposed to decide if it is important
and should come back with a staff report.
The City Clerk stated Council did not want to be limited and wanted to be able to take
action under the Council referrals section of the agenda; the 2007 staff report, which
was provided, clearly states the Council can take dispositive action if sufficiently
noticed.
Commissioner Foreman inquired what is sufficient information, to which the City Clerk
responded said determination is made by the City Attorney.
The City Attorney provided an example of supporting State legislation; stated Chair
Dieter's examples are something that would need analysis.
The City Clerk stated the current Council adopted a new referral form and reiterated the
three options at the top of the form: 1) take no action, 2) refer the matter to staff or 3)
take dipositive action; the current Council just reaffirmed that they want to take
dispositive action; noted the Commission would be recommending something different
than the current Council has said they want.
Commissioner Schwartz suggested tabling referrals for now; stated referrals seem to do
less with time management and Rosenberg's Rules; the matter could come back in a
more comprehensive way.
Chair Dieter stated that she has a suggestion, which might solve the matter and allow it
to be included; suggested each Councilmember indicate whether or not dispositive
action is being requested; stated members of the public want to know whether the
matter would return.
Commissioner Schwartz stated the issue seems more complicated than limiting time to
three minutes.
Chair Dieter stated that she is fine with that; inquired whether everyone else is okay.
Meeting of the
Open Government Commission
11
March 5, 2018",OpenGovernmentCommission/2018-03-05.pdf
OpenGovernmentCommission,2018-03-05,12,"Commissioner Foreman responded in the affirmative.
Vice Chair Little concurred.
Chair Dieter stated the next item is meeting adjournment time.
The City Clerk inquired whether the proposal eliminates the requirement to add
meetings if three meetings in a row go past 11:00 p.m.
Commissioner Foreman responded in the negative; stated the matter is in the Sunshine
Ordinance.
Chair Dieter stated that she did not know whether the issue belongs in the orderly
conduct of meetings and she thinks it is also a side issue.
The City Attorney stated concern was raised at the last Council meeting; the
Commission does not have to make a recommendation.
The City Clerk stated having no new items heard after 11:30 p.m. goes past the 11:00
p.m. meeting deadline.
Chair Dieter stated under the proposal, a vote would not be done until 11:30 p.m.; the
Council would know they are not going to address any more items and the matter would
not have to be discussed; the meeting would continue smoothly until 11:30 p.m.
The City Clerk stated the Sunshine ordinance would have to be modified to do so and a
decision needs to be made about the three times in a row requirement.
Chair Dieter stated the subcommittee is suggesting the current requirement be repealed
and the rule be replaced.
Commissioner Foreman inquired where is the requirement about three meetings in a
row, to which the City Clerk responded the Sunshine Ordinance.
Chair Dieter stated it is not currently in the rules; it is a separate ordinance.
In response to Chair Dieter's inquiry, the City Attorney stated the Sunshine Ordinance
has to be amended by ordinance; the rules or order cannot modify an ordinance
regulation; outlined the current ordinance; stated the requirement to add more meetings
is unclear and has never been triggered; the rules of order saying there is only one vote
and new items can be taken up to 11:30 p.m. modifies the ordinance; the question is if
the Commission is recommending the ordinance be modified.
Chair Dieter responded that she is only recommending changing the time.
Meeting
Open Government Commission
March 5, 2018
12",OpenGovernmentCommission/2018-03-05.pdf
OpenGovernmentCommission,2018-03-05,13,"Commissioner Foreman stated the Commission was told to review the rules of order,
not rewrite the Sunshine Ordinance; the Commission rewrote the Sunshine Ordinance
about two years ago; they are two different things.
Chair Dieter stated not codifying the Sunshine Ordinance requirement in the rules of
order was a mistake; lots of things in the Sunshine Ordinance do not apply to the rules
of order.
Commissioner Foreman stated the subject is clearly covered in the Sunshine
Ordinance.
Chair Dieter stated the proposed rules allow the public to review one document to see
the whole rules of order.
The City Attorney stated if the Commission is not looking to modify the Sunshine
Ordinance, then the rules should reflect the Sunshine Ordinance provision, which differs
from what is being suggested; the Commission can suggest a modification to the
ordinance.
Chair Dieter and Vice Chair Little stated that is what they are suggesting.
Chair Dieter stated the subcommittee is suggesting modifying the ordinance; the
Council might not like the rule; if the Council likes the rule, the Sunshine Ordinance will
have to change to reflect a different time frame.
The City Attorney inquired whether the rules of order change would delete the 10:30
p.m. and 11:00 p.m. votes and the requirement to add a meeting if three go past 11:00
p.m.
Chair Dieter responded in the negative; stated the requirement to add the meeting is not
being removed; inquired whether only the first two sentences could be amended.
The City Clerk read the ordinance language; stated the idea is to combine the vote to
one and keep the requirement for three meetings in a row.
Vice Chair Little responded in the affirmative.
Chair Dieter stated that she does not want any votes to happen until 11:30 p.m.
Vice Chair Little stated there is a conversation at 10:30 p.m. about whether or not to
address more agenda items, which takes 15 to 20 minutes; then, at 11:00 p.m., there is
another conversation about whether or not the meeting should continue; essentially 45
minutes to an hour is spent on deliberation and meetings end up continuing until 3:00
a.m.; the subcommittee's thinking was to remove the question about whether or not the
meeting would continue; new items would not be taken after 11:30 p.m. without a vote
to take other items, which would be decided by a supermajority vote.
Meeting of the
Open Government Commission
13
March 5, 2018",OpenGovernmentCommission/2018-03-05.pdf
OpenGovernmentCommission,2018-03-05,14,"The City Clerk suggested removing the language since a supermajority vote is already
required to suspend the rules and the vote would just be suspending the rules.
Chair Dieter stated the subcommittee did note that acceptance of the rule would require
changing the ordinance; the subcommittee was going to let staff figure out how to make
the change.
The City Clerk stated that she did not know what to tell the Council because the
subcommittee was silent on three meetings in a row.
Commissioner Foreman stated that he would make the matter not debatable, so the
Council would just vote.
Commissioner Schwartz concurred with removing the language requiring a
supermajority vote; inquired why 11:30 p.m. was selected; stated running a meeting
does not have to take so long; suggested using the current time of 10:30 p.m.
Chair Dieter stated for almost two decades the rule set the time at midnight; the public
knew the routine of the previous Council always voting to go past 11:00 p.m.; this
Council is totally erratic; no one knows when meetings will continue; the proposal is fair
to the public and Council, and is an effort to get through City business; the current
problem is the Council is not getting through City business, which representatives are
elected to do; she can only imagine how the City Manager feels; she thinks the proposal
returns it to the way it was for two decades, which worked fine; with the accumulation of
all of the changes, meetings might not go so late; the proposal prevents deliberating on
the actual agenda timing for 45 minutes.
Commissioners Foreman and Little concurred.
Commissioner Foreman stated the goal is to make meetings shorter; many things can
be done to shorten meetings; the time set is not going to shorten meetings; former
Councilmember deHaan informed him there were never long staff presentations in the
past; time was limited; staff provides a detailed description two weeks before the
meeting and goes over everything again in a presentation at the meeting; he does not
understand why the staff presentation cannot be limited to clarifying questions; there is
no need for staff to repeat the entire staff report, which eats up all the time.
Chair Dieter stated the City Manager works at the behest of the City Council; the
Council can ask the City Manager to shorten staff presentations; the rules of order just
address how to run City Council meetings.
Commissioner Henneberry stated limiting the debate on adjournment should will
shorten meetings; the conversation is 45 minutes and is a waste of time.
Meeting
Open Government Commission
March 5, 2018
14",OpenGovernmentCommission/2018-03-05.pdf
OpenGovernmentCommission,2018-03-05,15,"Commissioner Schwartz questioned why the proposal cannot be 10:30 p.m. instead of
11:30 p.m.
Chair Dieter responded the Council is not getting through business; stated the City
Council may decide to make it 10:30 p.m.; the public has plenty of time to submit letters
and write op-ed pieces on any issue; representatives should make decisions and not
worry about who can remain in the audience.
Commissioner Foreman stated a very simple rule is being proposed; legal staff would
have to change the ordinance.
The City Attorney inquired whether the Sunshine Ordinance should be changed to say
no new items can be considered after 11:30 p.m., with the meeting continuing and not
triggering a need for additional meetings.
The City Clerk inquired whether the three meetings in a row rule would be eliminated, to
which Chair Dieter responded in the affirmative.
Commissioner Foreman stated the Council would not stop in the middle of addressing
something.
In response to Chair Dieter's inquiry about language, the City Attorney stated there is no
set adjournment time; rather the Commission is saying no new business is taken up
after 11:30 p.m.
Vice Chair Little inquired whether the Commission should add if three meetings in a row
go past, then additional meetings would be needed.
Chair Dieter responded said language should not be added.
Commissioner Foreman inquired whether the issue is addressed in the Brown Act, to
which the City Attorney responded the matter is not a Brown Act issue.
Chair Dieter stated the more the issue is discussed, she would not require adding
meetings.
The City Clerk inquired whether the language should read: ""time after which no new
business is heard,' to which Chair Dieter responded in the affirmative.
Commissioner Foreman stated that he can live with the recommendation; an item which
starts at 11:29 p.m. could continue.
Chair Dieter stated if the Council is tired and does not want to consider an item, a vote
could be taken to suspend the rules.
Meeting of the
Open Government Commission
15
March 5, 2018",OpenGovernmentCommission/2018-03-05.pdf
OpenGovernmentCommission,2018-03-05,16,"The City Attorney stated the change will take an ordinance amendment; staff will pass
the recommendation along to Council.
Commissioner Foreman inquired about the debate language.
Chair Dieter responded the language would be removed.
In response to Commissioner Foreman's inquiry, Chair Dieter stated Rosenberg's Rules
includes that there is no debate on a motion to suspend the rules.
Commissioner Schwartz stated that he is the only member who thinks the time should
be 10:30 p.m.
Chair Dieter stated the time has been tried for a couple of years and has not worked;
the new rules might cause meetings to end earlier.
Commissioner Schwartz stated perhaps 10:30 p.m. could be used a starting point.
Chair Dieter inquired whether there are any issues with suspension of the rules.
There were none.
Chair Dieter stated the subcommittee rejected the existing rules on appeals and written
communications, but wanted to address them; the focus should be on the orderly
conduct of meetings and nothing outside of meetings; the appeals might be pertinent if
there are time limits; anything in place should be included in the rules of order.
The City Attorney stated the various Code sections on appeals address when the matter
must be heard on an agenda; there is no rule on how an item is handled at the meeting.
Chair Dieter inquired whether there is enough of an issue that a rule should be included.
The City Attorney provided an example of a recent appeal.
Chair Dieter inquired whether the Commission wishes to address the matter.
Commissioner Foreman responded the problem is there are various kinds of appeals;
stated one time limit might not work for all appeals; the matter could remain under the
Council's discretion; perhaps notice could be given to the parties before the meeting.
Commissioner Schwartz stated that he concurs with the proposal to table the matter.
Commissioner Foreman inquired whether there are matters, other than appeals, that
are quasi-judicial and whether public hearings might qualify, to which the City Attorney
responded anytime the Council gives entitlements and rights.
Meeting
Open Government Commission
March 5, 2018
16",OpenGovernmentCommission/2018-03-05.pdf
OpenGovernmentCommission,2018-03-05,17,"Commissioner Foreman stated Councilmembers are familiar with items that are quasi-
judicial and know not to speak about the matter.
There was consensus to drop the matter.
Chair Dieter stated the existing rule on written communications seems to be separate.
Commissioner Schwartz stated that he agrees with the proposal to omit it.
Commissioner Foreman inquired whether the rules include things such as a
Councilmembers requesting comments to be put in the record.
Vice Chair Little responded the suggestion is not to include anything.
Chair Dieter stated the matter has nothing to do with the orderly conduct of meetings.
In response to Commissioner Foreman's inquiry, Chair Dieter stated a statement that is
read can be submitted to the City Clerk for the record.
The City Clerk noted it never happens.
Commissioner Foreman inquired why it should be eliminated.
Chair Dieter stated the Commission needs to decide; she is hearing a consensus to
omit it.
Commissioner Henneberry inquired whether a Councilmember who wants a verbatim
statement put in the record could still give it to the City Clerk, to which Chair Dieter
responded in the affirmative.
Commissioner Forman inquired where the language comes from, to which Chair Dieter
responded Resolution 12567.
Commissioner Schwartz moved approval of adopting the subcommittee's proposal with
the amendments offered.
Commissioner Henneberry seconded the motion.
Under discussion, Chair Dieter recommended that the subcommittee incorporate the
changes and provide the document to the City Clerk.
The City Clerk stated the recommendation will go back to the Council subcommittee,
which requested a report back.
Meeting of the
Open Government Commission
17
March 5, 2018",OpenGovernmentCommission/2018-03-05.pdf
OpenGovernmentCommission,2018-03-05,18,"On the call for the question, the motion carried by the following voice vote: Ayes:
Commissioners Henneberry, Little, Schwartz and Chair Dieter - 4. Abstention:
Commissioner Foreman - 1.
COMMISSIONER COMMUNICATIONS
Chair Dieter stated when a member of public writes to the public on an agenda item,
sometimes the correspondence is attached and sometimes it is not; inquired how it
happens and how the public knows.
The City Clerk responded if the person copies her, the correspondence is included;
stated that she will also include the correspondence if staff or Councilmember forwards
it to her; anything she receives she includes; if she is not included in the loop, the
correspondence does not get included.
Commissioner Foreman stated sometimes it is not received in time.
The City Clerk stated that she attempts to include anything received before the meeting
begins.
Chair Dieter stated the public is not aware; suggested the Councilmembers' website
pages include: ""Any correspondence regarding an agenda item that you would like
attached to the staff report, please send to the City Clerk,' or something similar.
The City Clerk stated that she would work with the City's website coordinator.
Commissioner Schwartz suggested a button be added: ""To contact a Councilmember
about an agenda item, click here;' then, it will go to the Council and copy the City Clerk.
Chair Dieter inquired whether the letter would remain attached if an item is continued to
another meeting, to which the City Clerk responded in the affirmative.
Chair Dieter suggested the adopted rules of order be posted to the website with a link to
a meeting guide with the order of business.
ADJOURNMENT
There being no further business, Chair Dieter adjourned the meeting at 8:56 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
Meeting
Open Government Commission
March 5, 2018
18",OpenGovernmentCommission/2018-03-05.pdf
OpenGovernmentCommission,2018-03-05,19,"The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
19
March 5, 2018",OpenGovernmentCommission/2018-03-05.pdf
OpenGovernmentCommission,2018-08-21,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
TUESDAY AUGUST 21, 2018 - 7:00 P.M.
The meeting was cancelled.
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
1
August 21, 2018",OpenGovernmentCommission/2018-08-21.pdf
OpenGovernmentCommission,2018-10-01,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY
OCTOBER 1, 2018 - - 7:00 P.M.
Chair Dieter convened the meeting at 7:01 p.m.
ROLL CALL -
Present:
Commissioners Henneberry, Little, and Chair Dieter -
3.
[Note: Commissioner Little was present via teleconference from 321 17th Street,
Denver, CO 80202]
Absent:
Commissioners Foreman and Schwartz - 2.
ORAL COMMUNICATIONS, NON-AGENDA
None.
AGENDA ITEMS
3-A. Select Chair and Vice Chair
Commissioner Henneberry moved approval of Commissioner Little serving as Chair.
Chair Dieter seconded the motion, which carried by the following roll call vote:
Commissioner Henneberry: Aye; Commissioner Little: Aye; Chair Dieter: Aye; Ayes: 3.
[Absent: Commissioners Foreman and Schwartz - 2.]
Chair Dieter moved approval of Commissioner Henneberry serving as Vice Chair.
Commissioner Little seconded the motion, which carried by the following roll call vote:
Commissioner Henneberry: Aye; Commissioner Little: Aye; Chair Dieter: Aye; Ayes: 3.
[Absent: Commissioners Foreman and Schwartz - 2.]
3-B. Minutes of the February 5, 2018 and March 5, 2018 Meetings
Chair Dieter moved approval of the February 5, 2018 minutes.
Commissioner Henneberry seconded the motion, which carried by the following roll call
vote: Commissioner Henneberry: Aye; Commissioner Little: Aye; Chair Dieter: Aye;
Ayes: 3. [Absent: Commissioners Foreman and Schwartz - 2.]
Chair Dieter moved approval of the March 5, 2018 minutes.
Commissioner Henneberry seconded the motion, which carried by the following roll call
vote: Commissioner Henneberry: Aye; Commissioner Little: Aye; Chair Dieter: Aye;
Ayes: 3. [Absent: Commissioners Foreman and Schwartz - 2.]
Meeting of the
Open Government Commission
1
October 1, 2018",OpenGovernmentCommission/2018-10-01.pdf
OpenGovernmentCommission,2018-10-01,2,"3-C. Accept the Annual Report
Commissioner Henneberry moved approval of accepting the annual report.
Commissioner Little seconded the motion, which carried by the following roll call vote:
Commissioner Henneberry: Aye; Commissioner Little: Aye; Chair Dieter: Aye; Ayes: 3.
[Absent: Commissioners Foreman and Schwartz - 2.]
COMMISSIONER COMMUNICATIONS
Chair Dieter stated that she wanted to follow up on two items after rereading the
minutes: 1) changing the City Council webpage to let the public know to copy the City
Clerk on meeting correspondence they want it published; 2) adding an asterisk for
deviating records retentions timeframes; she does not feel super strongly about it, but
thought it might be helpful for items that are not clear; gave a report on the City Council
adopting most of the Commission's suggestions on the Rules of Order; outlined
changes, including Council giving themselves nine minutes and cutting comment time to
two minutes for matters with seven or more speakers; she and Commissioner Little sent
a letter to Council, which was included in the record; the Council also decided to end
meetings at 11:00 p.m.
Commissioner Little expressed concern over Council reducing the time for speakers;
stated that she disagrees with automatically reducing the time.
Chair Dieter stated that she was dissatisfied that matters in the letter were not included;
using Rosenberg's Rules of Order is turning out to be a really good thing.
Commissioner Little inquired whether the recommendations seem to be working and
whether there has been training and education.
The City Clerk responded a nine minute timer for Council has been implemented; the
Mayor explains the time limit to the public when the speaker threshold is reached so
that they are aware before speaking; the Council has voted to suspend the rules and
hear additional items past 11:00 p.m. a couple of times.
Chair Dieter stated the two things she has noticed is the Chair needs to ask for a motion
right away once public comment is closed and three motions can be on the table at a
time.
Commissioner Henneberry stated that he attended a meeting; most of the
recommendations were implemented and seemed to make the meeting run much
smoother; he does not like that Council increased their time to nine minutes; speakers
can fit a lot into two minutes, which could work for all public comment.
Meeting of the
Open Government Commission
October 1, 2018
2",OpenGovernmentCommission/2018-10-01.pdf
OpenGovernmentCommission,2018-10-01,3,"Commissioner Little noted seven speakers with three minutes totals 21 minutes and
eight speakers with two minutes totals 16 minutes; two minutes should suffice when
there are many speakers, but it seems like a limitation on the public's ability to
comment.
Chair Dieter stated Councilmember Matarrese suggested trying it out and changes can
be made if needed; encouraged the Commission and members of the public to contact
the City Council or Commission if something should be changed.
ADJOURNMENT
There being no further business, Chair Dieter adjourned the meeting at 7:13 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
3
October 1, 2018",OpenGovernmentCommission/2018-10-01.pdf
OpenGovernmentCommission,2018-11-14,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
WEDNESDAY
NOVEMBER 14, 2018 - 7:00 P.M.
Chair Little convened the meeting at 7:00 p.m.
ROLL CALL -
Present:
Commissioners Dieter, Foreman, Henneberry,
Schwartz and Chair Little - 5.
Absent:
None.
ORAL COMMUNICATIONS, NON-AGENDA
None.
AGENDA ITEMS
3-A. Minutes of the October 1, 2018 Meeting
Commissioner Dieter noted a change to Council Communication to clarify that she had
two follow up items and the third item was reporting out; stated that she would also
provide the Clerk correct typographical corrections.
Commissioner Henneberry moved approval of minutes with the changes.
Commissioner Dieter seconded the motion, which carried by unanimous voice vote - 5.
3-B. Hearing on Sunshine Ordinance Complaint Filed October 30, 2018
Serena Chen, Complainant, gave a brief presentation.
Commissioner Henneberry inquired whether there were copies of the original agendas,
to which Commissioner Schwartz responded copies were included in the packet.
Commissioner Schwartz inquired whether Ms. Chen attended and spoke at the
November 7th City Council meeting.
Ms. Chen responded in the affirmative; stated the basis of her complaint was that when
a meeting is noticed and Council radically changes something on the agenda, it does
not seem fair.
Commissioner Dieter inquired whether anything in the staff report indicated removing
the cap.
Ms. Chen responded in the negative; stated that she was clear what the changes were
going to be since she attended the July City Council meeting; when she saw the
Meeting of the
Open Government Commission
1
November 14, 2018",OpenGovernmentCommission/2018-11-14.pdf
OpenGovernmentCommission,2018-11-14,2,"October 16th agenda, it was a reflection of what was discussed in July and she decided
not to attend.
Commissioner Foreman stated the staff report reinforces his understanding about the
delivery-only dispensary.
Ms. Chen concurred with Commissioner Foreman; stated after she read the October
16th staff report, she was satisfied with the terms of the ordinance and felt confident of
the vote; however, she has a problem with the number of dispensaries being doubled
without any public notice.
Commissioner Schwartz inquired whether there was any consideration by the Council of
Ms. Chen's views after her public comment at the November 7th meeting, to which Ms.
Chen responded in the negative; stated the item was pulled from the Consent Calendar
so she could speak; she had already sent a letter to Council regarding her concerns, but
the issue was not addressed further.
Commissioner Foreman inquired whether Council discussed the item further and
provided rationale or just voted on the matter at the November 7th meeting.
Ms. Chen responded that she did not feel her questioning caused a quandary; stated
she respects Council and staff's professionalism but disagrees with the City's position.
Commissioner Henneberry stated that he understands Ms. Chen's complaint; inquired
what, in her view, would resolve the issue.
Ms. Chen responded the resolution she has experienced before any other board is that
if there are any changes to the language that has been proposed, staff is directed to
come back to Council with changes for Council to introduce the ordinance, have a first
reading and vote; there should be adequate notification for the public and an opportunity
for people to be involved.
Commissioner Dieter inquired whether Ms. Chen's remedy would be that the matter be
re-noticed and come back to the Council, to which Ms. Chen responded in the
affirmative; stated that she understands marijuana has been legalized in the State, but
cities are responsible for their own regulations.
Commissioner Dieter stated the Commission takes Ms. Chen's complaint seriously and
will do their best to consider her points.
The Assistant City Attorney gave a brief presentation.
Commissioner Henneberry inquired what would have been the harm of waiting one
more meeting and re-noticing the item.
Meeting of the
Open Government Commission
November 14, 2018
2",OpenGovernmentCommission/2018-11-14.pdf
OpenGovernmentCommission,2018-11-14,3,"The Assistant City Attorney responded he did not think there would be any harm; stated
the Council asked whether or not the Ordinance would comply and if they could
proceed; since the answer was affirmative, Council chose to move forward.
In response to Commissioner Schwartz inquiry on who answered affirmatively, the
Assistant City Attorney stated the Acting City Attorney.
Commissioner Henneberry inquired whether the Acting City Attorney explained the
basis of his opinion.
The Assistant City Attorney responded the Acting City Attorney explained that the
attorneys had opined on the matter and communicated to Council that proceeding with
a
second reading was okay; the Acting City Attorney further stated the opinion has not
changed.
Commissioner Henneberry stated the ordinance talked about delivery-only and was
completely flipped on its head at the October 16th meeting by adding two full-service
dispensaries with deliveries; inquired how doing so works with the strict and exact
standards of agenda noticing.
The Assistant City Attorney responded staff's position is that the change was delivery-
only to delivery-required; stated the agenda was noticed for an increase in the number
of dispensaries; the agenda language did state delivery-only, the Council has authority
to modify the ordinance in part because State law does not regulate the businesses any
differently and does not have a distinction for delivery-only; the distinction is a local
consideration, therefore, the Council has authority; conversely, the Council could decide
not to make the distinction and still be compliant, which is precisely what the Council did
in this instance.
Commissioner Foreman stated that he did not see the term ""delivery-required"" in either
the regulatory or zoning ordinance that came before Council on October 16th
The Assistant City Attorney stated Commissioner Foreman is correct; Council was
amending the ordinances to allow the change to happen and directed staff to do so.
Commissioner Foreman stated the change was not only delivery-only to delivery-
required, it was also changed from ""closed to the public"" to ""open to the public.""
The Assistant City Attorney agreed with Commissioner Foreman's statement; stated the
ordinance language from November 7th defined the change.
Commissioner Schwartz inquired whether the Assistant City Attorney would agree with
Ms. Chen that the difference between delivery-only and delivery-required is a facility
that is just a warehouse versus a facility that has public interaction.
Meeting of the
Open Government Commission
3
November 14, 2018",OpenGovernmentCommission/2018-11-14.pdf
OpenGovernmentCommission,2018-11-14,4,"The Assistant City Attorney responded not exactly; stated the difference between the
two is that although they are functionally the same, one does not allow public access;
he would not characterize a delivery-only dispensary as a warehouse as it would still
have to go through all of the State and local legal requirements.
Chair Little stated there was better public notice for the November 7th meeting; inquired
whether it is normal circumstance to allow a significant distinction or change in the
agenda item between the first reading and second reading.
The Assistant City Attorney responded legal counsel's position is that re-setting the first
reading due to changes is not an accurate statement of the law, as Ms. Chen asserts;
stated it is typical and permissible for Council to give staff direction to make changes
and come back; what is not permissible is making substantive modifications at the
second reading; in this case, however, resetting does not apply when an agenda is
published but Council decides to move in a different direction; Ms. Chen is arguing the
meaningful description as opposed to when a Council needs to reset the first reading
and start over; the separate issues are conflated because of the remedy Ms. Chen is
seeking; the issue before the Commission tonight is to determine whether or not the
agenda description is a meaningful description.
Chair Little stated it is difficult to know for certain the direction of Council conversation;
therefore, it is impossible to predict by way of an agenda description to name everything
and cover all of the minutia details that may come up; the intention of the discussion
was to have a meaningful conversation about delivery-only dispensaries; the
conversation did take place, but then deviated and language was changed; inquired
whether public awareness of the change took place in time for the Council to then vote
on the item and allow for public comment on November 7th
The Assistant City Attorney responded in the affirmative; stated Chair Little's statement
of events is accurate.
Commissioner Dieter requested clarification regarding whether a first reading and a
second reading can be entirely different as long as nothing substantive has changed; if
so, the first reading needs to be reset.
The Assistant City Attorney stated Commissioner Dieter's statement is accurate; in this
case, the change happened before the Council did its first reading.
In response to Commissioner Dieter's inquiry, the Assistant City Attorney stated the
Council suspended the first reading until they actually got their comments in on how
they wanted it modified; said practice is actually central to what Council does with
respect to ordinances; the Council would be hamstringed if they did not have said
ability.
The Assistant City Attorney read an unpublished court of appeals case analogous to the
issue; stated the notice was sufficient to provide a member of the public to know that
Meeting of the
Open Government Commission
November 14, 2018
4",OpenGovernmentCommission/2018-11-14.pdf
OpenGovernmentCommission,2018-11-14,5,"there would be an increase in the number of dispensaries, whether it is delivery-only or
delivery-required.
Commissioner Dieter stated that she understands that the Assistant City Attorney is in a
position of defending the City and that he believes there were no substantive changes;
the Commission's role is to defend the public to what a reasonable person would
understand; she would consider the changes substantive because a cap on retail
businesses was removed; the changes were not included in the staff report or agenda
title.
The Assistant City Attorney clarified that the legal standard Commissioner Dieter refers
to does not apply to the general agenda description because the changes happened
before the first reading and before Council introduced the ordinance.
Commissioner Foreman stated that he understands substantive or non-substantive is
not the issue; inquired whether the City's position would be the same if Council changed
the retail cap to eight, as long as they corrected it by the second reading.
The Assistant City Attorney responded he does not like to opine on hypotheticals, but
responded in the affirmative; stated the standard that applies is the notion that there is a
description for the members of the public to decide whether or not they should appear.
Commissioner Schwartz inquired whether there was a basis to dispute Ms. Chen's
claims that community advocates might have attended the meeting had they been
aware of the changes.
The Assistant City Attorney responded that it would be speculative to speak to that;
stated that he has attended every meeting regarding the cannabis issue and is
surprised by the amount of support versus the amount of opposition to the issue.
Commissioner Schwartz inquired whether the Assistant City Attorney was aware of a
vocal minority of public health advocates who are opposed to the additional public
dispensaries, to which the Assistant City Attorney responded Ms. Chen and one other
speaker are the only ones he is aware of that attended and spoke at the November 7th
meeting.
Commissioner Dieter stated the public did not know that more retail businesses were
going to be open; at the beginning of the process, there was a lot of concern about the
amount of retail, but the public was relieved and reassured by the City Council that
there would be a cap; the Council directed staff to bring back a report which included
the cap; the cap was then removed; Ms. Chen's complaint is not about what happened
at the November 7th meeting, it is about the first notice and whether members of the
public were alerted to changes made before the second notice.
Chair Little clarified that the ordinance clearly states ""add two cannabis retail
businesses.""
Meeting of the
Open Government Commission
5
November 14, 2018",OpenGovernmentCommission/2018-11-14.pdf
OpenGovernmentCommission,2018-11-14,6,"The Assistant City Attorney concurred with Chair Little; stated regarding Commissioner
Dieter's comments, that he cannot speculate on whether or not the public was
concerned about the issue.
Commissioner Dieter stated that she looked at the July meeting and no one on the
Council suggested adding the two retail businesses; Council requested staff bring back
a staff report with a cap; the staff report brought at the October meeting reiterated and
reaffirmed what Council directed regarding the cap; inquired why the first clause adding
two retail business was even included.
The Assistant City Attorney responded the report in July provided a status report on the
cannabis request for proposals issued in April; Councilmember Ezzy Ashcraft and Vice
Mayor Vella suggested adding ""delivery only"" at that meeting.
In response to Commissioner Dieter, the Assistant City Attorney stated the subsequent
staff report did not include only the Council direction; additional items were included.
Commissioner Dieter inquired what prompted the first clause to add two cannabis
businesses.
The Assistant City Attorney responded he does not recall; stated that he just
remembers it was mentioned.
Commissioner Dieter stated as a member of the public reading the ordinance, she
would interpret the additional two cannabis businesses as delivery-only businesses
since there is nothing in the staff report to suggest otherwise.
The Assistant City Attorney stated the staff report was designed to report on outcomes,
as opposed to creating a recommendation; staff was seeking direction from Council.
Commissioner Dieter inquired whether there would have been any harm to postpone
the second reading until after the complaint was heard.
The Assistant City Attorney responded there is a current application that is pending and
changes in the ordinance may impact the applicant.
Commissioner Dieter inquired what happens now if the Commission determines there
was a violation of the Sunshine Ordinance.
The Assistant City Attorney staffing the Commission responded pursuant to the
Sunshine Ordinance, if the Open Government Commission determines there is a
violation of Section 2.91, the Commission may order the action of the body null and void
and/or may issue an order to cure or correct, and may also impose a fine on the City for
a subsequent similar violation.
Meeting of the
Open Government Commission
November 14, 2018
6",OpenGovernmentCommission/2018-11-14.pdf
OpenGovernmentCommission,2018-11-14,7,"Commissioner Dieter stated it did not make sense to her that the ordinance proceeded
to a second reading when a complaint was filed with no opportunity for remedy.
In response to Chair Little's inquiry, the Assistant City Attorney stated staff reached out
to Ms. Chen after his email to her stating that she could still provide comment; Ms.
Chen's response to the email was that providing comment would not resolve her
complaint.
Chair Little stated that she understands the item was pulled; inquired how doing so
plays into the process.
The Assistant City Attorney responded the item was pulled for discussion but the
second reading did take place; stated a further amendment is going forward to clarify
definitions.
Commissioner Dieter stated the complaint is about the October 16th meeting, not about
anything that happened after.
Commissioner Foreman inquired whether a motion should be put on the floor, to which
the City Clerk responded the Commission is not required to follow Rosenberg's Rules
even though the Council does.
Chair Little stated the Commission pushed following Rosenberg's Rules; called for a
motion.
Commissioner Schwartz inquired whether the Commission should deliberate before
making a motion, to which Commissioner Dieter responded in the negative.
Commissioner Schwartz moved approval of sustaining the complaint and that Council
be ordered to re-notice the meeting so that community advocates can be heard on the
issue of two additional dispensaries.
Commissioner Dieter seconded the motion.
Under discussion, Commissioner Foreman stated there are two cannabis ordinances;
the zoning ordinance was not impacted by the complaint; suggested an amendment.
The Assistant City Attorney concurred with Commissioner Foreman, stated the changes
were confined to the business ordinance which contains the definition of ""delivery-only.""
Commissioner Schwartz stated that he does not think the ordinance needs to be
amended as long as it is clear when re-noticed that the conversion of delivery-only to
delivery-required deserves a public hearing; commended the speakers for thorough
presentations; stated that he agrees with Ms. Chen that the November 7th final vote did
not give the impression that there would be any meaningful debate; to the extent that
there are people in the community that want to be heard on this, it should be heard; it
Meeting of the
Open Government Commission
7
November 14, 2018",OpenGovernmentCommission/2018-11-14.pdf
OpenGovernmentCommission,2018-11-14,8,"a longer delay; nothing may change in the end; there could have been a two week delay
instead of another first reading and second reading; it is important to do the right thing.
The Assistant City Attorney for the Commission stated there was not a time savings as
a practical matter; the issue would have been delayed and would have to be re-noticed
anyway in the event of the Commission sustaining the complaint.
Commissioner Dieter stated the City moving forward even though a complaint was filed
looks bad to the public.
The Assistant City Attorney for the Commission stated just because a complaint is filed
does not mean the decision made at the October 16th meeting was not in order; the
opinion did not changed by November 7th. the Commission could have reached a
different conclusion; there was not a compelling reason to change the opinion at the
November 7th meeting.
Chair Little stated the 267 pages of information was confusing; assumptions cannot be
made about the decision; comparing what was originally proposed to the eventual
outcome of adding the two businesses has a greater weight; she supports the motion.
On the call for the question, the motion carried by unanimous voice votes - 5.
COMMISSIONER COMMUNICATIONS
Commissioner Dieter stated that she has enjoyed being on the Commission; sitting at
the dais is harder than it looks; commends the people who volunteer to sit on the
Commission.
The Assistant City Attorney for the Commission noted that he will draft a written
decision for the Commission to review and edit so a final version can be completed.
Meeting of the
Open Government Commission
November 14, 2018
8",OpenGovernmentCommission/2018-11-14.pdf
OpenGovernmentCommission,2018-11-14,9,"ADJOURNMENT
There being no further business, Chair Little adjourned the meeting at 8:23 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
9
November 14, 2018",OpenGovernmentCommission/2018-11-14.pdf
OpenGovernmentCommission,2018-12-17,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY DECEMBER 17, 2018 - - - 7:00 P.M.
Chair Little convened the meeting at 7:00 p.m.
ROLL CALL -
Present:
Commissioners Dieter, Foreman, Henneberry,
Schwartz and Chair Little - 5.
Absent:
None.
ORAL COMMUNICATIONS, NON-AGENDA
None.
AGENDA ITEM
Before addressing the agenda item, Chair Little stated that she does not think the
Commission's role as oversight on the Council and City Attorney's actions is appropriately
addressed to the Open Government Commission (OGC); if the City Attorney would like
to address inadequacies that were written into the law and presented at the last meeting,
the issues would be better discussed by the City Council; she would like to propose a
motion to table the conversation until after the City Council has been engaged on how the
City would like to address the oversight and transparency implications of staff's request.
Commissioner Foreman called a point of order on whether or not it is appropriate for the
Commission to consider the matter; stated that he believes it is out of order; the Sunshine
Ordinance states the Commission had to make a decision within 30 days of the filing of
the complaint; the decision was rendered on November 14th; the fact that the City Attorney
has not prepared a written confirmation of that decision does not change the fact that the
decision was made; the decision was made two days before the cannabis ordinance
would have become effective; thus, the ordinance is null and void; there is no basis to
proceed; as a consequence, the only thing left to do is write the written report required by
law which should have been done by November 28th; what needs to be done tonight is to
ask the City Attorney to assist the Commission with writing the opinion which confirms
what has already been done; the matter should be done tonight because he and
Commissioner Dieter will be termed out by tomorrow.
Commissioner Foreman moved approval of dismissing the reconsideration on the basis
that it is out of order and requesting the City Attorney to assist the Commission in writing
an order tonight confirming the November 14th decision.
In response to Commissioner Henneberry's inquiry, Chair Little stated that she would like
to table the issue until the City Council decides about the OGC's authority; she believes
that the Commission's decision made last month was under the purview of the
Commission, but counsel is saying it is not; she believes the City Council needs to make
the decision.
Meeting of the
Open Government Commission
1
December 17, 2018",OpenGovernmentCommission/2018-12-17.pdf
OpenGovernmentCommission,2018-12-17,2,"Commissioner Henneberry seconded Commissioner Foreman's motion.
Under discussion, Commissioner Dieter stated that she is uncomfortable with ignoring the
people who showed up tonight to speak; the Commission should at least hear speakers;
she is also uncomfortable with tabling the item because the implication is it will come back
under the same conditions; she would like to continue with the agenda item and allow the
citizens to speak; the outcome may be the same, but at least a motion would be made
after public comment.
Commissioner Foreman stated the vote on the motion could be done after public
comment.
Commissioner Dieter concurred.
In response to Commissioner Dieter's inquiry, Commissioner Foreman stated that he
does not want to hear the staff report because it is out of order; he is not opposed to
public comment and is adamantly opposed to tabling the matter because it would mean
surrendering the Commission's authority.
Commissioner Henneberry stated that he does not see a point in public comment if the
staff report is not going to be heard; if the issue has to go back to Council, there will be
many opportunities for public comment and there was public comment at the last meeting.
Commissioner Foreman stated if the motion passes, it does not remove the possibility
that the City Attorney's office may advise City Council that the Commission did not have
the authority and City Council may agree with the determination; while the issue may end
tonight at the Commission level, it may not be over.
Chair Little stated as the Sunshine Ordinance is written, she interprets that the
Commission had every right to make the November 14th decision; the Commission was
advised by the City Attorney that the decision was one the Commission could make; she
was surprised to have to the issue return for another meeting; she is unclear why the
Commission was told they could make a decision, then three weeks later, the authority is
rescinded.
Commissioner Foreman concurred with Commissioner Henneberry; stated as much as
he would like to hear public comment, it is out of order; the Commission could move
forward after the vote if it does not carry.
Commissioner Henneberry called the question.
Commissioner Dieter requested Commissioner Foreman to restate his motion.
The City Clerk restated Commissioner Foreman's motion to have the City Attorney write
an order confirming the Commission's November 14th decision.
Meeting of the
Open Government Commission
December 17, 2018
2",OpenGovernmentCommission/2018-12-17.pdf
OpenGovernmentCommission,2018-12-17,3,"Commissioner Foreman stated his motion included dismissing the reconsideration of the
matter.
Chair Little inquired whether the motion should also include having the item re-noticed by
City Council, to which Commissioner Foreman responded in the affirmative.
Commissioner Foreman stated that he thinks staff report Attachment B would suffice with
some changes.
The Interim City Attorney stated Attachment B could be easily word-smithed to carry out
what the Commission would like with respect to the matter; further stated that he is not
going to agree with Commissioner Foreman's position that the ordinances in question are
null and void; the decision will have the effect of providing direction to the Council to have
said result come about; as indicated in his memo to the Commission, he does not think
the Commission has the legal authority to render a legally adopted ordinance null and
void.
Chair Little stated the Commission was told that the timing of their deliberations and
delaying the second reading of the ordinances in order for the Commission hearing to
take place first did not matter; inquired whether the issue came about because the
Commission deliberated on the issue after the second reading of the ordinances.
The Interim City Attorney responded the matter proceeded on November 7th; at the
October 16th meeting, the City Attorney advised the City Council that it was appropriate
to introduce the ordinance with the amendment in question and that it did comply with the
Sunshine Ordinance; Council relied on said advice and made the decision to proceed on
November 7th notwithstanding the fact that a complaint had been filed on October 30th
Council adopted the ordinances on November 7th which went into effect on December 6th.
it is his understanding that the Commission would like to have the ordinances re-noticed,
and the two ordinances would be repealed.
Commissioner Dieter made a friendly amendment to the motion that the Commission
affirm its November 7th decision.
Commissioner Foreman stated that is basically his motion; Commissioner Dieter may just
be objecting to the first sentence regarding dismissing the matter as out of order; he thinks
it is important for the Commission to make the assertion; he is not present to argue
whether or not the City Attorney's position of delegation of power is correct; he is here to
argue that the Commission's jurisdiction on the matter ended on November 14th
Commissioner Dieter stated that she is ready to move forward with the vote because she
is not persuaded by the City's legal analysis that no grounds exist to revisit the matter;
she also believes the Commission does not have the authority to determine whether the
ordinance is valid.
Meeting of the
Open Government Commission
3
December 17, 2018",OpenGovernmentCommission/2018-12-17.pdf
OpenGovernmentCommission,2018-12-17,4,"On the call for the question, the motion carried by the following voice vote: Ayes:
Commissioners Little, Foreman, Dieter, Henneberry - 4. Absent - 1 (Commissioner
Schwartz).
In response to Commissioner Foreman's inquiry about drafting the report, the Interim City
Attorney stated amending Attachment B of his analysis would be the easiest.
Commissioner Dieter stated that she has two amendments to propose; inquired whether
it was important to treat the decision like a legal opinion.
The Interim City Attorney responded he followed the format the Commission has used
before; stated the Commission could do something different.
Commissioner Dieter stated if the format is maintained, the entire paragraph on page
8
that starts with ""Turning now to the question.. through the three provisions, should be
deleted.
In response to the Interim City Attorney's inquiry about what to do on the next page if the
paragraph is deleted, Commissioner Dieter stated the third sentence stating ""In order to
carry out the decision could be deleted.
Chair Little clarified that if the paragraph and three provisions on page 8 are deleted,
along with the third sentence on page 9, the Commission would end up with the same
decision made on November 14th
Commissioner Dieter concurred with Chair Little.
Commissioner Foreman stated the Commission has to state the direction; suggested the
sentence to read, ""In order to carry out the decision, the Commission directs that the
ordinances passed on October 16, 2018 are hereby null and void and that ""the City
Council may re-introduce the two ordinances following a properly noticed public hearing..
""
Commissioner Henneberry suggested allowing the City Council to do whatever they need
to do; the complaint was sustained, the Council should re-notice and re-hear the
ordinances.
Chair Little stated that she does not want to allow room for the Council to make the
decision; the Commission should make it clear that the Council must to re-notice and re-
introduce the ordinances.
Commissioner Henneberry inquired whether that direction was already in the original
message to Council, to which Chair Little responded in the affirmative.
Commissioner Henneberry stated instead of rewriting the language, the Commission
should just append what the decision was to the end of the report.
Meeting of the
Open Government Commission
December 17, 2018
4",OpenGovernmentCommission/2018-12-17.pdf
OpenGovernmentCommission,2018-12-17,5,"Chair Little concurred with Commissioner Henneberry; stated that is what the
Commission is trying to do.
The Interim City Attorney stated without waiving his previous arguments, suggested
including the amendments as the three provisions rather than deleting them altogether.
Chair Little stated that she would like the language to read, ""the Council must re-notice
""
and delete the word ""consider"" as she does not want Council to be able to consider the
decision, and rather just be directed to do it.
The Interim City Attorney stated the Commission does not have the authority to direct the
Council's action.
Commissioner Foreman stated the Commission has made the ordinances null and void;
the Council can choose to re-notice the ordinances if desired; he does not think the
Commission should force Council to reconsider.
Commissioner Henneberry stated the Commission's job is done upon Council being
informed of the mistake.
The Interim City Attorney reiterated the language revisions to include deleting the word
""circumscribed"" in the fourth sentence, and having the Commission ""directing"" rather than
""recommending"" the following: 1) Ordinances 3227 and 3228 are null and void; and 2) the
City Council may consider re-introducing the two ordinances in question following a
properly noticed public hearing.
Commissioner Foreman stated the provision regarding the agenda title is not needed and
can be deleted.
The Interim City Attorney affirmed Commissioner Foreman's statement.
Commissioner Foreman stated that he would like to make a change to a paragraph on
page 8; the last sentence should just read: ""the Commission finds that there was a
violation of Section 2-91.5, and the complaint is thereby sustained.'
Commissioner Dieter stated that she does not think a full legal opinion is necessary in the
future because it could be biased since it promotes a certain viewpoint.
The Interim City Attorney read the amended language and the Commission concurred
with the changes.
Commissioner Foreman stated that he was concerned about the Commission being
represented by the City Attorney's office in the enforcement proceedings; especially with
the particular issue; on October 16th, the Acting City Attorney rendered the opinion that
the notice on the agenda was appropriate; then, on November 14th. the Assistant City
Attorney argued before the Commission in support of the Acting City Attorney; the Interim
Meeting of the
Open Government Commission
5
December 17, 2018",OpenGovernmentCommission/2018-12-17.pdf
OpenGovernmentCommission,2018-12-17,6,"City Attorney is in the middle, should be advising the Commission and has a conflict;
further stated the City should consider hiring independent, private counsel to represent
the Commission when a complaint is heard.
In response to Commissioner Dieter's inquiry regarding who has authority to request a
re-hearing, the Interim City Attorney stated the request could come from a number of
different sources; in this case, because the City Attorney's office did not do an accurate
job of laying out what the Commission could do, it was incumbent upon the City to provide
the information to the Commission and the Council so that the issue could be fully vetted
and addressed.
The Commission agreed to hear the public comments.
3-A. Hearing on the Sunshine Ordinance Complaint Filed October 30, 2018 and the
November 14, 2018 Open Government Commission Hearing and Decision, Including
Scope of Legal Authority of the Open Government Commission to Impose Certain
Penalties under the Sunshine Ordinance and Potential Next Steps.
Stated he is satisfied with the outcome of tonight's meeting and does not feel the
Commission's decision encroaches on the Council's legislative authority: Richard Bangert,
Alameda.
Read the League's letter supporting the Commission's decision: Karen Butter, League of
Women Voters.
Thanked the Commission for reaffirming his faith in government: Bill Smith, Alameda.
Commissioner Foreman stated what the Commission did tonight is not an exercise or
delegation of legislative power; it is a quasi-judicial function and the same penalty that
would have been suffered under the Brown Act.
In response to Chair Little's inquiry regarding calling the question, the City Clerk stated
she already called the question and the previous decision was upheld: 4 to 1 with
Commissioner Schwartz absent.
3-B. Hearing on Sunshine Ordinance Complaint Filed December 4, 2018. [Withdrawn
without prejudice]
COMMISSIONER COMMUNICATIONS
Chair Little thanked Commissioners Foreman and Dieter for their service; stated having
them participate in tonight's meeting was important.
ADJOURNMENT
There being no further business, Chair Little adjourned the meeting at 7:49 p.m.
Meeting of the
Open Government Commission
December 17, 2018
6",OpenGovernmentCommission/2018-12-17.pdf
OpenGovernmentCommission,2018-12-17,7,"Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
7
December 17, 2018",OpenGovernmentCommission/2018-12-17.pdf
OpenGovernmentCommission,2019-02-04,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY FEBRUARY 4, 2019 7:00 P.M.
Chair Little convened the meeting at 7:00 p.m.
ROLL CALL -
Present:
Commissioners Schwartz, Shabazz, Tilos and Chair
Little - 4.
[Note: Commissioner Shabazz arrived at 7:41 p.m.; he had provided
notification that he would be late due to a previous engagement.]
Absent:
Commissioner Henneberry - 1.
ORAL COMMUNICATIONS, NON-AGENDA
Paul Foreman, Alameda, stated he is concerned about the ability of the Commission to
function under the current circumstances; Section 2-93.8 of the Sunshine Ordinance
states that the Open Government Commission (OGC) decides complaints and can direct
Council action; however, the Interim City Attorney has stated the Section is in violation of
the Alameda Charter and State law; he disagrees with the Interim City Attorney; the issue
is a real problem.
AGENDA ITEMS
3-A. Select Chair and Vice Chair
Commissioner Tilos moved approval of having Commissioner Henneberry serve as Chair.
Commissioner Schwartz seconded the motion, which carried by unanimous voice vote
-
3. [Absent: Commissioners Henneberry and Shabazz - 2.]
Commissioner Tilos moved approval of having Commissioner Schwartz serve as Vice
Chair.
Chair Little seconded the motion, which carried by unanimous voice vote - 3. [Absent:
Commissioners Henneberry and Shabazz - 2.]
3-B. Minutes of the November 14, 2018 and December 17, 2018 Meetings
Not heard.
3-C. Accept the Annual Public Report
Commissioner Schwartz moved approval of the Annual Report.
Commissioner Tilos seconded the motion, which carried by unanimous voice vote - 3.
Meeting of the
Open Government Commission
1
February 4, 2019",OpenGovernmentCommission/2019-02-04.pdf
OpenGovernmentCommission,2019-02-04,2,"[Absent: Commissioners Henneberry and Shabazz - 2.]
3-D. Hearing on Sunshine Ordinance Complaint Filed January 25, 2019
Serena Chen, Complainant, gave a brief presentation.
The Interim City Attorney gave a brief presentation.
Chair Little stated a comprehensive summary provided by former Commissioner Foreman
outlines the issue.
Commissioner Tilos inquired whether the powers of the Commission is a topic that needs
to be addressed, to which Chair Little responded the discussion needs to be separate.
In response to Commissioner Tilos' inquiry, the Interim City Attorney stated Ms. Chen's
complaint is that not attaching the Commission's decision to a January 15th report is a
violation of the Sunshine Ordinance; the City's position is that not attaching the decision
to the report is not a violation of the Sunshine Ordinance since the Commission did not
direct that the decision be part of any subsequent action or report; Ms. Chen secondarily
contends that the agenda title was deficient with respect to describing the item the Council
was going to consider; the City's position is the title more than adequately described the
item which was the re-introduction of the cannabis ordinances and the repeal of the
ordinances which the OGC rendered null and void.
Commissioner Schwartz inquired whether the Interim City Attorney's position is that the
January 15th meeting was a first or second reading of the ordinance.
The Interim City Attorney responded had the Council majority voted to re-introduce the
ordinance, it would have been the first reading.
Chair Little inquired whether the failure of the Council to make a decision maintains the
circumstance that the ordinances are still null and void as decided by the OGC.
The Interim City Attorney responded in the negative; stated the Council has been advised
that the ordinances will remain in full force and effect unless and until Council repeals the
ordinances.
Commissioner Schwartz inquired what information was given to the public and Council
about the impact of keeping the ordinances in effect.
The Interim City Attorney responded the information was adequately described in the
report itself but the agenda title does go into that depth.
Commissioner Schwartz inquired what in the agenda title would inform someone of the
effects and current state of the law, to which the Interim City Attorney responded the
information is described in the summary of the title.
Meeting of the
Open Government Commission
February 4, 2019
2",OpenGovernmentCommission/2019-02-04.pdf
OpenGovernmentCommission,2019-02-04,3,"In response to Commissioner Schwartz's inquiry, the Interim City Attorney stated
Attachment 3 of the report includes the information regarding the impacts.
Commissioner Schwartz inquired where the report state that the previously null and void
ordinances are back in effect.
The Interim City Attorney responded the City's position is that the ordinances never went
out of effect.
Commissioner Tilos stated the ordinances were never null and void because the
Commission did not have the power to do so.
The Interim City Attorney concurred with Commissioner Tilos; stated if the Commission
did not have the authority to render the ordinances null and void, by definition, they were
still in full force and effect.
Chair Little stated that she is concerned the Commission is entering into a slightly different
conversation by arguing the merits of whether or not the Commission has the right to
render any Council action null and void; she would like to focus on the complaint before
the Commission tonight; inquired whether there are technical questions; inquired what
was the rationale behind not including the Commission's decision.
The Interim City Attorney responded there was no purposeful thought of not attaching the
document; stated when the item was drafted, it seemed agenda report adequately
described the issue and paraphrased the Commission's decision.
Chair Little stated stating information in the background and paraphrasing created the
situation tonight; the Commission's purpose is to make sure issues are made available
publicly and not just in the background.
Karen Butter, League of Women Voters, read a letter the League submitted on the matter.
Paul Foreman, Alameda, stated the failure to attach the decision is a technicality; the real
problem is the title misled the public because it was not clear; the process should be two
steps: 1) repeal the ordinances, and 2) re-introduce the ordinances.
Irene Dieter, Alameda, concurred with Mr. Foreman; stated there was no way for the
public to figure out that any no vote was just symbolic; there was no opportunity for the
public to realize the item was not a re-hearing; the item should be re-noticed.
Serena Chen, Complainant, stated the written decision of the Commission should have
been issued within 14 days of December 17th; it was not, so it became a violation of the
Sunshine Ordinance.
Ryan Agabao, Alameda, stated the public was given plenty of notice and many
Meeting of the
Open Government Commission
3
February 4, 2019",OpenGovernmentCommission/2019-02-04.pdf
OpenGovernmentCommission,2019-02-04,4,"opportunities to come out and speak; the OGC's concern was heard but just did not get
the votes.
The Interim City Attorney stated with respect to Ms. Chen's comment about the decision
not being issued, it was issued that night and was compliant with the 14 days as required
by the Sunshine Ordinance; regarding the structure of the ordinances, one section dealt
with repealing Ordinances 3227 and 3228; there was nothing that prevented the Council
from deciding not to re-introduce the ordinances and rather just repeal them; the Council
chose not to repeal the ordinances; the issue brought up by the League of Women Voters
recommending that the Commission has its own legal counsel to deliberate matters which
may have internal conflict makes sense and he has made a recommended to the Council
for that to occur.
Chair Little moved approval of sustaining Ms. Chen's complaint.
Commissioner Shabazz seconded the motion.
Under discussion, Commissioner Shabazz stated, for the record, he attends the Quba
Mosque on Haight Street which is adjacent to one of the proposed dispensaries; if at any
point he feels there may be a conflict, he would recuse himself from the discussion.
In response to Commissioner Shabazz's inquiry regarding the status of the discussion
since he arrived late, the City Clerk provided a brief summary.
Commissioner Schwartz thanked Ms. Chen and Mr. Agabao for their comments; stated
he takes no position on the underlying issue of the ordinance; the Commission should be
completely process-oriented and be totally without regard for the underlying content; his
concern is with transparency and democracy and whether the public had an opportunity
to be heard; the process is needs to be looked at; the process was not clear and the
public was confused; transparency is an important value that the City has and everything
should have been put out on the table; the Commission's decision should have been
included in the staff report and executive summary; the exact status of the ordinances
and impacts of passing a new ordinance should have been made clear; he felt it was
unclear and a reasonable member of the public would find it unclear as well; what needs
to be done for transparency and democracy is to just do it again; he understands that
both sides have important issues at stake and deserve to have the issue resolved, but
one more month to ensure transparency is worth it.
Commissioner Tilos stated he concurred with Chair Little's concerns about the issue being
paraphrased and put in the background; a lot of time and effort was put in to a
recommendation by the Commission, which was not included; although the issue passed
on the legal tests, it should pass the test of being fully transparent.
Chair Little stated that she takes the duties of the Commission very seriously; the issues
that have been brought before the Commission allow the opportunity to examine what
exactly is going on in the City's government; tonight's matter has nothing to do with the
Meeting of the
Open Government Commission
February 4, 2019
4",OpenGovernmentCommission/2019-02-04.pdf
OpenGovernmentCommission,2019-02-04,5,"underlying issues regarding cannabis and everything to do with transparency in
government and making sure the public does not have to hunt for information; the
Commission made a decision based on the Sunshine Ordinance to make a Council action
null and void, yet it is still unclear whether or not the Commission does have that authority,
and it is left for the Council to decide; ultimately she would like to ask the City Council
three things: 1) make a determination based on the OGC's decision in December to make
the ordinances null and void, 2) the null and void clause of the Sunshine Ordinance needs
review with the next City Attorney; if it is deemed unconstitutional, the Commission needs
to have some method of oversight, and 3) the Commission needs to have separate legal
counsel.
The Interim City Attorney requested the Commission review and provide a written
decision concerning the matter.
Commissioner Schwartz stated redlining the decision on the fly does not make sense; the
decision should simply state that the complaint is sustained; if the ordinance does not get
sent back for a first reading, the City could potentially be faced with a lawsuit; suggested
starting fresh and re-introducing the ordinances.
The Interim City Attorney stated the proposed decision could be amended to state there
was a violation of Section 2-93.2-B and 2-91.5 and the complaint should therefore be
sustained.
Commissioner Schwartz moved approval of the decision adding that the Commission
based their findings on information presented during the hearing on the matter, including,
but not limited to, the fact that the Commission's prior decision was not included in the
January 15, 2019 City Council packet, causing average members of the public, or even
a well-informed members, to be confused about what the Council was voting on.
Commissioner Shabazz requested a friendly amendment; stated that he would not
include Commissioner Schwartz comment regarding ""average members of the public"" as
it is an assumption and he wants to remain as factual as possible; suggested the motion
state the OGC sustain Ms. Chen's complaint filed on January 25, 2019, and that there
was a violation of Section 2-93.2-B and 2-91.5 of the Sunshine Ordinance based on the
omission of the documentation of the Commission's decision in the Council packet.
Commissioner Schwartz concurred with Commissioner Shabazz and clarified the term he
meant to use is ""reasonable well-informed"" member of the public.
The City Clerk stated the motion is: Ms. Chen's complaint will be sustained with the
decision stating that the document of the Commission's decision was not attached to the
January 15th Council packet and that a reasonable well-informed person would be
confused as to what Council was voting on.
On the call for the question, the motion carried by unanimous voice vote - 4. [Absent:
Commissioner Henneberry - 1.]
Meeting of the
Open Government Commission
5
February 4, 2019",OpenGovernmentCommission/2019-02-04.pdf
OpenGovernmentCommission,2019-02-04,6,"Commissioner Shabazz moved approval of requesting follow-up on the items regarding
the legal counsel conflict, as well as the authority of the Commission over City Council
decisions.
In response to Chair Little's inquiry regarding the follow-up items, the Interim City Attorney
stated the items are not technically on the agenda, but the topic has come up within the
context of the issue so a motion would be appropriate; the Council is aware of the
Commission's concerns and there will be some movement on the issues raised.
Commissioner Schwartz stated the Commission should heed its own advice and not have
motions at the meeting on issues that were not noticed; he feels confident that the Council
will hear the message from tonight's OGC meeting.
Chair Little concurred with Commissioner Schwartz.
COMMISSIONER COMMUNICATIONS
Chair Little welcomed Commissioners Shabazz and Tilos to the Commission; stated she
enjoyed serving as Chair and expressed appreciation to former Commissioners Paul
Foreman and Irene Dieter for their guidance.
Commissioner Shabazz thanked the members of the public for communicating their
issues to the OGC; inquired who determines whether there is a conflict of interest.
The Interim City Attorney responded once a complaint is received, based on the nature
of the complaint, if it would appear that one of the outcomes of the complaint would be
contrary to what the law provides and what the Commission is authorized to do, that would
trigger having outside counsel advise the Commission.
ADJOURNMENT
There being no further business, Chair Little adjourned the meeting at 8:16 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
February 4, 2019
6",OpenGovernmentCommission/2019-02-04.pdf
OpenGovernmentCommission,2019-07-23,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
TUESDAY JULY 23, 2019 - 7:00 P.M.
Chair Henneberry convened the meeting at 7:00 p.m.
ROLL CALL -
Present:
Commissioners Little, Shabazz, Tilos and Chair
Henneberry - 4.
Absent:
Commissioner Schwartz - 1.
ORAL COMMUNICATIONS, NON-AGENDA
None.
AGENDA ITEMS
3-A. Minutes of the February 4, 2019 Meeting
Commissioner Shabazz requested that the minutes include that prior to the meeting, he
had informed staff he would be late.
Commissioner Shabazz moved approval of the minutes.
Commissioner Little seconded the motion, which carried by unanimous voice vote - 4.
[Absent: Commissioner Schwartz - 1.]
3-B. Hearing on Sunshine Ordinance Complaint Concerning Alleged Failure to Respond
Timely to Public Records Act Request
Chair Henneberry noted that Commissioner Shabazz would have to recuse himself since
he filed the complaint.
The Assistant City Attorney gave a brief presentation.
In response to Commissioner Tilos' inquiry regarding the hundreds of requests per year,
the Assistant City Attorney stated approximately 30 to 40 come through the City Attorney's
office to determine if records could be disclosed; the other vast number of requests are
handled routinely without the involvement of the City Attorney's office.
Commissioner Tilos inquired how requests are tracked, to which the Assistant City
Attorney responded there is a designated paralegal who tracks the requests manually
and assigns the matter to the respective attorney; stated he did not know why the request
from the complainant was not tracked appropriately.
Meeting of the
Open Government Commission
1
July 23, 2019",OpenGovernmentCommission/2019-07-23.pdf
OpenGovernmentCommission,2019-07-23,2,"In response to Commissioner Tilos' inquiry, the City Clerk stated all requests are tracked
manually, with exception of the City's SeeClickFix online system which is used primarily
for Public Works maintenance requests, i.e. request to fix potholes, etc.
Chair Henneberry inquired whether the same system is used in the City Attorney's office,
to which the Assistant City Attorney responded the City Attorney's office does not receive
the requests initially, only the ones that need further evaluation regarding whether certain
documents can be disclosed.
Chair Henneberry inquired whether a request is automatically acknowledged.
The Assistant City Attorney responded in the affirmative for most cases; stated sometimes
the acknowledgement includes a time extension to provide a response depending on the
request.
Commissioner Henneberry stated the complaint before the Commission tonight was
skipped over in terms of all the deadlines and acknowledgements.
The Assistant City Attorney concurred with Commissioner Henneberry, stated the
complainant's request was not handled timely or appropriately, unfortunately.
Commissioner Little inquired whether there is a standardized set of regulations that
determine what can be disclosed and what cannot.
The Assistant City Attorney responded there are several exemptions under the Public
Records Act that are not subject to disclosure based on the category; there are always
gray areas in interpreting the categories; there is a catch-all provision as well about
privacy interest that would be impacted by disclosure substantially outweighing the
obligation to disclose, which is also a grounds not to provide the information; the requestor
needs to be informed why information is not being disclosed.
Commissioner Little inquired whether there were no records to even review for this
request, to which the Assistant City Attorney responded in the affirmative; stated the
Police Department found no records responsive to the request.
Commissioner Little inquired whether there is now a process for making sure the Police
are maintaining records post January 1, 2019 so that there would be something to review
should another request come up.
The Assistant City Attorney responded in the affirmative; stated there are records pre-
and post-January 1, 2019; if there is an incident that falls within the categories and a
public records request is made, documents would be produced unless there was some
other exception.
Meeting of the
Open Government Commission
July 23, 2019
2",OpenGovernmentCommission/2019-07-23.pdf
OpenGovernmentCommission,2019-07-23,3,"Commissioner Little inquired what processes have been put into place since this incident
happened to make sure no more records requests are lost and whether the process is
consistent or needs tightening up.
The Assistant City Attorney responded there is always room for improvement; stated the
City Attorney's office is not aware that the situation happens routinely; Commissioner
Shabazz's email from today indicates otherwise, but he is not aware of other incidents;
the City Attorney's office will look into the incidents even though there was not a complaint
filed at the time and to review why there was not a timely response on a couple of matters.
Commissioner Tilos inquired whether it was fair to say the City Attorney's office's
response to public records request is to wait for a complaint to be filed before providing
information.
The Assistant City Attorney responded in the negative; stated that he would not categorize
the process in that way; the person designated to track the requests is usually very diligent
and makes sure the requests are handled in a timely manner; this particular request
seems to be an anomaly.
Commissioner Tilos inquired whether follow-up on the other records requests have been
done to ensure they were answered timely, to which the Assistant City Attorney responded
he cannot answer definitively.
Chair Henneberry stated it can be assumed that the other requests have been fulfilled
because there have not been any complaints filed; the City would certainly be hearing
from KQED and the East Bay Times if requests were not fulfilled.
The Assistant City Attorney concurred with Chair Henneberry, stated most people
submitting a records request that is not fulfilled would not just ignore it; he is not certain
whether or not the other requests have been followed-up but a review of the other
requests can be done.
In response to Chair Henneberry's inquiry regarding when an email was sent by the City
Attorney's office to the complainant, the Assistant City Attorney stated the email was sent
on May 29, 2019 after the complaint was filed.
In response to Commissioner Little's inquiry regarding a response sent to the complainant
on June 10, 2019, the Assistant City Attorney stated every attempt is made to resolve the
complaint before having the matter come before the Commission.
Commissioner Little inquired whether perhaps the City Attorney's Office fulfilling several
requests regarding the same issue was the reason the complainant's request was
overlooked.
Meeting of the
Open Government Commission
3
July 23, 2019",OpenGovernmentCommission/2019-07-23.pdf
OpenGovernmentCommission,2019-07-23,4,"The Assistant City Attorney responded in the negative, stated the voluminous requests
he mentioned were not a specific incident, requests were for any incident which fell into
the new categories.
In response to Commissioner Little's inquiry, the Assistant City Attorney stated the
complainant made a request for a broad variety of incidents.
In response to Commissioner Little's inquiry, Rasheed Shabazz, Complainant, stated
there were multiple experiences where he did not received responses in a timely manner.
Mr. Shabazz gave a brief presentation providing background information on Senate Bill,
facts related to his complaint, relevant State law related to Police records; commented on
the importance of transparency and perception; and provided recommendations to make
local government accessible to the public.
Commissioner Tilos stated he would like to see the statistical reporting regarding the
public records requests; he would like to see some sort of penalty imposed on the
agencies or departments that do not provide responses in a timely manner.
Chair Henneberry stated the Commission's decision does not go far enough and does
not establish the framework for avoiding the situation from repeating itself; he is not
comfortable signing it as is; it is not comprehensive enough; there should be guarantees
from the City departments that when a citizen makes a request, it will be acted on in a
timely manner; 39 out of 40 requests may have been fulfilled, but dropping the ball on
one request in this egregious manner is not acceptable.
Commissioner Tilos stated the number of requests not been confirmed; the actual number
could be lower.
Commissioner Little concurred with Chair Henneberry; stated that she is not comfortable
signing off on the decision as it does not outline the expectation for making sure there are
procedures put into place so that the situation does not end up back before the
Commission.
In response to Chair Henneberry's inquiry, the Assistant City Attorney stated the staff
report and decision points out that the matter was inadvertent rather than intentionally
overlooking the complainant's requests; based on what he has heard from the
Commission, he could draft a revised decision for the Commission to consider at the next
meeting on October 7, 2019.
Chair Henneberry stated the perception from the City Attorney's office is the issue was
inadvertent and unintentional, which are non-legal terms.
The Assistant City Attorney concurred with Chair Henneberry; stated a violation is
a
violation.
Meeting of the
Open Government Commission
July 23, 2019
4",OpenGovernmentCommission/2019-07-23.pdf
OpenGovernmentCommission,2019-07-23,5,"Commissioner Little stated she thinks it is important to bring up the topic of conflict of
interest again; she is curious how legal counsel, which is the same counsel defending the
incident, can advise the Commission.
The Assistant City Attorney stated part of the responsibilities of the City Attorney's office
is to advise all boards and commissions, as well as the City Council; typically, the kinds
of issues that may come up before the Open Government Commission are ones the City
Attorney's office can advise on; conflict of interest has been discussed with the new City
Attorney and he feels there is no conflict of interest; the City Attorney's role is to give legal
advice; the Commission may accept the advice or not, but it does not mean there is a
conflict of interest; it may just mean the City Attorneys has a different opinion than the
majority of the Commission; unless the City Council indicates that it wishes the Open
Government Commission to have outside Counsel, the intent is to continue to provide
legal advice to the Commission.
Commissioner Little whether Commissioner Shabazz's circumstances as the complainant
create a conflict of interest, yet the City Attorney's office involvement does not.
The Assistant City Attorney responded in the affirmative; stated a complainant, by
definition, is not in a position to decide his or her own complaint; the City Attorney's office
recognized in this particular case that the request did not get fulfilled and that there was
a violation; the City Attorney's office has been up front about it and does not see a conflict
of interest.
Commissioner Tilos concurred with Commissioner Little; stated it could be safe to say the
conflict of interest is perceived but not real; he believes the Commission is powerful
enough to consider the legal advice given by the City Attorney's office without conflict and
be able to form its own opinions regarding the advice.
The Assistant City Attorney concurred with Commissioner Tilos; stated his office provides
legal advice; the City Council and other Boards and Commissions do not always follow
the advice, but it is within their prerogative; he hopes the advice being given tonight is
consistent with what the Commission would follow, including adding language to the
decision that indicates what should happen on a going-forward basis; he is ready to draft
something for the Commission's consideration.
Chair Henneberry stated he would like the Commission to make concrete
recommendations in the decision.
Commissioner Tilos stated he would like to see monthly or quarterly metrics about the
number of requests made and fulfilled, not only for the City Attorney's office, but overall;
until 100% can be seen, there is no progress toward fixing the problem or the inadvertent
technical violations that could happen.
Meeting of the
Open Government Commission
5
July 23, 2019",OpenGovernmentCommission/2019-07-23.pdf
OpenGovernmentCommission,2019-07-23,6,"Chair Henneberry concurred with Commissioner Tilos; stated the request is reasonable
considering the volume of record requests made annually; he would like to emphasize
the need for an immediate acknowledgement of requests made.
Commissioner Little inquired whether an excel spreadsheet is used for the tracking, to
which the Assistant City Attorney responded that he is not certain of the tracking method
but will provide information at the next meeting.
Commissioner Little stated that she would like the City Attorney's office to review its
processes and come up with internal suggestions.
The Assistant City Attorney stated that he has notes of the well-founded suggestions and
will draft the changes to the decision.
The City Clerk added that her office usually always double-checks when copied on
requests and has already included the new practice going forward.
In response to Commissioner Little's inquiry, the City Clerk stated often times the requests
which come through the SeeClickFix system to the Clerk's office are not public records
requests and are Code Enforcement or other requests, which the office has to reassign;
the actual public records requests that come through to the Clerk's office are typically
fulfilled within the 10 days because most of the information is not confidential and does
not require extra review.
Chair Henneberry stated the direction is for staff to go back to the drawing board to
restructure the decision so that the situation does not repeat itself.
The City Clerk clarified that the hearing will be continued to a date certain, October 7,
2019 for the decision to be reviewed.
Chair Little inquired whether the Commission would receive the revised draft decision
prior to the agenda packet, to which the Assistant City Attorney responded in the
affirmative; stated that he will provide the draft soon so that the Commission will have an
opportunity to provide comments and it can be close to final form ahead of the October
7th meeting.
In response to Commissioner Tilos' inquiry, the Assistant City Attorney stated
Commissioner's comments should be directed to him alone, not fellow Commissioners,
to be compliant with the Sunshine Ordinance.
Commissioner Little stated Commissioners can reach out to one other Commissioner if
there are any questions or to clarify anything.
COMMISSION COMMUNICATIONS
Meeting of the
Open Government Commission
July 23, 2019
6",OpenGovernmentCommission/2019-07-23.pdf
OpenGovernmentCommission,2019-07-23,7,"Commissioner Shabazz stated he will not be able to attend the upcoming Sunshine
Ordinance training, but will watch the video.
Commissioner Little stated that she, too, will not be able to attend the Sunshine Ordinance
training.
The City Clerk stated the Sunshine Ordinance Training will be on August 13th at 10:30
a.m. in Council Chambers; the training will be recorded so those who are unable to attend
will be able to watch the recording online.
Chair Henneberry stated that he may not be able to attend the training as well, but will
watch the video.
ADJOURNMENT
There being no further business, Chair Henneberry adjourned the meeting at 8:01 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
7
July 23, 2019",OpenGovernmentCommission/2019-07-23.pdf
OpenGovernmentCommission,2019-10-07,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY OCTOBER 7, 2019 - 7:00 P.M.
The meeting was cancelled due to lack of a quorum.
Irma Glidden
Assistant City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
1
October 7, 2019",OpenGovernmentCommission/2019-10-07.pdf
OpenGovernmentCommission,2019-12-18,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
WEDNESDAY DECEMBER 18, 2019 - 7:00 P.M.
Acting Chair Schwartz convened the meeting at 7:00 p.m.
ROLL CALL -
Present:
Commissioners Little, Shabazz, Tilos and Acting Chair
Schwartz - 4.
Absent:
None.
[Staff present: Chief Assistant City Attorney Michael Roush; Assistant
City Attorney John Le; and City Clerk Lara Weisiger]
ORAL COMMUNICATIONS, NON-AGENDA
None.
AGENDAITEMS
3-A. Minutes of the July 23, 2019 Meeting
Commissioner Shabazz moved approval of the minutes.
Commissioner Little seconded the motion.
Under discussion, Commissioner Shabazz stated that he submitted correspondence with
corrections to the minutes; inquired the practice regarding including information on
presentations in the minutes and requested changes be made.
The City Clerk stated the changes can be done to expand the minutes.
Commissioner Shabazz stated the changes include a summary; noted the minutes
included a comment about speaking to other Commissioners; requested clarification of
the Brown Act.
The City Clerk stated the comment was about contacting one other Commissioner; stated
a quorum, or three Commissioners, cannot have a discussion about an agenda item.
Acting Chair Schwartz inquired the practice of summarizing comments.
The City Clerk responded if someone gives a presentations on something that is in writing,
the minutes typically state a presentation was given; adding more detail is acceptable.
On the call for the question, the motion carried by unanimous voice votes - 4.
Meeting of the
Open Government Commission
1
December 18, 2019",OpenGovernmentCommission/2019-12-18.pdf
OpenGovernmentCommission,2019-12-18,2,"3-B. Action on Open Government Commission's Written Decision Following a Hearing on
a Sunshine Ordinance Complaint Concerning a Failure to Respond Timely to a Public
Records Act Request
Acting Chair Schwartz inquired whether Commissioner Shabazz is recusing himself.
Commissioner Shabazz responded in the affirmative; inquired at what time is he required
to recuse himself, during voting or discussion.
The Chief Assistant City Attorney responded as the Complaintant, Commissioner
Shabazz would be required to recuse himself from the vote and discussion, but could
present to the Commission as the Complainant.
In response to Acting Chair Schwartz's inquiry regarding public comment, the Chief
Assistant City Attorney stated the Complaintant is given an opportunity to verbalize their
position; the Commission can ask questions; the City would make its presentation and
have an opportunity to respond; the Commission could then have discussion and reach
a decision regarding the issue.
Mr. Shabazz stated he would like to clarify that he filed his complaint as a member of the
public and not as a Commissioner; he would like to address two specific issues: 1) the
efforts to resolve the issue informally and any additional facts that existed, and 2) the
statement that there is no evidence of subsequent violations, which is inaccurate; cited
examples of potential violations included in the staff report; expressed concern about
resolving violations informally discouraging folks from bringing issues before the
Commission; stated that he chose to move it forward just to set a precedence; inquired
how the City Attorney's office could improve its internal process for an increased sense
of transparency.
Acting Chair Schwartz requested more details about Mr. Shabazz's requests from
February 22 and 27, 2018.
Mr. Shabazz responded on February 27, 2018 he made a request for bodycam footage
of an incident that occurred on August 21, 2017 regarding a robbery and Alameda Police
drawing firearms; stated the response he was given from the Police Department was that
he would not be able to access the bodycam footage.
Acting Chair Schwartz inquired whether Mr. Shabazz had issues with the response failing
to address his request timely or at all and whether he had to be persistent and follow up.
Mr. Shabazz responded he cannot answer at the moment because he submitted several
public records requests on separate issues, but can get the information from his computer
and provide it later.
Commissioner Little stated that she recalls asking the same questions at the last meeting.
Meeting of the
Open Government Commission
December 18, 2019
2",OpenGovernmentCommission/2019-12-18.pdf
OpenGovernmentCommission,2019-12-18,3,"Mr. Shabazz agreed the issues discussed at the last meeting are separate.
The Chief Assistant City Attorney stated the draft decision was revised per the
Commission's direction, which included removing objectionable language, adding a
reminder that the City needs to do a better job with timely responses, and requiring an
annual report on records requests; the changes were added to the findings sustaining the
complaint; hopefully, the revised decision meets the Commissions requirements and the
Commission will sign it.
Commissioner Little stated this is the first time a staff report has been provided regarding
records requests; the report revealed an additional item; she is satisfied that the City
Attorney's office did a nice job of capturing and cataloguing the requests; she would like
to move forward by acknowledging that there are appropriate checks and balances in
place; if the pattern continues, the Commission can revisit the issue.
Commissioner Tilos stated data should be provided by department to determine if there
is a pattern and to allow tracking and addressing of timely responses; expressed support
for the provisions added to the decision.
Acting Chair Schwartz stated it takes courage, persistence, and incredible amount of civic
engagement to raise the issue to the Commission; expressed appreciation to Mr. Shabazz
and the City Attorney's office for taking the matter seriously; proposed some amendments
to the decision language: removing the phrase ""in light of the facts changing the
phrase to ""no evidence in the record of a subsequent similar violation to ""though limited
evidence suggests similar violations, the Commission does not assess a fine "" and
adding a sentence ""However, the Commission will not hesitate to assess a fine in the
future if similar violations are reported"" to make it clear how seriously the Commission
takes the matter; after the sentence, ""we sustain the complaint,"" he would like to remove
the phrase, ""no other remedy is necessary.""
Commissioner Little stated at the time the decision was written, the Commission did not
have a staff report or evidence in hand; the staff report on record requests shows one
additional violation; she appreciates the spirit of what Acting Chair Schwartz would like to
do, but does not want to introduce something that was not in hand at the first hearing.
Acting Chair Schwartz stated the Commission is issuing the order tonight and should be
giving a decision based on what is known today.
Commissioner Little stated she is not comfortable making an amendment or motion to the
decision when the agenda item has not yet been addressed.
Commissioner Tilos stated a decision should have been approved back in October; it is
a muddy water and technically the Commission should not even be discussing the item
tonight; he understands both Commissioner's points, but is leaning toward the frame of
mind as of October.
Meeting of the
Open Government Commission
3
December 18, 2019",OpenGovernmentCommission/2019-12-18.pdf
OpenGovernmentCommission,2019-12-18,4,"Mr. Shabazz stated the issues and information, including the spreadsheet, being
discussed tonight were included in the October meeting; regardless of whether the
Commission has reached the item on the agenda, the information was sent out to the
public and the information is readily available.
Commissioner Tilos concurred with Mr. Shabazz; stated his point was the Commission
was ready to make the decision coming into the meeting in October, after having the
information and data from the July meeting.
Acting Chair Schwartz reiterated the amendments.
Commissioners Little and Tilos suggested amending the language to ""no evidence in the
record of a subsequent similar violation. "" to add ""since that time.""
Commissioner Little moved approval of the decision with the amendments noted.
Commissioner Tilos seconded the motion, which carried by unanimous voice vote - 3.
[Absent: Commissioner Shabazz - 1.]
3-C. Report Concerning Responses to Public Records Act (PRA) Requests Referred to
the City Attorney's Office
Commissioner Shabazz moved approval of accepting the report.
Commissioner Little seconded the motion.
Under discussion, Commissioner Little stated it is important to make sure the public
understands there is an Open Government Commission, a Sunshine Ordinance and the
City has a responsibility to address public records requests; inquired whether the
Commission has an obligation to follow up on public records request to prevent another
instance of requests falling through the cracks.
The Chief Assistant City Attorney responded the Sunshine Ordinance is prominent on the
City's website and is included on every Board, Commission, and Council agenda; the
record shows that public records requests are responded to timely; the City Attorney's
office can work with the City Clerk to explore other avenues to make the information more
available to the public.
Commissioner Little stated that she concurs with Mr. Shabazz regarding having an
educational component about the Public Records Act; she appreciates the time and
responsiveness that went into the decision; every data system can be flawed, humans
are inherently flawed; she appreciates the strong response to the Commission's request.
Commissioner Shabazz stated that he us grateful to the City Attorneys and staff for their
efforts regarding the matter; concurred with Commissioner Little regarding the importance
of access to information; discussed some discrepancies he found in the spreadsheet
Meeting of the
Open Government Commission
December 18, 2019
4",OpenGovernmentCommission/2019-12-18.pdf
OpenGovernmentCommission,2019-12-18,5,"regarding timing and responses related to his own requests; offered beneficial
suggestions, including requesting the City Attorney's office assign a number to each
public records request, using the year and number of the request; stated that would like
to incorporate the data in an annual report; recommended a method for other departments
to have consolidated and central tracking of requests.
The City Clerk stated See Click Fix has not been a great tool for records requests; the
Clerk's office is working with the Public Information Officer on alternative, more efficient
online way to submit public records requests.
Commissioner Little stated that she would like a column added to the spreadsheet which
indicates the number of days between when the request was received and when
responsive information or documents were produced.
On the call for the question, the motion carried by unanimous voice vote - 4.
3-D. Accept the Annual Report
The Chief Assistant City Attorney gave a brief presentation.
Commissioner Shabazz stated that he was not a member of the Commission at the time
previous complaints were filed and wanted to confirm with the other Commissioners that
the information in the report is accurate.
Acting Chair Schwartz inquired what happened with the ""null and void"" decision on the
ordinances, to which the City Clerk responded in January 2019, the Council decided to
rescind the ordinances, which were re-introduced and finally passed.
Acting Chair Schwartz requested adding a few sentences after the statement to indicate
there was effective Commission action regarding the ordinances.
Acting Chair Schwartz moved approval of accepting the annual report.
Commissioner Tilos seconded the motion, which carried by unanimous voice vote - 4.
Acting Chair Schwartz proposed hearing item 3-F. before 3-E.
Commissioner Shabazz inquired whether the Commission has a set meeting cut-off time,
to which the City Clerk responded in the negative.
Commissioner Shabazz inquired whether a formal motion is required to change the order
of the agenda, to which the Chief Assistant City Attorney responded the Chair has the
discretion to move ahead with minor agenda order changes such as the one Acting Chair
Schwartz proposed.
3-F. Select Chair and Vice Chair
Meeting of the
Open Government Commission
5
December 18, 2019",OpenGovernmentCommission/2019-12-18.pdf
OpenGovernmentCommission,2019-12-18,6,"Acting Chair Schwartz stated the selection of Chair and Vice Chair is based on seniority;
since Chair Henneberry stepped down, he is next in line for Chair; inquired whether
Commissioner Tilos would then be next for Vice Chair.
Commissioner Tilos stated he was not aware of the selection precedence and suggested
opening the discussion; requested staff remind the Commission of meeting logistics;
expressed concerns about not having a quorum the last meeting, which wasted time and
resources.
The City Clerk stated the Commission's two regular meetings are the first Monday in
February and October at 7:00 p.m.; meetings are also scheduled within 30 days if a
complaint is filed and as needed.
Commissioner Shabazz inquired which Commissioner would be interested in the Chair or
Vice Chair roles and why.
Acting Chair Schwartz responded that he is interested in taking on the Chair role; stated
he regrets not being able to attend the October meeting due to an emergency
appendectomy and the last-minute July meeting was called while he was away on
international travel; with those two exceptions, he has attended all the meetings and plans
to going forward; he is proud of the work the Commission does; giving access to the public
as well as helping the City Council function more effectively is why he would like to
continue to serve on the Commission; the Commission has achieved many meaningful
things; having proper disclosure is important; he would like to continue being proactive
going forward.
Commissioner Tilos moved approval of appointing Commissioner Schwartz as the Chair.
Commissioner Little seconded the motion, which carried by unanimous voice vote - 4.
Acing Chair Schwartz moved approval of nominating Commissioner Tilos as the Vice
Chair.
Commissioner Little stated the selection is a rotating process; she has already been Chair
and Vice Chair; she feels it is a good way for appointed members to gain experience; she
supports Commissioner Tilos as Vice Chair.
Commissioner Tilos stated he is humbled by the nomination and would like to fill the role
as Vice Chair; he would like to continue the rotational process so that Commissioner
Shabazz could also have a turn at the Vice Chair/Chair roles.
Commissioner Little seconded the motion, which carried by the following voice vote: Ayes:
Commissioners Little, Tilos and Acting Chair Schwartz - 3. Abstention: Commissioner
Shabazz - 1.
Meeting of the
Open Government Commission
December 18, 2019
6",OpenGovernmentCommission/2019-12-18.pdf
OpenGovernmentCommission,2019-12-18,7,"Commissioner Shabazz inquired whether the rotational selection process is a formal
process that has been codified, to which the Chief Assistant City Attorney responded in
the negative; stated the selection process is informal; selecting the Chair and Vice Chair
is at the Commission's discretion.
Commissioner Little stated participation in previous meetings would be a factor for her in
the nomination process; she would bypass a Commissioner who was absent for a majority
of the meetings.
Commissioner Shabazz stated that he is fine with the informal process but would like to
consider making it more formal in the future; discussed the example of the School Board
changing its process.
Commissioner Tilos concurred with Commissioner Shabazz; stated the School Board
situation had the necessary votes to change the process.
3-E. Consider Further Revisions to the Sunshine Ordinance by Amending Various
Provisions of Article VIII (Sunshine Ordinance) of Chapter II (Administration), Including
Provisions Related to Public Access to Public Meetings and Public Records, and
Sunshine Ordinance Enforcement.
Commissioner Shabazz stated he is interested in how revising the ordinance is coming
forward now.
Acting Chair Schwartz stated the City Attorney's office claims the ordinance has been
around for a decade and is being cleaned up; it felt like revising the ordinance was in
response to the Commission nullifying two City Council actions and the fact that the City
Attorney's office seemed to dispute whether the Commission has the authority to do so;
it seems that the City Attorney's office wants change to the ordinance to take the authority
away from the Commission; all of the other modifications to the ordinance seemed like
gravy poured over the real issue.
Section 2-93.8
The Assistant City Attorney stated the use of the Null and Void remedy was historic in a
sense that it had not been used prior; when it was used, Councilmembers wanted the City
Attorney's office to look into revising the Sunshine Ordinance; from said direction, the City
Attorney's office drafted the ordinance amendments which are before the Commission
tonight.
Acting Chair Schwartz inquired whether the Council requested the revisions because they
were upset that the Commission nullified their actions.
The Assistant City Attorney responded in the negative, stated that he would not
characterize it that way; it is typical for ordinances to adopt provisions that are not
triggered, but it cannot be ignored that the remedy was used; his understanding is that
the Council wanted a review of the entire Sunshine Ordinance.
Meeting of the
Open Government Commission
7
December 18, 2019",OpenGovernmentCommission/2019-12-18.pdf
OpenGovernmentCommission,2019-12-18,8,"ensure proper procedure is taken away, there is no point in having an Open Government
Commission or a Sunshine Ordinance.
Commissioner Tilos concurred with Commissioner Little, stated the Commission needs
the authority in order to be an effective body.
Chair Schwartz moved approval of rejecting the changes to Section 2-93.8.
Meeting of the
Open Government Commission
December 18, 2019
8",OpenGovernmentCommission/2019-12-18.pdf
OpenGovernmentCommission,2019-12-18,9,"Commissioner Tilos seconded the motion.
Under discussion, the Chief Assistant City Attorney clarified that the Commission would
like Section 2-93.8 to remain unchanged.
The Assistant City Attorney inquired whether the Commission's recommendation is that
not only are the changes rejected, there are no alternative proposed changes to Section
2-93.8, to which Acting Chair Schwartz responded in the affirmative.
On the call for the question, the motion carried by unanimous voice vote - 4.
Commissioner Shabazz stated he would like the Commission to use how making changes
to the Sunshine Ordinance makes government more accessible as a framework to
evaluate the changes.
Section 2-91.1
Commissioner Shabazz inquired whether an ad hoc Charter Review Committee
appointed by the Mayor would be considered a passive meeting body as defined in the
Sunshine Ordinance.
The Assistant City Attorney responded in the negative; stated it is a typical ad hoc meeting
body and not a passive meeting body; an example of a traditional ad hoc committee is
similar to a ballot argument ad hoc committee where two members of the Council convene
to come up with a revised ballot argument.
The Chief Assistant City Attorney stated it is defined in the ordinance that a passive
meeting body shall not include an ad hoc committee appointed for a single purpose;
concurred with the Assistant City Attorney that the Charter Review Committee would not
be considered a passive meeting body.
In response to Commissioner Shabazz inquiry, the Assistant City Attorney stated a
meeting body that includes City employees and outside agency staff would not be
considered a passive meeting body and would be an exception.
There was no Commission discussion of Section 2-91.5
Section 2-91.12
Commissioner Shabazz inquired what is the impetus for the section [regarding Closed
Sessions] being amended, to which the Assistant City Attorney responded a
Councilmember requested the change.
Commissioner Shabazz stated it would be helpful for elected officials to clarify Closed
Session votes on matters, whether it is for their own political purposes, but also for people
to understand their intention; it would make sense in making government further
accessible.
Meeting of the
Open Government Commission
9
December 18, 2019",OpenGovernmentCommission/2019-12-18.pdf
OpenGovernmentCommission,2019-12-18,10,"Section 2-91.15
In response to Commissioner Shabazz's inquiry, the City Clerk stated the Council adopted
new Rules of Order eliminating the ceding of time, which was also approved by the Open
Government Commission and a Council subcommittee.
Commissioner Little stated the change in policy was a result of trying to streamline the
Council meetings; there were complaints that the same members of the public and
Council were talking about the same issues repeatedly.
Acting Chair Schwartz stated it does not create greater public access when decisions on
important issues that people come to hear about are not getting heard until late in the
evening or postponed to another meeting because people are talking too long.
Section 2-92.2
Commissioner Shabazz inquired who are the designated custodian of records.
The City Clerk responded any person within the City can accept a public records request
from anybody; stated the custodian of records is the staff person responsible for tracking
requests within the department; each department designates one person so requests can
be filtered directly to the department's custodian of records.
Section 2-92.4
Commissioner Shabazz inquired what are the benefits of posting an Environmental
Impact Report (EIR) and other environmental documents on an external consultant's
website as opposed to just posting it on the City's website.
The Assistant City Attorney responded the practice is not common, but sometimes the
documents are very large, especially when building an administrative record, and hosting
the documents on the City's website can be cumbersome.
Acting Chair Schwartz inquired whether a link is posted on the City's website in the event
the consultant hosts the documents, to which the Assistant City Attorney responded he is
not absolutely certain, but believes posting a link is a standard practice.
Acting Chair Schwartz requested confirmation of the accessibility to the documents be
included in the changes.
There was no Commission discussion of Section 2-92.9
Section 2-93.2
In response to Acting Chair Schwartz's inquiry regarding forfeiture of a hearing date, the
City Clerk stated that she reaches out to all the contact information provided by the
requestor; it becomes a problem when there is a timeline to schedule a hearing and she
is not getting any response from the complaintant.
Meeting of the
Open Government Commission
December 18, 2019
10",OpenGovernmentCommission/2019-12-18.pdf
OpenGovernmentCommission,2019-12-18,11,"Acting Chair Schwartz stated it might be helpful to add a sentence to emphasize the point,
such as: ""every reasonable attempt will be made to reach the individual through all
available contact information and all attempts will be documented.'
In response to Commissioner Shabazz's inquiry about re-submitting a complaint, the City
Clerk responded the timelines in the Sunshine Ordinance would not allow a re-submission.
There was no Commission discussion of Section 2-93.7.
The City Clerk summarized the changes the Commission agreed to; stated there were
slight revisions to 2-92.4 requiring a link be posted and 2-93.2 requiring outreach; the
changes have been noted and staff will work to draft the language.
Chair Schwartz moved approval of adopting the recommendations with the two
amendments.
Commissioner Little seconded the motion.
On the call for the question, the motion carried by unanimous voice vote - 4.
COMMISSION COMMUNICATIONS
Commissioner Shabazz expressed his appreciation for all the work of staff regarding his
complaint as a member of the public; stated he would like to use his role as a
Commissioner to make the Public Records Act more available to Alamedans and
welcomes suggestions from other Commissioners and staff on ways to do that.
The Chief Assistant City Attorney stated staff could agendize the issue at the February
meeting.
ADJOURNMENT
There being no further business, Chair Schwartz adjourned the meeting at 8:34 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
11
December 18, 2019",OpenGovernmentCommission/2019-12-18.pdf
OpenGovernmentCommission,2020-02-03,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY FEBRUARY 3, 2020 7:00 P.M.
Chair Schwartz convened the meeting at 7:04 p.m.
ROLL CALL -
Present:
Commissioners Little, Pauling, Shabazz, Tilos and
Chair Schwartz - 5.
[Note: Commissioner Shabazz arrived at 7:25 p.m.]
Absent:
None.
[Staff present: Chief Assistant City Attorney Michael Roush and City
Clerk Lara Weisiger]
ORAL COMMUNICATIONS NON-AGENDA
Jay Garfinkle, Alameda, stated that he emailed the Commission; discussed the City
Attorney's office rendering opinions and interpreting rent laws.
AGENDA ITEMS
3-A. Minutes of the December 18, 2019 Meeting
Chair Schwartz expressed his appreciation for the comprehensive minutes; outlined
corrections to the minutes; inquired about the statement: the Chief Assistant City Attorney
clarified that the Commission would like Section 2-93.8 to remain as it is written.
The City Clerk responded the minutes could be amended to read: ""as currently written""
to clarify the Commission did not want the section revised.
Chair Schwartz proposed using ""unamended.""
The City Clerk stated she would revise the minutes to clarify.
Jay Garfinkle, Alameda, discussed the format of the minutes; suggested minutes include
the name of staff members and written testimony be attached.
In response to Mr. Garfinkle's inquiry regarding the record request report, Chair Schwartz
clarified the report is part of the next agenda item.
In response to Chair Schwartz's inquiry, the City Clerk stated staff titles have always been
used in the minutes; the meeting videos are posted online; the practice has been not to
include names.
Chair Schwartz inquired whether there is any downside to including a name the first time
Meeting of the
Open Government Commission
1
February 3, 2020",OpenGovernmentCommission/2020-02-03.pdf
OpenGovernmentCommission,2020-02-03,2,"a title is listed, to which the City Clerk responded in the negative.
Commissioner Tilos suggested the staff be listed on the first page under roll call.
Chair Schwartz concurred; inquired whether the change could be made across
commissions, the City Clerk responded that she could pass on the suggestion; stated
each commission adopts bylaws, rules and practices, and would make its own decision.
Chair Schwartz stated when the suggestion is passed on, commissions should be
informed that in response to a public request, the Open Government Commission feels it
would increase transparency to list the staff present at a meeting; inquired whether the
minutes being approved could also be amended.
The City Clerk responded in the affirmative.
Commissioner Tilos moved approval of the minutes.
Commissioner Pauling seconded the motion.
Under discussion, Commissioner Little inquired whether she should second the motion
since Commissioner Pauling was not in attendance.
Chair Schwartz stated Commissioner Pauling can second the motion.
On the call for the question, the motion carried by the following roll call vote: Little: Aye;
Pauling: Aye; Tilos: Aye; and Chair Schwartz: Aye. Ayes: 4. Noes: None. [Absent:
Commissioner Shabazz - 1.]
3-B. Accept the Annual Public Report and Report Concerning Responses to Public
Records Act Requests Referred to the City Attorney's Office in 2019
Chair Schwartz expressed appreciation for the report and table, which is a great addition
to transparency, and for Commissioner Shabazz getting the ball rolling.
Commissioner Little stated that she requested a column showing the number of days be
added, so people do not have to do math and can determine if the response was timely.
The Chief Assistant City Attorney responded that he recalls the request; stated that he
was unclear whether the number should reflect the days between first receiving the
request contrasted with the day the documents were produced.
Commissioner Little stated that she wants an easy way to determine which complaints
were out of compliance without having to read through the entire document; the math
should be done to determine whether or not the response was handled within the City's
timeframe.
Meeting of the
Open Government Commission
February 3, 2020
2",OpenGovernmentCommission/2020-02-03.pdf
OpenGovernmentCommission,2020-02-03,3,"The Chief Assistant City Attorney responded the City Attorney's office can add a line item
in the next report.
Chair Schwartz inquired whether the count starts on the day the request was received or
acknowledged.
The Chief Assistant City Attorney responded the date received; stated the ordinance
requires requests be acknowledged within a certain period of time; the time to provide a
response starts the day the request was received.
Chair Schwartz inquired about the deadline for acknowledgement, to which Chief
Assistant City Attorney responded that he believes a request is supposed to be
acknowledged within three days.
Chair Schwartz stated two counters may be needed; the number of days to acknowledge
the request and number of days to respond.
The Chief Assistant City Attorney stated staff can do that.
Chair Schwartz inquired whether a number of complaints are being acknowledged late,
to which the City Clerk responded acknowledgement might happen outside of the chart if
the request is received in another department; the department might acknowledge the
request and forward it to the City Attorney's office; capturing when another department
acknowledges a request could be difficult.
Commissioner Little stated that she would want to ensure weekends and holidays are
considered.
The City Clerk stated the response is 10 calendar days.
Chair Schwartz noted typically, in rules of civil procedure, weekend and holidays are
excluded from three days.
The Chief Assistant City Attorney stated a date acknowledged column will be added; other
departments often acknowledge the request; typically, the City Attorney's office will also
acknowledge the request, but it may be outside of three days; the Attorney's office will
add the column and remind departments about the short timeframe to acknowledge
receipt of the request.
Commissioner Tilos inquired whether the date acknowledged is the first calculation, to
which the Chief Assistant City Attorney responded in the affirmative.
Commissioner Tilos inquired whether the ordinance requires response within 10 calendar
days.
The Chief Assistant City Attorney responded the ordinance requires response to the
Meeting of the
Open Government Commission
3
February 3, 2020",OpenGovernmentCommission/2020-02-03.pdf
OpenGovernmentCommission,2020-02-03,4,"requestor about what is going to happen within 10 days; stated staff generally tries to
provide the documents, but sometimes there is a delay.
Chair Schwartz inquired whether there is an opportunity to request an extension, like the
State's Public Records Act statute.
The Chief Assistant City Attorney Responded in the Affirmative; stated extensions
happens when documents are voluminous or take significant time to review to determine
whether documents are privileged; the requestor is informed additional time will be
needed; ideally, there is a 14 day window in which to provide the response; at times, the
requestor is informed it will take additional time; staff tries to work within the 24 day
window to provide the documents.
Commissioner Little inquired whether a notes column should be added at the end for
transparency or if there is another mechanism to clarify circumstances and explain why
the records request was not complied with within the timeframe.
The Chief Assistant City Attorney responded that is a very good point; stated the reasons
for response outside of the timeframe can be added to the note column; the request is
good and easy enough to do.
Chair Schwartz stated the table should be sufficiently simple to be digestible, but on the
other hand the notes would help explain issues; the next go round could have a
mechanism that shows when extensions were required.
The Chief Assistant City Attorney stated staff can do that.
Commissioner Shabazz expressed appreciation for the table, which allows people to
understand what documents the City is producing and the amount of requests;
encouraged staff to utilize notes to help with processing and tracking; knowing
SeeClickFix is not the best solution, collaborative software should be used to
communicate between different parties and should having tracking.
Jay Garfinkle, Alameda, stated that he has another non-agenda items to discuss.
Chair Schwartz stated the Commission is currently addressing the agenda item.
Mr. Garfinkle stated that he was surprised about cases with no documents produced;
there should be an explanation when no records are found; if records are exempt, the
letter from the City should explain the exemption; suggested ways to use the data and
complaints to improve quality; stated that he spoke to the Attorney's office when he made
a request; requestors should be able to communicate with the custodian of records
directly; response to his request was timely, but the custodian of records was out of the
office; expressed concern over voicemails being out of date.
Commissioner Shabazz concurred with Mr. Garfinkle about a notation when there are no
Meeting of the
Open Government Commission
February 3, 2020
4",OpenGovernmentCommission/2020-02-03.pdf
OpenGovernmentCommission,2020-02-03,5,"responsive documents; stated a distinction should be made if something is exempt;
discussed his request; discussed a Police Department tasing incident, Senate Bill 1421
and a request he made; stated after a District Attorney's investigation was closed, he was
told the information was available; initially, he was told nothing fell within the areas which
are supposed to be disclosed, but the material was actually not disclosed because there
was an active investigation; a distinction should be made whether there are no records
that exist or the records are exempt based on whatever law, such as a personnel matter
or active investigation; he is grateful the information is being incorporated in the annual
report, which is not part of the Sunshine Ordinance; inquired whether there is need to
codify that the public records requests information be provided in the future; he
understands the matter is not on the agenda, but wanted to make the point.
Chair Schwartz stated it could be noticed on the next meeting and is a great idea.
Commissioner Shabazz moved approval of accepting the annual report and report
concerning responses to the Public Records Act requests referred to the City Attorney's
office in 2019.
Chair Schwartz seconded the motion, with the caveat that he is hopeful the additional
information discussed by everybody can be included, which the Chief Assistant City
Attorney has graciously agreed to do.
The motion carried unanimously by the following roll call vote: Little: Aye; Pauling: Aye;
Shabazz: Aye; Tilos: Aye; and Chair Schwartz: Aye. Ayes: 5. Noes: None.
COMMISSION COMMUNICATIONS
Sunshine Ordinance Amendment
Commissioner Little inquired whether anyone from the Commission will be in attendance
at the City Council hearing tomorrow night when the proposed revisions to the Sunshine
Ordinance will be discussed.
Chair Schwartz stated that he submit a written communication and hopes to attend.
Commissioner Little stated that she is out of town; she also submitted a letter to the City
Council.
Commissioner Pauling stated that she will be present, but she has come into the process
a
bit late; noted she was at the original Council meeting when the matter that caused the
issue was heard.
Commissioner Tilos stated that he will not attend; he has discussed the matter with the
City Attorney's office to voice his opinion.
Chair Schwartz stated the decision tomorrow night will determine the future abilities of the
Commission; discussed the letter he submitted to Council; stated the City Council could
Meeting of the
Open Government Commission
5
February 3, 2020",OpenGovernmentCommission/2020-02-03.pdf
OpenGovernmentCommission,2020-02-03,6,"make a policy, not legal, decision to eliminate the null and void provision; artful
amendments and looking at other cities could be considered to address concerns in a
transparent, open and honest way; expressed concern over the amendment being
presented as a legal imperative, which is not supported by case law; discussed process
and duties of the Commission.
Commissioner Little stated that she has faith the current City Council would seriously
consider Open Government Commission recommendations and hopefully reach
conclusions the Commission recommends, which might not always be the case;
expressed concern over the provision being removed without having other safeguards.
Public Records Act Forum
Commissioner Shabazz stated that he wanted to follow up on a previous request for an
agenda item at the next Commission meeting about organizing a forum or method of
communicating about the Public Record Act; if the matter needs to be placed on an
agenda to make it happen, he would like it done; if not, he would be interested in working
with staff to host something to inform the community about the Public Records Act.
The Chief Assistant City Attorney stated the City Attorney's office would be happy to work
with Commissioner Shabazz to set it up; the matter can be placed on the agenda or
Commissioner Shabazz could meet with the Attorney's office to figure out something; the
Attorney's office would be happy to do it.
Chair Schwartz stated that he would welcome having an agenda item if there is a proposal
for something the Commission could do; he is open to any kind of proposal; it is a great
idea.
The Chief Assistant City Attorney stated both can be done; Commissioner Shabazz can
meet with the Attorney's office and the matter can be placed on an agenda to do
something more formal.
Commissioner Shabazz stated that he shared the suggestion at the last meeting and did
not follow up to make sure it was on the agenda tonight; he does not know the level of
detail needed for an agenda item.
Commissioner Tilos stated something might need to be done outside of the agenda since
the next meeting is not until October.
The Chief Assistant City Attorney stated the Attorney's office is happy to meet with any
Commissioners about the type of forum.
Chair Schwartz stated both can be done.
Commissioner Pauling suggested a subcommittee work on the forum; inquired whether
the forum should be held by summer before getting too far into the election cycle; inquired
whether the forum would be done by June.
Meeting of the
Open Government Commission
February 3, 2020
6",OpenGovernmentCommission/2020-02-03.pdf
OpenGovernmentCommission,2020-02-03,7,"Commissioner Shabazz responded in the affirmative.
Commissioner Pauling inquired whether a subcommittee can be formed.
The Chief Assistant City Attorney stated that he is a little reluctant to have the Commission
create a subcommittee because the matter is not on the agenda; he suggests meeting
with Commissioner Shabazz to set something up that could involve the Commission; the
forum could be noticed as a Commission meeting; the forum could be done in June if
desired.
Chair Schwartz stated having a subcommittee could be included as part of a proposal at
the next meeting.
Commissioner Little inquired whether Commissioner Shabazz is interested in educating
people; stated that she would not want to stand in the way of Commissioner Shabazz
doing outreach; questioned the need for a formal process.
Chair Schwartz stated a formal process is not needed, but the next agenda could include
a formal Public Records Act communications project or subcommittee if desired by
Commissioner Shabazz.
Commissioner Shabazz stated the distinction is wanting to utilize the platform of the Open
Government Commission to educate people about the Public Records Act; stated that he
will follow up with the City Attorney's office; hopefully the entire Commission can be invited.
Public Comment
Commissioner Shabazz inquired whether Oral Communications needs to be opened in
response to a request to speak.
Chair Schwartz stated the member of the public already spoke under Oral
Communications.
ADJOURNMENT
Commissioner Shabazz moved approval of adjourning the meeting.
Commissioner Little seconded the motion.
Under discussion, Mr. Garfinkle asked to raise a point of order; stated he brought up some
points which were not discussed; questioned what is accomplished by mentioning things.
Chair Schwartz stated full Commission comment is not typical for items not on the agenda;
the Commission would not have been prepared to address the issue; Mr. Garfinkle's
specific minutes request was addressed.
Meeting of the
Open Government Commission
7
February 3, 2020",OpenGovernmentCommission/2020-02-03.pdf
OpenGovernmentCommission,2020-02-03,8,"Mr. Garfinkle stated that he suggested quality assurance analysis of record logs; inquired
whether it goes any place or accomplishes anything.
Commissioner Tilos stated it accomplished something; the Commission heard the
suggestion and can consider it when making decisions; stated the spreadsheet is evolving;
Mr. Garfinkle's comments have been listened to and can be considered.
Commissioner Pauling stated that she understood Mr. Garfinkle's comments; the
Commission is addressing quality when talking about timeliness of response; the initially,
timeframe is going to be used as a red flag; she heard Mr. Garfinkle.
Mr. Garfinkle discussed conversations with the Police Department; stated that he is trying
to learn the process on interacting with the Commission.
Chair Schwartz stated Commissioners were interested in the remarks, but are not
prepared to take further actions on the particular remarks right now; he would welcome a
more detailed proposal.
Mr. Garfinkle stated that he has a suggestion about exhibits; he does not know whether
the matter should go through the Commission; discussed policies.
Chair Schwartz stated there has been a motion and second to adjourn.
Commissioner Shabazz called the question, which carried by unanimous voice vote - 5.
There being no further business, Chair Schwartz adjourned the meeting at 8:05 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
February 3, 2020
8",OpenGovernmentCommission/2020-02-03.pdf
OpenGovernmentCommission,2020-06-01,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY JUNE 1, 2020 - 7:00 P.M.
The meeting was continued to June 24, 2020.
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
1
June 1, 2019",OpenGovernmentCommission/2020-06-01.pdf
OpenGovernmentCommission,2020-06-24,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY JUNE 24, 2020 -
7:00 P.M.
Chair Schwartz convened the meeting at 7:01 p.m.
ROLL CALL -
Present:
Commissioners Little, Pauling, Shabazz, Tilos and
Chair Schwartz - 5. [Note: The meeting was
conducted via Zoom.]
Absent:
None.
[Staff present: Chief Assistant City Attorney Michael Roush, Assistant
City Attorney John Le, and City Clerk Lara Weisiger]
Oral Communications
None.
Regular Agenda Items
3-A. Minutes of the Meeting Held on February 3, 2020
Stated that he is unsure how Board or Commission members make recommendations to
specific parties, other than relying on the minutes; he would like the names of staff
included in the minutes as discussed at the February 3rd meeting; also suggested a
mechanism for statistical analysis of the data collected by the Police Department: Jay
Garfinkle, Alameda.
Chair Schwartz stated the recommendation was to include the names of officials and staff
at the beginning of the meeting minutes; he thanked the Clerk for doing so and hopes
other Commissions would do the same.
The City Clerk stated she passed the recommendation on to the other Boards and
Commissions on behalf of the Open Government Commission (OGC).
Commissioner Shabazz moved approval of the minutes, with the addition of identifying
staff with their names rather than titles.
The City Clerk clarified the recommendation was to identify staff by name at the top of the
minutes and use titles throughout the rest of the minutes.
Vice Chair Tilos seconded the motion which carried by the following roll call vote:
Commissioners Little: Aye; Pauling: Aye; Shabazz: Aye; Tilos: Aye; Chair Schwartz: Aye.
Ayes: 5.
Meeting of the
Open Government Commission
June 24, 2020
1",OpenGovernmentCommission/2020-06-24.pdf
OpenGovernmentCommission,2020-06-24,2,"3-B. Discuss and Provide Recommendations Concerning Potential Amendments to
Article VIII (Sunshine Ordinance) of Chapter Il (Administration) of the Alameda Municipal
Code, as Amended, Concerning the Replacement of the ""Null and Void"" Remedy.
The City Clerk gave a brief presentation.
Stated that he is concerned that the matter of the OGC authority has been an issue for
almost two years; he is upset that the extent of the collaboration was to scrutinize his
submission: Paul Foreman, Alameda.
Stated he would like to speak on the noticing requirements for special meetings: Jay
Garfinkle, Alameda.
Chair Schwartz stated there are many issues regarding the Sunshine Ordinance that will
be addressed; the first issue is the Commission's authority over violations; the second is
noticing requirements for special meetings, which is later on in the agenda.
Commissioner Shabazz requested that Chair Schwartz or staff briefly summarize each
agenda item while progressing through the agenda.
Chair Schwartz concurred with Commissioner Shabazz's request and briefly summarized
the first item regarding the Commission's authority.
Commissioner Tilos stated he was leaning toward Vice Mayor Knox White's suggestion
about having the issue re-agendized on the next reasonable agenda; the issue would
allow another opportunity for public comment.
Commissioner Little concurred with Commissioner Tilos's comments; stated that she
appreciates the efforts of Councilmember Vella and Paul Foreman; the one aspect she
feels is missing is how the Commission could pause the situation to avoid being in the
same spot as two years ago; she would also appreciate including the language provided
by Vice Mayor Knox White.
Chair Schwartz stated that he was under the impression, as suggested by the City
Attorney, that Vice Mayor Knox White's language is the sole amendment to be re-
agendized and that Mr. Foreman's proposals be rejected.
Commissioner Little stated she would like to see some sort of combination between the
two; there is a lot of good language in Councilmember Vella and Paul Foreman's
submission; she does not feel it should be just one or the other; she would appreciate
having the language that was submitted, then, add a clause which addresses the issue
Vice Mayor Knox White brought up.
In response to Chair Schwartz inquiry, Commissioner Tilos stated that he would be in
support of Vice Mayor Knox White's language as the simplest proposal, but is not
Meeting of the
Open Government Commission
June 24, 2020
2",OpenGovernmentCommission/2020-06-24.pdf
OpenGovernmentCommission,2020-06-24,3,"opposed to Councilmember Vella's and Mr. Foreman's submission or a combination of
both.
Commissioner Shabazz stated the Commission needs to think about the objective, find
the solution between the various proposals and ideas which can still enable the ability for
the public to participate in meetings, and some remedy to ensure that people have that
opportunity.
Commissioner Pauling stated the Commission has to be able to move quickly to resolve
issues, especially time sensitive ones; public comment does not get responded to by the
Council and does not change a vote that has already been recorded and moved forward.
Chair Schwartz stated he echoes Mr. Foreman's comments that the City Attorney's
comments are not sufficient to confer with the Commission on viable ways to provide
teeth to the statute; the comments were more focused on that the Commission does not
have the right to do so; he continues to disagree with the advice provided by Counsel;
the ship has sailed, but he does not think Commissioners are limited in what they are
allowed to do; simply asking Council to re-agendize something at their convenience is
insufficient to address the seriousness of a failure in the City's legislative process based
on the Sunshine Ordinance; now is not the time to be squashing transparency; it is time
to increase transparency; the best way to do that is to provide some consequence to a
failure to have a public process as required by the Sunshine Ordinance that makes it
difficult for the City to have such a failure; Mr. Foreman's suggestion has two parts that
the Commission should pay close attention to: 1) delay action that does not usurp the
Council's legislative authority; if the Council is interested in empowering the OGC, they
need to consider that; it does not make the OGC the legislative body, the Commission is
not writing new legislation or weighing in on the merits of any legislation, the Commission
is making sure the process is as transparent as it needs to be; 2) in Section 2-93.8
regarding penalties, Council accepts the recommendation from the Commission unless
the supermajority rejects it, which gives some teeth to what the Commission does in the
absence of ""null and void;"" the paragraph included in the supplemental memo from the
City Attorney's office is adequate.
Commissioner Little stated there is a lot of language in the Vella-Foreman submission
that lends a lot of clarity with respect to timelines that were missing from the current
ordinance; being able to provide the public and the Council with some guidance around
boundaries for complaints to be brought forward is important; inquired what the rationale
is behind removing the OGC's ability to fine a violation and impose a penalty.
Chair Schwartz responded that he could not speak for Mr. Foreman, but to the extent that
Mr. Foreman suggests that the $250 penalty is like a parking ticket, he tends to agree;
the penalty does not address the seriousness of having City legislation pass that has not
taken into account the required public process.
Commissioner Little stated that she is not arguing one way or the other; she is just curious
why it was removed.
Meeting of the
Open Government Commission
June 24, 2020
3",OpenGovernmentCommission/2020-06-24.pdf
OpenGovernmentCommission,2020-06-24,4,"In response to Commissioner Little's inquiry, the Assistant City Attorney stated Chair
Schwartz's summary of Mr. Foreman's explanation is correct; quoted Mr. Foreman's
comments rationale for striking it: ""I struck the penalties because they are ridiculous, it is
the tax payers who would be paying them.""
Commissioner Shabazz inquired whether Mr. Foreman's comment regarding the tax
payers paying the penalty is accurate.
Chair Schwartz responded in the affirmative; stated the penalty would be against the City,
which is funded by tax payer's dollars.
The Chief Assistant City Attorney concurred with Chair Schwartz; stated the penalty is
included as a deterrent, but whether it has any real practical effect is for the Commission
to decide, as well as whether or not to leave in the provision.
Commissioner Tilos stated that he supports removing the provision, it is just a slap on the
wrist and immaterial.
Chair Schwartz stated it bothered him that the proposal endorsed by the City Attorney's
office wanted to keep the $250 fine, but removed the more significant deterrent like
delaying, or not allowing, legislation that was passed without the proper proceedings to
go into effect.
Commissioner Tilos stated the power was taken away from the Commission; the
Commission was clear and Council was clear on taking the power away; he shares the
frustration with Mr. Foreman that this topic has been unresolved for two years now.
Chair Schwartz clarified that the rationale articulated by the City Attorney which the City
Council needed to obey was that nullifying a Council action improperly usurped the
authority of an elected body to legislate to an appointed body, which is not the same as
delaying it and asking for another vote; for the Commission to cancel an ordinance passed
by the Council is stronger; he agrees that the Council rejected that proposal; he does not
think the Council rejected the idea of delaying implementation of an ordinance and asking
for a supermajority.
Commissioner Shabazz stated referring to the teeth metaphor that has been used
throughout the discussion, he feels as though the Commission's teeth have been kicked
out; in absence of the power taken away, there are other things the Commission can do
to encourage transparency; it seems the only options are to delay action for another vote
or impose a penalty; reiterated some of the concerns he had regarding the perception of
a ""conflict of interest"" with the City Attorney's office and the OGC, as well as with the
Public Records Request Act; he does not have any specific solutions, but is frustrated
that the Commission has no power to hold any bodies accountable for making sure
meetings are accessible.
Chair Schwartz stated Mr. Foreman's proposal suggests that the Commission Chair be
able to request that the City retain independent legal counsel as opposed to dealing with
Meeting of the
Open Government Commission
June 24, 2020
4",OpenGovernmentCommission/2020-06-24.pdf
OpenGovernmentCommission,2020-06-24,5,"the perceived conflict of interest; the City Attorney's office responded that they were not
asked to do so; he agrees with the City Attorney's office that it is not within the charge of
the OGC to tell the City Council to retain independent legal counsel.
The Assistant City Attorney stated the comments provided by the City Attorney's office to
Mr. Foreman's proposal is just preliminary thinking; the Office plans to do a more thorough
analysis once concrete direction is received from the Commission; the supplemental
memo from the City Attorney's office should be considered as a starting point for the
Commission to work with the City Attorney's office in developing a satisfactory proposal
that can be repackaged for the Council; it would be helpful to staff for the Commission to
weigh in on each item, so the City Attorney's office is clear on how to draft the proposal.
Chair Schwartz concurred with the Assistant City Attorney; stated that he would like to
address each item; suggested breaking down into a few parts: 1) Section 2-92.2 of Mr.
Foreman's proposal that further action on an agenda item shall be delayed until the
complaint is resolved; 2) Section 2-93.8, Council shall accept the recommendation unless
4 Councilmembers reject it; 3) keep or eliminate the monetary penalty.
In response to Commissioner Little's inquiry, Chair Schwartz stated the discussions can
include the Vella/Foreman proposal; added a fourth category regarding timing issues in
general, which would encompass the rest of the changes; a fifth category could be
discussed regarding independent legal counsel; regarding the timing issue, a member of
the public commented that there will not be time for the public to weigh in if things are
rushed.
Commissioner Pauling stated that she agrees with Commissioner Little and would like to
work through the list item by item rather than bouncing around.
In response to Chair Schwartz's inquiry regarding timing, Commissioner Pauling stated
that she concurs with the proposal to delay action on the second reading to address any
outstanding issues and to do it within the regular meeting agenda framework so that
Council can be notified quickly.
Chair Schwartz inquired whether the method would cut people short in their ability to
participate if complaints must be filed and responded to so quickly.
Commissioner Pauling responded that she is ok if the second vote is delayed by two
meetings to allow proper reparations.
Commissioner Little stated it is important to have transparency in the process and provide
the boundaries of what can and cannot be brought forward; the situation could end up
where something has gone through and an issue arises 30 or 40 days out; it should still
be brought forward to the OGC; by setting the boundaries, the Commission knows what
can happen; otherwise, there will be a pause in the entire process and it will be extremely
muddled; as long as it is clear that the timing keeps business moving forward and
hopefully allows enough time for the public to respond; this type of framework provides
Meeting of the
Open Government Commission
June 24, 2020
5",OpenGovernmentCommission/2020-06-24.pdf
OpenGovernmentCommission,2020-06-24,6,"the public and the leadership with guidance on what the Commission can still do about
said items.
The Chief Assistant City Attorney stated the concern in the City Attorney's office is the
longer period of time someone has to file a complaint, things might move forward; to be
able to undo it becomes problematic; the Commission can decide to extend or shorten
the timeframe, but there have been no problems with the current 15-day window and
keeping items within the Commission's jurisdiction.
Commissioner Little inquired what the difference is between the 10 and 15-day timeframe,
to which the City Attorney responded according to Mr. Foreman's proposal, the section
dealing with public meetings and problems with public participation, as those tend to move
forward more quickly, the 10-day rule would apply in that situation; the 15-day rule would
apply to other violations because there would likely be no timing issues with an additional
five days.
Commissioner Pauling inquired if the Commission votes on this, would it give power to
recommend the Council delay the second vote for final passage.
Chair Schwartz responded Mr. Foreman's proposal would delay action until the complaint
is resolved or rejected by a supermajority of the Council; Vice Mayor Knox White's
proposal would ask the Council to review the Commission's recommendation and render
a final decision.
In response to Commissioner Pauling's inquiry, Chair Schwartz stated the timing issue
has to do with the timing of complaints and timing for the hearing.
Commissioner Little suggested combining Items A through F as one, rather than going
through line by line.
Chair Schwartz concurred; inquired whether there is support for amending the timing
requirements with respect to complaints and hearings as proposed by Mr. Foreman.
Commissioner Little moved approval of adding Items A through F of the Vella/Foreman
proposal to the Sunshine Ordinance.
The Assistant City Attorney clarified that the days for filing the complaint are calendar
days, and the days for the hearing are business days.
Commissioner Little stated the clarification is very important, suggested adding the
information to the proposed language; amended her motion to include the language
regarding calendar days.
Commissioner Shabazz suggested an amendment of business days rather than calendar
days.
Meeting of the
Open Government Commission
June 24, 2020
6",OpenGovernmentCommission/2020-06-24.pdf
OpenGovernmentCommission,2020-06-24,7,"Commissioner Little accepted the amendment.
The City Clerk stated that changing 10 calendar days to 10 business days would put the
hearing past the next Council meeting, so a complaint could come in after final passage
of an ordinance; she believes the 10 calendar days was intended to ensure there
is
opportunity between introduction and final passage.
Commissioner Little withdrew her last motion and moved approval of her original motion
to add Items A through F to the Sunshine Ordinance, and clarify in Items A and B that it
is calendar days.
Commissioner Shabazz seconded the motion which carried by the following roll call vote:
Commissioners Little: Aye; Pauling: Aye; Shabazz: Aye; Tilos: Aye; Chair Schwartz:
Abstain. Ayes: 4; Abstentions: 1.
Commissioner Shabazz moved approval of substituting the word ""chance"" in Item C to
the word ""opportunity.'
Chair Schwartz seconded the motion, which carried by the following roll call vote:
Commissioners Little: Aye; Pauling: Aye; Shabazz: Aye; Tilos: Aye; Chair Schwartz: Aye.
Ayes: 5
Chair Schwartz moved approval of adopting the recommendation on Item G.
Commissioner Little seconded the motion.
Under discussion, Commissioner Shabazz inquired what significant prejudice means, to
which Chair Schwartz responded it is open to interpretation; stated there is a concept of
prejudice that the City Attorney included in the supplemental memo regarding the statute
of limitations; typically prejudice can be thought of as some right being sacrificed.
The Assistant City Attorney stated he does not want to speak for the drafter, but his
thought is that the prejudice is an impact of 'harm' to the City.
Chair Schwartz concurred with the Assistant City Attorney, stated that is how he reads
""significant prejudice"" as well.
In response to Chair Schwartz' inquiry, Commissioner Shabazz stated that he
understands the clarification, but was also wondering how the phrase will be interpreted
a year from now.
On the call for the question, the motion carried by the following roll call vote:
Commissioners Little: Aye; Pauling: Aye; Shabazz: Aye; Tilos: Aye; Chair Schwartz: Aye.
Ayes: 5.
Meeting of the
Open Government Commission
June 24, 2020
7",OpenGovernmentCommission/2020-06-24.pdf
OpenGovernmentCommission,2020-06-24,8,"Chair Schwartz moved approval of not recommending the Chair request the Council to
retain independent legal counsel as it over-reaches the Commission's authority.
The Chief Assistant City Attorney stated staff understood that the process tonight would
be collaboration with the Commission and draft a proper analysis to be brought back to
the Commission which reflects the direction given.
Commissioner Little seconded the motion which carried by the following roll call vote:
Commissioners Little: Aye; Pauling: Aye; Shabazz: Aye; Tilos: Aye; Chair Schwartz: Aye.
Ayes: 5
Chair Schwartz moved approval of Mr. Foreman's recommendation for Section 2-93.8-C.
Commissioner Shabazz seconded the motion, which carried by the following roll call vote:
Commissioners Little: Aye; Pauling: Aye; Shabazz: Aye; Tilos: Aye; Chair Schwartz: Aye.
Ayes: 5
Chair Schwartz moved approval of accepting the Foreman proposal of striking the
monetary penalty.
Commissioner Tilos seconded the motion which carried by the following roll call vote:
Commissioners Little: Aye; Pauling: Aye; Shabazz: Aye; Tilos: Aye; Chair Schwartz: Aye.
Ayes: 5
The Assistant City Attorney clarified Section C regarding the Council accepting OGC
recommendations actually applies to Section 2-91, not 2-92; both sections involve a cure
and correct, he just wants to make sure that was the motion and that staff has proper
direction.
Chair Schwartz concurred with the Assistant City Attorney, stated the motion was
applicable to Section 2-91 regarding public access of meetings.
Commissioner Little inquired whether there should be any conversation regarding Item D
under the penalties section; she reads that section as someone bringing forward an issue
simply to disrupt the process.
Chair Schwartz responded that Item D is not a redlined item and there are no changes to
the section.
3-C. Set the First Monday of Each Month, Excluding September, as Established Meeting
Dates
Chair Schwartz moved approval of accepting the proposal on meeting dates.
Commissioner Little seconded the motion.
Meeting of the
Open Government Commission
June 24, 2020
8",OpenGovernmentCommission/2020-06-24.pdf
OpenGovernmentCommission,2020-06-24,9,"Under discussion, Commissioner Shabazz stated one of the reasons he was on the OGC
was because there were not as many meetings as the other Boards and Commissions;
he organizes a program that also meets on first Mondays and may have potential
conflicts.
Chair Schwartz stated it would be difficult for him to meet every month as well due to child
care and other responsibilities; he agrees with Commissioner Shabazz wholeheartedly
regarding the monthly meetings, but also understands holding a set date on the calendar
so no one has to be chased around.
On the call for the question, the motion carried by the following roll call vote:
Commissioners Little: Aye; Pauling: Aye; Shabazz: Aye; Tilos: Aye; Chair Schwartz: Aye.
Ayes: 5.
3-D. Report to the Commission concerning Public Record Act (PRA) Requests that are
Referred to the City Attorney's Office.
Chair Schwartz stated he read the report and appreciates the efforts of the City Attorney
and City Clerk's office in drafting the report; it is very helpful for transparency to have the
data; he appreciates Commissioner Shabazz in moving this forward; he appreciates that
the City made the information on the Mali Watkins arrest available immediately on the
City website; it fosters public debate and discussion at a time when it is important for the
public to be able to have the discussion.
Commissioner Shabazz moved approval of accepting the report.
Commissioner Pauling seconded the motion.
Under discussion, Commissioner Shabazz stated that he appreciates how the report
layout; suggested adding a number to the PRAs which includes the year, so it is easier
to track how many are occurring in a calendar year.
In response to Chair Schwartz' inquiry, the Chief Assistant City Attorney stated adding a
number can be done, because the PRA's are referrals to the City Attorney's office from
various departments, the City Attorney's office will assign a number to them as they are
received.
In response to Commissioner Shabazz inquiry, the City Clerk stated the Sunshine
Ordinance includes each department having a designated person to handle PRAs and
also allows anyone to make their request to any employee of the City or any Department;
the Sunshine Ordinance tried to be very broad and inclusive so as not to funnel people to
just one spot; staff has honored the spirit of that and does not limit any requests; she is
working with the Public Information Officer on a web portal whereby people can submit
requests electronically.
Meeting of the
Open Government Commission
June 24, 2020
9",OpenGovernmentCommission/2020-06-24.pdf
OpenGovernmentCommission,2020-06-24,10,"Commissioner Shabazz stated he would like to ensure that the PRA report be included in
all the annual Sunshine Ordinance reports that go before the Council.
The Chief Assistant City Attorney stated his office is handing it administratively and will
work with the City Clerk's office to make sure the PRA report is provided to the Council
along with the other requirements under the Sunshine Ordinance.
On the call for the questions, the motion which carried by the following roll call vote:
Commissioners Little: Aye; Pauling: Aye; Shabazz: Aye; Tilos: Aye; Chair Schwartz: Aye.
Ayes: 5
3-E. Discuss Organizing a Forum or Method of Communication to Inform the Alameda
Community about the Public Records Act (Commissioner Shabazz)
Commissioner Shabazz made brief comments regarding the referral.
In response to Commissioner Tilos's inquiry regarding the steps required to make this
happen, Commissioner Shabazz stated he would also like to know if a vote on the process
is necessary to move the issue forward; he likes the idea of having something that anyone
on the Commission, or staff, can present; he would also like to identify a time when the
forum can happen.
Chair Schwartz inquired whether the idea of having a subcommittee could be considered,
to which Commissioner Shabazz responded it just depends on which method would be
the most effective; the intention is to ensure people are aware of the Public Records Act
and how they can use it in the context of City government; the method used to achieve
that would be to do a presentation to outline what it is and the process; he agrees with
Commissioner Tilos's idea of creating a presentation that anyone can present so even
after his time on the Commission, the vision could be expanded and be done in a way
that is effective to reach the goal; his initial idea involved doing a live presentation, but
under the circumstances, a virtual presentation could work.
The Chief Assistant City Attorney stated that the City Attorney office does Sunshine
Ordinance training every three years; his office could put together something along the
PRA that would be an outline; his office also provides AB 1234 training for elected officials
and already have a set of slides regarding the PRA; it could be packaged up and have a
forum in connection with the Commission, or whatever is appropriate, and have the public
invited to attend virtually; if that is something the Commission is interested in, it is
reasonably simple to do.
Commissioner Little stated that she understands there is training for staff and elected
officials on the PRA process; what she heard from Commissioner Shabazz is that he
would like the public to be able to understand the process; she does not think it is up to
the OGC to mandate that; it would be up to an agreement between Commissioner
Shabazz and the City; unless the Commission is adding it as a component to the training,
she completely supports Commissioner Shabazz moving forward to provide this very
important public service.
Meeting of the
Open Government Commission
June 24, 2020
10",OpenGovernmentCommission/2020-06-24.pdf
OpenGovernmentCommission,2020-06-24,11,"Commissioner Pauling concurs with Commissioner Little; stated that she believes a
presentation by Commissioner Shabazz would be accessible and focused for the public;
it is at the heart of what the Commission stands for, which is to protect the transparency
of local government; partnering with the City could afford benefits such as free meeting
space; she fully supports Commissioner Shabazz moving forward.
In response to Chair Schwartz inquiry regarding next steps, Commissioner Shabazz
stated he will continue working on his slides if there are no objections from the
Commission; he will work with the City Attorney's office and with staff to move forward
and hold a public forum.
Chair Schwartz stated it is apparent that there is full support from the OGC; he would also
be happy to support further action needed in the future.
In response to Commissioner Shabazz inquiry of anyone else wanting to be involved,
Commissioner Little stated she would like to participate as well as introduce
Commissioner Shabazz to another person who was instrumental in the PRA process with
the Police Department regarding a recent incident.
Chair Schwartz stated he would also like to be involved as time permits; it is a very
important topic.
3-F. Discuss Noticing Requirements for City Council Discussions of Proposed Charter
Amendments (Chair Schwartz)
3-G. Discuss and Provide Recommendations Concerning Potential Amendments to
Article VIII (Sunshine Ordinance) of Chapter Il (Administration) of the Alameda Municipal
Code, as Amended, Concerning Special Meetings, Including the Setting and Noticing of
Such Meetings
Chair Schwartz recommended Items 3-F and 3-G be heard together.
Stated he is concerned with the way Council uses special meeting; suggested special
meetings be permissible only if the topic being discussed cannot be reasonably put off to
the next regular agenda; also suggested when items run over during a meeting, they
should be put onto the next regular meeting agenda and not onto a special meeting the
next day; Council invoked the urgency ordinance illegitimately: Jay Garfinkle, Alameda.
Stated the Commission is doing a great job; the special meeting ordinance is woefully
inadequate and should be changed; special meetings are not held because of any
urgency, they are held to dedicate a meeting to a specific subject; a special meeting
needs as much notice as a regular meeting; he tried to include the noticing issues in his
draft proposal: Paul Foreman, Alameda.
The Chief Assistant City Attorney stated the City Attorney's office is looking for input from
the Commission for what it feels might be appropriate for the Council to consider.
Meeting of the
Open Government Commission
June 24, 2020
11",OpenGovernmentCommission/2020-06-24.pdf
OpenGovernmentCommission,2020-06-24,12,"The City Clerk stated regular agendas are distributed 12 days in advance, but with current
COVID related issues, sometimes items that were not anticipated have has seven day
notice and a special agenda has been sent out to take place on the regular meeting night;
the seven-day noticing requirement prevails whether or not it falls on a regular meeting
night.
Chair Schwartz stated methods of dissemination of information need to be brought into
the present, especially during COVID; how the issue came about was a Charter
amendment item had less notice than an ordinary meeting; as a result, a lot of people
who may have wanted to speak on it did not learn about it and there was inadequate
participation; the Commission should adopt new standard ways to disseminate
information into the current day and current times; another point to consider is the Mayor's
comments that meetings go very late and public access is not increased when important
issues are being discussed at ten in the evening, or midnight, or two the morning.
Commissioner Little stated there needs to be a distinction between a special meeting that
is dedicated to one topic, versus a special meeting that is urgent in nature; the distinction
would help to sift through and provide a little more guidance and flexibility with public
noticing.
Chair Schwartz concurred with Commissioner Little; stated making the distinction is a
great point; he agrees with Mr. Foreman that special meetings and urgent meetings being
lumped together is counterproductive.
Commissioner Tilos inquired whether a special meeting, as used now, is anything that is
not a regular meeting, to which the City Clerk responded in the affirmative; stated there
is a further distinction in the section that special meetings do not apply just to the City
Council, it applies to any special meeting of all bodies; the only body that is different is
the City Council which requires a 12-day notice for regular meetings and seven-day notice
for any special meetings.
Commissioner Pauling inquired whether a third category regarding closed sessions needs
to be considered and whether whatever the Commission decides if it would apply to all
Boards and Commissions or just the Council.
In response to Commissioner Pauling's inquiry, the City Clerk stated sometimes litigation
matters come in after the regular agenda has been published; the closed session
meetings are special meetings; items can be added to the closed session within the
seven-day noticing requirement; it has been a practice that is helpful and useful in getting
items to the Council in closed session that are not known about 12 days in advance.
Chair Schwartz stated there is not anything within the realm of the OGC's authority or
persuasion to say about closed sessions; the issue will probably have to be carved out of
the discussion about special meetings.
Meeting of the
Open Government Commission
June 24, 2020
12",OpenGovernmentCommission/2020-06-24.pdf
OpenGovernmentCommission,2020-06-24,13,"The Assistant City Attorney concurred with Chair Schwartz; stated one of the concerns
the City Attorney's office would have is that the status quo of closed sessions remains in
place.
Commissioner Shabazz stated it is interesting that the issues which brought this up in the
first place were two very controversial items in Alameda, referring to the City Manager
incident and Measure A; the Planning Board meeting regarding the same topic was
noticed a month out, so there was a lot of public participation and robust discussion;
considering the constraints of closed sessions and also considering the challenges of
participation now, some people do not have access to the meetings; the principle should
be what will allow people to participate, no matter what the meeting is labeled; what is the
maximum way for people to know about the meetings.
Chair Schwartz moved approval to recommend four parts: 1) expand communications as
to all meeting types to include social and new media; 2) for special meetings, meaning
those meetings about discreet topics that require extensive discussion, that they are
noticed 12-days out; 3) emergency meetings continue to be on the seven-day timeframe;
and 4) closed session items continue on the seven-day timeframe.
Commissioner Little inquired whether there will ever be a circumstance where noticing
cannot be within seven days for emergency items, to which the City Clerk responded
when the first declaration of emergency was issued, the Brown Act exception of 24 to 48
hour noticing was used when the issue was beyond the control of the City; maintaining
that policy would also be helpful and can be done under the emergency section.
Commissioner Little suggested an amendment to the motion which would be that special
meeting notices would align with the regular meeting noticing timeframe for each
particular body.
Chair Schwartz stated he accepts the friendly amendment that there would be some
carve-out for a statutorily authorized 24 hour period for noticing for exigent circumstances;
regarding the alignment of special meeting noticing to the regular meeting noticing
requirements, he feels a special meeting should require more notice than a regular
meeting and would like to apply the 12-day noticing for all special meetings.
The City Clerk clarified Chair Schwartz's motion that the 12-day noticing requirement
should apply to all Boards and Commissions, to which Chair Schwartz responded in the
affirmative.
The Chief Assistant City Attorney stated if an OGC complaint fell outside of a regular
meeting date, there would be a 12-day requirement for noticing rather than a seven-day
notice, which is okay, but is an unintended consequence; if there has not been any
problems with the seven-day noticing for bodies other than the Council, the 12-day rule
may not be warranted for all special meetings for all bodies.
Meeting of the
Open Government Commission
June 24, 2020
13",OpenGovernmentCommission/2020-06-24.pdf
OpenGovernmentCommission,2020-06-24,14,"Chair Schwartz stated it is a worthy consideration; he would suggest that, since the
Commission is being asked for recommendations at this point, that he still recommends
the 12-day noticing rule for special meetings and that the Commission be advised if it is
not a good idea for any of the Commissions before there is a final resolution; the
recommendation could be to increase public access and public transparency, and special
meetings be held to the 12-day noticing requirement.
The Chief Assistant City Attorney stated the City Attorney's office would bring back draft
language that reflects comments and direction from the Commission.
Commissioner Tilos stated there are accessibility issues and accessibility is lowered even
more during this pandemic; important and controversial issues, such as Charter
amendments, should not be noticed in special meetings during a pandemic when
participation is low.
Commissioner Little disagreed; stated business has to continue; there is no idea how long
the pandemic will last and City business cannot continue to be postponed; she would also
argue that although the format of virtual meetings has been limiting to some people, it can
also afford greater accessibility to the public who might not otherwise be able to attend a
meeting and engage from home instead of in person; there are positives and negatives,
but what is critical is expending all efforts to communicate and make sure the public has
every opportunity to be aware of the various meetings and agendas that will be
happening.
Commissioner Tilos stated he would like to add to Chair Schwartz's first recommendation
regarding communication; he would like to implore technology be used, including text
notifications and allowing citizens to opt in to receive notification about specific meetings.
Commissioner Little stated it would be an easy list since there are a number of Alamedans
who already receive text notifications from the City regarding COVID updates.
Chair Schwartz stated that he would like to move toward a vote if there is a second on
the four points, adding the text notifications to the first part.
Commissioner Little seconded the motion, which carried by the following roll call vote:
Commissioners Little: Aye; Pauling: Aye; Shabazz: Aye; Tilos: Aye; Chair Schwartz: Aye.
Ayes: 5
In response to Chair Schwartz inquiry, Commissioner Tilos stated that he does agree with
Commissioner Little regarding the show must go on for day-to-day business; moved
approval of the recommendation that Charter amendments or big issues should not be
addressed during a pandemic.
The Chief Assistant City Attorney requested clarification that Commissioner Tilos's motion
does not necessarily have to be a pandemic, but any type of declaration of local
emergency.
Meeting of the
Open Government Commission
June 24, 2020
14",OpenGovernmentCommission/2020-06-24.pdf
OpenGovernmentCommission,2020-06-24,15,"Commissioner Tilos stated any situation that would prevent people from showing up,
including a shelter-in-place order.
The Chief Assistant City Attorney inquired whether Commissioner Tilos would like
something more specific than just a declaration of local emergency and a situation which
would involve a shelter-in-place, to which Commissioner Tilos responded he is not
opposed to a declaration of local emergency in the broader context.
The City Clerk requested clarification that the Commission recommendation would be that
those items just not be on special meetings.
Commissioner Tilos stated his recommendation would be that such items would not be
on any meeting agenda during local emergency situations.
The City Clerk noted the City Council has already taken action to move two ballot
measures forward in July; she just wants the Commission to be clear that items are in
process right now.
The motion failed due to a lack of second.
Commission Communications
Commissioner Shabazz stated with the recent arrest of Mali Watkins, there are some
issues that overlap with the Commission; he probably has a slightly different perspective
than Chair Schwartz regarding the amount of transparency regarding the information,
considering his attempts to get information from the Police Department; there is list of
demands for information from a group of young people which the OGC may be interested
or able to address: 1) quarterly release of Police use of force; 2) independent oversight
of Police review; and 3) the call for an audit of the Police budget; to what extent does the
OGC want to make sure the people understand the City budget and the taxpayers
funding; he wanted to raise these issues and see if there is a place for the OGC to better
understand and make recommendations around the matters.
Chair Schwartz stated he appreciates that there was no legal compulsion regarding the
release of the information, it was voluntarily released for public access within two weeks;
he would be interested in police review, but does not think it would fall under the OGC.
Commissioner Little stated the one piece the OGC could look at is the multiple times
people have requested body cam footage and the response from the APD was always
that the incident was under investigation and footage could not be released; the APD set
a precedent regarding releasing the Mali Watkins body cam footage even during an
investigation, which the OGC should take note of, especially when constituents come
forward to the OGC that their requests are not being addressed in a timely manner.
Meeting of the
Open Government Commission
June 24, 2020
15",OpenGovernmentCommission/2020-06-24.pdf
OpenGovernmentCommission,2020-06-24,16,"The City Clerk stated the next City Council meeting regarding the police topic is scheduled
on Monday, June 29, 2020 at 5:30 p.m.
Adjournment
Commissioner Little moved approval of adjourning the meeting.
Commissioner Tilos seconded the motion, which carried by the following roll call vote:
Commissioners Little: Aye; Pauling: Aye; Shabazz: No; Tilos: Aye; Chair Schwartz: Aye.
Ayes: 4. Noes: 1.
The meeting was adjourned at 9:47 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
June 24, 2020
16",OpenGovernmentCommission/2020-06-24.pdf
OpenGovernmentCommission,2020-08-03,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY AUGUST 3, 2020 7:00 P.M.
Chair Schwartz convened the meeting at 7:05 p.m.
ROLL CALL -
Present:
Commissioners Little, Pauling, Tilos and Chair
Schwartz - 4. [Note: The meeting was conducted via
Zoom.]
Commissioner Shabazz joined the meeting at 7:15
p.m.
Absent:
None.
[Staff present: Chief Assistant City Attorney Michael Roush, Assistant
City Attorney John Le, and Assistant City Clerk Irma Glidden]
Oral Communications
None.
Regular Agenda Items
3-A. Minutes of the Meeting Held on June 24, 2020
Chair Schwartz stated he appreciates how detailed the minutes are and is impressed that
everything was captured from the long meeting.
Commissioner Pauling moved approval of the minutes.
Vice Chair Tilos seconded the motion which carried by the following roll call vote:
Commissioners Little: Aye; Pauling: Aye; Tilos: Aye; Chair Schwartz: Aye. Ayes: 4.
[Absent: Commissioner Shabazz - 1]
3-B. Discuss and Provide Recommendations to the City Council Concerning Potential
Amendments to Article VIII (Sunshine Ordinance) of Chapter Il (Administration) of the
Alameda Municipal Code, as Amended, Concerning Special Meetings, Including the
Setting and Noticing of Such Meetings
Chair Schwartz stated the Commission was asked to provide input on the process of
noticing special meetings; there was controversy regarding a special meeting on a
proposed charter amendment and allowing full transparency and access; the Commission
made recommendations.
Stated he is concerned with the way Council uses special meetings and using an
emergency to justify having a special meeting; the meetings have short notice and most
Meeting of the
Open Government Commission
August 3, 2020
1",OpenGovernmentCommission/2020-08-03.pdf
OpenGovernmentCommission,2020-08-03,2,"of the public is not even aware of the meetings, which results in very little public input and
oversight; it is important to facilitate public input; encouraged allowing more speaking time
for the public instead of reducing time; stated the Open Government Commission is an
important body and he thinks some people on the Council are abusing the urgency
ordinance: Jay Garfinkle, Alameda.
Stated that she supports the need for improved public information ahead of time regarding
special meetings; she was alarmed to read about meetings in the paper after the meetings
were already held; very substantive issues were discussed and she had no idea the
meetings were happening; requested that a push-notification system be implemented for
the public: Kathleen Sullivan, Alameda.
The Chief Assistant City Attorney stated the purpose of the amendment is to give a
lengthier time before a special meeting would be held and encompass social media and
other types of platforms so a larger group of people will be aware and can be heard; staff
understood the direction and has attempted to include the changes in the ordinance.
In response to Commissioner Little's inquiry regarding emergency noticing raised by Mr.
Foreman in his correspondence, Chair Schwartz stated to address the situation where
there is a serious emergency the amendment allows seven-days notice or permitted by
applicable statute.
The Chief Assistant City Attorney further clarified staff would still require the seven-days
notice in a more urgent situation unless there is something very dire, in which case the
noticing could be less; the language is proposed in the amendment and covers the
concern raised by Mr. Foreman.
Commissioner Little inquired whether such situation would require a supermajority vote
for a lesser noticing time.
The Chief Assistant City Attorney responded the way it is written, the Presiding Officer or
City Manager could call a special meeting on very short notice; the premise is that it would
be on very rare occasion and may be difficult to assemble a majority of the legislative
body.
Commissioner Shabazz stated there was discussion regarding the manner in which
people could be notified; he uses the practice of requesting to be placed on a distribution
list; suggested including language on agendas to let people wishing to be included on the
distribution for future agendas what steps to take; he would like that practice to be more
known by placing the information on the City's website and directly on the agendas.
Chair Schwatz inquired whether Commissioner Shabazz wants different language to be
included in the amendment or if his comments are a simple suggestion.
Commissioner Shabazz responded it is a suggestion, but he would review the current
proposed language and provide input if needed.
Meeting of the
Open Government Commission
August 3, 2020
2",OpenGovernmentCommission/2020-08-03.pdf
OpenGovernmentCommission,2020-08-03,3,"Chair Schwartz stated that he is comfortable with the way the amendments are drafted
and capture what the Commission discussed.
In response to Chair Schwartz inquiry regarding Section 2-91.5, the Assistant City
Attorney stated the Section relates to agenda posting requirements and timing, including
on the City's website and making agendas available in hard copy at the Main Library and
Clerk's office.
Chair Schwartz stated that he would add a reference to texting, which was brought up by
Commissioner Tilos, but not listed in the Section.
The Assistant City Attorney stated the language in the amendment refers to any other
electronic means approved by the City Clerk without being more specific; staff did not
want to preclude texting as a method as it may be possible in the future; however, a text
notification system may not be technologically or financially feasible.
Chair Schwartz stated that he would like to suggest including texting as a method of
notification; it is technologically feasible and financially would be worth it; having an opt-
in list as suggested by Commissioner Shabazz could work.
Commissioner Pauling stated making clear the whole process of notification could be part
of implementation; technological advances happen quickly; there are upcoming budget
restraints; she is wondering whether the ordinance can keep the language as written, but
put more specific information on the website and allow people to be on a notification list
for a specific topic; that way there is specific guidance rather than just a reference to
texting.
Commissioner Tilos stated the language of having a subscription to ""electronic
communication"" could be used to mean texting as wells as emails; in the event texting is
not financially feasible, emails could be sent.
Commissioner Shabazz stated that he understands the need to be more general, but the
goal is to maximize public participation and engagement; he recognizes technology does
change quickly as Commissioner Pauling stated; he would like to include language that
is general enough that could account for changes in technology, but specific enough that
in this moment there are methods that people could use; he is interested in the law
requiring someone to add a subscriber to a list.
The Chief Assistant City Attorney stated under the Brown Act, a person can request
copies of the agenda with associated costs; now with technology, there are no costs to
receive the agenda electronically.
The Assistant City Clerk stated when members of the public request to receive copies of
the agenda, the Clerk's office adds them to a regular email distribution list; requests for
mailed hard copies of the agenda is not common.
Meeting of the
Open Government Commission
August 3, 2020
3",OpenGovernmentCommission/2020-08-03.pdf
OpenGovernmentCommission,2020-08-03,4,"Commissioner Shabazz stated that he would like to suggest adding language directly on
the agenda for people requesting to be added to a distribution list to receive future
agendas.
Commissioner Little concurred with Commissioner Shabazz; stated that she would like
the language added to the City website prominently at the top of the page where people
look for agendas; she likes the current language regarding electronic communications as
it leaves it open for the City to determine what is feasible and encourage flexibility for
technological changes; she suggests keeping the language broad and not be limited to
specific methods.
Chair Schwartz moved approval of adding to the end of Section 2-91.4.f, rather than
specifying texting, language stating: ""with the objective of providing notice by as many
viable means as possible.'
Commissioner Little seconded the motion.
Under discussion, Commissioner Shabazz stated that he would like language added to
agendas that would enable people to be added to a distribution list for specific bodies,
rather than specific topics.
Chair Schwartz concurred with Commissioner Shabazz; stated language could be added
to Section 2-91.4.f to state: ""provide notice directly to any member of the public who has
requested to be added to the distribution list for a particular body.""
The Assistant City Clerk stated she understood an opt-in method is being suggested;
inquired which method of distribution Commissioner Shabazz is suggesting.
Commissioner Shabazz responded that he does not want to prescribe a particular method
as he knows not everyone has internet access or even access to just walk into the library;
he suggests whatever the method is, just have an option for members of the public to be
able to subscribe, whether it's by mail or email, taking into consideration accessibility
issues.
The Chief Assistant City Attorney questioned whether another portion of the Sunshine
Ordinance might be a better section to address the concerns; stated if it will be applied to
all City Boards and Commissions, there may be a different section of the Sunshine
Ordinance where the issue could be addressed; perhaps the amendment can be moved
ahead as drafted with the initial amendments made by Chair Schwartz and bring back to
the next meeting whether there might be a better place to address the concerns of
Commissioner Shabazz regarding distribution.
Chair Schwartz stated it makes sense; in addition, he does not see any reason why an
item could not be added to the Section allowing any member of the public to be added to
a distribution list for a particular body.
Meeting of the
Open Government Commission
August 3, 2020
4",OpenGovernmentCommission/2020-08-03.pdf
OpenGovernmentCommission,2020-08-03,5,"The Chief Assistant City Attorney stated the Commission could do that.
The Assistant City Attorney stated in addition to the Brown Act, a provision in the
Sunshine Ordinance Section 2-91.6 Public Notice Requirements, Subsection D states:
""The City shall maintain an email notification list in order to allow any individual to sign up
to automatically receive meeting agendas, updates on projects, notifications that impact
the entire neighborhood.;"" if the Commission would like to make the change, it should be
included in Subsection D.
Chair Schwartz stated he would propose to add the language: ""provide notice to members
of the public who have requested to be on a distribution list including those referenced in
Subsection D of Section 2-91.6 of the Sunshine Ordinance;"" as the Chief Assistant City
Attorney suggested, look to see where it could be weaved in, but for now, it captures the
issue raised by Commissioner Shabazz.
Commissioner Shabazz inquired whether there was a reason why members of the public
could not be added in Section 2-91.4.f.1
Chair Schwartz responded Section 2-91.4.f.1 states distribution is personally or by mail,
which would preclude other methods of distribution; that is why he suggested adding a
Section 2-91.4.f.3 for noticing by other means.
In response to Chair Schwartz inquiry, the Chief Assistant City Attorney stated adding 2-
91.4.f.3 accomplishes what Commissioner Shabazz would like to see happen.
Chair Schwartz moved to approve adding a Section 2-91.4.f.3 with the language: ""provide
notice to members of the public who have requested to be on a distribution list including
those referenced in Subsection D of Section 2-91.6 of the Sunshine Ordinance.""
Commissioner Shabazz seconded the motion.
Under discussion, Commissioner Pauling stated that if there will be additional language,
the Public Notice section of the Sunshine Ordinance should be referenced; it gets
muddied if there is similar but not the same language in two different sections of the same
ordinance; people look to the website to find the agendas; there should be a link which
takes them directly to where they can choose the means of notification and the
Commissions or topics they wish to be notified of; it goes to the heart of implementation.
Chair Schwartz clarified that his amendments includes the reference Commissioner
Pauling mentioned.
Commissioner Pauling stated that she likes the idea of the reference to the Public Noticing
Requirements Section to be highlighted so that the public can go to it directly to see
meeting details.
Meeting of the
Open Government Commission
August 3, 2020
5",OpenGovernmentCommission/2020-08-03.pdf
OpenGovernmentCommission,2020-08-03,6,"On the call for the question, the motion carried by the following roll call vote:
Commissioners Little: Aye; Pauling: Aye; Shabazz: Aye; Tilos: Aye; Chair Schwartz: Aye.
Ayes: 5.
Chair Schwartz moved approval of adopting the draft amendments, as provided by the
City Attorney's Office, with the two revisions that have been voted on by the Commission.
Commissioner Pauling seconded the motion, which carried by the following roll call vote:
Commissioners Little: Aye; Pauling: Aye; Shabazz: Aye; Tilos: Aye; Chair Schwartz: Aye.
Ayes: 5.
Commission Communication
Commissioner Tilos stated that he wants to clarify the new meeting scheduling; inquired
whether meetings will only take place if the Commission receives a complaint and holding
tonight's meeting was to complete unfinished business.
The Chief Assistant City Attorney responded in the affirmative; stated tonight's meeting
was scheduled because the Commission wanted to address the item as quickly as
possible; the regular meeting will be in October for staff to present other amendments the
Commission discussed in June; there would not be a meeting in November unless there
was a complaint or an item that needed to be addressed by the Commission; the schedule
is set up so that meetings can be canceled if there are no items.
Chair Schwartz stated that he would have liked the opportunity at tonight's meeting to
finish up the time sensitive matter of putting some teeth back into the Sunshine
Ordinance, which the Commission was charged with; the issue of the back and forth about
the underlying ""null and void"" and new solutions the Commission was going to implement
has been sitting out there for almost two years; he is disappointed that the issue is now
pushed out to October as members of the public and Commissioners expressed at the
last meeting it has been going on for a long time; he thought the suggestions were specific
and concrete and could have been done today as well.
Commissioner Little concurred with Chair Schwartz; stated that she almost forgot that the
Commission still has to deliberate on the issue, that is how long it has been.
Commissioner Shabazz stated now that the meeting frequency has changed, he is
interested in developing a work plan for the Commission; he has identified some goals
that he would like to have an offline conversation with Chair Schwartz; as a body, it might
be helpful to develop a work plan to think about what might be the goals for the
Commission over the next one or two years to maximize participation by the people of
Alameda in City government.
Chair Schwartz stated he would certainly welcome an opportunity to work with
Commissioner Shabazz on a work plan.
Meeting of the
Open Government Commission
August 3, 2020
6",OpenGovernmentCommission/2020-08-03.pdf
OpenGovernmentCommission,2020-08-03,7,"Adjournment
Commissioner Little moved approval of adjourning the meeting.
Commissioner Shabazz seconded the motion, which carried by the following roll call vote:
Commissioners Little: Aye; Pauling: Aye; Shabazz: Aye; Tilos: Aye; Chair Schwartz: Aye.
Ayes: 5.
The meeting was adjourned at 8:08 p.m.
Respectfully submitted,
Irma Glidden
Assistant City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
August 3, 2020
7",OpenGovernmentCommission/2020-08-03.pdf
OpenGovernmentCommission,2020-11-16,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY
NOVEMBER 16, 2020
7:00 P.M.
Chair Schwartz convened the meeting at 7:04 p.m.
ROLL CALL -
Present:
Commissioners Little, Pauling, Tilos and Chair
Schwartz - 5. [Note: The meeting was conducted via
Zoom.]
Absent:
None.
[Staff present: Chief Assistant City Attorney Michael Roush, Assistant
City Attorney John Le, Attorney James Harrison; and City Clerk Lara
Weisiger]
Oral Communications
Jay Garfinkle, Alameda, stated that he was concerned about the way the Commission
functions; that he was told he could only submit a complaint via oral communication; he
is frustrated the October meeting was cancelled and there is lack of coordination;
requested clarification on first and second readings of ordinances.
The City Clerk stated that she explained to Mr. Garfinkle that since he was not submitting
a Sunshine Ordinance complaint, his matter could go before the Commission under Oral
Communications; when he filed a complaint, which was later withdrawn and then refiled,
it was past the deadline.
Chair Schwartz stated that Mr. Garfinkle could file a complaint or submit a letter prior to
the next meeting if he wishes; the October meeting cancelation was not as a decision of
the Commission and he shares the frustration.
Regular Agenda Items
3-A. Minutes of the Meeting Held on August 3, 2020
Chair Schwartz stated he would like to strike the part where Commission members were
joking about ear injection technology; clarified a sentence to state why ""an item could not
be added.""
The City Clerk noted the changes.
Commissioner Shabazz moved approval of the minutes.
Commissioner Little seconded the motion which carried by the following roll call vote:
Commissioners Little: Aye; Pauling: Aye; Shabazz: Aye; Tilos: Aye; Chair Schwartz: Aye.
Ayes: 5.
Meeting of the
Open Government Commission
November 17, 2020
1",OpenGovernmentCommission/2020-11-16.pdf
OpenGovernmentCommission,2020-11-16,2,"3-B. Discuss and Provide Recommendations Concerning Potential Amendments to
Article VIII (Sunshine Ordinance) of Chapter Il (Administration) of the Alameda Municipal
Code, as Amended, to Replace ""Null and Void"" Remedy.
The Chief Assistant City Attorney stated what is being presented tonight is in response to
the Commission's comments and recommendations; the City Attorney's office did hire
outside counsel, James Harrison, as requested by the Commission to review the proposal
put forth by Paul Foreman; Mr. Harrison has provided comments which were incorporated
in the agenda report; the item is intended to provide the Commission with the opportunity
to respond to what staff has presented; further comments or amendments will be
considered and moved forward to the City Council.
In response to Commissioner Shabazz's inquiry, Chair Schwartz stated Mr. Harrison is
outside Counsel from Olson Remcho hired by the City Attorney's office.
Chair Schwartz stated it appears the chief authorities cited against the Commission's
proposal to add teeth to the Sunshine Ordinance, being cited by the City Attorney's office
and its outside counsel for the notion that the Commission's proposal would violate the
principle of ""non-delegation,"" are a case from 1904 (when 10% of Alameda was 600
people) - where, unlike today, sending back an ordinance would have cost two years -
and another case, from over 50 years ago.
Chair Schwartz inquired whether the cases are the chief authorities, to which the Chief
Assistant City Attorney responded in the affirmative.
Chair Schwartz inquired whether when drafting the recommendation the Chief Assistant
City Attorney read the June OGC minutes when the Commission discussed their
recommendations for over an hour, to which the Chief Assistant City Attorney responded
in the affirmative.
Chair Schwartz stated City Attorney staff weighed in on independent legal counsel even
though it was not an issue the Commission put forward; inquired why it was included.
The Chief Assistant City Attorney responded it was included as a response to Mr.
Foreman's proposal; stated it was a good idea to address all his concerns.
The Assistant City Attorney stated that he understands that Chair Schwartz felt the issue
did not need to advance; he went back to listen to the recording and it was actually part
of the motion.
Chair Schwartz stated that he does not believe that is correct, but now it explains why
staff had a different understanding; his impression was that part was not recommended
by the Commission.
Meeting of the
Open Government Commission
November 17, 2020
2",OpenGovernmentCommission/2020-11-16.pdf
OpenGovernmentCommission,2020-11-16,3,"Chair Schwartz inquired whether Mr. Harrison did not find any cases within the last 50
years which prohibit a commission from sending an ordinance back to Council for further
review.
Mr. Harrison responded in the affirmative; stated the Commission certainly has power to
make recommendations; he is not aware of any cases that would preclude making
recommendations.
Chair Schwartz inquired whether any cases preclude a supermajority requirement in
certain instances; for example, to reject the recommendation of a City's appointed
Commission.
Mr. Harrison responded as to said point, they were relying on the City's Charter which
specifies that the Council takes action by a vote of three members unless the Charter
specifies a different threshold.
Chair Schwartz stated the Charter does not say anything about this particular situation
where an appointed Commission makes a recommendation to City Council regarding the
voting quorum that is necessary.
Mr. Harrison stated the Charter specifies that Council action occurs by a vote of three
members unless the Charter specifies elsewhere; he would not expect to find anything in
the Charter because in the absence of anything else, three votes are required.
Chair Schwartz inquired whether the Charter has any instances where it allows for a
supermajority vote, to which Mr. Harrison responded in the affirmative; stated in cases of
urgency ordinances, a four-fifths vote is required, which is in Section 3-12 of the Charter.
Chair Schwartz inquired whose responsibility is it to approve a Charter provision; gave
the example of the Commission recommending to the City Council that a supermajority
be required to adopt something against the recommendation of the Commission to
reagendize the matter; inquired whether the City Council could vote to adopt that as an
amendment to the Charter.
Mr. Harrison responded Charter amendments would have to be placed on a ballot and
approved by the voters.
In response to Chair Schwartz inquiry regarding the non-delegation notion, Mr. Harrison
stated he indirectly relied on the Charter in the sense that it provides that the City Council
carries out all legislative powers of the City, with the exception of the powers of initiative
and referendum.
Commissioner Little stated the language is confusing; it appears there is a third proposal
of a compromise between the Knox White and the Foreman proposals, which is not
recommended by special counsel; inquired whether Mr. Harrison is special counsel and
as such, does not recommend the compromise.
Meeting of the
Open Government Commission
November 17, 2020
3",OpenGovernmentCommission/2020-11-16.pdf
OpenGovernmentCommission,2020-11-16,4,"Mr. Harrison responded he is special counsel and did draft the third proposal; in doing so,
they noticed it also raises several issues or practical concerns, particularly in light of the
fact that if the City Council were unable to act in whatever period of time required at the
Commission's order could have the effect of undoing City Council action, which raises the
concern expressed with respect to the non-delegation doctrine and the provision that the
City Council has full legislative authority.
Commissioner Little stated the Commission tried to bring forward something that would
prevent ending up in the same situation as before, which was that the City moved forward
with a second reading and in the meantime a complaint had been made before the second
reading went through and nothing paused; the Commission put forward language so as
not to be in the same position and that the Commission did not have the authority to go
back and make something null and void; every option the Commission has brought
forward seems to be fairly well rejected, except for the Knox White proposal, which in her
opinion does not really afford the Commission its teeth; it does not feel satisfactory to just
say the City Council can proceed as usual and there are no real consequences to pause
the process; questioned what is the point of a Sunshine Ordinance and an Open
Government Commission if it does not have authority.
The Chief Assistant City Attorney stated that he looks at the Knox White proposal as
accomplishing what the Commission is after; it does indicate there would be a pause in
the process and would allow the matter to be returned to the body which the Commission
has found to be in violation of the ordinance and would allow that decision to be reviewed
further; both Mr. Foreman's and Mr. Harrison's proposals still run into the problem that
existed in the ordinance concerning non-delegation; the City Attorney's office has a
different view about what the authority of Commission should be and are prepared to take
forward to the Council the Commission's recommendation; the City Attorney's office is in
the position to give the Commission the best legal advice; the Commission is not bound
to accept it; what has been presented is the most legally defensible.
Chair Schwartz stated fundamentally, the City Attorney disagrees with what the
Commission is trying to put forward; his understanding of why there was a very long pause
to move something forward was because the City Attorney's office was going to give back
to the Commission an essentially formalized version of what the Commission wanted to
put forward; that was what the Commission was told and that is why there was so much
time spent debating each item; he does not think presenting the Knox White proposal as
something the Commission wanted is right; the Commission adopted a different proposal
that was more along the lines of Mr. Foreman's proposal; the problem is going around
and around for years trying to see that the Sunshine Ordinance has some teeth and the
City Attorney has been pushing back; it seems none of the Commission's actions or votes
have any bearing and the City Attorney's office comes back with a proposal that is
explicitly what the Commission has rejected rather than sending what the Commission
proposed to the City Council; suggested forming a subcommittee of the Commission to
put forward a proposal consistent with what the Commission voted on in June since the
City Attorney is not going to put that forward; stated both the Commission and the City
Meeting of the
Open Government Commission
November 17, 2020
4",OpenGovernmentCommission/2020-11-16.pdf
OpenGovernmentCommission,2020-11-16,5,"Attorney can present proposals to the Council and allow Council to decide; in his opinion,
the Council will be deciding whether or not to have teeth in the Sunshine Ordinance and
a real transparent legislative process; what Council has said months ago was that they
adopted the City Attorney opinion that a null and void provision usurped the legislative
process, but they still wanted real teeth in the ordinance; the Commission's proposal
would do that; he disagrees that there is anything unlawful about it; suggested forming a
subcommittee to put forth the Commission's proposal to the City Council; stated
undoubtedly, the Council will also have the considered opinions of the City Attorney.
Commissioner Shabazz expressed his appreciation to Commissioner Little about
confusion in the language; stated the current proposal does not meet the criteria of putting
teeth back into the Sunshine Ordinance; inquired whether staff will still bring a proposal
forward to the City Council for approval even if the Commission declines to move forward
with it.
The Chief Assistant City Attorney responded staff would bring forth any proposal the
Commission approves, either through a subcommittee or other process; depending on
what the proposal says, he cannot say whether or not the City Attorney's office would
recommend it, which is not an unusual situation for Commissions; without knowing
precisely what the Commission may come up with, the City Attorney's office cannot say
whether or not they would recommend it; it is fair to say if it involves a delegation issue,
the City Attorney's office would not be in a position to recommend it because it is not
authorized by the Charter; people can disagree, but Council will make the ultimate
decision.
Commissioner Shabazz stated that he appreciates the legal analysis; there is a desire to
have something substantive to replace what was lost with the removal of null and void;
depending on where people may be, maybe move to recommend the Foreman proposal
to the City Council.
Commissioner Tilos stated there are two different battles; whatever the Commission
drafts will likely not be recommended by the City Attorney's office; if the Commission goes
directly to the Council, they will probably not approve it either; it is an uphill battle both
ways; the question becomes which battle to choose: the endless two year circle of
rewriting a proposal to get endorsement from the City Attorney's office or go directly to
Council just to be rejected.
Chair Schwartz stated it is a real concern, but does not necessarily have to go that way;
it will be a different Council and a different moment; after the Council asked specifically
to put teeth back into the ordinance and the Commission comes back with something that
does so, it is something different than straight null and void; the arguments that were
raised by the City Attorney which gave the City Council pause about an absolute null and
void do not have the same force with respect to the proposal the Commission has already
agreed and voted on; the Commission is not nullifying or usurping any legislative function
of the Council, which is the argument the Council made; the Commission has to be true
and decide what is best for transparency; the Commission was charged with putting teeth
Meeting of the
Open Government Commission
November 17, 2020
5",OpenGovernmentCommission/2020-11-16.pdf
OpenGovernmentCommission,2020-11-16,6,"back into the ordinance and does not feel the choice is simply between doing whatever
the City Attorney tells the Commission to do and failure; there is a middle path, which is
coming up with a proposal that takes into account the various legal advice but also stays
true to the objective of putting teeth into the ordinance.
Commissioner Pauling stated that she shares the frustration and certain degree of
confusion about what has been expressed already; there has to be a way to have a
process that forces a real pause and requires proper notice; it seems the only definition
needed is if and what constitutes an urgent time factor; she would like some boundaries;
she concurs with Chair Schwartz's recommendation regarding a subcommittee to actually
come forward with teeth and an approach for how that would be defined; the most
important thing is that if there is not proper notice, the matter should be stopped and re-
noticed; short of a life-threatening emergency, that is what should happen.
In response to Commissioner Pauling's inquiry, the City Clerk stated Commissioner
Pauling's term will end on December 15th when the new Councilmembers are sworn in; a
report is taken to the Council at the first meeting in January to inform the public of the
new appointees.
Commissioner Pauling stated she is happy to help in any way she can, but her time is
limited.
Chair Schwartz stated he would be happy to see a subcommittee recommendation before
December 15th.
Chair Schwartz moved approval to not adopt the recommendation of the Knox White
proposal and instead appoint a subcommittee to make a recommendation, consistent with
what the Commission recommended at the June meeting, before December 15th
Commissioner Pauling seconded the motion.
Under discussion, Commissioner Shabazz inquired whether a person has to be a
Commissioner to be on the subcommittee.
The Chief Assistant City Attorney responded in the affirmative; stated by definition a
person would need to be on the Commission in order to be on the subcommittee; it would
be up to the subcommittee to allow a non-commissioner as a subcommittee member.
The City Clerk stated, for timing purposes, the next regular meeting of the Commission is
December 7th and the agenda packet would need to go out on November 30th; the latest
potential meeting date is December 14th, but the packet would need to go out December
2nd because of the new 12-day publication for special meetings.
Chair Schwartz stated the subcommittee could make its recommendation by December
15th; if it is not done, the Commission could vote at a later meeting if necessary.
Meeting of the
Open Government Commission
November 17, 2020
6",OpenGovernmentCommission/2020-11-16.pdf
OpenGovernmentCommission,2020-11-16,7,"meeting.
The Assistant City Attorney stated the proposal that was recommended by the
Commission is not based on minutes, it is based on a motion from the Commission on
the Foreman proposal which is clearly outlined in redline form; if the Commission is
moving in the direction of a subcommittee, there should be some concrete direction to
that subcommittee vis-à-vis the motion that is made by the Commission concerning the
Foreman proposal; he is not sure if the Commission still supports the Foreman proposal
as modified by the Commission or is the charge to create something completely new; that
ought to be part of the motion as well.
Chair Schwartz stated he hears what the Assistant City Attorney is saying but it was not
unclear that the idea of the subcommittee is to write a proposal that is consistent with
what the Commission recommended at the June; identifying the subcommittee members
can be done as part of the motion or after Commissioners agree there should be a
subcommittee.
The Chief Assistant City Attorney stated the charge of the subcommittee is sufficiently
clear and the motion should proceed to see if there is support for a subcommittee, decide
who will be on it, and go from there.
Meeting of the
Open Government Commission
November 17, 2020
7",OpenGovernmentCommission/2020-11-16.pdf
OpenGovernmentCommission,2020-11-16,8,"On the call for the question, the motion carried by the following roll call vote:
Commissioners Little: Aye; Pauling: Aye; Shabazz: Aye; Tilos: Aye; Chair Schwartz: Aye.
Ayes: 5.
In response to Chair Schwartz's inquiry, Commissioner Pauling stated she is interested
in being in the subcommittee with the understanding that she will step down from the
Commission on December 15th
Commissioner Tilos inquired whether the subcommittee plans to present the proposal to
the full Commission for a vote on December 7th, to which Chair Schwartz responded in
the affirmative; stated the full Commission presenting the proposal to the Council would
carry more weight, as the Chief Assistant City Attorney stated.
In response to Commissioner Pauling's inquiry, the City Clerk reiterated the report
deadlines of November 30th and December 2nd
In response to Chair Schwartz' inquiry regarding whether Commissioner Little would like
to be on the subcommittee, Commissioner Little stated there can only be two members
from the Commission so as not to violate the Brown Act; inquired whether a
Councilmember or other body could be asked to participate.
The Chief Assistant City Attorney stated once you start expanding the membership, there
is a risk of the subcommittee becoming a policy body which would need the 12-day
noticing; if it is simply kept as an ad hoc committee, it would be classified as a passive
body under the Sunshine Ordinance and can meet without the strict requirements.
Chair Schwartz inquired whether the Commission would be amenable to him and
Commissioner Pauling serving on the subcommittee.
Commissioner Pauling stated because she has only been on the Commission for a year,
she is willing to allow someone who has more experience to serve; she is happy to
contribute, but also happy to step aside if any of the other Commissioners are interested.
Commissioner Little stated although the OGC is near and dear to her, she is gearing up
and focused on her new role as a School Board Member.
Commissioner Tilos stated he has full confidence that Chair Schwartz has a good idea of
what everyone on the Commission wants to convey to the Council.
Commissioner Shabazz stated he concurs with Commissioner Tilos and is confident in
Chair Schwartz and Commissioner Pauling making it happen; he appreciates how Chair
Schwartz has conveyed the Commission's concerns multiple times with passion and
looks forward to what they will be bring forward.
Meeting of the
Open Government Commission
November 17, 2020
8",OpenGovernmentCommission/2020-11-16.pdf
OpenGovernmentCommission,2020-11-16,9,"becoming Chair and Commissioner Shabazz as Vice Chair.
Chair Schwartz seconded the motion.
Under discussion, Commissioner Shabazz inquired what goals Commissioner Tilos has
regarding being Chair.
Meeting of the
Open Government Commission
November 17, 2020
9",OpenGovernmentCommission/2020-11-16.pdf
OpenGovernmentCommission,2020-11-16,10,"Commissioner Tilos responded that he would like to see the Sunshine Ordinance carry
through and have the current Commission's voices heard on December 7th so that there
will be something showing the Commission's voices brought to Council; his goal for the
next few meetings would be to bring the two new Commissioners up to speed; then, to
continue to address any current and future public complaints; regarding Commissioner
Shabazz's ideas, he would also like to bring more transparency to the Commission and
more public access; these are issues he would focus on in the upcoming term and next
few months.
The Chief Assistant City Attorney left the meeting for a family matter.
Commissioner Shabazz stated Alameda is an interesting place; he is currently applying
to several doctorate programs outside of the Bay Area; if he does attend a program in the
Bay Area, he will stay in Alameda; he can accept the Vice Chair position with the
understanding he may not be in Alameda in 2022.
Under call for the question, the motion carried by the following roll call vote:
Commissioners Little: Aye; Pauling: Aye; Shabazz: Aye; Tilos: Aye; Chair Schwartz: Aye.
Ayes: 5.
Commission Communication
Commissioner Little expressed her thanks to the Commissioners for making her time on
the Commission interesting, fulfilling and exciting; stated the Commission demonstrates
the ability to set aside personal agendas in order to do what is best for the City, the people,
and the various other bodies that come before the OGC; thanked everyone for the
wonderful opportunity in her first role of government service.
The City Clerk expressed her appreciation for Commissioner Little's service; noted
Commissioner Little served on a subcommittee that tackled a lot of issues and put in a lot
of hard work for the Commission; it is sad to see her go; wished her great success on the
School Board.
Chair Schwartz stated that he appreciated the opportunity to serve as Chair and it has
been a great pleasure to serve with everyone; echoed Commissioner Little's comments
on the ability for everyone to agree on the fundamental mission; he looks forward to
working with the new members.
Commissioner Pauling stated that she wished she could have served with Commissioner
Little longer on the Commission and wished her the best.
Commissioner Shabazz expressed his appreciation and congratulations to Commissioner
Little; thanked Commissioner Pauling for stepping in and serving on the Commission;
stated that he has been in touch with the League of Women Voters regarding the Public
Records Act workshop; gave a shout out to the Youth Activists of Alameda for their
Instagram video explaining how City Council meetings work.
Meeting of the
Open Government Commission
November 17, 2020
10",OpenGovernmentCommission/2020-11-16.pdf
OpenGovernmentCommission,2020-11-16,11,"Adjournment
Commissioner Shabazz moved approval of adjourning the meeting.
Commissioner Little seconded the motion.
Commissioner Shabazz withdrew his motion since a motion is not needed.
The meeting was adjourned at 8:18 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
November 17, 2020
11",OpenGovernmentCommission/2020-11-16.pdf
OpenGovernmentCommission,2020-12-14,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY
DECEMBER 14, 2020
-
-
7:00 P.M.
Chair Tilos convened the meeting at 7:04 p.m.
ROLL CALL -
Present:
Commissioners Little, Pauling, Shabazz, Schwartz and
Chair Tilos - 5. [Note: The meeting was conducted via
Zoom.]
Absent:
None.
[Staff present: Chief Assistant City Attorney Michael Roush,
Assistant City Attorney John Le; and City Clerk Lara Weisiger]
Oral Communications
None.
Regular Agenda Items
3-A. Minutes of the November 16, 2020 Meeting
Commissioner Schwartz stated he noted some changes in the minutes.
The City Clerk acknowledged and confirmed the edits.
Commissioner Schwartz moved approval of the minutes.
Commissioner Little seconded the motion which carried by the following roll call vote:
Commissioners Little: Aye; Pauling: Aye; Shabazz: Aye; Schwartz: Aye; Chair Tilos: Aye.
Ayes: 5.
3-B. Consider the Subcommittee Proposal Regarding Potential Amendments to Article
VIII (Sunshine Ordinance) of Chapter Il (Administration) of the Alameda Municipal Code
to Replace the Null and Void Remedy and Consider Sending the Proposal to the City
Council as the Commission's Recommendation
Commissioner Schwartz expressed his appreciation to Commissioner Pauling, the City
Clerk, and the Chief Assistant City Attorney for working with him on the proposal; stated
the proposal captures all the issues discussed at the June 2020 meeting; thanked former
Commissioner Paul Foreman for his ideas which lead to drafting the amendments; stated
that he did additional research into the argument that the Commission could not
implement a requirement of a supermajority vote via an ordinance; he researched the
issue extensively and found it is incorrect; the Charter actually states: ""the vote of three
members of the Council, except as otherwise provided, shall be necessary for any act of
or by the Council;"" the phrase is very important because it does not create a sacred
Meeting of the
Open Government Commission
December 14, 2020
1",OpenGovernmentCommission/2020-12-14.pdf
OpenGovernmentCommission,2020-12-14,2,"requirement of three votes for all matters that cannot be changed without a Charter
amendment; the proposal lays out a host of other examples requiring a supermajority;
things as basic as the Council suspending Rosenburg's Rules of Order, which governs
proceedings, needing a four-fifths vote; there are other instances in the Charter that
specifically include the phrase ""except as otherwise provided;"" discussed the sparse
authorities that were presented against the proposals; stated the case authorities do not
suggest that the Commission cannot make such a proposal; in fact, in some ways the
arguments support the proposal.
Chair Tilos stated that he appreciates all the examples provided to defend the
subcommittee's proposal; it gives the Council a lot to support the recommendation.
In response to Vice Chair Shabazz's inquiry regarding the proper meeting process, Chair
Tilos stated since it is more cumbersome with Zoom, he prefers to chair the meetings
more informally and will not require Commissioners to raise hands or to be called to
speak; he will open up the discussion for Commissioners to make opening comments;
then, after the presentations, will allow Commissioners to jump into discussion.
Commissioner Shabazz stated that he is interested in asserting directly what the
Commission is attempting to do with the proposal rather than getting into the details.
Commissioner Little stated she appreciates how clear and concise the proposal is;
thanked the subcommittee for finding another legislative statute for the Commission to
proceed with teeth in the ordinance; stated that she fully supports the proposal.
Commissioner Pauling acknowledged Commissioner Schwartz for his efforts in the legal
aspects of the proposal and the City Clerk for clarifying the timeline; stated that she is
thrilled with the final product and fully supports it.
Commissioner Schwartz stated the proposal accomplishes what Commissioner Shabazz
wanted by presenting the basics before getting into the weeds.
Commissioner Shabazz clarified his comment about starting with basic information was
in reference to making sure viewers are up to speed on the background of the issue,
especially if they have not read the staff report or proposal; gave an example: someone
watching the meeting may not know what the conversation is about if they did not read
the report; providing the background at the start is helpful.
Commissioner Schwartz concurred with Commissioner Shabazz and summarized the
issue; stated the Commission nullified an ordinance which was voted upon by the City
Council and determined there was not proper notification to the public; then, the ""null and
void"" authority of the Commission was removed from the Sunshine Ordinance; the
Council agreed it was inappropriate for the Commission to have said authority because it
usurps the legislative power of the Council; the Commission did not agree with the
determination; Council sent the ordinance back to the Commission to find a new remedy
to provide teeth to the ordinance in the absence of ""null and void;"" the proposal which will
Meeting of the
Open Government Commission
December 14, 2020
2",OpenGovernmentCommission/2020-12-14.pdf
OpenGovernmentCommission,2020-12-14,3,"be voted on tonight would have the Commission refer back to the Council a matter which
was not properly noticed to cure and correct the improper notice and for the City Council
to reject the Commission's recommendation to cure and correct, it would require a four-
fifths supermajority.
Chair Tilos stated Commissioner Schwartz's synopsis sums up what the Commission has
been dealing with for two years.
Commissioner Shabazz stated some of the proposed language refers to the City Council,
inquired whether the cure and correct applies to other bodies of the City and what would
be the distinction.
Commissioner Schwartz responded if the Commission finds a violation, steps necessary
to cure and correct can be recommended to the originating body unless it has already
been cured and/or corrected.
In response to Commissioner Little's inquiry, Commissioner Shabazz stated the focus
has been related to the power of the City Council; he overlooked the language which
stated the ""originating body;"" he is concerned about whether the City Attorney's office
would support the Commissions' recommendation.
Chair Tilos stated the subcommittee drafted a proposal for the full Commission in order
to have more substance than just a recommendation from a subcommittee of two
members; he hopes to have a motion on the proposal after Commission discussion.
Commissioner Shabazz concurred with Chair Tilos; inquired whether the written analysis
will support the recommendation of the Commission or will there be something different
when the proposal goes to the City Council.
The Chief Assistant City Attorney responded, at a minimum, the Commission's
recommendation will be taken to the Council; the City Attorney's office will do a deep
analysis of what the subcommittee and full Commission proposed; if the Attorney's office
finds a legal way to support it, it will make the recommendation to the Council.
Commissioner Schwartz moved approval of the subcommittee recommendation.
Commissioner Shabazz seconded the motion which carried by the following roll call vote:
Commissioners Little: Aye; Pauling: Aye; Shabazz: Aye; Schwartz: Aye; Chair Tilos: Aye.
Ayes: 5.
Oral Communications
Chair Tilos re-opened Oral Communications because the speaker was unable to join the
Zoom meeting at the time.
Meeting of the
Open Government Commission
December 14, 2020
3",OpenGovernmentCommission/2020-12-14.pdf
OpenGovernmentCommission,2020-12-14,4,"Stated that he is disappointed in the level of transparency throughout City Government;
the OGC is supposed to be about improving transparency; he would like to know if there
is a way the public could communicate in writing and have it considered by the
Commission; he would like clarification on publication of reports, specifically on the police
reform committee report: Jay Garfinkle, Alameda.
Chair Tilos stated the method to provide communications to the Commission is via email.
The City Clerk concurred with Chair Tilos, stated an email can be sent to the Commission
as a non-agenda oral communication item; the problem is the Commission cannot engage
in discussion of a non-agenda item; it would be up to a Commissioner to agendize the
item.
Chair Tilos concurred; explained to Mr. Garfinkle that after receiving communications on
a non-agenda item, a Commissioner could propose to place that item on the agenda to
be discussed.
The City Clerk further clarified that the item would be agendized to a future meeting.
Commissioner Shabazz provided an example of how the process works; stated that he
took Mr. Garfinkle's suggestion about having a flow-chart for the PRA process and tried
to create one; the item would not necessarily be one that needs to be agendized if there
is another method of addressing the issue; another example was that he, as a community
member, would go before various boards or commissions and make specific
recommendations for issues to be agendized; if that process is appropriate for the OGC,
perhaps it is something that can be adopted.
Chair Tilos stated the OGC used to only have two scheduled meetings, and would only
meet if there was a complaint filed; if there are no meetings on the schedule, this is not
the place to be discussing other issues that are not complaints; some of the matters
regarding transparency or reporting should go to Council; the main objective of the OGC
is to determine if something is broken in the Sunshine Ordinance.
The City Clerk stated the next scheduled meeting is in February; if a member of the public
wants to submit a comment to pass on to the Commission before or after the agenda is
published, she would share it as a non-agenda item communications; the Commission
probably should not go too far into discussion on this issue since it is not on tonight's
agenda; she is happy to discuss the issue offline with Mr. Garfinkle and Chair Tilos.
Chair Tilos stated Mr. Garfinkle can send his concerns to the Clerk or Commission to be
addressed further.
Commission Communication
Commissioner Pauling stated she would like to thank and acknowledge everyone; she
had a wonderful learning experience from being on the Commission for the past year; she
Meeting of the
Open Government Commission
December 14, 2020
4",OpenGovernmentCommission/2020-12-14.pdf
OpenGovernmentCommission,2020-12-14,5,"truly appreciates the intelligence and curiousness of the Commissioners and how the
topics were handled.
Chair Tilos thanked Commissioner Pauling for stepping in during an eventful time and for
all her help serving on the subcommittee.
Commissioner Little thanked the Commission and stated she is excited to see who will
be replacing her and Commissioner Pauling; offered her assistance if ever needed, which
would no longer be a violation since she is no longer on the Commission; she will be
sworn in on the School Board tomorrow night; invited anyone who would like to attend.
Chair Tilos wished Commissioners Little and Pauling well in their next endeavors and
thanked them for their time on the Commission.
Commissioner Shabazz stated that he would like to have the PRA Annual Report on the
February meeting; he would also like to add crafting some language that could potentially
be in the City Charter or somewhere else to make sure the PRA Annual report is
continually done, especially after the comments from tonight regarding transparency and
the goals of the Sunshine Ordinance.
The Chief Assistant City Attorney stated both the PRA Annual Report and the Annual
Report on Complaints are already on the February agenda.
In response to Commissioner Shabazz's inquiry, the Chief Assistant City Attorney stated
he is retiring but will still be around in January and February.
Adjournment
Chair Tilos adjourned the meeting at 8:18 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
December 14, 2020
5",OpenGovernmentCommission/2020-12-14.pdf
OpenGovernmentCommission,2021-02-01,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY
FEBRUARY 2, 2021
7:00 P.M.
Chair Tilos convened the meeting at 7:00 p.m.
ROLL CALL -
Present:
Commissioners Chen, LoPilato, Reid, Shabazz, and
Chair Tilos - 5. [Note: The meeting was conducted via
Zoom.]
Absent:
None.
[Staff present: Chief Assistant City Attorney Elizabeth Mackenzie,
Assistant City Attorney John Le; and City Clerk Lara Weisiger]
Oral Communications
None.
Regular Agenda Items
3-A. Minutes of the December 14, 2020 Meeting.
Chair Tilos stated that since only he and Commissioner Shabazz were present at the
December meeting, one of the new Commissioners can be the third vote if they read the
minutes.
The City Clerk concurred with Chair Tilos, stated that a new Commissioner could watch
the video and confirm the minutes are accurate.
Commissioner Reid stated that she watched the meeting video and moved approval of
the minutes.
Commissioner LoPilato stated she also watched the video and is comfortable voting on
the minutes.
Commissioner Shabazz seconded the motion.
Chair Tilos made brief comments on the minutes regarding his method of running the
meetings; requested clarification about the Commission's recommendation to bring an
item [subcommittee enforcement proposal] before the Council, which did not happen.
In response to Chair Tilos' inquiry, Vice Chair Shabazz stated he interpreted the item as
it was the intent of staff to bring the item back to the OGC for the opportunity to provide
input on the recommendations.
Meeting of the
Open Government Commission
February 2, 2021
1",OpenGovernmentCommission/2021-02-01.pdf
OpenGovernmentCommission,2021-02-01,2,"Chair Tilos provided background to the new Commissioners; stated a decision was made
by the Commission to forward an item to the City Council; staff deliberately did not forward
the item to allow the new Commissioners to be part of the conversation; expressed
frustration that it was not forwarded; inquired whether the City Attorney's office had any
comments.
Vice Chair Shabazz stated the discussion may not be appropriate right now since this
item is the approval of the minutes.
Commissioner Chen stated the question is whether the minutes are accurate or not and
can be approved; the Commission can then proceed to item 3-C; the fact that an action
was not taken is not part of the minutes per se; the minutes are just conveying what the
Commission recorded as to what happened at the last meeting.
Chair Tilos stated that he wanted to correct his statement recorded in the minutes
regarding the OGC's objective to determine and fix anything broken in the Sunshine
Ordinance; clarified that he meant to use the word ""violation"" instead of ""broken.""
Vice Chair Shabazz suggested deferring the minutes and moving on to other business
since Chair Tilos has some concerns regarding his own statements in the minutes; stated
that he does not feel comfortable with changes being made to what was actually stated
although he appreciates and understands the intention of communicating clearly.
In response to Commissioner LoPilato's inquiry, Chair Tilos stated he would accept the
minutes as is, but just wanted to make the clarifications.
The City Clerk stated Chair Tilos' clarifications are noted and will be reflected in the next
set of minutes.
On the call for the question, the motion carried by the following roll call vote:
Commissioners Chen: Abstain; LoPilato: Aye; Reid: Aye; Shabazz: Aye; Chair Tilos: Aye.
Ayes: 4 - Abstentions: 1.
3-B. Accept the Annual Public Report and Report Concerning Responses to Public
Records Act Requests Referred to the City Attorney's Office in 2020.
The Assistant City Attorney stated the report is perfunctory and comes every year.
Vice Chair Shabazz inquired whether public comment should come before Commissioner
discussion.
The City Clerk stated the typical flow is for the Commission to ask questions prior to public
comment, take public comments, and the Commission can move into discussion after
public comment.
Meeting of the
Open Government Commission
February 2, 2021
2",OpenGovernmentCommission/2021-02-01.pdf
OpenGovernmentCommission,2021-02-01,3,"Commissioner LoPilato stated references to 2019 should be changed to 2020; inquired
whether the PRA chart only shows requests that actually rise to the City Attorney's office,
to which the Assistant City Attorney responded in the affirmative.
In response to Commissioner LoPilato's inquiry, the Assistant City Attorney stated the
chart encompasses requests that went to the different departments; the City Attorney's
office reviews the requests to determine whether or not an exemption applies; the City
Attorney's office has reviewed every request on the chart.
The City Clerk clarified requests that trickle up to the City Attorney's office require review;
simple PRAs handled by other departments are not included on the chart; each
department responds to many other requests that do not need review by the City
Attorney's office.
Vice Chair Shabazz stated three out of four complaints were withdrawn; from his own
experience in filing a complaint, there was encouragement to withdraw his complaint;
inquired whether there was any communication with the complainants to withdraw their
complaints.
The City Clerk responded in the affirmative; stated the process when a complaint is filed
involves staff trying to work with the complainant to resolve the issue to get them
satisfaction without having to go before the OGC.
Vice Chair Shabazz inquired what a voluntary suspension is, to which the City Clerk
responded it was a request for records with an agreement to do some follow-up; stated
the request was suspended until the follow-up was completed, rather than withdrawn.
The Assistant City Attorney concurred; stated the request involved records, which the
complainant decided to voluntary suspend until further notice.
Vice Chair Shabazz inquired what the status of the suspended request is now and
whether there was further communication from the complainant.
The Assistant City Attorney responded his understanding is that the Attorney assigned to
the request reached out to the complainant and has not heard back.
Stated the two reports do not provide the information they purport to provide; encouraged
alleged violations be listed; he thinks it is inappropriate for the City Attorney's office to
encourage withdrawals of complaints; all complaints should be heard to allow the
Commission to observe and respond to patterns: Jay Garfinkle, Alameda.
In response to Chair Tilos' inquiry, the City Clerk responded information provided is
electronically produced.
Commissioner Reid inquired whether there is a reason why other PRAs are not included
in the report.
Meeting of the
Open Government Commission
February 2, 2021
3",OpenGovernmentCommission/2021-02-01.pdf
OpenGovernmentCommission,2021-02-01,4,"The City Clerk responded the Commission provided input into the format of the report and
selected the PRAs that rose to the top in terms of importance; each department has their
own PRA log; the requests received by her office and other departments are
straightforward and simple; the ones brought to the City Attorney's office are more
complex; therefore, the Commission specifically requested a list of those PRAs.
Commissioner Chen inquired whether there is a satisfaction survey done after complaints
are resolved, to which the City Clerk responded there was a formal survey process years
ago but it has not been carried forward in the budget; she receives informal follow-up from
requests that are satisfactorily completed.
Vice Chair Shabazz stated reviewing the PRA logs and seeing who the frequent
requestors are has taught him a lot about Alameda politics; he reached out to a few of
the requestors and wanted to share some feedback; one of the glowing reviews from a
requestor was: ""if the City continues to hire people like those currently on staff, I remain
confident that those of us in the general public who seek information will be able to get
it;"" he is concerned that the report focuses on the requests that specifically went to the
City Attorney's office; he does not recall it was the initial intent; the Sunshine Ordinance
designates the City Clerk as the primary custodian and the City Attorney's office is
designated for the Police Department; based on his own experience and after reading the
report, there have been a number of requests that may not have come forward that may
have been beneficial to have recorded in the report; he does not know how challenging it
would be to compile the data; in order to be able to understand whether or not the
community is being fully served by departments outside of the City Clerk and City
Attorney's offices, it would be helpful to know how many PRAs are actually coming
forward; adding another column, which shows which departments the PRAs originated
from, would be valuable information.
The City Clerk stated most of the requests, which are forwarded to the City Attorney's
office, originate from her department; any requests that ask for emails must be reviewed
by the City Attorney's office and are automatically forwarded; the City Clerk's office is
working with the City Manager's office to implement a portal for record requests to be
done through the City's website, which should simplify the tracking process as well.
Commissioner LoPilato suggested more appropriate language to replace ""voluntarily
suspended"" might be ""abandoned by complainant;"" thanked Vice Chair Shabazz and
former Commissioner Little for all their contributions and efforts on the PRA report;
inquired whether there is an analytical framework for assessing PRAs; mentioned the
importance of metrics to be able to track whether issues are moving in the right direction
and if there is a failure rate; she would like to see a column, which identifies what is
happening earlier in the pipeline; there should be a way to gauge whether departments
are repeatedly overlooking requests; it would be helpful if a broader set of data could be
built into the portal; it is important to implement the Sunshine Ordinance appropriately;
inquired whether requestors are advised of the complaint procedure if they are not
satisfied with the resolution of their request.
Meeting of the
Open Government Commission
February 2, 2021
4",OpenGovernmentCommission/2021-02-01.pdf
OpenGovernmentCommission,2021-02-01,5,"The City Clerk responded the complaint procedure would be included somewhere in the
portal.
Commissioner LoPilato stated she would like to find a way to use the reports to shine a
light on whether departments might be over zealous in rejections of PRAs or not as
responsive as the Commission would like; she would like to hear if there are any other
motions on whether the reports can be accepted as is or if changes are needed.
Chair Tilos stated the reports have come a long way, but more information can be added;
the portal idea is good; perhaps the issue can be agendized for a future meeting and the
Commission can receive an update on the portal; he is leaning toward accepting the
reports as is but would like to hear from other Commissioners.
Commissioner Reid stated whether or not a full report of all the PRAs including the
columns is produced, the data feels incomplete; she is glad the City will plan to adopt
a
new method to capture the data more seamlessly.
Vice Chair Shabazz concurred with Commissioner Reid; stated that he would like to see
additional information on context regarding the specific complaints; there seems to be an
omission and he is curious about the ""voluntary suspended"" case; he is leaning towards
not accepting the report, requesting additional information and then moving it forward; it
could be accepted with the understanding that going forward specific information will be
added; he is skeptical about a tentative approval; if it is not burdensome, he would like to
request an additional column showing where PRAs originated and data where there are
blanks; he does not want to create more work for staff, but the report paints an incomplete
picture as is.
Chair Tilos reiterated the Commissioner's comments and inquired whether two separate
pieces could be voted on, to which the City Clerk responded in the affirmative.
Commissioner LoPilato stated because the ""voluntary suspended"" language is
ambiguous, she is leaning more towards getting more information and the Commission
would be able to give concrete and specific direction as to what that would look like; she
would also like to know if there are any deadlines to avoid putting the City Attorney's office
in a non-compliant position.
The Assistant City Attorney stated that he is able to provide more context regarding the
""voluntary suspended"" complaint; the Attorney assigned to the case reached out to the
requestor and the requestor asked for additional information; the Attorney and requestor
were going to work out an agreement in terms of policy for the particular category of
records; the Attorney asked if the requestor would voluntarily suspend the complaint in
the interim until the issue is resolved; the City Attorney's office did consider using the term
""abandoned;"" the Attorney reached back out to the requestor and did not hear anything
further; changes can be made to reflect the information he just conveyed; he is willing to
dive deeper if the Commission makes the request.
Meeting of the
Open Government Commission
February 2, 2021
5",OpenGovernmentCommission/2021-02-01.pdf
OpenGovernmentCommission,2021-02-01,6,"Chair Tilos suggested approving the report as is, with a motion for the voluntary
suspended complaint be agendized for the next meeting to check the status with the City
Attorney office.
Vice Chair Shabazz stated a complaint dated May 12, 2020 was for APD Arrest
Information; Request 20-40 dated April 15, 2020 was for APD Arrest Information; inquired
whether the request was the PRA that lead to the ""voluntary suspended"" complaint, to
which the Assistant City Attorney responded in the affirmative.
Vice Chair Shabazz moved approval of deferring the approval of the report to the next
meeting in order to have the City Attorney provide information about the specific instance
and to provide any additional context regarding the withdrawn cases as consistent with
previous annual reports.
In response to Chair Tilos' inquiry, Vice Chair Shabazz re-stated his motion: to defer the
acceptance of the annual report with the direction to the City Attorney's office to provide
additional context and factual information regarding the ""voluntary suspended"" case, and,
as consistent with previous annual reports, provide any additional context about the
withdrawn complaints.
Commissioner Chen seconded the motion.
In response to Chair Tilos' inquiry, the City Clerk stated there is no specific deadline; the
annual report has typically been presented at the Commission's first meeting of the year
in February.
Vice Chair Shabazz stated he really likes the table and does not want to mandate the
format, but asks that the information be accurate.
On the call for the question, the motion carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Reid: Aye; Shabazz: Aye; Chair Tilos: Aye.
Ayes: 5.
In response to Chair Tilos' inquiry, the City Clerk stated the Commission can provide a
specific date to hear the matter; the first Monday of every month is now reserved in case
the Commission has business; this issue can be considered business and does not have
to wait until the specific established date of February or October; any direction the
Commission provides will be welcome.
Vice Chair Shabazz stated the Commission could schedule the meeting around the
timeliness of the City Attorney's office.
Commissioner Chen stated if there is a specific pattern of requests that are asked
repeatedly, the Commission should anticipate that there will be more questions about
more controversial items; items should be clustered together instead of listed by when
Meeting of the
Open Government Commission
February 2, 2021
6",OpenGovernmentCommission/2021-02-01.pdf
OpenGovernmentCommission,2021-02-01,7,"the requests came in; that transparency and information should be available on the City's
website; it may be a bit more work for staff on the front end, but on the back end the
readily public has access to the information.
Chair Tilos concurred with Commissioner Chen; stated he would prefer to receive the
report in a format that can be filtered rather than in a PDF.
Commissioner Chen stated the report format is not an issue; that she would like to be
more transparent in the future ahead of the game; as an example, if there were 10
requests for information on the Wellness Center, she would like to see a paragraph stating
there were 10 questions relating to the same issue, which indicates the public's concern
regarding the topic; the City should be transparent about the context, rather than just
listing the requests; she would like to see how the Commission could improve services
by looking at all the different questions that keep popping up repeatedly; there should be
a way to foresee these things in the future and be more transparent up front.
Commissioner Reid concurred with Commissioner Chen's points; stated Commissioner
Chen's concerns could be achieved through a filter and is doable.
The Assistant City Attorney stated there are some practical considerations regarding the
suggestions; the sorting of the spreadsheet sounds like a great idea, but meta data needs
to be produced in order for that to happen; for each request, tags would need to be
created that can be coded and then sortable; the task is achievable, but is comprehensive
and at a considerable cost; another consideration is augmenting the report to include all
requests, not just ones that come through the City Attorney's office; to the extent that this
will impact how other departments handle and document requests, it is difficult for the City
Attorney's office to commit the other departments; the comments and ideas are good, but
how to effectuate it is also important.
The City Clerk stated documents posted for the agenda are converted to PDF; there
would have to be a different distribution if the Commission would like Excel or another
sortable format; there are definitely repeated requests, but sometimes even repeated
requests on the same topic are for separate pieces of information or different documents;
the system devised by the City Attorney's office is very specific to their office; her
department uses a simple tracking system; other departments use a similar tracking
system; sometimes not every request is captured, especially, if it was a simple request
which was completed immediately; the Clerk's office has compiled an online database of
documents for requests that was built over time, which includes campaign filings, all of
the Council records and legislation.
Vice Chair Shabazz stated that he appreciates the explanation from the Assistant City
Attorney and the City Clerk; he understands the challenges of the task and does not want
to regulate the processes, but wants to encourage information to be available, get the
metrics, and have transparency without telling staff how to do their jobs; he is concerned
that the information is only the requests for the City Attorney's office; his request for the
2013 through 2018 PRAs did not come from the City Attorney's office; the list is
Meeting of the
Open Government Commission
February 2, 2021
7",OpenGovernmentCommission/2021-02-01.pdf
OpenGovernmentCommission,2021-02-01,8,"incomplete; he is not sure how to address the issue and does not want to recommend
something too laborious or highly intensive; he would like to recommend having
something a little more comprehensive in the future so that it will be useful for the
Commission in evaluating the annual report.
The City Clerk stated perhaps the reason Vice Chair Shabazz did not receive the
response from the City Attorney's office is because they had not started the tracking
process yet; the City Attorney's office started after the direction from the OGC; the
direction of incorporating all of the requests and adding the column seems to be what the
Commission wants going forward; the Commission could also provide direction to have
this item come back; it may have been spottier in the past since the City Manager did not
to pass on the request to department heads.
Commissioner LoPilato suggested a streamlined way to get the information which may
help to spot issues the Commission may want to address; stated that she is curious to
hear some baseline stats: adding the column for the originating department, the number
of requests received, number of requests fulfilled, and number of instances in which a
request was denied without sign-off from the City Attorney's office; this would help identify
instances where people have not receives responses or the denial of a records request
did not surface to the City Attorney's office; a tiny amount of over-arching statistics that
can be obtained from each department would be helpful to see if there really is a problem;
those numbers could identify some gaps if there are any.
In response to Chair Tilos' inquiry, the Assistant City Attorney stated it seems reasonable
to add the extra columns which brings it more in line with Section 2-98.6 which established
the annual report; Vice Chair Shabazz mentioned the report is essentially a tally for
comparative and statistical purposes; perhaps a next step is to survey the departments
and see what they are currently doing, check with staff and report back; it may give the
Commission more ideas on how to track the data.
Chair Tilos stated he is leaning toward not making a motion on the item and referring it
back to staff for the additional column and to survey the departments.
In response to Chair Tilos' inquiry, the City Clerk stated the Commission could proceed
with the direction or formalize it in a motion.
Chair Tilos stated he would just like to provide direction to staff.
3-C. Discuss and Provide Recommendations Concerning Potential Amendments to
Article VIII (Sunshine Ordinance) of Chapter Il (Administration) of the Alameda Municipal
Code, as Amended, to Replace ""Null and Void"" Remedy.
In response to Chair Tilos' inquiry, the Assistant City Attorney stated the City Attorney's
office did receive the Commission's input and the motion was clear; as was noted, the
Commission composition changed, so it was best to hold it in order to be able to receive
input from all the new members before sending it to the Council; all of the input that has
Meeting of the
Open Government Commission
February 2, 2021
8",OpenGovernmentCommission/2021-02-01.pdf
OpenGovernmentCommission,2021-02-01,9,"been provided by the previous Commission remains intact and will be transmitted at the
appropriate time once the process concludes; staff simply wanted to provide the new
members an opportunity to weigh in.
In response to Chair Tilos' inquiry, Vice Chair Shabazz stated what happened at the last
meeting is reflected in the minutes.
Stated since 60% of the Commission members are new, the report submitted to Council
should be the work product of the new commissioners; he is concerned that the City
Attorney granted the City Council immunity from the OGC's oversight; urged the new
Commission to stick to the original mandate of providing transparency: Jay Garfinkle,
Alameda.
Stated the issue started in October of 2018; since that time, nothing has happened except
the Commission has tried to fight for its original enforcement power; the Commission has
only received delay and obstruction from the City Attorney's office; he disagrees with Mr.
Garfinkle that the Commission should start over; the City Attorney's office has made it
clear that there is no pathway for the Commission to have any more influence on
decisions; urged the Commission to work with the City Attorney's office on the John Knox
White proposal if they want to move forward: Paul Foreman, Alameda.
Chair Tilos stated he would like to propose making a motion to have staff bring to Council
the original resolution voted on by the previous Commission and see if there is a second;
if there is no second, the new Commission could provide feedback and a different motion.
Vice Chair Shabazz moved to affirm the previous Commission's decision to forward the
Subcommittee's recommendations to the City Council.
Chair Tilos seconded the motion.
Under discussion, Vice Chair Shabazz stated he found it unusual that the item came back
to the Commission without going to the Council; noted the Chair and Vice Chair was not
brought forward; stated that he does appreciate the intention of enabling the new
Commissioners to participate in the discussion; the subcommittee's work was a great
attempt to move forward and he is interested in what the Commissioners have to say; he
hopes the item can be brought to Council.
Commissioner Reid stated that since she is new on the Commission, she would
appreciate the opportunity to do some research on the specific context; she encouraged
a commitment from the Commission to meet next month to collaborate and come up with
a resolution.
Commissioner LoPilato stated that she did not expect the chance to be able to weigh in
on the item; since seeing it on the agenda, she has been knee-deep in the archives of
the Commission and has a pretty good understanding of the context; thanked everyone
for their work and efforts on the issue; she understands the frustration; there is a lot of
Meeting of the
Open Government Commission
February 2, 2021
9",OpenGovernmentCommission/2021-02-01.pdf
OpenGovernmentCommission,2021-02-01,10,"investment in the issue; the sequencing on how the work happened is actually a root of
the problem; it was not collaborative and became adversarial; she does not think the
method was effective in reaching the end point hoped for by the Commission; she is
concerned and does not want the Commission to get so bogged down with retaining its
enforcement authority or taking the reins back from the City Attorney's office and
potentially squandering an opportunity to make a recommendation that is actually going
to get adopted by the City Council; in the staff report, the City Attorney's office has stated
the super-majority requirement violates the Charter even though the subcommittee
proposal did a great job in explaining why it does not; it is clear from the video and also
reflected in the minutes that the City Attorney's office stated they would bring the issue to
Council if they could find legal arguments for it; where it stands now, the City Attorney's
office found legal problems and wanted to bring it back to the Commission for
consideration; she is concerned that marching forward with what was done might result
in the Commission losing the opportunity to actually provide feedback and craft a
replacement remedy which the Commission would like; she would like to discuss issues
with the City Attorney's office, as well as some problems she found in the subcommittee
proposal; she thinks a lot can be done with the Knox White proposal.
Chair Tilos inquired whether the only reason the City Attorney's office did not present the
proposal to the City Council was to give the new Commissioners the opportunity to
provide their input, to which the Assistant City Attorney responded in the affirmative;
stated what the City Attorney's office has said from the onset is that the City Attorney's
office is obligated to analyze any proposal the Commission puts forth for potential issues;
the City Attorney's office remains committed to conveying the Commission's proposal to
the Council subject to legal analysis of its viability.
Commissioner LoPilato stated the staff report outlines that the subcommittee's support
for the original position requiring the Council to act by super majority runs afoul of the
Charter; read the proposal; stated that she also sees reference to special counsel; the
packet itself is very confusing; she is hopeful that she did not invent that there are some
concerns regarding the super majority requirement.
Chair Tilos stated there were concerns in November and the subcommittee addressed
the issues in the December meeting.
The City Clerk provided context as to why there was no legal opinion on the proposal
when it came forward from the subcommittee; clarified that the subcommittee provided
the proposal the day the packet was published, so the City Attorney's office had no time
to do a legal review; now with the benefit of time, the City Attorney's office was able to
weigh in.
Commissioner Chen stated that she has spent 30 years going to City Council meetings
in the County and beyond representing public health policies; as a professional advocate
for public health and watching numerous Council meetings, she strongly feels that all of
the actions were voluntary, in terms of Council trying to comply with the true intent of the
Brown Act, which provides for transparency and people being notified in a timely manner;
Meeting of the
Open Government Commission
February 2, 2021
10",OpenGovernmentCommission/2021-02-01.pdf
OpenGovernmentCommission,2021-02-01,11,"her concern is if there is just going to be a legal fight deep in the weeds, she would just
like to get out the weed whacker and ask the question of how to make it so all the public
boards and commissions follow the intent of the Brown Act, which is recognizing that it is
the people's government; it is the people's business they are conducting; when legislative
bodies decide to make decisions without adequately noticing the public, there has to be
some recourse; she would like to move forward with a solution that works for everyone;
one where there is trust in Councilmembers and Commissioners to do their due diligence;
she feels trust was lost and would like to find a way to rebuild it.
Vice Chair Shabazz noted Roberts Rules of Order requires a motion and second prior to
having a conversation, which was his intention in making the motion, not to subvert the
new Commissioners from providing input; acknowledged the research done by
Commissioners LoPilato and Chen to go through and better understand the issue; he
concurs with Commissioner Chen's comments regarding rebuilding trust; inquired
whether if something else is found to be in violation of the Charter, will it be addressed;
stated that he is interested in hearing from the Council whether or not the supermajority
requirement is legal; the Charter was recently cleaned up so he is surprised if this issue
was missed.
In response to Chair Tilos' inquiry, the City Clerk stated the Commission does not have
to strictly adhere to Roberts Rules of Order; the Council adopted using Roberts Rules of
Order, which was reviewed by the OGC, but the OGC did not specifically adopt adhering
to it; according to the rules, it is correct to state the motion in the beginning to have a
discussion, and substitute motions can also be made.
Commissioner LoPilato stated that she would like to suggest taking the best parts of what
was offered up in December, parts that are streamlined and elegant from the Knox White
proposal, and then adding in some other creative items to add some meat; the City
Attorney's flagging of some issues tells her that City Council may have some issue with
it as well; she would like to consider having an opportunity to ask other questions of the
City Attorney's office and bring the item back next month; maybe an alignment can be
reached tonight on a modified proposal; she is concerned that the language in the
subcommittee proposal would make it impossible to make a complaint about a noticed
agenda item because of the timing; she understands the proposal was pushed through
with a desire to be done with it, but there are still issues she would like to discuss; a
compromise could be coming up with a way to make votes very public; a way for the
public to see whether the City Council or other Boards or Commissions are running
roughshod over the OGC's recommendations; she believes there may be other options
that may have sharper teeth without running into legal issues; she does not support
moving forward with the December proposal because she sees problems with it and it is
not as strong as what the Commission could potentially put forward with further thought.
Vice Chair Shabazz withdrew his motion.
In response to Chair Tilos' inquiry regarding timing, the Assistant City Attorney stated it
depends on what the Commission, as a whole, feels needs to be addressed prior to the
Meeting of the
Open Government Commission
February 2, 2021
11",OpenGovernmentCommission/2021-02-01.pdf
OpenGovernmentCommission,2021-02-01,12,"meeting; he heard Commissioner LoPilato mention a menu of concerns and questions;
once there is a sense of what the Commission would like to address, staff will be able to
assess whether coming back at the next meeting will be enough time.
Chair Tilos inquired whether the Commission would be able to have the follow up
information for the four complaints by the March meeting, to which the Assistant City
Attorney responded in the affirmative; stated it would definitely be feasible; he also heard
the Commission talk about getting input on potentially broadening the scope of the public
records requests; inquired whether there should be two separate meetings to address
both agenda items; stated it would depend on the nature of the questions being asked,
but he would rather do it all in one meeting.
Commissioner LoPilato moved approval of identifying big-picture questions to pose to the
City Attorney's office in order to determine whether it is feasible to reconvene in March
with concrete language to talk about.
Commissioner Chen seconded the motion.
In response to Vice Chair Shabazz's inquiry, Commissioner LoPilato stated she is
amenable to any friendly amendments to her motion to continue discussing beyond
questions posed to the City Attorney's office.
Commissioner LoPilato stated she is thinking of the questions that would help frame how
to move forward include: 1) whether the City Attorney's office would be comfortable
recommending anything that contains a super majority requirement; 2) she is curious to
hear a little bit about benchmarking of what other jurisdictions have done regarding a null
and void remedy; and 3) have the City Attorney's office elaborate on the risks are of
getting it wrong; it would benefit the Commission and the public to be grounded in the
understanding of why it is taking so long to get it right; she would also like the Commission
to consider the idea of posting votes taken on OGC recommendations and whether there
are legal concerns around it.
Chair Tilos inquired what the Commissioners' thoughts are on continuing the meetings
beyond a certain time or if Commissioners prefer hard stops.
Vice Chair Shabazz expressed support for never having all-nighters.
Commissioner Reid stated that she prepared a presentation for the meeting.
Commissioner Chen stated she suffers from Zoom fatigue; she does not mind meeting
more frequently than twice a year; suggests dividing the tasks so everyone is fresh; she
would like to punt to the next meeting.
Chair Tilos inquired whether the Commissioners would be agreeable to set a hard stop
of 9:00 p.m. for the meetings.
Meeting of the
Open Government Commission
February 2, 2021
12",OpenGovernmentCommission/2021-02-01.pdf
OpenGovernmentCommission,2021-02-01,13,"Commissioner Reid stated that she is okay with going as long as possible to address all
the agenda items; her presentation is brief and she would like to be able to present
it
tonight.
Commissioner LoPilato stated that she wants to be respectful of the public attending the
meetings and knows how difficult it is to stay so late; the meeting should be conducted in
a
way in which members of the public who have come to make comments get to make
comments; the Commission should be respectful of the public's time even if it means
cutting off Commission discussion to move things forward.
Vice Chair Shabazz stated the meetings can be more efficient and can be prioritized if
there is a work plan or objectives and not arbitrarily choosing items over others; the first
question is what is the Commission's goal and what can be done to increase transparency
and accountability.
The City Clerk stated she does not think the Commission should specifically decide how
to conduct meetings tonight; perhaps an agenda item could be brought back to address
implementing rules.
Chair Tilos stated that he proposes to pause the discussion on 3-C to hear the next
agenda item until 10:00 p.m.; then, the Commission can make a call to continue the
meeting or continue the item to the next meeting; inquired whether there is a consensus
on pausing 3-C to take the next item.
In response to Vice Chair Shabazz's inquiry, the City Clerk stated the next item is
a
specific communication from a Commissioner and is thus listed under Commission
Communications as an agenda item.
In response to Chair Tilos' inquiry about public comment, the City Clerk stated there are
17 members of the public attending the meeting, but she does not know if they will be
speaking on the item until it is called.
In response to Chair Tilos' inquiry regarding pausing 3-C, Commissioner LoPilato stated
that in the interest of efficiency with respect to item 3-C, it might be beneficial to quickly
do a round robin of things to be prepared for the next meeting or perhaps create a
subcommittee or just collect the questions other Commissioners may want to offer the
City Attorney's office; she suggests closing the loop so there is something to come back
next time; then, move on to 4-A to hear from any members of the public.
Commissioner Chen stated she would like to be more fresh when discussing the item;
suggested continuing the item to the next meeting to talk about it exclusively and have
better, more thoughtful details to discuss; she would also like to allow Commissioner Reid
to do her presentation.
Vice Chair Shabazz stated any additional information the City Attorney's office can
provide would be helpful and important to include, especially information missing between
Meeting of the
Open Government Commission
February 2, 2021
13",OpenGovernmentCommission/2021-02-01.pdf
OpenGovernmentCommission,2021-02-01,14,"2011 through 2019; urged working together to figure out what would be an effective
replacement for the null and void remedy; he would like whatever the solution is to
encourage transparency and accessibility.
Commissioner Chen there was an accountability that was completely removed and the
Commission just wants to see what that accountability can look like.
The Assistant City Attorney inquired whether there is any desire to bifurcate the items
directed to staff; stated the issues related to the annual report can be at a subsequent
meeting; the null and void questions posed by Commissioner LoPilato and Vice Chair
Shabazz can be discussed at a next meeting.
Chair Tilos responded both subjects are pretty meaty and concurred with the Assistant
City Attorney; inquired whether two separate, dedicated meetings could be done.
The Assistant City Attorney responded in the affirmative, stated since there is no
requirement on follow-up with respect to the annual report, the item can be on an April
meeting; the null and void remedy item can be the focus of the March meeting so no
momentum is lost; he suggests converting the questions that have been posed by
Commissioner LoPilato and Vice Chair Shabazz in a motion to direct staff to come back
with a staff report to address the items; addressing Vice Chair Shabazz's comments, once
information is laid out regarding other jurisdictions, it might provide the Commission with
some ideas about the universe of options out there.
Vice Chair Shabazz stated he likes the suggestion of finding other jurisdictions and other
possible options; he is willing to put some energy collaboratively towards drafting a flow
chart; seeing it visually may assist with understanding the process at each step.
In response to Chair Tilos' inquiry regarding consensus on bifurcating the topics at two
separate meetings, Vice Chair Shabazz stated he is opposed to having the next meeting
solely on the null and void issue; there is currently an effort to do some police reform to
address racial equity and subcommittees have been going to some of the different
commissions; there are some things that may align with some of the issues of the OGC;
it would be beneficial to provide a space to discuss the issue within the OGC context.
Chair Tilos inquired whether Vice Chair Shabazz is recommending that the topics should
be heard together in March or April.
Vice Chair Shabazz responded it goes back to his comments about making a work plan
with goals and priorities and how that would reflect the timing; he suggests meeting in
March, April, and May to address all the issues, but prioritize the issues based on what
reaches the goals of what the Commission is about; there is conversation to be had about
oversight, which very much aligns with some of the functions of the Commission; based
on the timeline and priorities, he suggests providing a forum in March for the Commission
to learn about oversight issues, address the null and void issue in April, then address the
annual report in May or June.
Meeting of the
Open Government Commission
February 2, 2021
14",OpenGovernmentCommission/2021-02-01.pdf
OpenGovernmentCommission,2021-02-01,15,"Commissioner Reid stated she would be okay with discussing the null and void next
month, having monthly meetings and discussing the other agenda items in April; for the
respect of the participants' time, she suggests moving forward to allow for public comment
since it is getting late.
In response to Chair Tilos' inquiry, the Assistant City Attorney stated the direction he
heard was that the null and void issue would come back in March; and the annual report
would come back in April.
Commissioner LoPilato stated what she is hearing is the Commission is interested in
receiving some amount of feedback from the City Attorney's office with respect to the null
and void issue for the March meeting; there is general agreement that the annual report
is less urgent and whether it comes back in April, May, or June would depend on what
other time-sensitive issues may come up before then; she suggests adding an agenda
item for the March meeting to set a work plan.
In response to Chair Tilos' inquiry, the City Clerk stated a motion is not required since
staff can follow up on the consensus direction given.
Vice Chair Shabazz had a point of clarification regarding whether Commission
Communications are agenda items or referrals.
Commission Communication
4-A. Discuss Possible Amendments to Sunshine Ordinance Sections 2-91. 1(d)(3), 2-
91. 1(d)(4) and 2-91.1(d)(6) pertaining to Bodies (Commissioner Reid)
Commissioner Reid made a PowerPoint presentation.
Vice Chair Shabazz inquired what the time limit is for speakers, to which Chair Tilos
responded three minutes.
Stated he is not seeking to invalidate or delay the work of the Police Reform or Jackson
Park Renaming committees, they have done great volunteer work that should move on;
this is about respecting the rule of law; urged the Commission to seriously consider
specific amendments to the ordinance, so that citizens can understand, including
repealing Section 2-91.1 (d)(6) that exempts ad hoc committees from the category of a
policy body and Section 2-91.1 (d)(3) and (d)(4) to add the phrase ""formal action"" to both
subsections and provide additional language to clearly define the terms ""creation"" and
""formal action;"" the amendments will bring Alameda in line with the Brown Act and existing
case law: Paul Foreman, Alameda.
Stated that he was disappointed not to find anything discussed regarding the Sunshine
Ordinance amendments at the February 2019 City Council meeting and with the City
Attorney office rationale regarding the formation of ad hoc committees at the December
Meeting of the
Open Government Commission
February 2, 2021
15",OpenGovernmentCommission/2021-02-01.pdf
OpenGovernmentCommission,2021-02-01,16,"2019 meeting; the term ad hoc committees is not defined and does not exist anywhere in
the Brown Act; the use of the term ad hoc has no relevance to the Brown Act; he suggests
the Commission put together a play book or set of instructions and guidelines for
members of the public: Matt Reid, Alameda.
Stated that he is concerned about ad hoc committees being exempt from the Brown Act;
it is clear that they cannot be legally exempt; provided an example as to where
transparency could help out with respect to the Police Reform committee; an online
survey that has no scientific validity was put out by the committee; the survey results
cannot be trusted; the public needs to be able to see and comment on groups operating
officially as part of the government and doing the work of the people; he was disappointed
in a tweet by Vice Chair Shabazz that the ad hoc committee issue was racially motivated:
Michael Divine, Alameda.
Stated that his main concern is the lack of transparency in much of the government
activities; he is thrilled that Commissioner Reid brought her proposal forward; the
Commission should concentrate on making it work to improve transparency; urged the
Commission to set up a working group comprised of members of the public and two
members of the Commission to find ways to improve transparency and allow public
oversight access of all committees: Jay Garfinkle, Alameda.
Stated the City Attorney has already confirmed that ad hoc committees are not subject to
the Brown Act; the formation of committees is different than the terminology the Brown
Act covers; the formation of the Police Reform committee was done by staff and endorsed
by the City Manager, it was not an action of a legislative body: Zac Bowling, Alameda.
Stated it is clear that the creation of ad hoc committees seems like a major loophole and
very controversial: Amy Lee, Alameda.
In response to Chair Tilos' inquiry, the City Clerk stated the item is similar to the Council
Referral process; because the Council directs the work plan of the Commission, the action
the Commission could possibly take is to seek Council direction on whether or not the
Commission should take up the issue; the concept from the individual Commissioner is
being presented and shared tonight; the Commission as a whole can decide whether or
not there is enough interest in the proposal to seek Council advice on whether to pursue
any changes.
Chair Tilos inquired whether the next move is to ask Council if the Commission should
make a move on the issue, to which the City Clerk responded in the affirmative; stated
the Council provides direction on whether or not to move forward on an issue brought
forward by a Commission.
The Chief Assistant City Attorney concurred with the City Clerk; stated the City Council
will be the final body to determine a work plan, namely if the City Attorney's office will be
asked to develop any analysis or staff report.
Meeting of the
Open Government Commission
February 2, 2021
16",OpenGovernmentCommission/2021-02-01.pdf
OpenGovernmentCommission,2021-02-01,17,"Commissioner Reid inquired whether it is appropriate at this time to ask the Commission
to put the item on their next agenda, to which the City Clerk responded the decision is if
there is a majority of the Commission who want to forward an inquiry to Council.
The Chief Assistant City Attorney stated the City Attorney's office role is to do whatever
the Council asks, similar to the discussion of the null and void.
Vice Chair Shabazz stated he wants to address the mention of his tweet; read it verbatim;
stated that he does not think his tweet was inaccurate; it is not entirely clear on the
intention of the amendment or what the genesis truly is; inquired what could be the impact
if some of the bodies are considered as meeting the requirements of the Brown Act;
additional questions include whether it increases transparency or creates opportunity for
people to be involved.
Chair Tilos stated it seems there is a lot of interest in the subject; asked if Commissioner
LoPilato and Commissioner Chen want to pursue the matter further and seek direction
from the Council.
Commissioner LoPilato stated the first step would be to check whether the Commission
has interest in seeking direction from the Council to address the item; she is concerned
about the topic and the way it is coming in; it could have an impact on chilling participation;
she disagrees with a comment that it is not hard to abide by the Brown Act; it is hard
because commissions cannot organically communicate on the side or build trust and
relationships outside of public meetings; a lot of the topics discussed in the committees
are more amenable to the way they have been structured; there are a lot of other issues
the Commission can be working on; she appreciates Commissioner Reid efforts on the
issue, but she does not think it is a priority at this time.
Commissioner Chen stated she thinks this is an issue for the City Council because it is
looking at an ordinance; she will be agnostic on the topic because she sits on the Police
Reform committee; it was one of the best committees she has been on and has a very
diverse group of people; there is a real benefit of having working, temporary groups
around an issue where they can coalesce and give recommendations; as it applies to the
Brown Act, the question becomes when does a group stray into Brown Act territory; it is
not within her bandwidth and should be something the Council should decide what to do
with.
In response to Chair Tilos' inquiry, the City Clerk stated a Commissioner can make a
motion to either send it to the Council or not; the Commission can take a vote or just let
the matter die if no vote is taken.
Commissioner LoPilato inquired whether the issue has been raised to the City Council
separately, to which the City Clerk responded communication on the issue has done to
the Council and people have been publicly commenting about concerns; the Council is
very aware.
Meeting of the
Open Government Commission
February 2, 2021
17",OpenGovernmentCommission/2021-02-01.pdf
OpenGovernmentCommission,2021-02-01,18,"Commissioner Reid moved approval of bringing the issue to the City Council for review.
The motion failed for a lack of second.
Vice Chair Shabazz stated he appreciates the efforts put into the presentation and the
topic; he would have liked to see the same level of effort put into 3-C; he is concerned
with what seems to be a contradictory public statement.
Commissioner Reid thanked the Commission for allowing her to make the presentation;
stated the importance of making subcommittees transparent was the reason why she
brought the item forward; her intention has nothing to do with the content of the
committees; her concern is the procedure; if the goal as public representatives is to create
a transparent government, she feels the Commission should hold that goal; while she
appreciates that people are having conversations and meetings, why not adhere to the
Brown Act and include members of the public to participate as well; full transparency at
every level should be encouraged; she researched item 3-C and does not appreciate Vice
Chair Shabazz's comment; she does have questions and would like to address the issue
at the next meeting; she hopes that Commissioners fully respect each other on social
media and work together and serve the public as they deserve.
Chair Tilos summarized the next steps to be taken at the next meetings; discussed the
issue of timing for the meetings and expressed his desire to end the meetings by 10:00
p.m.; stated that he would like input on how to frame the next meetings.
Vice Chair Shabazz stated he would appreciate having adequate time; he is conscious
that folks have already indicated having Zoom fatigue; explained why he made the
reference regarding Commissioner Reid not doing research, which is what she already
stated; commended her work on her presentation; stated that he would like the
Commission to consider an invitation to the Police Reform and Racial Equity
subcommittee for the next meeting; the question about Police oversight has come up
before and providing another opportunity for the public to learn about the
recommendations is important; the null and void topic and the annual report, could go a
little further out; his goals on being on the Commission include: increase government
transparency, increase public knowledge of government, and advocate for equity and
inclusion within open government; his actions are motivated by these goals and if he is
contradicting himself, let him know; he hopes the Commission could bring the steering
committee item forward for March; he does look forward to offline conversation regarding
[Paul Foreman's] contradictory comments to bridge and grow a deeper understanding of
the intentions and potential impacts on other members of the community.
Commissioner Chen thanked Commissioner Reid for taking the initiative to bring up an
issue she thought was important; she wants to acknowledge how important the issue is;
the new Commissioners are off to a rousing start; she would like to see a work plan; the
members of the Commission are thinking about how to enhance open government in the
City, not just waiting around for complaints; members will not always agree on personal
visions within the group, but she thinks it is very healthy; she was unaware of Alameda's
Meeting of the
Open Government Commission
February 2, 2021
18",OpenGovernmentCommission/2021-02-01.pdf
OpenGovernmentCommission,2021-02-01,19,"Sunshine Ordinance until someone told her about the OGC; it is important to get people
more involved and more engaged; it would be fantastic to be open government
ambassadors to everyone; there may not be agreement on every opinion that comes up,
but that is what makes a democracy.
Commissioner LoPilato stated that she concurs with Commissioner Chen's comments;
getting information out to the community is a core reason that she is interested in serving
on the Commission; thanked the City Attorney's office for being patient in doing all the
homework assignments; stated a work plan should include all the things the Commission
wants to get done; she is excited about putting together any training opportunities; she
loves training volunteers on advocating in a legislative space; giving people information
in a way they can digest and use to be more engaged in the government is really
worthwhile for the Commission; the Commission should create opportunities for public
education and training; establishing a cadence for when certain topics come up in
meetings is something the Commission should explore; thanked all the Commissioners
for a robust discussion.
Adjournment
Chair Tilos adjourned the meeting at 10:47 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
February 2, 2021
19",OpenGovernmentCommission/2021-02-01.pdf
OpenGovernmentCommission,2021-03-01,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY MARCH 1, 2021
7:00 P.M.
Chair Tilos convened the meeting at 7:00 p.m.
ROLL CALL -
Present:
Commissioners Chen, LoPilato, Reid, Shabazz, and
Chair Tilos - 5. [Note: The meeting was conducted via
Zoom.]
Absent:
None.
[Staff present: Chief Assistant City Attorney Elizabeth Mackenzie;
City Clerk Lara Weisiger; Transportation Planner Lisa Foster; and
Special Counsel James Harrison, Olson Remcho]
Oral Communications
None.
Regular Agenda Items
3-A. Minutes of the February 1, 2021 Meeting
Commissioner Reid stated noted there is missing information which should be added into
the minutes.
Commissioner Shabazz stated he sent an email to the City Clerk with clarifications to the
minutes regarding: a suggestion from Mr. Garfinkle regarding information in the Annual
Report, the selection of the Chair and Vice Chair, his statement about never having all-
nighters, Commissioner Communications and a point of order.
Commissioner Reid stated she would like public comments to be preceded with a ""Public
Comment"" heading to make it clear, to which the City Clerk stated the heading can be
added to the minute format.
In response to Commissioner Reid's inquiry regarding Commissioner Shabazz's
correspondence being in the minutes, the City Clerk stated the correspondence would
not be included in the minutes because it is already attached to the item as part of the
record.
Commissioner Shabazz moved approval of the minutes with the clarifications.
Commissioner LoPilato seconded the motion which carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Reid: Aye; Shabazz: Aye; Chair Tilos: Aye.
Ayes: 5.
Meeting of the
Open Government Commission
March 1, 2021
1",OpenGovernmentCommission/2021-03-01.pdf
OpenGovernmentCommission,2021-03-01,2,"3-B. Recommendation to Provide Feedback on Draft Recommendations from the
Community-Led Committee on Police Reform & Racial Justice
Commissioner Chen recused herself and left the meeting.
The Chief Assistant City Attorney stated Commissioner Chen made the decision to recuse
herself after being advised by the City Attorney's office due to a common law conflict of
interest; further clarified that due to the virtual method of the meeting, members who
recuse themselves are not participating and are not ""in the room.""
The City Clerk confirmed she is able to move recused members into a waiting room where
they are unable to hear or participate in the meeting discussion.
Commissioner Shabazz stated at a previous meeting, there was concern about ad hoc
committees; he is concerned that tonight's discussion might later be claimed to be in
violation; he wants to make sure things are being done in order and requested input from
staff on the matter.
The Chief Assistant City Attorney stated the only item agendized is the Subcommittee
presentation; the Commission should not go beyond said scope; the item is a presentation
from Subcommittee members and not a meeting of the Subcommittee.
Chair Tilos clarified that the presentation requires no action and is being presented as an
opportunity for Commissioners to provide feedback.
Steering Committee Members in attendance: Al Mance, Christine Chilcott, and Jolene
Wright
Subcommittee Members in attendance: Amy Gong Liu, Andrea Carlise, Ayse Sercan,
Bassy Obot, Beth Kenny, Debra Mendoza, Erin Fraser, Gavin Maxwell, Heather Reed,
Jennifer Rakowski, Jono Soglin, Madlen Saddik, Melodye Montgomery, and Venecio
""Vinnie"" Camarillo.
Christine Chilcott gave a PowerPoint presentation.
Chair Tilos thanked the Steering and Subcommittee members for the presentation and
for attending the meeting.
In response to Commissioner LoPilato's inquiry, the City Clerk stated Commissioner
questions should be done prior to public comment; then, Commissioner discussion is after
public comment.
Commissioner Shabazz stated that he wants to express solidarity with Mali Watkins,
George Floyd, Breonna Taylor and many others that catalyzed getting to this moment; he
appreciates everyone who put in the work and staff for getting the word out about tonight's
meeting and engaging people.
Meeting of the
Open Government Commission
March 1, 2021
2",OpenGovernmentCommission/2021-03-01.pdf
OpenGovernmentCommission,2021-03-01,3,"Ms. Chilcott stated Commissioner Shabazz's list of questions was forwarded and received
by the Steering and Subcommittee members prior to the meeting; if the answers cannot
be provided tonight, the information will be provided to him at a later date.
Commissioner Shabazz inquired how many people responded to the survey from the
mailer and what were the demographics.
The Transportation Planner responded 1,485 surveys were received; 70% of respondents
own their home, 30% are renters; 43% are white; below 20% preferred not to answer;
10% are Asian, and everything else was below 10%; neighborhoods were dispersed
regarding race and ethnicity; household income is: 5% under $40,000, 13% $40,000 to
$80,000, 17% $75,000 to $100,000, and the remaining have higher income.
Ms. Chilcott stated the survey was not just for Alameda residents; anyone who visits
Alameda to visit friends or family, to work, or anyone who touches Alameda were
encouraged to take the survey as well.
Jolene Wright discussed the Block-by-Block Program; stated it was a program that ran in
November and December of 2020 which had non-sworn officers or ""Ambassadors"" walk
the blocks on Park and Webster Streets doing outreach in support of homeless members
and businesses.
Ms. Chilcott stated the group referred homeless members to services and was a way to
take something out of the Police Department's purview and give it to a different group,
who can support the efforts.
Ms. Wright recommended Commissioner Shabazz to reach out to the apdreforms email
for more information on the input received.
Chair Tilos stated regarding the slide about defunding the Police, some of the current
Police tasks go beyond racial reform; there are other ways to reallocate funds and have
cost-savings; the Police are some of the most highly compensated employees of the City;
suggested that the burden be taken off the Police Department by having employees, other
than Police, monitor the tube closures and similar instances.
Ms. Chilcott concurred with Chair Tilos; stated the Committee looked into Alameda Police
Department (APD) calls; the research shows a lot of the calls did not have a racial
component; there were calls unrelated to Police work, which the Committee is reviewing.
Commissioner Reid thanked everyone for their work and for presenting to the public;
stated that she read the draft recommendation and was impressed with everything the
Committees have done.
In response to Chair Tilos's inquiry regarding Commissioner questions, Commissioner
LoPilato stated she does not have a suggestion for the order of operations and deferred
Meeting of the
Open Government Commission
March 1, 2021
3",OpenGovernmentCommission/2021-03-01.pdf
OpenGovernmentCommission,2021-03-01,4,"to the other Commissioners.
Commissioner Shabazz suggested Commissioner questions be asked within the five
areas of the draft recommendation to keep them organized and on topic.
Commissioner LoPilato stated that she likes that approach; she has a couple of bigger-
picture questions; inquired whether it would be appropriate for her to lead with her over-
arching questions before jumping into the different Subcommittees, to which Chair Tilos
responded in the affirmative.
Commissioner LoPilato inquired if the Committee could speak about the involvement and
efforts of the young people in the community; stated interactions with Police and youth
can really be impactful; she would like to hear how the young folks in the community were
engaged in the process.
Raquel Williams responded that she is a high school senior and was on the Systemic and
Community Racism Subcommittee; she was able to really be a part of the process and
being a young person gave her a different perspective; she has had her fair share of racist
encounters; she also has had standoffish and slightly scary encounters with the Police;
she was able to shed light on what she was feeling, especially how some language comes
off to someone who is young and at the beginning of her professional life; it definitely was
a process of learning and educating simultaneously; she was able to be a resource for
some people and, at the same time, use others as a resource for herself; there is
something different about a young person's encounter with the Police; it has been a
learning process as well as a ton of growth for her.
Ms. Wright stated from an overall perspective, it was important to engage the youth of
Alameda; the Committee did send engagement opportunities to the School District for
outreach in a newsletter; there were high hopes for every 12th grade government class in
Alameda to take the survey as extra credit; representation is super important.
Commissioner LoPilato stated that she wishes she was live and in person so she could
give everyone a standing ovation for the incredible report and presentation, which is a
labor of love for the City; she noticed the thoroughness of the report and the level of data
and information received from the City in the process; inquired if anyone could speak to
their experiences in doing getting data; stated that she does not know if there has been
a collective push, which resulted in many record requests, what the process was like, and
whether they encountered any obstacles or resistance; inquired whether anything in their
experience might shed light on how the Commission could help make the process
smoother for other individuals or groups in the future seeking data.
Andrea Carlise responded the City was pretty responsive to the record requests, but that
it took several requests, especially specific requests to the Police Department; the
Transportation Planner and City staff were wonderful, but it felt like some of the initial
requests were put aside and it seemed as though they preferred not to respond directly
to questions asked, so she had to re-frame them; ultimately, the Subcommittees got the
Meeting of the
Open Government Commission
March 1, 2021
4",OpenGovernmentCommission/2021-03-01.pdf
OpenGovernmentCommission,2021-03-01,5,"information they wanted, on which their recommendations were based.
Erin Fraser stated that that he assembled many of the Subcommittee requests and the
City's responses; they set up a process to file information requests through a form, which
were prioritized in order to get a response; the Committee made many requests; his list
has 20 requests; the Committee also wanted to conduct substantive interviews with
members of City staff, particularly members of APD; they were able to get a ton of
information and City staff did their very best to provide the information as timely as
possible.
Erin Gong Liu stated as the Committee's work is coming to a close, one of the major
obstacles faced as a volunteer Committee and the deeper a person digs in this kind of
work, there is more substantive need to collect data; Commissioner Shabazz emailed the
Committee regarding the need for quality data, which the Committee has always echoed
since the beginning; they could browse through quantitative records that were made
public by the City and APD, but they would also like to code qualitative interactions and
get stories and information from folks in the City who maybe did not complete the survey,
did not have time to provide numbers, or perhaps were not represented in the numbers
that are seen online; one of the ultimate recommendations is the work needs to continue
with the help of a full time Analyst and financial resources are needed to continue this
type of work; many Committee members have done so much with their time volunteering
to be able to parse through the information to create reports and make it logistically clear
to everyone; if the work were to continue, it would need more statistical arms.
Ayse Sercan stated she was on the Accountability and Oversight Subcommittee; the City
simply did not have a lot of the data the Committee was hoping to get as it is just not
collected; in reading through the data and doing analysis, they also came to the
conclusion that there needs to be a Data Analyst who is deriving and analyzing what data
is collected to figure out what is going on; something cannot be reformed if that it is not
understood.
In response to Commissioner Shabazz's inquiry regarding points of comparison in
residential demographics, Debra Mendoza stated there is insider knowledge within the
Committee; when a traffic stop is conducted, Police are required to report the race of the
individual whether they were an adult or juvenile and the disposition of the traffic stop;
basically, there are nuances within the data that they are not getting; they do not have
the information, which is available; the information is being captured and just not made
available, which is the case for a lot of the data; they did the best they could with analyzing
the calls for service that were non-criminal in nature; they met with members of Police
and Dispatch to try to understand the categories, but could only go so far.
Jono Soglin stated there is a real challenge correlating data; they could not correlate calls
for service with specific incidents; coding data to draw conclusions to establish and track
outcomes is a deep dive; the quantitative information is there, it just takes a deep dive
and someone to go in and correlate and track incidents along the different stages.
Meeting of the
Open Government Commission
March 1, 2021
5",OpenGovernmentCommission/2021-03-01.pdf
OpenGovernmentCommission,2021-03-01,6,"Jennifer Rakowski stated that she was on the Oversight Committee; they did correlate
the data to population to understand what the relative risk is for a particular community in
terms of being arrested or stopped; whatever race data the City collects is based on the
Officer's perception; there are limits to the data; in the coming years, there will be
additional requirements for race-based data for stops and arrests to analyze disparities
in terms of treatment; encouraged the community to push for immediate transparency as
opposed to waiting until the Police Department is required to provide it to the federal
government; not all of the data that needs to be collected is housed in the Police
Department; it is looking at what complaints went to the Police and which ones went to
other parts of the City about incidents with the Police; information is collected at the jail
about what restraints were used; said type of information is not retained at APD, but is
retained elsewhere; the City encourages having index markers at outside of APD that
inform what is happening in the City.
Commissioner Shabazz thanked the Committee members for their responses, and even
to questions he did not get to yet; stated there are different types of data: quantitative and
qualitative; he is interested in qualitative data, including what happened when a person
was pulled over, how the Officer interacted, and how it is that measured, i.e., a body
camera, cell phone, or Ring doorbell device; there are a lot of ways data can be captured
these days; he would like to know the location of the data since it can be housed in
different places; the quality of collection is an issue as well; in 2017, the Alameda
Democratic Club held an event about policing, particularly about immigration, since
Trump was coming into office; he spoke with the Police Chief at that time about the traffic
stops and shared data he felt was disproportionate comparing the number of Black people
who lived in Alameda with the number of people who lived in Alameda; Black people were
stopped more than their number; it was stated that 1) Alameda is next to Oakland and
Oakland being a proxy for Black people in some people's geographic imagination; and 2)
it was not a good to compare how many people live in a place versus how many people
are stopped; he is interested in what other points of comparison are being reviewed; he
would also like to know how if the current Police leadership acknowledges the traffic stop
disproportionality; the question is important for the incoming Police leadership.
Alphonso Mance stated Commissioner Shabazz's questions are very important issues;
one of the Committee's recommendations is to have the Crime Analyst and software the
Police use make information gathering less subjective; there were certain things APD did
not keep; the City has not had a Crime Analyst in a while; he has the same concerns as
Commissioner Shabazz with regard to where the information is kept and how reliable it
is; he is hoping that having a Crime Analyst keep the information will be more reliable,
especially since the data would be input into software which asks specific questions;
another recommendation is additional reporting to the FBI, which has pretty strict
requirements and will also be more reliable; one of the more critical responses from the
survey was that disproportionality does not necessarily indicate bias; one of the things he
likes to look at is the number of stops versus the number of citations given; how many
were just given a warning provides more information; if an Officer is stopping people and
just letting them go, is the Officer just friendly to a certain group of people or because
there was not a basis for the stop; there are other figures that could be gathered and
Meeting of the
Open Government Commission
March 1, 2021
6",OpenGovernmentCommission/2021-03-01.pdf
OpenGovernmentCommission,2021-03-01,7,"analyzed; the FBI and Crime Analyst is key; when talking to the Interim Police Chief about
gathering better statistics, he was the one who actually suggested adding a Crime Analyst
and purchasing the related software; the Committee is hoping the new Chief will be in
favor of keeping statistics; one of the Steering Committee members will be participating
in the new Police Chief interview, so the questions will be asked of the incoming
candidates.
Commissioner Reid inquired whether it would be possible for the public to review the
research documents related to the draft recommendation.
Mr. Mance asked for clarification about which specific documents Commissioner Reid is
referring to as the Committee has put about 3,000 hours into looking at a lot of different
sources; he personally did not keep a list of the sources, but is happy to share what some
of them; he has been a lawyer for a while and a lot of his knowledge of California law is
based on his work; he can research issues pretty effectively; if there is interest, each
Committee could probably compile a list of sources used for the City to publish on the
website.
Commissioner Reid stated that would be great; requested that the Committees indicate
where they received the information to give the public an idea of how to be able to
research information; transparency is helpful to the public.
Mr. Mance stated regarding the information specific to the APD, the Committee had three
meetings with APD leadership which were all announced on the City's website and other
social media and were open to the public; the meetings are still up for viewing on the
City's website; the other information is available on Google Docs and all the requests for
information are public.
Mr. Fraser stated every Subcommittee's requests to the City is posted on the City's
website with a link from the website; all the information is available to the public and is
organized in a way to be efficient for City staff to be able to respond to requests; in the
final recommendations, outside research is footnoted.
In response to Commissioner Reid's inquiry, Mr. Fraser stated any data the Committee
requested and received from the City is on the website.
The Transportation Planner stated the City sent 80 documents from various Departments,
mostly APD; not all 80 documents have been posted online, but there is a list of the
requests.
Commissioner Reid inquired how many years of data did was requested and researched,
to which Mr. Fraser responded the Committee requested data from 2018 through 2020.
Commissioner Reid inquired whether the Subcommittee meetings were recorded and if
the public could go back and watch the meetings, to which Mr. Fraser responded in the
negative; stated none of the Unbundling Subcommittee meetings were recorded.
Meeting of the
Open Government Commission
March 1, 2021
7",OpenGovernmentCommission/2021-03-01.pdf
OpenGovernmentCommission,2021-03-01,8,"Commissioner Reid inquired whether the Committee is recommending mental health
professionals, in lieu of Police and Fire, or recommending additional training in the mental
health area or both.
Mr. Soglin stated the Unbundling Subcommittee was not looking at training, but another
Committee recommended mental health training for Officers; the recommendation from
the Unbundling Subcommittee was that when there is call for mental health services, like
the CAHOOTS model, mental health professionals respond to the call; when needed,
they can call and bring in law enforcement; in the CAHOOTS system, the number of calls
needing law enforcement was tiny; law enforcement would always be available, but the
idea is to have the professional with the training and skills respond to a mental health call;
if the call is mental health, but also involves a crime or weapon, then law enforcement
would respond.
Mr. Fraser recommended Commissioner Reid review the CAHOOTS model from Eugene,
Oregon; stated there were roughly 24,000 CAHOOTS calls with only 0.6% requiring an
armed Officer to support the CAHOOTS team.
Commissioner Reid inquired, from an example given in the draft recommendation, who
would determine whether a person shoplifting from a pharmacy was acting out of dire
necessity and not profit-seeking.
Mr. Mance responded by giving an example of diversion programs most of the Police
agencies use in the juvenile system; stated the Police agencies have developed policies
for determining whether it is appropriate to divert a youth; a similar system can be
employed; the Committee recommendations have not figured out the nuts and bolts yet;
the next stage is for the City to determine what works for Alameda and how to implement
the recommendations; there are situations where Police Officers make the determination;
Officers have a great deal of time and experience seeing these things in person; the City
can lay out standards and the Police Officers have limited discretion within the standards;
this is one model currently in place.
Commissioner Reid stated the report indicated juvenile offenses declined in Alameda;
inquired whether the numbers are just dropping or if juveniles are diverted elsewhere.
Mr. Mance responded that he could not answer definitively; stated juvenile filings across
the County are down by about 70% as juvenile crime is decreasing; there are a lot of
diversion programs; the vast majority of cases that do occur were filed prior to diversion
programs; his understanding is that the diversion programs are successful and youth who
have completed the program are not re-offending.
Commissioner Reid suggested perhaps said level of detail and information could be
added to the draft recommendation.
Chair Tilos stated he would like the Commissioners to rotate questions three at a time to
Meeting of the
Open Government Commission
March 1, 2021
8",OpenGovernmentCommission/2021-03-01.pdf
OpenGovernmentCommission,2021-03-01,9,"progress through the meeting more efficiently and get to public comment.
Commissioner Shabazz stated that he will transform his questions into comments; since
he already submitted his questions in advance of the meeting, he will prioritize his
questions and not ask all of them; he has two questions but will yield back his time for
now.
Commissioner Reid inquired whether the racial statistics could be classified to be
consistent with the census; i.e., should Hispanic be treated separately as an ethnicity
rather than as race; and whether the Committee is recommending hiring a professional
consultant from the Police sector, the non-profit sector, or other.
In response to Commissioner Reid's second inquiry regarding hiring, Amy Gong Liu
stated the Committee recognizes that the initial recommendations are drafts but did
everything to make them as clear as possible; in the final set of recommendations, the
Committee will be taking and compiling all of the suggestions to produce the most clearest
and logical path; with regard to the third party analysis, the recommendation came from
a meeting with Interim Police Chief and several APD Captains; the Interim Police Chief
stated APD is interested in starting a partnership with an organization called COMPSTAT
for Justice and the Center for Policing Equity; due to the current situation, many Police
Departments were driven to reach out to third party organizations that offer consulting
services for free; they maintain a temporary and short working relationship with Police
Departments, produce documents for the Departments and the public; the Committee
wants to encourage APD to continue this kind of relationship; the Center for Policing
Equity are inundated with requests, but stated is working towards creating the possibility
to partner with APD; the Committee will continue to check in with the APD about feasibility.
Commissioner Reid inquired whether community members or the Police would be on the
Board for internal accountability and oversight, to which Ms. Sercan responded the
Accountability Board would be strictly a civilian board; stated there would be no sworn
Police Officers, Police Department or City employees; the idea is specifically for
community oversight because the Police already have Internal Affairs and their own
internal management structure.
Commissioner Reid inquired how group affiliation would be determined for the General
Conduct Affirmative Code, social media likes or membership in a group; and whether the
five districts are based on census tracts.
Mr. Mance responded the APD informed the Committee that for policing purposes, the
City is broken up into five districts; the districts are a policing designation and he does not
think there is any significance outside of that.
Commissioner Reid stated she would like the public to have clarification about the
districts; stated she has a few more questions but does not want to take up all the time.
Chair Tilos stated Commissioner Reid could submit her questions via email.
Meeting of the
Open Government Commission
March 1, 2021
9",OpenGovernmentCommission/2021-03-01.pdf
OpenGovernmentCommission,2021-03-01,10,"Commissioner Reid made her last questions: 1) whether the Police Chief or the City
Manager would implement the recommendations, 2) whether the authority to investigate
complaints would require a Boardmember to take a Police oath; 3) whether the purpose
of the Subcommittee is to conduct investigations, amplify complaints or both.
Ms. Rakowski responded some of the Committee's recommendations are intentionally
not fully fleshed out because it is the beginning of the process; issues are being identified
that staff and the City Attorney will need to make further recommendations on; ultimately,
the public would need to weigh in on a Charter commission; the Committee is flagging
questions and concerns that need to be addressed for a well-functioning, thoughtful, clear
and transparent process; answers cannot be provided at this early stage in the process.
Commissioner Reid stated her questions are concluded and she is happy to submit her
remaining questions and comments for the Committee's review.
In response to Chair Tilos' inquiry, Commissioner Shabazz stated he will make
comments, rather than ask questions; he would like to hear public comment.
Public Comment:
Inquired the purpose of tonight's presentation since all of the reports have been published
and presented to the City Council and Planning Board; stated that he was hoping the
presentation would be focused on how everything relates to the OGC: Jay Garfinkle,
Alameda.
Stated Alameda Police should be allowed to hire who they need based on the current
fiscal year budget; when staffing needs to be increased at a later time, it would be too late
to select and train appropriate sworn and non-sworn people to meet the demand;
Alameda has a lot of growing issues, including traffic, crime, and homelessness; it is going
to be difficult to play catch-up when the hiring freeze is lifted: David Lee, Alameda.
Stated that she was speaking on behalf of her elderly Korean-America mother; she would
like to know how much outreach and research has gone into the experience of racism for
Asian Americans, especially immigrants who were unable to take part in the survey due
to the language barrier; there is a dramatic rise in hate crimes against Asians: Sang Shim,
Alameda.
Stated that he experienced racism in Alameda; there needs to be a balance between the
protections and fairness in situations, like George Floyd and the dancing in the street
incident; he would like to participate in more discussion; he wants Alameda to become
a
better place to live and work: David Chu, Alameda
Stated one of the items in the Code of Conduct is that an Alameda Police Officer should
not be a member of an organization that is out of bounds; there are concerns about an
affiliation between Police and the D.C. insurrectionists; the issue is defining membership
Meeting of the
Open Government Commission
March 1, 2021
10",OpenGovernmentCommission/2021-03-01.pdf
OpenGovernmentCommission,2021-03-01,11,"in those groups, what types of conduct would be expected and how it would be
documented to ensure Officers know boundaries; the key question is what is the
authoritative power; encouraged the Commission to think about how to present the work
streams to the public and its impact on policing in Alameda : Matt Reid, Alameda.
Commissioner LoPilato stated that she is impressed by the amount of volunteer work,
collaboration and thoughtfulness that has gone into all the reports; she is deeply humbled
by the valuable volunteer service the Committees have given to the City; she appreciated
the level of attention given to both proposed policy changes and the implementation and
accountability angles; everyone here cares about the access to information through the
Public Records Act; she is very interested in the idea of hiring a full time Crime Analyst,
which would improve data collection and transparency, while still having someone in a
professional capacity to be sure privacy issues are respected; she thought there were a
lot of interesting recommendations regarding the Police Oversight Board; there can be
some rough roads at the intersection between board transparency and the privacy
doctrines around Police employee records; if the Oversight Board moves forward, she
hopes there can be an ongoing dialogue with the OGC to collaboratively and proactively
work out kinks with respect to the Sunshine Ordinance; the focus on the Code of Conduct
in the Policies and Practices Subcommittee report and the note about the social contract
reason is spot on; she would like to ensure that compliance with the Code of Conduct is
included in the accountability process as well as all the general performance
assessments, evaluations for promotion, and other steps in the personnel life cycle;
Officers who exemplify excellent compliance should be positively recognized; she urges
the Subcommittees and staff to keep an eye on the rapidly developing State law, i.e.,
Assembly Bill (AB) 1506 from last year creates independent investigations into certain
Police use of force; AB 998 deals a lot with a mobile mental health crisis team.
Commissioner Shabazz stated that he has a lot of questions, but will try to keep his
comments succinct; he worked as a journalist and has written extensively about Police in
Oakland, Berkeley, BART, and even University of California Berkeley Police (UCBP); as
an urban planner, he is very interested in policing as a form of social control; he has
written about how civilian oversight is formed, including how Oakland's Police
Commission was formed after the murder of Melvin Black; after Oscar Grant's murder,
BART's hybrid model of an oversight board and auditor was formed; paraphrasing a
comment by Dave Chappelle, the reason why he is an expert in policing is because he is
a Black man in America; he had some early positive experiences with APD growing up in
Alameda, but as he got older, his experiences were not as positive; he is grateful to not
have had negative Police contact for a long time; he comes to the question about open
government from a different position than other people who may have experienced
policing differently; discussed a 1992 incident which became known as the ""Mobile Digital
Terminals"" (MDT) incident where Alameda Police Officers were sending messages to
each other about wearing Black face, dressing up as members of the Ku Klux Klan and
going out and shooting Black people; in response to the incident, there was the Mayor's
report on cultural diversity; he encourages folks to read the report because he already
sees some parallels with some of the work the Committees have been doing; there are
some unfinished efforts; under criminalizing survival, he is concerned about what
Meeting of the
Open Government Commission
March 1, 2021
11",OpenGovernmentCommission/2021-03-01.pdf
OpenGovernmentCommission,2021-03-01,12,"happens when people see unhoused people in public and how APD may respond to a
call, how it is dealt with, and how it is coded; he made comments on the prosecutors
docket and is making it public so people can see what the focus is on; perhaps it may
come back to the OGC with some regularity and could be part of the annual report;
expressed concern about mental health of those who work in law enforcement, not just
Officers, but Dispatch, and other non-sworn positions; under policies and practices, last
year, the Police Chief announced a change in how calls would be prioritized, which
received a lot of negative reactions; in general, he is concerned about Police Chief
policies and recommends review either by the City Manager or Council; he has observed
unhoused people picked up and taken over the bridge so that they are no longer in
Alameda; he is grateful that is no longer a practice; regarding fees, fine, and revenue, it
would be beneficial to look at the data to see if there is some form of reparation or amnesty
for people who have been targeted to a higher extent; he appreciates having all
community voices heard under the policies and practices Subcommittees; since people
are impacted differently, it is important to recognize getting more people to participate
than just one segment of the community; expressed concern about retaliation; in 2015
and 2018, he interviewed many people while in the process of working on a story; nearly
three dozen people he interviewed were Black people who asked to remain anonymous
for fear of retaliation; more recently a City Councilmember put Committee member's
names on a NextDoor thread regarding crime as if it was somehow related; he is
concerned about how people can participate publicly without potential threats to their well-
being; in the next phase of this process, he would like to identify ways for people who
have been impacted by policing in Alameda to tell their stories without the potential of
being harmed or invalidating their experience; regarding the social media protocol, there
was an incident in August 2017 involving a group of young people who had weapons
drawn on them at the Target store; a video was posted on the APD social media that one
of the youths was suspected of stealing a car; after Commissioner Shabazz's first PRA
request for related information was denied, he was able to get pertinent information with
the new State law AB 1421; after tracking down the case to the District Attorney, he found
out the person was not even charged for the crime; incidents are posted publicly on social
media in a society where a person is innocent until proven guilty; there is no retraction
after a mug shot is posted; this type of action re-affirms race crime association and re-
enforces pre-existing stereotypes; urged the Committees to share their concerns, which
perhaps could result in an audit; he hopes going forward that there could be a truth and
reconciliation process to deal with some of the systemic racism; he is hoping the OGC
could be a place where there will not be challenges when trying to obtain data from the
City and some oversight conversation could return as the Committees consider models
to put before the voters; he would like the community to build together so someone's
safety is not predicated on someone else being over-policed.
Chair Tilos thanked all the Committee members for the presentation, attending and
answering questions; praised their efforts and expertise.
Ms. Wright expressed appreciation to the City and staff for making the event possible.
Commissioner Reid thanked Ms. Chilcott for her presentation and expressed appreciation
Meeting of the
Open Government Commission
March 1, 2021
12",OpenGovernmentCommission/2021-03-01.pdf
OpenGovernmentCommission,2021-03-01,13,"to all Committee members.
Commissioner Shabazz raised a point of order proposing that, based on time and the
timing of receipt of Commissioner LoPilato's proposal for item 3-D, that Commissioner
LoPilato's proposal regarding the null and void remedy could be addressed at a later date.
Commissioner LoPilato said yes, stated that she anticipated that; stated the long-range
solution, while it can be packaged with Item 3-D's discussion regarding replacement of
the null and void remedy, was an addition to other topics being discussed, so she is okay
with re-agendizing it or handling it at a different meeting.
***
Chair Tilos called a recess at 9:23 p.m. and reconvened at 9:26 p.m.
***
3-C. Hearing on Sunshine Ordinance Complaint Filed February 2, 2021
Commissioner Shabazz recused himself since he was on the Jackson Park Renaoming
Committee and left the meeting.
The Chief Assistant City Attorney clarified that Commissioner Shabazz's recusal is based
on a common law conflict of interest.
Commissioner Reid stated that she will also recuse herself based on the common law
conflict of interest and left the meeting.
Complainant Paul Foreman gave a brief presentation.
In response to Commissioner LoPilato's inquiry regarding the discussion structure, Chair
Tilos stated outside counsel will present next, followed by Commissioner questions and
public comment.
James Harrison, Olson Remcho, gave a brief presentation.
Mr. Foreman stated there are no issues that he needs to rebut.
Commissioner LoPilato requested clarification on the delineation between Mr. Harrison's
role and the Chief Assistant City Attorney's role tonight.
The Chief Assistant City Attorney responded that Mr. Harrison has been appointed as
Special Counsel and is representing the interests of the City and the Alameda Recreation
and Parks Department (ARPD); her role, as it would be in all meetings, is an advisory role
in a legal capacity when questions come up from the OGC; she is not here in an advocacy
role this evening; the two advocates are Mr. Foreman, on behalf of himself, and Mr.
Harrison, on behalf of the City.
Commissioner LoPilato inquired what are the long-range impacts of a Commission
Meeting of the
Open Government Commission
March 1, 2021
13",OpenGovernmentCommission/2021-03-01.pdf
OpenGovernmentCommission,2021-03-01,14,"decision if a complainant comes to the OGC and seeks a remedy beyond what they
received, such that they proceed with a private right of action; further inquired whether a
Commission decision would become evidence in that type of litigation; stated knowing
what the record could be used for would be helpful before deliberating.
The Chief Assistant City Attorney responded after tonight's hearing, if either party is
displeased with the results and wants to pursue appeal remedies, that party would have
the right to file a private right of action as a private lawsuit; the record that is created
tonight would all become part of the underlying record; a reviewing Court would look at
all of the evidence put before the OGC to determine whether or not the evidence used
met the legal standard of the decision made by the OGC.
In response to Mr. Foreman's request to comment, the City Clerk stated the process that
the complainant gets to present their case; the only other time the complainant should
speak is if a Commissioner asks them a specific question.
Commissioner LoPilato inquired whether the OGC would be able to issue an oral tentative
decision tonight with the opportunity for further clarification for finalization of the written
decision; asked for clarification about the draft decision attached to the agenda.
The Chief Assistant City Attorney responded the draft decision was generated and
prepared by Mr. Harrison on behalf of the City in the capacity as an advocate for one side
or the other; it was prepared by one side with the hopes that the Commission would reach
that decision, although not obligated to do so; the OGC can reach some aspects of the
decision if not the entire thing; to address the first question, pursuant to the Sunshine
Ordinance, the OGC could reach an oral or written decision tonight; if an oral decision is
made, there is 30 days to capture it into a written decision; she advises that whatever oral
decision is reached, it needs to be complete; the OGC should not make a partial decision
tonight and plan to add to it afterwards.
The City Clerk stated that the practice has been that every time the OGC made a decision,
it was completed during the meeting; only one time was there direction for staff to come
back with more information; the written decision could be executed after without violating
the Brown Act.
Commissioner Chen inquired what is within the purview of the OGC and whether the
ARPD violated the Sunshine Ordinance when they established the subcommittee; since
the Ordinance was changed to exempt ad hoc committees, it seems like, according to the
Sunshine Ordinance at the time the ARPD decision was made, they were not de facto
violating the Sunshine Ordinance; although there is a gray area in her mind whether they
violated the Brown Act.
Chair Tilos stated Commissioner discussion will take place after clarifying questions and
public comment.
Commissioner LoPilato thanked Mr. Foreman for being here and sharing the information
Meeting of the
Open Government Commission
March 1, 2021
14",OpenGovernmentCommission/2021-03-01.pdf
OpenGovernmentCommission,2021-03-01,15,"and materials he prepared; inquired in what ways, and when, has he shared his concerns
with City Council and staff and what was the response.
Mr. Foreman responded the reason he shared his concerns was because he very much
did not want to be here tonight; stated he wanted to get the issue resolved and thought it
was very clear; he thought he should bring it to the attention of the Council and also made
a
call and wrote a couple emails to the City Manager with copies to the City Attorney; he
received no answer from Council and received a phone call back from the City Manager;
the City Manager was sympathetic; the letters he wrote to the City Manager were targeted
to the City Attorney in the hopes the issue could be resolved; the response was zero; he
wrote to the City Attorney again with questions regarding the issue and the response from
the City Attorney was that he will find out when he reads the report written by Special
Counsel; he is here tonight because he received zero response from the City.
In response to Commissioner LoPilato's inquiry regarding the case law, Mr. Foreman
stated he did not find or research the cases he cited; the cases were researched by a
good friend of his who is a California attorney and Alameda resident; he did not ask if the
cases were shepardized as he has done work for him before and he is fully competent;
Mr. Harrison would have brought that to their attention if it were the case.
Commissioner LoPilato inquired whether Mr. Foreman feels he has suffered some type
of harm from the actions of the Renaming Committee or is it truly more just raising a
question of legal interpretation.
Mr. Foreman responded that everyone has suffered harm; stated the harm is not caused
by the Renaming Committee, they are hardworking people who did what they were asked
to do; the harm is that the ad hoc exception has been exercised and it is clearly and
unequivocally a violation of the Brown Act; he is afraid that next week, next month or next
year there will be a citizens committee for the budget or shutting-down-the-pools these
committees violate the law; anytime a law which provides for public access is not abided,
it harms the citizens and is a future harm; the committees and the Recreation and Parks
Director did good work; he is not retracting from their hard work and efforts one iota.
Commissioner LoPilato inquired what Mr. Harrison's position is on whether the complaint
is timely under Sunshine Ordinance Section 2-93.2 A; stated it seems the challenged
action is the formation of the Renaming Committee; the actions happened back in the
summer of 2020; she wonders if there is some type of relation back doctrine or continuing
violation doctrine that applies to complaints under the Sunshine Ordinance; she is not
aware of any case law; inquired whether the City is asserting a position regarding
timeliness.
Mr. Harrison responded that the City has not asserted as a defense that the complaint is
untimely, largely because Mr. Foreman framed his complaint through allegations that
there was a continuing violation because the Recreation and Park Commission (RPC),
followed by the City Council, considered the recommendations of the Renaming
Committee, and therefore, furthered the violation via a fruits of the forbidden tree theory;
Meeting of the
Open Government Commission
March 1, 2021
15",OpenGovernmentCommission/2021-03-01.pdf
OpenGovernmentCommission,2021-03-01,16,"the City did not contest the timeliness of Mr. Foreman's complaint for that reason.
In response to Commissioner LoPilato's inquiry regarding when the creation of the
Committee occurred, Mr. Harrison stated what the RPC did, which was consistent with
the Brown Act and the Sunshine Ordinance, was to designate a less than a quorum of
its members to act as a temporary advisory body; if the RPC stopped there, Mr. Foreman
would not be here tonight; the RPC went further by directing the two-member ad hoc
committee to work with the Recreation and Parks Director to facilitate public input; that
involved the appointment of individuals to serve on the Renaming Committee, which is
what led to the concern about that body having come into existence through some action
of the Commission itself even though the Recreation and Parks Director appointed the
members because the Commission had appointed two of its members to serve as an
advisory body to work with the Recreation and Parks Director; the merging of the two is
where the issue arose.
Commissioner LoPilato inquired whether the Chair and Vice Chair of the RPC participated
substantively in the actual preparation of the process, including application for
membership, outreach, interviews and appointments.
The Recreation and Parks Director responded that she met with the Chair and Vice Chair
initially to discuss where outreach could be done, but she was the one who led the
process, received the applications, did the outreach, conducted the interviews and made
the appointments.
Commissioner LoPilato inquired whether the Recreation and Parks Director notified a
group of Jackson Park neighbors via email about a July 9, 2020 RPC meeting including
discussion of the park renaming.
The Recreation and Parks Director responded in the affirmative, stated there is an email
group of neighbors of the park; whenever there is anything related to the park, she lets
the group know.
Commissioner LoPilato stated it was a very proactive method for ensuring accessibility
and transparency at an important stage in the process.
The Recreation and Parks Director stated she also reached out to the Jackson Park
neighbors group to see if they wanted to have representation on the committee as well.
Public Comment:
Acknowledged the work of all the Commissions; stated the Chief Assistant City Attorney's
predecessors took every opportunity to stifle any attempt to open City activities to the
public; thanked Mr. Foreman for raising the issue; stated that he does not agree with
Commissioner Reid being excluded from the discussion; expressed concerned about the
Commission deferring to the City Clerk for past practices: Jay Garfinkle, Alameda.
Meeting of the
Open Government Commission
March 1, 2021
16",OpenGovernmentCommission/2021-03-01.pdf
OpenGovernmentCommission,2021-03-01,17,"Stated that she is confused regarding what the ad hoc group exclusion means; it seems
there is a huge loophole which is not clearly defined: Imi Lee. Alameda.
Stated as part of the effort to keep the Committee accountable to the community, he filed
PRAs, mobilized people to participate in surveys, and attended PRC and Council
meetings; ad hoc committees are not a new development; it was only after the Committee
published the top four names, which did not include specific name choices that complaints
began; he theorizes that Mr. Foreman and Councilmember Herrera Spencer view the ad
hoc committees as permitting a radical break from the status quo or that they correctly
perceive the work of the committees as a challenge to Alameda's prevailing racial
hierarchy: Josh Geyer, Rename Jackson Park Committee.
Reminded the Commission that they could propose to Council to authorize time for the
City Attorney's office to look more closely at the issue; a document from the City of Los
Angeles on neighborhood council formation cited the Brown Act regarding an exempt
subcommittee ""must be comprised solely of members of the governing body;"" when
members of the public are invited, the subcommittee then becomes subject to the Brown
Act: Matt Reid, Alameda.
Stated that she lives near Chochenyo Park and felt very well-informed throughout the
renaming process; she received immediate responses to her inquiries from the
Recreation and Parks Director and Rasheed Shabazz; it is hard to understand why there
is an issue with this ad hoc committee, particularly because it was community-led and
centered on Black Indigenous People of Color (BIPOC) voices; the renaming process
demonstrated how great work can get done through the ad hoc process: Meredith
Hoskins, Alameda.
Stated when the ad hoc committee was set up, there was a pause to really engage the
community; there was plenty of encouragement for people to submit names; the youth
came up with new technology methods to engage the community; it was clear what was
being asked and how the public was being engaged: Jennifer Rakowski, Alameda.
Stated there seems to be nitpicking over specific words of the Brown Act and Sunshine
Ordinance surrounding this Committee in particular; the timing and ongoing framing
seems interesting; he completely agrees with the Special Counsel's assessment that if
there was any kind of issue, they were cured; urged the Commission to follow the Special
Counsel's recommendation: Zac Bowling, Alameda.
The Chief Assistant City Attorney advised the Commission to use the terms ""founded"" or
""unfounded"" when discussing the issue; stated that the decision on the item needs to be
approve by a majority of all members, which is three.
Mr. Foreman stated he objects to the use of the word because it does not mean the same
thing as whether the appeal is sustained or not; if his claim is unfounded and he files
a
second claim that is unfounded, he would be precluded from filing claims for a number of
years.
Meeting of the
Open Government Commission
March 1, 2021
17",OpenGovernmentCommission/2021-03-01.pdf
OpenGovernmentCommission,2021-03-01,18,"Chair Tilos and Commissioner LoPilato suggested talking in terms of ""sustained"" and
""unsustained.'
The Chief Assistant City Attorney stated that Mr. Foreman is correct; there is a provision
in the Sunshine Ordinance that if a person files two complaints in a 12-month period that
are ""unfounded,"" they would be prohibited from filing a complaint for five years; he is
incorrect in that there is no definition of ""unfounded"" in the Sunshine Ordinance that would
give it a different definition than ""unsubstantiated"" or ""denied;"" there is a penalty for having
two unfounded complaints, but there is no requirement that the OGC reaches some
special finding to declare it unfounded.
Commissioner LoPilato moved approval of determining the complaint to be unfounded on
the basis that it is not a question properly before the Commission because it requires
legal analysis and requests a remedy beyond the scope of the Commission's authority
for resolving Sunshine Ordinance complaints and because it is untimely; even if the
complaint was properly before the Commission and timely, there was substantial
compliance with the Brown Act and any alleged violation was cured by the multiple
noticed, properly agendized meetings.
Chair Tilos requested the motion be re-stated more concisely.
Commissioner LoPilato moved approval of finding the complaint unfounded primarily on
procedural grounds.
Commissioner Chen seconded the motion.
Under discussion, Chair Tilos stated there is gray line between ad hoc and legislative
body; the ad hoc committee had one clearly defined mission and was reporting to the
legislative body; at the end of the day, it is the legislative body that has the final say; the
ad hoc committee does the research and helps out; the OGC formed an ad hoc committee
to deal with the null and void issue and he sees the Renaming Committee as a similar
situation; the spirit of the Sunshine Ordinance is to bring more people into the discussion;
clearly, there was already a renaming policy and ARPD or the RPC could have just
renamed the park without public input and it still would have been in the scope of their
powers; they chose to create an ad hoc committee to make the process more open to the
community, which is the whole point of open government.
Commissioner Chen stated that she submitted a page from the League of California Cities
guidebook on the Brown Act, which lists ""what is not a legislative body;"" it is very useful;
there are two sections: 1) a temporary advisory committee composed solely of less than
a quorum, and 2) groups advisory to a single decision maker or appointed by staff; she
concurs with Mr. Harrison's statement that the RPC combined both groups to form a
committee, which falls into a gray area; it will always be a gray area until the City actually
defines what is not a legislative body or what is not a policy body; the term ""ad hoc
committee"" is not defined in the ordinance; it should be defined for clarity; there are valid
Meeting of the
Open Government Commission
March 1, 2021
18",OpenGovernmentCommission/2021-03-01.pdf
OpenGovernmentCommission,2021-03-01,19,"arguments on each side.
Commissioner LoPilato stated Commissioner Chen's phrase ""outside the scope of the
OGC"" is spot on; that is the primary place she lands on the issue; all the facts inform the
decision, but looking at the scope is very important; one of the significant things is there
is nothing in the ordinance that gives the Commission power to re-write the ordinance or
recommend re-writing the ordinance in response to a Sunshine Ordinance complaint; this
seems more like a request to avoid future harm rather than a complaint about an action
that was taken; the request has gone to staff and City Council where it belongs; she
concurs with Commissioner Chen that perhaps, in some separate capacity outside of the
complaint, if there ever is a collaborative review of the ordinance, the OGC could be the
institutional knowledge about the definition of ad hoc; as it is right now, there is an ad hoc
exception in the ordinance, that is what the OGC is charged to review; she wants to be
careful not to overstep the authority granted to the Commission by delving into case law
and legal analysis; it is not appropriate for the Commission to research case law,
particularly since at the outset, the Commission does not have access to the ability to do
their own research; cautioned against having legal citations in any written decision; stated
the OGC is allowed to be the regulatory body of the Sunshine Ordinance; when looking
at the ordinance, not just the academic question of whether it is in conflict with the Brown
Act, there is the ad hoc exception; there is no dispute that this was an ad hoc committee;
when the language in the Brown Act is looked at separately, the choice to find the
complaint unfounded still holds up; she does not think the Commission even needs to get
there; she worries that engaging in discussion that involve interpreting case law or
complaints that involve lengthy legal analysis would create a chilling effect on those willing
to serve on the OGC; a person should not have to be an attorney to be on the
Commission; the practical lived experience of having gone through the processes is very
relevant; she does not see a way to go forward under the Sunshine Ordinance with
anything other than dismissing the claim as unfounded given the timeliness and scope
issues and the lack of authority the OGC has to opining on inconsistencies with the Brown
Act.
***
Commissioner LoPilato moved approval of continuing the meeting past 11:00 p.m.
Chair Tilos seconded the motion which carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Chair Tilos: Aye. Ayes: 3 - Absent: 2
(Commissioners Reid and Shabazz).
Chair Tilos concurred with Commissioner LoPilato that a person should not have to be a
lawyer to serve on the OGC.
Commissioner LoPilato stated the implication of nefarious or malicious intent by the
volunteers that are serving on the committees is very harmful to the community and the
argument about openness has been weaponized; she wants to acknowledge and
appreciate that Mr. Foreman has been very clear throughout all of this and does not seek
Meeting of the
Open Government Commission
March 1, 2021
19",OpenGovernmentCommission/2021-03-01.pdf
OpenGovernmentCommission,2021-03-01,20,"to undo the work of the Renaming Committee.
Commissioner Chen stated that she really enjoyed reading the packet; she was
impressed about how much work the committee put into the renaming; it made three
dimensional the whole discussion about inclusion and bringing back hidden history; she
is ready to move forward with a vote.
Chair Tilos concurred with Commissioner Chen; stated he appreciates all the hard work
of the ARPD and RPC for including everyone in the community in the decisions; he is
ready to vote on the issue.
On the call for the question, the motion carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Chair Tilos: Aye. Ayes: 3. [Absent:
Commissioners Reid and Shabazz].
Commissioner LoPilato inquired whether the OGC is able to issue a decision that the
complaint was found to be unfounded.
Chair Tilos stated they used the term ""sustained"" when issuing a decision on past
complaints; deferred to the Chief Assistant City Attorney.
The Chief Assistant City Attorney stated that based on her recollection of the motion, it
was slightly more involved; it is more appropriate and complete to have to vote match in
the written decision.
The City Clerk clarified that Commissioner LoPilato's initial motion included more detail,
but was then simplified to find the complaint unfounded primarily on procedural grounds.
Commissioner LoPilato stated there was alignment in the deliberations that there was
good public engagement in the process; inquired whether there was also alignment on a
finding that there was substantial compliance with the Sunshine Ordinance; stated, if so,
it should be part of the ultimate decision; another way to state it is that the issue was
cured and corrected by the public meetings.
Chair Tilos stated he did not want to go that route to show that the Commission was
talking about the ad hoc committees and not the methods used to cure it; it seems
redundant.
The Chief Assistant City Attorney advised the Commission to create the most complete
record possible; stated if the consensus or unanimity of the voting Commissioners is that
the decision was based on three factors, all the factors should be in the final, written
decision; it should be reflective of all the reasons the decisions was made.
Chair Tilos stated that he would be in agreement to include all Commissioner LoPilato's
reasons for reaching the decision.
Meeting of the
Open Government Commission
March 1, 2021
20",OpenGovernmentCommission/2021-03-01.pdf
OpenGovernmentCommission,2021-03-01,21,"Commissioner Chen stated that she was going with Commissioner LoPilato's initial long
list as it puts in the public record why the OGC made the decision; under the Brown Act,
there is an assumption that government moves so quickly and is so intricate that there
will be violations of certain aspects, but if they turn around and correct the violations, they
do a self-cure and correct, the Brown Act has that kind of elasticity in it to allow that to
happen; even if it is found that the RPC violated the Brown Act, they already cured and
corrected it and there is no case.
Commissioner LoPilato restated her original motion with the following basis: 1) the
complaint was not properly before the Commission on a procedural level, 2) it requires
legal analysis outside the scope of the Commission's authority, 3) it requested a remedy
beyond the Commission's authority to resolve a Sunshine Ordinance complaint, and 4) if
analysis is limited to actions that occurred and whether they violated the Sunshine
Ordinance, the complaint itself is untimely under Section 2-93.2a; separately, despite all
these factors, there are various indications in the record that the Sunshine Ordinance was
complied with in full and any alleged violation was cured.
Chair Tilos and Commissioner Chen indicated their consensus with Commissioner
LoPilato's comments.
In response to Chair Tilos's inquiry, the City Clerk stated once the document is compiled,
the three voting members will sign it.
The Chief Assistant City Attorney stated a renewed motion should be made to make it
abundantly clear that all Commissioners voted on that basis.
Commissioner LoPilato moved for a renewed motion on the basis as just set forth.
Chair Tilos seconded the motion, which carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Chair Tilos: Aye. Ayes: 3 - Absent: 2
(Commissioners Reid and Shabazz).
3-D. Discuss and Provide Recommendations Concerning Potential Amendments to
Article VIII (Sunshine Ordinance) of Chapter Il (Administration) of the Alameda Municipal
Code, as Amended, to Replace ""Null and Void"" Remedy. [Not Heard]
COMMISSION COMMUNICATIONS
Commissioner Shabazz stated the OGC is a really energetic and enthusiastic group with
different strengths; he hopes they could all build on those strengths to come together with
a longer term plan; he sent staff an outline of areas and questions that could be
considered for the plan over the next couple of months; announced that he will be hosting
a Public Records Workshop on March 15th
The Chief Assistant City Attorney stated Item 3-D was continued to the next meeting.
Meeting of the
Open Government Commission
March 1, 2021
21",OpenGovernmentCommission/2021-03-01.pdf
OpenGovernmentCommission,2021-03-01,22,"Commissioner Chen stated regarding the null and void topic, she saw a marriage between
Commissioner LoPilato and Councilmember John Knox White's suggestions and would
like to see it in one document for the OGC to review; having fresh eyes on it is of great
benefit.
Commissioner Reid noted that she submitted a null and void remedy.
In response to Commissioner Reid's inquiry, the City Clerk stated she would caution the
Commission that the public was told that the null and void topic was not going to be heard,
so any further discussion or suggestions should be submitted for the next meeting.
The Chief Assistant City Attorney concurred with the City Clerk.
Adjournment
Chair Tilos adjourned the meeting at 11:23 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
March 1, 2021
22",OpenGovernmentCommission/2021-03-01.pdf
OpenGovernmentCommission,2021-04-05,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY APRIL 5, 2021 7:00 P.M.
Chair Tilos convened the meeting at 7:00 p.m.
ROLL CALL -
Present:
Commissioners Chen, LoPilato, Reid, Shabazz, and
Chair Tilos - 5. [Note: The meeting was conducted via
Zoom.]
Absent:
None.
[Staff present: Chief Assistant City Attorney Elizabeth Mackenzie;
City Clerk Lara Weisiger; Special Counsel Kristen Rogers, Olson
Remcho; Police Captain Jeff Emmitt, Assistant City Attorney Alan
Cohen]
Oral Communications
None.
Regular Agenda Items
3-A. Minutes of the March 1, 2021 Meeting
Commissioner Chen stated Amy Gong Liu's name was misspelled; the City Clerk noted
it will be corrected.
Commissioner Reid stated at the end, she made comments regarding submitting a null
and void remedy.
Commissioner LoPilato stated she had small edits which she emailed to the Clerk's office
and shared them with the Commission.
Vice Chair Shabazz stated his changes clarifying why he stated he was recusing himself
from the Jackson Park Committee because he was invited to be a part of the Committee.
Vice Chair Shabazz moved approval of the minutes with the clarifications.
Commissioner Chen seconded the motion which carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Reid: Aye; Shabazz: Aye; Chair Tilos: Aye.
Ayes: 5.
3-B. Hearing on Sunshine Ordinance Complaint Filed by Scott Morris on May 12, 2020
Vice Chair Shabazz stated it was suggested by the City Attorney's office that he recuse
himself; he publicly commented on Mr. Morris's initial request via Twitter; he wants to
Meeting of the
Open Government Commission
April 5, 2021
1",OpenGovernmentCommission/2021-04-05.pdf
OpenGovernmentCommission,2021-04-05,2,"publicly state that he will not be recusing himself, but will make impartial decisions based
upon the facts that are presented tonight and also the information that he has reviewed.
The Chief Assistant City Attorney stated the City Attorney's office legal opinion is that
Vice Chair Shabazz should recuse himself; she wants to give more context to some
specifics on the basis for the recommendation; Vice Chair Shabazz did recommend Mr.
Morris file a complaint with the OGC publicly via Twitter; it is the City Attorney's opinion
that the comment suggested to Mr. Morris that Vice Chair Shabazz would be a receptive
audience to Mr. Morris's complaint and that it went beyond just giving information to the
public about the complaint process; she is informing the entire Commission of the basis
for the advice because of the fact that, should the Commission take action regarding Mr.
Morris's complaint and should that action be reviewed by a court, courts do find and do
examine the propriety of recusals and whether a recusal was made or not; the City
Attorney's office believes that the decision handed down by the Commission could be
imperiled or weakened on a judicial review because of the fact that Vice Chair Shabazz
has a basis for recusal; she indicated to Vice Chair Shabazz that it is his decision whether
to recuse himself and he indicated that he would not recuse himself.
In response to Chair Tilos's inquiry regarding how to proceed with Vice Chair Shabazz'
recusal issue, the City Clerk stated that there is not anything specific in the bylaws
directing it, which she will check quickly.
Vice Chair Shabazz stated that he understood the bylaws that someone should state what
the concern is and then they can continue; in preparation of Ramadan, he will be stepping
away from the meeting briefly to break his fast but will be joining the discussion.
The City Clerk stated she just briefly looked though the bylaws and did not see specific
direction on recusals.
Commissioner LoPilato inquired whether there could be some clarity on the exact
verbiage that should be used when evaluating the nature of complaints; for example, is it
binary between sustaining a complaint or finding it unfounded or whether a complaint is
sustained and has merit or not.
The Chief Assistant City Attorney responded based on the text of the Sunshine
Ordinance, it is not a binary; a complaint can be sustained that has merit is one option;
another option is, after examination of the facts, there is a vote that the complaint does
not have merit so it is not sustained; there is yet a third option where a decision is made
that the complaint is unfounded, which was the Commission's March meeting vote; it was
discussed at that meeting that there is no definition within the Sunshine Ordinance of
unfounded, so the Commission needs to make the definition for each complaint; there are
ramifications of a complainant having two unfounded complaints within a specific
timeframe.
Commissioner LoPilato stated it would be helpful for Commissioners and the public to
have a better sense of authorship and purpose of each of the documents enclosed with
Meeting of the
Open Government Commission
April 5, 2021
2",OpenGovernmentCommission/2021-04-05.pdf
OpenGovernmentCommission,2021-04-05,3,"the agendas; inquired that the Chief Assistant City Attorney or City Clerk give some
specificity with respect to what the Commission has reviewed.
The Chief Assistant City Attorney responded basically both sides in each complaint have
the option to present written arguments, which can take any form; the written argument
submitted on behalf of the City appears more legal in nature because the City has retained
outside counsel; another document would perhaps be titled proposed decision or
suggested decision; the form of the document looks like a final Commission decision; the
document is prepared by outside counsel; it is the conclusion that the outside counsel is
urging, but it is not a requirement that the Commission needs to agree with it.
The City Clerk stated the City has always prepared a draft decision and presented it to
the Commission for every single case; the draft decision gives the Commission a starting
point; there have been times where the Commission has taken the opposite position than
what was in the draft decision; going forward, it could be made clear that the decision is
just a recommendation from the City and not final.
Commissioner LoPilato inquired whether the staff report is actually by special counsel
and not the staff recommendation or Chief Assistant City Attorney's framing of the issue;
and whether it is an advocacy piece it is a position statement by the attorney's
representing the City in the adversarial adjudication.
The Chief Assistant City Attorney responded in the affirmative; stated the staff report is
an adversarial piece and the waters are a bit muddied because it is also the City's
position; in this particular instance, the staff report is the position of the City and the
particular department within the City.
The City Clerk stated the City has always presented the staff report from its viewpoint.
Commissioner Reid inquired why staff and special counsel prepare a decision before the
Commission hears a case; stated that she understands is has been common practice,
but wonders if the Commission wants to continue the practice; further inquired whether
the prepared decisions ever held the position of sustaining a complaint; stated it
is
important to know if the practice will continue; requested that the Chief Assistant City
Attorney read the specific Public Records Act (PRA) Section 6250 3C Mr. Morris included
in his complaint.
Chair Tilos stated the Commission could address Commissioner Reid's question whether
to continue the draft decision process during Commissioner Communications.
Commissioner Chen concurred with Commissioner Reid; stated it seems like the deck is
already stacked to reject the complaint from the get go; her understanding is that
Commissioners should have an open mind when cases are presented; the staff report
states that someone filed a complaint and it was already resolved; the complaint is not
seen until the third or fourth document; it is not a fair process for residents who go through
the trouble of filing a complaint to have all of these opposing documents in the beginning;
Meeting of the
Open Government Commission
April 5, 2021
3",OpenGovernmentCommission/2021-04-05.pdf
OpenGovernmentCommission,2021-04-05,4,"to already have the Commission's opinion written seems like a stacked deck; she is
concerned about the way the documents come before the Commission; it was not until
she saw Mr. Morris's statement that she actually understood what was going on.
The City Clerk stated staff hears the Commission and can come back with a different
format next time with a more neutral staff report with the two opposing sides attached.
The Chief Assistant City Attorney stated she concurs with the City Clerk about the
discussion to clarify the staff report format issue; emphasized that the proposed decision
submitted by special counsel in both cases is the way that they are advocating; the other
side is open to prepare their own desired decision as well; when attorneys file motions in
court, typically, both sides prepare a proposed order or decision; it is a way for the
attorney to urge the judge; she apologizes that it seems like stacking the deck, but the
proposed decision is truly an advocacy piece; she appreciates the comments and the City
Attorney's office will work with the City Clerk to clarify the process as appropriate.
Complainant Scott Morris gave a brief presentation.
Special Counsel Kristen Rogers gave a brief presentation, including outlining objections
to Vice Chair Shabazz participating in the discussion.
Vice Chair Shabazz inquired whether responses to PRAs are 10 calendar days or 10
business days, to which the City Clerk responded it is 10 calendar days.
Commissioner LoPilato inquired whether Mr. Morris received the full time frame of the
documents he sought from the other County agencies or if the agencies just gave him
more than Alameda.
Mr. Morris responded each of the other 12 county agencies gave him the full time frame
of the documents he requested, except for the Alameda County Sheriff's office and the
Oakland Police Department, neither of which appropriately responded to his request at
all which is the subject of litigation right now with the City of Oakland.
Commissioner LoPilato inquired whether the notion of limiting it to contemporaneous as
to a specific look back period is something that Mr. Morris saw in a written statute or was
it purely from case law.
Mr. Morris responded the statute of issue has a list of things the City must deliver with
regards to each arrest; current address used to be included; based on that, a Court of
Appeals in Los Angeles interpreted the legislative intent of the law to be that it would only
be for a limited period of time, but what the time would be was not defined and was only
supposed to be what was reasonable; in 1995, the legislature removed the current
address; years later there was a different decision looking directly at the subsequent
section of that statute which defines the list of things that has to be released about every
time a Police Officer goes somewhere and current address was also removed; since the
language was removed, it does not apply anymore; there is no reason that it has any kind
Meeting of the
Open Government Commission
April 5, 2021
4",OpenGovernmentCommission/2021-04-05.pdf
OpenGovernmentCommission,2021-04-05,5,"was taking initially; now it is a 30-day look back period; requested special counsel to walk
through the steps of whether the policy was changed and whether there is continuing
evaluation of ongoing changes.
Ms. Rogers responded that she may have to rely on Captain Emmitt for some details;
stated that she understands the 30-day policy went into effect when the Police
Department actually undertook to improve its Information Technology (IT); it was a matter
of practical possibility of the time to be able to expand the records; the records can be
viewed on the Department's website in real time up to 30 days back; it is now the practice
and technological capability of the Department to have that 30 days.
Commissioner LoPilato stated that she is also curious if someone comes in with a request
for 30 days, will they automatically get the information; inquired whether the current
practice changed due to Mr. Morris's complaint.
The Police Captain responded that he does not now know where the 14-day policy came
prior to May 12, 2020 because everyone involved in the executive decision making
process at that time has retired; he was promoted to Captain in July 2020; since that time,
the City has taken the position that the Police Department would provide 30 days; most
of the decision came from knowing that the Department's Computer Aided Dispatch
(CAD) and records management system was being upgraded and would be able to
handle requests in an almost real time basis; the new system went live on February 24,
2021 and live with the Citizen Rims function on April 1st; information goes back to March
26, 2021; as the system moves forward, the database will continue to build information;
there is a specific tab on the Citizen Rims page that is dedicated to arrests and is a rolling
30 day calendar; after 30 days, the names that are 31 days or older will drop off the
system; he hopes that the system points citizens in a direction where they will have more
information available.
Commissioner LoPilato stated Ms. Rogers mentioned that Alameda's policy is generally
consistent with judicial guidance and policies from sister jurisdictions; requested Ms.
Rogers to elaborate and inform the Commission how the benchmarking occurred and
which jurisdictions Alameda aligns with.
Ms. Rogers responded that she would first like to address Mr. Morris's statements to help
Meeting of the
Open Government Commission
April 5, 2021
5",OpenGovernmentCommission/2021-04-05.pdf
OpenGovernmentCommission,2021-04-05,6,"elucidate exactly what the judicial landscape looks like; the staff report explains that the
Kusar decision in 1993 rested on a statutory interpretation argument supplemented with
a purpose of the interplay of the PRA provision as it relates to other protections for exactly
the same information that are found in the Penal Code and other somewhat codependent;
in some cases, there will be a very clearly articulated privacy interest; in the Kusar case,
the rules of civil discovery were also barring some of the accessibility of the requested
records.
In response to Ms. Roger's inquiry, Commissioner LoPilato stated the explanation
provides a good balance with regard to the legal landscape, but she is still interested in
the jurisdictional comparisons with respect to the length of the policy and look back.
Ms. Rogers stated San Leandro, Pleasanton, Berkeley, Milpitas and San Diego all have
30 day look back policies; the League of California Cities provides top notch legal
guidance to municipalities throughout the State.
Commissioner Reid inquired what data was finally provided to Mr. Morris and if he
received the full scope that he requested.
Mr. Morris responded in the affirmative; stated he received the data more or less after
a
lot of back and forth, he did receive what he requested.
Commissioner Reid inquired whether the data is identical to what is currently viewable on
Police logs.
Mr. Morris responded he is not sure what is currently viewable and is not exactly sure
what he ended up getting off the top of his head; the statute defines a lot of things like
eye color and things like that he was not even interested in; he was really looking for who
was arrested, on what charges and the disposition; he does not recall the specific details
of everything included in the statute.
Commissioner Reid inquired whether Mr. Morris received a response on April 27th from
his initial request on April 15th, to which Mr. Morris responded in the affirmative; stated
the dates sound accurate, though he does not have the specific dates in front of him.
Commissioner Reid stated the initial response to Mr. Morris went beyond the 10 days.
The Chief Assistant City Attorney stated the 10 day period can be extended to 14 days to
respond whether or not there are documents and, then, the actual disclosure comes later.
The City Clerk added that potentially the period could go longer than 10 days if it falls on
a Saturday or Sunday, it can bump to Monday as well; it is important to note the day of
the week.
Commissioner Reid reiterated the timeline for Mr. Morris PRA request; inquired why the
data was given to Mr. Morris in three separate sections and what was missing.
Meeting of the
Open Government Commission
April 5, 2021
6",OpenGovernmentCommission/2021-04-05.pdf
OpenGovernmentCommission,2021-04-05,7,"Mr. Morris responded that he was given the data 30 days at a time; stated the Assistant
City Attorney initially only gave him 30 days data; Mr. Morris then cited contradicting case
law and was given an additional 30 days data; he was looking for 90 days total data; he
specifically wanted to know whether the Police Department changed its booking practices
in response to COVID 19 because there had been some guidance from the Sheriff's Office
not to book people into jail under particular circumstances; until he complained on Twitter
and filed a complaint, he was not able to get the full scope of what he was asking; he
does not feel Vice Chair Shabazz was giving him a wink as a receptive audience, it was
a way for him to actually get some accountability and the option existed.
In response to Commissioner Reid's inquiry regarding how his complaint was classified,
Mr. Morris stated the Assistant City Attorney asked him specifically to delay his complaint,
not to withdraw it, but delay it for 30 to 60 days for the reason that he was serving other
agencies in the area and that he was going to come up with a policy that was more in line
with the law; Mr. Morris told the Assistant City Attorney that he consulted with attorneys
who said there is not any reading of the statute that does not say the full universe of
arrests as retained by the Police Department are available; he stated the City's policy has
to be to provide arrests within the period of retention and if they have those records, they
have to release them; the Assistant City Attorney knew his position and stated he would
work on something that would strike a balance after talking to other Police Departments;
that conversation was the last Mr. Morris ever heard from the Assistant City Attorney on
the issue; there was no follow up; only after Vice Chair Shabazz approached him
regarding the status of his complaint, it was placed on the agenda tonight.
Commissioner Reid inquired what the process is from the City's standpoint when a
complaint is put on hold.
The Assistant City Attorney responded he had a discussion with Mr. Morris about
establishing a records retention policy; stated Mr. Morris told him he was represented by
an attorney; he told Mr. Morris to have his attorney contact him with some ideas about
best practices; Mr. Morris's attorney never contacted him; maybe there was a
miscommunication, but he felt that under the State bar rules of ethical conduct he was
prohibited by law from contacting and having conversations with someone who is
represented by counsel; he was waiting for a phone call from Mr. Morris's attorney and
never received one.
Mr. Morris stated the statement is not true; he did not say he was represented by counsel;
he said he had spoken to a lawyer to ask some questions, but the lawyer was not
representing him; it was not supposed to be an adversarial thing; the Assistant City
Attorney asked him to have the lawyer advise the City on what best practices would be,
which would not be appropriate if the Assistant City Attorney thought it was opposing
counsel; the lawyer did not think it was a good idea for him; to say that he was represented
by counsel and that was the reason the Assistant City Attorney was prohibited from talking
to him is just not true.
Meeting of the
Open Government Commission
April 5, 2021
7",OpenGovernmentCommission/2021-04-05.pdf
OpenGovernmentCommission,2021-04-05,8,"PUBLIC COMMENT:
Stated the complaint was handled very poorly by the City; to classify the complaint as
voluntarily withdrawn is erroneous and indefensible; it is a violation of how public records
requests should operate; to preach about the City's 30 day policy and then release
records from day 31 to 90 does not hold water; it sounds like the City does not have a
policy: Matt Reid, Alameda.
Stated that she found it curious that the balancing test and redacting minors applies when
it pertains to APD and their records, but not in regards to our neighbors interested in
working on police reform; she is confused why Vice Chair Shabazz is being taken to task
tor merely communicating with a reporter, when a Councilmember and former Mayor who
released the names of neighbors on a Next Door post: Jenice Anderson, Alameda.
Chair Tilos stated the whole reason for the Commission is to be more public and more
transparent about records; some things did not go smoothly; he urges the Commission to
include that in the discussion; he hopes to tackle some of the points brought up in the
conversation that do not seem right.
Vice Chair Shabazz stated there is something to say about the process the complainant
shared; the 12 day response period violates the California Public Records Act.
Chair Tilos stated there is a contradiction between calendar and business days if a
response could carry forward if day 10 falls on a Saturday or Sunday.
The City Clerk clarified that City Hall is only open 4 days a week, Monday through
Thursday; typically, the City tries to respond by Thursday if it falls over the weekend; April
27th was a Monday, which added extra days.
Vice Chair Shabazz stated that he asked the question because his understanding is it is
calendar days; the law does not state it is business days; regardless of the operations of
the City and what typically happens, it did not happen in this case; unless there is some
correspondence requesting a 14 day extension, the City did not respond timely and was
in violation of the Sunshine Ordinance; one of the main questions he has is why all the
information was not given in the initial request; in 2018, he also filed a PRA request for
arrest information, which was also denied; it was not until later requesting information that
he eventually got it; regarding Mr. Morris's request from the correspondence as visible ,
it does not seem that there is a technical challenge to be able to access the information;
again, there just seems to be something blocking information coming from the City
Attorney's Office; he suggests finding the complaint sustained on the basis of the lack of
response within the 10 day period; as far as potential resolutions, there could be some
conversation about a potential pattern and some reform to provide consistent access to
records, particularly coming from the City Attorney's office.
Commissioner Reid stated that she agrees with the goal of transparency and access to
information; if data is accessible, it should be provided on day one.
Meeting of the
Open Government Commission
April 5, 2021
8",OpenGovernmentCommission/2021-04-05.pdf
OpenGovernmentCommission,2021-04-05,9,"Commissioner LoPilato stated that she is troubled by the same patterns; requested the
Chief Assistant City Attorney to clarify what the timeliness requirement is with respect to
calendar or business days under the law.
The Chief Assistant City Attorney stated her understanding is that the Public Records Act
does not specify a calendar versus business days and that general principles of law
indicate that absent a denomination of either of those terms, the default is calendar days;
in this case, the request was made on Wednesday, April 15th and the 10 day period would
have been on a Saturday, the 25th, so the 27th was the first business day.
Commissioner LoPilato stated there is a heightened privacy interest in the differences
and types of information someone can request from a Police Department; she does see
privacy interest in arrest records relative to calls for service which sounds to be a
reasonable premise on which the case law may have developed to have a slight
delineation between whether it makes sense to have a temporal limitation on arrest
records because there is countervailing privacy interests; from a common sense and
societal concern standpoint, it is important to balance transparency and privacy interests.
Commissioner LoPilato moved approval of redacting personal information in the May 12,
2020 attachment, which contains the arrest record log; stated that she was troubled to
see the information with respect to names and addresses on the website for the purposes
of tonight's hearing; it is important to have a mechanism from the transparency standpoint
to redact the information.
Chair Tilos seconded the motion.
In response to Commissioner LoPilato's inquiry, the Chief Assistant City Attorney stated
it is an appropriate motion and is fine from a legal standpoint.
The City Clerk concurred; stated the redaction can be done.
Under discussion, Vice Chair Shabazz stated that he appreciates and supports the
motion; his intention for forwarding the materials he received was to share some of the
dialogue that was not included in the exhibits or shared from City staff; it is important to
have the other material that was omitted.
On the call for the question, the motion carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Reid: Abstain; Shabazz: Aye; Chair Tilos: Aye.
Ayes: 4. Abstention: 1.
Commissioner LoPilato stated the timeliness is an interesting aspect looking at the
technicalities; she is unclear what the Commission's authority is to recommend other type
of solutions, but she is curious to know what others think about the timeliness issue; there
is another angle there that was not fleshed out.
Meeting of the
Open Government Commission
April 5, 2021
9",OpenGovernmentCommission/2021-04-05.pdf
OpenGovernmentCommission,2021-04-05,10,"Vice Chair Shabazz stated that he was surprised no one did the math of 27 minus 15
despite all the legalese; he agrees with Commissioner LoPilato that privacy and balancing
is a really important principle and should be in the conversation about policy; it was
promised by a staff member to do or work with a member of the community and it was
never followed-up; there were some unfulfilled promises going back to the relationship
piece; reiterated his experience when requesting information regarding an arrest made at
the Target in 2017; his request was stonewalled by the City; he was eventually able to
get the correct information from the District Attorney's office; the social media account
was used to put out a certain narrative; being able to access information allowed him to
nuance the story in a certain way; he appreciates the concerns about privacy rights; there
is something to be said about the public interest and journalists being able to access
information to tell stories; questioned where Alameda's benchmark is in relation to other
agencies; stated there seems to be some challenges regarding the PRA in the City
Attorney's Office; one of the potential resolutions is having the Annual Report now; one
of the duties of the Commission could perhaps be evaluating the performance of the City
Attorney's Office; if there is a sustained complaint and the Commission wants to impose
a penalty, perhaps someone could attend a PRA training.
In response to Chair Tilos's inquiry, the City Clerk stated the Commission has to have the
written decision done within 30 days as required in the Code; the clearer direction the
Commission could provide for the written decision to be circulated for all members to sign,
the better; the next meeting is not until May which would be past the 30 days.
Commissioner Reid inquired whether or not records should be made available to the
public if the policy of the City is to retain the records; further inquired if Chair Tilos was
leaning more towards sustaining the complaint.
Chair Tilos responded in the negative, stated something is wrong; it can go several ways;
it could be sustained or unfounded or found with merit; he does not think the Commission
has all the answers yet; there is still another complaint to address and more conversations
to have.
Commissioner Chen stated the Commission did find something wrong; a citizen seeking
public information was pushed around; until he made the actual complaint, he did not get
the data he was requesting; if this is how Alameda is going to treat public records
requests, it is an important issue, but it is not on the agenda; the Commission needs to
agendize it for another meeting not to be in violation of the Sunshine Ordinance for
discussing and acting on an issue that the public was not pre-warned about; the
complainant did admit that he did not think he had a valid Sunshine Ordinance complaint
at this point, so he is just utilizing this as a forum to be able to speak with the Commission
and the community at large regarding the difficulty he had with obtaining public records;
there does need to be a vote whether the Sunshine Ordinance was violated according to
his complaint; then, pick up the PRA issue at a subsequent meeting.
Chair Tilos stated that on the issue of timeliness, the complaint could be found sustained;
he concurs with Commissioner Chen about agendizing the issue regarding the process.
Meeting of the
Open Government Commission
April 5, 2021
10",OpenGovernmentCommission/2021-04-05.pdf
OpenGovernmentCommission,2021-04-05,11,"Vice Chair Shabazz stated that he agrees there was a violation of the Sunshine Ordinance
due to the lack of timely response and he is prepared to make a motion to that effect; for
his own complaint in 2019, there was a subsequent meeting and process of how the
actual decision was written and was hoping that could be a potential option; he is
concerned about the behavior of City staff in this situation; people should not have to file
a complaint just to receive a response when they make a request under the California
PRA.
Commissioner LoPilato stated that she is curious about the resolution options; she would
like to know how to bifurcate the motion.
Chair Tilos stated that he would approve sustaining on the basis of timeliness; discussing
the process could come at another meeting.
The Chief Assistant City Attorney stated her role is not as an advocate for either side; it
is to provide guidance on the law; there is a provision in the Code of Civil Procedure that
is accepted for all courts in California that when the last day to perform or complete an
act falls on a Saturday, Sunday or holiday, the timeliness limit is extended to the next
court day closest to the trial date; there are no references within the PRA so the default
is calendar days.
Commissioner LoPilato stated that she appreciates the clarification since it is such a tight
technicality, which also was not offered up by the complainant; in civil litigation, there is a
similar issue that occurs where parties are asked to engage in discovery and document
production; it is a little similar in that there is a 30-day timeline; inquired whether there is
an analogous production deadline.
The Chief Assistant City Attorney responded it is her understanding that if the due date
to provide discovery falls on New Year's Day, you would get the benefit of the holiday;
stated most attorneys would ensure that documents are postmarked or emailed timely.
Vice Chair Shabazz stated that he is hearing it is the spirit of the law versus the letter of
the law; he finds it interesting that in the response to the complainant there was a quick
going to the letter of the law, but he sees the Commission is feeling a little bit more
merciful; due to his own previous experience with requesting information under the PRA,
it is evidence of a previous violation for the current incident; his own opinion is to go with
the letter of the law for the 10 day response time which was not referenced by the legal
analysis and, then, coming back to figure out what the potential penalty or
recommendation is; he is leaning more toward the letter of the law in this instance
because of the pattern he has observed.
Commissioner Reid moved to sustain the complaint based on the fact that Mr. Morris did
not receive the totality of his request within the 10 days through the provisions of the
California PRA.
Meeting of the
Open Government Commission
April 5, 2021
11",OpenGovernmentCommission/2021-04-05.pdf
OpenGovernmentCommission,2021-04-05,12,"Chair Tilos stated the 10 days refers just to the response, not to the providing of the
documents, so it is a false motion.
Commissioner Reid restated her motion to sustain the complaint based on the lack of
receiving a response within the required 10 day allotment through the California PRA.
The Chief Assistant City Attorney noted there is actually a provision in the California
Discovery Act that If the last day to perform or complete any act of discovery falls on a
Saturday, Sunday or holiday, the time limit is extended until the next court date closer to
the trial date.
Vice Chair Shabazz seconded the motion.
Commissioner Chen stated somehow the Commission wants to punish the wrongdoing
by acting on this motion, which really does not get to the heart of the problem; she thinks
the Commission has to go another route to get to the heart of the problem and needs to
separate whether or not the Sunshine Ordinance was violated as per the complaint; the
Commission is bending over backwards to count 10 days and try to use a mechanism
that will not allow doing something, which should be done at a later date.
Chair Tilos concurred with Commissioner Chen; stated the Commission knows something
is wrong but are basing the motion on a technicality where he thinks the Commission
needs to dig deeper to find out what is really wrong and form that into a motion.
In response to Chair Tilos's inquiry, the City Clerk stated the last time, the Commission
actually continued the hearing; the matter was continued and there was not a quorum, so
it ended up on a subsequent agenda; the Commission could continue the item to a
specific date and formulate the decision on that day in order to get to the other agenda
items.
Chair Tilos inquired whether the item could be continued to the next meeting or to next
Monday, to which the City Clerk responded the timeline is 30 days to formulate the
decision.
Commissioner Reid withdrawing her previous motion; moved approval of just sustaining
the complaint.
Vice Chair Shabazz stated there is a motion and a second on the floor; he suggested that
in the context of this discussion; he is interested in what the other Commissioners have
to say; he does understand the intention of withdrawing the motion to put another one
forward.
Chair Tilos stated the Commission is within procedure and is not out of bounds based on
precedent.
Commissioner LoPilato stated in the interest of moving things along and also for
Meeting of the
Open Government Commission
April 5, 2021
12",OpenGovernmentCommission/2021-04-05.pdf
OpenGovernmentCommission,2021-04-05,13,"transparency, she is finding herself aligned with Commissioner Chen's comments and
still also troubled by what was heard today.
Vice Chair Shabazz stated that he is concerned with making sure the Sunshine Ordinance
is being applied; neither the complainant or the legal counsel specifically address this;
questioned if this issue is not what is sustained or addressed, then what is the process;
when there is a pattern, or at least more than one instance of this happening, what is the
mechanism to change the behavior; stated at the core of it, he still feels there was a
violation even if it was not explicitly stated by the complainant or the presentation.
In response to Commissioner Reid's inquiry, Chair Tilos stated her latest motion to sustain
was made but not seconded and is being discussed.
Commissioner Reid stated that she would amend her motion; the dates fall under 14 days
and technically is a violation; pointed out the importance that the requestor did not receive
the totality of the information that he requested and the fact that he had to go back and
forth, which took an extended period of time; the Commission collaboratively agrees that
it
was not the procedure that falls within the spirit of the Brown Act and the transparency
the Commission is seeking.
Commissioner Reid moved approval of sustaining the complaint based on the lack of
timeliness.
Chair Tilos stated that he likes where Commissioner Reid is going, but wants to phrase it
more succinctly; stated the complaint is being sustained due to lack of totality of his
requests in an efficient manner.
Commissioner Reid amended her motion to include that it did not follow the spirit of the
Brown Act and the requestor did not receive the totality of his requests in an efficient
manner.
Vice Chair Shabazz stated the references to the Brown Act and the PRA does not
prescribe a specific time in which records have to be produced, the 10 days is related to
a response.
Chair Tilos stated that is why he used the word efficient; it was not efficient for Mr. Morris
to go back and forth and file a complaint before getting any information.
Commissioner LoPilato stated it would be good to get some legal guidance on the terms
of totality and efficiency that she is not aware as rooted in law.
Commissioner Chen stated the description of the Commission's duties includes reporting
to the City Council at least once annually on any practical or policy problems encountered
in the administration of the Sunshine Ordinance; she feels like Mr. Morris's claim is not
sustained, but to double down on saying his complaint highlighted and brought into the
spotlight a real serious problem that he is not the only one who has faced; the Commission
Meeting of the
Open Government Commission
April 5, 2021
13",OpenGovernmentCommission/2021-04-05.pdf
OpenGovernmentCommission,2021-04-05,14,"is tasked with telling the City Council where problems emerge in the Sunshine Ordinance.
Chair Tilos stated Commissioner Chen's comments as something that could be
agendized or put under Commissioner Communication for another meeting.
The Chief Assistant City Attorney clarified some points, including that the Sunshine
Ordinance does require a response from the City within 10 days as to whether or not
there are responsive documents; if more time is needed to make that determination,
a
notice can be sent out to the requesting party that an additional 14 days is needed; there
is no set deadline in producing the documents; there is a lot of case law about what a city
needs to follow and the efforts it needs to make, but there is no specific time frame or
parameters that spell out exactly what the City has to do that is objective; regarding the
terms totality and efficiency she is not aware of those terms being used in the Sunshine
Ordinance; she does not know whether either of the terms is used in case law that
interprets either the Brown Act or PRA; the terms are general and may be used in some
case law, but, to her knowledge, it is not used in some standard in the Sunshine
Ordinance before the Commission tonight.
Commissioner Reid stated the issue is not that the documents did not exist; the issue is
that the City was reluctant to give documents to the requestor; Mr. Morris did not receive
what he requested until he had to finally push for the information by filing a complaint;
when the City responded, all the data was given to Mr. Morris in one day, which was 87
days of data; this is why she strongly feels the complaint is sustained; when a requestor
receives resistance or has an obstacle, it is the duty of the Commission to ensure there
is transparency and members of the public should be able to confidently request and get
information from the City with full transparency; her motion is to sustain the complaint.
Vice Chair Shabazz stated that he understands one of the intentions of the California PRA
is the balancing act of having transparency weighed against the privacy of citizens;
another aspect of the balancing is the efficient operations; to him, the issue around the
10 days is clear that it is not the production of the full amount of data within the 10 or 14
days; it is 10 days to respond to the request; he understands the concerns that it seems
like a technicality; an option to addressing it is the concept of restorative justice and how
it can be applied in this situation; one way is to address the Council as Commissioner
Chen suggested; another way is to get an updated policy which Mr. Cohen promised to
Mr. Morris; an finally, something related is the City's retention policy; these are all potential
opportunities; it all goes back to what the complainant said was needed; it was centered
around not having any obstruction; he thinks sustaining the complaint and coming back
with specific recommendations within the scope as a Commission and asking for
guidance from the City Council or asking for a report from the City Attorney's Office on
how they are implementing the PRA so that this experience does not happen again.
Commissioner Reid inquired whether Vice Chair Shabazz's comments were a second to
her motion, to which Vice Chair Shabazz responded in the negative.
In response to Chair Tilos's inquiry, the Chief Assistant City Attorney stated that she sees
Meeting of the
Open Government Commission
April 5, 2021
14",OpenGovernmentCommission/2021-04-05.pdf
OpenGovernmentCommission,2021-04-05,15,"three different options: 1) sustain, 2) not sustain, and 3) find it unfounded which means it
has been found to have no merit; inquired whether any Commissioners asked about the
timeliness issue while both parties were still participating via Zoom.
Chair Tilos responded in the affirmative; stated he believed Mr. Morris was asked and
responded he felt the initial response was timely.
The Chief Assistant City Attorney stated that she just wanted to make sure the parties
were heard on an issue that seems to be important to some Commissioners.
Vice Chair Shabazz stated that he did bring the question up during the clarification part;
he noticed Mr. Morris had his hand up, perhaps to respond to the Chief Assistant City
Attorney's question.
Chair Tilos stated there is a motion that was not seconded; asked if there were any other
motions.
In response to Commissioner LoPilato's inquiry, the City Clerk stated it is the
Commission's prerogative whether to allow Mr. Morris to address the Commission; if there
are more questions, the Commission is not prevented from asking questions of anyone.
Commissioner LoPilato moved to hear from Mr. Morris whether he had concerns about
the timeliness of his request.
Mr. Morris stated the 10 day issue was not really a big issue for him; the fact of the matter
is that the PRA does have a requirement for this agency to produce records promptly;
that is the word that is being danced around; he is surprised that the Assistant City
Attorney did not mention this; when you talk about timeliness or efficiency, there is a
requirement that once a determination is made that there are records available, those
records need to be provided promptly; it is a legal term from statute and what really was
violated here.
Vice Chair Shabazz moved to sustain Mr. Morris's complaint on the basis that the City
did not respond to his request promptly.
Chair Tilos stated he that wants to add the phrase in totality.
Vice Chair Shabazz stated that he would be against doing so; his perspective is that the
Commission is trying to recognize that something was not done properly; the 10 days is
one part and that was about notifying; in Mr. Morris's case, the information was not
provided until 12 days later; the initial piece is that his request was not responded to in a
timely fashion; then, it addresses the other layers he identified a while ago.
Commissioner Reid seconded the motion.
Under discussion, Commissioner Chen stated the complaint appears to be about the
Meeting of the
Open Government Commission
April 5, 2021
15",OpenGovernmentCommission/2021-04-05.pdf
OpenGovernmentCommission,2021-04-05,16,"court decision that was cited; questioned whether it is valid to abandon the original
complaint because the Commission found violations of the Sunshine Ordinance.
The Special Counsel stated that she concurs with the Chief Assistant City Attorney
regarding the timeline issues; stated what is really important to recognize is what was
included in the materials provided on the 27th was what was going to be required to
produce a lot of the records and a very important privacy interest; just because the
information is available, does not mean it is easily produced; she thinks the response
from the City was timely.
In response to Commissioner Reid's inquiry, the City Clerk stated the Commission could
have discussion of the motion once it is seconded and also someone could make a call
for the question if they feel there has been enough discussion.
Commissioner Reid stated from her point of view, the complainant did not receive the
information on his request in a prompt manner; on that basis, she requests that the
Commission sustain the complaint.
Commissioner Chen stated that she agrees with everything Commissioner Reid said, but
that is not what the complaint is; she is having trouble and needs clarification; it is clear
that the City needs to do better in responding to PRAs, but that is not the issue of the
complaint on tonight's agenda.
Commissioner Chen made an amended [substitute] motion; moved approval of not
sustaining the complaint itself; however, the Commission found a lot of other issues on
how the complaint was responded to and would like to explore further with the City
Attorney's Office to address them.
The amended/substitute motion was not seconded.
Vice Chair Shabazz stated that he sees Commissioner Chen's point of view; the question
is does the Commission have to make a determination of a violation solely based on what
was put into the complaint; he is ready to call the question and may also have an alternate
solution.
On the call for the question, the motion carried by the following roll call vote:
Commissioners Chen: No; LoPilato: No; Reid: Aye; Shabazz: Aye; Chair Tilos: Aye. Ayes:
3. Noes: 2.
Vice Chair Shabazz stated the only language in the Sunshine Ordinance relates to the
disposition of a complaint is unfounded; there have been recommendations to sustain
and not to sustain; the suggestion he was going to share was to just say that the complaint
has merit; based on the complaint having merit, the Commission could proceed to
recommend some of the particular cures that have been stated; if there is support for it,
he would be willing to make a motion to reconsider the last vote and make a new motion.
Meeting of the
Open Government Commission
April 5, 2021
16",OpenGovernmentCommission/2021-04-05.pdf
OpenGovernmentCommission,2021-04-05,17,"Chair Tilos stated the next step is to draft the decision.
Vice Chair Shabazz stated as a point of order, he is more interested in the restoring part
or what happens next; it is also important to address so the same issue does not happen
again.
Chair Tilos stated the issue can be addressed with a letter to City Council, as
Commissioner Chen suggested, on how to make changes to the policy.
The Chief Assistant City Attorney stated that she wants to confirm that to the extent that
there is going to be any recommendation from the Commission as to any policy change,
it will be a request to the Council to make that policy change and should definitely be
agendized.
***
Chair Tilos called a recess at 9:55 p.m. and reconvened the meeting at 9:59 p.m.
***
3-C. Hearing on Sunshine Ordinance Complaint Filed by Jay Garfinkle on February 25,
2021
Complainant Jay Garfinkle gave a brief presentation.
Special Counsel Kristen Rogers gave a brief presentation.
The City Clerk stated a motion is needed to consider remaining items.
Commissioner LoPilato moved approval of considering the remaining items in order to
get a response back to City Council.
Commissioner Chen seconded the motion.
Under discussion, Vice Chair Shabazz stated it is great that the City wants a response
but he does not know whether it should motivate the Commission's agenda, goals and
priorities, which is partially why he suggested the Commission collectively agree on its
goals and priorities; he does not know if the Commission would be able to have the
substantive discussion within the context of the Brown Act.
Chair Tilos stated that he is leaning toward that route as well; he would like to give Mr.
Garfinkle his time so he will not vote to consider the next item.
On the call for the question, the motion failed by the following roll call vote: Commissioners
Chen: Aye; LoPilato: Aye; Reid: No; Shabazz: No; Chair No: Aye. Ayes: 2. Noes: 3.
***
Meeting of the
Open Government Commission
April 5, 2021
17",OpenGovernmentCommission/2021-04-05.pdf
OpenGovernmentCommission,2021-04-05,18,"Mr. Garfinkle stated the only interested citizen was the lobbyist who created the resolution
and lobbied Council; the general public was not aware it was on the agenda which did
not allow them to weigh in on a very contentious piece of legislation.
Vice Chair Shabazz stated that he believes Mr. Garfinkle is out of order in discussing the
specific merits of the legislation.
Mr. Garfinkle stated he did not want to debate every issue, but would respond if people
have questions; the bottom line is that whether or not a legitimate process or resulted in
instruction being given to lobbyists to say that the citizens of Alameda do not want to
require previous law enforcement experience for Sheriffs; it is not an affirmative action
issue; the question is how to go about getting the most qualified people to be Sheriffs; he
believes that if Alameda citizens had the opportunity to weigh in on it, they would have
opposed the resolution; they were not even given the opportunity, which is the violation.
Vice Chair Shabazz inquired whether there is a specific practice for legislation to be
adopted and lobbied by the City.
The City Clerk responded most typically, specific legislation that goes to Council goes
because it is considered outside the scope of the legislative agenda; the vast majority of
stances on bills are done under the umbrella of the legislative agenda.
Commissioner Reid stated that she did not see that it was common practice for other
cities to include specific bills on their legislative agendas; inquired if that is correct.
The City Clerk responded that she has not done a review of other cities and would not be
able to comment on it; she would say that Alameda has done various iterations in the past
and quite frequently specific Councilmembers raise specific bills under the umbrella.
Commissioner Reid inquired whether specific bills appear in the legislative agenda, to
which the City Clerk responded generally it there are just larger topic.
Commissioner Reid inquired who decides which State bills the City supports, to which the
City Clerk responded the City Manager's office.
In response to Commissioner Reid's inquiry, the City Clerk stated the support letters are
sent out under the umbrella of the legislative agenda.
Commissioner Reid stated that she reviewed the video from the February 16th meeting
and noticed a speaker was actually a lobbyist for the legislation and was noted in the staff
report as a community member; she does not think that a lobbyist who is involved in the
production of the legislation or supportive of a bill qualifies as what an Alameda resident
would expect as a community member.
Vice Chair Shabazz inquired of Chair Tilos if the Commission is asking clarifying
questions or stating opinions about members of the community.
Meeting of the
Open Government Commission
April 5, 2021
18",OpenGovernmentCommission/2021-04-05.pdf
OpenGovernmentCommission,2021-04-05,19,"Chair Tilos responded questions and comments only at this time, inquired whether
Commissioner Reid had questions for Mr. Garfinkle or Ms. Rogers.
Commissioner Reid responded she would hold her questions for now.
Commissioner LoPilato stated her understanding of the procedure; inquired whether Mr.
Garfinkle verified that Mr. Hofer is a registered lobbyist or if he was just using the term in
reference that he was part of a non-profit organization.
Mr. Garfinkle responded that he drafted the resolution and presented it to several cities;
whether or not he is a registered lobbyist is not the issue; he is acting as a lobbyist and
is not a random member of the Alameda community.
Commissioner LoPilato inquired whether Mr. Garfinkle was speaking on behalf a group
of citizens when using the word ""our"" in presentation materials, to which Mr. Garfinkle
responded it is editorial.
Commissioner LoPilato inquired whether the legislative agenda is typically done as a
consent calendar item, to which the City Clerk responded in the affirmative; stated it is on
the consent calendar every year.
Commissioner Reid inquired a definition of what items are allowed to be on the Consent
Calendar.
The City Clerk responded items that are considered routine.
Commissioner Reid inquired whether it could be said that non-controversial items can be
on the Consent Calendar.
The City Clerk responded she would not make that statement because some people
might find spending money on a vehicle controversial and some people might not.
Commissioner Reid stated she found the definition in Robert's Rules and just wondered
if it aligned with Alameda's policy for its Consent Calendar.
The City Clerk stated if there was an item that would bring out the public, it would be
definitely placed on the Regular Agenda.
Ms. Rogers further clarified that Council or a member of the public could pull an item off
the February 16, 2021 Consent Calendar for discussion and had opportunity to do so
during the Council meeting.
Mr. Garfinkle stated he has issues with the use of the Consent Calendar; Council adopted
new rules that a member of the community can no longer pull items; also, contentious
items are placed on the Consent Calendar.
Meeting of the
Open Government Commission
April 5, 2021
19",OpenGovernmentCommission/2021-04-05.pdf
OpenGovernmentCommission,2021-04-05,20,"Commissioner Reid inquired how a member of the public would know what SB 271 is on
the legislative agenda.
Ms. Rogers responded if a member of the public is interested in a topic on the legislative
agenda, there is information on literally every bill on the State website; it is the subject of
a lot of public discourse and all subject to the same rules and principles and requirements
for the meeting to be public; SB 271 is not an obscure piece of legislation; the issue tonight
is whether the materials in the agenda provided the notice required for an interested
person to show up.
Commissioner Reid inquired whether or not the person who made the comments
previously reached out to the City.
Ms. Rogers responded that she did not know, but that Mr. Garfinkle's complaint is not
alleging that it was a serial meeting or that there some improper conduct behind the
scenes with respect to the particular issue; the person submitted a public comment and
purported to represent an organization comprising 41 different individual member
organizations and other Alamedans.
In response to Commissioner Reid's inquiry, the City Clerk stated anybody can reach out
to the Council at any time; it does not matter whether it is before or after an item is placed
on the agenda; a person can comment on the item on the agenda even if they had already
reached out to the Council before.
In response to Commissioner Reid's inquiry, Ms. Rogers stated that she did not mean to
suggest any knowledge of whether when, and what time someone communicated on the
particular issue; any member of the public could send an email or submit a comment and
still show up to the Council meeting.
In response to Commissioner Reid's inquiry, the City Clerk stated there is nothing that
prohibits a member of the public from addressing the Council at any time.
Commissioner Reid stated she did not see the word Sheriff mentioned in the legislative
agenda, although Ms. Rogers stated as such.
Ms. Rogers stated the point she was trying to make is that criminal justice reform is
specifically called out as an area of the legislative priorities.
Commissioner Chen stated the City Council has reduced public access in the changes
they made to the Consent Calendar; a second point of access limits comment on the an
item to one minute; she feels the chances of someone catching it was close to zero.
The City Clerk stated the changes to the Consent Calendar went into effect after the
February 16th meeting; the item was pulled and a member of the public was able to
comment.
Meeting of the
Open Government Commission
April 5, 2021
20",OpenGovernmentCommission/2021-04-05.pdf
OpenGovernmentCommission,2021-04-05,21,"Commissioner Chen stated open government has to allow comment about the issue; she
does not think people had a chance to be part of the discussion.
The City Clerk stated there is a speaker waiting and there needs to be a vote before 11:00
p.m. to continue the meeting.
Vice Chair Shabazz concurred with the City Clerk; suggested moving to public comment.
Public Comment:
Stated there was a great example of how this was done properly last summer at the July
21st City Council meeting regarding eight measures of police reform; to suggest support
of specific items was jumping the gun; it is up to the City Manager's Office to determine
which SBs apply: Matt Reid, Alameda.
Vice Chair Shabazz stated in 2018, he attempted to go to the County Registrar of Voters
to run for Sheriff, but he was turned away because he does not have any law enforcement
background; he would refer to Mr. Hofer and Secure Justice as advocates as opposed to
lobbyists; part of the reason he wanted to run for Sheriff was that the current Sheriff at
the time had exhibited ties to White supremacist groups, was involved with things related
to Immigration and Customs Enforcement (ICE) and certain detainees and also the
squalid conditions of the County jails; there was a campaign to audit the Sheriff's Office;
whether or not these issues align with principals around reforms, he would say very much
so and there will be a race in 2022; he does think that the legislative agenda outlines the
various principals; the issue of it being on the Consent Calendar and then being pulled
from the Consent Calendar, there was opportunity for people to speak; he is on the fence
about it; part of him wants to find the complaint unfounded because it was clear from the
legislative agenda that these items and general principles would be discussed; he is
concerned that there is not generally a practice for specific legislation to seemingly come
before the public; the questions are what are the specific positions Alameda takes on
State and federal legislation; what is done if there is contradictory legislation; what is the
process.
***
Vice Chair Shabazz moved approval of continuing the meeting past 11 p.m.
Commissioner LoPilato seconded the motion, which carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Reid: Aye; Shabazz: Aye; Chair Tilos: No.
Ayes: 4. Noes: 1.
***
Commissioner LoPilato stated that she does some State legislative advocacy, but is not
a registered lobbyist and has not advocated for this bill; it is important to keep it clear that
the agenda item is a road map and taking a bill by bill analysis is difficult because there
are over 2,000 bills introduced each year; it is difficult for the average citizen to go through
Meeting of the
Open Government Commission
April 5, 2021
21",OpenGovernmentCommission/2021-04-05.pdf
OpenGovernmentCommission,2021-04-05,22,"and figure out exactly what bills might fall within various headings of the City's abstract
goals; it is important to realize that there is no way the City Council agenda could possibly
include references to each bill that the City might support or oppose under the umbrella;
Senator Skinner, who represents Alameda, is a co-author with Senator Weiner of San
Francisco; it is clear that the legislative agenda is considering a new plank to the public
safety and homeland security platform, which includes support policing and racial equity
outcomes consistent with actions taken by City Council throughout the year; it is called
out and puts people on even further notice; it addresses the issue of broadening the
support of reform measures; SB 271 was actually mentioned before it was open to public
comment and there was quite a bit of notice; lots of metaphors are used; she believes the
road map one is a good way to frame the way to look at the Brown Act and the Sunshine
Ordinance; she will say that maybe a legislative agenda should not be on the Consent
Calendar and there are all kinds of things that can be suggested when talking about the
spirit of open government, but does not think making those suggestions through the
vehicle of addressing specific complaints is the best approach; she hopes that when the
Commission looks at the ordinance and recommendations, the Commission can weave
in some language and contemplate what can be done to advance the issues outside of
deciding specific complaints; with respect to this specific complaint, she would find it
unfounded.
Commissioner Reid concurred with Commissioner Chen; stated that she also views the
legislative agenda as generic; nothing really specific is included; watching the February
16th meeting, it was odd that something specific was added on the fly; it did not matter
what the bill was; the public did not have time to understand what was discussed; that is
where she is landing; it is the Commission's responsibility to ensure that the public is
aware and the government is being transparent, that they have the opportunity to
participate and express their opinion; she would argue that the gentleman that did speak
was not from Alameda or a community member; in fact, he was a registered lobbyist; the
procedure was not sufficiently transparent to allow the public the right to know and
participate; the Commission should be striving for that; her suggestion would be to revisit
and agendize the item to allow the public to come out and comment, which is he beauty
of democracy.
Vice Chair Shabazz stated that he hopes he would still be treated as a community
member should he ever move out of Alameda; he is ready to move on the item; he
appreciates Commissioner Reid's points regarding community members having
knowledge of things and the sense of transparency and also about participation; the
instance of the community member who advocated for the inclusion of a specific piece of
legislation is an example of people being able to participate; it also provided an
opportunity to clarify for those not aware of some of these issues related to police reform;
he does echo Commissioner Chen's point and wonders if there is merit related to the
concern about how things are noticed; he appreciates Commissioner LoPilato's metaphor
of the road map; it seems there are some attempts to use the complaints as a way to
address other issues; the Commission should identify issues and either come back with
reports or advise Council on how to improve the application of the Sunshine Ordinance.
Meeting of the
Open Government Commission
April 5, 2021
22",OpenGovernmentCommission/2021-04-05.pdf
OpenGovernmentCommission,2021-04-05,23,"Commissioner Reid stated the Mayor specifically recognized that the speaker had
reached out to City Council prior to the meeting, so the speaker was planned, which is
fine, but argues that the public did not truly have an opportunity to weigh in; the Brown
Act asks ample time be ensured for people to weigh in; five minutes is not an ample
amount of time and no other member of the public came forward; there was no way
anyone knew besides the Council and the speaker who knew SB 271 was going to be
mentioned or that the legislative agenda was going to be pulled and new information was
going to be introduced; it should have been agendized and discussed properly.
Commissioner LoPilato stated that she wants to underscore there is nothing nefarious
about a community member, lobbyist or advocate reaching out to the Council; typically,
how that process might work is a person would reach out after seeing the draft ordinance
or resolution; the fact the speaker reached out to Council is not uncommon or nefarious,
it is engagement; with this issue, it was a distinction without a difference because
ultimately, once that legislative agenda was passed, whether SB 271 was listed on it or
not, it fell under public safety and criminal justice reform, which was passed and nobody
would have had a chance to weigh in on it anyway because that gives the guidance to
the City Manager to decide what happens to bills; based on the way the process for this
particular issue unfolds, there is no opportunity to weigh in on each bill, it is just not how
the process works; if the Commission wants to make another recommendation some day
in some other context that it should work differently, then that is something to explore.
Vice Chair Shabazz thanked Mr. Garfinkle for bringing the issue to the Commission;
stated there are concerns and interests in a couple different areas.
Vice Chair Shabazz moved approval of finding the complaint unfounded consistent with
the recommendation of the City's Special Counsel.
Commissioner Reid stated in no way is she suggesting that there was anything nefarious
at all; she does believe the public is entitled to transparency and to be able to weigh in; if
the process is that the City Manager looks at the legislative agenda and decides what to
support, it opens up the question of why the legislative agenda was pulled and specific
bills were added; it was somehow out of line; there was no way for the public to have
known the bills were going to be discussed; the speaker was a lobbyist and no other
members of the public commented.
Chair Tilos stated when deciding the issue, he feels members are going too deep into the
actual bill versus whether it was noticed and the public was able to comment; it should
not matter whether the speaker was a lobbyist or a community member; the legislative
agenda is a long list of things; he agrees with Commissioner Chen that it will just take
a
lot of work; he concurs with Commissioner LoPilato's roadmap framework and that it is
difficult to navigate 2000 bills individually; there is this over guiding principle of how the
City is going to be on the decisions; the specifics of the bills and what transpired in the
meeting should not matter, the transparency piece is important.
Commissioner Reid stated she agrees with Chair Tilos; it does not matter what the bill is,
Meeting of the
Open Government Commission
April 5, 2021
23",OpenGovernmentCommission/2021-04-05.pdf
OpenGovernmentCommission,2021-04-05,24,"the issue is the legislative agenda appears to be a general roadmap; the question is how
would someone know; it is not common practice to add a specific bill to the legislative
agenda; that has not been done before in Alameda and to her understanding it is not
common practice in neighboring cities; it falls out of the scope of the regular process.
In response to Commissioner Reid's inquiry, Chair Tilos stated there is already a motion
on the floor.
Commissioner Chen provided an example of the process to get a resolution passed;
stated anyone can present something to the Council, whether it is controversial or not; if
the Council decides to put it on the agenda, when the agenda is published, the public has
a chance to see it and has the opportunity to pull it for discussion; when that happens,
typically, people will come out who might be against it; if the Council still wants to support
it, they can vote on it; everybody gets a fair chance; she does not think the public had a
fair chance in this instance; if the Council wanted to put bills on the Consent Calendar,
name them and give the public a chance to see that and pay attention; if someone was
watching the meeting they would not be able to do research fast enough to figure what
was going on; it is important to give the public a fair chance.
Commissioner LoPilato stated that she agrees with Commissioner Reid regarding
transparency and with Commissioner Chen regarding everyone getting a fair chance;
there probably are improvements that could happen to the process; she thinks the
Commission could find a vehicle to potentially provide recommendations; in the context
of the current complaint, there was no violation of the Sunshine Ordinance.
Commissioner LoPilato seconded the motion.
On the call for the question, the motion carried by the following roll call vote:
Commissioners Chen: No; LoPilato: Aye; Reid: No; Shabazz: Aye; Chair Tilos: Aye. Ayes:
3. Noes: 2.
3-D. Discuss and Provide Recommendations Concerning Potential Amendments to
Article VIII (Sunshine Ordinance) of Chapter Il (Administration) of the Alameda Municipal
Code, as Amended, to Replace ""Null and Void"" Remedy. Not heard.
COMMISSION COMMUNICATIONS
Commissioner Shabazz stated the meetings have been going long; suggested Chair Tilos
work with staff to prioritize and set the agenda.
Chair Tilos responded he thinks the amount of complaints received in the last few months
is what is throwing the meetings off; inquired whether there are any complaints on the
table, to which the City Clerk responded there are none at this point.
Chair Tilos stated that he is keeping his fingers crossed and hopes to be able to get to
Item 3D on the next agenda; the complaints are what controls the agenda right now.
Meeting of the
Open Government Commission
April 5, 2021
24",OpenGovernmentCommission/2021-04-05.pdf
OpenGovernmentCommission,2021-04-05,25,"Commissioner Chen suggested a process for complaints; stated that she hopes there is
a list collected of all the Commission's lengthy conversations about all the ways the
Sunshine Ordinance is practiced.
Commissioner LoPilato suggests two avenues: 1) Section 2-22.4 indicates one of the
Commission's duties is to report in writing to the Council at least once annually on any
particular policy problems encountered in the administration of the Sunshine Ordinance;
she agrees with Commissioner Chen that the Commission is spending about 90% of time
on it; the Commission should probably establish a cadence on this in the context of a
subcommittee; it should be assumed that complaints will continue to be received and
should be explored; 2) Section 2-92.4 states that the Commission shall review public
notices to ensure they conform to the requirements of the article and work to improve
publicly accessible information databases; suggested welcoming staff's thoughts on what
the Commission could best be doing to comply with both those aspects; stated there
might be a way to get some suggestions about how the Commission could handle these
issues offline in an efficient way; having some cadence may have quicker meetings which
would give appropriate time for public comment; noted the great work Vice Chair Shabazz
did in his PRA workshop.
Commissioner Reid inquired whether it would be possible to hold a special meeting to
discuss the null and void remedy, to which Chair Tilos responded he would not like to do
so.
Vice Chair Shabazz thanked people for attending his PRA workshop; stated he likes the
suggestion about a subcommittee with clear goals; suggested exploring having the City
Council timer feature and guidelines on what type of questions can be asked in advance
of meetings.
Commissioner Reid inquired whether it would be possible to establish a subcommittee to
discuss some questions that may be relevant to the Sunshine Ordinance.
The City Clerk responded it cannot happen tonight since it is not on the agenda; stated
the Commission could explore it at a future meeting.
Adjournment
Chair Tilos adjourned the meeting at 11:34 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
April 5, 2021
25",OpenGovernmentCommission/2021-04-05.pdf
OpenGovernmentCommission,2021-05-03,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY MAY 3, 2021 7:00 P.M.
Chair Tilos convened the meeting at 7:00 p.m.
ROLL CALL -
Present:
Commissioners Chen, LoPilato, Reid, Shabazz, and
Chair Tilos - 5. [Note: The meeting was conducted via
Zoom.]
Absent:
None.
[Staff present: Chief Assistant City Attorney Elizabeth Mackenzie;
City Clerk Lara Weisiger; Assistant City Attorney John Le]
Oral Communications
None.
Regular Agenda Items
3-A. Minutes of the April 4, 2021 Meeting
Commissioner LoPilato made a correction to the Police Captain comments; inquired
about redactions.
The City Clerk stated the redactions were missed and will be done.
Vice Chair Shabazz moved approval of the corrected minutes.
Commissioner Chen seconded the motion, which carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Reid: Aye; Shabazz: Aye; Chair Tilos: Aye.
Ayes: 5.
3-B. Discuss and Provide Recommendations Concerning Potential Amendments to
Article VIII (Sunshine Ordinance) of Chapter Il (Administration) of the Alameda Municipal
Code, as Amended, to Replace ""Null and Void"" Remedy.
The Assistant City Attorney gave a brief presentation.
Commissioner Reid stated her position proposes to include Commissioner LoPilato's
suggestions; her main concern is in the penalty section; inquired whether Commissioner
received her last correspondence; inquired whether the Assistant City Attorney would
review the proposed amendments section by section or using another method.
Chair Tilos stated there are some pretty big pieces of the proposal, but the meat of it is
how to correct the null and void; suggested Commissioners identify the top five sections
Meeting of the
Open Government Commission
May 3, 2021
1",OpenGovernmentCommission/2021-05-03.pdf
OpenGovernmentCommission,2021-05-03,2,"and start discussion from there; stated that he would like to go away from the
supermajority and is leaning towards Councilmember Knox White's proposal to re-
agendize the issue; he also likes Commissioner LoPilato's piece about posting the
Commission's decisions on the internet for transparency; said items are his top three
topics he would like to vote on.
Vice Chair Shabazz stated part of the ordinance enables people to challenge meetings
shifting from using the phrase ""required"" to ""recommended;"" what the Commission is
attempting to achieve got lost in the language, particulars and supermajorities; there were
some lessons from what happened with Commissioner Chen's complaints.
Commissioner Chen stated that she has been worn down because the issue has been
going on so long; she read the materials and found the null and void piece came directly
from the Brown Act; no one has ever thoroughly won a case on the Brown Act; she thinks
what the Commission really wants is to have City government and Departments
accountable for their decisions, how they make their decisions and transparency; she
likes Commissioner LoPilato's recommendations to shine a light to assist the City in
adhering to the Brown Act and Sunshine Ordinance; the Commission is not here to further
any disagreements people have with the decisions the City Council and other
commissions make, but whether or not the correct process was followed to reach
decisions; the Brown Act is merely a tool to shame or embarrass the leaders into following
the rules; the Commission should be practical and realistic; she supports posting the
Commissions' recommendations to cure and correct any violations brought before them
on the City's website or issuing a press release; every Commissioner wants to represent
the best interest of the community; no Councilmember wants it publicized that they are
always voting against the Commission; the Commission is calling people out and saying
this is how it should be done; when things happen that are not transparent, trust is lost;
she would like the Commission to be viewed as a group of five people who are trying to
make everything run better; she likes the idea of adding in the transparency piece and
making the decision not to sustain a complaint really clear; she was confused by the term
""unfounded"" versus ""not sustained;"" she embraces said proposal and does not want to
set up an appeals process; the Commission would have done its duty and if the City
Council does not want to accept the fact the Commission found a Sunshine Ordinance
violation, it will be publicized; she does not think any Councilmember would want to be
on a list of not listening to what the Commission sees as being transparent and good
government.
Chair Tilos inquired whether Commissioners Shabazz and Reid are aligned with wanting
to be transparent about the Commission decisions and posting decisions on the City
website.
Commissioner Reid responded in the affirmative, stated that she feels very aligned with
Commissioner Chen's comments; her main concerns are centered around the goal of
transparency and full support for public participation at all levels; she made a suggestion
to modify the penalty section that seems to disproportionately affect elderly participants
who may not live an additional five years; she also recommends a more open approach
Meeting of the
Open Government Commission
May 3, 2021
2",OpenGovernmentCommission/2021-05-03.pdf
OpenGovernmentCommission,2021-05-03,3,"to allow residents to participate at the maximum level possible; she would also like to
propose an appeal subcommittee in the event the Council disagrees on a proposal
brought by the Commission; the goal would be to draw in as many members of the public
as possible; said type of awareness is necessary in open and good government.
Vice Chair Shabazz responded that he appreciates Commissioner Chen's point about the
objectives of accountability, transparency and restoring trust; if the Commission aligns on
said baseline, then it can determine the method in which to achieve the goals.
Commissioner LoPilato stated that she likes the idea of grounding in said objectives; the
intent behind her proposal as an tracking device; it is a way to see the health of the Open
Government Commission (OGC) over the long term and what is done with the
recommendations, the result and the action when a complaint comes in; she is open to
discussions from the Commission or staff on improvements that could be made to her
proposal; how it would look on the website is important to make sure it is effective;
thanked staff for the benchmarking report, which was helpful; stated trust-building and
trust-restoring is an important piece; a big part is creating a pathway for the Commission
to give feedback to the City Council and make recommendations about how to avoid
future problems outside the scope of a specific complaint; posting on the website could
also accomplish accountability; she likes the language of John Knox White's proposal,
which is a good direction for the Commission to go in terms of not getting too into the
weeds of details about the complaint process.
Chair Tilos summarized the Commission members' comments.
Vice Chair Shabazz stated that he would like to have alignment around some general
principle goals the Commission hopes to achieve, instead of conceptualizing along some
spectrum of trust or punishment.
The Assistant City Attorney stated the Commission could make suggestions about what
it wants to do and then a show of hands to move toward a motion.
Commissioner LoPilato moved approval of the proposal for Section 2-92.4.i.
Chair Tilos seconded the motion, which carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Reid: Aye; Shabazz: Aye; Chair Tilos: Aye.
Ayes: 5.
The Assistant City Attorney stated the next item is John Knox White's proposal and
whether or not to have an additional appeals process or subcommittee; it would be
productive for folks who are putting forth an affirmative proposal to be heard to figure out
if there is support for a motion.
Chair Tilos summarized the Commission members' position.
In response to Chair Tilos's inquiry, Vice Chair Shabazz stated that he is tired of talking
Meeting of the
Open Government Commission
May 3, 2021
3",OpenGovernmentCommission/2021-05-03.pdf
OpenGovernmentCommission,2021-05-03,4,"about the matter; ideally, the OGC would be a body that could encourage accountability,
trust and transparency; much of his thinking has not been focused on the null and void
and teeth of the Commission; unfortunately, he views it as the Council will make whatever
decision, regardless of the Commission recommendations; he suggests sending all of the
proposals to the Council with some priorities; the staff report could summarize what has
happened and present the goals the Commission would like to achieve; he does not have
any strong opinions on this piece and is thinking about other mechanisms the
Commission could use to achieve the goals of transparency, trust, increased participation,
accessibility and equity in open government.
Commissioner Chen stated the City Council has to discuss the Commission's decision at
a public hearing; the Council needs to decide whether or not to accept the
recommendations or offer an alternative, which is all part of the transparency piece; the
Commission's decision needs to be agendized at the next possible City Council meeting.
In response to Chair Tilos's inquiry, the Assistant City Attorney stated because it was in
the context of a cure and correct, the item would be agendized for the Council to consider
the recommendation and decide what to do.
In response to Chair Tilos's inquiry, Commissioner Chen stated Commissioner Reid
deserves a separate hearing on her proposal.
Commissioner LoPilato reiterated her modifications on the John Knox White proposal,
including changing the terms ""agreeing and curing or disagreeing"" and just calling it a
""rejection;"" stated it would be a choice to accept or reject the Commission's
recommendation; she also leans in favor of including language like ""in whole"" or ""in part""
which would account for scenarios with multiple recommendations; she would also like to
add language which acknowledges a broader array than just the City Council.
In response to Vice Chair Shabazz's inquiry, the Assistant City Attorney stated the John
Knox White proposal was adopted fairly immediately after the removal; if the status quo
were to continue, it would not advance the ends of justice; it was more keeping it in
abeyance while the decision was made.
Vice Chair Shabazz stated it seems there are some attempts to focus on some particular
rules and technicalities to impact certain things; he suggests having a policy that
empowers people to hold government accountable and not keep government from doing
things more justly; allowing flexibility and keeping it moving is important.
In response to Commissioner Reid's inquiry, Chair Tilos stated the motion will be to take
John Knox White's proposal with Commissioner LoPilato's corrections.
Commissioner LoPilato moved approval of revising the ordinance to include the John
Knox White proposal in Section 2-93.8.a with her redline and additional language carving
out the ability not to maintain the status quo in the interest of conducting necessary City
business.
Meeting of the
Open Government Commission
May 3, 2021
4",OpenGovernmentCommission/2021-05-03.pdf
OpenGovernmentCommission,2021-05-03,5,"Chair Tilos seconded the motion, which carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Reid: Aye; Shabazz: Aye; Chair Tilos: Aye.
Ayes: 5.
Commissioner LoPilato suggested addressing the provision adding a Subsection D to the
complaint procedures, which would harmonize the Sunshine Ordinance language with
the statutory language elsewhere in the Alameda Municipal Code (AMC) laying out the
duties of the OGC; stated that she drafted a possible way to capture it under the complaint
procedures; it would be non-binding recommendations and a vehicle for the Commission
to do something beyond merely finding something substantiated or unsubstantiated.
In response to Chair Tilos's inquiry, the Assistant City Attorney stated his understanding
of Commissioner LoPilato's proposal is that she is tying back to the duties of the
Commission as set forth in AMC Chapter two; requested clarification if the additional
language is put into the ordinance, there would still be a finding as to the merits of the
complaint; then, rather than using the cure and correct remedy, it would be an alternative.
Commissioner LoPilato responded the existing process would be retained; stated the
Commission would make a finding on the specific complaint; the finding may include a
cure and correct remedy; there are many instances where, even if the Commission finds
something substantiated, there is no appropriate cure and correct remedy; the issue could
seemingly be resolved, but the underlying complaint is substantiated; she wants to create
an alternative path where the Commission could take a majority vote as to whether there
are also some informal resolution options that might be beneficial; she is open to making
adjustments if there are legal concerns.
The Assistant City Attorney stated that is how he interpreted Commissioner LoPilato's
proposal; there could be a scenario where the Commission could have a decision as to
the merits and order a cure and correct; a footnote could be added about informal ways
to deal with the complaint or how to anticipate future problems in the same decision; there
could be a scenario that does not use the cure and correct, but rather an alternative
remedy.
Commissioner LoPilato concurred with Assistant City Attorney's summary of her
proposed process; stated that she discussed a slight modification that envisions dealing
with a different path to be able to make recommendations outside of the decision; she is
very flexible about whether people feel better about confining everything to one decision
and getting it done in one meeting; she envisions a scenario where the Commission
makes a decision, hammers out the points of the finding and whether there is a cure and
correct or put a pin in the issue and take a vote as to whether it is something that needs
to be pursued further.
The Assistant City Attorney stated the Code permits simply agendizing an issue if it needs
to be heard further; additional language would not be necessary to do so.
Meeting of the
Open Government Commission
May 3, 2021
5",OpenGovernmentCommission/2021-05-03.pdf
OpenGovernmentCommission,2021-05-03,6,"Commissioner Reid stated that she would find it acceptable as long as the informal
process does not penalize complainants.
Vice Chair Shabazz inquired whether the piece about being able to make a
recommendation and do a report already exists and the Commission just has not utilized
it.
Commissioner Chen stated the Sunshine Ordinance has only been given test runs in the
past two years with just a handful of complaints; the Commission has been finding little
things they did not know existed by struggling through the complaints; she did not vote
with the majority at the last meeting, not because she did not agree with most everything,
but because there was so much nuance in the issue being raised; she agrees with
Commissioner LoPilato about having some kind of process that clearly does not require
saying just yes or no; there could be a more nuanced response; she agrees with the
Assistant City Attorney that said instances should be agendized; the Commission is just
trying to build something from scratch; it is like building a new car or airplane and realizing
when trying to fly it that someone forgot the parachutes or there is no trap door; the trap
door needs to be built now; the process is very healthy; when asked to vote in previous
months, she did not know what the options were and was unclear about ""unfounded;"" it
is important to have the same vocabulary about what the Commission is actually saying;
she may find an issue unsustained, but not unfounded; the moment the term ""unfounded""
is used, it becomes one strike against the complainant; two more strikes and they are out
for five years; she hears Commissioner Reid's concern.
Commissioner Reid stated it is very important to take note of the definitions of
""unsustained"" and ""unfounded;' her understanding is the term ""unfounded"" is very harsh;
it puts a member of the community who is participating in the City's democracy in a
position where potentially they can no longer participate; she noticed the attorneys were
pushing for using the term ""unfounded;"" there is some confusion around the two terms;
just because the attorney recommends something does not mean the Commission has
to follow it; it is important to clarify the terminology; the attorneys err on the side of more
protection for the City; it is the position of the Commission to represent the people; the
Commission should want to hear the complaints and give the community the opportunity
to have a voice; she supports Commissioner LoPilato's alternative path as long as there
are no penalties to the complainant.
The Assistant City Attorney stated that he understands the confusion around the terms,
which seems like a priority for some Commissioners; the proposal put forth by
Commissioner LoPilato is unrelated; suggested dealing with it first; then, circle back to
the terminology; neither of the proposals have any red line related to unfounded and the
City Attorney's office does not have any language currently proposed for how to resolve
the issue.
Vice Chair Shabazz observed noted there was different language in each of the different
complaints; there was a recommendation from City staff to ""dismiss; the issue could be
a subcommittee conversation to develop the vocabulary in order for the Commission to
Meeting of the
Open Government Commission
May 3, 2021
6",OpenGovernmentCommission/2021-05-03.pdf
OpenGovernmentCommission,2021-05-03,7,"make a decision and make recommendations about how to improve the process.
Public Comment:
Stated that he was not keeping track of which item the Commission is discussing because
the conversation seems to have drifted into some of the topics raised in issues later on
the agenda: Zac Bowling, Alameda.
Commissioner LiPilato moved approval of the Commission adopting a recommendation
for the addition of Subsection D to Section 2-93.2 with the new subsection stating: ""In
addition to the Open Government Commission's (OGC) ability to render a formal written
opinion, finding a violation or non-violation of the Sunshine Ordinance, the Commission
may also consider options for informal resolutions of complaints; upon a majority vote,
the Commission may make non-binding recommendations to the City Manager, City
Attorney's Office, City Clerk or City Council regarding informal resolution options or steps
to avoid future similar complaints.""
Commissioner Chen seconded the motion, which carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Reid: Aye; Shabazz: Aye; Chair Tilos: Aye.
Ayes: 5.
The Assistant City Attorney read the red-lined portion of the issue pertaining to penalties.
Vice Chair Shabazz stated there was a second addition at the end of the paragraph on
page 47, Exhibit 4: ""As soon as practical, the originating body shall consider and take
appropriate action.
Commissioner LoPilato clarified Exhibit 4 is staff's revisions to the original subcommittee
proposal, which was steered away from; however, the next item on her proposed
revisions is actually taken from that; the Commission could jump to it next; although the
Assistant City Attorney stated there were no redlines in the penalty portion of the proposal,
Commissioner Reid submitted some today that can be reviewed after.
Commissioner Reid stated that she submitted two proposals; one is labeled Section E
under 2-92.2; she noticed her correspondence did not appear on the agenda; her second
proposal is under penalties Section 2-93.8; suggested just following the order.
The City Clerk confirmed that Commissioner Reid's correspondence was delivered to all
Commissioners and uploaded as part of the record.
Commissioner LoPilato read the revisions of Section 2-93.8.b: ""If the Commission finds a
violation of Section 2-9.2 Public Information, the Commission may recommend to the City,
staff, City Manager, City Clerk, and the City Attorney steps necessary to cure the violation;
the City Manager, City Clerk and/or the City Attorney, as appropriate, shall promptly
render a final written decision upon receipt of the Commission's recommendation.'
Meeting of the
Open Government Commission
May 3, 2021
7",OpenGovernmentCommission/2021-05-03.pdf
OpenGovernmentCommission,2021-05-03,8,"In response to Commissioner LoPilato's inquiry, the Assistant City Attorney stated that he
is hesitant to speak about the intent of the revisions since he does not recall his office
making the edits to the last sentence of Subsection B; it was actually an integration of the
subcommittee proposal and changes that were made.
Commissioner LoPilato moved approval of the Commission recommending the revisions
in Section 2-93.8.b.
Chair Tilos seconded the motion, which carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Reid: Aye; Shabazz: Aye; Chair Tilos: Aye.
Ayes: 5.
Commissioner Reid read her Subsection E proposal under Section 2-93.2: ""If a complaint
is determined by the OGC to be valid and sent as a recommendation to the City Council,
but if they do not agree, the OGC shall then be allowed to create a temporary appeal
committee comprised of one member of the OGC randomly chosen, and four members
of the public chosen by each remaining member of the OGC to review the complaint. If
the Appeal Committee determines that the complaint has merit, it is sent back to the City
Council for a second review. The Appeal Subcommittee should adhere to the Brown Act;""
as an alternative, the subcommittee members could also be chosen from a list created by
the City Manager; her proposal is a good alternative to include members of the public and
brings out more transparency and open government.
Chair Tilos stated the Knox White proposal does enough; he is not leaning toward going
beyond it to set up another channel to handle OGC rulings.
Commissioner Chen stated she agrees with Commissioner Reid in the sense that she
would like to involve more people in the open government process; however, there is
nothing to preclude the City Council from rejecting the appeal; the Commission would be
stuck in a merry-go-round of engaging people to be frustrated in a sense; the OGC has
no teeth; the Commission could set up another body to just come to the same conclusion
which would be twice as much no teeth; Commissioner LoPilato and John Knox White's
proposal has the force of letting the community know what open government is and what
can be done; there are other ways to engage the community and get them more involved,
rather than frustrating them in the complaint process.
Commissioner Reid stated she is fine with letting it go; she just wanted to throw it out as
a possibility; her second proposal is to modify the language under Section 2-93.8.D
regarding penalties; the language is quite harsh and penalizes residents who bring forth
complaints; outlined her proposed language; stated citizens should not be penalized; the
Commission should support that they are bringing forth complaints.
Public Comment:
Stated the complaint process was meant to be a low-friction way to file a complaint but
not negate other remedies; the penalties were built in to just prevent abuse and wasting
Meeting of the
Open Government Commission
May 3, 2021
8",OpenGovernmentCommission/2021-05-03.pdf
OpenGovernmentCommission,2021-05-03,9,"the group's time: Zac Bowling, Alameda.
Vice Chair Shabazz stated he does not support increasing the threshold for complaints;
he agrees with the speaker that the intention of the penalties is to prevent people from
just filing a lot of complaints; people have an opportunity through the informal resolution
process to address any issues or complaints; if the Commission develops the clarity
around the options and language that it can consider, it is not the binary of ""unfounded""
or ""sustained"" and it would not be harsh or punitive.
Commissioner LoPilato stated the Commission all agrees not to create a binary process;
she does not support Commissioner Reid's proposed changes.
Commissioner Reid moved approval of adopting her proposed option 2 in Section 2-
93.8.D that filing three unfounded complaints prohibits filing a complaint for the next three
years.
The motion failed due to a lack of second.
Vice Chair Shabazz stated there will be a discussion later related to whether or not there
will be subcommittees; perhaps that would be a conversation as part of the subcommittee
and could be brought back to the full group; if there are no other additions to this item
related to replacing null and void, he would like to recommend that the Commission share
the package with the City Council and ask them to make a decision on it.
Chair Tilos inquired whether there was anything else missing that needed to be
discussed, to which the Assistant City Attorney responded in the negative.
Vice Chair Shabazz stated the additional items at the end of Commissioner LoPilato's
proposal regarding proposed revisions and posting information could be handled by the
subcommittee, so the Commission does not have to pick through it tonight.
In response to Chair Tilos's inquiry, the Assistant City Attorney stated that staff has been
at this for some time; there have been discussions about moving with more deliberate
speed; the plan was to get the input, put it all together and bring it to Council.
Commissioner Reid stated she would not approve the package if the penalty section
remains as is.
***
Chair Tilos called a recess at 9:05 p.m. and reconvened the meeting at 9:12 p.m.
***
3-C. Accept the Annual Report and the Report Concerning Responses to Public Records
Act Requests
The City Clerk made brief comments.
Meeting of the
Open Government Commission
May 3, 2021
9",OpenGovernmentCommission/2021-05-03.pdf
OpenGovernmentCommission,2021-05-03,10,"In response to Vice Chair Shabazz's inquiry, Chair Tilos stated the item was already
presented to the OGC and a couple issues were found, mainly the records were not
provided, but was resolved through an OGC hearing.
The City Clerk stated the item returned in order to provide more clarity on the complaints
filed and to also include additional Citywide information.
Vice Chair Shabazz stated the NextRequest program is pretty cool; it is used at the City
of Oakland and BART; his hope is not to have the same legal challenges with public
records that Oakland is having; what stood out to him was the amount of requests the
Alameda Police Department (APD) received that were not being tracked; inquired what
the method is for the APD to get the public record requests and why are they not being
tracked.
The City Clerk responded anything APD produces is categorized; stated the Department
confirms they responded; records that were denied was not part of their tracking system;
the concept came from the previous Commission discussion.
In response to Vice Chair Shabazz's inquiry, the City Clerk stated anything the City
Attorney's office receives is separately tracked on the spreadsheet provided, regardless
of the originating Department.
Commissioner Chen inquired why the APD does not track responses and whether they
should be required to do so.
The City Clerk responded it was not being done before and was a new request from the
OGC.
In response to Commissioner Chen's inquiry, the City Clerk stated APD has a completely
separate set of rules regarding PRAs than everyone else; the Fire Department has a few
separate rules as well, but the APD has a very complex and separate records program;
at this point, they will not be using NextRequest.
Commissioner Chen stated it is unfortunate because of the need for transparency and
rebuilding trust with the APD.
The Assistant City Attorney stated the question from the OGC was how the various
departments track PRAs; each department is required, as custodians of their records, to
respond to records requests and track the requests as they see fit; there is not a specific
requirement in terms of tracking.
Commissioner LoPilato inquired whether the date the PRA was referred to the City
Attorney's office always corresponds with the date the request was received.
The City Clerk responded most of the requests she refers to the City Attorney's office are
Meeting of the
Open Government Commission
May 3, 2021
10",OpenGovernmentCommission/2021-05-03.pdf
OpenGovernmentCommission,2021-05-03,11,"on the same day, but she does not know about any others.
Chair Tilos stated that he sees some variations on some of the dates listed on the
spreadsheet.
Commissioner LoPilato stated an understanding of the legally required time to provide
responses is helpful; having a rubric for gauging whether requests are being responded
to on a prompt or timely manner is important; inquired what the City's position is on what
is considered the number of days allowed under the Government Code.
The Chief Assistant City Attorney responded there are various code references in the
Government Code which state that holidays and Sundays are not considered days within
which to calculate responses; the City relies on the Code for the required 10 day period.
Commissioner LoPilato stated that she saw a section that indicated the legislative body
of any city or district could name a Saturday as a holiday, which caught her by surprise;
inquired whether that was enacted in Alameda, to which the Chief Assistant City Attorney
responded in the negative, stated she was not able to find a parallel citation within the
Alameda Municipal Code regarding Saturdays.
Commissioner LoPilato noticed a request in which the response provided was 18.8
gigabytes of data; inquired whether there is a way to indicate what that amount translates
to in pages.
The Chief Assistant City Attorney responded the format in which the data is produced is
generally the format in which it was retained on the City server; it also depends on what
type of document or material is requested; she cannot comment specifically since it was
before her time.
Chair Tilos stated that he noticed there were requests from Vice Chair Shabazz and
Commissioner Reid that indicated electronic data was provided.
Commissioner Reid stated that she noticed that there were errors and omissions related
to her requests and wondered how many errors are in the other requests; she also noticed
that the number of pages of data produced could be reduced if email threads were not
duplicated and only the parent thread was provided; she would like to see a
comprehensive list in the annual report of all the requests made, organized by
department.
Vice Chair Shabazz stated he would like to suggest addressing the issues in order;
starting with the Annual Report, items related to the PRA, then the supplemental materials
from staff.
Public Comment:
Stated from a privacy standpoint when implementing the new system, it would make
Meeting of the
Open Government Commission
May 3, 2021
11",OpenGovernmentCommission/2021-05-03.pdf
OpenGovernmentCommission,2021-05-03,12,"sense not to include personal information in the PRA descriptions, such as private
citizen's addresses, especially with requests dealing with permits: Zac Bowling, Alameda.
Vice Chair Shabazz stated the current table in the annual report needs to be updated
since there has been a disposition around one of the items; perhaps it could be noted that
the hearing was held and the results could be in next year's annual report; it is important
to note how the item was labeled ""voluntarily withdrawn"" and that the complainant did not
necessarily agree with that; he would like a summary provided consistent with the
previous year.
Commissioner LoPilato stated that she would be in favor of changing the language of the
May 12, 2020 complaint disposition to be along the lines of: initially, noted as voluntarily
abandoned, complainant brought forth the complaint, it was heard on April 5, 2021 and
was found substantiated; the finding should be included in the disposition instead of
waiting to note it on a subsequent report.
Commissioner Chen stated it is called an annual report, but actually looks like an annual
of two sets of tables; she would like to see some kind of narrative; she agrees with
Commissioner Reid that the data should be reorganized by department.
The Chief Assistant City Attorney stated that she wanted to make sure the
Commissioners are looking at Exhibit 1, which notes there was an April 5th hearing
regarding Mr. Morris's complaint; the table was revised to reflect what has happened.
Vice Chair Shabazz stated that the table indicates there was a hearing held on April 5th, ,
but the point he is making is that it should also state the actual disposition; he would like
to add language stating: ""consistent with what the Commission previously approved;"" the
annual report from the February 3, 2020 meeting has a brief narrative; he would like to
see something similar on the current report detailing what happened at the hearing.
Vice Chair Shabazz moved approval of adopting the annual report with modification to
the table clearly stating that the disposition of the complaint from May 12, 2020 was
sustained on April 5, 2021; additionally, there should be a narrative that includes a
detailed description of the complaint consistent with prior annual reports.
Commissioner LoPilato seconded the motion.
Under discussion, Chair Tilos summarized the modification requested by Vice Chair
Shabazz.
In response to Chair Tilos's inquiry, Vice Chair Shabazz stated the point he is trying to
make is to have a narrative in the annual report similar to the last one; he appreciates the
tables, as they simplify the report, but some of the nuance of what actually happened
versus how it was portrayed in the initial annual report is lost in the table.
The City Clerk clarified that the disposition of ""sustained"" would be added to the table box,
Meeting of the
Open Government Commission
May 3, 2021
12",OpenGovernmentCommission/2021-05-03.pdf
OpenGovernmentCommission,2021-05-03,13,"and then the additional parts would be in the narrative.
On the call for the question, the motion carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Reid: No; Shabazz: Aye; Chair Tilos: Aye.
Ayes: 4. Noes: 1.
Vice Chair Shabazz inquired what the next steps are for the annual report and whether it
would go to the Council in writing.
The City Clerk responded the annual report will be transmitted to the Council and they
will receive a copy of it.
Chief Assistant City Attorney further clarified that Sunshine Ordinance Section 2-93.6
states the Commission shall prepare an annual report to be placed on the City's website
and made generally publicly available in printed form of alleged violations of the ordinance
brought to its attention during the previous calendar year.
Commissioner Reid stated her main concern is that there are inaccuracies in the annual
report.
In response to Vice Chair Shabazz's inquiry, the City Clerk stated the annual report does
not go before the Council as an agenda item, it just gets transmitted to them.
Vice Chair Shabazz stated there was some extensive conversations about challenges
happening with PRAs, which might be something the Commission wishes to have a report
to share with Council.
Chair Tilos stated Vice Chair Shabazz's comments could be addressed under
Commissioner Communications.
Vice Chair Shabazz provided a brief background on the report; suggested prefacing the
report by noting including background would be helpful; stated language should also be
added to the Sunshine Ordinance so that the report is kept beyond the current
Commissioners' terms.
Commissioner LoPilato suggested, in accordance with a public comment, that residential
addresses be redacted before publishing the report.
The Chief Assistant City Attorney stated her understanding is that the only thing being
published on the City's website will be the chart of the complaints; there is no requirement
or authority under the Sunshine Ordinance to include the other documents.
The City Clerk clarified all staff reports and exhibits are posted on the City's website; the
addresses that were listed were not the requestor's address, but the specific address for
which information was being requested.
Meeting of the
Open Government Commission
May 3, 2021
13",OpenGovernmentCommission/2021-05-03.pdf
OpenGovernmentCommission,2021-05-03,14,"Commissioner LoPilato stated she is concerned about balancing privacy considerations
and does not think specific addresses, even with regard to permit issues, is relevant
enough to be included in the materials and could simply be redacted.
The City Clerk explained that when there is a well-known address of interest, requestors
will use the address when submitting their PRAs; gave the example of the McKay
property.
Commissioner LoPilato stated that she agrees it is fine for addresses for properties that
are the subject of public discourse, but she sees some listed that are calls for service at
specific addresses that seem to be residential.
In response to Chair Tilos's inquiry, Vice Chair Shabazz stated the last issue he wants to
address is the supplemental documents compiled related to individual Departments
requests; shared that when he submitted a PRA, the City Attorney's office addressed him
as Commissioner Shabazz; he does not want to receive special treatment because he is
on the OGC; he is concerned and hopes all community members are being treated
equally based on the law; described the example of two separate requests for SB 1421
information where one requestor, the District Attorney, received 18.8 gigabytes of
information, whereas the other requestor's was labeled non-applicable; he would like to
ensure that people have access to the same information.
Commissioner LoPilato concurred with Vice Chair Shabazz; stated it seems one
requestor is the District Attorney and the other requestor looks like a plaintiff-side personal
injury law firm; one thing to consider is the extent to which PRAs may differ depending if
there is active litigation; alternatively, it could be something less straight forward; she
wants to highlight how helpful it is to see the requesting party; going forward, more
clarifications should be built around the requestor so trends can be tracked.
The City Clerk stated the tracking and reports that can be run in the new system will be
very verbose and drilling for the details will be possible.
Vice Chair Shabazz reminded the Commission that Commissioner Reid made comments
about inaccuracies in the report regarding her own request and wonders what else may
need to be addressed; if a subcommittee is created, is should become an annual thing;
also suggested that one of the duties of the Commission could be a report evaluating
compliance with PRAs.
***
In response to Chair Tilos's inquiry, the City Clerk stated a motion is needed to hear items
past 10:30 p.m.
Commissioner Reid noted that she would pull items 4-A and 4-C.
Chair Tilos stated Items 4-A and 4-C will not be heard and could be placed on another
meeting.
Meeting of the
Open Government Commission
May 3, 2021
14",OpenGovernmentCommission/2021-05-03.pdf
OpenGovernmentCommission,2021-05-03,15,"Commissioner LoPilato inquired whether Commissioner Reid wants to address anything
specific regarding the inaccuracies of the report.
Commissioner Reid responded that she would propose there be a full review; she cannot
approve something when she knows there are mistakes.
Vice Chair Shabazz moved approval of accepting the report concerning responses to the
Public Records Act.
The City Clerk inquired whether the motion includes both record request exhibits, to which
Vice Chair Shabazz responded it included Exhibit 2.
Commissioner LoPilato proposed an amendment to the motion to add an additional
footnote saying the OGC is highly concerned regarding the lack of tracking of denials
occurring within the APD.
Chair Tilos seconded the motion.
Vice Chair Shabazz accepted the friendly amendment to the motion, which carried by the
following roll call vote: Commissioners Chen: Aye; LoPilato: Aye; Reid: No; Shabazz: Aye;
Chair Tilos: Aye. Ayes: 4. Noes: 1.
COMMISSION COMMUNICATIONS
4-A. Correspondence from Commissioner Reid
Not heard.
4-B. Consider Preliminary Proposal to Address Possible Open Government Commission
(OGC) Procedure/Bylaw Revisions and Ensure OGC's Substantive Compliance with
Governing Ordinance via Subcommittee Formation (Commissioner LoPilato)
The Chief Assistant City Attorney noted items placed on the meeting agenda must be
received by the Secretary at least 10 working days prior to the scheduled meeting date;
inquired whether the item was indeed received by the secretary within said timeframe, to
which the City Clerk responded in the affirmative.
Commissioner LoPilato stated this is an attempt to draw together different conversations
and do it in a way that is compliant with the ordinances and move the Commission forward
in an efficient way; it is an ambitious proposal which, the Commission could collectively
whittle down to what feels interesting and manageable; staff feedback would be great if
the vote is to agendize any of the items; there is room in the proposal to make some
space to do some good work for the City; the bulk of the memo looks at procedures that
might be appropriate for the OGC to shine a brighter light on issues arising under the
Meeting of the
Open Government Commission
May 3, 2021
15",OpenGovernmentCommission/2021-05-03.pdf
OpenGovernmentCommission,2021-05-03,16,"Sunshine Ordinance and provide more substantive information; the meetings are not
linear or easy for the public to follow; she feels strongly that meetings going late into the
night and topics being bumped impede public accessibility; she would like to make sure
as the Commission makes recommendations to other bodies improvements that can be
made to the OGC are reviewed as well; the item is framed around subcommittee
formation.
In response to Chair Tilos's inquiry, Commissioner LoPilato stated much like when the
ordinance revisions were being considered, there was a subcommittee of two
commissioners formed to do the work and then it was brought back to the full Commission
for a vote.
Chair Tilos inquired clarification on whether forming a subcommittee to hear complaints
would be feasible in terms of the timing in scheduling a hearing.
Commissioner LoPilato responded she is not actually suggesting subcommittees on
anything related to the findings on a complaint; the usual process would be followed for
when a complaint comes in; what the subcommittees would involve is those situations
where there is a conversation that reveals something much bigger going on after making
a discrete decision on a complaint; there is a lengthy meeting dilemma where the solution
is to revise the bylaws; the next steps would be to vote on whether the Commission would
like staff to consider agendizing the creation of a subcommittee to do that; there are issues
outside the scope of the complaint where the solution would be to form a subcommittee
to track issues related to practical or policy problems encountered in the administration
of the Sunshine Ordinance, and/or when there is a time sensitive issue that warrants a
standalone report; the third issue in the ordinance seems to indicate the Commission
should be reviewing postings; she would defer to staff on what this section of the
ordinance might require.
In response to Chair Tilos's inquiry about agendizing the item for the next meeting, Vice
Chair Shabazz responded the item is on tonight's agenda; the Commission is within order
to discuss the matter and potentially make decisions; the length of the meetings is an
issue that other Commissions do not have; one thing that could help is doing work and
asking questions prior to the meeting; the meetings will not take as long if the Commission
members could organize in a way to communicate with each other appropriately prior to
meetings or have subcommittees address certain things; training for the Chair and Vice
Chair would be helpful to figure out Commission boundaries without having to figure out
bearings publicly on Zoom; having a time limit is a solution.
Commissioner Chen stated the issues are all things the Commission has been thinking
about; the proposal is very comprehensive; the Commission should start thinking about
priorities; the press release regarding the death of Mario Gonzales was very upsetting for
a lot of people because it was similar to what happened to George Floyd; the trust level
declined in the City, which is a form of open government and transparency; the item about
postings is really important, especially on sensitive issues; the issue framing adds to the
transparency or the distrust; she would like to see the Commission split into two-person
Meeting of the
Open Government Commission
May 3, 2021
16",OpenGovernmentCommission/2021-05-03.pdf
OpenGovernmentCommission,2021-05-03,17,"subcommittees to brainstorm and come back with a report to the full group for a healthy
discussion; it sets the framework and a provides a structure on how to talk about each
issue.
Commissioner LoPilato inquired what the boundaries are with respect to what the
Commission could do tonight.
The Chief Assistant City Attorney read the section of the bylaws related to the item; stated
her opinion is the Commission has the authority to take action since it has been properly
agendized.
Vice Chair Shabazz stated what he shared previously about having goals and listening to
different people's ideas are helpful; Chair Tilos discussed the use of technology to make
things efficient and accessible; there have been many conversations around
transparency, accessibility, accountability and equity; it is a thematic or principle way of
thinking about the work goals; other categories include the null and void remedy,
Sunshine Ordinance revisions and public presentations to engage people to know about
the Commission; another potential way to consider organizing the Commission is related
to how the Sunshine Ordinance is written; there is a section related to records and one
related to meetings; a subcommittee could be formed to deal with any of the sections; a
subcommittee could be formed to deal specifically with the Commission's structure;
identifying the priorities is a good start along with who is willing to do work.
Chair Tilos suggested choosing one big issue to have a subcommittee address; stated it
would leave room to tackle other topics.
Commissioner LoPilato inquired whether there is interest in utilizing this mechanism of
preparing a report on practical and policy problems encountered in the administration of
the Sunshine Ordinance; stated it could be an ongoing subcommittee; the two people
would be charged with listening to the Commission's items that come up addressing
complaints and keeping notes to compile an annual report; two people should be
identified to work on it, even though it would not be active immediately; this would be in
addition to having a high priority subcommittee.
Chair Tilos stated perhaps reserving the last 10 minutes of a meeting to summarize the
big issues could be a method for a subcommittee to compile the top issues onto a
spreadsheet that could be an agenda item to decide what to present to the Council.
Commissioner LoPilato stated that she likes that idea; she would like it to be more than
wrapping it up at the end of a meeting and going into the minutes; in a lot of cases it would
be an actual report that the Commission does not necessarily have the authority to ask
staff to do; she agrees with the method of doing a collective wrap-up and then charging
two people with putting something together.
Vice Chair Shabazz suggested having speaking time limits for the Commissioners; stated
potential specific reports could go forward, including concerns related to the City's
Meeting of the
Open Government Commission
May 3, 2021
17",OpenGovernmentCommission/2021-05-03.pdf
OpenGovernmentCommission,2021-05-03,18,"lobbying efforts; a semi-annual report related to lawsuit settlements used to come to the
OGC, but now goes to the Council; he does not want to address items during meeting
wrap-up; suggested using his work plan idea; stated the Commission should identify the
specific reports to evaluate compliance with the Sunshine Ordinance.
Commissioner LoPilato stated rather than having multiple, different subcommittees, all
the topics mentioned could all go into one annual report regarding the practical and policy
problems heading; suggested going with: 1) creation of a subcommittee to review and
identify potential revisions to the bylaws, and 2) creation of a subcommittee to prepare a
report on practical and policy problems; stated Commissioner Chen also referenced that
the postings are particularly interesting; a single Commissioner handled that in the past.
The City Clerk concurred, stated former Commission Dieter would read the agenda titles
and postings, and report back to the full Commission.
Chair Tilos listed the three priorities: 1) bylaws, 2) practical policy, and 3) postings.
Vice Chair Shabazz stated the procedure piece could be coupled with the bylaws.
Commissioner Chen stated the procedure is actual hands-on things that are happening;
the bylaws are broader and provide structure; they are actually two separate things.
Commissioner LoPilato stated that she sees a potential marriage between the bylaws and
potential revisions to the Sunshine Ordinance; the process of looking through the bylaws
could come under that umbrella.
Commissioner Chen stated the report about the practical and policy problems
encountered relates to the Sunshine Ordinance, which was changed when ad hoc
committees were added and now needs to be fixed, as well as ""unfounded"" and
""sustained;"" all are interrelated, but stem from problems in the Sunshine Ordinance.
Vice Chair Shabazz stated using the ad hoc example could be a report around the
practical policy problems encountered with the administration of the Sunshine Ordinance;
the question is where the report would go and if it would go to the full Commission; the
challenges with the administration could be initially in the form of a report that could come
to the Commission, and then be sent to Council.
In response to Chair Tilos's inquiry, Vice Chair Shabazz stated that he would be interested
in the practical problems and would frame it as one report; it has been 10 years and is
time to revisit it.
Commissioner Chen stated that she would volunteer for the practical and policy problems,
which is the whole reason she was unable to vote coherently.
Vice Chair Shabazz moved approval of appointing Commissioner Chen and himself as
a
subcommittee focused on preparing a preliminary report on the practical or policy
Meeting of the
Open Government Commission
May 3, 2021
18",OpenGovernmentCommission/2021-05-03.pdf
OpenGovernmentCommission,2021-05-03,19,"problems encountered in the administration of the Sunshine Ordinance.
Commissioner Chen seconded the motion.
Under discussion, Commissioner Reid stated that she also wanted to volunteer to work
with Commissioner Chen.
On the call for the question, the motion carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Reid: No; Shabazz: Aye; Chair Tilos: Aye.
Ayes: 4. Noes: 1.
Chair Tilos inquired whether the Commission wants to meet in June.
Commissioner Chen responded she has a lot of election work to do.
Vice Chair Shabazz stated maybe July or August.
Chair Tilos stated there will be no meeting in June unless a complaint is filed.
***
Vice Chair Shabazz moved approval of continuing the meeting an extra five minutes past
11:00 pm.
Commissioner LoPilato seconded the motion, which carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Reid: No; Shabazz: Aye; Chair Tilos: Aye.
Ayes: 4. Noes: 1.
***
Vice Chair Shabazz stated Commissioner LoPilato expressed interest in a bylaws
subcommittee.
Commissioner LoPilato moved approval of appointing herself to serve on a subcommittee
to review the bylaws.
Commissioner Shabazz seconded the motion, which carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Reid: Abstain; Shabazz: Aye; Chair Tilos: Aye.
Ayes: 4. Abstention: 1.
4-C. Consider Proposal to Amend the Sunshine Ordinance and Consider Other
Discussion Items. (Commission Reid)
Not heard.
***
Vice Chair Shabazz stated that he wanted to echo the comments made by Commissioner
Meeting of the
Open Government Commission
May 3, 2021
19",OpenGovernmentCommission/2021-05-03.pdf
OpenGovernmentCommission,2021-05-03,20,"Chen related to trust and some revelations relating to the Police Department, particularly
the use of facial recognition technology after it was banned, combined with the press
release regarding Mario Gonzales; expressed concern that said issues reaffirm and
reinforce the lack of trust related to APD operations.
Commissioner LoPilato stated in the formation of the practical and policy problems report,
she would urge that there is some attention paid to the hotspots with respect to
transparency in the Police Department.
Adjournment
Chair Tilos adjourned the meeting at 11:05 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
May 3, 2021
20",OpenGovernmentCommission/2021-05-03.pdf
OpenGovernmentCommission,2021-07-19,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY JULY 19, 2021 7:00 P.M.
Chair Tilos convened the meeting at 7:05 p.m.
ROLL CALL -
Present:
Commissioners Chen, LoPilato, Reid, Shabazz, and
Chair Tilos - 5. [Note: The meeting was conducted via
Zoom.]
Absent:
None.
[Staff present: Chief Assistant City Attorney Elizabeth Mackenzie;
City Clerk Lara Weisiger]
Oral Communications
Paul Foreman, Alameda, stated regarding Section 2-93.8, a quasi-judicial decision is not
a policy decision; it is an application of City law to the facts in the Sunshine Ordinance;
the current proposal language drafted by Councilmember Knox White and Commissioner
LoPilato appropriately deals with the issue; urged the Commission to support the
conclusions.
Regular Agenda Items
3-A. Minutes of the May 3, 2021 Meeting
Commissioner Chen stated she would like to review the video to see whether she used
the term superheroes as reflected in the minutes as she did not recall saying it.
The City Clerk stated the sentence could just be struck from the minutes.
Commissioner Reid stated that she wanted to make a correction that she had her hand
raised but Vice Chair Shabazz spoke out of turn; it should be noted that Chair Tilos did
call on her and she did not have an opportunity to speak; she also wanted to remind the
Commission of the Rosenberg's Rules of Order and the courtesy of decorum where it is
always best for only one person at a time to have the floor.
Vice Chair Shabazz stated as a point of order the item of discussion is the minutes and
is not the appropriate time for Commissioner Reid's comments.
Commissioner Reid stated it is appropriate because it is best for every speaker to be first
recognized by the Chair before proceeding to speak; it is a relevant point that should be
made and pertains to a particular point in the minutes.
Chair Tilos stated he does not remember the incident and apologized if something was
done out of order; there was some confusion with the phones and raised hands but he
Meeting of the
Open Government Commission
1
July 19, 2021",OpenGovernmentCommission/2021-07-19.pdf
OpenGovernmentCommission,2021-07-19,2,"always strives to grant the floor to whoever is asking to speak; thanked Commissioner
Reid for calling it out.
The City Clerk clarified when people raise their hands to speak is not reflected in the
minutes.
Commissioner Reid stated that she feels it should be included that Chair Tilos did call on
her because it reads strangely in the minutes as she asked to participate in the
subcommittee during her turn to speak.
In response to Chair Tilos' inquiry, the City Clerk stated Commissioner Reid's comments
will be noted in the minutes for this meeting.
Vice Chair Shabazz stated the comments are debatable and he would like to review the
video before voting to approve the minutes; inquired whether the minutes from the last
meeting need to be approved before continuing with the agenda.
The City Clerk responded in the negative; stated the Commission could defer approval of
the minutes to the next meeting; suggested capturing the current discussion in this set of
minutes instead of modifying the other set; stated the minutes could be brought back to
the next meeting if the Commission would like to consider further revisions.
Vice Chair Shabazz stated in light of the comments, he would like to ensure the accuracy
of the minutes and find ways to better the practices so everyone can participate.
Vice Chair Shabazz moved approval of the deferring the approval of the minutes to the
next meeting.
The motion failed due to a lack of a second.
In response to Chair Tilos' inquiry, the City Clerk stated she would capture the discussion
in this set of minutes because she does not know where it would be inserted in the May
3rd set.
Vice Chair Shabazz moved approval of the May minutes.
Commissioner Chen seconded the motion, which carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Reid: Aye; Shabazz: Aye; Chair Tilos: Aye.
Ayes: 5.
3-B. Preliminary Report from Subcommittee on Bylaw Revisions
Commissioner LoPilato reviewed the items outlined in her report.
Vice Chair Shabazz thanked Commissioner LoPilato for beginning the work on the
revisions; stated the OGC previously discussed bylaw revisions at its meeting on March
Meeting of the
Open Government Commission
2
July 19, 2021",OpenGovernmentCommission/2021-07-19.pdf
OpenGovernmentCommission,2021-07-19,3,"5, 2018; a subcommittee of Commissioners Dieter and Little had some recommendations
related to Rosenberg's Rules and noted the League of Cities does that; he supports
utilizing Rosenberg's Rules; another framing that exists is Roberta's Rules; encouraged
folks to look back at the March 2018 meeting for the excellent recommendations from
their predecessors.
Commissioner LoPilato stated that she noticed the subcommittee report prepared in
2018; it was recommended that Rosenberg's Rules be encouraged to be applied to all
Boards and Commissions; continued her presentation.
In response to Commissioner Chen's inquiry, Commissioner LoPilato stated her thought
was to move away from the existing content in the rules of order section and streamline
a much clearer order similar to City Council to follow Rosenberg's with the modifications
outlined; she is open to hearing other ideas on modifications; for the sake of consistency
and creating a uniform experience for the public in participating, it would be a great step
to follow.
Chair Tilos stated that he is aligned with Commissioner LoPilato's vision on setting eight
minutes for each Commissioner's speaking time with the ability for a majority vote of the
Commission to extend it.
Commissioner Reid stated that she would like to include a nine minute speaking time to
be consistent with City Council and extension by a majority vote.
Commissioner LoPilato inquired whether there were any objections to nine minutes; there
were none.
In response to Chair Tilos' inquiry, the City Clerk stated the timing is done on the Council
level and can be done at Commission meetings.
Commissioner LoPilato inquired whether anyone had opposition to having a limit on
presentations.
Commissioner Chen responded a 10 minute limit on presentations is fine; stated
Commissioner Communications should be discussed in future meetings only needs an
explanation long enough so that other Commissioners can agree or not agree to put an
item on a future agenda; for presentations under Commissioner Communications,
it
should be less than 10 minutes.
Commissioner LoPilato concurred with Commissioner Chen's comments; stated that she
will jot down five minutes and go from there.
In response to Commissioner Reid's inquiry, Commissioner LoPilato stated she would be
putting a placeholder in the bylaws about the complaint procedures for now; the
Commission will need to flesh out a public document that outlines the complaint
procedures.
Meeting of the
Open Government Commission
3
July 19, 2021",OpenGovernmentCommission/2021-07-19.pdf
OpenGovernmentCommission,2021-07-19,4,"Commissioner Reid inquired whether a subsection under the Purpose of the Commission
would be an appropriate place to put the complaint procedures.
Commissioner LoPilato responded amendments to Sections Il Purpose of the
Commission, and III, Membership, require City Council action; stated the Commission
does not have the authority to change it; she would rather not have it go to Council and
come back.
Vice Chair Shabazz stated he would defer to Chair Tilos, but because there is a lot of
overlap in the agenda, he is okay with discussing and going through the items now so
there would be no need to discuss them separately; encouraged streamlining the
discussion.
Chair Tilos stated that he likes the flow of Commissioner LoPilato's presentation and
would like to continue in said manner.
Commissioner LoPilato continued her presentation.
In response to Commissioner LoPilato's inquiry, the City Clerk stated the Commission
can modify the sections of the agenda in the bylaws and have an actual item where
complaint hearings would land before the regular agenda items to make sure the hearings
are held as required by the complaint process; modifying the agenda sections is
acceptable.
Commissioner LoPilato stated the issue of outlining how things come to be placed on the
agenda is already in the bylaws but is a little bit confusing; inquired whether staff is the
primary source, but Commissioners could also reach out to staff for guidance.
The City Clerk responded in the affirmative.
In response to Commissioner Reid's inquiry, Commissioner LoPilato stated it would be
helpful to have some clarifications in the bylaws about how staff decides to place items
on the agenda; inquired whether the proceedings for the Chair and Vice Chair election
should be modified.
In response to Chair Tilos' inquiry, the City Clerk explained the history of when the Chair
and Vice Chair were elected; stated it has been done in many different ways and not
consistently.
Chair Tilos concurred with the City Clerk and stated the Commission used to only meet
in February and October; suggested having the elections in January or February after
members are appointed by newly elected Councilmembers.
In response to Commissioner LoPilato's inquiry, Vice Chair Shabazz stated the bylaws
currently state the election takes place after January 1st; the unique composition of the
Meeting of the
Open Government Commission
4
July 19, 2021",OpenGovernmentCommission/2021-07-19.pdf
OpenGovernmentCommission,2021-07-19,5,"Commission distinguishes it from others; how officers are selected accounts for that; there
is also a habit in the order of appointment, which, should be codified if it will be the
practice.
Commissioner LoPilato stated the comments are helpful; she will tinker with some options
and bring it back to the group; continued her presentation.
Commissioner Reid stated that she was going to suggest no new items be considered
after 10:00 p.m. unless a supermajority of the Commission votes to allow the items to be
heard; this would facilitate more communication with the public so the meetings do not go
too long with the potential for losing participants.
Chair Tilos stated he could support either 10:00 or 11:00 p.m.
Vice Chair Shabazz stated his main concern is the public's ability to participate; if the
practice is to have Commissioner Communications as the mechanism to get things on
the agenda, he would be concerned about things that do not get on the agenda; the
Commission takes a long time to have discussions and go over details; he would
encourage having only three minutes for Commission Communications and have that
section first; it depends on the composition of the group.
Commissioner LoPilato stated that she will do a little research on the other bodies that do
it in a similar way.
The City Clerk stated the section in the original bylaws matched a deleted section of the
Sunshine Ordinance.
Commissioner LoPilato stated it would be great to allow non-agenda items to be a space
to encourage community members to come forward outside of the complaint process with
issues they are facing; inquired whether there are strong preferences on the minutes
section.
Commissioner Reid stated the bylaws state draft minutes should be available in 10 days;
inquired whether it would be possible to publish the draft minutes as soon as possible.
The City Clerk responded the deadline of 10 business days for draft minutes is always
met; stated unapproved minutes are not published in the agenda database because
members of the public could think they are approved and take them and run with them; if
the Commission finds fault in the unapproved minutes, posting them would be misleading
to the public.
Commissioner Chen stated when reading the minutes, she felt like she relived every
minute of the meeting; she would suggest moving in the other direction of having just a
basic outline of the discussion with the key points and having the last paragraph state the
decision; she gets bogged down reading the minutes and is having trouble reliving the
entire experience; it is not helpful to her and actually works the opposite of transparency
Meeting of the
Open Government Commission
5
July 19, 2021",OpenGovernmentCommission/2021-07-19.pdf
OpenGovernmentCommission,2021-07-19,6,"because it seems like too much information.
The City Clerk stated a form of minutes commonly adopted called Action Minutes which
is as Commissioner Chen described; past Commissioners have stated there was not
enough included in the minutes; the Clerk's office is happy to go towards Action Minutes
and will do whatever the Commission prefers.
Chair Tilos stated he feels the longer minutes are helpful because there are a lot of
members of the public who did not attend the meeting live and do not know all the pieces.
Commissioner Reid inquired whether the live transcript can be published.
The City Clerk responded the Zoom function used for the meetings does not capture a
transcript; the captioning is only shown on the screen during the discussion, but not
transcribed; the video of the meeting is posted the day after the meeting; the Clerk's office
is also available to help and provide information to let people know what transpired at the
meetings.
Commissioner Reid inquired how a disabled person can watch the video, to which the
City Clerk responded the captioning is in the recording, but the typing is not transcribed
or saved anywhere in a document.
Vice Chair Shabazz inquired whether the issue is regarding revising the actual process
of the minutes or about what is captured in the minutes.
Commissioner LoPilato responded her intention with the question was to gauge whether
there were any strong statements about the way minutes are handled that could be
incorporated in the bylaws, including changing to Action Minutes if decided; she would
work with the City Clerk to be sure the Commission is referring to the most contemporary
practices in the bylaws; she would like the minutes section of the bylaws to reflect what
the Commission is actually doing as opposed to making huge changes.
Vice Chair Shabazz stated as someone who uses minutes for historical research, he is
grateful when they include more detail; provided an example of a meeting in the 1940's
where watching a video was not possible; stated the detail in the minutes was valuable
beyond just bullet points that would be included in Action Minutes; he appreciates
Commissioner Chen's point about having so much discussion included in the minutes,
but does not have a strong opinion about it and appreciates the ability to go back and
read to understand what was discussed; issues with the minutes has come up a few
times; there are conversations that do not seem germane during the minutes and it is not
the time for that; he would like the Commission to figure out the appropriate time and not
discuss things that are not relevant at that moment; these issues could be addressed in
training.
Commissioner LoPilato stated that she appreciates Vice Chair Shabazz's comments and
has noticed the same issues arise; in working on the language of the bylaws, she will try
Meeting of the
Open Government Commission
6
July 19, 2021",OpenGovernmentCommission/2021-07-19.pdf
OpenGovernmentCommission,2021-07-19,7,"to find an easy place to insert language about the process; she agrees basic training
would be helpful; for the last item, she is hoping to add a new section in the bylaws: an
index of onboarding resources; it will change over time, but would be a straightforward
procedural process for each new Commissioner; it would be a placeholder until more
information is spelled out.
Chair Tilos stated he thinks an index of resources is a great idea.
Commissioner Reid stated that she appreciates all of Commissioner LoPilato's work on
the bylaw revisions; inquired whether a requirement could be added to communicate with
the OGC whenever the OGC is mentioned at Council or other Boards and Commissions
meetings.
Commissioner LoPilato stated that she is hearing is the desire to have a statement that if
a matter pertaining to the OGC is brought before another policy body, such as the City
Council, that staff will make the OGC aware of the item; she thinks it is a question for staff
with respect to whether the OGC has the power to require it.
The City Clerk stated if the OGC would like to put in a request to be informed of matters
pertaining to the OGC, staff could do their best; quite often Boards and Commissions are
typically copied on reports.
Commissioner LoPilato stated that she noticed the Code of Conduct includes that if staff
is presenting something that relates to a Commission, there should be space for the
Commission chair to be able to respond if there is a dispute; if there is a statement like
that, she may add a mirror image of it into the OGC bylaws because it was a very
significant recent issue.
Commissioner Reid inquired whether some reference to the minimum number of
members required to create a subcommittee should be added.
The Chief Assistant City Attorney stated another option is to give the Commission the
ability to designate a single member; it could be a subcommittee or a sole member.
Commissioner LoPilato stated she will write something out for the Chief Assistant City
Attorney to review.
Commissioner Reid suggested meeting locations also be included in the bylaw revision if
the City Attorney and City Council wish to proceed with providing Zoom meetings to the
public; she also wanted a possible amendment to increase the time for public speakers
when there are less than five speakers in order to encourage as much public participation
as possible or allow an opportunity to speak a second time.
Chair Tilos stated the meetings have been going beyond 11:00 p.m. since January; time
limits for speakers should not be increased and should remain at three minutes; most of
the speakers comply with three minutes; he does not want to give an invitation for more
Meeting of the
Open Government Commission
7
July 19, 2021",OpenGovernmentCommission/2021-07-19.pdf
OpenGovernmentCommission,2021-07-19,8,"time; if a speaker requests another 30 seconds, he would grant it, but there have been
no requests for time extensions and he does not want to change the rules.
Vice Chair Shabazz stated it is not necessary to increase the speaker time; meetings are
one method of getting things done and take a long time for various reasons; there are
other things like workshops or charrettes; people can individually contact Commissioners
and have conversations; there are alternatives to just opening the floodgates for
additional time, which is not the most optimal method of letting democracy flourish.
Commissioner Chen stated that she concurs with Vice Chair Shabazz.
Commissioner LoPilato stated that she agrees with keeping the speaker time at three
minutes; the point is well taken that there are other ways to get ideas out there; a guiding
principle is that Commissioners are very available and can say things during
Commissioner Communications if a member of the public brings something forward.
Chair Tilos stated Commissioner time limits should stay at the eight minute mark.
Commissioner Chen stated regarding the issue of declaring a conflict of interest and
recusal, until she read up on the issue, she did not believe she had a conflict of interest
when she was asked to recuse herself; there needs to be some clarification on the
process; when she read about it online, it was mainly about financial interest.
Commissioner LoPilato stated the topic is definitely one for training and something for the
onboarding resources in the bylaws.
Chair Tilos thanked Commissioner LoPilato for all the work, providing a good framework,
and for being very efficient in asking the questions; he thanked the Commissioners for
their input as well.
3-C. Report from Subcommittee on Practical and Policy Problems Encountered on
Administration of the Sunshine Ordinance
Vice Chair Shabazz and Commissioner Chen gave a brief presentation.
Chair Tilos stated he was given a 45-minute orientation by the Recreation and Parks
Director, along with the Chair of the Commission when he was appointed to the
Recreation and Parks Commission; suggested the same orientation process for new
Commissioners, rather than the two hours proposed by the subcommittee.
In response to Chair Tilos' inquiry, Commissioner Chen stated it would have been helpful
for the three new commission members to meet with the City Clerk to go over the
Sunshine Ordinance and Handbook; there is a group dynamic; one Commissioner might
ask a question that another Commissioner did not even think about; the idea was just her
personal vision of how to onboard people and existing Commissioners could also join the
orientation as a refresher.
Meeting of the
Open Government Commission
8
July 19, 2021",OpenGovernmentCommission/2021-07-19.pdf
OpenGovernmentCommission,2021-07-19,9,"Vice Chair Shabazz stated that he is also considering the certain dynamics of the staff
currently; provided the example of the new Chief Assistant City Attorney not having some
of the historical knowledge that the City Clerk has; proposed the orientation be based on
the roles and responsibilities of a specific position and title versus the individual, i.e., there
may be some instances where the Chair could do something informally and a staff person
could provide a more formal orientation.
Commissioner Reid suggested the OGC create a video for training purposes, which might
also be cost-cutting moving forward; inquired whether the subcommittee would create an
online binder as suggested; noted the Chief Assistant City Attorney has been very
respectful and she appreciates the good working relationship.
Chair Tilos stated there is some value in having a new Commissioner come onboard with
a staff member and a current Commissioner.
Commissioner LoPilato stated the orientation portion is not what she pictured as being
part of the thrust of this particular report; all the ideas are great and are things the
Commission should be doing; she sees structural issues with the OGC as a smaller
subheading to the broader, internal issues, which should be the report's focus; it is not
sufficient to train OGC members with the same training given to everyone; Commission
members need something more in-depth with more resources; training that is developed
around how to function as an adjudicatory body would benefit the OGC; she would add
the 2019 Sunshine Ordinance training video to the list.
In response to Vice Chair Shabazz's inquiry, Commissioner Chen stated the report is a
whole different thing; the exhibit is just a list of things the subcommittee would like to have
done; the report is one of the OGC duties; she agrees the annual report and the decade
report are going to be much more robust and detailed; the way for people to work together
successfully is by working together; there is no cohesion in the high tech/low touch
situation of the pandemic and Zoom world; instead, there are people thinking of plots
against each other and having a lot of divisiveness in the country as a whole; training
should be exempt from being considered congregating as a quorum; Commissioners are
not legislating or making decisions; training is about learning the laws the Commission is
required to oversee; she always benefits from hearing other people's questions; having
at least one group session of the new members with veteran members would be
beneficial.
Vice Chair Shabazz stated the exhibits were set up to deal with internally bringing people
in, then, expanding the relationship with the staff, and lastly, getting to the actual duties.
Commissioner LoPilato stated there has been a lot of uncertainty around whether the
Commission is charged with recommending specific revisions to the Sunshine Ordinance
or with the implementation of the ordinance; the delineation is also at the root of some of
the tension and relationship issues between the Commission and the City Attorney's
office, but also goes to the roles and responsibilities question; the Commission should be
Meeting of the
Open Government Commission
9
July 19, 2021",OpenGovernmentCommission/2021-07-19.pdf
OpenGovernmentCommission,2021-07-19,10,"mindful that it is not here as legislative drafters.
The City Clerk read section 2-22.4 of the Alameda Municipal Code regarding the duties
of the OGC.
Commissioner LoPilato stated if a problem comes up over and over, such as the ad hoc
exemption in the Sunshine Ordinance, the Commission could surface the issue through
the implementation reports to Council as an issue the community is concerned about,
rather than sending out Commission Communications about changing the language in
the ordinance.
Commissioner Chen stated the reason she has that confusion is because the Boards and
Commission Handbook actually lists ""proposing amendments to the Sunshine Ordinance
to the City Council.
The City Clerk stated she would correct the Handbook and thanked Commissioner Chen
for pointing it out.
Commissioner Reid stated the trainings would be great; suggested including members of
the public as well so they can also learn; stated the Sunshine Ordinance is a guide to
implement the Brown Act and should be looked at from that higher point of view.
Vice Chair Shabazz stated if the orientation is noticed, members of the public can
participate; the Brown Act, which is based on principles of democracy, is a specific tool
that is being used and clarified at the local level; the subcommittee will take all the
feedback into advisement; this is just a starting place to correct some challenges the
Commission has had with operations; the next piece regarding the roles and
responsibilities relates to challenges of folks coming on the Commission and not
necessarily knowing the different roles; Chair Tilos already suggested having a more
informal meeting with new Commissioners, along with City staff; he likes Commissioner
Chen's suggesting that the first thing that should be seen in the complaint process should
be the complaint itself, then, a staff report with action and response if there is any cure
and correction; making sure all communications are pertinent is important so that one
person does not have more information than others; provided an example of receiving
email data for the Scott Morris complaint, which gave him a different timeline and
understanding of the particular issue; stated one of the duties listed is contacting the
complainant, which is actually a duty for City staff; these are just some issues the
subcommittee wanted to bring up, specifically related to the City Attorney's office.
Commissioner Reid inquired whether it would be appropriate to add that staff and the City
Attorney's office should inform the OGC about exemptions, which should also be included
in the annual report or possibly a monthly report; stated the goal should be to educate
everyone and to create greater access.
Vice Chair Shabazz clarified his understanding of Commissioner Reid's suggestions: if
there are complaints, communicate that there is a complaint, the exemptions being
Meeting of the
Open Government Commission
10
July 19, 2021",OpenGovernmentCommission/2021-07-19.pdf
OpenGovernmentCommission,2021-07-19,11,"claimed and have frequent reporting or monthly communication; suggested adding a Staff
Communication section to the agenda as a mechanism to share important information
with the public; stated the role and responsibilities of the City Clerk's office would include
timely communications with the OGC and relaying the decisions or recommendations to
the originating body; some of this is internal City communications that the subcommittee
just does not necessarily know what happens, along with responding to questions from
potential complainants.
In response to Vice Chair Shabazz's inquiry, Commissioner Chen stated sometimes
complaints do not reach the Commission because they have asked the City Clerk's office
for clarification; once the Clerk provides it, they realize it does not qualify as a complaint;
she assumes that providing the clarification is one of the Clerk's duties and there must be
a lot of interesting queries, including questions where people think the Sunshine
Ordinance does more than it does; the Sunshine Ordinance does something very clearly
prescribed and people think it is a vehicle to do something else; it would be helpful if the
Commission could do something to inform people about the parameters.
Vice Chair Shabazz stated the Commission does not necessarily know what staff does in
relationship to the Commission; the subcommittee was trying to outline some of the
different roles and responsibilities and give staff an opportunity to clarify the roles.
Commissioner Reid stated that she would like to find a way for the OGC to be of service
to the community regarding the Public Records Act (PRA); suggested having a statement
on the City's website that would encourage members of the community to reach out to
the Commission directly; also suggested providing a list of resources and points of contact
in the community such as the library, Mastick Center or other community organizations.
Vice Chair Shabazz clarified the discussion is still on the roles and responsibilities section,
not the PRA portion; stated Commissioner Reid's suggestions are interesting and the
Commission will have the opportunity to come back to them; he would like to consider
how individual Commissioners and relationships with different organizations may be able
to be leveraged; the next issue is the question around how to build trust between the OGC
and the City Attorney's office; the subcommittee wanted to begin this as a conversation;
the guiding questions for bringing up the discussion and how to document it in a report
included what are the specific roles, how do the OGC and the City Attorney's office relate
to one another, where have issues of contention arisen, and the need to understand the
structural conflict of interest between the role of the OGC and the City Attorney's office
and find ways within it to work constructively.
Chair Tilos stated he definitely agrees with Vice Chair Shabazz's comment regarding the
breaking of trust; he does not have answers; restated the issues that created the mistrust,
including the December OGC meeting where items were not brought forth to the Council
as recommended by the OGC; he is concerned about how complaints will be dealt with
in the future and whether complaints will just go to a hearing body or mediator; he will
leave it up to the subcommittee to figure out how to make it better.
Meeting of the
Open Government Commission
11
July 19, 2021",OpenGovernmentCommission/2021-07-19.pdf
OpenGovernmentCommission,2021-07-19,12,"Vice Chair Shabazz restated the issue and what needs to change with the process or
clarification of roles to build or reestablish a trusting relationship.
***
Chair Tilos inquired whether a break is needed.
Commissioner Reid stated that she would pull items 4-A and 4-B.
***
Vice Chair Shabazz stated the first thing related to Public Records Act (PRA) requests is
where the challenges have arisen and whether the challenges are idiosyncratic or
systematic; if the problems are systematic, the question becomes how can the OGC help;
among the recommendations was a 10 year report, which is overarching and not specific
to the PRA requests; the report is modeled after a PRA report by the City of Oakland's
Public Ethics Commission which came out in May; encouraged folks to read the report;
stated the report is to understand what is happening with public records requests in the
City of Alameda; the second question is regarding the amendments, including what is and
what is not a legislative body, the adjudicatory functions and specifically the suggestion
to add a definition to ad hoc; there is also the question around the mechanisms of
enforcement, which has been a focus for the last few years; these are only a few issues
discussed; there may be more specific recommendations; the subcommittee wanted to
get feedback from the rest of the Commission.
Commissioner LoPilato stated the issues are the areas she imagined would be the thrust
of what the report would encompass; her vision may not be in sync with the Commission
and feels there may be a disconnect; there is the annual report prepared by staff which
lists the PRAs and complaints; then, there is discussion about a possible 10 year review
of the OGC and Sunshine Ordinance; what the Commission is charged with doing, which
is also in the ordinance, is reporting to Council annually on practical or policy problems
encountered in the implementation of the Sunshine Ordinance; it is the Commission's
opportunity to weigh in on a more in-depth look at interpreting the issues listed in the PRA
chart or what was surfaced during complaints; inquired whether her thoughts are in line
with the type of reports produced.
Vice Chair Shabazz responded in the affirmative; stated that is where he sees the bulk of
the challenges, along with the capacity to generate a report; additional areas have been
outlined in the conversation; he could share specific things that have come up in
meetings, but just wanted to hear from the rest of the Commission on the different issues
that need to be addressed.
Commissioner LoPilato stated it would be great if the Commission had limitless bandwidth
to dive in, investigate and do interviews to get to the meat of the issues; the report can be
the Commission's opportunity to elevate and amplify concerns from the community; even
something as simple as headings: ""Concerns raised to the OGC via complaints"" or
""Concerns Raised to the OGC outside of the complaint process;"" whatever it is needs to
be substantive; listed items that should be included: ways in which community members,
Meeting of the
Open Government Commission
12
July 19, 2021",OpenGovernmentCommission/2021-07-19.pdf
OpenGovernmentCommission,2021-07-19,13,"including journalists, have had to push hard to get public records requests fulfilled,
whether delivery of records after having to make repeated requests constitutes prompt
delivery, how complainants are treated, there have been some observations of an
adversarial or bullying dynamic, said issues are functional to flag that may not surface to
Council otherwise; others are: how Consent Calendar items are placed on the Council
agenda and the legality of certain Sunshine Ordinance provisions; she does not see the
Commission as appropriately weighing in on it, but elevating it as it comes up could be a
function of the report; the State and federal legislative advocacy agenda could be
something the Council could report back on and concerns about the Alameda Police
Department (APD) not tracking PRA denials; it is a benefit that the subcommittee is made
up of members who have gone through the complaint process and can also fill in some
of the gaps about their experiences; she thinks a 10 year report would be great, which
will probably need some staff resources, but at least once a year a report should go to
Council.
Vice Chair Shabazz summarized Commissioner LoPilato's suggestions and comments;
stated that he encourages folks to go back and look at the different OGC complaints; one
of the strengths of the subcommittee is that it is an undefeated group who have gone
through the experience and whose complaints were sustained; suggested the
supplementary report regarding PRAs be a regular report; stated that he would like to
codify Commissioner suggestions; repeated concerns related to the ad hoc definition and
Brown Act.
Commissioner Reid stated that she noticed some inconsistencies and wonders how the
Commission can provide consistency and transparency across all Boards; inquired
whether directing staff to appropriately provide a remedy should be brought up with the
Council; gave some examples of inconsistencies within other Boards and Commissions.
In response to Chair Tilos' inquiry, the City Clerk stated most Boards and Commissions
have their own staff members who do their minutes and may be running behind; the time
stamping of the meetings require a staff person to be logged into the system during the
meeting; other Boards and Commissions do not have additional staff like the Council and
OGC; clarified that not all Boards and Commissions are required to broadcast meetings;
she can review missing items and inform the appropriate staff.
Chair Tilos stated from his experience serving on the Recreation and Parks Commission,
staff informed him that it sometimes takes four to eight hours to complete a set of minutes;
there is no staff to facilitate minutes or time-stamping of meeting videos.
Vice Chair Shabazz stated that he hears the concerns regarding information being
available, which could be included in some format; some Commissions do not have as
much capacity as others.
Commissioner Reid inquired whether the OGC should alert the City Council about the
inconsistencies with the other 11 Boards and Commissions.
Meeting of the
Open Government Commission
13
July 19, 2021",OpenGovernmentCommission/2021-07-19.pdf
OpenGovernmentCommission,2021-07-19,14,"Vice Chair Shabazz stated that when reviewing other Sunshine Ordinances, an OGC
member could monitor what other Commissions are doing to see if there are any
challenges; someone could monitor public meetings; the needs of the different
Commissions should be considered.
The City Clerk clarified that the Sunshine Ordinance only requires broadcast of the City
Council, Planning Board, Transportation Commission, Historical Advisory Board,
Recreation and Park Commission and OGC.
Commissioner LoPilato stated it would be a good idea to have a discussion about
prioritizing the issues the Commission will actually make a recommendation on once the
report is brought back; these would be items that are high impact and would really bring
as big of a change as possible, in terms of transparency improvements; other concerns
can be listed or flagged, but not go in-depth; from the standpoint of institutional credibility
to be of service to the Council and the community, the Commission should focus on true
hot spots and substantive issues that lots of people are raising or see as extremely
problematic.
Vice Chair Shabazz stated utilizing time more effectively by de-prioritizing or not
duplicating efforts would be helpful.
Commissioner Chen stated that she wanted to clarify that she understands the conflicts
between the OGC and the City Attorney's office are not personal; it is about the systems;
the OGC is supposed to look at complaints against City government and the City
Attorney's office represents City government; there is a built-in conflict; open government
is like internal affairs on the government; depending on people's personalities and
different things, there might be greater or lesser conflicts; the conflict is built into the
nature of the relationship; the email received from the Chief Assistant City Attorney was
a good explanation of a really great starting point for conversations; she wants to make it
clear it is a systemic conflict and not personal; a systemic issue should be approached
systemically and lay aside any personal feelings; she would like to figure out a way to
work together and understand the underlying conflict to do what is necessary to reduce
the conflict.
Commissioner LoPilato expressed support for Commissioner Chen's comments as the
best framework for putting forth a lot of the challenges within the structure of the OGC;
stated it is inherent in the system that was created in 2011 and 2012; it is beneficial
context for Council and the public and furthers the institutional credibility; perhaps there
could be ways to work within in or make changes to it at some point.
Vice Chair Shabazz summarized the comments and recommendations; stated the
subcommittee will take the feedback and information received and work to prioritize some
of the things to bring forward in a report; regarding comments made about capacity, staff
may be able to assist in some ways with a multi-year process; considering how the
Commission may want to operate over the next two years is important; this is one of the
first reports that is trying to look at the system and address some of the recurring
Meeting of the
Open Government Commission
14
July 19, 2021",OpenGovernmentCommission/2021-07-19.pdf
OpenGovernmentCommission,2021-07-19,15,"challenges; the subcommittee will come back with a final report.
3-D. Update on Training
The Chief Assistant City Attorney announced Sunshine Ordinance training would be held
on December 14th at 10:00 a.m. and a Study Session would also be scheduled, which
would be publicly noticed.
In response to Commissioner Chen inquiry, the Chief Assistant City Attorney stated the
content of the email she sent Commissioners would be more appropriately discussed
during a later agenda item about the complaint procedure.
Vice Chair Shabazz thanked staff for working together to set up training; stated that he is
looking forward to different study sessions.
COMMISSION COMMUNICATIONS
4-A. Consider Communication regarding Correspondence with First Amendment
Coalition (Commissioner Reid) Withdrawn.
4-B. Consider Communication regarding Discussion Items (Commissioner Reid).
Withdrawn.
4-C. Consider Communication regarding Equity Survey (Vice Chair Shabazz)
Vice Chair Shabazz made brief comments.
In response to Chair Tilos' inquiry, the City Clerk stated any survey cannot be made
mandatory; a person cannot be forced to fill it out; legally what can be asked and where
the survey should come from is a question of whether it falls under the OGC or something
the Council should direct.
Commissioner LoPilato stated that she likes the goal of the survey to ensure Boards and
Commissions are diverse, inclusive and equitable; gaining the information at the
application stage, rather than after the appointment stage, is problematic in nature; an
interesting question is what does the application pipeline look like and what can be done
to improve the pipeline and make it more diverse; she would add more immediately
implementable things along the lines of applying an equity lens in the application process;
also finding out what is done currently to recruit people and how that can be improved.
Commissioner Chen thanked Commissioner Reid for sharing the Sacramento link; stated
part of the recommendation is suggesting that the City set up a committee on racial equity
and diversity; the OGC's role is to increase the number of people who apply; it is hard to
know where is the need to generate applications.
Commissioner Reid stated that she is supportive of the goal to represent all members of
Meeting of the
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OpenGovernmentCommission,2021-07-19,16,"the community; diversity is paramount; the OGC should really strive for it; she hopes other
members will have a chance to review the Sacramento report; inquired what the cost
would be if the OGC recommends it and Council decides to implement the process; stated
it is an important issue and what is being requested is important to know.
Vice Chair Shabazz stated there is some level of interest and some questions around the
practicality and privacy concerns and potential implementation cost; he is interested in
knowing how it could be done in Alameda; it appears the Sacramento system was done
by the City Manager's office or an auditor.
The Chief Assistant City Attorney stated this would be a request that would be
appropriately considered by the City Council in that it deals with a body that is in addition
to the OGC and also potentially may involve funds and/or staff time to actually conduct
the program; said decisions should be made by Council.
The City Clerk concurred with the Chief Assistant City Attorney.
Commissioner LoPilato inquired whether the comment came up in the Police Reform and
Racial Equity Subcommittee presentation to the OGC; stated if it was part of said context,
it could be a way to frame the message that it did not come directly from the OGC.
Chair Tilos concurred; stated rather than calling it out as a separate request, it could be
added to the report.
Vice Chair Shabazz stated he would like to frame it a little differently; the way he tried to
frame it while writing it to the Commission was the question of what does equity look like
within Boards and Commissions, considering how to implement it and whether it is
possible to have something really be democratic when a wide spectrum of the community
is not engaged; he questions whether or not there are substantive barriers to participation;
he would like to streamline it and simply suggest the Council review the Boards and
Commissions to increase representation; it is a question the Council should explore and
if they choose not to, it is their prerogative.
Commissioner Chen moved approval of the OGC writing a letter to the City Council
expressing interest in expanding citizen participation in City government, starting with
Boards and Commissions, including a diversity audit so the Commission will know where
outreach should be done.
Vice Chair Shabazz seconded the motion, which carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Reid: Aye; Shabazz: Aye; Chair Tilos: Aye.
Ayes: 5.
In response to Vice Chair Shabazz's inquiry, Chair Tilos stated his suggestion would be
for Vice Chair Shabazz to draft the letter along with Commissioner Chen and bring it to
the next meeting for review by the whole Commission.
Meeting of the
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16
July 19, 2021",OpenGovernmentCommission/2021-07-19.pdf
OpenGovernmentCommission,2021-07-19,17,"Vice Chair Shabazz stated waiting a month for a letter is not very effective.
Commissioner Chen stated City Council takes August off so it will be a month anyway;
the OGC can send the letter and speak during public comment.
Commissioner LoPilato stated the OGC should have a functional equivalent of a Consent
Calendar; she does think the letter could be simple and streamlined; given the practical
reality that Council is not meeting in August anyway, it may be beneficial to put some
daylight on the letter and surface it through the full Commission.
Commissioner Reid stated that she can go either way and wants to leave it up to the rest
of the Commission.
The City Clerk clarified the next meeting date of the OGC is August 2 and the packet
would have to go out in one week.
Chair Tilos stated that he is leaning toward having Vice Chair Shabazz and Commissioner
Chen draft the letter and send it out so an August meeting would not be needed.
Commissioners Shabazz and Chen agreed to draft the letter and send it to Council.
4-D. Consider Communication regarding Remote Meeting Participation (Vice Chair
Shabazz)
Vice Chair Shabazz made brief comments.
Commissioner LoPilato stated that she loves the item very much and lifts up a lot of
appreciation to Vice Chair Shabazz; she strongly supports it and has just some minor
wordsmithing on the resolution; there are a lot of ways to do remote participation; the
telephonic option is a low-cost approach; she is open to whatever the spectrum is as long
as there is a way to continue to be accessible to folks who would not be participating in
person.
Thanked Vice Chair Shabazz for bringing the item forward; stated it took a pandemic for
folks to realize how inaccessible government is to certain people; being able to attend the
virtual meetings has been transformational; he does not want the accessibility to end
when September 30 hits; urged including AB 339 in Alameda's Sunshine Ordinance: Zac
Bowling, Alameda.
Commissioner Reid stated she is also very supportive of the item, especially as someone
whose first language is not English; it is a great idea.
Chair Tilos concurred with Mr. Bowling about keeping the momentum on the issue going;
stated the pandemic made all the technological advances better; it could be very powerful
in getting more people to meetings, which is the goal; he definitely supports it.
Meeting of the
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17
July 19, 2021",OpenGovernmentCommission/2021-07-19.pdf
OpenGovernmentCommission,2021-07-19,18,"In response to Commissioner LoPilato's inquiry, the City Clerk explained that with the
technology, staff is completely bypassing the Chambers equipment and the Zoom
meetings are not integrated with the equipment; it is not to say it cannot be done, but she
and her staff have been trying to troubleshoot and think of ways to do it; converting the
system back to being live is complex; her office wants to wait until Council is dark in
August to start running tests and see how the technology could work; there is definitely
some momentum with the issue; regarding the resolution, the OGC has never adopted
one before and it may not be the right mechanism; suggested turning the resolution into
a letter to the Council similar to the last item, as a motion would accomplish the same
goal.
Chair Tilos concurred with the City Clerk; stated the proper channel would be to write a
letter to the Council.
Vice Chair Shabazz stated it would be great if Chair Tilos would be willing to convert the
resolution language into a letter to the Council and move it forward.
Chair Tilos stated he would be able to do so.
Vice Chair Shabazz stated that he authored the resolution, which includes two different
suggestions; one is about continuing remote participation; the second is a piece related
to making meetings accessible to the most common non-English language; Chair Tilos'
letter could include one or the other or both.
The City Clerk stated the Sunshine Ordinance has a section about capping translation
service at $20,000 per year.
In response to Chair Tilos' inquiry, the City Clerk outlined Section 2-91.13e stated the
main translation service used currently is sign language.
In response to Chair Tilos' inquiry, the City Clerk stated the translation expenses have
never come close to the cap; she wanted the Commission to be aware since it is being
discussed.
Commissioner Chen stated the existing law does not expire until December 2023 so there
is time to do research; she does not know how many languages are needed; the largest
minority group in Alameda is Asian, which divides up into Chinese, Filipino, and
Vietnamese; she does not know which of those populations need the greatest language
access; the letter could be vague and just state the OGC's desire to increase access to
language minorities in the City; there is time to explore how it can be done; money should
not be the only reason prohibiting increased access to non-English speaking residents of
Alameda.
In response to Chair Tilos' inquiry, Commissioner LoPilato stated it can be simplified by
adjusting the language to say the OGC recommends the City consider the options; if staff
is going to do the research on cost and implementation, the Commission does not need
Meeting of the
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18
July 19, 2021",OpenGovernmentCommission/2021-07-19.pdf
OpenGovernmentCommission,2021-07-19,19,"to give specific guidance; it can be packaged all at once, using the existing language and
being mindful of tone.
Chair Tilos concurred with Commissioner LoPilato; stated the letter could be written
asking for consideration of the two points; the letter will be drafted and sent to Council
prior to their September meeting.
Vice Chair Shabazz stated as a point of order, contrary to Commissioner Chen's
comment, the Governor's order ends in September, 2021; it is important to get the
conversation to the City Council prior to that.
The City Clerk confirmed that the Governor's order ends September 30, 2021.
Commissioner Chen inquired whether the 2023 date in the resolution is incorrect, to which
Commissioner LoPilato responded the date references the Bill and not the Governor's
order.
Vice Chair Shabazz and Chair Tilos stated they will write the letters.
4-E. Consider Communication regarding Sunshine Ordinance Complaint Form and
Procedure (Commissioner LoPilato)
Commissioner LoPilato made brief comments.
In response to Commissioner LoPilato's inquiry, Chair Tilos stated the issue seems a little
heftier and could be an agenda item.
Commissioner LoPilato stated it would make sense for the Commission to agree to form
a subcommittee to revise the complaint procedures; then, what the Chief Assistant City
Attorney wants to share could be discussed; she wants a general thumbs up or down on
the items outlined.
Chair Tilos stated the Commission should also discuss whether the OGC will still be the
ones taking the complaints after Council's suggestion of just having a hearing officer.
Commissioner LoPilato stated it was not Council's suggestion; it was the City Attorney's
suggestion, which Council rejected.
The Chief Assistant City Attorney stated the discussion of a hearing officer has not been
agendized and it is a significant enough topic that it should be properly agendized.
In response to Commissioner LoPilato's inquiry, Chair Tilos stated it does make sense
for the Chief Assistant City Attorney to present to the public what was provided to the
OGC.
The Chief Assistant City Attorney gave an overview; stated the purpose of her email was
Meeting of the
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19
July 19, 2021",OpenGovernmentCommission/2021-07-19.pdf
OpenGovernmentCommission,2021-07-19,20,"to give the Commission an update on how the City Attorney's office plans to staff
complaints going forward; the vision is to realign how outside counsel would be used to
advise her as she maintains her role as the advisor to the OGC; outside counsel would
be used to provide guidance to the OGC in its adjudicatory role; the City department on
the other side of the complaint would be represented at the hearing by another member
of the City Attorney's office; the ethical wall she mentioned means that any other attorney
from her office representing another department in the complaint process would be
ethically walled off; in practical terms, nothing is discussed in the office; she would step
back from taking significant roles in evaluating and reviewing PRA requests; she provided
the information as it may have some bearing on how the OGC decides to evaluate
revisions to the complaint process.
Commissioner LoPilato continued her presentation, inquired whether there is a desire
to
make a formal request for a different arrangement or if the arrangement will address some
of the issues that have come up.
Chair Tilos responded he would like more time to mull over the issue.
Commissioner Reid stated that she has some concerns about outside counsel not
appearing to be truly independent; the OGC should be making suggestions to the City
Attorney about how to address issues and, conversely, what can the City Attorney can do
to support the OGC.
Commissioner LoPilato questioned whether the Chief Assistant City Attorney would be
willing to take on the role of doing a legal review of complaints; stated it would be really
helpful for the Commission.
In response to Commissioner LoPilato's inquiry regarding the City Attorney's office taking
on a non-advocacy role, the Chief Assistant City Attorney stated that she thinks the
questions are all fair; she is not prepared to commit her office to any certain work plan in
the context of a complaint at this time; a staffing decision was discussed internally and
shared with the Commission to add to the full consideration of the issue; she would need
others from her office to weigh in before committing.
Commissioner LoPilato continued her presentation.
Commissioner Chen stated that she is not prepared to make any decision or
recommendation tonight; inquired whether anyone in the City could be Switzerland; stated
there needs to be someone with no ties to the City in the way that the City Attorney's
office represents the City; the OGC's duty is to find if a complaint has validity; she would
like to put the issue on the next agenda so the Commission could have more discussion.
Chair Tilos concurred with Commissioner Chen; stated it does sound like a conflict of
interest that the OGC is asking for a neutral memorandum from a City employee.
Commissioner Reid stated there is a greater discussion in that the City Attorney's office
Meeting of the
Open Government Commission
20
July 19, 2021",OpenGovernmentCommission/2021-07-19.pdf
OpenGovernmentCommission,2021-07-19,21,"went to the Council and bypassed the OGC; it seems the City Attorney's office has deeper
concerns that have not been addressed; she believes there are underlying issues that the
OGC should address before moving forward with other suggestions.
Commissioner LoPilato stated one thing she heard at the June 1st meeting regarding the
OGC's adjudicatory function is a suggestion that there could be improvements to the ways
in which complaints are adjudicated; while there are big philosophical questions the
Commission wants to dive into, she is concerned that keeping it abstract opens up having
many complaints filed in the interim period while the complaint procedure is not being
followed; there is a big picture question about who advises the Commission and what
does that look like; she encourages moving forward with something that outlines what a
complaint hearing should look like, what kind of documentation could be submitted, the
timing and what the findings and options are; something could be prepared that begins to
answer the questions and put forth a proposal; she would like to see what could be done
tonight to be sure something is brought forward for the OGC to take action on at a future
meeting.
In response to Commissioner LoPilato's inquiry regarding whether there is interest in
revising the complaint procedures, Commissioners concurred.
Chair Tilos stated he would like someone in a neutral position provide guidance on how
the OGC should weigh in, rather than having outside counsel tell the OGC how to weigh
in.
Commissioner LoPilato stated it might make sense to actually draft up what a complaint
procedure might look like, acknowledging there is a desire for a neutral guidance and
include expectations about what the docket and complaint hearing would look like; she
would really like to get something moving forward and has already fleshed out some
options; suggested creating a subcommittee to make some progress in the downtime.
Chair Tilos stated he would support doing so.
Commissioner Chen stated that she envisioned a flow chart of a process while reviewing
Commissioner LoPilato's report; expressed support.
Vice Chair Shabazz stated if there is capacity of some staff members to create a flow
chart, as another visual learner, it would be helpful.
Commissioner Reid stated that she is supportive of having an August meeting; she is
willing to work on a subcommittee.
Vice Chair Shabazz stated that he supports figuring out the priority of the questions,
including the issues around the complaint process, not necessarily the procedures, but
how the information is presented; other issues may need to be prioritized and timelines
considered.
Meeting of the
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21
July 19, 2021",OpenGovernmentCommission/2021-07-19.pdf
OpenGovernmentCommission,2021-07-19,22,"Commissioner Reid stated including members of the public is also important since the
OGC supports the public; it would be great to form a subcommittee that includes some
members of the public.
Vice Chair Shabazz expressed concern about the Brown Act.
Commissioner Reid stated the subcommittee would comply with the Brown Act.
Chair Tilos stated that he would just like to get it done; the vote could be done right here
to be done with the matter; he is also leaning toward cranking it out for the August 2nd
meeting; it should be the lone agenda item in order to give it the full time and scope
it
should be given.
Vice Chair Shabazz stated if Commissioner LoPilato, and Commissioner Reid if joining
the subcommittee, have the capacity to bring something back in August, he is fine with
that; expressed concern about the potential for complaints to come forward; stated that
he would like to be able to address the issues going forward; the opportunity for public
involvement and participation could be at the August 2nd meeting.
Commissioner Chen stated that she agrees; if the Commission drills down on the issue,
it can cherry pick the things that can be fixed right now; on August 2 the Commission can
agree to start to map out how to proceed with the rest of it; she thought an outside
facilitator was needed to help resolve and bring together the City Attorney's office and the
Commission.
***
Vice Chair Shabazz noted a motion is needed to continue the meeting past 11:00 p.m.
Commissioner LoPilato moved approval of continuing the meeting another 5 to 10
minutes.
Commission Chen seconded the motion, which carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Reid: Aye; Shabazz: Aye; Chair Tilos: Aye.
Ayes: 5.
***
In response to Commissioner LoPilato's inquiry, the City Clerk stated she would take
Commission direction and place the item as a Regular Agenda item; it will be the only
agenda item since there will not be minutes to approve.
Commissioner LoPilato stated it would be great if other Commissioners take whatever gift
of time can be given this week, think through things and submit correspondence to be
made publicly available when the packet goes out; the Commission would be better able
to come prepared and wrap things up.
Chair Tilos restated that the Commissioners agreed to have an August 2nd meeting.
Meeting of the
Open Government Commission
22
July 19, 2021",OpenGovernmentCommission/2021-07-19.pdf
OpenGovernmentCommission,2021-07-19,23,"Adjournment
Chair Tilos adjourned the meeting at 11:02 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
23
July 19, 2021",OpenGovernmentCommission/2021-07-19.pdf
OpenGovernmentCommission,2021-08-02,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY AUGUST 2, 2021 7:00 P.M.
Chair Tilos convened the meeting at 7:00 p.m.
ROLL CALL -
Present:
Commissioners Chen, LoPilato, Reid and Chair Tilos -
4. [Note: The meeting was conducted via Zoom.]
Absent:
Vice Chair Shabazz - 1.
[Staff present: Chief Assistant City Attorney Elizabeth Mackenzie;
City Clerk Lara Weisiger]
Oral Communications
None.
Regular Agenda Items
3-A. Review of the Sunshine Ordinance Complaint Form and Procedure
Commissioner LoPilato gave a Power Point presentation.
Commissioner Reid thanked Commissioner LoPilato for the excellent presentation;
suggested the Commission consider an online complaint form process as well; stated the
most streamlined approach is something as simple as possible for the average member
of the community to be able to reach out to file a complaint; another important issue is
what independent outside counsel would look like and who would decide; suggested
considering a provisional approach such as having outside counsel for the next six
months or for specific number of complaints; noted that she has questions regarding what
a prehearing process and an informal complaint process would look like.
Chair Tilos summarized Commissioner Reid's questions and comments.
Commissioner Chen stated reading Commissioner LoPilato's report and seeing the visual
presentation was very helpful; she compared it to having jury instructions, receiving a
neutral presentation of the parameters and being able to decide whether or not a
complaint matches up with the Commission's duties under the Sunshine Ordinance; she
would really value having ""jury"" instructions as the Commission is the jury and not the
judge.
Chair Tilos thanked Commissioner LoPilato for the hard work; stated he is leaning
towards having an impartial and neutral outside attorney guide the Open Government
Commission (OGC), rather than someone from the City Attorney's office.
Commissioner Chen stated she would like to test out having a neutral memo to see if it
Meeting of the
Open Government Commission
August 2, 2021
1",OpenGovernmentCommission/2021-08-02.pdf
OpenGovernmentCommission,2021-08-02,2,"works; she is not convinced either way whether outside legal counsel is needed or
whether it could be done in-house with City Attorney staff; if the Commission is not
satisfied with the product, then the alternative could be tried; all attorneys are trained to
argue multiple sides of any issue; she would like to see a neutral memo first.
Commissioner Reid stated the Commission's task is to ask what is the best way for the
OGC to serve the public; the OGC needs to ensure that someone who is bringing forward
a complaint receives the best chance of being heard and understood; suggested having
outside, independent counsel for the next few meetings to see what that would look like;
stated the complaints heard this year already took the other approach with the City
Attorney's office drafting resolutions, which had a lot of confusion; she would like to try
the outside counsel approach, but would like to know a cost estimate first.
Commissioner LoPilato stated that she does see the two paths as the most desirable; she
is leaning towards the option of what the City Attorney's office proposed because it is an
incremental step; there has actually never been a neutral memo come from the City
Attorney's office; everything has always been viewed by everyone writing it as an
advocacy piece; the City Attorney's office prefers to structure it with the Chief Assistant
City Attorney providing advice to the Commission and having outside counsel when
necessary; suggested leaning into trust and seeing what that looks like; the memos would
be put forth publicly; the Commission would be very aware if they are not neutral; she
would also like more guardrails in place and a commitment that the OGC would be
receiving an instructional memo.
Chair Tilos stated that he would be supportive of trying out a restructured process of
having a walled-off Chief Assistant City Attorney, along with providing a neutral memo; it
would be a marginal step towards building trust between the OGC and City Attorney's
office.
Commissioner LoPilato stated it is also possible to do both options, which would be a
good trust exercise and be improvement to the support of the Commission.
The Chief Assistant City Attorney stated that she appreciates all the comments; she
echoes Commissioner LoPilato's comment that the City Attorney's office has never
provided a neutral statement, summary, memo or jury instructions; she understands the
Commission's point about wanting some explanation of the case; concurred with
Commission Chen's comments that attorneys are trained to both write advocacy pieces
and to frame issues neutrally; she can definitely do both and it is something her office
would entertain in the context of supporting the Commission in its adjudicatory capacity;
she envisions that there would be support in terms of a neutral statement of the cases;
generally speaking, the City Attorney's office is in charge of handling legal advice and
representation in house; from time to time, outside counsel is hired for a variety of
reasons; she does not know what the cost would be to use outside counsel.
In response to Chair Tilos' inquiry, Commissioner LoPilato stated it sounds like everyone,
including the Chief Assistant City Attorney, is in alignment for the first piece regarding the
Meeting of the
Open Government Commission
August 2, 2021
2",OpenGovernmentCommission/2021-08-02.pdf
OpenGovernmentCommission,2021-08-02,3,"possible vision of what a statement of the case would look like; inquired whether the plan
to represent City departments in complaints before the OGC extends to any policy body.
The Chief Assistant City Attorney responded that she does not see any difference
between policy bodies versus City departments in terms of how the City Attorney's office
would represent them.
Commissioner LoPilato inquired whether the Chief Assistant City Attorney, as the advisor
to the OGC, would be staffing any policy bodies in terms of advising them on Brown Act
issues or stepping back from those duties.
The Chief Assistant City Attorney responded the City Attorney's office has not determined
exactly what her role would be other than she would be stepping back from handling
Public Records Act (PRA) requests, which is due to recognition of the fact that at some
point one of the productions could be the subject of a Sunshine Ordinance complaint.
Commissioner Reid stated that she has concerns about the ethical wall; she is not
convinced that the City Attorney's office would be able to truly be a fair and neutral
advisor; she wonders if there are other options to explore; suggested considering both
outside counsel and a neutral advisor to have a comparison.
The Chief Assistant City Attorney stated the idea of an ethical wall is not a new one; case
law has been reviewed to support past practices and anticipated future practices in terms
of maintaining an ethical wall so that decisions that come out of the Commission would
be legally solid; the concept of an ethical wall is used currently in Civil Service Board
matters and in adjudicatory appeals to the City Council; the City Attorney's office is
comfortable with the process and suggests the format going forward.
Commissioner Chen moved approval of accepting Option 2 [Chief Assistant City Attorney
with formalized parameters for ethical wall guardrails and commitment to providing
transparent, written instructional memo as resource for the OGC] on a provisional basis.
Commissioner LoPilato seconded the motion.
In response to Commissioner LoPilato's inquiry regarding the appropriate procedural
process, the Chief Assistant City Attorney stated Option 2 is relatively consistent with the
City Attorney's office proposal for staffing, except for the part about formalizing
parameters for ethical wall guardrails and commitment to providing a transparent, written
instructional memo.
In response to Commissioner LoPilato's inquiry, the Chief Assistant City Attorney stated
her initial reaction would be that any sort of request dealing with allocation of resources
needs to go through the Council; however, given that the Commission is deciding on
Option 2, a formal request to the City Attorney's office would be the most logical since the
City Council would not need to take any action.
Meeting of the
Open Government Commission
August 2, 2021
3",OpenGovernmentCommission/2021-08-02.pdf
OpenGovernmentCommission,2021-08-02,4,"The City Clerk concurred with the Chief Assistant City Attorney; stated the matter is going
to come back anyway; staff could flesh out any additional details which could be brought
back at the same time; selecting the option tonight gives staff the understanding direction
that can be looked at further.
On the call for the question, the motion carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Reid: No; Chair Tilos: Aye. Ayes: 3. Noes: 1.
[Absent: Vice Chair Shabazz - 1]
Under discussion, Commissioner LoPilato stated the next item would be to decide
whether the Commission wants to draft a request letter with bullet points to be voted on
by the entire Commission; the City Attorney's office could come with any concerns about
the requests; the Commission could then submit something formally.
Chair Tilos stated the City Attorney's office already knows what the OGC wants and he
would rather have them draft the letter to present to the OGC.
The Chief Assistant City Attorney stated that she would be happy to commit to doing what
Chair Tilos outlined; she could flesh out with her colleagues to make the commitments
that Option 2 outlines to the extent they are able to with their resources; her office is also
very mindful of the City Council's desire for both parties to work collaboratively so that is
a priority for her as well; she will have something for the September meeting that is more
fleshed out from her July 19th email.
Commissioner LoPilato continued her presentation with Review Area 2 and modifications
to the complaint form; suggested revisions return at the next meeting.
Chair Tilos stated he is satisfied with the simplicity of the current complaint form and can
live with how it is.
Commissioner Reid stated that she thinks the complaint form needs some revision; it
would be a great idea to include members of the public; suggested proposing a
subcommittee, which includes the public, to work on revisions for just the form or also
include the complaint procedure; since it is going out to the public, they would be the best
people to test it.
Commissioner Chen stated since Alameda's complaint form was written many years ago,
she would be interested to see what other cities' complaint form looks like; the most logical
people to have input are people who file complaints; they are the ones who have to
struggle with the form; it would be helpful to know whether they were satisfied with the
form part of the process; Commissioner LoPilato has already done all of the heavy lifting
for the process part and included a lot of detail in her memo to the Commission; another
question for the Commissioners who had to review the forms is whether it provided the
information needed; if the form is going to be revised, the Commission needs to talk to
the people who created and touched it.
Meeting of the
Open Government Commission
August 2, 2021
4",OpenGovernmentCommission/2021-08-02.pdf
OpenGovernmentCommission,2021-08-02,5,"Commissioner Chen responded in the negative; stated she thought the form was very
simple and even hand-wrote hers.
Chair Tilos stated that he does not want to over-complicate the form; the form is really
just the first step; subsequent steps in the process get more complex.
Commissioner LoPilato concurred with Chair Tilos, stated the form should continue to be
simple; the only concern she had was the physical address requirement; complainants
should be made aware that the complaint form is made public.
Commissioner Reid inquired whether a member of the public could make an anonymous
complaint, if it had been done in the past and if it could be included in the process.
Chair Tilos stated he would not want to accept anonymous complaints; if someone is filing
a complaint, they should step up; it also opens up the door for more complaints.
Commissioner Reid stated the City of San Francisco's Sunshine Task Force hears
anonymous complaints; she would like the process to be more open and comfortable for
people; there are some details on the form that seem inconsistent, including how to file
the complaint; the consideration of an online form would be beneficial and bring Alameda
into the 21st century.
Commissioner Chen stated she finds it difficult to see how the Commission could take an
anonymous complaint and yet have the person present their complaint to the OGC.
The City Clerk noted the Sunshine Ordinance requires that the complainant attend the
hearing.
Commissioner Chen stated unless the City Council changes the Sunshine Ordinance,
anonymous complaints are not accepted; concurred with Commissioner Reid regarding
the inconsistencies in the documents; stated that she will rely on Commissioner Reid's
eagle eyes to point out what needs to be fixed.
In response to Commissioner LoPilato's inquiry, the City Clerk stated there are digital
options at the City's disposal that are easy to use; many forms have been converted to
an online submission; the form has not been changed since 2012 and not everyone was
emailing back then; all the comments on revising the submission options are possible.
In response to Chair Tilos' inquiry, the City Clerk stated that she has heard all the
comments from tonight and offered to synthesize the form; if Commission members think
of additional things, they can be given to her without violating the Brown Act; she could
present the revised form back to the Commission; she would also research what other
cities' forms look like and include some options.
Meeting of the
Open Government Commission
August 2, 2021
5",OpenGovernmentCommission/2021-08-02.pdf
OpenGovernmentCommission,2021-08-02,6,"Commissioner Reid stated she would be happy to work with the City Clerk if it is
appropriate; she would also gather suggestions from the public.
In response to Commissioner Reid's inquiry, Commissioner LoPilato stated that she was
envisioning revisions to just the form, rather than the complaint procedure which would
be a heavier lift.
Commissioner LoPilato continued her presentation with Review Area 3; stated it is the
meatier section of the complaint procedure; she took a stab at identifying quite a few
areas for revision that could be significant improvements and having more clarity around
what the process will entail; inquired whether there is interest in revising the procedures,
what should be included and who should do it.
In response to Commissioner Reid's inquiry regarding a pre-hearing conference,
Commissioner LoPilato stated her term pre-hearing meant written submissions; stated
there are various procedural aspects of the complaint procedure, including the complaint
committee hearing, that just has not occurred or been implemented.
In response to Commissioner Reid's inquiry, the City Clerk stated some complaints have
been withdrawn because staff has worked with the complainant; they have not
necessarily been called pre-hearing conferences, but it is an example of how complaints
are withdrawn.
Commissioner Reid stated it would be helpful to include the specific language in the
document regarding the willingness of staff to work with the complainant; the timing is
also important to clarify on the form.
In response to Commissioner Reid's inquiry, the City Clerk stated the 15 day deadline to
file a complaint is in the Sunshine Ordinance and is 15 calendar days.
In response to Commissioner Chen's inquiry, the City Clerk stated the number of days is
a confusing issue; the 15 calendar days is the timeline required to submit a complaint; the
Public Records Act timeline differs regarding falling on holidays.
Commissioner Reid requested clarification about the PRA timeline, to which the City Clerk
responded the issue is not on the agenda, but the deadline for PRAs is 10 days.
Commissioner LoPilato stated as long as there are no concerns about a subcommittee of
one, moved approval of appointing herself as a subcommittee to revise the complaint
procedures.
Chair Tilos stated he has no objections to a single person subcommittee.
Commissioner Reid stated she would be happy to work with Commissioner LoPilato on
the subcommittee if it would be helpful.
Meeting of the
Open Government Commission
August 2, 2021
6",OpenGovernmentCommission/2021-08-02.pdf
OpenGovernmentCommission,2021-08-02,7,"Commissioner Chen seconded the motion, which carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Reid: No; Chair Tilos: Aye. Ayes: 3. Noes: 1.
[Absent: Vice Chair Shabazz - 1]
Under discussion, Commissioner LoPilato stated any feedback from Commissioner Reid
would be welcome.
Commissioner Reid stated if the Commission is taking a collaborative approach,
members should work together; if Commissioners are willing to work on a certain topic,
the Commission should welcome it.
Chair Tilos stated Commissioners are welcome to share their thoughts.
3-B. Staff Update
The Chief Assistant City Attorney stated the OGC proposals for the Sunshine Ordinance
revisions submitted to the City Council for the July 20th meeting has been continued to
the September 7th meeting.
The City Clerk announced that Next Request, the City's new PRA system, went live today;
staff will be given a little bit of adjustment time before going out with a full press release.
3-C. Determine Next Meeting Date (Due to September Holiday)
The City Clerk stated the first Monday in September is the Labor Day holiday; inquired
whether Commissioners wanted to select a date tonight, or have her do offline individual
polling; the proposed dates are: 9/1, 9/8, 9/15, 9/20, or 9/28.
Commissioner LoPilato stated that she would like a date as far away from the holiday as
possible.
Chair Tilos stated his concern is if the OGC meets on September 28th, they would have
to come back in a few days for the October 4th meeting.
The City Clerk stated the September and October meetings could be combined as one
meeting.
The Chief Assistant City Attorney noted she is not available on September 28th, although
another attorney in her office could fill in.
Chair Tilos stated it seems like people would like more time to think about the date.
The City Clerk stated she will conduct offline polling; she just wanted to make it publicly
known that there will be no meeting on September 6th since it is a holiday.
Meeting of the
Open Government Commission
August 2, 2021
7",OpenGovernmentCommission/2021-08-02.pdf
OpenGovernmentCommission,2021-08-02,8,"COMMISSION COMMUNICATIONS
Commissioner LoPilato suggested receiving updates from Commissioners at subsequent
meetings of correspondence any member has sent to Council; she would like to be aware
of what is going out under the Commission's name.
The City Clerk stated she forwarded correspondence to the Council and can also forward
it to the Commission offline; there is no need to wait until the next meeting.
Commissioner Chen stated the Commission should think ahead about what the table of
contents should be on the Annual Report; she would like both Commissioners and staff
to begin thinking about it; she feels some members would like to see a more robust annual
report; she would like to agendize brainstorming the table of contents.
In response to Chair Tilos' inquiry, the City Clerk stated the Commission should not
express any consensus under this issue because it is not agendized.
Adjournment
Chair Tilos adjourned the meeting at 8:32 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
August 2, 2021
8",OpenGovernmentCommission/2021-08-02.pdf
OpenGovernmentCommission,2021-09-20,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY
SEPTEMBER 20, 2021
7:00 P.M.
Chair Tilos convened the meeting at 7:01 p.m.
ROLL CALL -
Present:
Commissioners Chen, LoPilato, Reid and Chair Tilos -
4. [Note: The meeting was conducted via Zoom.]
Absent:
Vice Chair Shabazz - 1.
[Staff present: Chief Assistant City Attorney Elizabeth Mackenzie;
City Clerk Lara Weisiger]
Oral Communications
None.
Regular Agenda Items
3-A. Minutes of the July 19, 2021 and August 2, 2021 Meetings
Commissioner LoPilato proposed changes to the July 19 minutes; stated on Page 12, her
main point was that the percentage allocation for internal OGC structural issues should
be small and not a big chunk of the report; on Page 15, Vice Chair Shabazz talked about
a public ethics commission report and she does not know if the discussion was clear that
the report was from the City of Oakland; on Page 16, she was delineating things that
seemed right for inclusion which got lumped together; she will send brief language
corrections to the Clerk; on Page 19, there is a typo: Sacrament instead of Sacramento;
on Page 23, there should be more context regarding when the Chief Assistant City
Attorney sent an email instead of just stating she gave an overview.
Commissioner Reid stated she made comments at the last meeting and wants to reiterate
that her changes were noted properly.
Commissioner Chen moved approval of the July 19, 2021 minutes as amended.
Commissioner Reid seconded the motion, which carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Reid: Aye; Chair Tilos: Aye. Ayes: 4. [Absent:
Vice Chair Shabazz - 1]
Commissioner Reid stated the minutes mention that she offered to work with the City
Clerk and it was followed through.
Commissioner LoPilato moved approval of the August 2, 2021 minutes.
Commissioner Chen seconded the motion, which carried by the following roll call vote:
Meeting of the
Open Government Commission
September 20, 2021
1",OpenGovernmentCommission/2021-09-20.pdf
OpenGovernmentCommission,2021-09-20,2,"Commissioners Chen: Aye; LoPilato: Aye; Reid: Aye; Chair Tilos: Aye. Ayes: 4. [Absent:
Vice Chair Shabazz - 1]
3-B. Provide Input to the Subcommittee on Practical and Policy Problems Encountered
on Administration of the Sunshine Ordinance
Commissioner Chen gave a brief presentation.
The Chief Assistant City Attorney inquired whether the report was included in the packet,
to which the City Clerk and Commissioner Chen responded in the affirmative.
Commissioner Chen continued her presentation.
Commissioner LoPilato stated that she strongly believes the Commission should take the
internal issues in a very small subheading because the focus of the report should be on
external issues heard from the community; one issue that stood out to her was the
concerns over the Alameda Police Department (APD) not tracking Public Record Act
(PRA) denials; she has general concerns about the treatment of community members at
the informal resolution stage of Sunshine Ordinance complaints, specifically the
perception of a bullying dynamic; she is on board with the ad hoc language clarification;
of the complaints that have surfaced, these are the ones she would prioritize.
In response to Chair Tilos' inquiry, the City Clerk stated the new PRA system that was
launched, Next Request, is being used by all the City departments except for the Police;
the APD has extremely different reporting requirements and regulations, so the
Department is still handling requests directly; APD has received the feedback about the
tracking concerns which can be included in the report.
Commissioner Reid stated that she submitted correspondence and was hoping to get
more feedback from the public moving forward; if the issue is agendized for another
meeting, it would be great to get as much public feedback as possible; provided examples
of issues included in her correspondence, including agenda revisions; stated it would be
helpful if agenda subscribers receive notification when an agenda is revised; she noticed
another issue that sometimes attachments are not included in PRA requests.
The City Clerk clarified that the system automatically stores all emails and retains
attachments, but in very small instances, attachments are lost somehow and are not
included.
Commissioner Reid continued sharing comments from her correspondence, including
when exemptions should be used; suggested clarifying exemptions and creating a list of
exemptions used every month for OGC review; suggested links should indicate expiration
dates; stated other PRA issues include masking of information and calendars not
including dates and times of meetings.
Commissioner Chen stated it is obvious Commissioner Reid has run into many
Meeting of the
Open Government Commission
September 20, 2021
2",OpenGovernmentCommission/2021-09-20.pdf
OpenGovernmentCommission,2021-09-20,3,"roadblocks with requests; the next step is to decide how to bring the issues back and
whether to separate the PRA and Open Government pieces; she would like to make sure
the discussions are productive and come up with good recommendations.
Chair Tilos stated that he is leaning towards staff make determinations about what is
feasible, then bringing it back to the meeting for the Commissioners to make a decision
about whether or not to pursue them.
Commissioner LoPilato stated that she agrees with Chair Tilos' approach; some of the
issues sound like they could be more easily resolved by simply asking staff and are not
broad scale community concerns; it seems more feasible for staff to provide a response
or clarification offline; the matter does not need to escalate to Council.
The City Clerk stated the exemptions, link expirations and masking issues are all going
to be addressed with the new system; staff could definitely follow-up on any question
about anything missed.
Commissioner Reid stated that she thinks there is broad community support for as much
transparency as possible and for really understanding some of the details; the example
she gave regarding the masking is just one of possibly two dozen examples she could
personally give; inquired how the public will know about the new system.
The City Clerk responded that she announced the launch to the OGC at the last meeting;
staff wanted to do a soft launch to get the system working; a social media blast and press
releases would go out very soon.
Commissioner Chen inquired what the next step is moving forward.
Commissioner LoPilato suggested the deliverable be a two to three page report;
questioned whether the report would be written by the Commission or staff; stated it
should be presented at a future meeting to the full Commission.
Commissioner Reid stated suggested agendizing the item on the next meeting to provide
an opportunity for public feedback; stated there could be more examples from people who
have done PRA requests.
Chair Tilos stated the issue has been a topic of conversation over the last three meetings;
there has been public comment; he does not want to belabor the topic any longer;
something should be written up by the next meeting for a Commission vote.
Commissioner Chen stated there are some easy things that could be included in a two to
three page report, but the PRA issue is a little bit more nuanced and complicated; if the
Commission decides to hold a hearing at the next meeting on PRAs and invite the people
who have submitted PRAs, the Commission would get the feedback needed to move
forward.
Meeting of the
Open Government Commission
September 20, 2021
3",OpenGovernmentCommission/2021-09-20.pdf
OpenGovernmentCommission,2021-09-20,4,"Chair Tilos stated he would like to see how the new PRA system goes as it would address
many of the issues Commissioner Reid brought forward; after a few months, there can
be a check in with the public.
Commissioner LoPilato read the ordinance language; stated presenting an actual
recommendation for action is ideal; the Commission is safely within compliance with its
statutory duties by simply surfacing an issue as a heads-up; the Commission does not
need to spend a ton of time thinking of exactly how to solve every PRA bottleneck before
preparing the report.
Commissioner Reid stated that she agrees with Commissioner Chen; it would be great to
get feedback from the public; suggested a public survey.
Commissioner Chen stated the survey could be included in the recommendation as an
action item; she will meet with Vice Chair Shabazz to draft a memo as part of the report;
she appreciates all the feedback and realizes the City is launching the new system for
PRAs and there will be a sorting-out period to get the kinks out.
Commissioner Reid stated the Commission should try to shoot for the maximum possible
to be delivered to the public; encouraged Commissioner Chen to make a motion.
Commissioner Chen stated that she would get together with Vice Chair Shabazz and a
report would come to the Commission next month to go to Council as part of the annual
report.
Commissioner LoPilato stated the report that is prepared will go on the agenda; there will
be opportunity for public comment; suggested Commissioner Reid make the public aware
of the item as opposed to creating a survey since there already will be space for public
engagement.
3-C. Report from Subcommittee on Draft Bylaw Revisions
Commissioner LoPilato gave a brief presentation.
The City Clerk stated the report was shared with the League of Women Voters (LWV)
along with a link to join the meeting; the LWV knows the item is being addressed tonight
and have access to the meeting.
In response to Chair Tilos' inquiry, the Chief Assistant City Attorney stated that she had
a discussion with Commissioner LoPilato at the beginning of her drafting process
regarding specific issues that could come up; in general, she feels comfortable with the
idea and concept of the Commission revising the rules that guide the meetings provided
that the rules being drafted are consistent with the Brown Act; it seems very appropriate
to spend time to ensure meetings are working well for both the Commission and the
public; the only clause that she would like to double check is the provision about the 15-
minute public comment period for non-agenda items.
Meeting of the
Open Government Commission
September 20, 2021
4",OpenGovernmentCommission/2021-09-20.pdf
OpenGovernmentCommission,2021-09-20,5,"In response to Commissioner LoPilato's inquiry, the City Clerk stated the 15-minute public
comment period matches the City Council's practice; the non-agenda public comment
used to be at the end of the Council agenda and was moved to the top because people
were complaining about having to wait through the entire meeting to make comments; the
15-minute limit was imposed to prevent lots of speakers from delaying regular business.
The Chief Assistant City Attorney stated her concerns regarding the 15-minute comment
period are now evaporated.
Commissioner Chen inquired whether the City Council rarely has speakers during the last
comment section of the agenda, to which the City Clerk responded in the affirmative.
Commissioner Chen stated that she did not know the two-part public comment section
was in the Sunshine Ordinance; inquired whether the OGC was in violation of the
ordinance since they do not have a two-part comment section.
The City Clerk responded in the negative; stated the requirement is specific to the City
Council.
Commissioner Reid stated the Commission should consider adding a specific role for the
Vice Chair; she is also concerned about the language added to the Bylaws to establish
one-member subcommittees; members should be working collaboratively; suggested
striking the clause that encourages one-member subcommittees; encouraged two-
member subcommittees instead; stated whatever is decided regarding public comment
time limits should be consistent across all Boards and Commissions; suggested
encouraging the public to engage with the Commission when only a few people, less than
five, are in attendance; stated that she feels there is room for a point- and counter-point
discussion; the OGC should be soliciting feedback from the public.
Chair Tilos stated exposed support for the changes.
Commissioner LoPilato inquired whether there are public speakers.
The City Clerk responded the one member of the public in attendance has not raised his
hand to speak.
Commissioner LoPilato provided clarification on subcommittees; stated the goal is to give
Commissioners flexibility; she would leave the language as-is, although noting there is a
preference for two people, instead of just one; she is open to thoughts on whether the
Vice Chair should have additional tasks, but is inclined to leave flexibility; requested
feedback from other Commissioners on using Public Comment versus Oral
Communications; stated otherwise, she is prepared to make a motion to adopt the revised
Bylaws; inquired whether additional review from the Chief Assistant City Attorney is
needed.
Meeting of the
Open Government Commission
September 20, 2021
5",OpenGovernmentCommission/2021-09-20.pdf
OpenGovernmentCommission,2021-09-20,6,"The Chief Assistant City Attorney responded that she would like the opportunity to run
through it one last time to verify there are no legal issues; overall she is supportive, legally,
of refining the Bylaws to reflect the practice and procedures the Commission would like
to follow.
Chair Tilos concurred with the Chief Assistant City Attorney; stated he would also like to
get comments from Vice Chair Shabazz; inquired Commissioner Chen's thoughts on
Commissioner Reid's concerns about one -member subcommittees.
Commissioner Chen responded the way in which Commissioner LoPilato wrote the
language makes it very clear; individuals can volunteer to get a task done; ideally, it would
be good if another person wants to help; requiring that every subcommittee has at least
two people is restrictive since there are only five members; it is really hard to require a
minimum of two members; leaving it open and encouraging more than one member
works; she understands Commissioner Reid's concern.
Commissioner Reid stated the Chief Assistant City Attorney mentioned in a previous
meeting a one-member subcommittee was a possible concern; requested feedback from
the Chief Assistant City Attorney on the issue and also regarding the spirit of establishing
a subcommittee.
The Chief Assistant City Attorney stated whether it is satisfactory to have a subcommittee
of one came up before; at that time, her view was a subcommittee of one is satisfactory
and acceptable; she does not have any legal issue with including language that states
either a subcommittee or designated individual can do outside research and advise the
Commission.
Chair Tilos stated the Commission should give staff time to review the revisions.
In response to Chair Tilos' inquiry, Commissioner LoPilato stated the next step would be
to have the item on the next agenda, including the same materials and Commissioner
Reid's correspondence.
Commissioner Reid noted Commissioner LoPilato's summary of what happened in a prior
meeting did not properly indicate that she volunteered to work with the City Clerk;
cautioned against writing summaries in reports before minutes are approved.
3-D. Report from the Subcommittee on Proposed Complaint Procedure Revisions,
includes Draft Complaint Form
Complaint Process
Commissioner LoPilato suggested not using the term subcommittee when the item comes
back on the next agenda and gave a brief presentation.
In response to Commissioner LoPilato's inquiry, the Chief Assistant City Attorney stated
that she had a chance to discuss the matter with her colleagues; as an overarching
Meeting of the
Open Government Commission
September 20, 2021
6",OpenGovernmentCommission/2021-09-20.pdf
OpenGovernmentCommission,2021-09-20,7,"reminder, her office is tasked by the City Council to staff and advise the OGC; the details
and how it is done that is up to the City Attorney's Office, which wants to be responsive
to the Commission's concerns; the Office is prepared to commit to delivering written
guidance when appropriate; she does not think the Office would be comfortable with the
draft procedures as written being absolute, especially referring to her role in the complaint
process; the Office will commit to delivering the guidance mentioned in her July 19, 2021
email outlining the current staffing plan, which involves guidance to the OGC in its
adjudicatory capacity when deliberating over complaints and calling upon outside counsel
if necessary; she would be the one delivering guidance to the Commission; during the
complaint process, instances may need elaboration; it would not be wise for her to commit
to everything being in writing; guidance ahead of the hearing will be in writing; she does
not know if her position will always advise the Commission; another Attorney could fill the
position; concerns were raised about ethical walls or guardrails; attorneys are used to
walling themselves off from their colleagues in a variety of situations; OGC cases would
be no different; she does not have a formalized process; if a complaint is filed, she would
advise the OGC in a neutral capacity and would not discuss anything with the staff
representing the City.
Commissioner LoPilato stated one of the components of the procedures is dependent on
whether there is a written statement; she wanted to create a timeline; inquired whether it
is beneficial to have the pre-hearing submission timeline include some kind of guidance.
The City Clerk responded that she had some concerns about the timeline; stated if the
Commission wants to hold meetings the first Monday of the month and a complaint is
submitted later in the previous month, the timeline could make it harder to get the hearing
on the agenda; expressed concern about coordinating special meetings.
The Chief Assistant City Attorney stated the process is more like a motion hearing and
more formulaic; individuals filing complaints are most likely not attorneys; the process
should not be stifled too much; after someone has gone through the trouble and effort of
filing a complaint, they might feel boxed out if they do not understand Respondent
Statements; she thinks Commissioner LoPilato addressed the issue and provided enough
flexibility, but she is mindful there may be instances in which the Complainant would not
articulate their argument and her written guidance may not capture all arguments; there
needs to be some flexibility.
Commissioner Reid stated in a prior meeting, the City Clerk mentioned Complainants are
required to attend the hearing; inquired whether there would be any legal issues with
someone filing an anonymous complaint.
The Chief Assistant City Attorney responded that she is not aware of any legal issues;
stated that she would look into the matter more deeply in advance of the next meeting;
most of her concerns have to do with the practicalities; it seems odd to her having a quasi-
adjudicatory process where there are two sides and one side is anonymous; she is not
aware of any legal prohibition.
Meeting of the
Open Government Commission
September 20, 2021
7",OpenGovernmentCommission/2021-09-20.pdf
OpenGovernmentCommission,2021-09-20,8,"Commissioner Reid stated that she does not want to exclude members of the public who
wish to remain anonymous; the goal is to create a platform of transparency and allow the
public to come forward while still maintaining their privacy; it is a practice in San Francisco
and other places; she sent Commissioners case law which supports doing so; as an
inclusive city, Alameda should allow anyone to come forward anonymously.
Commissioner Chen stated that she has not thought about the issue enough; when talking
about transparency and openness, people should also be transparent and open; if
someone feels strongly that the government is not following the laws, they should be
public about it; she understands the need for privacy, but she is not sold on it; she would
like to look into what the benefit would be.
Chair Tilos stated it would be more of a con or detriment because it would open it up for
a lot more complaints, which could be frivolous.
Commissioner LoPilato stated that she would not be supportive of an anonymous
complaint process because it is ripe for abuse; she does not want to change the process
or weaponize the concept of transparency to jam up City government or utilize staff
resources; on the one hand, the Commission wants to hear as much as it can about
issues people are encountering; on the other hand, the complaint process requires a
hearing, staff time and responding party statements; she does not want tax dollars spent
on these things a dozen times a month; if someone wants to privately express issues with
the Sunshine Ordinance, there is still a vehicle to do so; the complaint process is not the
only way to handle issues; if someone wants to raise an issue anonymously, they can
email the Commission via the City Clerk; there are lots of ways to raise a concern other
than the complaint process.
The Chief Assistant City Attorney stated it would be hard to harmonize an anonymous
complaint procedure with the limit on unfounded complaints that currently exists in the
Sunshine Ordinance.
Commissioner Reid inquired why the language is not more streamlined to just include
denied and sustained; stated San Francisco and Oakland have only two options.
Chair Tilos stated that he asked the same questions two or three meetings ago; the
Commission wanted more options.
Commissioner Chen stated if the complaint is sustained, the Commission agrees the
complaint is valid; if a complaint is denied, it means the facts of the case did not uphold
the complaint; if it is unfounded, it falls into the rule about two unfounded cases in one
year; a person can file more complaints as long as their complaints is denied, rather than
unfounded.
Commissioner Reid inquired whether the unfounded option should just be eliminated, to
which Commissioner Chen responded in the negative; stated unfounded captures cases
in which the process is being weaponized.
Meeting of the
Open Government Commission
September 20, 2021
8",OpenGovernmentCommission/2021-09-20.pdf
OpenGovernmentCommission,2021-09-20,9,"Chair Tilos stated if a person has two unfounded cases, they should not bring more
complaints.
Commissioner Reid stated the penalties are harsh.
Commissioner LoPilato stated the penalties are rooted in the Sunshine Ordinance, which
the Commission does not have the ability to revise, nor is it the topic of the agenda item;
she thinks it might be instructive to describe the different type of findings; listed examples.
Commissioner Reid stated it is overdone and should be much more simplified and fair for
the public.
Chair Tilos stated Commissioner Reid's comments are noted.
Commissioner LoPilato stated the Commission needs to deal with the pre-hearing
submission timeline.
Chair Tilos concurred; stated the decision to have monthly meetings is all new and the
timing need to be hashed out.
The City Clerk discussed scheduling.
Commissioner LoPilato stated she could work with the City Clerk and Chief Assistant City
Attorney between now and the next meeting to streamline a solution; the individual from
the City Attorney's office supporting the OGC needs sufficient time to review the materials
and prepare something for the Commission, while also working to prevent off-cycle
meetings; the goal is to give everybody a clear and transparent process and timeline; the
language could be a little more vague to say: ""based on the complaint submission timing,
the City Clerk will advise all parties of when written submissions will be due. ""
or
something along those lines.
In response to Chair Tilos' inquiry, the City Clerk stated there are timing requirements for
scheduling a complaint hearing; prior to setting the monthly Mondays, staff always tried
to schedule the hearing for the next meeting; it was quicker because all that was needed
was the complaint and staff report; hearings sometimes had to be set on a different date
based on the schedules of the Commissioners and/or Complainant.
Chair Tilos inquired whether bringing the item back on October 4th is a reasonable
timeframe, to which Commissioner LoPilato responded that she could potentially have it
ready; stated the complaint procedures might require more legal review; deferred to the
Chief Assistant City Attorney.
The Chief Assistant City Attorney stated she is fine to do the review on one or both items
by the October 4th meeting.
Meeting of the
Open Government Commission
September 20, 2021
9",OpenGovernmentCommission/2021-09-20.pdf
OpenGovernmentCommission,2021-09-20,10,"Commissioner LoPilato stated getting the Bylaws done by the October meeting might
make sense; the complaint procedures could move to November, but the Commission
could attempt to get it on the next agenda.
Complaint Form
The City Clerk gave a brief presentation.
Commissioner Reid stated the City Clerk's form is an online form and hers is the paper
version; the forms are modeled after San Francisco's form; her revision includes a
worksheet to help people indicate which section of the Sunshine Ordinance may have
been violated; a hyperlink to the Sunshine Ordinance could be included in the online form;
references could also be posted on the City's webpage; requested the Chief Assistant
City Attorney sure all the references are correct; suggested cleaning up the forms for the
next meeting.
Commissioner Chen stated the revised form may actually reduce the amount of
complaints; in answering the questions on the form, the person may realize that they are
answering ""no"" to most of the questions and what they really should do is come to the
meeting to speak under public comment.
Commissioner Reid concurred with Commissioner Chen's comments; stated it is another
way to educate the public.
Commissioner LoPilato stated the worksheet reminds her of the self-help legal access
center of the court system; the specific breakdown of the sections assists individuals in
articulating claims, which is also helpful for the decision-makers it is definitely a nice
option to consider; she would like to hear from the City Attorney's office to make sure
there are accurate statements of the law and requirements; in the spirit of encouraging
public comment during the meeting, it may be beneficial to include a statement at the end
of the worksheet that people are welcome to share their concerns with the OGC if they
are no longer interested in filing a complaint.
Commissioner Chen concurred with Commissioner LoPilato; stated the form should lead
with encouraging public attendance and comment during the OGC meetings; she feels
two of the complaints the OGC heard this year have a place in the public comment section
due to the Bylaw revisions.
Chair Tilos concurred with Commissioner Chen; stated the Commission could guide
people towards public comment before going down the road of filing a complaint; the
complaint process takes a lot of resources on both sides; issues raised during public could
be placed a future agenda.
Commissioner Chen stated that she would have probably addressed the Commission
under public comment before filing a complaint if she has known it was a possibility,
although her timeline would have run out.
Meeting of the
Open Government Commission
September 20, 2021
10",OpenGovernmentCommission/2021-09-20.pdf
OpenGovernmentCommission,2021-09-20,11,"Commissioner Reid inquired whether the timeline should be extended to 30 days.
Commissioner Chen stated the timeline would have to be changed in the Sunshine
Ordinance.
Commissioner LoPilato stated there should be language regarding the 15-day filing
requirement; people should be aware they may need to file their complaint while going
through the informal process.
Commissioner Reid stated perhaps the 15 calendar days could be changed to 15 working
days to be more accommodating.
The City Clerk stated a revision would need to be approved by Council because the 15-
day requirement is in the Sunshine Ordinance.
Commissioner Reid stated the comments could be suggested to the City Council by the
Commission.
Commissioner LoPilato stated the issue of timing has come up historically, including in
the prior iteration of the Commission's attempt to revise the Sunshine Ordinance; rather
than proposing a lot of revisions to the timing, it might be appropriate to flag during the
revision of the complaint procedure; the 15-day requirement is there for a reason.
In response to Commissioner Chen's inquiry regarding revising a complaint, the City Clerk
stated even if the person outlines the issues vaguely in the complaint, specifics and details
can be raised at the hearing.
Commissioner Reid stated the issue was also one of her concerns; allowing additional
flexibility for an individual to make modifications or additions does not create such a tight
box for people and is more open.
Commissioner LoPilato stated that she could take a stab at changing some of the
language to inform Complainants it is in their best interest to give the Commission as
much information as possible, but the Commission also understands the Complainant
may gain information over time or may need to revise or add to their complaint, all of
which will be considered up until the hearing.
Commissioner Reid stated that she is ready to finish her collaboration with the City Clerk
and submit a more polished version of the complaint form documents for the next meeting.
The City Clerk stated she is happy to have it ready for the next meeting; suggested the
complaint form and procedure be addressed together.
Chair Tilos stated the October meeting should tackle the Bylaws and the complaint
procedure should be in November.
Meeting of the
Open Government Commission
September 20, 2021
11",OpenGovernmentCommission/2021-09-20.pdf
OpenGovernmentCommission,2021-09-20,12,"Commissioner LoPilato stated if there are other items on the October agenda, the
Commission could proactively put the complaint procedures on a future agenda; if both
items can go in October, there may not be a need for a November meeting.
The City Clerk stated Commissioner Chen and Vice Chair Shabazz's subcommittee
report would return in October.
Commissioner Reid stated that she would be happy to bifurcate the procedures and the
form; they do not need to be on the same agenda item; suggested having the item done
in October.
Chair Tilos summarized that agenda items for the October meeting: the Bylaws and the
Sunshine Ordinance practical and policy problems, with the complaint procedures and
form on the November agenda.
Commissioner Reid stated that she is fine with the schedule.
COMMISSION COMMUNICATIONS
4-A Consider Communication regarding Informational Report on Disclosure of
Documents (Vice Chair Shabazz)
The City Clerk stated Vice Chair Shabazz requested that she pass on his intention: he
thinks the report should come back before the Commission again as an agenda item; the
report went to the Commission on February 1, 2016 in response to a Commissioner
raising questions at the time; the City Attorney reported back on the issue; the subject
has not changed and an identical report would come back; Vice Chair Shabazz thought
it would be good to have the report on another agenda.
The Chief Assistant City Attorney stated her understanding of the communication is that
Vice Chair Shabazz is asking for the same information the City Attorney's Office provides
in the twice yearly report to the City Council, which has already been done once this year.
Commissioner LoPilato stated Vice Chair Shabazz's email includes a request for
information about how State laws like Senate Bill 1421 and Assembly Bill 748 have
changed City requirements for disclosure and let the Commission know where the
information is available on the website.
Chair Tilos stated since there are some clarifying questions from the Chief Assistant City
Attorney, perhaps Vice Chair Shabazz should just present the item to the Commission in
October; at the Commission's discretion, it could be placed on the November agenda.
Commissioner Chen stated it is a good idea that the Commission is copied on the report
that City Council receives since it directly impacts open government.
Chair Tilos stated he would like to hear more from Vice Chair Shabazz at the October
Meeting of the
Open Government Commission
September 20, 2021
12",OpenGovernmentCommission/2021-09-20.pdf
OpenGovernmentCommission,2021-09-20,13,"meeting.
Commissioner Reid stated that she would also like to hear from Vice Chair Shabazz as
well.
The City Clerk stated she add the item to the October agenda.
4-B Consider Communication regarding Draft Sunshine Charter Article (Commissioner
Reid)
Commissioner Reid made a brief presentation.
Chair Tilos stated getting more teeth has been a two year ordeal; the Commission is close
to a happy compromise; his position is he would like to focus on the Bylaws and making
the OGC meetings more efficient.
Commissioner LoPilato stated it makes sense to see what other jurisdictions are doing,
but the Commission should stay mindful of the impacts on staff bandwidth; comparing
San Francisco and Alameda is like apples and oranges; it is important to stay aware when
looking at things that would actually impact procedure.
Chair Tilos stated the discussion of tonight's meeting was very robust and a good organic
conversation; thanked the Commission for always continuing to bring their thoughts and
perspectives to the meetings.
Adjournment
Chair Tilos adjourned the meeting at 9:30 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
September 20, 2021
13",OpenGovernmentCommission/2021-09-20.pdf
OpenGovernmentCommission,2021-10-04,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY OCTOBER 4, 2021 7:00 P.M.
Chair Tilos convened the meeting at 7:00 p.m.
ROLL CALL -
Present:
Commissioners Chen, LoPilato, Reid, Shabazz and
Chair Tilos - 5. [Note: The meeting was conducted via
Zoom and Vice Chair Shabazz arrived at 7:04 p.m.]
Absent:
None.
[Staff present: Chief Assistant City Attorney Elizabeth Mackenzie;
City Clerk Lara Weisiger]
Oral Communications
None.
Regular Agenda Items
3-B. Adopted Proposed Amendments to the Bylaw
Commissioner LoPilato gave a brief presentation.
The Chief Assistant City Attorney stated that she has no further comments as to any legal
aspects of the Bylaws with exception of referencing the blank in Section 4-B.3 regarding
procedures for complaint hearings; she wants to make sure it gets completed if there is a
future motion; at the last meeting, she mentioned that she wanted to verify the revision
regarding the 15-minute public comment time limit; she is comfortable with the insertion.
Commissioner Reid stated that she had a chance to read the correspondence submitted
by Jay Garfinkle; acknowledge the extensive work; recommended taking additional time
to digest it and allow other members of the public an opportunity to comment and take
the ideas into consideration; stated her take-away from his letter are optimizing
transparency and participation; Mr. Garfinkle's suggestions address said values.
Commissioner LoPilato continued her presentation.
Speaker:
Jay Garfinkle, Alameda, stated that he put a lot of effort in reviewing the proposed
revisions; he thinks both the original Bylaws and complaint processes are very lacking;
the public should have every opportunity to participate in the process; what matters now
is the revisions by Commissioner LoPilato and the suggestions he submitted; his offerings
are extensive and are based on many years experience in parliamentary procedure;
urged the Commission to make every effort to optimize enhancing the openness and
Meeting of the
Open Government Commission
October 4, 2021
1",OpenGovernmentCommission/2021-10-04.pdf
OpenGovernmentCommission,2021-10-04,2,"transparency of government activities.
Commissioner Reid stated the Commission should acknowledge Mr. Garfinkle's
comments; there should not be any rush to revise the Bylaws without careful
consideration; reiterated some of the points referenced in Mr. Garfinkle's
correspondence, such as the Bylaws being amended by a supermajority vote; stated the
role of the City Clerk as the Secretary is confusing and should be clarified; if the
Commission wants to continue considering meeting monthly, it should be included in the
Bylaws; the suggestion to increase awareness regarding special meetings and updates
is important; locations of meetings should be available and accessible to the public.
Chair Tilos stated that he does not agree with the speaker's comment regarding
steamrolling through issues; nothing has moved that quickly during the entire time he has
been on the Commission; he wants to gauge the rest of the Commissioners on making a
motion tonight or pushing it out for several more meetings.
Vice Chair Shabazz concurred with Chair Tilos regarding the steamrolling comment;
stated that he is willing to move to approve the revisions of the Bylaws; the issue has
been and can be an ongoing process; he does not think any revisions voted on tonight
will be final revisions; if the Commission adopts the provision of a supermajority
requirement, it would make it potentially more difficult to make revisions in the future; he
agrees with some of Mr. Garfinkle's comments; suggested a simple adjustment to noticing
special meetings via electronic communications to add the phrase: ""and others"" beyond
just local media; questioned how a majority of the Commission would call a special
meeting, which could be addressed at a later point; stated other issues could also be
detailed in a practical way that does not cause obstruction and enables the Commission
to function.
Chair Tilos stated that he shares Vice Chair Shabazz's sentiments.
Commissioner Chen stated that she appreciates Commissioner LoPilato's hard work on
the item, as well as the efforts of Mr. Garfinkle; she does not agree with the supermajority
piece for the same reasons Vice Chair Shabazz stated in that it would freeze the
Commission in place; inquired how the Secretary of the Commission is also a staff
member and whether she is a voting member of the Commission.
Vice Chair Shabazz stated he could provide examples of organizations he has been a
part of where there was a similar designation, including the Peralta Community College
Board of Trustees, which has a Board Secretary who was hired to do specific work;
technically based on the Bylaws, the Chancellor of the District is the Secretary of the
Board; often times public institutions have a Secretary who serves as record keeper; if it
is necessary, the City Clerk's role as Secretary to the OGC could be clarified to indicate
that she does not vote; it is a standard practice, as is found in some private and non-profit
organizations; it would be difficult for a volunteer body to have someone do the work that
the City Clerk does as a volunteer; it is a common designation.
Meeting of the
Open Government Commission
October 4, 2021
2",OpenGovernmentCommission/2021-10-04.pdf
OpenGovernmentCommission,2021-10-04,3,"Commissioner LoPilato stated the language regarding the role of the Secretary is
consistent across all Alameda Boards and Commissions Bylaws; there is always an
interest in maintaining specificity to the work of the Commission, but also some uniformity
and basic provisions.
The City Clerk concurred with Commissioner LoPilato; stated the Secretary is always a
staff person; she does not staff all the Boards or Commissions, so typically someone in
the related Department is the Secretary noted in the Bylaws as an Officer fulfilling said
role.
Commissioner Reid stated that she agrees with Mr. Garfinkle's position to allow members
of the public to be invited to participate in the work of subcommittees; she feels it is a
good goal to incorporate in the Bylaws; the review and analysis of Public Records Act
(PRA) requests should be an essential goal of the Commission included as an order of
business; it is good preparation and streamlining process to include a section in the
agenda on Standard Commission Business; review of prior meeting meetings could be
something the Chair could work with the City Clerk to streamline the process; allowing
time for the Commissioners to respond to public comments is a good practice.
Chair Tilos inquired whether there are glaring issues that need to be addressed before
moving forward.
Commissioner Chen stated Commissioners are not allowed to hold debates with public
speakers under non-agenda public comment; inquired whether it would be a violation of
the Brown Act.
The City Clerk responded the rule is actually in the Code of Conduct which applies to all
the Boards and Commissions; stated every Commissioner signs that they will follow the
Code of Conduct, which states public comment is not to be a debate.
Commissioner Reid stated the intention behind it is not debate, but for clarification
purposes; speakers should not be excluded just for time limitations if they have something
else to say on a topic.
Vice Chair Shabazz suggested the basis for discussion be the revisions proposed by
Commissioner LoPilato; stated particular things could be added from Commissioners and
Mr. Garfinkle; he has nothing to add to the work done by Commissioner LoPilato, other
than the clarification question around process and majority requesting a meeting; he is
prepared to make a motion.
The City Clerk stated the Bylaw provision Vice Chair Shabazz asked about is actually
replicated based on the City Council; either the Chair or three members can call a special
meeting; the reason it exists is so the Chair does not have the ultimate authority to block
something Commissioners wants to hear; it is a practice that has not been used during
her time, but it does exist.
Meeting of the
Open Government Commission
October 4, 2021
3",OpenGovernmentCommission/2021-10-04.pdf
OpenGovernmentCommission,2021-10-04,4,"Commissioner Reid inquired whether public comment submitted during an appropriate
part of the agenda should be allowed to be read to the Commission.
Commissioner LoPilato stated reading correspondence into the record as a standard
practice could be very time consuming and not ideal; there already is a practice in which
the City Clerk can accommodate speakers who are unable to attend or speak during the
meeting.
The City Clerk concurred with Commissioner LoPilato; stated the Clerk's office would
make any reasonable accommodation; the feedback received from most of the public
when the COVID lockdown happened and staff was reading public comments was they
were tired of the Clerk reading the comments; then, an automated reader was used, which
the public did not like either; reading the public comments into the record was not well-
received.
Chair Tilos stated that he has no reservations against the current system where the
correspondence is received and distributed by the City Clerk; he is confident all
Commissioners are checking their emails and are very thoughtful of the comments.
Vice Chair Shabazz stated that he hears an underlying theme from Commissioner Reid
illustrated in the lifting up of Mr. Garfinkle's comments, which is the desire to maximize
public engagement; the theme has been repeated over a few months; his thoughts are to
think of other ways to have the same outcome, including considering a town hall forum or
encouraging people to be involved in civic organizations; he has heard the repeated
suggestions of finding other ways, having public involved in subcommittees or increasing
speaker time, but the meetings have been very long; there are alternate ways of doing it
that does not reduce public participation by having very long meetings.
Chair Tilos concurred with Vice Chair Shabazz; stated the biggest comment he received
from more than one Councilmember was about the length of OGC meetings, which is why
the City Attorney's office proposed removing the complaint procedure from the
Commission completely; he is looking for more efficient ways; it is not efficient use of the
Commission's time to deliberate every point in correspondence received; it is not a
debate; Commissioner Reid already knows how other Commissioners feel about some of
the themes she would like to change and seems redundant.
Commissioner Reid stated that she does not know how other Commissioners feel and
that Chair Tilos's comment is an assumption.
Chair Tilos stated that he understands Commissioner Reid's desire to get the public more
engaged, but he is also trying to balance out how to shorten meetings; the initial schedule
of bi-annual meetings became monthly meetings; work is being done; he would like to tilt
it back the other way in terms of meetings.
Commissioner Reid stated that she appreciates Chair Tilos's position and that he has
been doing this for a long time; she is just an average member of the community and she
Meeting of the
Open Government Commission
October 4, 2021
4",OpenGovernmentCommission/2021-10-04.pdf
OpenGovernmentCommission,2021-10-04,5,"is not afraid of change or afraid to bring her ideas to the table; just because something
has been done one way does not mean it is the optimal and the best way for the public
to engage; members of the community are unaware of what is going on; the OGC should
be supporting these values; she is sorry to sound redundant, but teachers repeat
themselves hoping their students will learn; Mr. Garfinkle's suggestions should not be
ignored; she appreciates Vice Chair Shabazz asking for ways in which the OGC can
engage the public more; the email list distribution is a very simple change, which is a good
idea.
The City Clerk stated the public already has the ability to sign up to receive email
notifications of any and every meeting; the City sends out notifications of every agenda,
posts upcoming events and lists upcoming meetings; the City makes sure the public has
every ability to know about and participate in every meeting.
Commissioner Chen moved approval of accepting Commissioner LoPilato's revisions to
the Bylaws.
Vice Chair Shabazz seconded the motion.
Under discussion, Commissioner LoPilato made a friendly amendment to address a
couple items; under Section 5-A. Regular Meetings, which references semi-annual
meetings, she does not want to automatically assume the OGC is sticking with monthly
meetings; suggested adding the language: ""on the receipt of an alleged complaint or due
to ongoing business before the Commission"" so it is clear that there could be instances
other than a complaint requiring another meeting to be held.
Vice Chair Shabazz stated he thought the language already stated: ""or as needed.""
Commissioner LoPilato stated to be very clear, after the phrase ""alleged complaint ""add
""or due to ongoing business before the Commission;"" under 5-B. Special Meetings, add
the words: ""or others"" after ""local media"" to address the noticing; strike the word ""mail"" so
it just says ""written notice;"" in Section 8. Rules of Order and Governing Procedures,
Section 3-C. Statement of Position, the final line should state: ""each Commissioner may
briefly state his or her position on the matter before roll call or the call for the next item of
business;"" the City Clerk will add the link to the complaint form and procedures in the
highlighted sections once it is completed.
Commissioner Chen and Vice Chair Shabazz accepted Commissioner LoPilato's friendly
amendment.
On the call for the question, the motion carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Reid: No; Shabazz: Aye; Chair Tilos: Aye.
Ayes: 4. Noes: 1.
Vice Chair Shabazz stated the Bylaws could be revisited at some point in the future;
suggested not dispensing with the subcommittee in the event the Commission considers
Meeting of the
Open Government Commission
October 4, 2021
5",OpenGovernmentCommission/2021-10-04.pdf
OpenGovernmentCommission,2021-10-04,6,"revisiting the Bylaws.
In response to Chair Tilos's inquiry, the City Clerk stated if an individual Commissioner
has interest in further revisions to the Bylaws at some point, it could be raised as a
Commission Agenda Request.
In response to Chair Tilos's inquiry, Commissioner LoPilato stated that she would like to
start tonight but is open to a later implementation if more adjustment time is needed; it is
intended to be a living document and reference material that will be consulted a lot.
Commissioner Reid stated starting at the beginning of the year seems appropriate.
Commissioner Chen stated it should be effective at the next meeting; she sees it as a
living document; she has been studying and will keep in mind Mr. Garfinkle's suggestions
while seeing how well the newly revised Bylaws are working.
Vice Chair Shabazz stated he would like to implement it immediately.
Commissioner LoPilato stated there is flexibility about voting to adjust time limits on
presentations and things like that if needed for any other agenda items.
3-A. Approve Report to City Council on Issues/Problems Arising from Implementation of
the Sunshine Ordinance
Vice Chair Shabazz and Commissioner Chen gave a brief presentation.
***
Vice Chair Shabazz moved approval of allowing an additional minute for the presentation.
Chair Tilos seconded the motion, which carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Reid: Aye; Shabazz: Aye; Chair Tilos: Aye.
Ayes: 5.
***
Commissioner Chen and Vice Chair Shabazz completed the presentation.
In response to Commissioner Reid's inquiry, the Chief Assistant City Attorney stated that
she is not entirely sure what Mr. Foreman's referenced in his correspondence regarding
the City Attorney's office; there may have been comments about complaints hearing
serving as a semi-adjudicatory capacity, which means that the Commission is making
decisions about the legitimacy of a complaint.
Commissioner Reid inquired whether it is the opinion of the City Attorney's office that the
Commission is a quasi-judicial body.
The Chief Assistant City Attorney responded she is not sure the term is quasi-judicial; she
Meeting of the
Open Government Commission
October 4, 2021
6",OpenGovernmentCommission/2021-10-04.pdf
OpenGovernmentCommission,2021-10-04,7,"is more familiar with the term quasi-adjudicatory; it is difficult for her to interpret someone
else's statement about another statement that was made.
Commissioner Reid stated that she would like clarification on what Mr. Foreman was
asking in his correspondence; if the OGC is quasi-adjudicatory, what are the ramifications
of the recent null and void proposal and what are the necessary steps to rectify the
situation; inquired whether it is true that the OGC is quasi-adjudicatory.
Chair Tilos stated the term came up when the City Council and City Attorney's office said
the Commission could not use null and void; therefore, the OGC does fall under the label
of quasi-adjudicatory.
The Chief Assistant City Attorney stated another staff member from her office made the
presentation to the City Council on June 1st; she cannot intuit exactly what Mr. Foreman
is meaning in his comments; she would be happy to respond at a later time with more
depth.
Commissioner Reid stated Mr. Foreman's comments regarding the statements made at
the June 1st City Council meeting that the OGC is quasi-judicial should be addressed;
inquired how the City Attorney's office interprets that statement now.
Chair Tilos stated null and void has been answered; the Commission cannot use it;
inquired whether Commissioner Reid's is intending to bring the null and void issue back
for discussion.
Commissioner Reid stated that she just asked the question and would like an answer
from the Chief Assistant City Attorney on whether the City Attorney's office considers the
OGC to be quasi-adjudicatory.
Chair Tilos stated the Chief Assistant City Attorney already stated she would provide a
response in depth at a later time.
Commissioner Reid stated her question was mentioned in the correspondence from Mr.
Foreman, which she assumes everyone has had a change to read.
Chair Tilos stated the correspondence was sent two hours before the meeting and not
everyone has read it.
The Chief Assistant City Attorney stated that she scanned Mr. Foreman's
correspondence; at this point, there is no reason to say anything different than what Mr.
Le may have said on June 1st; she does not recall the exact comments and is still not
entirely clear what Commissioner Reid is asking her to do related to this particular agenda
item.
Commissioner Chen stated what she understood is that the Commission has an
adjudicatory function, which means the Commission decides whether or not there is
Meeting of the
Open Government Commission
October 4, 2021
7",OpenGovernmentCommission/2021-10-04.pdf
OpenGovernmentCommission,2021-10-04,8,"validity to a complaint; what can happen once a complaint is deemed valid, is to advise
the Council, or whichever Commission, that they are in violation of the Sunshine
Ordinance; the Commission does not have the function to make any decision null and
void; she has been listening very intently to the entire process; she was indignant when
it
first happened three years ago; sitting on the Commission, she has come to realize that
having an adjudicatory role is not the same as having the right to make something null
and void; as a point of order, the subcommittee did not make any comment or statement
or recommendation on that specific issue and it is not on the table at this point.
In response to Commissioner LoPilato's inquiry, Vice Chair Shabazz stated the complaint
by Scott Morris was put on hold due to the expectation that the City Attorney's office would
develop a policy; his understanding is that has not taken place; the recommendation was
for the policy to be put in place and for it to be published publicly.
Speaker:
Jay Garfinkle, Alameda, stated the staff report appears convoluted and extensive and he
cannot tell what the recommendations are; encouraged the Commission to carefully read
Mr. Foreman's letter; stated the Sunshine Ordinance as drafted in 2013 is out of sync with
what the public expects from the government in terms of openness; encouraged the OGC
to set up a committee to find out what the public would like to see in terms of openness
in the procedures.
In response to Commissioner LoPilato's inquiry, Vice Chair Shabazz stated the Word
document provided to the Commissioners has redlines of corrections and revisions.
Commissioner Chen stated because there was not enough time to put together a proper
report, she would like another month to clean it up for the sake of the public being able to
see what was just sent to the Commission today.
Vice Chair Shabazz stated nothing in his report is new; the difference is previous iterations
in July and the rudimentary outline has details he was not able to include before due to
lack of computer access; shared that tonight is his last meeting; stated everyone is
welcome to utilize the information.
Chair Tilos stated since Commissioner Chen will be the sole subcommittee member and
she needs more time to clean up the report, it can be paused and brought back at a later
meeting.
Vice Chair Shabazz stated that he was unavailable to attend the September meeting; the
subcommittee was hoping to get input; additional feedback should be shared now, so
when the item returns, it can be dealt with effectively and efficiently; this is the first time
the Commission has authored a report; the report does not have to be the everything
report; encouraged subsequent reports and for the Commission to do with it what they
will.
Meeting of the
Open Government Commission
October 4, 2021
8",OpenGovernmentCommission/2021-10-04.pdf
OpenGovernmentCommission,2021-10-04,9,"Commissioner Chen stated in light of what Vice Chair Shabazz said, she is okay if the
Commission approves sending it on; it is an ongoing process; moved approval of
accepting the report.
The Chief Assistant City Attorney inquired whether the draft of the report which was
attached to the agenda has additional language.
Vice Chair Shabazz responded the staff report has blanks where information needed to
be inserted or facts cited; stated the clean document he sent at the start of the meeting
includes the information.
The Chief Assistant City Attorney stated that she has concerns; the Commission would
be voting to approve a document that was not in the packet and people are having trouble
locating; it would not be a good idea to consider voting on a document that was provided
so late.
Commissioner Reid stated it seems there is a lot of confusion about the document and
perhaps would be wise to table it until the next time and Commissioner Chen would have
an opportunity to clean it up a bit.
Commissioner Chen withdrew her motion.
Vice Chair Shabazz suggested deferring the item to the next meeting.
Chair Tilos concurred; stated it will be brought back on the next agenda November 1st
3-C. Adopt Proposed Complaint Procedure
Commissioner LoPilato gave a brief presentation.
Speaker:
Karen Butter, League of Women Voters, inquired whether the process addresses
complaints about the Commission.
Jay Garfinkle, Alameda, clarified what he meant regarding the term steamrolling; stated
when members of the Commission have a lot of momentum, it is impossible to change
their mind on issues he believes they misunderstand; he feels the complaint process is
heavily tipped toward protecting the actions of City staff and elected officers; submitted
suggestions on how to tip the process in favor of the public; urged the Commission to
table consideration of the process until the next meeting.
Vice Chair Shabazz moved approval of adopting the proposed complaint procedures.
Commissioner LoPilato seconded the motion.
Meeting of the
Open Government Commission
October 4, 2021
9",OpenGovernmentCommission/2021-10-04.pdf
OpenGovernmentCommission,2021-10-04,10,"Under discussion, Commissioner Reid thanked the members of the public present at the
meeting; stated that she agrees with Mr. Garfinkle's comments; the Commission should
take a little more time to digest the recommendations; they are very detailed; she is in
favor of adopting most of them; highlighted a list of important items, including keeping a
record of communication between a Complainant and City staff, the idea of the pre-
hearing process, including details for Complainants to visualize the process, removing
the term unfounded, and the Annual Report to the City Council should be on the Regular
Agenda, not the Consent Calendar.
Vice Chair Shabazz stated, typically, according to parliamentary procedures or Robert's
Rules, the person making the motion speaks first to debate the motion; as someone who
has filed a complaint, he echoes some of Mr. Garfinkle's sentiments in regards to feeling
like the process was weighted against him, even when he filed a complaint as a sitting
Commissioner; the process being weighted is not necessarily germane to Commissioner
LoPilato's suggestion; the procedures specifically outline what will be addressed first; the
first thing he would like to see is what the complaint is about, rather than City's response;
at the hearing, the person should have an opportunity to share first; then, a response,
presentation of facts and opportunity for rebuttal with time restrictions provides a clear
process which tips the scale back towards the Complainant; this is a much better process;
he appreciates the efforts around collaboration; he is not trying to change the rules for a
particular outcome; encouraged the Commission adopt something that is going to be
more fair for people who file complaints; what is proposed moves in that direction.
Chair Tilos stated that he shares the same sentiments as well; having the City Attorney's
Office provide a neutral opinion tips the scale towards the Complainant and addresses
some of the concerns Commissioner Reid has regarding making the process more open,
public, easier and fairer; the Commission should move forward.
Vice Chair Shabazz stated that he absolutely agrees with Chair Tilos; during the
conversations related to Mr. Morris's hearing, there was discussion related to the different
findings and the need to go beyond the binary; the proposal provides a wide array of
opportunities; looking back at the pre-2018 era, the process delineates a spectrum of
options including sustained, unfounded, and denied, which should continue because
there have been a lot of shenanigans and attempts to change rules and manipulate
processes; he does not want people to use the OGC as a vehicle to attempt to do so.
Commissioner Chen stated there has to be a balance between helping a democracy work
or throwing molasses in the wheels; the OGC was set up to make sure the government
does not run roughshod over the public, deny them the right to know what is happening
and to have a representative government; the ultimate decision makers are the voters; if
folks do not like how their elected officials are behaving or legislating, having an election
is what a legislative democracy is; the OGC and Sunshine Ordinance is set to give the
public an opportunity to question whether decisions and access to public records are
being denied; the Commission is able to decide whether or not to agree with the
Complainant; the OGC should not be used to delay how local government; sitting on the
Commission, she can see why there are complaints about government not acting quickly;
Meeting of the
Open Government Commission
October 4, 2021
10",OpenGovernmentCommission/2021-10-04.pdf
OpenGovernmentCommission,2021-10-04,11,"being a successful Complainant, she can see why it is important to have a vehicle to
question and ask an objective body to decide whether or not a complaint is valid; she
would vote to accept the proposal, which is a lot better than what came before; moving
forward, tweaks and corrections could be on an annual basis.
Commissioner LoPilato thanked everyone for the feedback; stated that she is glad most
folks feel like it is an improvement; she would like to include a glossary and an FAQ
section; this is the type of thing the Commission could revisit and quickly address; the
FAQs deal with things within the City Clerk's purview, so she has offered to complete it;
the glossary and FAQs could come on a future agenda; the procedures are ready to move
forward; acknowledged Ms. Butter's comments regarding how a complaint against the
OGC would be handled; stated it is a question that the Commission needs to grapple with;
she does not know whether it needs to be resolved tonight and does not know whether
the Commission has the authority to resolve it; it is something to look at and propose
some suggestions in the future; thanked Mr. Garfinkle for his interest in the procedures;
stated that she is not supportive of his proposed changes because she is very mindful of
the need to stay within the boundaries of the Sunshine Ordinance and the Commission's
ability to direct staff.
Commissioner Reid stated that she did not receive an email regarding a complaint filed
that the Commission will hear in November; inquired the date of the email.
Chair Tilos stated Commissioner Reid not receiving the email could have easily been a
staff miscue and is not something the Commission should be discussing.
The City Clerk responded the email was sent to Commissioners on September 22nd
Commissioner Reid stated that she has some concerns she would like to address; while
she appreciates all of Commissioner LoPilato's work on the procedures, she wants to
restate that she believes a subcommittees should be more than one person; it was a lot
of work and the public should have been incorporated in the process; the Commission
should not ignore good suggestions that do not always require extra time from City staff;
the Commission should be tipping the scale towards the public's benefit; she questions
whether it is appropriate for the person who submitted the document to second the
motion; she is in favor of adopting most of the redlines submitted by Mr. Garfinkle, which
support the public and are much more transparent; she will not be supporting a motion of
the proposal as is.
The Chief Assistant City Attorney stated that she sent out the email to the Commissioners
on September 22nd regarding the complaint to be heard in November; she sent it to
Commissioner Reid's City email address, which she thought Commissioner Reid uses for
OGC business; she could send it to another account.
Commissioner Reid thanked the Chief Assistant City Attorney; stated she just double-
checked the email address and there was no email from September 22nd
Meeting of the
Open Government Commission
October 4, 2021
11",OpenGovernmentCommission/2021-10-04.pdf
OpenGovernmentCommission,2021-10-04,12,"The Chief Assistant City Attorney stated it shows that the message was sent on her end;
she will resend the email; if the email is still not received, she will endeavor to see why it
is not going through.
Commissioner Reid requested the email be sent to the address corresponding to the
OGC.
Chair Tilos stated the conversation could be taken offline.
Vice Chair Shabazz stated that fortunately he was not included in the conspiracy and
received the email on September 22nd at 5:13 p.m.; to address Commissioner Reid's
concern, people who make proposals can also make motions; there is a motion and
second on the floor and he is ready to call the question; he added that it would be helpful
to make the form available electronically.
On the call for the question, the motion carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Reid: No; Shabazz: Aye; Chair Tilos: Aye.
Ayes: 4. Noes: 1.
COMMISSION COMMUNICATIONS
4-A Consider Communication regarding Informational Report on Disclosure of
Documents (Vice Chair Shabazz)
Vice Chair Shabazz gave a brief presentation.
In response to Vice Chair Shabazz's inquiry, the City Clerk stated the item does not
require a motion, but the Commission could provide direction.
In response to Chair Tilos's inquiry, Vice Chair Shabazz stated as a Commissioner, the
body can make requests or advise the City Council, but cannot tell staff what to do.
Chair Tilos stated that he concurs with Vice Chair Shabazz's request, but since it is under
Commission Communications, he thought the request might be more informal.
Commissioner Chen stated the item should be put on the agenda for next month for the
Commission to formally request staff to provide a report.
Vice Chair Shabazz stated the first question is whether the Commission wants the
information; when would be a matter of staff and their capacity to be able to provide it.
Commissioner LoPilato encouraged feedback from the Chief Assistant City Attorney on
any questions about the nature of the request, if it is doable and not necessarily
committing to any timeline.
The Chief Assistant City Attorney stated her understanding of Vice Chair Shabazz's
Meeting of the
Open Government Commission
October 4, 2021
12",OpenGovernmentCommission/2021-10-04.pdf
OpenGovernmentCommission,2021-10-04,13,"request is he is asking for the same information that is in the semi-annual report the City
Attorney's Office provides as a Consent item on the City Council agenda; the last report
presented was on September 7, 2021; other dates included March 2, 2021, September
3, 2019, and February 19, 2019; she could not readily find the 2020 dates; the report is
required under the Sunshine Ordinance and is publicly available; she reviewed the 2016
report Vice Chair Shabazz included with his Commission Communication; it appears to
be very similar, if not a duplicate, of what was submitted to the City Council; it is
information that has already been made publicly available; information about how the City
responds to PRAs consistent with various new laws poses a definite challenge and would
require direction from the City Council because it is providing legal advice and
interpretation subject to attorney-client privilege; it is not information the City Attorney's
Office would normally disclose in a public meeting; the City Attorney's Office would do so
if the Council directs such disclosures; if the Commission decides to make the request to
the City Council, she would definitely note the fact she has indicated that such analysis
may require legal interpretation that may be subject to attorney work product and
attorney-client privilege.
Commissioner Reid stated that she would like the Commission to receive a copy of the
report sent to the City Council as a point of procedure; she would also like to see all of
the PRAs that have been submitted in a monthly report sent to the OGC.
Vice Chair Shabazz stated if some of the information is already being provided to the City
Council, it would not be difficult to share the information with the Commission; regarding
the piece on attorney-client privilege, his request is that the Commission is asking for an
informational report which provides context and what is required in the Sunshine
Ordinance; what is disclosable has changed over the last five years; perhaps the
additional laws become an issue.
The Chief Assistant City Attorney stated that she may not have been clear and
apologized; she is taking the request in two pieces; the first piece is for the City Attorney's
Office to provide the OGC a report similar to what is provided to the Council indicating
what, if any, documents have been released after being initially withheld from disclosure;
as to that piece, the information is regularly provided twice a year to the City Council in
a
publicly available report; the ones that she reviewed indicate no documents have been
declassified; the second piece of Vice Chair Shabazz's request is asking for an analysis
or explanation of how the City Attorney's Office, and the City as a whole, treat document
requests with the advent of some new laws; it is this piece the City Attorney's Office
believes would require her office to divulge attorney work product or attorney-client
communications because it would require her office to indicate what legal interpretation
they take of the laws in their application to specific requests that are made to the City,
which would require direction from City Council.
Vice Chair Shabazz stated that he understands what the Chief Assistant City Attorney is
communicating; it is not that he disagrees; he is in no position to make a decision for the
City; he is requesting a formal, agendized Commission agenda item in the future; for the
second portion, the Commission may ask the City Council for information or documents
Meeting of the
Open Government Commission
October 4, 2021
13",OpenGovernmentCommission/2021-10-04.pdf
OpenGovernmentCommission,2021-10-04,14,"that are now disclosable; having the conversation publicly could help the OGC continue
to effectively do its work.
Commissioner Reid stated that she would support a motion that specifies the OGC would
have a formal agenda item to further discuss these issues, asking the City Attorney's
Office to submit a copy of the same report to the OGC and to also include monthly reports
of PRAs submitted and exemptions that have utilized.
Vice Chair Shabazz stated that he would make a motion not including everything
Commissioner Reid included; he is a fan of the PRA, but doing a monthly report might be
burdensome; he is attempting to start with one request for an informational report, which
includes a recommendation to permanently implement a PRA supplement in the annual
report.
Vice Chair Shabazz moved approval of the Commission requesting that City staff provide
an informational report on disclosure of documents.
Commissioner LoPilato inquired whether providing the same document as the one on the
City Council's Consent Calendar under the Commission's Staff Update section meets the
needs of the motion.
Vice Chair Shabazz responded essentially, the issue came before the Commission five
years ago and a Commissioner asked what it was about; he is asking the same thing; the
core of the question is that he is requesting the information come back to the Commission
to be shared in a way that is contextualized; he does not think it should take more than
half an hour to provide the information and allow the public to be aware of the report that
goes before the City Council twice a year.
Commissioner Reid stated that she is familiar with the report and has been following it;
she appreciates Vice Chair Shabazz's motion but would like to make a friendly
amendment to make it even more open and include the list of the PRAs on a monthly
basis; stated that she does not think it would take much of City staff's time; it would be
highly beneficial to the OGC and the public to see all the requests coming through, how
the City Attorney's Office is handling them and what exemptions are being used
repeatedly.
In response to Chair Tilos's inquiry, Commissioner Reid stated that she agrees with Vice
Chair Shabazz's motion, but would like to add to his motion that a PRAs report is added
on a monthly basis.
Chair Tilos stated Vice Chair Shabazz already declined adding the monthly PRA piece
because it gets a little more tedious and adds more content to already-long meetings.
The Chief Assistant City Attorney stated that she is concerned Commissioner Reid's
request is not agendized; there is discussion and action being contemplated about a
request that is not on the agenda; cautioned the Commission to be careful.
Meeting of the
Open Government Commission
October 4, 2021
14",OpenGovernmentCommission/2021-10-04.pdf
OpenGovernmentCommission,2021-10-04,15,"Commissioner Reid clarified that her request was to place the item on the next agenda.
In response to Chair Tilos's inquiry, the City Clerk stated if the Commission gives direction
tonight, the item can come back at a later date when there is time on the agenda.
In response to Chair Tilos's inquiry, the City Clerk stated a motion has been made but not
seconded; a motion can be made since the matter is listed as an agenda item.
Commissioner LoPilato inquired whether the motion is to talk about it at a future date as
an agendized item; stated that she thought the actual motion was to directly request that
staff provide the information and materials at the future agenda.
The City Clerk stated the motion was to request staff to provide an informational report.
Commissioner Chen stated under Commission Communications, the Commission can
only ask to have an item be put on an agenda; technically, the item is not being discussed
right now; it has to be an agendized item for the Commission to ask staff to do something.
Chair Tilos moved that the Commission discuss what they would like to do at a later time;
stated he is trying to avoid putting it on the agenda next month; inquired whether it is
correct procedure to put it on an agenda for a future date.
The City Clerk stated there is no date in the motion, so a later time is fine.
Commissioner Reid inquired whether Chair Tilos is making a motion.
Chair Tilos stated he withdraws his motion.
Commissioner Reid moved approval of placing the item on the agenda for a later time to
include a monthly PRA report and that the City Attorney's Office share the bi-annual report
with the OGC.
Chair Tilos stated there is no second on either Vice Chair Shabazz or Commissioner
Reid's motions.
Vice Chair Shabazz stated the Chief Assistant City Attorney clearly cautioned the
Commission against considering and discussing the item that is not on the agenda; a
simple solution would be to request the item be placed on the next agenda.
Commissioner Chen seconded Vice Chair Shabazz's original motion.
Commissioner LoPilato stated before taking a vote, she wants to make sure the staff who
will be responsible for providing the report is clear on the scope of what is being
requested.
Meeting of the
Open Government Commission
October 4, 2021
15",OpenGovernmentCommission/2021-10-04.pdf
OpenGovernmentCommission,2021-10-04,16,"The Chief Assistant City Attorney stated in general, the City Attorney's Office takes
direction from City Council on workload; she would like to strike a balance to be
reasonable; the report that includes the information Vice Chair Shabazz has asked for is
already in a written report so a copy could be attached to Commissioner Communications
in a meeting closest to whichever City Council meeting the semi-annual report is
presented; she does not envision producing a separate report.
On the call for the question, the motion failed by the following roll call vote: Commissioners
Chen: Aye; LoPilato: Abstain; Reid: Abstain; Shabazz: Aye; Chair Tilos: No. Ayes: 2.
Abstentions: 2. Noes: 1.
Vice Chair Shabazz stated this is his last OGC meeting and shared his resignation letter;
wished all the Commissioners well.
Adjournment
Chair Tilos adjourned the meeting at 9:50 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
October 4, 2021
16",OpenGovernmentCommission/2021-10-04.pdf
OpenGovernmentCommission,2021-11-01,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY NOVEMBER 1, 2021 7:00 P.M.
Chair Tilos convened the meeting at 7:06 p.m.
ROLL CALL -
Present:
Commissioners Chen, LoPilato, Montgomery, Reid,
Shabazz and Chair Tilos - 5. [Note: The meeting was
conducted via Zoom.]
Absent:
None.
[Staff present: Chief Assistant City Attorney Elizabeth Mackenzie;
City Clerk Lara Weisiger]
NON-AGENDA PUBLIC COMMENT
None.
COMPLAINT HEARINGS
3-A. Hearing on Sunshine Ordinance Complaint Filed on September 21, 2021
Dorothy Freeman, Complainant, and Paul Foreman gave an Opening Statement and
Presentation of Facts.
Bradford Kuhn, Nossaman, City/Respondent, gave an Opening Statement and
Presentation of Facts.
Mr. Foreman gave a Reply to the City/Respondent Opening Statement and Presentation
of Facts.
Commissioner LoPilato inquired whether correspondence was submitted for the
September 7, 2021 Closed Session; stated a written submission encouraged purchase
of the entire 2.8 acres.
Ms. Freeman responded in the affirmative; stated that she probably made a statement;
she has made so many that she cannot remember.
Commissioner LoPilato inquired whether the term ""pre-development agreement"" is
a
technical term.
Mr. Foreman responded in the negative; stated legally, there is no such thing as a pre-
development agreement; a City ordinance states what has to go in to a Development
Agreement (DA); two or three of the terms in the Settlement Agreement (SA) would also
be in a DA.
Meeting of the
Open Government Commission
November 1, 2021
1",OpenGovernmentCommission/2021-11-01.pdf
OpenGovernmentCommission,2021-11-01,2,"Commissioner LoPilato inquired how an eminent domain proceeding can be resolved via
settlement if certain segments have to be discussed in open session.
Mr. Foreman responded the actual negotiation has to be done in Closed Session; stated
once negotiations are completed, the City Attorney could simply ask to present the SA at
an open meeting of the City Council for consideration and public input; if it is not accepted,
it would start over again; compared the matter to labor negotiations.
Commissioner LoPilato inquired how the matter would be agendized, to which Mr.
Foreman responded it would have to be agendized for the next meeting; stated in
February, the City indicated an agreement was reached in principle; he would not be
worried about a two-week delay between a Closed Session and the final presentation.
In response to Commissioner Reid's inquiry regarding appraisals, Mr. Foreman stated the
question is not germane to the issue, but he could answer if there is no objection from the
Commission; he attended a neighborhood meeting at Jean Sweeney Park where Mayor
Ezzy Ashcraft explained the original appraisal was approximately $1 million and that the
railroad came back with $8 million; the Mayor further explained that due to the large
disparity, the Council got a second appraisal, which was significantly higher and led
Council to believe the City could not afford to purchase the entire property; he asked the
Mayor about the second appraisal; the Mayor said the City Attorney instructed it cannot
be revealed.
In response to Commissioner Reid's inquiry, Mr. Kuhn stated there was a confidential
exchange of appraisals between the City and Union Pacific in the middle of litigation;
pursuant to an agreement signed by the parties, the City is not allowed to disclose the
valuation information presented by Union Pacific; he is able to say that the second
appraisal was significantly higher; the Closed Session was necessary to discuss the risks
of litigation on the potential exposure; he does not see any way to have candid dialogue
in open session; he does not think it is fair to reach a decision in Closed Session and then
ask for public input, but not be able to discuss the risks of the litigation and potential
exposure; it puts the City Council in an unfair position; the ultimate outcome was the same
because the SA was disclosed and reported out in open session; the details were fully
laid out to the public.
Mr. Foreman stated the Council was not obligated to keep the appraisals a secret, but
agreed to do so; the Council could have come to an open meeting to make the same
disclosure that the Mayor and Mr. Kuhn just made and the public would at least have
something to discuss; the Complaint is not about a bad decision, it is about a secret
conclusion that was made without public input.
Commissioner Reid stated that she is trying to understand how the appraisal fits into the
context of the current zoning; inquired about the current zoning of the property.
Mr. Foreman responded the current zoning on a small piece of the property is industrial
and Union Pacific (UP) wants to raise to R2 and is also talking about density beyond R2
Meeting of the
Open Government Commission
November 1, 2021
2",OpenGovernmentCommission/2021-11-01.pdf
OpenGovernmentCommission,2021-11-01,3,"limits, which is why there is a provision about R2 in the SA; if the zoning is changed, the
land will be a whole lot more valuable than it is today.
Ms. Freeman stated approximately 1.7 acres are zoned R2 already, leaving
approximately 2.3 acres still zoned for industrial.
Mr. Kuhn stated no one is disputing that the SA in no way changes the zoning of the
property and somehow eliminates the requirement for Union Pacific to come back to the
City Council; Union Pacific has to go through an entire development application process,
get public input, and get City approval to develop the property, which is not taken off the
table or changed whatsoever by the SA.
Mr. Foreman stated that he agrees Union Pacific has to do everything, but the agreement
greases the rails; requested the Commission to read it and come to its own conclusion
about whether it is germane.
Commissioner Reid requested Ms. Freeman to elaborate on the background of the land
acquisition and how much community involvement there was up until the Closed Session.
Ms. Freeman responded in 2013 when the City started out to develop the Park, she
worked with the Recreation and Parks Department on community meetings which had
over 300 people attended, as well as 700 to 800 people who participated in an online
survey; the survey included options for what people wanted to have in the Park, which
was very close to what Jean Sweeney envisioned; as the Park was being developed, it
was always understood that the Union Pacific land would become part of the Park; the
map portrays that the Union Pacific land is part of the Park, including the bike path; in
2018, the City filed the eminent domain case in public; the case explained that the 1.7
acres zoned R2 was too expensive for the City to purchase; the rest of the 2.8 acres was
addressed in public; people believed the Union Pacific land would be added to the Jean
Sweeney Park; all the community outreach indicated the land would eventually become
part of the Park.
Mr. Kuhn clarified a portion of the Union Pacific corridor was never going to be part of the
Park; every public project always has public involvement and input; candidly, any piece
of litigation involving the City has some sort of public dialogue because taxpayer dollars
are at stake, but does not bring the matter outside of the exemption which allows the City
Council to meet in Closed Session to discuss and resolve pending litigation; otherwise,
every matter the City decides regarding litigation would be open to the public, which
cannot be the case.
Mr. Foreman stated Complainants are not alleging that is the case; they are alleging when
there is an obligation to do something in public, it has to be done in public; it does not
have to disrupt the negotiation process or the closed nature of it; with ordinary litigation
that had nothing to do with public hearings or a claim against the City, there is no
obligation to allow public input; it is a private matter; this is a public matter that involves a
public park, housing and zoning; every time the City has litigation, it does not mean it has
Meeting of the
Open Government Commission
November 1, 2021
3",OpenGovernmentCommission/2021-11-01.pdf
OpenGovernmentCommission,2021-11-01,4,"to be done in secret from start to finish; this is an exception.
In response to Chair Tilos's inquiry, Mr. Kuhn stated the public does not get to control the
litigation; the details were disclosed and made available to the public; if the public wants
to provide participation, they still have the ability to do so; they can voice their concerns
and tell the Council to acquire more land; the open session resolution to acquire the
property to begin with was done in accordance with the City Charter.
Mr. Foreman stated he and Ms. Freeman are here because they think the citizens had a
right to have the proposal presented to the public once the negotiations were completed;
whether or not the Council made a good economic decision is not being challenged.
Commissioner LoPilato stated the Commission needs to be cautious about too much
party to party debate, which is outside of the procedures.
In response to Commissioner LoPilato's inquiry, Mr. Kuhn stated the City was quickly
approaching a trial date; typical when that happens, the parties want to continue the trail
later or take it off calendar if they are engaging in negotiations; that happened in this case;
there were preliminary discussions with Union Pacific in February; it took the City until
September to get somewhere; the litigation was still active and pending at the time of the
Closed Session; the dismissal of the case did not happen until after Closed Session was
completed and the SA was signed.
Mr. Foreman stated he just wanted the Commission to read the stipulation.
Commissioner LoPilato stated that she has read and is familiar with the stipulation; it is
beneficial to understand that when a SA is signed by one party, the offer can still be
revoked; if an offer is made and an agreement laid out, then the other party listens to an
open session and learns all the weaknesses of the City's case, the whole deal can be
ended with a simple email to the City Attorney saying the deal is off.
Mr. Kuhn concurred with Commissioner LoPilato; stated anyone can revoke a signature
at any time.
Commissioner LoPilato stated Mr. Foreman outlined what a compliant process under the
Complainant's interpretation would look like; inquired what that timeline and process
could entail.
Mr. Kuhn responded City Council could have gone into closed session, discussed the
matter, stated no decision was reached, put it on a future Council agenda in open session,
get public input and reach a decision; he thinks it is form over substance because the
public did have a chance to weigh in on the matter; Ms. Freeman even submitted a letter
before the City Council hearing; the Recreation and Parks Department held public
meetings about potential revisions to the Park layout and design; ultimately, the City
Council gets to make decisions on pending litigation, weighing the risks and the budget;
laying the cards out on the table for Union Pacific to see would completely change their
Meeting of the
Open Government Commission
November 1, 2021
4",OpenGovernmentCommission/2021-11-01.pdf
OpenGovernmentCommission,2021-11-01,5,"negotiating position.
Commissioner LoPilato inquired whether the settlement is typically considered to be
under proceedings or if there is a definition for the term.
Mr. Kuhn responded in the affirmative, stated it is all one and the same; he would either
settle an eminent domain action via SA, which calls for the exact terms and dismissal
after the fact pursuant to a stipulated judgment where the Court transfers the property.
Commissioner Reid inquired whether the final Master Plan approved by Council in 2016
includes the parcel in question.
Ms. Freeman responded in the affirmative; stated the design includes the 4.52 acres
along the southern border.
Commissioner Reid inquired why the public would not have the right to know about the
reduction in property if it was part of the Master Plan.
Mr. Kuhn responded that the public did know about it; the terms were reported out in open
session; there were Recreation and Parks meetings well before which discussed potential
reductions and changes in size; Ms. Freeman was aware of it before the meeting and
submitted a comment letter on it; nothing was hidden from the public; the City decided to
resolve pending litigation in Closed Session so they could talk about risks and potential
ramifications of moving forward with acquiring the entire corridor and whether or not there
was funding.
Ms. Freeman stated from copies she obtained of Court case documents and the
Recreation and Parks Director's meeting with the public to explain that the west end of
the park had to be redesigned, she deduced the change; why it had to be redesigned was
not explained; one charts said: ""not City-owned property"" which was subsequently
removed; a blank space showed it would no longer be considered as part of the Park;
what was going on was never discussed in public; she was assuming that this was the
issue due to the Court records and the meeting about the redesign of the park, but it was
never stated by the City.
Commissioner Reid inquired whether Mr. Kuhn was involved in the litigation with Union
Pacific, to which Mr. Kuhn responded in the affirmative.
Commissioner Montgomery inquired whether there would have been any effect on the
negotiation or settlement if the matter been placed on a later agenda date.
Mr. Kuhn responded that he does not want to speculate, but would assume that if there
was an open session and the City disclosed valuation, potential exposure and the risks
of acquiring the entire corridor, it would significantly impact the negotiating position with
Union Pacific.
Meeting of the
Open Government Commission
November 1, 2021
5",OpenGovernmentCommission/2021-11-01.pdf
OpenGovernmentCommission,2021-11-01,6,"Mr. Foreman stated that he thinks Mr. Kuhn's explanation is contrived; the City negotiated
with Union Pacific over a long period of time; the City knew the strengths and weaknesses
of the railroad and vice versa; Council came to a consensus as to what would be a good
deal; the railroad agreed to it; all the City Attorney had to do was ask whether it could be
presented to the public in an open meeting; at the public meeting, nothing has to be
disclosed if it would be harmful; the City could have simply stated, like the Mayor did, that
the appraisal cannot be disclosed; it still gives the public a chance to speak out and feel
they have real input and someone is listening to them; let the public feel they are
participating in open government.
Commissioner Reid inquired why the City would agree to pay a previously agreed upon
price for the full parcel and now decide to pay less than half for a lot less land; further
inquired whether the zoning was different in the appraisal process.
Mr. Kuhn responded in the affirmative; stated the zoning was different; the original
appraisal was done incorrectly; the trail appraisal prepared for the City was massively
more expensive than the original $1.1 million deposit.
Commissioner Reid inquired whether the appraisal for housing would add much higher
valuation than for park land, to which Mr. Kuhn responded in the affirmative.
Commissioner Reid inquired how long Mr. Kuhn has been contracted with the City on the
project, to which Mr. Kuhn responded he became involved a little over a year ago.
Ms. Freeman gave a Closing Statement.
Mr. Kuhn gave a Closing Statement.
Speakers:
Jay Garfinkle, Alameda, stated that he does not find the City Attorney's argument
compelling; the City Council and City Attorney's office have a tendency to disregard the
people's constitutional right to know what the City government is doing; he is disappointed
the Council chose to disregard the will of the people.
Jenice Anderson, Alameda, stated that she knew the reasons for the changes to the park
project, including Union Pacific changing the land price; she does not follow Ms. Freeman
and did not get the information from her, nor is she part of the group bringing forward the
Complaint; the public knew about the changes to the plan before the September 7th
meeting, so it was not out of the blue; the person who did the bulk of the Complaint was
banned from bringing Complaints to the OGC for several years; she feels if anyone else
did a by-proxy Complaint, it would be called out; she thinks the whole Complaint is
ridiculous.
Commissioner Reid stated the closed session discussions placed a veil on the appraisal
procedure; whether or not the valuation was based on housing or parkland would have a
Meeting of the
Open Government Commission
November 1, 2021
6",OpenGovernmentCommission/2021-11-01.pdf
OpenGovernmentCommission,2021-11-01,7,"huge variation.
In response to Chair Tilos's inquiry regarding timing Commissioners, the City Clerk stated
the Complaint Procedure does not list a specific time.
Chair Tilos stated he would like to start with five minutes; if more time is needed,
Commissioners can request more, up to nine minutes.
Commissioner Reid stated that she was surprised Mr. Kuhn was involved; it seems there
is considerable bias; the public was involved from the very beginning; then, suddenly, the
Council decided not to include the public in the litigation section of the process; the
Sunshine Ordinance provides for more transparency; the public has the right to know the
reasons regarding the appraisals and has the right to participate; the neighbors should
be included in the process.
Commissioner Chen stated she has been following the Jean Sweeney Park story since
the beginning; everyone who participated in the process feels like part-owners; to have
this suddenly happen is terrible; it is a threading the needle issue; under litigation,
questions and decisions from the City Council cannot be disclosed; she would rule in
favor of the City, but the way it came down does not pass the smell test; the OGC has the
opportunity to recommend how to make it better; the neighbors and community still have
many future opportunities to speak up on how the land is or is not developed; the iron
gates have not shut; she used to follow eminent domain and condemnation of properties,
so she realizes a lot of regular folks might not fully grasp how a City can condemn
properties for City use, but cannot pay less than the land's value; the OGC's role is to try
to figure out a way to bring the community back into the process without jeopardizing the
agreement; an open hearing should be held, but in a manner so that Union Pacific does
not pull out; there are all kinds of dangers when the flood gates are open in the middle of
litigation.
Chair Tilos stated if the Commission votes in a certain manner on the issue, it could be
sent back and open up the gates.
Commissioner LoPilato stated that she does not think putting the item back on another
agenda would open up the gates; the agreement has been signed; the Complainants
acknowledged that the possible remedy of having it brought into open session, with the
only goal to have a discussion, would not change the outcome; there is a flawed
assumption by the Complainants that the public could ask the City Council questions
whether in open or closed session; public comment can happen and Councilmembers
can share their reasoning, but the forum for asking questions is to directly contact the
Councilmember and ballot box power; there is not going to be an open session questions
and answers on a SA; remedy-wise, there is not a lot to do; she thinks the OGC has the
jurisdiction to look at the matter and make a decision; substantively, it falls within the
pending litigation exception; she cannot imagine having attorney-client discussion in a
public session; it would not serve the City's interests; when she thinks about how tax
dollars are spent, she would like to be able to trust that the City can have effective
Meeting of the
Open Government Commission
November 1, 2021
7",OpenGovernmentCommission/2021-11-01.pdf
OpenGovernmentCommission,2021-11-01,8,"representation in the litigation, which requires being able to have private discussion about
the pros and cons; eminent domain proceedings, including a SA, could probably be a
subject of debate, but the proceedings seem proper; she is inclined to dismiss the
Complaint, but would not find it unfounded; she was troubled by the concept of pre-
development agreement; arguments could be made that the pre-development agreement
functionally paves the way, but she does not think it legally does anything that takes it out
of the pending litigation exception.
Chair Tilos stated that he concurs with Commissioner LoPilato's comments; there is
definitely substance and he would not say the Complaint is unfounded.
Commissioner Montgomery stated that she concurs with Commissioner LoPilato's
statements, as well as Commissioner Chen's comments; she is leaning toward denied at
this point, but not unfounded; she believes there are things to look at; perhaps a
recommendation could be made for the future.
Commissioner Reid stated that she agrees with Commissioner Chen that the matter does
not pass the smell test in terms of transparency for the community; she is not suggesting
the agreement be withdrawn or substantial changes made, but she wonders what harm
there is in suggesting to the City Council reagendize the item to make the whole process
more transparent; the Commission is here for the public; she is leaning towards
transparency and providing the public with as much information as possible and an
opportunity to participate.
In response to Chair Tilos's inquiry, the Chief Assistant City Attorney stated that when Mr.
Kuhn was discussing the ability to exit the agreement, he was talking about the point
when the matter came to closed session in September; if there had been a delay at that
point or some question on whether or not the City was going to agree to certain terms,
Union Pacific or the City could have exited the agreement; at this point, there is a signed
SA; she is not prepared to opine on the ramifications of the City trying to get out of the
SA, but will say it is definitely beyond the scope and jurisdiction of the OGC; to clarify the
point, Mr. Kuhn's statement had to do with the status at the beginning of September, not
now.
Chair Tilos stated since the matter did not pass the smell test, he would consider kicking
it back but it would not change the outcome; it is a done deal; he would not say the
Complaint is unfounded because there is definitely something going on; Complaint denied
seems to be more appropriate.
Commissioner Reid stated that she agrees with Chair Tilos; bringing it back would give
the public an opportunity to be aware and weigh in; this has been going on since 2013;
leave the doors open to allow the public to be aware; she does not see the harm in it
since the outcome will not change; the OGC would be doing its job to create transparency.
Chair Tilos stated the public is definitely aware now; it is after the fact, but there are quite
a few attendees at the meeting.
Meeting of the
Open Government Commission
November 1, 2021
8",OpenGovernmentCommission/2021-11-01.pdf
OpenGovernmentCommission,2021-11-01,9,"Commissioner Chen stated none of the possible changes are a done deal; decisions will
require hearings; the hearings will give the entire community, especially the neighbors,
an opportunity to weigh in as the Council deliberates on whether or not to change the
zoning or allow a development; it is obvious the Union Pacific attorneys just wanted to get
more out of the deal; they are doing their jobs; it is all part of a legal game; there are many
more times to get a bite of the apple; the process is not closed; the community has
opportunities; everyone will be on alert to practice their democratic rights.
Commission Montgomery stated the public could address the matter by speaking at a
Council meeting on a non-agenda item or could write a letter to Council; inquired what
would be the value of reagendizing the item.
Chair Tilos stated Commissioner Montgomery's understanding is correct; reagendizing
the item would just be reopening the discussion; the Complainants just want the Council
to be more on record about why they made their decisions; it is not an effective use of the
Council's time and taxpayers' dollars.
The Chief Assistant City Attorney directed the Commissioner's attention to the issue at
hand, which is precisely if they have concluded whether there is a violation of the
Sunshine Ordinance or the Brown Act; stated there is a litigation exception for conferring
with legal counsel regarding pending litigation when discussion in an open session would
likely and unavoidably prejudice the position of the City; anyone making a motion should
frame it with this specific provision in mind; if there were to be a vote to sustain, there
should be a finding of how this falls outside of the litigation exception.
Commissioner Reid stated Sunshine Ordinance Section 2-91.10, Council is not required
to hold a Closed Session; she is leaning toward sustained to open up the process, let the
public weigh in and not close the gates.
In response to Chair Tilos's inquiry, the City Clerk stated the way the Complaint Procedure
is written, the Chair can waive the time limit or a supermajority vote is required to amend
the times.
Chair Tilos stated he will extend the time one minute for each Commissioner.
Commissioner LoPilato moved approval of denying the Complaint on the basis that there
was no violation of the Brown Act or Sunshine Ordinance as the matter fell within pending
litigation exception.
Commissioner Chen seconded the motion, which carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Montgomery: Aye; Reid: No; Chair Tilos: Aye.
Ayes: 4, Noes: 1.
In response to Chair Tilos's inquiry, the Chief Assistant City Attorney stated that she has
enough information to draft a short written decision.
Meeting of the
Open Government Commission
November 1, 2021
9",OpenGovernmentCommission/2021-11-01.pdf
OpenGovernmentCommission,2021-11-01,10,"In response to Chair Tilos's inquiry, the City Clerk stated that she would send the final
written decision to Commissioners via Docusign.
3-B. Hearing on Sunshine Ordinance Complaint Filed on October 4, 2021
Jay Garfinkle, Complainant, gave an Opening Statement and Presentation of Facts.
Bradford Kuhn, Nossaman, City/Respondent, gave an Opening Statement and
Presentation of Facts.
Mr. Garfinkle replied to the City/Respondent Opening Statement and Presentation of
Facts.
Commissioner LoPilato inquired whether Mr. Garfinkle's Exhibit 3 attached to his
Complaint is the full set of documents he received that produced by the City.
Mr. Garfinkle responded in the negative; stated much of what was produced was
repetitious threads.
Commissioner LoPilato clarified that she was asking about the larger exhibit which was
1,052 pages.
Mr. Garfinkle responded he thought he had pulled out the larger exhibit.
Commissioner LoPilato stated that she is trying to gauge whether the Commission has
visibility into the full scope of the production, which sounds uncertain; inquired whether
Mr. Garfinkle inquired about any of the specific redactions with the City Attorney's office
representative that was communicating with him about the production before filing the
Complaint.
Mr. Garfinkle responded that he does not know if he did; stated it took him a long time, at
least a couple of weeks, to go through all the documents; while his Complaint was about
the lack of explanation, he was also looking at what was being expressed between the
lobbyists and City staff, much of what he thought was inappropriate; it was not just a
matter of the redactions; he could not file a Complaint about what they were talking about,
his Complaint was about the quality of the redactions; among all of the communications,
he felt a number were inappropriate.
Commissioner LoPilato clarified that her question is whether Mr. Garfinkle inquired about
why there was a redaction, to which Mr. Garfinkle responded in the negative; stated the
City Attorney's office is required to provide it, he should not have to ask for it.
Commissioner Reid thanked Mr. Garfinkle for bringing his Complaint forward; inquired
what type of information would be exempt related to draft position statements and why
the documents were redacted if they are just conversations regarding the legislative
Meeting of the
Open Government Commission
November 1, 2021
10",OpenGovernmentCommission/2021-11-01.pdf
OpenGovernmentCommission,2021-11-01,11,"agenda between the City lobbyists and staff.
Mr. Kuhn responded the Public Records Act makes a specific exception for documents
governed by the deliberative process privilege; City staff need the ability to comment on,
exchange dialogue and share information that goes into the City's decision-making
process candidly and confidentially without having all of the draft documents or decisions
made available to the public; the Court has said exposing the agency's decision-making
process would discourage candid discussions within the agency and undermine the
agency's ability to perform its functions; some documents not subject to attorney-client
privilege are still not subject to disclosure under the Public Records Act (PRA); draft
documents and iterative process are not typically turned over to the public because it
would discourage and prevent the City from engaging in a candid and open dialogue,
sharing ideas, understanding the basis for certain positions and making revisions without
having it be completely open, disclosed, and nitpicked when just trying to gather
information.
Commissioner Reid inquired whether the deliberative process goes beyond City staff, to
which Mr. Kuhn responded it would include consultants and lobbyists as well.
Commissioner Reid inquired whether the reason is because it would cause harm to the
City.
Mr. Kuhn responded in the affirmative; stated if every document was made available to
the public, it would discourage candid conversations; everyone would be too worried
about putting a draft together or commenting on drafts and exchanging ideas without
being able to fully vet and understand different positions.
Commissioner Reid inquired how that reconciles with open government and the fact that
the public has a right to know the City's process.
Mr. Kuhn responded the law makes a specific finding that disclosure of certain
deliberative process discussions would inhibit the free and candid communication
between staff; it is a finding of the law that allows the iterative process to take place before
things are completely opened and shared.
In response to Commissioner Reid's inquiry, Mr. Kuhn stated the City produced
documents on a rolling basis; six batches of documents were produced; some batches
had no redactions, some had a few; in the case where there were redactions, there was
an explanation provided about the basis or reasoning why certain records were redacted
when the documents were produced.
Commissioner Reid stated her understanding is the PRA requires the City to explain
precisely why there was a redaction in whole or in part; she does not see it in the
examples.
Mr. Kuhn stated the City's Position Statement includes cover emails explaining the basis
Meeting of the
Open Government Commission
November 1, 2021
11",OpenGovernmentCommission/2021-11-01.pdf
OpenGovernmentCommission,2021-11-01,12,"and reasons why certain documents were withheld; for example, when a document
redacted based on the deliberative process privilege, staff indicated information was
withheld based on the grounds that disclosure would inhibit the free and candid
communication between staff and their agents on matters within their purview; that is what
was provided and required under the law; the City is not required to go through every
single email and provide an exact, precise explanation on every single redaction,
especially with thousands of pages of documents.
Commissioner LoPilato stated it appears the Complainant is making an argument that the
passage of Proposition 59 in 2004 essentially weakened the deliberative process
privilege; requested Mr. Kuhn talk a little bit about the legal landscape related to the
deliberative process and whether that has shifted post 2004 or if the current state of affairs
has changed anything.
Mr. Kuhn stated that he does not think anything has changed with respect to what is
before the Commission tonight; Proposition 59 is meant to be a Sunshine Ordinance
provision and placed a statute of limitations restricting access to certain meetings and
records, but it does not suddenly place additional burdens or obligations, or make
additional records available to the public.
Mr. Garfinkle gave a Closing Statement.
Mr. Kuhn gave a Closing Statement.
Speaker:
Ryan LaLonde, Alameda, thanked the Commission for former Commissioner Shabazz's
webinar on the Public Records Act and how to submit requests; stated that he received
PRA documents from the County District Attorney's office; the documents Mr. Garfinkle
received from the City are the same type as the ones he received from the County,
including cover letters stating why there are redactions; there is opportunity to ask for
clarification, which he did and the County sent additional information; follow-up is
important; Mr. Garfinkle decided not to submit the cover letters that came with the email
production; in his case, he worked with the County to get the specific documents he
needed, it was not a fishing expedition; Mr. Garfinkle's Complaint is unfounded in the fact
that there was no due diligence on his part to actually get to the bottom of what he really
wanted.
Commissioner Reid stated the PRA provides protections for the disclosure of documents;
she questions whether or not the exemptions were justified; she does not see that the
deliberative process privilege outweighs the importance of the public receiving the
information; she does not see specific information on the disclosures provided in the
documents themselves.
Commissioner Chen stated that she has the same question as the speaker; the
documents did not include the emailed explanation of the redactions.
Meeting of the
Open Government Commission
November 1, 2021
12",OpenGovernmentCommission/2021-11-01.pdf
OpenGovernmentCommission,2021-11-01,13,"In response to Commissioner Chen's inquiry, Commissioner LoPilato stated the cover
emails stating the reasons for the redactions are exhibits to the City's Position Statement;
Exhibit 8 includes the deliberative process privilege, which Mr. Garfinkle did not include.
In response to Chair Tilos's inquiry, Commissioner LoPilato stated Exhibit 2, the City's
Position Statement, includes exhibits that are clearly outlined and contain the cover
letters.
Commissioner Reid stated the question is whether or not the PRA provides transparency
in the redactions; questioned why some documents are more redacted than others.
Commissioner LoPilato stated sometimes a redaction is a portion of a document;
sometimes it is a larger portion of a document; the proper process should be that if
someone receives six batches of a rolling production over 1,100 pages and has questions
about specific redactions, reach back out to the City for clarification; she did not see any
attempt to do so; if there was evidence that the City was not responsive to follow-up
questions, she would want to flag that as a possible recommendation for better
transparency; unfortunately, the Complainant made no attempt to gain clarification about
any of the documents; there is no obligation under the law to provide an explanation of
redactions document by document; she is inclined to deny the Complaint and really
wishes there had been some attempt for clarification or follow-up on the part of the
Complainant.
In response to Chair Tilos's inquiry, the Chief Assistant City Attorney stated the language
she advises the Commission to look at is Government Code Section 6255, Subsection A
which is a provision of the PRA; it states that: ""the agency shall justify withholding any
record by demonstrating that the record in question is exempt under expressed provisions
of this chapter, or that on the facts of the particular case the public interest served by not
disclosing the record clearly outweighs the public interest served by disclosure of the
record;"" the provision itself does not provide any specificity for going item by item; further
interpretation is found in Case law; in this instance, Case law speaks to how the California
Supreme Court has spoken to what Code Section 6255 actually requires; the Supreme
Court found in Section 6255, Subsection A that a requestor was not entitled to a specific
log; the reasoning is that in the PRA, the legislature went to great lengths to impose very
specific requirements in certain cases; the Supreme Court opined that if a public agency
was required to enumerate each time and each record and what the various exception
was for each record, it could have done so and chose not to; it was extrapolated that a
blanket explanation is sufficient; the Case cited is Haney VS. Superior Court; the PRA
does not require an itemized list of every single redaction in a document request; a blanket
email with an explanation, such as the one the City provided, would be acceptable under
the PRA.
Commissioner Reid moved approval of sustaining the Complaint and to cure and correct,
so that Mr. Garfinkle receives a thorough explanation of why the documents were
redacted.
Meeting of the
Open Government Commission
November 1, 2021
13",OpenGovernmentCommission/2021-11-01.pdf
OpenGovernmentCommission,2021-11-01,14,"The motion failed due to a lack of second.
Commissioner Reid moved approval of dismissing the Complaint on procedural grounds
asking that Mr. Garfinkle work with the City Attorney and City Clerk's offices to understand
a little more of why the redactions occurred.
The Chief Assistant City Attorney stated the dismissal is for procedural or jurisdictional
defects; jurisdictional would be if the Commission did not have the authority to make a
decision on the Complaint or it is something totally out of the Commission's purview;
procedural grounds would be that some sort of procedure was not followed in the actual
making of the Complaint; the most classic example would be if a Complainant filed their
Complaint after the deadline; stated that she is not sure whether dismissal is really what
Commissioner Reid intends.
The motion failed due to a lack of second.
In response to Commissioner Reid's inquiry, Chair Tilos stated the five options are: 1)
Complaint sustained with cure and correct recommendation, 2) Complaint sustained
without cure and correct recommendation, 3) Complaint denied, 4) Complaint denied as
unfounded, and 5) Complaint dismissed on jurisdictional or procedural grounds.
Commissioner Montgomery moved approval of denying the Complaint as unfounded.
Commissioner Reid suggested a friendly amendment to deny the Complaint, but not
determine it unfounded, as it would be a harsh penalty to the Complainant.
Commissioner LoPilato stated that she is inclined to second the motion; she wrestles with
the unfounded distinction solely on the basis of what a layperson may interpret; it comes
down to what a reasonable community member making a PRA would think.
Chair Tilos stated as a non-lawyer person, he is leaning toward unfounded; the City did
its due diligence; the Chief Assistant City Attorney also explained the California Supreme
Court's position regarding redactions on PRAs.
In response to Commissioner Chen's inquiry, Chair Tilos added a minute to everyone's
clock.
Commissioner Montgomery stated that she did not accept the friendly amendment to the
motion.
Commissioner Chen stated that she has been frustrated with the Complaint because it
kept changing every few hours and there was no time limit; there was opportunity for the
Complainant to do more due diligence; this is not the first Complaint he has filed; on one
hand, she does not want to find it unfounded because it seems severe; on the other hand,
the Complainant had the opportunity to prepare a more solid Complaint; the speaker's
Meeting of the
Open Government Commission
November 1, 2021
14",OpenGovernmentCommission/2021-11-01.pdf
OpenGovernmentCommission,2021-11-01,15,"experience and back-and-forth communication with the County on a similar PRA seems
like a more reasonable and collaborative process; she supports the unfounded finding.
Commissioner Reid stated that punishing members of the public for bringing forth a PRA
Complaint goes against the values of open government; she is very disappointed in the
unfounded finding because of the harsh punishment.
Commissioner LoPilato seconded the motion, which carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Montgomery: Aye; Reid: No; Chair Tilos: Aye.
Ayes: 4. Noes: 1.
***
Chair Tilos called a recess at 10:04 p.m. and reconvened the meeting at 10:12 p.m.
***
REGULAR AGENDA ITEMS
4-A. Selection of Vice Chair
Commissioner Chen moved approval of Commissioner LoPilato being Vice Chair.
Commissioner Montgomery seconded the motion.
Under discussion, Commissioner LoPilato stated that she does not think the Vice Chair
should automatically advance to the Chair role in January and could be anyone
interested.
Chair Tilos concurred with Commissioner LoPilato; stated that he would likely step down;
the Vice Chair is the logical choice; he was reluctant when he was voted as Chair, but
allowing all members an opportunity and experience to Chair is important.
Commissioner LoPilato stated that she is happy to take on the role of Vice Chair until the
election in January based on the Commission's constitution at that point.
On the call for the question, the motion carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Abstain; Montgomery: Aye; Reid: Aye; Chair Tilos:
Aye. Ayes: 4. Abstention: 1.
4-B. Minutes of the September 20, 2021 and October 4, 2021 Meetings
Commissioner Chen moved approval of the minutes.
Commissioner LoPilato seconded the motion, which carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Montgomery: Aye; Reid: Aye; Chair Tilos: Aye.
Ayes: 5.
Meeting of the
Open Government Commission
November 1, 2021
15",OpenGovernmentCommission/2021-11-01.pdf
OpenGovernmentCommission,2021-11-01,16,"4-C. Report to City Council on Issues Arising from Implementation of the Sunshine
Ordinance
Commissioner Chen gave a brief presentation.
Commissioner LoPilato stated that she does not think the report is quite in shape to send
to the City Council; it was a huge undertaking; she is refining her thoughts on it; the
Commission is required to do the reports at least once annually; Complaints are still
coming in for 2021; suggested moving the plan to finalize the report closer to January;
she is mindful that certain things already feel outdated; specifically Recommendation #3,
the City already is publishing the legislative agenda.
Commissioner Chen stated work on the Complaint Procedure and form took out half of
the recommendations; she feels the relationship with the City Attorney's office is much
improved; the report can be updated on an ongoing basis; she concurs with
Commissioner LoPilato regarding the timing.
Chair Tilos stated the Commission could hold off until January.
Commissioner Chen stated things can be lost during the turnover of members; the report
is a living document like the Bylaws.
Commissioner LoPilato stated the report should be grounded in the statute; some of the
recommendations read like directives; leading with an explanation and background of
what the Sunshine Ordinance actually says may be a better approach; the
recommendations could be reviewed item-by-item; it is important to look at the accuracy
and weight that is given to some of the language; the Commission's role should be
neutral; the report seems more like an advocacy piece; it might be better received and
more effective if it is more neutral and has a gatekeeper tone; the City Council needs to
give direction to the Commission and staff on what work the Commission should do in
addition to hearing Complaints; the expectations of what the Commission does is a bit
limited.
***
In response to Chair Tilos's inquiry, the City Clerk stated a vote was needed to consider
new items at 10:30 p.m. but since it was missed, the next item could be bumped; a vote
is needed to continue past 11:00 p.m.
***
Commissioner Chen stated she would like to have the report come back on the January
agenda.
4-D. Consider Amending the Sunshine Ordinance Complaint Form. Not heard.
STAFF UPDATE
Meeting of the
Open Government Commission
November 1, 2021
16",OpenGovernmentCommission/2021-11-01.pdf
OpenGovernmentCommission,2021-11-01,17,"The City Clerk stated that when the last Sunshine Ordinance amendments were adopted,
prior Complaints and decisions were to be posted on the OGC website, which has been
done; she welcomes any feedback.
The City Clerk further stated that she worked on the Complaint Procedure glossary and
Frequently Asked Questions (FAQ) section and will send it out to the Commissioners for
feedback.
The Chief Assistant City Attorney announced a Citywide Sunshine Ordinance training for
all Board and Commission members would be in mid-December; she will be doing a
training for the OGC at a public meeting in January.
COMMISSION AGENDA REQUESTS
None.
COMMISSION COMMUNICATIONS
None.
NON-AGENDA PUBLIC COMMENT
None.
ADJOURNMENT
Chair Tilos adjourned the meeting at 10:56 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
November 1, 2021
17",OpenGovernmentCommission/2021-11-01.pdf
OpenGovernmentCommission,2021-12-06,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY
DECEMBER 6, 2021
7:00 P.M.
Chair Tilos convened the meeting at 7:02 p.m.
ROLL CALL -
Present:
Commissioners Chen, LoPilato, Montgomery, Reid,
Shabazz and Chair Tilos - 5. [Note: The meeting was
conducted via Zoom.]
Absent:
None.
[Staff present: Assistant City Attorney John Le; Chief Assistant City
Attorney Elizabeth Mackenzie; City Clerk Lara Weisiger]
NON-AGENDA PUBLIC COMMENT
Anonymous [not able to speak; spoke under second section of Non-Agenda Public
Comment]
COMPLAINT HEARINGS
3-A. Hearing on Sunshine Ordinance Complaint Filed on September 21, 2021
Rasheed Shabazz, Complainant, gave an Opening Statement and Presentation of Facts.
The Assistant City Attorney, City/Respondent, gave an Opening Statement and
Presentation of Facts.
Mr. Shabazz gave a Reply to the City/Respondent Opening Statement and Presentation
of Facts.
Vice Chair LoPilato inquired whether the Commission should be considering the
documents produced at the time the complaint was made or documents produced at the
time the complaint reaches the Commission on the hearing date.
The Chief Assistant City Attorney inquired whether the question is about the two alleged
violations being considered separately in terms of the statute of limitations argument.
Vice Chair LoPilato responded in the negative; stated that she is curious about whether
a violation would be moot if it is cured before the hearing.
The Chief Assistant City Attorney stated it is up to the Commission's discretion; whether
or not there was a technical violation that has now been cured versus no violation is a
factor to weigh; it is at the Commission's discretion to make either finding.
Vice Chair LoPilato stated screenshots provided today have been referenced; she has
Meeting of the
Open Government Commission
December 6, 2021
1",OpenGovernmentCommission/2021-12-06.pdf
OpenGovernmentCommission,2021-12-06,2,"not seen anything come through and the agenda has not been updated; the Commission
is totally in the dark about the documents; inquired whether the Complainant can provide
insight about what he received and where it came from.
Mr. Shabazz responded that he cannot describe that much because he received it this
afternoon; screenshots that have an October date from Alamedanonymous were sent to
the City on Friday.
In response to Vice Chair LoPilato's inquiry regarding the screenshots, the Assistant City
Attorney stated he was not aware of the document until this afternoon since City Hall is
closed on Fridays; he did not review it when he received it, so he is not able to summarize
it; he immediately asked that it be provided to the Complainant.
Commissioner Chen inquired what the expectations and requirements are of the
custodian of records when such a request is received.
The Assistant City Attorney stated within about an hour of receipt, the request was
provided to a number of individuals inside the City to process the request; according to
the California Supreme Court, the nature of the request can be summarized to the
custodian of records; since the request was related to social media, it is expected that it
would be given to the custodian of records, who is the best person to look at those type
of requests; the law says that search can be reasonably relied upon and that is precisely
what the City Attorney's office did; the idea that the City Attorney's office did not produce
records is inaccurate.
Commissioner Chen inquired what date the City Attorney's office received the request, to
which the Assistant City Attorney responded the request was received on April 21st and
provided to the custodian of records.
Commissioner Chen inquired about the custodian of records being required to reply.
The Assistant City Attorney responded the custodian of records is required to do a search
to produce records; in this case, it was social media; the standard practice is when the
custodian of records is copied on the request, they are aware of what they need to do;
once it is turned over to the City, it is treated like any other records request; the City
Attorney's office reviews the request for possible exemptions and \produces the records.
In
response to Commissioner Chen's inquiry, the Assistant City Attorney stated he recalls
only receiving one related record and was not sure if it was from the custodian of records
or staff.
Commissioner Chen inquired whether the custodian of records would then be in violation
of responding timely.
The Assistant City Attorney responded the City can only act through its agents, the
individuals who do the City's work; stated it can be viewed as anyone who is involved in
Meeting of the
Open Government Commission
December 6, 2021
2",OpenGovernmentCommission/2021-12-06.pdf
OpenGovernmentCommission,2021-12-06,3,"the processing of the request.
Following a summary of the City's responses, Chair Tilos inquired about Nextdoor.
The Assistant City Attorney responded there are two separate Nextdoor accounts; stated
one is the Agency account, which is managed by the City's Public Information Officer and
is intended for one-way communication, although comments are allowed; records were
produced from said account since it is under the City's custody and control; these records
were in addition to providing the custodian of records of the personal Nextdoor account.
Chair Tilos inquired whether Councilmember Herrera Spencer's comments were on the
City's Nextdoor account, to which the Assistant City Attorney responded in the affirmative.
In response to Chair Tilos's inquiry, the Assistant City Attorney stated the City provided
records from the City's Nextdoor account to the Complainant; the Complainant then
stated he was not interested in the records from the City's account, but was interested in
records from the personal account.
Chair Tilos clarified the reason records were not produced from the personal account was
because the City did not have access to them.
The Assistant City Attorney concurred; stated the City produced the records from the
personal account after receiving them today.
In response to Chair Tilos's inquiry, Mr. Shabazz stated that he did not have any
expectations about the particular technology, medium or method in which the records
were maintained or retained; he asked for the correspondence and was aware of one
instance which included his name put on a crime thread; he did not know the particulars
of how the information would be obtained.
In response to Commissioner Montgomery, the Assistant City Attorney stated when
referring to the agency account, it is possible for a member of the public to comment on
it, but it is not possible for them to initiate a new post; new posts can only originate from
their own personal Nextdoor account.
Commissioner Montgomery inquired whether Mr. Shabazz requested communication
from Councilmember Herrera Spencer's own Nextdoor account as well as comments she
made under City posts.
Mr. Shabazz responded in the affirmative; stated that he requested correspondence to
and from Councilmember Herrera Spencer and comments by her on the Nextdoor
platform; he was not aware of any particular distinction between the City's account and
Councilmember Herrera Spencer's personal account.
Commissioner Montgomery stated the Commission could not access the complete
comments as only screenshots were provided; inquired whether Mr. Shabazz received
Meeting of the
Open Government Commission
December 6, 2021
3",OpenGovernmentCommission/2021-12-06.pdf
OpenGovernmentCommission,2021-12-06,4,"and was able to read the complete comments.
Mr. Shabazz responded in the negative; stated that he received two links to policies
related to elected officials usage of the Nextdoor platform, as well as a number of different
comments; he does not use Nextdoor; initially he was using a laptop and was unable to
access the application in order to read the complete comments.
In response to Commissioner Montgomery's inquiry, the Assistant City Attorney stated
there were not any more to the comments than the screenshots provided to the
Commission; only excerpts were provided; this was done because the City Attorney's
office was not clear whether or not the Complainant was requesting records from the
City's agency account; an email stating the documents were excerpts was sent asking if
the information was what was being requested before sending full documents; the
Complainant sent a response stating his request was not about the City's Nextdoor
account, but the writings of a City official discussing City business through a specific social
media platform; the City Attorney's office interpreted the statement to mean there was no
interest in additional records and why the documents remained as excerpts.
Mr. Shabazz shared his screen verifying the email correspondence with the Assistant City
Attorney.
In response to Vice Chair LoPilato's inquiry, the Assistant City Attorney stated that he
provided the excerpted documents because he was unclear at the time whether or not
the Complainant was interested in them.
Vice Chair LoPilato inquired what the City's position is on whether a social media
communication could constitute a public record.
The Assistant City Attorney responded the City's position is that there is not clear legal
authority on the issue; a number of other arguments have been raised that the
Commission should consider; the City Attorney's office believes the Commission does
not need to decide the weighty Constitutional issue, which should be dealt with by the
Legislature; there is no clear guidance; one of the practical considerations raised in
dealing with social media being a public record is a retention schedule; gave an example
of a Snapchat post which disappears immediately and cannot be saved or retained like
an email message which is retained for three years; the Commission should not be the
body to make a decision on such a difficult and weighty Constitutional issue.
In response to Chair Tilos's inquiry, the Assistant City Attorney stated for the Nextdoor
account owned, retained and maintained by the City, there is very little issue with
producing information to any requestor; what is being discussed tonight is a personal
social media account; clarified that the City is not taking the position that the post on the
City's account is not a public record.
Vice Chair LoPilato stated that she is aware an agency may rely on an employee to search
their own personal files, accounts and devices for responsive materials; inquired whether
Meeting of the
Open Government Commission
December 6, 2021
4",OpenGovernmentCommission/2021-12-06.pdf
OpenGovernmentCommission,2021-12-06,5,"the City received any confirmation that the individual custodian of records conducted such
a search when the City forwarded the request.
The Assistant City Attorney responded that he did not personally forward the request and
is not aware of a response.
Vice Chair LoPilato inquired whether any specific guidance was given to the individual
whose personal account communications were sought in terms of what would constitute
a public record in this context or was the request just forwarded.
The Assistant City Attorney responded when requests are forwarded to a custodian of
records, training is not provided on the spot; the City provides general Public Records Act
(PRA) and open government training and relies on the fact that the custodian of records
have been trained in some manner or another.
Commissioner Chen stated five years ago people would tweet without issue; then, policy
started coming through Twitter, a social media tool; she is still taken aback and questions
when tweets became policy statements; Nextdoor allows every owner of an account to
make a request of every posting they have made; she followed the instructions to do so
and was able to get all the postings she has ever made within three minutes; Nextdoor
makes it very easy for an individual to recover all their documents by a simple request.
In response to Vice Chair LoPilato's inquiry, the Assistant City Attorney stated the City's
position was that it did not have actual custody of responsive documents until recently;
the City turned over the documents once they were received; the membership agreement
states the City does not have constructive possession; the cases the City cited look to the
contract and have to do with the subcontractor as a determining factor of whether or not
the City had constructive possession; the analogy here is that since the membership
agreement states the City does not have that ability, the City cannot make the request
from Nextdoor; the City followed the California Supreme Court rulings.
Vice Chair LoPilato inquired the City's position on whether some of the comments by the
individual Councilmember, specifically a comment made on January 6, 2021 on the City's
Nextdoor account, would have constituted a public record.
The Assistant City Attorney responded as was stated one of the factors determining
whether the comment was a public record boils down to whether or not it relates to the
conduct of the people's business; the records were produced because the City felt they
were relevant; he falls back on the position already made that there is no clear guidance
until decided by a Court of competent jurisdiction that has a binding effect on the City.
Vice Chair LoPilato inquired whether there is written policy related to the use of social
media for Councilmembers and Commissioners, to which the Assistant City Attorney
responded in the negative; stated he is not aware of a social media policy.
In response to Vice Chair LoPilato's inquiry, the Assistant City Attorney stated the
Meeting of the
Open Government Commission
December 6, 2021
5",OpenGovernmentCommission/2021-12-06.pdf
OpenGovernmentCommission,2021-12-06,6,"Commission should stand by a position that they had taken in the past to the extent that
the doctrine of stare decisis applies; decision 19-02 would not be a precedent because
the issue about timeliness was not decided; it was never raised and, therefore, never
decided; the notion that the City is bound because timeliness was not previously raised
is not something the City would ever support.
Vice Chair LoPilato inquired whether the records produced were from the individual
custodian of records or from a third party, to which the Assistant City Attorney responded
they were from a third party.
Mr. Shabazz stated the email he received was from Alamedanonymous; Anonymous
Anonymous, is present at this meeting, along with Councilmember Herrera Spencer, so
it is not likely they are the same person, would suggests the records were not from the
custodian of records.
Mr. Shabazz gave a Closing Statement.
The Assistant City Attorney, City/Respondent, gave a Closing Statement.
Speakers:
Jenice Anderson, Alameda, stated the City needs a new social media policy for
Councilmembers; she does not have access and was blocked from using Nextdoor
without an appeals process; she does not know what Councilmembers are doing or the
business being conducted; other Councilmembers use Twitter, which any members of the
public can see; City officials should not be able to use the Nextdoor platform and should
be required to produce records of communications, especially if talking about
constituents.
Anonymous stated that he has no relationship to AlamedaAnonymous; he is from San
Francisco; quoted State law regarding PRAs; according to State law, the Councilmember
is a local agency and is required to produce the requested records; urged the Commission
to resolve the ambiguity in favor of public access.
Michael Devine, Alameda, stated the term doxing, a criminal act of revealing private
information through hacking or other illegal means, should not be used, as it is
inflammatory and misleading; the content posted to Nextdoor is not doxing any more than
the City releasing the same documents in a prior public records request; because the
requestor is anonymous, the source, intent or how information was acquired cannot be
questioned; the City should not have produced any documents from the anonymously
provided screenshots.
Monica Price stated the Sunshine Ordinance requires timely access to public records;
pointed out key considerations of the City of San Jose case; urged the Commission to
broadly construe that City employees using personal accounts to conduct City business
are public records.
Meeting of the
Open Government Commission
December 6, 2021
6",OpenGovernmentCommission/2021-12-06.pdf
OpenGovernmentCommission,2021-12-06,7,"Jay Garfinkle, Alameda, stated it is dismaying that the City would accept an email from
Anonymous and egregious to allow Anonymous to address the Commission; the
distinction between public record and public domain needs to be clarified; the process is
dysfunctional; the Commission should provide specific direction to City staff.
Matt Reid, Alameda, stated there are some interesting parallels with the Morris case
heard earlier this year; made comparisons between the Garfinkle and Morris cases;
stated there needs to be a better policy for training elected officials in terms of how they
behave in social media while at the same time, respecting the right to privacy; Nextdoor
is used to amplify information that is also available elsewhere; he does not think it
constitutes being disclosed under the PRA.
Alexia Arocha, Alameda, stated that she supports the Complainant; a request was made;
a timely response was not provided; response was only provided when a complaint was
made; trying to use legalese and Constitutional ambiguity is not quite accurate; a City
official discussing City issues on Nextdoor is not considered a private person; she does
not agree with the comments made about doxing or about being able to face an accuser;
this is not criminal court.
Chair Tilos summarized the complaint and suggested bifurcating the issues.
Vice Chair LoPilato stated it is abundantly clear that there was a violation in that the City
failed to respond timely; enforcing the Sunshine Ordinance statute of limitations would
only generate more complaints and disincentivise back and forth discussion between City
staff and the requestor; if the Commission has to dismiss the first claim as potentially
time-barred, a written decision should probably include a recommendation to the City
about how to deal with the issue.
Chair Tilos stated he concurs with Vice Chair LoPilato about encouraging more follow up
between City staff and requestors; he wishes that the City Attorney's office and the
Complainant could have come to a resolution before five months went by to avoid a
complaint being filed.
Commissioner Montgomery stated the case is difficult because of the time constraints for
both parties; the City did not respond timely and the Complaint was not filed within the
required time period; there should be comments regarding how it should be done in the
future.
Chair Tilos stated one of the decision options is Complaint dismissed due to jurisdictional
or procedural grounds.
In response to Commissioner Montgomery's inquiry, the Chief Assistant City Attorney
stated one option the Commission has under the newest revision of the Sunshine
Ordinance, specifically Subsection D of 2-93.2 states: the Commission may also
consider options for informal resolutions of complaint to avoid similar violations;' options
Meeting of the
Open Government Commission
December 6, 2021
7",OpenGovernmentCommission/2021-12-06.pdf
OpenGovernmentCommission,2021-12-06,8,"could include changing the Sunshine Ordinance to provide for additional time or pull the
statute of limitations to encourage discussion instead of filing a Complaint; the options
would fall in the category of informal resolution; the Commission would have the ability to
make informal, non-binding recommendations, even if a portion of the complaint is found
to be time-barred.
The City Clerk stated the issue occurred before the new system, NextRequest, was in
place; the human error of miscommunication cannot happen with NextRequest because
everything is documented in the system and nothing can fall through the cracks.
Chair Tilos stated it is nice to see improvements happening since there have been a lot
of issues with PRAs.
Commissioner Chen stated if the City did not respond in the 10 days, it is a de facto
violation whether or not anyone complains.
Commissioner Montgomery stated according to the rules and regulations, it is not on the
Complainant to keep nudging for a response.
Vice Chair LoPilato stated, as a point of order, time limits were not written into the
procedure for deliberation on Complaints; there is room for flexibility.
Chair Tilos concurred with Commissioner Montgomery's comments; stated seeing even
one friendly reminder or follow-up with the City may have avoided the complaint and
hearing.
Commissioner Chen moved approval of sustaining the Complaint without a Cure and
Correct since the City has a cure with the new software.
In response to Commissioner Chen's motion, Vice Chair LoPilato stated that she is
struggling with the fact that there is a statute of limitations in the Sunshine Ordinance; she
does not like it, especially with regard to PRAs; the Commission should frame whatever
decision is made with some acknowledgement of the statute of limitations.
The Chief Assistant City Attorney stated the Sunshine Ordinance is complaint driven and
violations are found after being raised by a complaint; the Commissioners should be
aware and guided by the statute in this case; because the City has forcefully raised the
statute of limitations argument, she highly urges the Commission to figure out a way to
address the statute of limitations and to marry it with the facts for the decision; years from
now, people may wonder how a complaint that was brought up five plus months after it
ripened into a complaint was able to be heard by the Commission; if the Commission is
inclined to find a violation, the statute of limitations should be addressed.
Commissioner Chen withdrew her motion.
In response to Chair Tilos's inquiry, the Chief Assistant City Attorney stated the
Meeting of the
Open Government Commission
December 6, 2021
8",OpenGovernmentCommission/2021-12-06.pdf
OpenGovernmentCommission,2021-12-06,9,"mechanics and administration of complaints starts with the City Clerk's office; the Clerk's
office is the recipient of the initial complaint and informs the City Attorney's office
immediately about it.
The City Clerk stated upon receipt of the complaint, she reached out to the Complainant
to see if the matter could be resolved outside of bringing it before the Commission; she
was not aware of any jurisdictional issues and was not told not to put it on the agenda;
apologized if it was an error on her part.
Chair Tilos inquired who would make the determination as to whether or not there are
jurisdictional issues and what is the process.
The City Clerk responded if it were 15 days after a meeting occurred, she would be very
clear on the date; she was not looking for a date since the Complainant had not received
a response.
Commissioner Montgomery moved approval of dismissing the complaint based on
jurisdictional grounds because of the timing.
Chair Tilos stated he would like to make a friendly amendment to the motion to include
that the Commission informally address that a violation did occur with regard to timing;
no response within 10 days.
Vice Chair LoPilato made another friendly amendment to Chair Tilos's amendment to
include a factual finding that a violation did occur based on the undisputed statements of
the parties and also include a recommendation for informal resolution of complaints
regarding PRA requests to which no response was given; the City should consider
automatically tolling the statute of limitations for PRA related complaints until the time in
which an eventual response to the request is actually provided to the requestor to allow
sufficient time for informal resolution.
In response to Commissioner Montgomery's requests for a summary of the amendments,
Chair Tilos stated that he concurs with Vice Chair LoPilato's amendments minus the
recommendation.
Vice Chair LoPilato accepted Chair Tilos's reasoning; stated the recommendation could
be included in an implementation report if the Commission is more comfortable with doing
so.
Commissioner Montgomery accepted the friendly amendments.
Chair Tilos seconded the motion, which carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Montgomery: Aye; Reid: Aye; Chair Tilos: Aye.
Ayes: 5.
***
Meeting of the
Open Government Commission
December 6, 2021
9",OpenGovernmentCommission/2021-12-06.pdf
OpenGovernmentCommission,2021-12-06,10,"Chair Tilos called a recess at 9:06 p.m. and reconvened the meeting at 9:12 p.m.
***
Chair Tilos summarized part two of the complaint regarding the City's response to the
Nextdoor issue.
Commissioner Montgomery stated she needs more clarification on what constitutes City
work as opposed to a personal statement made by a Councilmember on any social
platform.
In response to Vice Chair LoPilato's inquiry regarding whether the City of San Jose case
could be used as guidance, the Chief Assistant City Attorney stated the case law statutes
have not caught up yet with reality and social media; the City of San Jose case is
instructive, but it is not precedent in the sense that it does not address the situation here;
the Commission is trying to grapple with the issue of whether or not the private social
media of a public official is a public record; the law does not give a lot of guidance; cases
from an Appellate Court or Supreme Court in California do not exist yet; the factors
provided in the City of San Jose case evaluate whether or not certain communications
constitute public records.
Chair Tilos stated as a non-lawyer, his thought process is what could the City have
provided; he is not comfortable making a decision based on what the Chief Assistant City
Attorney's statement regarding unchartered territory; the City Attorney's office and City
Council should give the Commission guidance; the City's account is open; information
should have been provided.
Commissioner LoPilato stated the issue is an emerging legal area; the Commission
making precedent decisions regarding social media disclosures would probably be
improper; the language in the San Jose case which she cited is a bit more permissive as
to what analysis the Commission could undertake tonight; however, she thinks Chair
Tilos's comments are well taken into consideration and the Commission may not need to
go in that direction; stated there is a reference in the Assistant City Attorney's October
28th email about a record being apparent on the City's official agency account; a question
could be whether that implicit admission is a record and should have been produced
before the complaint was filed.
Chair Tilos stated that he takes timing into consideration as well; he does not want to see
complaints brought forth from three years ago; the complaint could have been triggered
sooner than five months; he understands there are a lot of moving pieces.
Vice Chair LoPilato stated that she would argue the complaint was timely; the statute of
limitations was not triggered until the requestor is informed of whether a response was
provided.
Commissioner Montgomery stated the clock does not start ticking until there is an actual
response; the Complainant did not know he could not get what he wanted until a response
Meeting of the
Open Government Commission
December 6, 2021
10",OpenGovernmentCommission/2021-12-06.pdf
OpenGovernmentCommission,2021-12-06,11,"was provided.
In response to Chair Tilos, Commissioner LoPilato stated the question is when could the
Complainant have known when they actually had a claim to bring; with Claim 1, the City
did not respond in ten days, which he knew on day 11; with Claim 2, he could not have
known that there were no responsive documents until the City told him.
Chair Tilos concurred with Vice Chair LoPilato and Commissioner Montgomery that
timeliness is not a factor and can be struck to address the social media piece.
Commissioner Chen stated the Complainant did not know until October 19th when he
received an email from the City informing him that there were no records.
Commissioner Reid stated she agrees with all Commissioners; something to discuss is
what would constitute the conduct of public business.
Chair Tilos stated if the City has its own account for blasting information to members of
the public and a public official comments, it would be considered a public record; if the
public official makes comments on a personal account, outside of the City's lane, he does
not want to make a determination about that and needs guidance.
Commissioner Montgomery stated that she is leaning towards whatever happens on
social media should be considered public record; if one Commissioner posted on a City
matter and two other Commissioners responded, the three members responding would
constitute a City meeting and be conducting City business.
In response to Chair Tilos's inquiry, Commissioner Montgomery stated discussing issues
on social media that are coming on an agenda is City business.
Chair Tilos stated that he does not want to go down the rabbit hole and make a statement
or determination about what is considered City business and what is not.
The Chief Assistant City Attorney stated that she cautions the Commission to address
what is actually in the complaint; in the communication between the Complainant and the
Assistant City Attorney, the Complainant stated he was interested in statements made in
the private social media account of Councilmember Herrera Spencer; the Commission is
being asked to decide whether or not the City, in telling the Complainant to deal directly
with Nextdoor for the information he requested, is a violation of the PRA; the question is
whether there is a requirement by the City to go to Nextdoor or do something else to get
the information for the Complainant.
Vice Chair LoPilato stated that she respects the delineation made by the Chief Assistant
City Attorney if the Commission goes in that direction; any Commission decision should
state it was upon guidance from the City Attorney's office; the Complainant believes the
communications by Councilmember Herrera Spencer on Nextdoor are subject to the
PRA; while she understands there was back and forth after the complaint was filed, she
Meeting of the
Open Government Commission
December 6, 2021
11",OpenGovernmentCommission/2021-12-06.pdf
OpenGovernmentCommission,2021-12-06,12,"is uncomfortable narrowing the scope of what is being addressed.
Chair Tilos stated the Complainant was open about wanting everything with no
delineation.
The Chief Assistant City Attorney stated she appreciates Vice Chair LoPilato's comments;
in Attachment 2 of the City's position, there is communication that the City Clerk attempted
to resolve the issue before a complaint was filed; Mr. Shabazz stated the City did not take
the next step in contacting either Nextdoor or the City official in order to get the records
he requested; his complaint stems from what he views as an insufficient effort by the City
to obtain the records.
Commissioner Chen stated that she asked the Assistant City Attorney if he asked the
custodian of records to produce any responsive records; the Assistant City Attorney said
that he asked Councilmember Herrera Spencer a day after he received the request in
April; inquired whether the City vets documents before release.
The Chief Assistant City Attorney stated in the process of evaluating and obtaining
records, the City does vet documents to make sure there is no personal information or
anything not related to City business, which would be redacted; the balance would be
disclosed.
Commissioner Chen inquired what happens if the City official does not produce records.
The Chief Assistant City Attorney responded the general rule is that the City takes the
public official at their word; if they state they do not have any responsive records, it is
permissible for the City to rely on that statement; the rule is used to address requests for
private emails and texts and does not yet apply to social media.
Commissioner Chen stated her assumption, based on the Assistant City Attorney's
response, is that there were no records to produce; if the screenshots were accurate and
could be proven, it seems the official did not present the documents.
Chair Tilos stated the accuracy of the screenshots is not in the Commission's purview.
Commissioner Chen stated if the City can obtain personal emails and texts of City
employees and officials, anything posted on social media seems to be even more broad;
with reference to the January 6, 2021 Capitol incident, a lot of social media is being used
in cases; law is formulating and social media could be considered public record in the
future.
Vice Chair LoPilato concurred with Commissioner Chen that laws relating to social media
are definitely moving in that direction; giving guidance and training to officials with a lens
on open government is valuable; comments on the City's Nextdoor account on January
6th in which Councilmember Herrera Spencer urges the public to vote on a specific
agenda item is concrete example as a record responsive to the complaint; the City had
Meeting of the
Open Government Commission
December 6, 2021
12",OpenGovernmentCommission/2021-12-06.pdf
OpenGovernmentCommission,2021-12-06,13,"access on its account and it was public record.
The Chief Assistant City Attorney inquired whether Vice Chair LoPilato's rationale for
finding a violation was that the record was not produced at the time Mr. Shabazz filed his
complaint, to which Vice Chair LoPilato responded in the affirmative, stated it does seem
like a viable basis to say there was a violation.
In response to Chair Tilos's inquiry, Commissioner Montgomery stated that she is leaning
toward sustaining the complaint; she does not feel like the Complainant received the
available documents.
Chair Tilos stated that he is leaning towards a cure and correct that the Commission
needs more guidance to interpret between public and personal accounts.
In response to Chair Tilos's inquiry, the Chief Assistant City Attorney stated there are two
different potential violations: 1) whether or not the agency posts were timely produced,
and 2) whether the City did all it could do to track down and produce the information
requested; there are potentially two separate cure and corrects; requesting guidance
would be helpful and valuable, but harder to manufacture since there are no laws yet; a
cure and correct to get agency postings is easier to fashion.
Vice Chair LoPilato stated that she likes the delineation of whether there was a violation
of the agency account versus the private account; she is prepared to make a motion;
inquired whether the reference to the City encompasses the individual official as an agent
of the City and is there a way to parse that.
The Chief Assistant City Attorney stated the question is difficult; neither party briefed the
question and she does not have either party's perspective; the complaint did not address
the violation on behalf of the individual; the violation was addressed against the City and
argues that the City did not do what it was supposed to do vis a vis the PRA and Sunshine
Ordinance; if the question is whether there could be a separate complaint against an
individual, that is not what is before the Commission now and she is reluctant to say that
could happen.
Vice Chair LoPilato stated that she is not going in that direction so much as she is hoping
to delineate that City staff did all they could do with respect to producing records given
that no records were provided to them by the individual; the clarification would be
important in order not to endorse the act of not responding to the City's request to provide
personal account information.
Chair Tilos stated the City Attorney asked the official to produce it, but the Commission
does not have teeth to enforce it.
Vice Chair LoPilato moved approval of sustaining the complaint on the basis that there
was a violation in that the City was the custodian of an agency Nextdoor account which
contained comments by a Councilmember using the Nextdoor social media platform,
Meeting of the
Open Government Commission
December 6, 2021
13",OpenGovernmentCommission/2021-12-06.pdf
OpenGovernmentCommission,2021-12-06,14,"which were responsive to the PRA request that were not produced prior to the complaint;
she would add that the Commission makes no findings whether there was a violation of
the PRA with respect to producing records from a Councilmember's personal account on
the basis that, with the evidence presented, the City took steps to obtain the records but
ultimately no analysis was able to be conducted as to whether there were any public
records.
In response to Chair Tilos's inquiry, Vice Chair LoPilato stated the reason the motion is
not concise is that the Commission needs to write the reason of decision statement, which
should include all the basis for the findings; it can be a tighter motion, but the Chief
Assistant City Attorney needs sufficient basis for the decision.
Vice Chair LoPilato moved approval of sustaining the complaint on the basis of the
violation that the City failed to produce records from the Agency Nextdoor account.
In response to Chair Tilos's inquiry regarding the cure and correct, Vice Chair LoPilato
stated the Commission could address recommendations on both issues; suggested
seeing if there is consensus on the sustained part first.
Chair Tilos stated he would be agreeable without a cure and correct.
Vice Chair LoPilato stated that she thinks there is a very specific cure and correct the
Commission could issue with respect to the finding; the cure and correct can be discussed
after everyone is aligned with the finding.
Commissioner Montgomery seconded the motion which carried by the following roll call
vote: Commissioners Chen: Aye; LoPilato: Aye; Montgomery: Aye; Reid: Aye; Chair Tilos:
Aye. Ayes: 5.
Vice Chair LoPilato stated to ensure the scope is narrow and case law is not being
manufactured, a reference should be made that the City Attorney's office referred to a
record produced on October 28th; the Commission relying on that as opposed to the
Commission making an independent finding of law as to whether or not it was a record is
significant; further recommended that the City consider maintaining an index that is
accessible to the City Clerk and City Attorney's offices of all social media accounts
maintained as an official communications channel of the City; stated the City should
evaluate whether comments should be disabled on the City account, as comments could
increase the likelihood of a Brown Act violation on a platform which appears not to be
carefully monitored by the City.
Chair Tilos concurred with Vice Chair LoPilato's statements and recommendations
Vice Chair LoPilato stated the Commission could offer up Recommendation 1 to be
included with the decision; separately, the Commission should consider practical training
that might be useful for Board members and Councilmembers, which could be done
through the implementation report and is an action the Commission should take to
Meeting of the
Open Government Commission
December 6, 2021
14",OpenGovernmentCommission/2021-12-06.pdf
OpenGovernmentCommission,2021-12-06,15,"address the issues in the complaint.
Commissioner Montgomery inquired whether the Complainant included a
recommendation for cure and correct in his complaint, to which Chair Tilos responded in
the affirmative; stated the Complainant included several cure and correct
recommendations.
Vice Chair LoPilato stated the Complainant's recommendations are on Page 14 of Exhibit
2, Respondent's Statement.
Commissioner Montgomery inquired whether the Commission addressed any of the
specific items in the statement.
Chair Tilos responded that he likes the way it is and does not want to open it up.
Vice Chair LoPilato suggested the recommendations regarding training and policies be in
a follow up report, which would be a good place to revisit and think about the
Complainant's suggestions.
Chair Tilos concurred; stated issues come back after getting feedback from the
Complainant as well as an agenda item and have public comments.
Commissioner Chen stated that she is going to fix up the report on how to improve
operations and what is needed from the City Council to help navigate new territory for
either January or February; maybe the ideas can be included.
Commissioner Montgomery stated that works for her.
Vice Chair LoPilato suggested the finding for Claim 1 include a positive statement that
the likelihood of communication errors would be resolved by the implementation of the
Next Request system.
The Chief Assistant City Attorney inquired whether there was consensus on the
recommendations or if a vote is required.
In response to Commissioner Montgomery's inquiry, the Chief Assistant City Attorney
stated there were no recommendations as part of the first finding.
Vice Chair LoPilato stated the Commission discussed the prospect of recommendations,
but agreed to table them.
The City Clerk inquired whether the direction to add a positive statement about the Next
Request system was a direction by consensus, to which Chair Tilos responded in the
affirmative.
The City Clerk stated the main recommendation for Claim 2 is the list of social media
Meeting of the
Open Government Commission
December 6, 2021
15",OpenGovernmentCommission/2021-12-06.pdf
OpenGovernmentCommission,2021-12-06,16,"accounts.
Commissioner Reid suggested pulling Item 4-B.
REGULAR AGENDA ITEMS
4-A. Minutes of the November 1, 2021 Meeting
Commissioner Chen moved approval of the minutes.
Commissioner LoPilato seconded the motion, which carried by the following roll call vote:
Commissioners Chen: Aye; LoPilato: Aye; Montgomery: Aye; Reid: Aye; Chair Tilos: Aye.
Ayes: 5.
4-B. Consider Amending the Sunshine Ordinance Complaint Form. Not heard.
STAFF UPDATE
None.
COMMISSION AGENDA REQUESTS
None.
COMMISSION COMMUNICATIONS
None.
NON-AGENDA PUBLIC COMMENT
Michael Devine, Alameda, discussed cyber bulling and Tweeting pictures of Art Garfunkle
being anti-Semitic behavior; suggested the Commission consider reversing any rulings
and dismissing Mr. Shabazz's complaint.
Anonymous stated he worked with Commissioner Reid on the complaint form and hopes
the Commission takes it on; expressed support for protecting the public's rights to access.
ADJOURNMENT
Chair Tilos adjourned the meeting at 10:30 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
Meeting of the
Open Government Commission
December 6, 2021
16",OpenGovernmentCommission/2021-12-06.pdf
OpenGovernmentCommission,2021-12-06,17,"The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
December 6, 2021
17",OpenGovernmentCommission/2021-12-06.pdf
OpenGovernmentCommission,2022-01-11,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
TUESDAY JANUARY 11, 2022 7:00 P.M.
Chair Tilos convened the meeting at 7:11 p.m.
ROLL CALL -
Present:
Commissioners Cambra, Chen, Montgomery, LoPilato
and Chair Tilos - 5. [Note: The meeting was conducted
via Zoom.]
Absent:
None.
[Staff present: Chief Assistant City Attorney Elizabeth Mackenzie;
City Clerk Lara Weisiger]
NON-AGENDA PUBLIC COMMENT
None.
COMPLAINT HEARINGS
None.
REGULAR AGENDA ITEMS
4-A. Selection of Chair and Vice Chair
In response to Commissioner Montgomery's inquiry, Chair Tilos summarized the
selection process.
Commissioner Montgomery moved approval of electing Vice Chair LoPilato as Chair and
Commissioner Chen as Vice Chair.
Chair Tilos seconded the motion, which carried by the following roll call vote:
Commissioners Cambra: Aye; Chen: Aye; LoPilato: Aye; Montgomery: Aye; Chair Tilos:
Aye. Ayes: 5.
4-B. Minutes of the December 6, 2021 Meeting
Vice Chair LoPilato outlined minor corrections.
Commissioner Chen moved approval of the minutes with the corrections.
Commissioner Montgomery seconded the motion, which carried by the following roll call
vote: Commissioners Cambra: Aye; Chen: Aye; Montgomery: Aye; Tilos: Aye; Chair
LoPilato. Ayes: 5.
Meeting of the
Open Government Commission
January 11, 2022
1",OpenGovernmentCommission/2022-01-11.pdf
OpenGovernmentCommission,2022-01-11,2,"4-C. Report to City Council on Issues Arising from Implementation of the Sunshine
Ordinance
Commissioner Chen gave a presentation.
Commissioner Montgomery moved approval of allowing five more minutes for the
presentation.
Chair Tilos seconded the motion, which carried by the following roll call vote:
Commissioners Cambra: Aye; Chen: Aye; Montgomery: Aye; Tilos: Aye; Chair LoPilato.
Ayes: 5.
Commissioner Chen completed her presentation.
Commissioner Montgomery stated the orientation packet should be moved to the success
portion of the report since she received one when she became a Commissioner.
Vice Chair LoPilato thanked Commissioner Chen for her huge undertaking in providing a
well-structured and comprehensive report; stated that she would like to add a link to the
Brown Act and Public Records Act in the Bylaw; she would like clarification about what
the Commission/staff partnership should look like.
The City Clerk stated she will add the links to the bylaws.
In response to Commissioner Chen's inquiry regarding posting the bylaws online, the City
Clerk stated the bylaws for Boards and Commissions are not typically posted, but she
would be happy to post in on the Commission's webpage.
Commissioner Chen stated she would like the bylaws to be posted online.
In response to Chair Tilos's inquiry regarding the four-year maximum term limit, Vice Chair
LoPilato stated the section regarding the term limits is from the original bylaws; it is a
piece that the Commission does not have the ability to revise since it requires City Council
action; quoted the language, a term that is concurrently linked with the service of the
appointing City Council member but in no event shall exceed four years.
""
The City Clerk stated the key language is that a single term cannot exceed four years.
Vice Chair LoPilato stated that she was wondering about development of a ten-year plan;
questioned whether problems, such as lack of continuity in institutional memory, might be
solved in a less labor-intensive way; she thinks it is a great aspirational request, but fears
it will be bumped to the bottom of the priority list given everything else staff has to do.
Commissioner Chen stated for her personally and as a resident of Alameda, it would be
Meeting of the
Open Government Commission
January 11, 2022
2",OpenGovernmentCommission/2022-01-11.pdf
OpenGovernmentCommission,2022-01-11,3,"good to have a historical document that talks about open government and democracy,
especially now; it does not have to be as detailed as an encyclopedia; people forget the
importance of open government and we are seeing the destruction of voting rights in this
Country; people do not really appreciate what it entails to have a legitimate democracy
and what should be expected from elected officials; she would like to see the City allocate
resources to the development of a document that allows people to see the background
behind the whole series of open government and Sunshine Ordinances that were passed
10 to 15 years ago and why local communities may be the last place where democracy
is still practiced; it is really important that people have a healthy respect for open
government, what it means and how they can practice it themselves.
Vice Chair LoPilato stated it is a great goal, but she is concerned that it is too big of an
ask to include in this inaugural report in terms of staff allocation and financial resources;
an alternative could be a staff/Commission partnership could prepare the report which
can then be publicized on City channels; the alternative could soften the ask if the
Commission is willing to take on some of the labor.
Commissioner Cambra stated that he would like a little more clarification regarding the
document; questioned if the intent would be that the memory of the decisions made by
the Open Government Commission (OGC) would create precedent; he understands that
it does not address the over-arching issue of democracy, but also wonders if creating a
report every year would add to the continuity of the OGC.
Commissioner Chen stated Commissioner Cambra just took her down a different path on
how the Commission adjudicates all the different cases; the Commission has no idea of
how previous cases were adjudicated, which seems like a case law issue.
Chair Tilos inquired whether the Commission should have knowledge of previous cases
or come in with a fresh set of eyes.
Commissioner Cambra responded that he thinks continuity in the decision-making
process is important so the public understands when they come before the OGC with a
complaint factually similar to a previous one, the Commission will not come to a
completely different decision; he does not want to use the word ""precedent"" as it is a legal
term; the term ""guided by"" may be more appropriate.
In response to Chair Tilos's inquiry, the City Clerk part of the recent Sunshine Ordinance
changes require all of the decisions made by the Commission be posted online; the
information is posted on the City's OGC website.
Commissioner Montgomery stated her thoughts are as the times and days change, the
Commission's ideas will change as well; she is uncertain about using past decisions as a
precedent to base decisions on; she is not totally against the suggestion as worded in the
report.
Vice Chair LoPilato stated past decisions of the OGC are also accessible to anyone in
Meeting of the
Open Government Commission
January 11, 2022
3",OpenGovernmentCommission/2022-01-11.pdf
OpenGovernmentCommission,2022-01-11,4,"the Legistar archives; she is fine with the language that the PRA report could be modeled
after this report; the bigger question is whether to make an ask about the development of
a 10-year plan or report related to the history of the Sunshine Ordinance; she does not
know if the City Council is aware that an annual report on PRAs is prepared.
In response to Vice Chair LoPilato's inquiry, the City Clerk stated the PRA report evolved
from the Commission; basically the OGC asked questions about the PRAs, wanted data,
and the information was added to the annual report; now that the City has NextRequest
which tracks the data, it will evolve again.
Commissioner Chen stated that she recalls it was former Commissioner Shabazz who
requested the PRA report; the rest of the Commission joined in the second year of the
report and it became more detailed as a result; she will include the history.
Vice Chair LoPilato stated that she is in favor of bringing a version back in February to
incorporate the Complaint Form amendments; she offered suggestions for consideration,
not so as much as line-by-line recommendations; inquired what the subcommittee sees
as the best path to ensure an efficient vote on a final report in February.
Commissioner Chen stated the report was started six months ago and keeps changing;
she would like to present a final version next month for the Commission's approval; she
appreciates all the input provided; it is aspirational to see if the City in interested in helping
to produce a more robust document.
In response to Chair Tilos's inquiry, Commissioner Chen stated that she would like to put
the report to bed to start on the next one.
The City Clerk stated any Commission suggestions should be emailed to her to forward
to Commissioner Chen.
Vice Chair LoPilato stated the Commission is doing great and is slowly learning how to
produce work product as a group on the fly; she would like to receive feedback from the
Commission on the complaint hearing in December; a lot of different issues came up;
there was discussion regarding the possibility of making a recommendation to encourage
the City consider the 15-day statute of limitations as it applies to PRA requests; inquired
whether the Commission would consider it a worthy recommendation before
Commissioner Chen puts time into it.
Commissioner Cambra stated that he supports Vice Chair LoPilato's comments regarding
the recommendation; as long as there are fruitful and productive conversations between
City staff and the requestor, it would be fine; the statute could be refined so there is a
clear point where the parties are done; requiring a meet and confer would be helpful in
the event a complainant did not want to engage with the City.
Commissioner Chen stated that she would appreciate language for the report.
Meeting of the
Open Government Commission
January 11, 2022
4",OpenGovernmentCommission/2022-01-11.pdf
OpenGovernmentCommission,2022-01-11,5,"Commissioner Cambra stated he would be happy to help prepare the language.
Vice Chair LoPilato stated as long as the Commission is framing it as encouragement for
Council and the City Attorney's office to consider; her guess as to the origin of the 15-day
statute of limitations was from the need to look forward with open meetings violations,
making sure the complaint process happens quickly and perhaps the implications on a
PRA request did not come into play; she wants to give some deference to the drafters of
the statute in case there was some brilliant reason behind it that the Commission is
missing; Commissioner Cambra's points are well taken, but it strikes her as that it
incentivizes complaints; the more ways to find informal resolutions, the better.
The City Clerk stated as part of the complaint form revision, the Commission gave
direction to include that members of the public could attend OGC meetings and raise an
issue without filing a complaint; the language is included at the top of the revised form; it
could also be placed in other places throughout so that the public knows the Commission
also exists to hear them.
Chair Tilos stated the report should be wrapped up; new comments and ideas could go
into next year's report.
Commissioner Chen stated that she will bring the best of everything back at the meeting
in February; unless there is something highly egregious, she is hoping the Commissioners
will adopt it and a new subcommittee could be set up for the next report.
Commissioner Cambra stated there was a situation at the December 6th hearing
regarding a recusal; inquired whether the Commission should address the issue or make
the Council aware; stated it has the impact of potentially having the Commission's
decision come under judicial review.
Commissioner Chen responded in an earlier iteration of the report, she included the
recusal issue asking for clarification on when it is appropriate for a Commissioner to
recuse themselves from a vote; she could put it back into the report.
Commissioner Cambra stated it would be helpful to put it back into the report so the
Council is aware; the issue is a refusal of recusal puts the entire Commission decision
potentially into question; it would be nice to have the ability to do something about it and
have an answer.
Chair Tilos concurred with Commissioner Cambra but recalls there was a reason why it
was taken out.
Vice Chair LoPilato stated her loose recollection is that there was going to be specific
training given to the Commission with respect to their roles in the adjudicatory process;
she assumes recusals would fall under the training; the City Council would most likely
defer to the City Attorney's office; perhaps the Commission could ask the Chief Assistant
City Attorney to include the issue in the upcoming training.
Meeting of the
Open Government Commission
January 11, 2022
5",OpenGovernmentCommission/2022-01-11.pdf
OpenGovernmentCommission,2022-01-11,6,"The Chief Assistant City Attorney stated training has been discussed, but was bumped
due to the number of complaints the OGC received; the City Attorney's Office and City
Clerk will discuss holding a training session to be conducted during a meeting; the
checklist of topics that are intended to be presented would include conflicts of interest,
both statutory and those defined by case law, in order to advise Commissioners of any
conflicts.
Commissioner Cambra inquired whether the Chief Assistant City Attorney is aware of any
enforcement actions for a non-recusing member of a legislative body.
The Chief Assistant City Attorney responded that she is not aware of any as she is sitting
here today; stated it is always a risk; an action taken could be invalidated because
someone who had a clear conflict of interest failed to heed the advice to recuse; if she
finds any examples, she could include it in the training.
Chair Tilos stated it is a difficult issue because the Commission does not have teeth; the
only recourse would be not to hear an item if Commissioners fear their vote could be
overturned; discussed a similar situation when he sat on the Recreation and Parks
Commission; stated Commissioners are crossing their fingers and hoping, but hope is not
a strategy; a precedent needs to be set.
Commissioner Chen stated that she has her marching orders and invited any comments
be sent to her via the City Clerk.
4-D. Consider Amending the Sunshine Ordinance Complaint Form.
The City Clerk gave a brief presentation.
Commissioner Montgomery stated that she does not quite understand the section in the
form which requires to name the person or department the complainant contacted;
inquired clarification.
The City Clerk responded the section is intended for instances when the complainant did
contact someone; proposed making the field not required to eliminate any confusion.
Vice Chair LoPilato stated a possible two-word fix would be add a parenthetical ""(if any)""
in addition to it not being required; inquired whether the last Date field on the form could
be made to auto-populate with the date it is being submitted.
The City Clerk responded in the affirmative, stated when the form comes through the
system it is time-stamped; the form can be made to auto-populate the date submitted and
the language could be changed to Filing Date for clarification.
Commissioner Chen stated that she compared the new form with the old written form;
she can see how a written form is less scary than an online form because if the
Meeting of the
Open Government Commission
January 11, 2022
6",OpenGovernmentCommission/2022-01-11.pdf
OpenGovernmentCommission,2022-01-11,7,"complainant did not contact anyone, they could just skip a section; the recommended
solutions would work.
In response to Vice Chair LoPilato's inquiry, the City Clerk stated a paper form will still be
available; the paper form would match the revised online form; everything would be
exactly the same whether it was obtained online or hard copy; based on the trends, she
highly doubts there will be many paper form submissions.
Vice Chair LoPilato inquired whether there is a word or character limit in the Describe
Alleged Violation field, to which the City Clerk responded in the negative.
Vice Chair LoPilato inquired whether the language regarding submitting ""all evidence
supporting the complaint at the time of filing"" could be revised to be more flexible to allow
complainants to provide information up to, and during, the hearing.
The Chief Assistant City Attorney responded confusion arises from the actual text of the
statute; the language is not entirely clear, but very suggestive that all evidence the
complainant will be relying upon will be included as part of the complaint; however, further
on in Section 2-93.2, the language states that during the hearing, the Commission will
provide the parties with a chance to present evidence and make arguments; in practice
and in the new complaint procedure, the Commissioners have made it clear that they
would want to hear and consider any evidence the complainant may bring up at the
hearing and do not want to put up any barriers for complainants to put their best foot
forward; one option is the entire sentence could be simplified to say: ""Please attach
relevant documents"" or ""you are not required to submit evidence, but any evidence would
be
helpful"" and provide a link to the complaint procedures; she recommends a very basic
revision with the language: ""attach relevant documents"" and end it there.
The City Clerk suggested the language ""evidence supporting your complaint should be
submitted at the time of filing; during the hearing, the Commission will provide the parties
with an opportunity to present evidence and make arguments.'
Chair Tilos stated that he is leaning more toward the simple path of ""please attach relevant
documents/evidence;"" staff could inform the complainant about the other opportunities to
present documents; it does not need to be on the form.
Commissioner Chen stated that since used the paper form when filing her complaint, she
had the impression that she could present more evidence at the hearing; she does not
want the form to dissuade a complainant from being able to add to their arguments.
The City Clerk noted the old form included the language: ""Please attach all relevant
documentation supporting your complaint. Documentation is required.
Commissioner Montgomery stated there definitely needs to be some language about
submitting any evidence that the complainant now has; she fears that on the day of the
hearing, the Commission gets swamped with pages of late material; a statement on the
Meeting of the
Open Government Commission
January 11, 2022
7",OpenGovernmentCommission/2022-01-11.pdf
OpenGovernmentCommission,2022-01-11,8,"form that guides complainants to submit what they now have would be helpful.
Chair Tilos agreed with Commissioner Montgomery's comments; stated that he has not
yet experienced being swamped with documents on the day of the hearings.
Commissioner Cambra stated that he has the same concern on both sides of the coin;
the Commission could potentially be swamped at the end, which could prejudice the other
side; civilians are looking at this; suggested language along the lines of: ""additional
information may be submitted later;"" stated City staff could encourage the complainant to
get the information in sometime before, and not on, the hearing date; the way her would
handle Commissioner Montgomery's point is that he would not be able to evaluate any
evidence submitted on the day of the hearing, which he is concerned the City would not
have the ability to defend; it is a tough call.
The Chief Assistant City Attorney stated when the City directs complainants to the new
procedure, the revised information might address the issues of providing related
documents and evidence, as well as encourage complainants to present it a certain
number of days before the hearing.
The City Clerk responded the procedure is currently posted on the website; she also
includes: 'contact the City Clerk's office with any questions,"" as she does not want anyone
to feel overwhelmed or discouraged when filing a complaint.
Vice Chair LoPilato inquired whether it is possible to embed the link to the procedures in
the complaint form; suggested adding language to encourage submitting evidence at the
time of filing along with a link to the procedures so it is clear; stated the form needs to be
road tested over time; the Commission may hear from people that the form is too legalistic
or formal; as it is now, the form include an entire section on pre-hearing submissions that
also ties the timing for submissions to the agenda timing.
Chair Tilos stated since complainants will be working with City staff, the language could
be left very basic; he likes Commissioner Cambra's language suggestion: ""additional
evidence could be submitted later.""
Commissioner Montgomery moved approval of the form with the changes suggested by
Vice Chair LoPilato.
In response to Commissioner Cambra's inquiry, the City Clerk stated the suggested
language is: ""you are encouraged to submit evidence supporting your complaint at the
time of filing"" and ""additional information for of submitting evidence. with a link to
the
procedure.
Commissioner Chen seconded the motion, which carried by the following roll call vote:
Commissioners Cambra: Aye; Chen: Aye; LoPilato: Aye; Montgomery: Aye; Chair Tilos:
Aye. Ayes: 5.
Meeting of the
Open Government Commission
January 11, 2022
8",OpenGovernmentCommission/2022-01-11.pdf
OpenGovernmentCommission,2022-01-11,9,"Commissioner Chen moved approval of the paper form matching the online form.
Commissioner Montgomery seconded the motion, which carried by the following roll call
vote: Commissioners Cambra: Aye; Chen: Aye; LoPilato: Aye; Montgomery: Aye; Chair
Tilos: Aye. Ayes: 5.
STAFF UPDATE
The City Clerk made an announcement regarding the Sunshine Ordinance training held
on December 15, 2021.
COMMISSION AGENDA REQUESTS
None.
COMMISSION COMMUNICATIONS
7-A. Communication from Commissioner Cambra
Commissioner Cambra stated that he wanted to provide his background information as
the new Commissioner and he is honored to be back on the OGC.
***
NON-AGENDA PUBLIC COMMENT
None.
ADJOURNMENT
Chair Tilos adjourned the meeting at 8:54 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
January 11, 2022
9",OpenGovernmentCommission/2022-01-11.pdf
OpenGovernmentCommission,2022-02-07,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY FEBRUARY 7, 2022 7:00 P.M.
Chair LoPilato convened the meeting at 7:01 p.m.
ROLL CALL -
Present:
Commissioners Cambra, Chen, Montgomery, Tilos and
Chair LoPilato - 5. [Note: The meeting was conducted
via Zoom.]
Absent:
None.
[Staff present: Chief Assistant City Attorney Elizabeth Mackenzie;
City Clerk Lara Weisiger]
NON-AGENDA PUBLIC COMMENT
Jay Garfinkle, Alameda, stated that he feels the Commission just rubber-stamps whatever
the City Attorney or outside counsel says; Commissioners do not have much training for
their position; discussed the First Amendment Coalition, a non-profit organization of
attorneys who are experts in the Brown Act; suggested Commissioners purchase guides;
a guide addresses the social media issue.
COMPLAINT HEARINGS
None.
REGULAR AGENDA ITEMS
4-A. Minutes of the January 11, 2022 Meeting
Commissioner Tilos moved approval of the minutes.
Commissioner Cambra seconded the motion, which carried by the following roll call vote:
Commissioners Cambra: Aye; Chen: Aye; Montgomery: Aye; Tilos: Aye; and Chair
LoPilato: Aye. Ayes: 5.
4-B. Approval of the Annual Report on Issues Arising from the Implementation of the
Sunshine Ordinance and Consider Agendizing a Discussion to Review the 30 Day
Mandatory Hearing
Chair LoPilato requested the recommendation from Commissioner Cambra be
considered separate under agenda Section 6.
Commissioner Chen gave a presentation.
***
Meeting of the
Open Government Commission
February 7, 2022
1",OpenGovernmentCommission/2022-02-07.pdf
OpenGovernmentCommission,2022-02-07,2,"Commissioner Montgomery moved approval of giving an additional 5 minutes.
Commissioner Cambra seconded the motion, which carried by the following roll call vote:
Commissioners Cambra: Aye; Chen: Aye; Montgomery: Aye; Tilos: Aye; and Chair
LoPilato: Aye. Ayes: 5.
Commissioner Chen completed her presentation.
Commissioner Montgomery inquired whether there is a report on Public Records Act
(PRA) requests.
The City Clerk responded that the Commission received a chart of the PRAs, which has
now been superseded by the new Next Request software; a demo will be done tonight
[see Item 4-D]; there is no statutory requirement for a PRA report; it was something the
Commission requested in the past.
In response to Commissioner Montgomery's inquiry, Chair LoPilato stated that she
thought the report would continue to be prepared annually; her understanding from the
City Clerk was that the report was an ad hoc response to a request from the Commission
as it is not a requirement in the Sunshine Ordinance; language in the Sunshine Ordinance
states the Commission may request a tally of records with advanced notice to the City
Clerk as opposed to it being an annual report; if Commissioners are attached to referring
to it as an annual report she will not jam up the wheels, but thinks the language could be
a little more precise.
Vice Chair Chen clarified that she made a logical assumption that the report was annual
since she joined when a second PRA report was presented; she can see that the
language is incorrect and stands corrected.
Commissioner Tilos stated he also shared the same assumption as Vice Chair Chen
since the report was presented twice consecutively; inquired whether the Commission will
be done with the Annual Report and it does not have to return again once a motion and
vote are made tonight.
The City Clerk responded in the affirmative, stated the Commission could accept all the
edits tonight and that could become the final report, it does not need to come back for
another approval without redline; she will publish and post the final report.
Vice Chair Chen stated that she will fix the end notes so that they reattach to their original
citation reference point; she is ready to move forward.
Chair LoPilato inquired what the best language would be to reference a report on PRA
requests, to which the City Clerk responded the revisions suggested should be captured;
the Commission or individual members could ask her at any time for a tally of the records
and she would be happy to produce it, especially with the Next Request system; it is easy
Meeting of the
Open Government Commission
February 7, 2022
2",OpenGovernmentCommission/2022-02-07.pdf
OpenGovernmentCommission,2022-02-07,3,"to use and members could even run the tally themselves; the Next Request
demonstration later tonight may help address and alleviate some of the Commission's
questions.
Speaker:
Jay Garfinkle, Alameda, congratulated Vice Chair Chen on the monumental task; stated
the Commission's duty is to enhance transparency of the government activities; ad hoc
committees are subject to the Brown Act; the Police study done last year should have
been open; the Commission needs to be very liberal when making recommendations to
the City Council as to what it should be doing; encouraged monthly PRA updates;
suggested Police PRAs also be reviewed by the Commission; the Commission should
define what is meant by ""private account"" regarding social media.
Commissioner Cambra stated he concurs with all the suggested edits made by Chair
LoPilato; suggested adding a brief description of ""creating a legislative affairs website"" in
addition to using the link to the Legislative Affairs for those folks who are reading a hard
copy; also suggested including the 2021 hearing results.
Vice Chair Chen stated the 2021 figures are included in the report; it is not listed in the
chart, but is included as text.
Commissioner Cambra stated there does not seem to be specific references back into
the report for the three cases listed in the appendix which occurred prior to 2021; inquired
if it would be appropriate to incorporate the data into the existing report.
Vice Chair Chen responded it due to time and COVID limitations; stated that she and
former Vice Chair Shabazz met on the phone several times to try to create the document
together; in actuality, two documents were created; the portion in the appendix was
created by former Vice Chair Shabazz without a give-and-take between the two of them;
she thought the information he had is important and worthy of being included; she decided
to include the information in an appendix with a disclaimer at the top; she is reluctant to
remove it as this is the first report and other things have happened before this report that
were not recorded anywhere in history; moving forward the report could be more precise.
Commissioner Tilos stated that he values the comments from Commissioner Cambra and
Vice Chair Chen; he believes over 80% of the message the Commission wants to convey
is in the report; he is comfortable with the report as is; there is valuable information in the
appendix and he does not want it removed; in the interest of time, he is leaning towards
the report being the final product.
Commissioner Montgomery moved approval of accepting the report with the edits.
Commissioner Tilos seconded the motion.
Under discussion, Chair LoPilato stated replacement language needs to be suggested
Meeting of the
Open Government Commission
February 7, 2022
3",OpenGovernmentCommission/2022-02-07.pdf
OpenGovernmentCommission,2022-02-07,4,"for the edits that were included as comments rather than redline.
In response to Chair LoPilato's inquiry, the City Clerk suggested changing the language
to remove the word ""annual"" and make it broader.
Chair LoPilato stated the simplest way to address the issue could be striking the word
""annual"" in the footnote and add language stating: ""to increase the scope of the staff-
produced report on PRA requests;"" inquired whether Commissioner Montgomery's does
not accept deleting the end notes.
Commissioner Montgomery responded in the affirmative, stated the end notes should not
be deleted.
Chair LoPilato re-stated the motion: to accept the report with the redline edits accepted,
including the minor language change to strike the term ""annual"" and to reincorporate the
end notes.
In response to Chair LoPilato's inquiry, Commissioner Cambra stated he would make a
friendly amendment to add a brief descriptive passage regarding the legislative affairs
website so long as it does not further the discussion.
On the call for the question, the motion carried by the following roll call vote:
Commissioners Cambra: Aye; Chen: Aye; Montgomery: Aye; Tilos: Aye; and Chair
LoPilato: Aye. Ayes: 5.
4-C. Accept the Annual Report
The City Clerk gave a brief presentation.
In response to Chair LoPilato's inquiry, the City Clerk stated an error in the report was
caught by the Chief Assistant City Attorney; she will make sure the corrected version is
posted.
Chair LoPilato inquired if it would be possible to hyperlink to the actual final decision in
the disposition column of the report, to which the City Clerk responded in the affirmative.
In response to Chair LoPilato's inquiry on how the ""relief sought"" column is characterized,
the Chief Assistant City Attorney responded the she and the City Clerk drafted the report
and chart jointly; ""relief sought"" is the only phrase used in the Sunshine Ordinance; in the
interest of space and using a chart format, the ""relief sought"" is just a truncated version
of how each complainant's filing is distilled; there is no specific process followed other
than to try to have an accurate snap shot of the relief being sought by each complainant.
Chair LoPilato stated that she was curious about whether there might be an adjustment
or footnote to the final column for the complaint heard December 6th regarding the
custodian of records for the NextDoor PRA request.
Meeting of the
Open Government Commission
February 7, 2022
4",OpenGovernmentCommission/2022-02-07.pdf
OpenGovernmentCommission,2022-02-07,5,"In response to the Chief Assistant City Attorney's inquiry, Chair LoPilato stated the global
question is does the statutory language indicate that there should be a level of specificity
about who potential custodians are or is that referring more to the location of records that
were produced.
The Chief Assistant City Attorney stated that her understanding is the final column is
supposed to relate to where any records, if they exist, are housed in the City.
The City Clerk stated that she concurs with the Chief Assistant City Attorney; the specific
language is: ""the location of all records relevant to each complaint held by the City;"" if
records not housed in the City are not list.
Vice Chair Chen stated if she can get all the data used for the bar chart and the data from
2021, she could do a new bar chart for the report and fulfill Commissioner Cambra's wish.
The City Clerk stated a motion and vote to approve the report was already done and
would have to be reopened if Vice Chair Chen wants to make additional amendments.
Vice Chair Chen stated she will leave it alone.
Commissioner Montgomery moved approval of accepting the annual report.
Commissioner Chen seconded the motion.
In response to Vice Chair Chen's inquiry, the City Clerk stated she will upload the correct
version that includes the Scott Morris case and will be the official report.
In response to Chair LoPilato's inquiry, the City Clerk read the section that was missing
in the version of the report included in the packet.
In response to Vice Chair Chen's inquiry regarding the dates, the City Clerk stated the
Scott Morris case was filed in May of 2020, but not heard until April 2021, which is noted
by an asterisk and footnote.
Chair LoPilato stated that she would like to make a friendly amendment to add a hyperlink
in the disposition column of the report to the actual OGC final decision for each complaint.
Commissioner Montgomery accepted the friendly amendment.
On the call for the question, the motion carried by the following roll call vote:
Commissioners Cambra: Aye; Chen: Aye; Montgomery: Aye; Tilos: Aye; and Chair
LoPilato: Aye. Ayes: 5.
4-D. Update on Public Records Act (PRA) Requests
Meeting of the
Open Government Commission
February 7, 2022
5",OpenGovernmentCommission/2022-02-07.pdf
OpenGovernmentCommission,2022-02-07,6,"The City Clerk gave a demonstration of the PRA software, NextRequest.
Commissioner Cambra moved approval of extending the time for the City Clerk to finish
her presentation.
Commissioner Montgomery seconded the motion which carried by the following roll call
vote: Commissioners Cambra: Aye; Chen: Aye; Montgomery: Aye; Tilos: Aye; and Chair
LoPilato: Aye. Ayes: 5.
***
The City Clerk finished her presentation.
In response to Chair LoPilato's inquiry, the City Clerk stated there is no vote needed on
the item; the update is for information only.
Vice Chair Chen inquired whether the NextRequest software increased the number of
requests and what that number is.
The City Clerk responded the Next Request launched in August so it is difficult to do a
comparison from last year yet; the PRA tallies are based on the calendar year, not the
fiscal year; it will be interesting to see how much requests have increased after the year.
Commissioner Cambra inquired whether there is a help feature in NextRequest, to which
the City Clerk responded in the affirmative; stated all of the FAQ and Help options are
always available at the bottom of each webpage; the Clerk's office is happy to help as
well.
Commissioner Montgomery stated she is impressed by NextRequest and cannot wait to
check it out.
Vice Chair Chen inquired whether Mr. Garfinkle's statement that an in-person meeting
between a Commissioner and a Councilmember would not be subject to the PRA is
correct.
The Chief Assistant City Attorney responded if a written record of a meeting, such as in
a City-maintained calendar, is requested, it could be subject to and produced under the
PRA; Mr. Garfinkle referred to the content of the discussion, which would not be subject
to a PRA request.
Chair LoPilato stated that she echoes Commissioner Montgomery's sentiment that
NextRequest is a cool system; the update was helpful to see how the tallies and statistics
are available for everyone.
In response to Chair LoPilato's inquiry regarding Police Department tallies, the City Clerk
stated the OGC process of going through the City Clerk's office would be the same and
Meeting of the
Open Government Commission
February 7, 2022
6",OpenGovernmentCommission/2022-02-07.pdf
OpenGovernmentCommission,2022-02-07,7,"she would be happy to put requests through for individual members or the Commission.
In response to Chair LoPilato's inquiry, the City Clerk stated her office does not actually
receive a tally from the Housing Authority (HA) since they are a completely separate
agency; HA results have never been tallied or shown to the Commission; from time to
time, the Clerk's office receives PRA requests for the HA which are forwarded; the one
really nice thing about the internal end of the system is that staff gets reminder emails
about when requests are due before they are due; it is great at keeping staff on track;
once growing pains are smoothed out, the system will be extremely efficient.
Vice Chair Chen stated because the HA was listed as an agency that needs to follow the
Brown Act, complaints need to go directly to them; inquired whether the OGC has any
jurisdiction over complaints filed against the HA for Brown Act violations.
The City Clerk responded that the City Council makes appointments to the Housing
Authority Board of Commissioners (HABOC), but the HA itself is a separate agency; the
City contracts with the HA for some services and requests for those records, such as rent
program records, have been produced through the City; other than that, there is very little
overlap.
Vice Chair Chen clarified her question, inquired whether a violation of the Brown Act by
a HABOC member be considered a violation under the Sunshine Ordinance.
The City Clerk responded the HABOC is appointed subject to the Health and Safety
codes, so it is a different code; the HABOC is not included in the Municipal Code.
STAFF UPDATE
The Chief Assistant City Attorney announced Commission training would be done at the
March meeting as long as no complaints are filed.
In response to Commissioner Cambra's inquiry, the Chief Assistant City Attorney stated
staff is developing the syllabus which will include topics that have come up over the past
year, including issues that have been raised and conflicts of interests; it is a public
meeting so the public will be able to attend.
In response to Chair LoPilato's inquiry, the Chief Assistant City Attorney stated any
Commissioner can email her directly with suggested topics prior to the training.
Chair LoPilato inquired if nothing else planned for March, would the training bump to April.
The Chief Assistant City Attorney inquired whether Chair LoPilato is suggesting bumping
the training to April if there is no business in March.
Chair LoPilato stated she was just throwing it out there that the Commission does not
need to meet every month since there were 10 meetings last year.
Meeting of the
Open Government Commission
February 7, 2022
7",OpenGovernmentCommission/2022-02-07.pdf
OpenGovernmentCommission,2022-02-07,8,"to make sure he interpreted the statute correctly; the options are discussion points and
recommendations the Commission could consider.
The Chief Assistant City Attorney stated that she would like to reserve any substantive
discussion for the next meeting; it would be a bit premature for her to start rendering
opinions; as a broad-brush assessment, she read Commissioner Cambra's comments
and thought the topic could be discussed at a future meeting.
In response to Chair LoPilato's inquiry, Commissioner Cambra stated that he prefers to
keep it broad so that each of the Commissioners would have an opportunity to be creative
and suggest things; he wants to make sure everyone understands the statutory scheme
and the Commission's authority versus Council's authority.
Vice Chair Chen moved approval of agendizing a discussion of the statutory hearing
dates at a future meeting.
Commissioner Montgomery seconded the motion.
Under discussion, Commissioner Tilos inquired about Commissioner Cambra's timeline.
Commissioner Cambra responded he is not married to having it on the March agenda.
Commissioner Tilos stated that he would like to make a friendly amendment to have the
item agendized after March.
Vice Chair Chen stated her motion was for a future meeting; if the training is scheduled
in March and would only take one hour, the item could take only a half hour to be done
rather than waiting until April or May.
Chair LoPilato offered a substitute friendly amendment to add: ""at the next scheduled
Meeting of the
Open Government Commission
February 7, 2022
8",OpenGovernmentCommission/2022-02-07.pdf
OpenGovernmentCommission,2022-02-07,9,"meeting""
The City Clerk clarified that Chair LoPilato is saying ""at the next scheduled meeting when
there are other agenda items already planned"".
Chair LoPilato inquired whether the amendment to motion is acceptable, to which Vice
Chair Chen responded in the affirmative.
On the call for the question, the motion carried by the following roll call vote:
Commissioners Cambra: Aye; Chen: Aye; Montgomery: Aye; Tilos: Aye; and Chair
LoPilato: Aye. Ayes: 5.
COMMISSION COMMUNICATIONS
Commissioner Chen stated it is the Year of the Tiger and wished everyone a Happy Lunar
New Year.
NON-AGENDA PUBLIC COMMENT
None.
ADJOURNMENT
Chair LoPilato adjourned the meeting at 8:54 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
February 7, 2022
9",OpenGovernmentCommission/2022-02-07.pdf