body,date,page,text,path
OpenGovernmentCommission,2020-11-16,1,"MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY
NOVEMBER 16, 2020
7:00 P.M.
Chair Schwartz convened the meeting at 7:04 p.m.
ROLL CALL -
Present:
Commissioners Little, Pauling, Tilos and Chair
Schwartz - 5. [Note: The meeting was conducted via
Zoom.]
Absent:
None.
[Staff present: Chief Assistant City Attorney Michael Roush, Assistant
City Attorney John Le, Attorney James Harrison; and City Clerk Lara
Weisiger]
Oral Communications
Jay Garfinkle, Alameda, stated that he was concerned about the way the Commission
functions; that he was told he could only submit a complaint via oral communication; he
is frustrated the October meeting was cancelled and there is lack of coordination;
requested clarification on first and second readings of ordinances.
The City Clerk stated that she explained to Mr. Garfinkle that since he was not submitting
a Sunshine Ordinance complaint, his matter could go before the Commission under Oral
Communications; when he filed a complaint, which was later withdrawn and then refiled,
it was past the deadline.
Chair Schwartz stated that Mr. Garfinkle could file a complaint or submit a letter prior to
the next meeting if he wishes; the October meeting cancelation was not as a decision of
the Commission and he shares the frustration.
Regular Agenda Items
3-A. Minutes of the Meeting Held on August 3, 2020
Chair Schwartz stated he would like to strike the part where Commission members were
joking about ear injection technology; clarified a sentence to state why ""an item could not
be added.""
The City Clerk noted the changes.
Commissioner Shabazz moved approval of the minutes.
Commissioner Little seconded the motion which carried by the following roll call vote:
Commissioners Little: Aye; Pauling: Aye; Shabazz: Aye; Tilos: Aye; Chair Schwartz: Aye.
Ayes: 5.
Meeting of the
Open Government Commission
November 17, 2020
1",OpenGovernmentCommission/2020-11-16.pdf
OpenGovernmentCommission,2020-11-16,2,"3-B. Discuss and Provide Recommendations Concerning Potential Amendments to
Article VIII (Sunshine Ordinance) of Chapter Il (Administration) of the Alameda Municipal
Code, as Amended, to Replace ""Null and Void"" Remedy.
The Chief Assistant City Attorney stated what is being presented tonight is in response to
the Commission's comments and recommendations; the City Attorney's office did hire
outside counsel, James Harrison, as requested by the Commission to review the proposal
put forth by Paul Foreman; Mr. Harrison has provided comments which were incorporated
in the agenda report; the item is intended to provide the Commission with the opportunity
to respond to what staff has presented; further comments or amendments will be
considered and moved forward to the City Council.
In response to Commissioner Shabazz's inquiry, Chair Schwartz stated Mr. Harrison is
outside Counsel from Olson Remcho hired by the City Attorney's office.
Chair Schwartz stated it appears the chief authorities cited against the Commission's
proposal to add teeth to the Sunshine Ordinance, being cited by the City Attorney's office
and its outside counsel for the notion that the Commission's proposal would violate the
principle of ""non-delegation,"" are a case from 1904 (when 10% of Alameda was 600
people) - where, unlike today, sending back an ordinance would have cost two years -
and another case, from over 50 years ago.
Chair Schwartz inquired whether the cases are the chief authorities, to which the Chief
Assistant City Attorney responded in the affirmative.
Chair Schwartz inquired whether when drafting the recommendation the Chief Assistant
City Attorney read the June OGC minutes when the Commission discussed their
recommendations for over an hour, to which the Chief Assistant City Attorney responded
in the affirmative.
Chair Schwartz stated City Attorney staff weighed in on independent legal counsel even
though it was not an issue the Commission put forward; inquired why it was included.
The Chief Assistant City Attorney responded it was included as a response to Mr.
Foreman's proposal; stated it was a good idea to address all his concerns.
The Assistant City Attorney stated that he understands that Chair Schwartz felt the issue
did not need to advance; he went back to listen to the recording and it was actually part
of the motion.
Chair Schwartz stated that he does not believe that is correct, but now it explains why
staff had a different understanding; his impression was that part was not recommended
by the Commission.
Meeting of the
Open Government Commission
November 17, 2020
2",OpenGovernmentCommission/2020-11-16.pdf
OpenGovernmentCommission,2020-11-16,3,"Chair Schwartz inquired whether Mr. Harrison did not find any cases within the last 50
years which prohibit a commission from sending an ordinance back to Council for further
review.
Mr. Harrison responded in the affirmative; stated the Commission certainly has power to
make recommendations; he is not aware of any cases that would preclude making
recommendations.
Chair Schwartz inquired whether any cases preclude a supermajority requirement in
certain instances; for example, to reject the recommendation of a City's appointed
Commission.
Mr. Harrison responded as to said point, they were relying on the City's Charter which
specifies that the Council takes action by a vote of three members unless the Charter
specifies a different threshold.
Chair Schwartz stated the Charter does not say anything about this particular situation
where an appointed Commission makes a recommendation to City Council regarding the
voting quorum that is necessary.
Mr. Harrison stated the Charter specifies that Council action occurs by a vote of three
members unless the Charter specifies elsewhere; he would not expect to find anything in
the Charter because in the absence of anything else, three votes are required.
Chair Schwartz inquired whether the Charter has any instances where it allows for a
supermajority vote, to which Mr. Harrison responded in the affirmative; stated in cases of
urgency ordinances, a four-fifths vote is required, which is in Section 3-12 of the Charter.
Chair Schwartz inquired whose responsibility is it to approve a Charter provision; gave
the example of the Commission recommending to the City Council that a supermajority
be required to adopt something against the recommendation of the Commission to
reagendize the matter; inquired whether the City Council could vote to adopt that as an
amendment to the Charter.
Mr. Harrison responded Charter amendments would have to be placed on a ballot and
approved by the voters.
In response to Chair Schwartz inquiry regarding the non-delegation notion, Mr. Harrison
stated he indirectly relied on the Charter in the sense that it provides that the City Council
carries out all legislative powers of the City, with the exception of the powers of initiative
and referendum.
Commissioner Little stated the language is confusing; it appears there is a third proposal
of a compromise between the Knox White and the Foreman proposals, which is not
recommended by special counsel; inquired whether Mr. Harrison is special counsel and
as such, does not recommend the compromise.
Meeting of the
Open Government Commission
November 17, 2020
3",OpenGovernmentCommission/2020-11-16.pdf
OpenGovernmentCommission,2020-11-16,4,"Mr. Harrison responded he is special counsel and did draft the third proposal; in doing so,
they noticed it also raises several issues or practical concerns, particularly in light of the
fact that if the City Council were unable to act in whatever period of time required at the
Commission's order could have the effect of undoing City Council action, which raises the
concern expressed with respect to the non-delegation doctrine and the provision that the
City Council has full legislative authority.
Commissioner Little stated the Commission tried to bring forward something that would
prevent ending up in the same situation as before, which was that the City moved forward
with a second reading and in the meantime a complaint had been made before the second
reading went through and nothing paused; the Commission put forward language so as
not to be in the same position and that the Commission did not have the authority to go
back and make something null and void; every option the Commission has brought
forward seems to be fairly well rejected, except for the Knox White proposal, which in her
opinion does not really afford the Commission its teeth; it does not feel satisfactory to just
say the City Council can proceed as usual and there are no real consequences to pause
the process; questioned what is the point of a Sunshine Ordinance and an Open
Government Commission if it does not have authority.
The Chief Assistant City Attorney stated that he looks at the Knox White proposal as
accomplishing what the Commission is after; it does indicate there would be a pause in
the process and would allow the matter to be returned to the body which the Commission
has found to be in violation of the ordinance and would allow that decision to be reviewed
further; both Mr. Foreman's and Mr. Harrison's proposals still run into the problem that
existed in the ordinance concerning non-delegation; the City Attorney's office has a
different view about what the authority of Commission should be and are prepared to take
forward to the Council the Commission's recommendation; the City Attorney's office is in
the position to give the Commission the best legal advice; the Commission is not bound
to accept it; what has been presented is the most legally defensible.
Chair Schwartz stated fundamentally, the City Attorney disagrees with what the
Commission is trying to put forward; his understanding of why there was a very long pause
to move something forward was because the City Attorney's office was going to give back
to the Commission an essentially formalized version of what the Commission wanted to
put forward; that was what the Commission was told and that is why there was so much
time spent debating each item; he does not think presenting the Knox White proposal as
something the Commission wanted is right; the Commission adopted a different proposal
that was more along the lines of Mr. Foreman's proposal; the problem is going around
and around for years trying to see that the Sunshine Ordinance has some teeth and the
City Attorney has been pushing back; it seems none of the Commission's actions or votes
have any bearing and the City Attorney's office comes back with a proposal that is
explicitly what the Commission has rejected rather than sending what the Commission
proposed to the City Council; suggested forming a subcommittee of the Commission to
put forward a proposal consistent with what the Commission voted on in June since the
City Attorney is not going to put that forward; stated both the Commission and the City
Meeting of the
Open Government Commission
November 17, 2020
4",OpenGovernmentCommission/2020-11-16.pdf
OpenGovernmentCommission,2020-11-16,5,"Attorney can present proposals to the Council and allow Council to decide; in his opinion,
the Council will be deciding whether or not to have teeth in the Sunshine Ordinance and
a real transparent legislative process; what Council has said months ago was that they
adopted the City Attorney opinion that a null and void provision usurped the legislative
process, but they still wanted real teeth in the ordinance; the Commission's proposal
would do that; he disagrees that there is anything unlawful about it; suggested forming a
subcommittee to put forth the Commission's proposal to the City Council; stated
undoubtedly, the Council will also have the considered opinions of the City Attorney.
Commissioner Shabazz expressed his appreciation to Commissioner Little about
confusion in the language; stated the current proposal does not meet the criteria of putting
teeth back into the Sunshine Ordinance; inquired whether staff will still bring a proposal
forward to the City Council for approval even if the Commission declines to move forward
with it.
The Chief Assistant City Attorney responded staff would bring forth any proposal the
Commission approves, either through a subcommittee or other process; depending on
what the proposal says, he cannot say whether or not the City Attorney's office would
recommend it, which is not an unusual situation for Commissions; without knowing
precisely what the Commission may come up with, the City Attorney's office cannot say
whether or not they would recommend it; it is fair to say if it involves a delegation issue,
the City Attorney's office would not be in a position to recommend it because it is not
authorized by the Charter; people can disagree, but Council will make the ultimate
decision.
Commissioner Shabazz stated that he appreciates the legal analysis; there is a desire to
have something substantive to replace what was lost with the removal of null and void;
depending on where people may be, maybe move to recommend the Foreman proposal
to the City Council.
Commissioner Tilos stated there are two different battles; whatever the Commission
drafts will likely not be recommended by the City Attorney's office; if the Commission goes
directly to the Council, they will probably not approve it either; it is an uphill battle both
ways; the question becomes which battle to choose: the endless two year circle of
rewriting a proposal to get endorsement from the City Attorney's office or go directly to
Council just to be rejected.
Chair Schwartz stated it is a real concern, but does not necessarily have to go that way;
it will be a different Council and a different moment; after the Council asked specifically
to put teeth back into the ordinance and the Commission comes back with something that
does so, it is something different than straight null and void; the arguments that were
raised by the City Attorney which gave the City Council pause about an absolute null and
void do not have the same force with respect to the proposal the Commission has already
agreed and voted on; the Commission is not nullifying or usurping any legislative function
of the Council, which is the argument the Council made; the Commission has to be true
and decide what is best for transparency; the Commission was charged with putting teeth
Meeting of the
Open Government Commission
November 17, 2020
5",OpenGovernmentCommission/2020-11-16.pdf
OpenGovernmentCommission,2020-11-16,6,"back into the ordinance and does not feel the choice is simply between doing whatever
the City Attorney tells the Commission to do and failure; there is a middle path, which is
coming up with a proposal that takes into account the various legal advice but also stays
true to the objective of putting teeth into the ordinance.
Commissioner Pauling stated that she shares the frustration and certain degree of
confusion about what has been expressed already; there has to be a way to have a
process that forces a real pause and requires proper notice; it seems the only definition
needed is if and what constitutes an urgent time factor; she would like some boundaries;
she concurs with Chair Schwartz's recommendation regarding a subcommittee to actually
come forward with teeth and an approach for how that would be defined; the most
important thing is that if there is not proper notice, the matter should be stopped and re-
noticed; short of a life-threatening emergency, that is what should happen.
In response to Commissioner Pauling's inquiry, the City Clerk stated Commissioner
Pauling's term will end on December 15th when the new Councilmembers are sworn in; a
report is taken to the Council at the first meeting in January to inform the public of the
new appointees.
Commissioner Pauling stated she is happy to help in any way she can, but her time is
limited.
Chair Schwartz stated he would be happy to see a subcommittee recommendation before
December 15th.
Chair Schwartz moved approval to not adopt the recommendation of the Knox White
proposal and instead appoint a subcommittee to make a recommendation, consistent with
what the Commission recommended at the June meeting, before December 15th
Commissioner Pauling seconded the motion.
Under discussion, Commissioner Shabazz inquired whether a person has to be a
Commissioner to be on the subcommittee.
The Chief Assistant City Attorney responded in the affirmative; stated by definition a
person would need to be on the Commission in order to be on the subcommittee; it would
be up to the subcommittee to allow a non-commissioner as a subcommittee member.
The City Clerk stated, for timing purposes, the next regular meeting of the Commission is
December 7th and the agenda packet would need to go out on November 30th; the latest
potential meeting date is December 14th, but the packet would need to go out December
2nd because of the new 12-day publication for special meetings.
Chair Schwartz stated the subcommittee could make its recommendation by December
15th; if it is not done, the Commission could vote at a later meeting if necessary.
Meeting of the
Open Government Commission
November 17, 2020
6",OpenGovernmentCommission/2020-11-16.pdf
OpenGovernmentCommission,2020-11-16,7,"meeting.
The Assistant City Attorney stated the proposal that was recommended by the
Commission is not based on minutes, it is based on a motion from the Commission on
the Foreman proposal which is clearly outlined in redline form; if the Commission is
moving in the direction of a subcommittee, there should be some concrete direction to
that subcommittee vis-à-vis the motion that is made by the Commission concerning the
Foreman proposal; he is not sure if the Commission still supports the Foreman proposal
as modified by the Commission or is the charge to create something completely new; that
ought to be part of the motion as well.
Chair Schwartz stated he hears what the Assistant City Attorney is saying but it was not
unclear that the idea of the subcommittee is to write a proposal that is consistent with
what the Commission recommended at the June; identifying the subcommittee members
can be done as part of the motion or after Commissioners agree there should be a
subcommittee.
The Chief Assistant City Attorney stated the charge of the subcommittee is sufficiently
clear and the motion should proceed to see if there is support for a subcommittee, decide
who will be on it, and go from there.
Meeting of the
Open Government Commission
November 17, 2020
7",OpenGovernmentCommission/2020-11-16.pdf
OpenGovernmentCommission,2020-11-16,8,"On the call for the question, the motion carried by the following roll call vote:
Commissioners Little: Aye; Pauling: Aye; Shabazz: Aye; Tilos: Aye; Chair Schwartz: Aye.
Ayes: 5.
In response to Chair Schwartz's inquiry, Commissioner Pauling stated she is interested
in being in the subcommittee with the understanding that she will step down from the
Commission on December 15th
Commissioner Tilos inquired whether the subcommittee plans to present the proposal to
the full Commission for a vote on December 7th, to which Chair Schwartz responded in
the affirmative; stated the full Commission presenting the proposal to the Council would
carry more weight, as the Chief Assistant City Attorney stated.
In response to Commissioner Pauling's inquiry, the City Clerk reiterated the report
deadlines of November 30th and December 2nd
In response to Chair Schwartz' inquiry regarding whether Commissioner Little would like
to be on the subcommittee, Commissioner Little stated there can only be two members
from the Commission so as not to violate the Brown Act; inquired whether a
Councilmember or other body could be asked to participate.
The Chief Assistant City Attorney stated once you start expanding the membership, there
is a risk of the subcommittee becoming a policy body which would need the 12-day
noticing; if it is simply kept as an ad hoc committee, it would be classified as a passive
body under the Sunshine Ordinance and can meet without the strict requirements.
Chair Schwartz inquired whether the Commission would be amenable to him and
Commissioner Pauling serving on the subcommittee.
Commissioner Pauling stated because she has only been on the Commission for a year,
she is willing to allow someone who has more experience to serve; she is happy to
contribute, but also happy to step aside if any of the other Commissioners are interested.
Commissioner Little stated although the OGC is near and dear to her, she is gearing up
and focused on her new role as a School Board Member.
Commissioner Tilos stated he has full confidence that Chair Schwartz has a good idea of
what everyone on the Commission wants to convey to the Council.
Commissioner Shabazz stated he concurs with Commissioner Tilos and is confident in
Chair Schwartz and Commissioner Pauling making it happen; he appreciates how Chair
Schwartz has conveyed the Commission's concerns multiple times with passion and
looks forward to what they will be bring forward.
Meeting of the
Open Government Commission
November 17, 2020
8",OpenGovernmentCommission/2020-11-16.pdf
OpenGovernmentCommission,2020-11-16,9,"becoming Chair and Commissioner Shabazz as Vice Chair.
Chair Schwartz seconded the motion.
Under discussion, Commissioner Shabazz inquired what goals Commissioner Tilos has
regarding being Chair.
Meeting of the
Open Government Commission
November 17, 2020
9",OpenGovernmentCommission/2020-11-16.pdf
OpenGovernmentCommission,2020-11-16,10,"Commissioner Tilos responded that he would like to see the Sunshine Ordinance carry
through and have the current Commission's voices heard on December 7th so that there
will be something showing the Commission's voices brought to Council; his goal for the
next few meetings would be to bring the two new Commissioners up to speed; then, to
continue to address any current and future public complaints; regarding Commissioner
Shabazz's ideas, he would also like to bring more transparency to the Commission and
more public access; these are issues he would focus on in the upcoming term and next
few months.
The Chief Assistant City Attorney left the meeting for a family matter.
Commissioner Shabazz stated Alameda is an interesting place; he is currently applying
to several doctorate programs outside of the Bay Area; if he does attend a program in the
Bay Area, he will stay in Alameda; he can accept the Vice Chair position with the
understanding he may not be in Alameda in 2022.
Under call for the question, the motion carried by the following roll call vote:
Commissioners Little: Aye; Pauling: Aye; Shabazz: Aye; Tilos: Aye; Chair Schwartz: Aye.
Ayes: 5.
Commission Communication
Commissioner Little expressed her thanks to the Commissioners for making her time on
the Commission interesting, fulfilling and exciting; stated the Commission demonstrates
the ability to set aside personal agendas in order to do what is best for the City, the people,
and the various other bodies that come before the OGC; thanked everyone for the
wonderful opportunity in her first role of government service.
The City Clerk expressed her appreciation for Commissioner Little's service; noted
Commissioner Little served on a subcommittee that tackled a lot of issues and put in a lot
of hard work for the Commission; it is sad to see her go; wished her great success on the
School Board.
Chair Schwartz stated that he appreciated the opportunity to serve as Chair and it has
been a great pleasure to serve with everyone; echoed Commissioner Little's comments
on the ability for everyone to agree on the fundamental mission; he looks forward to
working with the new members.
Commissioner Pauling stated that she wished she could have served with Commissioner
Little longer on the Commission and wished her the best.
Commissioner Shabazz expressed his appreciation and congratulations to Commissioner
Little; thanked Commissioner Pauling for stepping in and serving on the Commission;
stated that he has been in touch with the League of Women Voters regarding the Public
Records Act workshop; gave a shout out to the Youth Activists of Alameda for their
Instagram video explaining how City Council meetings work.
Meeting of the
Open Government Commission
November 17, 2020
10",OpenGovernmentCommission/2020-11-16.pdf
OpenGovernmentCommission,2020-11-16,11,"Adjournment
Commissioner Shabazz moved approval of adjourning the meeting.
Commissioner Little seconded the motion.
Commissioner Shabazz withdrew his motion since a motion is not needed.
The meeting was adjourned at 8:18 p.m.
Respectfully submitted,
Lara Weisiger
City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.
Meeting of the
Open Government Commission
November 17, 2020
11",OpenGovernmentCommission/2020-11-16.pdf