body,date,page,text,path
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