{"body": "OpenGovernmentCommission", "date": "2020-11-16", "page": 1, "text": "MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING\nMONDAY\nNOVEMBER 16, 2020\n7:00 P.M.\nChair Schwartz convened the meeting at 7:04 p.m.\nROLL CALL -\nPresent:\nCommissioners Little, Pauling, Tilos and Chair\nSchwartz - 5. [Note: The meeting was conducted via\nZoom.]\nAbsent:\nNone.\n[Staff present: Chief Assistant City Attorney Michael Roush, Assistant\nCity Attorney John Le, Attorney James Harrison; and City Clerk Lara\nWeisiger]\nOral Communications\nJay Garfinkle, Alameda, stated that he was concerned about the way the Commission\nfunctions; that he was told he could only submit a complaint via oral communication; he\nis frustrated the October meeting was cancelled and there is lack of coordination;\nrequested clarification on first and second readings of ordinances.\nThe City Clerk stated that she explained to Mr. Garfinkle that since he was not submitting\na Sunshine Ordinance complaint, his matter could go before the Commission under Oral\nCommunications; when he filed a complaint, which was later withdrawn and then refiled,\nit was past the deadline.\nChair Schwartz stated that Mr. Garfinkle could file a complaint or submit a letter prior to\nthe next meeting if he wishes; the October meeting cancelation was not as a decision of\nthe Commission and he shares the frustration.\nRegular Agenda Items\n3-A. Minutes of the Meeting Held on August 3, 2020\nChair Schwartz stated he would like to strike the part where Commission members were\njoking about ear injection technology; clarified a sentence to state why \"an item could not\nbe added.\"\nThe City Clerk noted the changes.\nCommissioner Shabazz moved approval of the minutes.\nCommissioner Little seconded the motion which carried by the following roll call vote:\nCommissioners Little: Aye; Pauling: Aye; Shabazz: Aye; Tilos: Aye; Chair Schwartz: Aye.\nAyes: 5.\nMeeting of the\nOpen Government Commission\nNovember 17, 2020\n1", "path": "OpenGovernmentCommission/2020-11-16.pdf"}
{"body": "OpenGovernmentCommission", "date": "2020-11-16", "page": 2, "text": "3-B. Discuss and Provide Recommendations Concerning Potential Amendments to\nArticle VIII (Sunshine Ordinance) of Chapter Il (Administration) of the Alameda Municipal\nCode, as Amended, to Replace \"Null and Void\" Remedy.\nThe Chief Assistant City Attorney stated what is being presented tonight is in response to\nthe Commission's comments and recommendations; the City Attorney's office did hire\noutside counsel, James Harrison, as requested by the Commission to review the proposal\nput forth by Paul Foreman; Mr. Harrison has provided comments which were incorporated\nin the agenda report; the item is intended to provide the Commission with the opportunity\nto respond to what staff has presented; further comments or amendments will be\nconsidered and moved forward to the City Council.\nIn response to Commissioner Shabazz's inquiry, Chair Schwartz stated Mr. Harrison is\noutside Counsel from Olson Remcho hired by the City Attorney's office.\nChair Schwartz stated it appears the chief authorities cited against the Commission's\nproposal to add teeth to the Sunshine Ordinance, being cited by the City Attorney's office\nand its outside counsel for the notion that the Commission's proposal would violate the\nprinciple of \"non-delegation,\" are a case from 1904 (when 10% of Alameda was 600\npeople) - where, unlike today, sending back an ordinance would have cost two years -\nand another case, from over 50 years ago.\nChair Schwartz inquired whether the cases are the chief authorities, to which the Chief\nAssistant City Attorney responded in the affirmative.\nChair Schwartz inquired whether when drafting the recommendation the Chief Assistant\nCity Attorney read the June OGC minutes when the Commission discussed their\nrecommendations for over an hour, to which the Chief Assistant City Attorney responded\nin the affirmative.\nChair Schwartz stated City Attorney staff weighed in on independent legal counsel even\nthough it was not an issue the Commission put forward; inquired why it was included.\nThe Chief Assistant City Attorney responded it was included as a response to Mr.\nForeman's proposal; stated it was a good idea to address all his concerns.\nThe Assistant City Attorney stated that he understands that Chair Schwartz felt the issue\ndid not need to advance; he went back to listen to the recording and it was actually part\nof the motion.\nChair Schwartz stated that he does not believe that is correct, but now it explains why\nstaff had a different understanding; his impression was that part was not recommended\nby the Commission.\nMeeting of the\nOpen Government Commission\nNovember 17, 2020\n2", "path": "OpenGovernmentCommission/2020-11-16.pdf"}
{"body": "OpenGovernmentCommission", "date": "2020-11-16", "page": 3, "text": "Chair Schwartz inquired whether Mr. Harrison did not find any cases within the last 50\nyears which prohibit a commission from sending an ordinance back to Council for further\nreview.\nMr. Harrison responded in the affirmative; stated the Commission certainly has power to\nmake recommendations; he is not aware of any cases that would preclude making\nrecommendations.\nChair Schwartz inquired whether any cases preclude a supermajority requirement in\ncertain instances; for example, to reject the recommendation of a City's appointed\nCommission.\nMr. Harrison responded as to said point, they were relying on the City's Charter which\nspecifies that the Council takes action by a vote of three members unless the Charter\nspecifies a different threshold.\nChair Schwartz stated the Charter does not say anything about this particular situation\nwhere an appointed Commission makes a recommendation to City Council regarding the\nvoting quorum that is necessary.\nMr. Harrison stated the Charter specifies that Council action occurs by a vote of three\nmembers unless the Charter specifies elsewhere; he would not expect to find anything in\nthe Charter because in the absence of anything else, three votes are required.\nChair Schwartz inquired whether the Charter has any instances where it allows for a\nsupermajority vote, to which Mr. Harrison responded in the affirmative; stated in cases of\nurgency ordinances, a four-fifths vote is required, which is in Section 3-12 of the Charter.\nChair Schwartz inquired whose responsibility is it to approve a Charter provision; gave\nthe example of the Commission recommending to the City Council that a supermajority\nbe required to adopt something against the recommendation of the Commission to\nreagendize the matter; inquired whether the City Council could vote to adopt that as an\namendment to the Charter.\nMr. Harrison responded Charter amendments would have to be placed on a ballot and\napproved by the voters.\nIn response to Chair Schwartz inquiry regarding the non-delegation notion, Mr. Harrison\nstated he indirectly relied on the Charter in the sense that it provides that the City Council\ncarries out all legislative powers of the City, with the exception of the powers of initiative\nand referendum.\nCommissioner Little stated the language is confusing; it appears there is a third proposal\nof a compromise between the Knox White and the Foreman proposals, which is not\nrecommended by special counsel; inquired whether Mr. Harrison is special counsel and\nas such, does not recommend the compromise.\nMeeting of the\nOpen Government Commission\nNovember 17, 2020\n3", "path": "OpenGovernmentCommission/2020-11-16.pdf"}
{"body": "OpenGovernmentCommission", "date": "2020-11-16", "page": 4, "text": "Mr. Harrison responded he is special counsel and did draft the third proposal; in doing so,\nthey noticed it also raises several issues or practical concerns, particularly in light of the\nfact that if the City Council were unable to act in whatever period of time required at the\nCommission's order could have the effect of undoing City Council action, which raises the\nconcern expressed with respect to the non-delegation doctrine and the provision that the\nCity Council has full legislative authority.\nCommissioner Little stated the Commission tried to bring forward something that would\nprevent ending up in the same situation as before, which was that the City moved forward\nwith a second reading and in the meantime a complaint had been made before the second\nreading went through and nothing paused; the Commission put forward language so as\nnot to be in the same position and that the Commission did not have the authority to go\nback and make something null and void; every option the Commission has brought\nforward seems to be fairly well rejected, except for the Knox White proposal, which in her\nopinion does not really afford the Commission its teeth; it does not feel satisfactory to just\nsay the City Council can proceed as usual and there are no real consequences to pause\nthe process; questioned what is the point of a Sunshine Ordinance and an Open\nGovernment Commission if it does not have authority.\nThe Chief Assistant City Attorney stated that he looks at the Knox White proposal as\naccomplishing what the Commission is after; it does indicate there would be a pause in\nthe process and would allow the matter to be returned to the body which the Commission\nhas found to be in violation of the ordinance and would allow that decision to be reviewed\nfurther; both Mr. Foreman's and Mr. Harrison's proposals still run into the problem that\nexisted in the ordinance concerning non-delegation; the City Attorney's office has a\ndifferent view about what the authority of Commission should be and are prepared to take\nforward to the Council the Commission's recommendation; the City Attorney's office is in\nthe position to give the Commission the best legal advice; the Commission is not bound\nto accept it; what has been presented is the most legally defensible.\nChair Schwartz stated fundamentally, the City Attorney disagrees with what the\nCommission is trying to put forward; his understanding of why there was a very long pause\nto move something forward was because the City Attorney's office was going to give back\nto the Commission an essentially formalized version of what the Commission wanted to\nput forward; that was what the Commission was told and that is why there was so much\ntime spent debating each item; he does not think presenting the Knox White proposal as\nsomething the Commission wanted is right; the Commission adopted a different proposal\nthat was more along the lines of Mr. Foreman's proposal; the problem is going around\nand around for years trying to see that the Sunshine Ordinance has some teeth and the\nCity Attorney has been pushing back; it seems none of the Commission's actions or votes\nhave any bearing and the City Attorney's office comes back with a proposal that is\nexplicitly what the Commission has rejected rather than sending what the Commission\nproposed to the City Council; suggested forming a subcommittee of the Commission to\nput forward a proposal consistent with what the Commission voted on in June since the\nCity Attorney is not going to put that forward; stated both the Commission and the City\nMeeting of the\nOpen Government Commission\nNovember 17, 2020\n4", "path": "OpenGovernmentCommission/2020-11-16.pdf"}
{"body": "OpenGovernmentCommission", "date": "2020-11-16", "page": 5, "text": "Attorney can present proposals to the Council and allow Council to decide; in his opinion,\nthe Council will be deciding whether or not to have teeth in the Sunshine Ordinance and\na real transparent legislative process; what Council has said months ago was that they\nadopted the City Attorney opinion that a null and void provision usurped the legislative\nprocess, but they still wanted real teeth in the ordinance; the Commission's proposal\nwould do that; he disagrees that there is anything unlawful about it; suggested forming a\nsubcommittee to put forth the Commission's proposal to the City Council; stated\nundoubtedly, the Council will also have the considered opinions of the City Attorney.\nCommissioner Shabazz expressed his appreciation to Commissioner Little about\nconfusion in the language; stated the current proposal does not meet the criteria of putting\nteeth back into the Sunshine Ordinance; inquired whether staff will still bring a proposal\nforward to the City Council for approval even if the Commission declines to move forward\nwith it.\nThe Chief Assistant City Attorney responded staff would bring forth any proposal the\nCommission approves, either through a subcommittee or other process; depending on\nwhat the proposal says, he cannot say whether or not the City Attorney's office would\nrecommend it, which is not an unusual situation for Commissions; without knowing\nprecisely what the Commission may come up with, the City Attorney's office cannot say\nwhether or not they would recommend it; it is fair to say if it involves a delegation issue,\nthe City Attorney's office would not be in a position to recommend it because it is not\nauthorized by the Charter; people can disagree, but Council will make the ultimate\ndecision.\nCommissioner Shabazz stated that he appreciates the legal analysis; there is a desire to\nhave something substantive to replace what was lost with the removal of null and void;\ndepending on where people may be, maybe move to recommend the Foreman proposal\nto the City Council.\nCommissioner Tilos stated there are two different battles; whatever the Commission\ndrafts will likely not be recommended by the City Attorney's office; if the Commission goes\ndirectly to the Council, they will probably not approve it either; it is an uphill battle both\nways; the question becomes which battle to choose: the endless two year circle of\nrewriting a proposal to get endorsement from the City Attorney's office or go directly to\nCouncil just to be rejected.\nChair Schwartz stated it is a real concern, but does not necessarily have to go that way;\nit will be a different Council and a different moment; after the Council asked specifically\nto put teeth back into the ordinance and the Commission comes back with something that\ndoes so, it is something different than straight null and void; the arguments that were\nraised by the City Attorney which gave the City Council pause about an absolute null and\nvoid do not have the same force with respect to the proposal the Commission has already\nagreed and voted on; the Commission is not nullifying or usurping any legislative function\nof the Council, which is the argument the Council made; the Commission has to be true\nand decide what is best for transparency; the Commission was charged with putting teeth\nMeeting of the\nOpen Government Commission\nNovember 17, 2020\n5", "path": "OpenGovernmentCommission/2020-11-16.pdf"}
{"body": "OpenGovernmentCommission", "date": "2020-11-16", "page": 6, "text": "back into the ordinance and does not feel the choice is simply between doing whatever\nthe City Attorney tells the Commission to do and failure; there is a middle path, which is\ncoming up with a proposal that takes into account the various legal advice but also stays\ntrue to the objective of putting teeth into the ordinance.\nCommissioner Pauling stated that she shares the frustration and certain degree of\nconfusion about what has been expressed already; there has to be a way to have a\nprocess that forces a real pause and requires proper notice; it seems the only definition\nneeded is if and what constitutes an urgent time factor; she would like some boundaries;\nshe concurs with Chair Schwartz's recommendation regarding a subcommittee to actually\ncome forward with teeth and an approach for how that would be defined; the most\nimportant thing is that if there is not proper notice, the matter should be stopped and re-\nnoticed; short of a life-threatening emergency, that is what should happen.\nIn response to Commissioner Pauling's inquiry, the City Clerk stated Commissioner\nPauling's term will end on December 15th when the new Councilmembers are sworn in; a\nreport is taken to the Council at the first meeting in January to inform the public of the\nnew appointees.\nCommissioner Pauling stated she is happy to help in any way she can, but her time is\nlimited.\nChair Schwartz stated he would be happy to see a subcommittee recommendation before\nDecember 15th.\nChair Schwartz moved approval to not adopt the recommendation of the Knox White\nproposal and instead appoint a subcommittee to make a recommendation, consistent with\nwhat the Commission recommended at the June meeting, before December 15th\nCommissioner Pauling seconded the motion.\nUnder discussion, Commissioner Shabazz inquired whether a person has to be a\nCommissioner to be on the subcommittee.\nThe Chief Assistant City Attorney responded in the affirmative; stated by definition a\nperson would need to be on the Commission in order to be on the subcommittee; it would\nbe up to the subcommittee to allow a non-commissioner as a subcommittee member.\nThe City Clerk stated, for timing purposes, the next regular meeting of the Commission is\nDecember 7th and the agenda packet would need to go out on November 30th; the latest\npotential meeting date is December 14th, but the packet would need to go out December\n2nd because of the new 12-day publication for special meetings.\nChair Schwartz stated the subcommittee could make its recommendation by December\n15th; if it is not done, the Commission could vote at a later meeting if necessary.\nMeeting of the\nOpen Government Commission\nNovember 17, 2020\n6", "path": "OpenGovernmentCommission/2020-11-16.pdf"}
{"body": "OpenGovernmentCommission", "date": "2020-11-16", "page": 7, "text": "meeting.\nThe Assistant City Attorney stated the proposal that was recommended by the\nCommission is not based on minutes, it is based on a motion from the Commission on\nthe Foreman proposal which is clearly outlined in redline form; if the Commission is\nmoving in the direction of a subcommittee, there should be some concrete direction to\nthat subcommittee vis-\u00e0-vis the motion that is made by the Commission concerning the\nForeman proposal; he is not sure if the Commission still supports the Foreman proposal\nas modified by the Commission or is the charge to create something completely new; that\nought to be part of the motion as well.\nChair Schwartz stated he hears what the Assistant City Attorney is saying but it was not\nunclear that the idea of the subcommittee is to write a proposal that is consistent with\nwhat the Commission recommended at the June; identifying the subcommittee members\ncan be done as part of the motion or after Commissioners agree there should be a\nsubcommittee.\nThe Chief Assistant City Attorney stated the charge of the subcommittee is sufficiently\nclear and the motion should proceed to see if there is support for a subcommittee, decide\nwho will be on it, and go from there.\nMeeting of the\nOpen Government Commission\nNovember 17, 2020\n7", "path": "OpenGovernmentCommission/2020-11-16.pdf"}
{"body": "OpenGovernmentCommission", "date": "2020-11-16", "page": 8, "text": "On the call for the question, the motion carried by the following roll call vote:\nCommissioners Little: Aye; Pauling: Aye; Shabazz: Aye; Tilos: Aye; Chair Schwartz: Aye.\nAyes: 5.\nIn response to Chair Schwartz's inquiry, Commissioner Pauling stated she is interested\nin being in the subcommittee with the understanding that she will step down from the\nCommission on December 15th\nCommissioner Tilos inquired whether the subcommittee plans to present the proposal to\nthe full Commission for a vote on December 7th, to which Chair Schwartz responded in\nthe affirmative; stated the full Commission presenting the proposal to the Council would\ncarry more weight, as the Chief Assistant City Attorney stated.\nIn response to Commissioner Pauling's inquiry, the City Clerk reiterated the report\ndeadlines of November 30th and December 2nd\nIn response to Chair Schwartz' inquiry regarding whether Commissioner Little would like\nto be on the subcommittee, Commissioner Little stated there can only be two members\nfrom the Commission so as not to violate the Brown Act; inquired whether a\nCouncilmember or other body could be asked to participate.\nThe Chief Assistant City Attorney stated once you start expanding the membership, there\nis a risk of the subcommittee becoming a policy body which would need the 12-day\nnoticing; if it is simply kept as an ad hoc committee, it would be classified as a passive\nbody under the Sunshine Ordinance and can meet without the strict requirements.\nChair Schwartz inquired whether the Commission would be amenable to him and\nCommissioner Pauling serving on the subcommittee.\nCommissioner Pauling stated because she has only been on the Commission for a year,\nshe is willing to allow someone who has more experience to serve; she is happy to\ncontribute, but also happy to step aside if any of the other Commissioners are interested.\nCommissioner Little stated although the OGC is near and dear to her, she is gearing up\nand focused on her new role as a School Board Member.\nCommissioner Tilos stated he has full confidence that Chair Schwartz has a good idea of\nwhat everyone on the Commission wants to convey to the Council.\nCommissioner Shabazz stated he concurs with Commissioner Tilos and is confident in\nChair Schwartz and Commissioner Pauling making it happen; he appreciates how Chair\nSchwartz has conveyed the Commission's concerns multiple times with passion and\nlooks forward to what they will be bring forward.\nMeeting of the\nOpen Government Commission\nNovember 17, 2020\n8", "path": "OpenGovernmentCommission/2020-11-16.pdf"}
{"body": "OpenGovernmentCommission", "date": "2020-11-16", "page": 9, "text": "becoming Chair and Commissioner Shabazz as Vice Chair.\nChair Schwartz seconded the motion.\nUnder discussion, Commissioner Shabazz inquired what goals Commissioner Tilos has\nregarding being Chair.\nMeeting of the\nOpen Government Commission\nNovember 17, 2020\n9", "path": "OpenGovernmentCommission/2020-11-16.pdf"}
{"body": "OpenGovernmentCommission", "date": "2020-11-16", "page": 10, "text": "Commissioner Tilos responded that he would like to see the Sunshine Ordinance carry\nthrough and have the current Commission's voices heard on December 7th so that there\nwill be something showing the Commission's voices brought to Council; his goal for the\nnext few meetings would be to bring the two new Commissioners up to speed; then, to\ncontinue to address any current and future public complaints; regarding Commissioner\nShabazz's ideas, he would also like to bring more transparency to the Commission and\nmore public access; these are issues he would focus on in the upcoming term and next\nfew months.\nThe Chief Assistant City Attorney left the meeting for a family matter.\nCommissioner Shabazz stated Alameda is an interesting place; he is currently applying\nto several doctorate programs outside of the Bay Area; if he does attend a program in the\nBay Area, he will stay in Alameda; he can accept the Vice Chair position with the\nunderstanding he may not be in Alameda in 2022.\nUnder call for the question, the motion carried by the following roll call vote:\nCommissioners Little: Aye; Pauling: Aye; Shabazz: Aye; Tilos: Aye; Chair Schwartz: Aye.\nAyes: 5.\nCommission Communication\nCommissioner Little expressed her thanks to the Commissioners for making her time on\nthe Commission interesting, fulfilling and exciting; stated the Commission demonstrates\nthe ability to set aside personal agendas in order to do what is best for the City, the people,\nand the various other bodies that come before the OGC; thanked everyone for the\nwonderful opportunity in her first role of government service.\nThe City Clerk expressed her appreciation for Commissioner Little's service; noted\nCommissioner Little served on a subcommittee that tackled a lot of issues and put in a lot\nof hard work for the Commission; it is sad to see her go; wished her great success on the\nSchool Board.\nChair Schwartz stated that he appreciated the opportunity to serve as Chair and it has\nbeen a great pleasure to serve with everyone; echoed Commissioner Little's comments\non the ability for everyone to agree on the fundamental mission; he looks forward to\nworking with the new members.\nCommissioner Pauling stated that she wished she could have served with Commissioner\nLittle longer on the Commission and wished her the best.\nCommissioner Shabazz expressed his appreciation and congratulations to Commissioner\nLittle; thanked Commissioner Pauling for stepping in and serving on the Commission;\nstated that he has been in touch with the League of Women Voters regarding the Public\nRecords Act workshop; gave a shout out to the Youth Activists of Alameda for their\nInstagram video explaining how City Council meetings work.\nMeeting of the\nOpen Government Commission\nNovember 17, 2020\n10", "path": "OpenGovernmentCommission/2020-11-16.pdf"}
{"body": "OpenGovernmentCommission", "date": "2020-11-16", "page": 11, "text": "Adjournment\nCommissioner Shabazz moved approval of adjourning the meeting.\nCommissioner Little seconded the motion.\nCommissioner Shabazz withdrew his motion since a motion is not needed.\nThe meeting was adjourned at 8:18 p.m.\nRespectfully submitted,\nLara Weisiger\nCity Clerk\nThe agenda for this meeting was posted in accordance with the Sunshine Ordinance.\nMeeting of the\nOpen Government Commission\nNovember 17, 2020\n11", "path": "OpenGovernmentCommission/2020-11-16.pdf"}