body,date,page,text,path
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