{"body": "OpenGovernmentCommission", "date": "2015-03-30", "page": 1, "text": "MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING\nMONDAY MARCH 30, 2015 7:00 P.M.\nChair Aguilar convened the meeting at 7:06 p.m.\nROLL CALL -\nPresent:\nCommissioners Dieter, Foreman, and Chair Aguilar - 3.\nAbsent:\nCommissioners Bonta, Tuazon - 2.\nORAL COMMUNICATIONS, NON-AGENDA\nNone.\nAGENDA ITEMS\n3-A. Minutes of the February 2, 2015 Meeting\nChair Aguilar stated there were a couple places in the meeting minutes said Vice Mayor\nwhich should say Commissioner and the Sunshine Ordinance should be capitalized,\nin\na few places.\nVice Chair Foreman moved approval of the minutes as amended.\nCommissioner Aguilar seconded the motion, which carried by unanimous voice vote - 3.\n3-B. Potential Revisions to the Sunshine Ordinance\nAssistant City Attorney Roush gave a brief presentation outlining the changes in the\nredlined version of the Sunshine Ordinance.\nVice Chair Foreman stated that he was the one who raised the issue; he is satisfied with\nthe changes.\nCommissioner Dieter thanked the Assistant City Attorney for the layout of the revisions;\nstated it is easier to follow.\nThe Assistant City Attorney continued the presentation.\nCommissioner Dieter stated that she has problems with Section 2-91.17; the title is:\n\"Public Comment by Members of Policy Bodies;\" in general, the Section is not about\npublic comment by policy bodies; it is about individuals, which led her to reread this\nclause again; she expressed concern at the last meeting and continues to have the\nsame concern; the issue is not a sunshine issue; the role and limitations of boards and\ncommissions is spelled out in the Charter; the last sentence which addresses appointed\npolicy bodies should be deleted.\nMeeting of the\nOpen Government Commission\nMarch 30, 2015\n1", "path": "OpenGovernmentCommission/2015-03-30.pdf"}
{"body": "OpenGovernmentCommission", "date": "2015-03-30", "page": 2, "text": "Vice Chair Foreman concurred; stated the Section should be deleted it in its entirety;\nthat he does not need to be told he has a constitutional right to speak out; he does not\nknow why the Section would be in the Sunshine Ordinance; everyone has the right to\nspeak out as individuals as long as long as speaking for themselves; boards and\ncommissions have the right to speak out as a body even if disagreeing with Council; the\nonly control Council should have is to relieve members of duties; the Section does not\nadd anything.\nChair Aguilar sated the Section is not just indicating members have a constitutional right\nto speak out; inquired if Vice Chair Foreman wants to remove the entire Section, to\nwhich Vice Chair Foreman responded in the affirmative.\nChair Aguilar inquired if Commissioner Dieter want to remove the last sentence, to\nwhich Commissioner Dieter responded in the affirmative.\nVice Chair Foreman read the Section; stated if Council disagrees with a Commission on\nsomething the only right is what they have in the Charter, to relieve members of duties;\nthat he does not have any idea what the second sentence accomplishes; in the next\npart simply restates what is in the Charter; he does not see a purpose served by any of\nit.\nCommissioner Dieter stated that she does not mind having everybody know that they\ncan speak out for themselves; she does not have a problem reminding folks that just\nbecause they are on a board or commission does not mean they do not have a voice in\nthe community; what she does have a problem with is telling policy bodies that they\ncannot take a position that contradicts a policy or decision of the City Council, which is\nthe opposite of the intent of Boards and Commissions that exist to advise Council; for\ninstance, if the City Council decides not to implement bus rapid transit on the West End\nand the Transportation Commission strongly opposes the position, they should have a\nright to address or send a letter to the City Council; the whole purpose of Boards and\nCommissions is to advise even if it against what the City Council deems fit.\nVice Chair Foreman stated as a compromise, he would not have any problem with\nleaving in the first sentence through \"Section 2-91-6(e)\" and leaving out the next\nsentence: \"Policy bodies shall not sanction, remove or deprive members of the rights;\"\nhe does not know what purpose the language serves; he does want to deprive the City\nCouncil from criticizing members any more than he wants to deprive any member from\ncriticizing the City Council; he would take the sentence out altogether and leave in the\npart about the City Charter even though it is just restated; he would take out the\nsentence prohibiting formal action; stated the first sentence should stay in, the second\nsentence should be deleted, the third underlined sentence should stay in, and the final\nsentence should be deleted.\nCommissioner Dieter stated she had no problem with the Vice Chair Foreman's\nrecommendation.\nMeeting of the\nOpen Government Commission\nMarch 30, 2015\n2", "path": "OpenGovernmentCommission/2015-03-30.pdf"}
{"body": "OpenGovernmentCommission", "date": "2015-03-30", "page": 3, "text": "Chair Aguilar stated that she is not sure why the second sentence is included; she\nhesitates because the ordinance has gone through a committee and was accepted by\nthe City Council; she is a hesitant to just start deleting things; stated she does not know\nthat she would necessarily take out the sentences.\nIn response to Commissioner Dieter's inquiry about the last sentence, Chair Aguilar\nstated the language is new.\nIn response to Commissioner Dieter's further inquiry, Chair Aguilar responded the\nsecond sentence is being discussed.\nCommissioner Dieter stated in order to reach a compromise she does not mind keeping\nthe language in, as long as that last sentence about policy bodies is removed.\nVice Chair Foreman stated that he does not have a problem with said suggestion; the\nsecond sentence is meaningless to him; drafters work can be respected; however, he\nquestions why is the ordinance being reviewed if so much respect is given that the\nCommission cannot improve it; he respects her view and would agree to keep\neverything except the new sentence.\nChair Aguilar inquired if the Assistant City Attorney added the last sentence for a\nreason.\nThe Assistant City Attorney responded in the affirmative; provided an example of the\nCity Council adopting a particular policy and a Commission writing a letter to an outside\nagency that not necessarily contradicted what the Council had done, but certainly raised\nan issue; there was some concern expressed at the Council meeting about whether or\nnot Commissions should do so; there is not an adopted Council policy concerning the\nmatter; the Section would address the matter, which does not have to be in the\nSunshine Ordinance; the City Council could adopt a standalone policy; the Sunshine\nOrdinance seems an appropriate place to put it, is not necessarily the only place it has\nto go; if the Commission feels the matter might be better addressed somewhere else\nthen staff will take that recommendation.\nCommissioner Dieter stated raising the matter with Council is a good idea; that she\nrecalls the letter was to the Mayor, not an outside agency; the City Council can address\nthe policy, but she would not want to make it part of the Sunshine Ordinance.\nThe Assistant City Attorney stated that he drafted the language so it would not apply to\na Commission writing to the Council; it is directed to an outside agency or organization.\nChair Aguilar stated that is what it says.\nCommissioner Dieter stated the language achieves prohibiting appointed policy bodies\nfrom writing letters to outside agencies or organizations that contradicts a Council policy\nMeeting of the\nOpen Government Commission\nMarch 30, 2015\n3", "path": "OpenGovernmentCommission/2015-03-30.pdf"}
{"body": "OpenGovernmentCommission", "date": "2015-03-30", "page": 4, "text": "or position, but when broadened other formal actions and activities could be constituted\nas all different situations.\nVice Chair Foreman suggested taking the suggested position that it is an inappropriate\nrevision to the Sunshine Ordinance.\nThe Assistant City Attorney stated Council could take up the matter as a separate item;\ninquired if the approach is acceptable, to which the Commissioners responded in the\naffirmative.\nThe Assistant City Attorney continued the presentation.\nVice Chair Foreman stated his position last time about Section 2-92.6 was that it should\nnot be included; the more he reviews it, the stronger he feels that it should not be\nincluded; if it is going to be included, it should not be under Section 2-92.6 which has to\ndo with records; it should be moved to Section 2-91.18; he did research on the City\nemployee issue; the term City employee is better; public employee could be somebody\nwho works for the County, federal government or State; a City employee, under case\nlaw, can speak out on a matter of public concern other than his/her duties; speaking\npursuant to official duties does not allow first amendment protection; provided an\nexample: a Police Officer talking about the new fire station, which is not part of his\nduties, has protection; however, if what the Officer says is knowingly or recklessly false\nor if it makes it impossible for him to carry out his duties, he is not protected; inquired\nwhether the interpretation is generally right.\nThe Assistant City Attorney responded in the affirmative; stated the difficulty is trying to\ndistinguish between is the person speaking within his or her official duties or if the\nmatter is really of public concern; it is a very slippery slope.\nVice Chair Foreman stated it is a very slippery slope, which is why he thinks the Section\nshould not be included; stated there should not be any reference to a City Board,\nCommission or Committee, which is already covered.\nChair Aguilar noted it does not [have any such reference].\nVice Chair Foreman read the first sentence; provided the argument he would use if he\nwere representing an employee; stated the employee can say anything he/she wants to\nsay and there is nothing the City can do about it; he knows that is not the intent; the\ninformation belongs in an employee handbook.\nCommissioner Dieter stated the Section does piggyback on the other Section just\ndiscussed; roles and responsibilities of policy bodies or City employees do not seem\nappropriate for a Sunshine Ordinance because the whole purpose of the Sunshine\nOrdinance is to make government more transparent and give people access to their\ngovernment; to include what people are not allowed to do it is a fine line; the clause\nMeeting of the\nOpen Government Commission\nMarch 30, 2015\n4", "path": "OpenGovernmentCommission/2015-03-30.pdf"}
{"body": "OpenGovernmentCommission", "date": "2015-03-30", "page": 5, "text": "says: \"so as long as an opinion does not materially misrepresent the position of the\nCity;\" inquired how the clause is tested.\nChair Aguilar responded there is case law.\nCommissioner Dieter provided an example of the City Clerk and City Manager giving\ndifferent information resulting in an employee being fired; stated understanding this part\nof the Sunshine Ordinance is a little difficult.\nVice Chair Foreman stated it is a balancing act, is very complicated and is based on the\nindividual facts in each case, which is another reason it is a bad idea; he does not have\na problem with including the Section for Commission members because they have an\nabsolute unfettered first amendment right subject to only being relieved of their duties;\nhowever, employee do not have the same right and he does not want to mislead\nemployees or put the City in a position of giving an employee more rights.\nThe Assistant City Attorney stated the Commission is really dealing with policy issues;\ndealing with policy bodies could be moved; the Section on employees can be removed\nentirely or moved to Section 2-91.\nVice Chair Foreman moved approval of recommending that this provision be deleted.\nCommissioner Dieter inquired how does this clause make government more\ntransparent, to which the Assistant City Attorney responded the City Clerk's recollection\nwas that the Section was included so that employees understand they have the ability to\nhave their voices heard in front of policy bodies without worrying about being\ndisciplined; Commissioners should be to so as well as long as they do not materially\nmisrepresent their body.\nCommissioner Dieter inquired whether when the public sees a Board or Commission\nmember speak, they are not doing anything wrong and it is their right, to which Vice\nChair Foreman responded Board members are not being discussed; the discussion is\nabout city employees.\nThe Assistant City Attorney stated there are two parts to Section 2-92.6: one deals with\npublic employees and the other deals with members of a policy body; there are reasons\nfor including both.\nVice Chair Foreman inquired whether the Assistant City Attorney deleted some of the\nSection, to which the Assistant City Attorney responded in the affirmative; stated he\nseparated the two.\nChair Aguilar stated the first portion deals with city employees and the second portion\ndeals with policy bodies.\nMeeting of the\nOpen Government Commission\nMarch 30, 2015\n5", "path": "OpenGovernmentCommission/2015-03-30.pdf"}
{"body": "OpenGovernmentCommission", "date": "2015-03-30", "page": 6, "text": "Vice Chair Foreman inquired whether policy bodies are being discussed, to which the\nAssistant City Attorney responded before, the Section dealt with both employees and\nadvisory policy bodies; stated that he was trying to be true to the previous work but\nseparate the Sections because different standards apply to employees and policy body\nmembers.\nVice Chair Foreman stated if the Section is moved after the Section that covers boards,\nit is totally confusing; there is one Section on policy bodies and another Section on\npolicy bodies and employees; the Section on policy bodies repeats the previous\nSection.\nCommissioner Dieter stated the matter should be in an employee handbook; as\nsomebody who has gathered signatures for petitions, she has often heard City\nemployees say they cannot sign; there is a misconception that employees do not have\nthe right to speak out; employees should be told what they can and cannot do when\nthey are hired; she understands what Vice Chair Foreman is saying.\nCommissioner Dieter stated that she would second the motion as long as the\nCommission is clear that City employees should be made aware what they can and\ncannot do when they are hired.\nVice Chair Foreman amended his motion to recommend that the Section be deleted\nfrom the Sunshine Ordinance and that the employee handbook include a Section which\nexplains to employees under what circumstances they are allowed to speak out on\nmatters.\nCommissioner Dieter seconded the motion.\nChair Aguilar agreed with the motion.\nThe Assistant City Attorney noted the sentence dealing with appointed policy bodies\nhas already been adequately covered in the previous Section.\nOn the call for the question, the motion carried by unanimous voice vote - 3. [Absent:\nCommissioners Bonta and Tuazon - 2.]\nThe Assistant City Attorney continued the presentation on the definition of meeting.\nVice Chair Foreman discussed the prior Commission unanimous vote on adopting the\nBrown Act language; stated even though the structure of the ordinance's definition of\nmeeting is different than the structure of the Brown Act, it basically says the same thing;\nthe only real substantive exception being the last sentence of 2-91.1(b)(4)(C), which is\nmore restrictive as to what meetings would not be subject to the Brown Act.\nThe Assistant City Attorney responded the Section does not specifically track the Brown\nAct; if anything the Sunshine Ordinance is slightly more restrictive than the Brown Act.\nMeeting of the\nOpen Government Commission\nMarch 30, 2015\n6", "path": "OpenGovernmentCommission/2015-03-30.pdf"}
{"body": "OpenGovernmentCommission", "date": "2015-03-30", "page": 7, "text": "Vice Chair Foreman inquired whether [the Sunshine Ordinance is more restrictive]\nsimply on the issue on you a meeting cannot be held in a place charging admission, to\nwhich the Assistant City Attorney responded in the affirmative.\nVice Chair Foreman stated Section 2-91.1(b)(4)(C) is not in the Brown Act; in respect to\nwhat Chair Aguilar said about not wanting to turn the language inside out, he would say\nto use the existing language; at the same time, he is very concerned about using\ndifferent language because using different language there is always the possibility that\nsome word splitting lawyer is going to say there is a difference; suggested adding a\nparenthetical after \"meeting shall mean anything of the following\" which reads: \"this\ndefinition is intended to be synonymous with meeting as defined in the Brown Act,\nexcept for Section 2-91.1(b)(4)(C) which is intended to be more restrictive than the\nBrown Act:\" then it would be crystal clear that the same thing is meant.\nThe Assistant City Attorney stated the language can be added if it is the direction of the\nCommission.\nChair Aguilar inquired if it is meant to be synonymous; stated it is very similar\nVice Chair Foreman responded the Assistant City Attorney stated it is synonymous.\nThe Assistant City Attorney stated the Brown Act covers more things that are not\nconsidered meetings; there are a couple of additional items; the fact that the Sunshine\nOrdinance does not cover everything does not mean the City does not have to observe\nboth the Brown Act and the Sunshine Ordinance, whichever is more restrictive; all the\nexceptions to meetings are not covered; it is okay to indicate that there is a particular\nSubsection that, while it intended to paraphrase what is in the Brown Act, is more\nrestrictive; a parenthetical can be added.\nVice Chair Foreman moved that the parenthetical be added at the beginning of the\ndefinition of the term meeting.\nCommissioner Dieter seconded the motion, which carried by unanimous voice vote - 3\nThe Assistant City Attorney continued the presentation\nVice Chair Foreman stated he has the same issue with regard to policy body which is in\nthe same Section.\nThe Assistant City Attorney stated that he assumes Vice Chair would want to add a\nparenthetical that policy bodies shall mean legislative bodies.\nThe Vice Chair stated that he would add a parenthetical that the definition of the term\npolicy body tends to be synonymous with the term legislative body in the Brown Act; the\npurpose is that policy body is thought to be more descriptive.\nMeeting of the\nOpen Government Commission\nMarch 30, 2015\n7", "path": "OpenGovernmentCommission/2015-03-30.pdf"}
{"body": "OpenGovernmentCommission", "date": "2015-03-30", "page": 8, "text": "Chair Aguilar stated she does not have the Brown Act in front of her so she does not\nknow if legislative body and policy body are synonymous.\nThe Assistant City Attorney responded they are; stated that he is surmising that if the\nterm legislative body had been used, people might be confused that it is just the City\nCouncil and not advisory bodies, so policy bodies was used instead; if agreeable to the\nCommission, a definition of policy bodies could be added because he is not sure if it is\ndefined.\nVice Chair Foreman stated it is defined.\nChair Aguilar stated it is Subsection 2-91.1(b)(3).\nVice Chair Foreman stated all it would say is the term is intended to be synonymous\nwith the term legislative body as defined in the Brown Act; stated using policy bodies\nwas a good idea; all bodies are not legislative bodies; policy bodies is smarter.\nVice Chair Foreman moved approval of the change stated.\nCommissioner Dieter seconded the motion, which carried by unanimous voice vote - 3\nThe Assistant City Attorney inquired whether the Commission wants to make a motion\nto adopt all the changes, including the changes made tonight; stated an overall motion\nshould be made to take forward to the Council.\nCommissioner Dieter moved approval of recommending to City Council the adoption of\nthe changes that have been approved tonight and previously.\nVice Chair Foreman seconded the motion, which carried by unanimous voice vote - 3\nCOMMISSION COMMUNICATIONS\nCommissioner Dieter stated the Commission is supposed to report to the City Council at\nleast once a year in writing on any practical or policy problems encountered; read the\nSection of the Ordinance; inquired how the Commission plans on doing so; stated\nperhaps staff wants to bring back a proposal on how to accomplish doing so; the\nCommission only meets twice a year; she is not sure if it is possible for the Commission\nto write an annual report; the Sunshine Ordinance says that the Open Government\nCommission shall review public notices to ensure that they conform to the requirements\nof this article and work to improve publicly accessible information; under said clause,\nthe Commission is not only supposed to be a reactive body, but is supposed to be\nproactive to make sure that government is achieving its goal of transparency; it is up to\nthe Commission to monitor said sorts of things and come back and report if anything\ncould be improved upon; the City Council deserves to know the Commission is doing\nright and where improvements can be made, which requires the Commissioners to work\nMeeting of the\nOpen Government Commission\nMarch 30, 2015\n8", "path": "OpenGovernmentCommission/2015-03-30.pdf"}
{"body": "OpenGovernmentCommission", "date": "2015-03-30", "page": 9, "text": "independently outside of meetings; perhaps the City Attorney can help out; inquired if\nCommissioners should raise issues under Communications or do as agenda items;\nfurther inquired does it have to be formal or can it be informal; stated it is something for\nthe Commissioners to think about; if the Commission really want to do its job well,\nCommissioners have to do something while not here sitting at the dais.\nIn response to Vice Chair Foreman inquiry, Commissioner Dieter stated the\nCommissioners would look at City Council and Planning Board agendas and see if titles\ndo not meet the muster of what people can understand.\nVice Chair Foreman stated that he understands the suggestion; questioned how do to\ndo so as a Commission; do members take turns reviewing agendas or review them as a\ngroup; stated he does not know how to do it; stated the next Council meeting could be\nassigned to a Commissioner.\nChair Aguilar inquired in perpetuity, to which Commissioner Dieter responded the\nOrdinance says the Open Government Commission shall review public notices.\nVice Chair Foreman stated that he can see doing it reactivity when a complaint is\nreceived from someone who says an item was not properly noticed.\nChair Aguilar stated that is what has been done in the past; when there is a complaint,\nthe Commission addresses it; that she does not know if there has been any formal\ncomplaints; one came up and was withdrawn; the Commission has to think about what\nthe Section means because the Commission only meets twice a year; both the bylaws\nand the Sunshine Ordinance require meeting twice a year.\nCommissioner Dieter stated that she did not set up meeting twice a year so she does\nnot know how that happened; the requirement is in the Sunshine Ordinance so the\nCommission needs to know how to accomplish it; that she tends to look at City Council\nagendas anyway so for her it is no big deal; however, when all the Commissioners\nsigned on, this is what the Ordinance includes as a duty.\nVice Chair Foreman stated Commissioners can informally review agendas; inquired\nwhat a Commissioner would do if an agenda is reviewed and there is a problem.\nCommissioner Dieter stated that she does not know; inquired if the matter should be\nbrought back under Communications.\nThe Assistant City Attorney stated if Commissioners see items which do not provide the\nkind of information that would be most helpful to the public to understand what is being\ndiscussed, the item could be noted to find whether there is a pattern; the Chair could\nwork with the City Clerk and the matter could added as an agenda item; the item could\nbe addressed by the Commission to determine whether or not there is a need to make a\nrecommendation to the Council that there needs to be some direction to clean up the\nmatter; the City Attorney's office strives to make sure that what is on the agenda\nMeeting of the\nOpen Government Commission\nMarch 30, 2015\n9", "path": "OpenGovernmentCommission/2015-03-30.pdf"}
{"body": "OpenGovernmentCommission", "date": "2015-03-30", "page": 10, "text": "translates to the public; Commissioner could review agenda and making notes if there is\nan issue that needs to be addressed.\nChair Aguilar stated Commissioners should save examples and inform her and the City\nClerk to have the matter agendized for the next meeting.\nVice Chair Foreman inquired get what agendized, to which Chair Aguilar responded the\nissue; whatever the issue is that comes up.\nThe Assistant City Attorney provided an example of half a dozen items occurring\nbetween now and December; when Commissioners discover items, they should notify\nthe Chair and the City Clerk to create a running tab and get a scope of the problem.\nChair Aguilar stated the Commission would see whether there is just one item or\nseveral, if it global or something particular; the discussion is just hypothetical.\nCommissioner Dieter stated the Ordinance says to work to improve publically\naccessible information; inquired whether that is another thing or part of this.\nChair Aguilar responded it would be a part of the matter.\nCommissioner Dieter stated she talked to the Assistant City Attorney; on the website,\nwhen a meeting is canceled giving the reason would be nice, such as lack of a quorum\nor lack of business; for example, that would be helpful to the public; another issue is it is\nhard to find Rent Review Advisory Committee agendas on the City website.\nVice Chair Foreman stated maybe said matters ought to be included in the annual\nreport.\nCommissioner Dieter stated the Commission has to meet to create the annual report.\nVice Chair Foreman stated the annual report is a good idea.\nThe Assistant City Attorney stated the Ordinance amendments could be included as\npart of the annual report; if other items come to Commissioners' attention that should be\nincluded in the report, the City Clerk and City Attorney know; a report will be drafted for\nthe Commission to review and make changes or additions; something can be presented\nin October that can then be put into final form and sent to the City Council.\nVice Chair Foreman inquired if the Commissioners would individually do so, to which\nthe Assistant City Attorney responded in the affirmative; stated the Commission can\ndecide whether or not items should be included in the annual report.\nCommissioner Dieter stated the suggestion sounds like a great plan.\nMeeting of the\nOpen Government Commission\nMarch 30, 2015\n10", "path": "OpenGovernmentCommission/2015-03-30.pdf"}
{"body": "OpenGovernmentCommission", "date": "2015-03-30", "page": 11, "text": "The Assistant City Attorney stated staff can put something together and the\nCommission can review it to decide what to include.\nCommissioner Dieter stated there are two clauses in the Sunshine Ordinance that she\ndoes not know if it has ever been adhered to or enforced: 1) the City Attorney shall\nsemi-annually make a determination about whether any closed session minutes should\ncontinue to be exempt from disclosure based on whether the disclosure would be\ndetrimental to the City; 2) the City Attorney's office shall prepare and present on the City\nCouncil Consent Calendar a list of documents which have determined to be public after\npreviously being determined to be unavailable; the Commission should hear whether or\nnot documents have been declassified at the next meeting.\nThe Assistant City Attorney stated that he would find out and bring back a report.\nADJOURNMENT\nThere being no further business, Chair Aguilar adjourned the meeting at 9:25 p.m.\nRespectfully submitted,\nIrma Glidden\nAssistant City Clerk\nThe agenda for this meeting was posted in accordance with the Sunshine Ordinance.\nMeeting of the\nOpen Government Commission\nMarch 30, 2015\n11", "path": "OpenGovernmentCommission/2015-03-30.pdf"}