{"body": "OpenGovernmentCommission", "date": "2021-04-05", "page": 1, "text": "MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING\nMONDAY APRIL 5, 2021 7:00 P.M.\nChair Tilos convened the meeting at 7:00 p.m.\nROLL CALL -\nPresent:\nCommissioners Chen, LoPilato, Reid, Shabazz, and\nChair Tilos - 5. [Note: The meeting was conducted via\nZoom.]\nAbsent:\nNone.\n[Staff present: Chief Assistant City Attorney Elizabeth Mackenzie;\nCity Clerk Lara Weisiger; Special Counsel Kristen Rogers, Olson\nRemcho; Police Captain Jeff Emmitt, Assistant City Attorney Alan\nCohen]\nOral Communications\nNone.\nRegular Agenda Items\n3-A. Minutes of the March 1, 2021 Meeting\nCommissioner Chen stated Amy Gong Liu's name was misspelled; the City Clerk noted\nit will be corrected.\nCommissioner Reid stated at the end, she made comments regarding submitting a null\nand void remedy.\nCommissioner LoPilato stated she had small edits which she emailed to the Clerk's office\nand shared them with the Commission.\nVice Chair Shabazz stated his changes clarifying why he stated he was recusing himself\nfrom the Jackson Park Committee because he was invited to be a part of the Committee.\nVice Chair Shabazz moved approval of the minutes with the clarifications.\nCommissioner Chen seconded the motion which carried by the following roll call vote:\nCommissioners Chen: Aye; LoPilato: Aye; Reid: Aye; Shabazz: Aye; Chair Tilos: Aye.\nAyes: 5.\n3-B. Hearing on Sunshine Ordinance Complaint Filed by Scott Morris on May 12, 2020\nVice Chair Shabazz stated it was suggested by the City Attorney's office that he recuse\nhimself; he publicly commented on Mr. Morris's initial request via Twitter; he wants to\nMeeting of the\nOpen Government Commission\nApril 5, 2021\n1", "path": "OpenGovernmentCommission/2021-04-05.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-04-05", "page": 2, "text": "publicly state that he will not be recusing himself, but will make impartial decisions based\nupon the facts that are presented tonight and also the information that he has reviewed.\nThe Chief Assistant City Attorney stated the City Attorney's office legal opinion is that\nVice Chair Shabazz should recuse himself; she wants to give more context to some\nspecifics on the basis for the recommendation; Vice Chair Shabazz did recommend Mr.\nMorris file a complaint with the OGC publicly via Twitter; it is the City Attorney's opinion\nthat the comment suggested to Mr. Morris that Vice Chair Shabazz would be a receptive\naudience to Mr. Morris's complaint and that it went beyond just giving information to the\npublic about the complaint process; she is informing the entire Commission of the basis\nfor the advice because of the fact that, should the Commission take action regarding Mr.\nMorris's complaint and should that action be reviewed by a court, courts do find and do\nexamine the propriety of recusals and whether a recusal was made or not; the City\nAttorney's office believes that the decision handed down by the Commission could be\nimperiled or weakened on a judicial review because of the fact that Vice Chair Shabazz\nhas a basis for recusal; she indicated to Vice Chair Shabazz that it is his decision whether\nto recuse himself and he indicated that he would not recuse himself.\nIn response to Chair Tilos's inquiry regarding how to proceed with Vice Chair Shabazz'\nrecusal issue, the City Clerk stated that there is not anything specific in the bylaws\ndirecting it, which she will check quickly.\nVice Chair Shabazz stated that he understood the bylaws that someone should state what\nthe concern is and then they can continue; in preparation of Ramadan, he will be stepping\naway from the meeting briefly to break his fast but will be joining the discussion.\nThe City Clerk stated she just briefly looked though the bylaws and did not see specific\ndirection on recusals.\nCommissioner LoPilato inquired whether there could be some clarity on the exact\nverbiage that should be used when evaluating the nature of complaints; for example, is it\nbinary between sustaining a complaint or finding it unfounded or whether a complaint is\nsustained and has merit or not.\nThe Chief Assistant City Attorney responded based on the text of the Sunshine\nOrdinance, it is not a binary; a complaint can be sustained that has merit is one option;\nanother option is, after examination of the facts, there is a vote that the complaint does\nnot have merit so it is not sustained; there is yet a third option where a decision is made\nthat the complaint is unfounded, which was the Commission's March meeting vote; it was\ndiscussed at that meeting that there is no definition within the Sunshine Ordinance of\nunfounded, so the Commission needs to make the definition for each complaint; there are\nramifications of a complainant having two unfounded complaints within a specific\ntimeframe.\nCommissioner LoPilato stated it would be helpful for Commissioners and the public to\nhave a better sense of authorship and purpose of each of the documents enclosed with\nMeeting of the\nOpen Government Commission\nApril 5, 2021\n2", "path": "OpenGovernmentCommission/2021-04-05.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-04-05", "page": 3, "text": "the agendas; inquired that the Chief Assistant City Attorney or City Clerk give some\nspecificity with respect to what the Commission has reviewed.\nThe Chief Assistant City Attorney responded basically both sides in each complaint have\nthe option to present written arguments, which can take any form; the written argument\nsubmitted on behalf of the City appears more legal in nature because the City has retained\noutside counsel; another document would perhaps be titled proposed decision or\nsuggested decision; the form of the document looks like a final Commission decision; the\ndocument is prepared by outside counsel; it is the conclusion that the outside counsel is\nurging, but it is not a requirement that the Commission needs to agree with it.\nThe City Clerk stated the City has always prepared a draft decision and presented it to\nthe Commission for every single case; the draft decision gives the Commission a starting\npoint; there have been times where the Commission has taken the opposite position than\nwhat was in the draft decision; going forward, it could be made clear that the decision is\njust a recommendation from the City and not final.\nCommissioner LoPilato inquired whether the staff report is actually by special counsel\nand not the staff recommendation or Chief Assistant City Attorney's framing of the issue;\nand whether it is an advocacy piece it is a position statement by the attorney's\nrepresenting the City in the adversarial adjudication.\nThe Chief Assistant City Attorney responded in the affirmative; stated the staff report is\nan adversarial piece and the waters are a bit muddied because it is also the City's\nposition; in this particular instance, the staff report is the position of the City and the\nparticular department within the City.\nThe City Clerk stated the City has always presented the staff report from its viewpoint.\nCommissioner Reid inquired why staff and special counsel prepare a decision before the\nCommission hears a case; stated that she understands is has been common practice,\nbut wonders if the Commission wants to continue the practice; further inquired whether\nthe prepared decisions ever held the position of sustaining a complaint; stated it\nis\nimportant to know if the practice will continue; requested that the Chief Assistant City\nAttorney read the specific Public Records Act (PRA) Section 6250 3C Mr. Morris included\nin his complaint.\nChair Tilos stated the Commission could address Commissioner Reid's question whether\nto continue the draft decision process during Commissioner Communications.\nCommissioner Chen concurred with Commissioner Reid; stated it seems like the deck is\nalready stacked to reject the complaint from the get go; her understanding is that\nCommissioners should have an open mind when cases are presented; the staff report\nstates that someone filed a complaint and it was already resolved; the complaint is not\nseen until the third or fourth document; it is not a fair process for residents who go through\nthe trouble of filing a complaint to have all of these opposing documents in the beginning;\nMeeting of the\nOpen Government Commission\nApril 5, 2021\n3", "path": "OpenGovernmentCommission/2021-04-05.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-04-05", "page": 4, "text": "to already have the Commission's opinion written seems like a stacked deck; she is\nconcerned about the way the documents come before the Commission; it was not until\nshe saw Mr. Morris's statement that she actually understood what was going on.\nThe City Clerk stated staff hears the Commission and can come back with a different\nformat next time with a more neutral staff report with the two opposing sides attached.\nThe Chief Assistant City Attorney stated she concurs with the City Clerk about the\ndiscussion to clarify the staff report format issue; emphasized that the proposed decision\nsubmitted by special counsel in both cases is the way that they are advocating; the other\nside is open to prepare their own desired decision as well; when attorneys file motions in\ncourt, typically, both sides prepare a proposed order or decision; it is a way for the\nattorney to urge the judge; she apologizes that it seems like stacking the deck, but the\nproposed decision is truly an advocacy piece; she appreciates the comments and the City\nAttorney's office will work with the City Clerk to clarify the process as appropriate.\nComplainant Scott Morris gave a brief presentation.\nSpecial Counsel Kristen Rogers gave a brief presentation, including outlining objections\nto Vice Chair Shabazz participating in the discussion.\nVice Chair Shabazz inquired whether responses to PRAs are 10 calendar days or 10\nbusiness days, to which the City Clerk responded it is 10 calendar days.\nCommissioner LoPilato inquired whether Mr. Morris received the full time frame of the\ndocuments he sought from the other County agencies or if the agencies just gave him\nmore than Alameda.\nMr. Morris responded each of the other 12 county agencies gave him the full time frame\nof the documents he requested, except for the Alameda County Sheriff's office and the\nOakland Police Department, neither of which appropriately responded to his request at\nall which is the subject of litigation right now with the City of Oakland.\nCommissioner LoPilato inquired whether the notion of limiting it to contemporaneous as\nto a specific look back period is something that Mr. Morris saw in a written statute or was\nit purely from case law.\nMr. Morris responded the statute of issue has a list of things the City must deliver with\nregards to each arrest; current address used to be included; based on that, a Court of\nAppeals in Los Angeles interpreted the legislative intent of the law to be that it would only\nbe for a limited period of time, but what the time would be was not defined and was only\nsupposed to be what was reasonable; in 1995, the legislature removed the current\naddress; years later there was a different decision looking directly at the subsequent\nsection of that statute which defines the list of things that has to be released about every\ntime a Police Officer goes somewhere and current address was also removed; since the\nlanguage was removed, it does not apply anymore; there is no reason that it has any kind\nMeeting of the\nOpen Government Commission\nApril 5, 2021\n4", "path": "OpenGovernmentCommission/2021-04-05.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-04-05", "page": 5, "text": "was taking initially; now it is a 30-day look back period; requested special counsel to walk\nthrough the steps of whether the policy was changed and whether there is continuing\nevaluation of ongoing changes.\nMs. Rogers responded that she may have to rely on Captain Emmitt for some details;\nstated that she understands the 30-day policy went into effect when the Police\nDepartment actually undertook to improve its Information Technology (IT); it was a matter\nof practical possibility of the time to be able to expand the records; the records can be\nviewed on the Department's website in real time up to 30 days back; it is now the practice\nand technological capability of the Department to have that 30 days.\nCommissioner LoPilato stated that she is also curious if someone comes in with a request\nfor 30 days, will they automatically get the information; inquired whether the current\npractice changed due to Mr. Morris's complaint.\nThe Police Captain responded that he does not now know where the 14-day policy came\nprior to May 12, 2020 because everyone involved in the executive decision making\nprocess at that time has retired; he was promoted to Captain in July 2020; since that time,\nthe City has taken the position that the Police Department would provide 30 days; most\nof the decision came from knowing that the Department's Computer Aided Dispatch\n(CAD) and records management system was being upgraded and would be able to\nhandle requests in an almost real time basis; the new system went live on February 24,\n2021 and live with the Citizen Rims function on April 1st; information goes back to March\n26, 2021; as the system moves forward, the database will continue to build information;\nthere is a specific tab on the Citizen Rims page that is dedicated to arrests and is a rolling\n30 day calendar; after 30 days, the names that are 31 days or older will drop off the\nsystem; he hopes that the system points citizens in a direction where they will have more\ninformation available.\nCommissioner LoPilato stated Ms. Rogers mentioned that Alameda's policy is generally\nconsistent with judicial guidance and policies from sister jurisdictions; requested Ms.\nRogers to elaborate and inform the Commission how the benchmarking occurred and\nwhich jurisdictions Alameda aligns with.\nMs. Rogers responded that she would first like to address Mr. Morris's statements to help\nMeeting of the\nOpen Government Commission\nApril 5, 2021\n5", "path": "OpenGovernmentCommission/2021-04-05.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-04-05", "page": 6, "text": "elucidate exactly what the judicial landscape looks like; the staff report explains that the\nKusar decision in 1993 rested on a statutory interpretation argument supplemented with\na purpose of the interplay of the PRA provision as it relates to other protections for exactly\nthe same information that are found in the Penal Code and other somewhat codependent;\nin some cases, there will be a very clearly articulated privacy interest; in the Kusar case,\nthe rules of civil discovery were also barring some of the accessibility of the requested\nrecords.\nIn response to Ms. Roger's inquiry, Commissioner LoPilato stated the explanation\nprovides a good balance with regard to the legal landscape, but she is still interested in\nthe jurisdictional comparisons with respect to the length of the policy and look back.\nMs. Rogers stated San Leandro, Pleasanton, Berkeley, Milpitas and San Diego all have\n30 day look back policies; the League of California Cities provides top notch legal\nguidance to municipalities throughout the State.\nCommissioner Reid inquired what data was finally provided to Mr. Morris and if he\nreceived the full scope that he requested.\nMr. Morris responded in the affirmative; stated he received the data more or less after\na\nlot of back and forth, he did receive what he requested.\nCommissioner Reid inquired whether the data is identical to what is currently viewable on\nPolice logs.\nMr. Morris responded he is not sure what is currently viewable and is not exactly sure\nwhat he ended up getting off the top of his head; the statute defines a lot of things like\neye color and things like that he was not even interested in; he was really looking for who\nwas arrested, on what charges and the disposition; he does not recall the specific details\nof everything included in the statute.\nCommissioner Reid inquired whether Mr. Morris received a response on April 27th from\nhis initial request on April 15th, to which Mr. Morris responded in the affirmative; stated\nthe dates sound accurate, though he does not have the specific dates in front of him.\nCommissioner Reid stated the initial response to Mr. Morris went beyond the 10 days.\nThe Chief Assistant City Attorney stated the 10 day period can be extended to 14 days to\nrespond whether or not there are documents and, then, the actual disclosure comes later.\nThe City Clerk added that potentially the period could go longer than 10 days if it falls on\na Saturday or Sunday, it can bump to Monday as well; it is important to note the day of\nthe week.\nCommissioner Reid reiterated the timeline for Mr. Morris PRA request; inquired why the\ndata was given to Mr. Morris in three separate sections and what was missing.\nMeeting of the\nOpen Government Commission\nApril 5, 2021\n6", "path": "OpenGovernmentCommission/2021-04-05.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-04-05", "page": 7, "text": "Mr. Morris responded that he was given the data 30 days at a time; stated the Assistant\nCity Attorney initially only gave him 30 days data; Mr. Morris then cited contradicting case\nlaw and was given an additional 30 days data; he was looking for 90 days total data; he\nspecifically wanted to know whether the Police Department changed its booking practices\nin response to COVID 19 because there had been some guidance from the Sheriff's Office\nnot to book people into jail under particular circumstances; until he complained on Twitter\nand filed a complaint, he was not able to get the full scope of what he was asking; he\ndoes not feel Vice Chair Shabazz was giving him a wink as a receptive audience, it was\na way for him to actually get some accountability and the option existed.\nIn response to Commissioner Reid's inquiry regarding how his complaint was classified,\nMr. Morris stated the Assistant City Attorney asked him specifically to delay his complaint,\nnot to withdraw it, but delay it for 30 to 60 days for the reason that he was serving other\nagencies in the area and that he was going to come up with a policy that was more in line\nwith the law; Mr. Morris told the Assistant City Attorney that he consulted with attorneys\nwho said there is not any reading of the statute that does not say the full universe of\narrests as retained by the Police Department are available; he stated the City's policy has\nto be to provide arrests within the period of retention and if they have those records, they\nhave to release them; the Assistant City Attorney knew his position and stated he would\nwork on something that would strike a balance after talking to other Police Departments;\nthat conversation was the last Mr. Morris ever heard from the Assistant City Attorney on\nthe issue; there was no follow up; only after Vice Chair Shabazz approached him\nregarding the status of his complaint, it was placed on the agenda tonight.\nCommissioner Reid inquired what the process is from the City's standpoint when a\ncomplaint is put on hold.\nThe Assistant City Attorney responded he had a discussion with Mr. Morris about\nestablishing a records retention policy; stated Mr. Morris told him he was represented by\nan attorney; he told Mr. Morris to have his attorney contact him with some ideas about\nbest practices; Mr. Morris's attorney never contacted him; maybe there was a\nmiscommunication, but he felt that under the State bar rules of ethical conduct he was\nprohibited by law from contacting and having conversations with someone who is\nrepresented by counsel; he was waiting for a phone call from Mr. Morris's attorney and\nnever received one.\nMr. Morris stated the statement is not true; he did not say he was represented by counsel;\nhe said he had spoken to a lawyer to ask some questions, but the lawyer was not\nrepresenting him; it was not supposed to be an adversarial thing; the Assistant City\nAttorney asked him to have the lawyer advise the City on what best practices would be,\nwhich would not be appropriate if the Assistant City Attorney thought it was opposing\ncounsel; the lawyer did not think it was a good idea for him; to say that he was represented\nby counsel and that was the reason the Assistant City Attorney was prohibited from talking\nto him is just not true.\nMeeting of the\nOpen Government Commission\nApril 5, 2021\n7", "path": "OpenGovernmentCommission/2021-04-05.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-04-05", "page": 8, "text": "PUBLIC COMMENT:\nStated the complaint was handled very poorly by the City; to classify the complaint as\nvoluntarily withdrawn is erroneous and indefensible; it is a violation of how public records\nrequests should operate; to preach about the City's 30 day policy and then release\nrecords from day 31 to 90 does not hold water; it sounds like the City does not have a\npolicy: Matt Reid, Alameda.\nStated that she found it curious that the balancing test and redacting minors applies when\nit pertains to APD and their records, but not in regards to our neighbors interested in\nworking on police reform; she is confused why Vice Chair Shabazz is being taken to task\ntor merely communicating with a reporter, when a Councilmember and former Mayor who\nreleased the names of neighbors on a Next Door post: Jenice Anderson, Alameda.\nChair Tilos stated the whole reason for the Commission is to be more public and more\ntransparent about records; some things did not go smoothly; he urges the Commission to\ninclude that in the discussion; he hopes to tackle some of the points brought up in the\nconversation that do not seem right.\nVice Chair Shabazz stated there is something to say about the process the complainant\nshared; the 12 day response period violates the California Public Records Act.\nChair Tilos stated there is a contradiction between calendar and business days if a\nresponse could carry forward if day 10 falls on a Saturday or Sunday.\nThe City Clerk clarified that City Hall is only open 4 days a week, Monday through\nThursday; typically, the City tries to respond by Thursday if it falls over the weekend; April\n27th was a Monday, which added extra days.\nVice Chair Shabazz stated that he asked the question because his understanding is it is\ncalendar days; the law does not state it is business days; regardless of the operations of\nthe City and what typically happens, it did not happen in this case; unless there is some\ncorrespondence requesting a 14 day extension, the City did not respond timely and was\nin violation of the Sunshine Ordinance; one of the main questions he has is why all the\ninformation was not given in the initial request; in 2018, he also filed a PRA request for\narrest information, which was also denied; it was not until later requesting information that\nhe eventually got it; regarding Mr. Morris's request from the correspondence as visible ,\nit does not seem that there is a technical challenge to be able to access the information;\nagain, there just seems to be something blocking information coming from the City\nAttorney's Office; he suggests finding the complaint sustained on the basis of the lack of\nresponse within the 10 day period; as far as potential resolutions, there could be some\nconversation about a potential pattern and some reform to provide consistent access to\nrecords, particularly coming from the City Attorney's office.\nCommissioner Reid stated that she agrees with the goal of transparency and access to\ninformation; if data is accessible, it should be provided on day one.\nMeeting of the\nOpen Government Commission\nApril 5, 2021\n8", "path": "OpenGovernmentCommission/2021-04-05.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-04-05", "page": 9, "text": "Commissioner LoPilato stated that she is troubled by the same patterns; requested the\nChief Assistant City Attorney to clarify what the timeliness requirement is with respect to\ncalendar or business days under the law.\nThe Chief Assistant City Attorney stated her understanding is that the Public Records Act\ndoes not specify a calendar versus business days and that general principles of law\nindicate that absent a denomination of either of those terms, the default is calendar days;\nin this case, the request was made on Wednesday, April 15th and the 10 day period would\nhave been on a Saturday, the 25th, so the 27th was the first business day.\nCommissioner LoPilato stated there is a heightened privacy interest in the differences\nand types of information someone can request from a Police Department; she does see\nprivacy interest in arrest records relative to calls for service which sounds to be a\nreasonable premise on which the case law may have developed to have a slight\ndelineation between whether it makes sense to have a temporal limitation on arrest\nrecords because there is countervailing privacy interests; from a common sense and\nsocietal concern standpoint, it is important to balance transparency and privacy interests.\nCommissioner LoPilato moved approval of redacting personal information in the May 12,\n2020 attachment, which contains the arrest record log; stated that she was troubled to\nsee the information with respect to names and addresses on the website for the purposes\nof tonight's hearing; it is important to have a mechanism from the transparency standpoint\nto redact the information.\nChair Tilos seconded the motion.\nIn response to Commissioner LoPilato's inquiry, the Chief Assistant City Attorney stated\nit is an appropriate motion and is fine from a legal standpoint.\nThe City Clerk concurred; stated the redaction can be done.\nUnder discussion, Vice Chair Shabazz stated that he appreciates and supports the\nmotion; his intention for forwarding the materials he received was to share some of the\ndialogue that was not included in the exhibits or shared from City staff; it is important to\nhave the other material that was omitted.\nOn the call for the question, the motion carried by the following roll call vote:\nCommissioners Chen: Aye; LoPilato: Aye; Reid: Abstain; Shabazz: Aye; Chair Tilos: Aye.\nAyes: 4. Abstention: 1.\nCommissioner LoPilato stated the timeliness is an interesting aspect looking at the\ntechnicalities; she is unclear what the Commission's authority is to recommend other type\nof solutions, but she is curious to know what others think about the timeliness issue; there\nis another angle there that was not fleshed out.\nMeeting of the\nOpen Government Commission\nApril 5, 2021\n9", "path": "OpenGovernmentCommission/2021-04-05.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-04-05", "page": 10, "text": "Vice Chair Shabazz stated that he was surprised no one did the math of 27 minus 15\ndespite all the legalese; he agrees with Commissioner LoPilato that privacy and balancing\nis a really important principle and should be in the conversation about policy; it was\npromised by a staff member to do or work with a member of the community and it was\nnever followed-up; there were some unfulfilled promises going back to the relationship\npiece; reiterated his experience when requesting information regarding an arrest made at\nthe Target in 2017; his request was stonewalled by the City; he was eventually able to\nget the correct information from the District Attorney's office; the social media account\nwas used to put out a certain narrative; being able to access information allowed him to\nnuance the story in a certain way; he appreciates the concerns about privacy rights; there\nis something to be said about the public interest and journalists being able to access\ninformation to tell stories; questioned where Alameda's benchmark is in relation to other\nagencies; stated there seems to be some challenges regarding the PRA in the City\nAttorney's Office; one of the potential resolutions is having the Annual Report now; one\nof the duties of the Commission could perhaps be evaluating the performance of the City\nAttorney's Office; if there is a sustained complaint and the Commission wants to impose\na penalty, perhaps someone could attend a PRA training.\nIn response to Chair Tilos's inquiry, the City Clerk stated the Commission has to have the\nwritten decision done within 30 days as required in the Code; the clearer direction the\nCommission could provide for the written decision to be circulated for all members to sign,\nthe better; the next meeting is not until May which would be past the 30 days.\nCommissioner Reid inquired whether or not records should be made available to the\npublic if the policy of the City is to retain the records; further inquired if Chair Tilos was\nleaning more towards sustaining the complaint.\nChair Tilos responded in the negative, stated something is wrong; it can go several ways;\nit could be sustained or unfounded or found with merit; he does not think the Commission\nhas all the answers yet; there is still another complaint to address and more conversations\nto have.\nCommissioner Chen stated the Commission did find something wrong; a citizen seeking\npublic information was pushed around; until he made the actual complaint, he did not get\nthe data he was requesting; if this is how Alameda is going to treat public records\nrequests, it is an important issue, but it is not on the agenda; the Commission needs to\nagendize it for another meeting not to be in violation of the Sunshine Ordinance for\ndiscussing and acting on an issue that the public was not pre-warned about; the\ncomplainant did admit that he did not think he had a valid Sunshine Ordinance complaint\nat this point, so he is just utilizing this as a forum to be able to speak with the Commission\nand the community at large regarding the difficulty he had with obtaining public records;\nthere does need to be a vote whether the Sunshine Ordinance was violated according to\nhis complaint; then, pick up the PRA issue at a subsequent meeting.\nChair Tilos stated that on the issue of timeliness, the complaint could be found sustained;\nhe concurs with Commissioner Chen about agendizing the issue regarding the process.\nMeeting of the\nOpen Government Commission\nApril 5, 2021\n10", "path": "OpenGovernmentCommission/2021-04-05.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-04-05", "page": 11, "text": "Vice Chair Shabazz stated that he agrees there was a violation of the Sunshine Ordinance\ndue to the lack of timely response and he is prepared to make a motion to that effect; for\nhis own complaint in 2019, there was a subsequent meeting and process of how the\nactual decision was written and was hoping that could be a potential option; he is\nconcerned about the behavior of City staff in this situation; people should not have to file\na complaint just to receive a response when they make a request under the California\nPRA.\nCommissioner LoPilato stated that she is curious about the resolution options; she would\nlike to know how to bifurcate the motion.\nChair Tilos stated that he would approve sustaining on the basis of timeliness; discussing\nthe process could come at another meeting.\nThe Chief Assistant City Attorney stated her role is not as an advocate for either side; it\nis to provide guidance on the law; there is a provision in the Code of Civil Procedure that\nis accepted for all courts in California that when the last day to perform or complete an\nact falls on a Saturday, Sunday or holiday, the timeliness limit is extended to the next\ncourt day closest to the trial date; there are no references within the PRA so the default\nis calendar days.\nCommissioner LoPilato stated that she appreciates the clarification since it is such a tight\ntechnicality, which also was not offered up by the complainant; in civil litigation, there is a\nsimilar issue that occurs where parties are asked to engage in discovery and document\nproduction; it is a little similar in that there is a 30-day timeline; inquired whether there is\nan analogous production deadline.\nThe Chief Assistant City Attorney responded it is her understanding that if the due date\nto provide discovery falls on New Year's Day, you would get the benefit of the holiday;\nstated most attorneys would ensure that documents are postmarked or emailed timely.\nVice Chair Shabazz stated that he is hearing it is the spirit of the law versus the letter of\nthe law; he finds it interesting that in the response to the complainant there was a quick\ngoing to the letter of the law, but he sees the Commission is feeling a little bit more\nmerciful; due to his own previous experience with requesting information under the PRA,\nit is evidence of a previous violation for the current incident; his own opinion is to go with\nthe letter of the law for the 10 day response time which was not referenced by the legal\nanalysis and, then, coming back to figure out what the potential penalty or\nrecommendation is; he is leaning more toward the letter of the law in this instance\nbecause of the pattern he has observed.\nCommissioner Reid moved to sustain the complaint based on the fact that Mr. Morris did\nnot receive the totality of his request within the 10 days through the provisions of the\nCalifornia PRA.\nMeeting of the\nOpen Government Commission\nApril 5, 2021\n11", "path": "OpenGovernmentCommission/2021-04-05.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-04-05", "page": 12, "text": "Chair Tilos stated the 10 days refers just to the response, not to the providing of the\ndocuments, so it is a false motion.\nCommissioner Reid restated her motion to sustain the complaint based on the lack of\nreceiving a response within the required 10 day allotment through the California PRA.\nThe Chief Assistant City Attorney noted there is actually a provision in the California\nDiscovery Act that If the last day to perform or complete any act of discovery falls on a\nSaturday, Sunday or holiday, the time limit is extended until the next court date closer to\nthe trial date.\nVice Chair Shabazz seconded the motion.\nCommissioner Chen stated somehow the Commission wants to punish the wrongdoing\nby acting on this motion, which really does not get to the heart of the problem; she thinks\nthe Commission has to go another route to get to the heart of the problem and needs to\nseparate whether or not the Sunshine Ordinance was violated as per the complaint; the\nCommission is bending over backwards to count 10 days and try to use a mechanism\nthat will not allow doing something, which should be done at a later date.\nChair Tilos concurred with Commissioner Chen; stated the Commission knows something\nis wrong but are basing the motion on a technicality where he thinks the Commission\nneeds to dig deeper to find out what is really wrong and form that into a motion.\nIn response to Chair Tilos's inquiry, the City Clerk stated the last time, the Commission\nactually continued the hearing; the matter was continued and there was not a quorum, so\nit ended up on a subsequent agenda; the Commission could continue the item to a\nspecific date and formulate the decision on that day in order to get to the other agenda\nitems.\nChair Tilos inquired whether the item could be continued to the next meeting or to next\nMonday, to which the City Clerk responded the timeline is 30 days to formulate the\ndecision.\nCommissioner Reid withdrawing her previous motion; moved approval of just sustaining\nthe complaint.\nVice Chair Shabazz stated there is a motion and a second on the floor; he suggested that\nin the context of this discussion; he is interested in what the other Commissioners have\nto say; he does understand the intention of withdrawing the motion to put another one\nforward.\nChair Tilos stated the Commission is within procedure and is not out of bounds based on\nprecedent.\nCommissioner LoPilato stated in the interest of moving things along and also for\nMeeting of the\nOpen Government Commission\nApril 5, 2021\n12", "path": "OpenGovernmentCommission/2021-04-05.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-04-05", "page": 13, "text": "transparency, she is finding herself aligned with Commissioner Chen's comments and\nstill also troubled by what was heard today.\nVice Chair Shabazz stated that he is concerned with making sure the Sunshine Ordinance\nis being applied; neither the complainant or the legal counsel specifically address this;\nquestioned if this issue is not what is sustained or addressed, then what is the process;\nwhen there is a pattern, or at least more than one instance of this happening, what is the\nmechanism to change the behavior; stated at the core of it, he still feels there was a\nviolation even if it was not explicitly stated by the complainant or the presentation.\nIn response to Commissioner Reid's inquiry, Chair Tilos stated her latest motion to sustain\nwas made but not seconded and is being discussed.\nCommissioner Reid stated that she would amend her motion; the dates fall under 14 days\nand technically is a violation; pointed out the importance that the requestor did not receive\nthe totality of the information that he requested and the fact that he had to go back and\nforth, which took an extended period of time; the Commission collaboratively agrees that\nit\nwas not the procedure that falls within the spirit of the Brown Act and the transparency\nthe Commission is seeking.\nCommissioner Reid moved approval of sustaining the complaint based on the lack of\ntimeliness.\nChair Tilos stated that he likes where Commissioner Reid is going, but wants to phrase it\nmore succinctly; stated the complaint is being sustained due to lack of totality of his\nrequests in an efficient manner.\nCommissioner Reid amended her motion to include that it did not follow the spirit of the\nBrown Act and the requestor did not receive the totality of his requests in an efficient\nmanner.\nVice Chair Shabazz stated the references to the Brown Act and the PRA does not\nprescribe a specific time in which records have to be produced, the 10 days is related to\na response.\nChair Tilos stated that is why he used the word efficient; it was not efficient for Mr. Morris\nto go back and forth and file a complaint before getting any information.\nCommissioner LoPilato stated it would be good to get some legal guidance on the terms\nof totality and efficiency that she is not aware as rooted in law.\nCommissioner Chen stated the description of the Commission's duties includes reporting\nto the City Council at least once annually on any practical or policy problems encountered\nin the administration of the Sunshine Ordinance; she feels like Mr. Morris's claim is not\nsustained, but to double down on saying his complaint highlighted and brought into the\nspotlight a real serious problem that he is not the only one who has faced; the Commission\nMeeting of the\nOpen Government Commission\nApril 5, 2021\n13", "path": "OpenGovernmentCommission/2021-04-05.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-04-05", "page": 14, "text": "is tasked with telling the City Council where problems emerge in the Sunshine Ordinance.\nChair Tilos stated Commissioner Chen's comments as something that could be\nagendized or put under Commissioner Communication for another meeting.\nThe Chief Assistant City Attorney clarified some points, including that the Sunshine\nOrdinance does require a response from the City within 10 days as to whether or not\nthere are responsive documents; if more time is needed to make that determination,\na\nnotice can be sent out to the requesting party that an additional 14 days is needed; there\nis no set deadline in producing the documents; there is a lot of case law about what a city\nneeds to follow and the efforts it needs to make, but there is no specific time frame or\nparameters that spell out exactly what the City has to do that is objective; regarding the\nterms totality and efficiency she is not aware of those terms being used in the Sunshine\nOrdinance; she does not know whether either of the terms is used in case law that\ninterprets either the Brown Act or PRA; the terms are general and may be used in some\ncase law, but, to her knowledge, it is not used in some standard in the Sunshine\nOrdinance before the Commission tonight.\nCommissioner Reid stated the issue is not that the documents did not exist; the issue is\nthat the City was reluctant to give documents to the requestor; Mr. Morris did not receive\nwhat he requested until he had to finally push for the information by filing a complaint;\nwhen the City responded, all the data was given to Mr. Morris in one day, which was 87\ndays of data; this is why she strongly feels the complaint is sustained; when a requestor\nreceives resistance or has an obstacle, it is the duty of the Commission to ensure there\nis transparency and members of the public should be able to confidently request and get\ninformation from the City with full transparency; her motion is to sustain the complaint.\nVice Chair Shabazz stated that he understands one of the intentions of the California PRA\nis the balancing act of having transparency weighed against the privacy of citizens;\nanother aspect of the balancing is the efficient operations; to him, the issue around the\n10 days is clear that it is not the production of the full amount of data within the 10 or 14\ndays; it is 10 days to respond to the request; he understands the concerns that it seems\nlike a technicality; an option to addressing it is the concept of restorative justice and how\nit can be applied in this situation; one way is to address the Council as Commissioner\nChen suggested; another way is to get an updated policy which Mr. Cohen promised to\nMr. Morris; an finally, something related is the City's retention policy; these are all potential\nopportunities; it all goes back to what the complainant said was needed; it was centered\naround not having any obstruction; he thinks sustaining the complaint and coming back\nwith specific recommendations within the scope as a Commission and asking for\nguidance from the City Council or asking for a report from the City Attorney's Office on\nhow they are implementing the PRA so that this experience does not happen again.\nCommissioner Reid inquired whether Vice Chair Shabazz's comments were a second to\nher motion, to which Vice Chair Shabazz responded in the negative.\nIn response to Chair Tilos's inquiry, the Chief Assistant City Attorney stated that she sees\nMeeting of the\nOpen Government Commission\nApril 5, 2021\n14", "path": "OpenGovernmentCommission/2021-04-05.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-04-05", "page": 15, "text": "three different options: 1) sustain, 2) not sustain, and 3) find it unfounded which means it\nhas been found to have no merit; inquired whether any Commissioners asked about the\ntimeliness issue while both parties were still participating via Zoom.\nChair Tilos responded in the affirmative; stated he believed Mr. Morris was asked and\nresponded he felt the initial response was timely.\nThe Chief Assistant City Attorney stated that she just wanted to make sure the parties\nwere heard on an issue that seems to be important to some Commissioners.\nVice Chair Shabazz stated that he did bring the question up during the clarification part;\nhe noticed Mr. Morris had his hand up, perhaps to respond to the Chief Assistant City\nAttorney's question.\nChair Tilos stated there is a motion that was not seconded; asked if there were any other\nmotions.\nIn response to Commissioner LoPilato's inquiry, the City Clerk stated it is the\nCommission's prerogative whether to allow Mr. Morris to address the Commission; if there\nare more questions, the Commission is not prevented from asking questions of anyone.\nCommissioner LoPilato moved to hear from Mr. Morris whether he had concerns about\nthe timeliness of his request.\nMr. Morris stated the 10 day issue was not really a big issue for him; the fact of the matter\nis that the PRA does have a requirement for this agency to produce records promptly;\nthat is the word that is being danced around; he is surprised that the Assistant City\nAttorney did not mention this; when you talk about timeliness or efficiency, there is a\nrequirement that once a determination is made that there are records available, those\nrecords need to be provided promptly; it is a legal term from statute and what really was\nviolated here.\nVice Chair Shabazz moved to sustain Mr. Morris's complaint on the basis that the City\ndid not respond to his request promptly.\nChair Tilos stated he that wants to add the phrase in totality.\nVice Chair Shabazz stated that he would be against doing so; his perspective is that the\nCommission is trying to recognize that something was not done properly; the 10 days is\none part and that was about notifying; in Mr. Morris's case, the information was not\nprovided until 12 days later; the initial piece is that his request was not responded to in a\ntimely fashion; then, it addresses the other layers he identified a while ago.\nCommissioner Reid seconded the motion.\nUnder discussion, Commissioner Chen stated the complaint appears to be about the\nMeeting of the\nOpen Government Commission\nApril 5, 2021\n15", "path": "OpenGovernmentCommission/2021-04-05.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-04-05", "page": 16, "text": "court decision that was cited; questioned whether it is valid to abandon the original\ncomplaint because the Commission found violations of the Sunshine Ordinance.\nThe Special Counsel stated that she concurs with the Chief Assistant City Attorney\nregarding the timeline issues; stated what is really important to recognize is what was\nincluded in the materials provided on the 27th was what was going to be required to\nproduce a lot of the records and a very important privacy interest; just because the\ninformation is available, does not mean it is easily produced; she thinks the response\nfrom the City was timely.\nIn response to Commissioner Reid's inquiry, the City Clerk stated the Commission could\nhave discussion of the motion once it is seconded and also someone could make a call\nfor the question if they feel there has been enough discussion.\nCommissioner Reid stated from her point of view, the complainant did not receive the\ninformation on his request in a prompt manner; on that basis, she requests that the\nCommission sustain the complaint.\nCommissioner Chen stated that she agrees with everything Commissioner Reid said, but\nthat is not what the complaint is; she is having trouble and needs clarification; it is clear\nthat the City needs to do better in responding to PRAs, but that is not the issue of the\ncomplaint on tonight's agenda.\nCommissioner Chen made an amended [substitute] motion; moved approval of not\nsustaining the complaint itself; however, the Commission found a lot of other issues on\nhow the complaint was responded to and would like to explore further with the City\nAttorney's Office to address them.\nThe amended/substitute motion was not seconded.\nVice Chair Shabazz stated that he sees Commissioner Chen's point of view; the question\nis does the Commission have to make a determination of a violation solely based on what\nwas put into the complaint; he is ready to call the question and may also have an alternate\nsolution.\nOn the call for the question, the motion carried by the following roll call vote:\nCommissioners Chen: No; LoPilato: No; Reid: Aye; Shabazz: Aye; Chair Tilos: Aye. Ayes:\n3. Noes: 2.\nVice Chair Shabazz stated the only language in the Sunshine Ordinance relates to the\ndisposition of a complaint is unfounded; there have been recommendations to sustain\nand not to sustain; the suggestion he was going to share was to just say that the complaint\nhas merit; based on the complaint having merit, the Commission could proceed to\nrecommend some of the particular cures that have been stated; if there is support for it,\nhe would be willing to make a motion to reconsider the last vote and make a new motion.\nMeeting of the\nOpen Government Commission\nApril 5, 2021\n16", "path": "OpenGovernmentCommission/2021-04-05.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-04-05", "page": 17, "text": "Chair Tilos stated the next step is to draft the decision.\nVice Chair Shabazz stated as a point of order, he is more interested in the restoring part\nor what happens next; it is also important to address so the same issue does not happen\nagain.\nChair Tilos stated the issue can be addressed with a letter to City Council, as\nCommissioner Chen suggested, on how to make changes to the policy.\nThe Chief Assistant City Attorney stated that she wants to confirm that to the extent that\nthere is going to be any recommendation from the Commission as to any policy change,\nit will be a request to the Council to make that policy change and should definitely be\nagendized.\n***\nChair Tilos called a recess at 9:55 p.m. and reconvened the meeting at 9:59 p.m.\n***\n3-C. Hearing on Sunshine Ordinance Complaint Filed by Jay Garfinkle on February 25,\n2021\nComplainant Jay Garfinkle gave a brief presentation.\nSpecial Counsel Kristen Rogers gave a brief presentation.\nThe City Clerk stated a motion is needed to consider remaining items.\nCommissioner LoPilato moved approval of considering the remaining items in order to\nget a response back to City Council.\nCommissioner Chen seconded the motion.\nUnder discussion, Vice Chair Shabazz stated it is great that the City wants a response\nbut he does not know whether it should motivate the Commission's agenda, goals and\npriorities, which is partially why he suggested the Commission collectively agree on its\ngoals and priorities; he does not know if the Commission would be able to have the\nsubstantive discussion within the context of the Brown Act.\nChair Tilos stated that he is leaning toward that route as well; he would like to give Mr.\nGarfinkle his time so he will not vote to consider the next item.\nOn the call for the question, the motion failed by the following roll call vote: Commissioners\nChen: Aye; LoPilato: Aye; Reid: No; Shabazz: No; Chair No: Aye. Ayes: 2. Noes: 3.\n***\nMeeting of the\nOpen Government Commission\nApril 5, 2021\n17", "path": "OpenGovernmentCommission/2021-04-05.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-04-05", "page": 18, "text": "Mr. Garfinkle stated the only interested citizen was the lobbyist who created the resolution\nand lobbied Council; the general public was not aware it was on the agenda which did\nnot allow them to weigh in on a very contentious piece of legislation.\nVice Chair Shabazz stated that he believes Mr. Garfinkle is out of order in discussing the\nspecific merits of the legislation.\nMr. Garfinkle stated he did not want to debate every issue, but would respond if people\nhave questions; the bottom line is that whether or not a legitimate process or resulted in\ninstruction being given to lobbyists to say that the citizens of Alameda do not want to\nrequire previous law enforcement experience for Sheriffs; it is not an affirmative action\nissue; the question is how to go about getting the most qualified people to be Sheriffs; he\nbelieves that if Alameda citizens had the opportunity to weigh in on it, they would have\nopposed the resolution; they were not even given the opportunity, which is the violation.\nVice Chair Shabazz inquired whether there is a specific practice for legislation to be\nadopted and lobbied by the City.\nThe City Clerk responded most typically, specific legislation that goes to Council goes\nbecause it is considered outside the scope of the legislative agenda; the vast majority of\nstances on bills are done under the umbrella of the legislative agenda.\nCommissioner Reid stated that she did not see that it was common practice for other\ncities to include specific bills on their legislative agendas; inquired if that is correct.\nThe City Clerk responded that she has not done a review of other cities and would not be\nable to comment on it; she would say that Alameda has done various iterations in the past\nand quite frequently specific Councilmembers raise specific bills under the umbrella.\nCommissioner Reid inquired whether specific bills appear in the legislative agenda, to\nwhich the City Clerk responded generally it there are just larger topic.\nCommissioner Reid inquired who decides which State bills the City supports, to which the\nCity Clerk responded the City Manager's office.\nIn response to Commissioner Reid's inquiry, the City Clerk stated the support letters are\nsent out under the umbrella of the legislative agenda.\nCommissioner Reid stated that she reviewed the video from the February 16th meeting\nand noticed a speaker was actually a lobbyist for the legislation and was noted in the staff\nreport as a community member; she does not think that a lobbyist who is involved in the\nproduction of the legislation or supportive of a bill qualifies as what an Alameda resident\nwould expect as a community member.\nVice Chair Shabazz inquired of Chair Tilos if the Commission is asking clarifying\nquestions or stating opinions about members of the community.\nMeeting of the\nOpen Government Commission\nApril 5, 2021\n18", "path": "OpenGovernmentCommission/2021-04-05.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-04-05", "page": 19, "text": "Chair Tilos responded questions and comments only at this time, inquired whether\nCommissioner Reid had questions for Mr. Garfinkle or Ms. Rogers.\nCommissioner Reid responded she would hold her questions for now.\nCommissioner LoPilato stated her understanding of the procedure; inquired whether Mr.\nGarfinkle verified that Mr. Hofer is a registered lobbyist or if he was just using the term in\nreference that he was part of a non-profit organization.\nMr. Garfinkle responded that he drafted the resolution and presented it to several cities;\nwhether or not he is a registered lobbyist is not the issue; he is acting as a lobbyist and\nis not a random member of the Alameda community.\nCommissioner LoPilato inquired whether Mr. Garfinkle was speaking on behalf a group\nof citizens when using the word \"our\" in presentation materials, to which Mr. Garfinkle\nresponded it is editorial.\nCommissioner LoPilato inquired whether the legislative agenda is typically done as a\nconsent calendar item, to which the City Clerk responded in the affirmative; stated it is on\nthe consent calendar every year.\nCommissioner Reid inquired a definition of what items are allowed to be on the Consent\nCalendar.\nThe City Clerk responded items that are considered routine.\nCommissioner Reid inquired whether it could be said that non-controversial items can be\non the Consent Calendar.\nThe City Clerk responded she would not make that statement because some people\nmight find spending money on a vehicle controversial and some people might not.\nCommissioner Reid stated she found the definition in Robert's Rules and just wondered\nif it aligned with Alameda's policy for its Consent Calendar.\nThe City Clerk stated if there was an item that would bring out the public, it would be\ndefinitely placed on the Regular Agenda.\nMs. Rogers further clarified that Council or a member of the public could pull an item off\nthe February 16, 2021 Consent Calendar for discussion and had opportunity to do so\nduring the Council meeting.\nMr. Garfinkle stated he has issues with the use of the Consent Calendar; Council adopted\nnew rules that a member of the community can no longer pull items; also, contentious\nitems are placed on the Consent Calendar.\nMeeting of the\nOpen Government Commission\nApril 5, 2021\n19", "path": "OpenGovernmentCommission/2021-04-05.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-04-05", "page": 20, "text": "Commissioner Reid inquired how a member of the public would know what SB 271 is on\nthe legislative agenda.\nMs. Rogers responded if a member of the public is interested in a topic on the legislative\nagenda, there is information on literally every bill on the State website; it is the subject of\na lot of public discourse and all subject to the same rules and principles and requirements\nfor the meeting to be public; SB 271 is not an obscure piece of legislation; the issue tonight\nis whether the materials in the agenda provided the notice required for an interested\nperson to show up.\nCommissioner Reid inquired whether or not the person who made the comments\npreviously reached out to the City.\nMs. Rogers responded that she did not know, but that Mr. Garfinkle's complaint is not\nalleging that it was a serial meeting or that there some improper conduct behind the\nscenes with respect to the particular issue; the person submitted a public comment and\npurported to represent an organization comprising 41 different individual member\norganizations and other Alamedans.\nIn response to Commissioner Reid's inquiry, the City Clerk stated anybody can reach out\nto the Council at any time; it does not matter whether it is before or after an item is placed\non the agenda; a person can comment on the item on the agenda even if they had already\nreached out to the Council before.\nIn response to Commissioner Reid's inquiry, Ms. Rogers stated that she did not mean to\nsuggest any knowledge of whether when, and what time someone communicated on the\nparticular issue; any member of the public could send an email or submit a comment and\nstill show up to the Council meeting.\nIn response to Commissioner Reid's inquiry, the City Clerk stated there is nothing that\nprohibits a member of the public from addressing the Council at any time.\nCommissioner Reid stated she did not see the word Sheriff mentioned in the legislative\nagenda, although Ms. Rogers stated as such.\nMs. Rogers stated the point she was trying to make is that criminal justice reform is\nspecifically called out as an area of the legislative priorities.\nCommissioner Chen stated the City Council has reduced public access in the changes\nthey made to the Consent Calendar; a second point of access limits comment on the an\nitem to one minute; she feels the chances of someone catching it was close to zero.\nThe City Clerk stated the changes to the Consent Calendar went into effect after the\nFebruary 16th meeting; the item was pulled and a member of the public was able to\ncomment.\nMeeting of the\nOpen Government Commission\nApril 5, 2021\n20", "path": "OpenGovernmentCommission/2021-04-05.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-04-05", "page": 21, "text": "Commissioner Chen stated open government has to allow comment about the issue; she\ndoes not think people had a chance to be part of the discussion.\nThe City Clerk stated there is a speaker waiting and there needs to be a vote before 11:00\np.m. to continue the meeting.\nVice Chair Shabazz concurred with the City Clerk; suggested moving to public comment.\nPublic Comment:\nStated there was a great example of how this was done properly last summer at the July\n21st City Council meeting regarding eight measures of police reform; to suggest support\nof specific items was jumping the gun; it is up to the City Manager's Office to determine\nwhich SBs apply: Matt Reid, Alameda.\nVice Chair Shabazz stated in 2018, he attempted to go to the County Registrar of Voters\nto run for Sheriff, but he was turned away because he does not have any law enforcement\nbackground; he would refer to Mr. Hofer and Secure Justice as advocates as opposed to\nlobbyists; part of the reason he wanted to run for Sheriff was that the current Sheriff at\nthe time had exhibited ties to White supremacist groups, was involved with things related\nto Immigration and Customs Enforcement (ICE) and certain detainees and also the\nsqualid conditions of the County jails; there was a campaign to audit the Sheriff's Office;\nwhether or not these issues align with principals around reforms, he would say very much\nso and there will be a race in 2022; he does think that the legislative agenda outlines the\nvarious principals; the issue of it being on the Consent Calendar and then being pulled\nfrom the Consent Calendar, there was opportunity for people to speak; he is on the fence\nabout it; part of him wants to find the complaint unfounded because it was clear from the\nlegislative agenda that these items and general principles would be discussed; he is\nconcerned that there is not generally a practice for specific legislation to seemingly come\nbefore the public; the questions are what are the specific positions Alameda takes on\nState and federal legislation; what is done if there is contradictory legislation; what is the\nprocess.\n***\nVice Chair Shabazz moved approval of continuing the meeting past 11 p.m.\nCommissioner LoPilato seconded the motion, which carried by the following roll call vote:\nCommissioners Chen: Aye; LoPilato: Aye; Reid: Aye; Shabazz: Aye; Chair Tilos: No.\nAyes: 4. Noes: 1.\n***\nCommissioner LoPilato stated that she does some State legislative advocacy, but is not\na registered lobbyist and has not advocated for this bill; it is important to keep it clear that\nthe agenda item is a road map and taking a bill by bill analysis is difficult because there\nare over 2,000 bills introduced each year; it is difficult for the average citizen to go through\nMeeting of the\nOpen Government Commission\nApril 5, 2021\n21", "path": "OpenGovernmentCommission/2021-04-05.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-04-05", "page": 22, "text": "and figure out exactly what bills might fall within various headings of the City's abstract\ngoals; it is important to realize that there is no way the City Council agenda could possibly\ninclude references to each bill that the City might support or oppose under the umbrella;\nSenator Skinner, who represents Alameda, is a co-author with Senator Weiner of San\nFrancisco; it is clear that the legislative agenda is considering a new plank to the public\nsafety and homeland security platform, which includes support policing and racial equity\noutcomes consistent with actions taken by City Council throughout the year; it is called\nout and puts people on even further notice; it addresses the issue of broadening the\nsupport of reform measures; SB 271 was actually mentioned before it was open to public\ncomment and there was quite a bit of notice; lots of metaphors are used; she believes the\nroad map one is a good way to frame the way to look at the Brown Act and the Sunshine\nOrdinance; she will say that maybe a legislative agenda should not be on the Consent\nCalendar and there are all kinds of things that can be suggested when talking about the\nspirit of open government, but does not think making those suggestions through the\nvehicle of addressing specific complaints is the best approach; she hopes that when the\nCommission looks at the ordinance and recommendations, the Commission can weave\nin some language and contemplate what can be done to advance the issues outside of\ndeciding specific complaints; with respect to this specific complaint, she would find it\nunfounded.\nCommissioner Reid concurred with Commissioner Chen; stated that she also views the\nlegislative agenda as generic; nothing really specific is included; watching the February\n16th meeting, it was odd that something specific was added on the fly; it did not matter\nwhat the bill was; the public did not have time to understand what was discussed; that is\nwhere she is landing; it is the Commission's responsibility to ensure that the public is\naware and the government is being transparent, that they have the opportunity to\nparticipate and express their opinion; she would argue that the gentleman that did speak\nwas not from Alameda or a community member; in fact, he was a registered lobbyist; the\nprocedure was not sufficiently transparent to allow the public the right to know and\nparticipate; the Commission should be striving for that; her suggestion would be to revisit\nand agendize the item to allow the public to come out and comment, which is he beauty\nof democracy.\nVice Chair Shabazz stated that he hopes he would still be treated as a community\nmember should he ever move out of Alameda; he is ready to move on the item; he\nappreciates Commissioner Reid's points regarding community members having\nknowledge of things and the sense of transparency and also about participation; the\ninstance of the community member who advocated for the inclusion of a specific piece of\nlegislation is an example of people being able to participate; it also provided an\nopportunity to clarify for those not aware of some of these issues related to police reform;\nhe does echo Commissioner Chen's point and wonders if there is merit related to the\nconcern about how things are noticed; he appreciates Commissioner LoPilato's metaphor\nof the road map; it seems there are some attempts to use the complaints as a way to\naddress other issues; the Commission should identify issues and either come back with\nreports or advise Council on how to improve the application of the Sunshine Ordinance.\nMeeting of the\nOpen Government Commission\nApril 5, 2021\n22", "path": "OpenGovernmentCommission/2021-04-05.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-04-05", "page": 23, "text": "Commissioner Reid stated the Mayor specifically recognized that the speaker had\nreached out to City Council prior to the meeting, so the speaker was planned, which is\nfine, but argues that the public did not truly have an opportunity to weigh in; the Brown\nAct asks ample time be ensured for people to weigh in; five minutes is not an ample\namount of time and no other member of the public came forward; there was no way\nanyone knew besides the Council and the speaker who knew SB 271 was going to be\nmentioned or that the legislative agenda was going to be pulled and new information was\ngoing to be introduced; it should have been agendized and discussed properly.\nCommissioner LoPilato stated that she wants to underscore there is nothing nefarious\nabout a community member, lobbyist or advocate reaching out to the Council; typically,\nhow that process might work is a person would reach out after seeing the draft ordinance\nor resolution; the fact the speaker reached out to Council is not uncommon or nefarious,\nit is engagement; with this issue, it was a distinction without a difference because\nultimately, once that legislative agenda was passed, whether SB 271 was listed on it or\nnot, it fell under public safety and criminal justice reform, which was passed and nobody\nwould have had a chance to weigh in on it anyway because that gives the guidance to\nthe City Manager to decide what happens to bills; based on the way the process for this\nparticular issue unfolds, there is no opportunity to weigh in on each bill, it is just not how\nthe process works; if the Commission wants to make another recommendation some day\nin some other context that it should work differently, then that is something to explore.\nVice Chair Shabazz thanked Mr. Garfinkle for bringing the issue to the Commission;\nstated there are concerns and interests in a couple different areas.\nVice Chair Shabazz moved approval of finding the complaint unfounded consistent with\nthe recommendation of the City's Special Counsel.\nCommissioner Reid stated in no way is she suggesting that there was anything nefarious\nat all; she does believe the public is entitled to transparency and to be able to weigh in; if\nthe process is that the City Manager looks at the legislative agenda and decides what to\nsupport, it opens up the question of why the legislative agenda was pulled and specific\nbills were added; it was somehow out of line; there was no way for the public to have\nknown the bills were going to be discussed; the speaker was a lobbyist and no other\nmembers of the public commented.\nChair Tilos stated when deciding the issue, he feels members are going too deep into the\nactual bill versus whether it was noticed and the public was able to comment; it should\nnot matter whether the speaker was a lobbyist or a community member; the legislative\nagenda is a long list of things; he agrees with Commissioner Chen that it will just take\na\nlot of work; he concurs with Commissioner LoPilato's roadmap framework and that it is\ndifficult to navigate 2000 bills individually; there is this over guiding principle of how the\nCity is going to be on the decisions; the specifics of the bills and what transpired in the\nmeeting should not matter, the transparency piece is important.\nCommissioner Reid stated she agrees with Chair Tilos; it does not matter what the bill is,\nMeeting of the\nOpen Government Commission\nApril 5, 2021\n23", "path": "OpenGovernmentCommission/2021-04-05.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-04-05", "page": 24, "text": "the issue is the legislative agenda appears to be a general roadmap; the question is how\nwould someone know; it is not common practice to add a specific bill to the legislative\nagenda; that has not been done before in Alameda and to her understanding it is not\ncommon practice in neighboring cities; it falls out of the scope of the regular process.\nIn response to Commissioner Reid's inquiry, Chair Tilos stated there is already a motion\non the floor.\nCommissioner Chen provided an example of the process to get a resolution passed;\nstated anyone can present something to the Council, whether it is controversial or not; if\nthe Council decides to put it on the agenda, when the agenda is published, the public has\na chance to see it and has the opportunity to pull it for discussion; when that happens,\ntypically, people will come out who might be against it; if the Council still wants to support\nit, they can vote on it; everybody gets a fair chance; she does not think the public had a\nfair chance in this instance; if the Council wanted to put bills on the Consent Calendar,\nname them and give the public a chance to see that and pay attention; if someone was\nwatching the meeting they would not be able to do research fast enough to figure what\nwas going on; it is important to give the public a fair chance.\nCommissioner LoPilato stated that she agrees with Commissioner Reid regarding\ntransparency and with Commissioner Chen regarding everyone getting a fair chance;\nthere probably are improvements that could happen to the process; she thinks the\nCommission could find a vehicle to potentially provide recommendations; in the context\nof the current complaint, there was no violation of the Sunshine Ordinance.\nCommissioner LoPilato seconded the motion.\nOn the call for the question, the motion carried by the following roll call vote:\nCommissioners Chen: No; LoPilato: Aye; Reid: No; Shabazz: Aye; Chair Tilos: Aye. Ayes:\n3. Noes: 2.\n3-D. 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. Not heard.\nCOMMISSION COMMUNICATIONS\nCommissioner Shabazz stated the meetings have been going long; suggested Chair Tilos\nwork with staff to prioritize and set the agenda.\nChair Tilos responded he thinks the amount of complaints received in the last few months\nis what is throwing the meetings off; inquired whether there are any complaints on the\ntable, to which the City Clerk responded there are none at this point.\nChair Tilos stated that he is keeping his fingers crossed and hopes to be able to get to\nItem 3D on the next agenda; the complaints are what controls the agenda right now.\nMeeting of the\nOpen Government Commission\nApril 5, 2021\n24", "path": "OpenGovernmentCommission/2021-04-05.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-04-05", "page": 25, "text": "Commissioner Chen suggested a process for complaints; stated that she hopes there is\na list collected of all the Commission's lengthy conversations about all the ways the\nSunshine Ordinance is practiced.\nCommissioner LoPilato suggests two avenues: 1) Section 2-22.4 indicates one of the\nCommission's duties is to report in writing to the Council at least once annually on any\nparticular policy problems encountered in the administration of the Sunshine Ordinance;\nshe agrees with Commissioner Chen that the Commission is spending about 90% of time\non it; the Commission should probably establish a cadence on this in the context of a\nsubcommittee; it should be assumed that complaints will continue to be received and\nshould be explored; 2) Section 2-92.4 states that the Commission shall review public\nnotices to ensure they conform to the requirements of the article and work to improve\npublicly accessible information databases; suggested welcoming staff's thoughts on what\nthe Commission could best be doing to comply with both those aspects; stated there\nmight be a way to get some suggestions about how the Commission could handle these\nissues offline in an efficient way; having some cadence may have quicker meetings which\nwould give appropriate time for public comment; noted the great work Vice Chair Shabazz\ndid in his PRA workshop.\nCommissioner Reid inquired whether it would be possible to hold a special meeting to\ndiscuss the null and void remedy, to which Chair Tilos responded he would not like to do\nso.\nVice Chair Shabazz thanked people for attending his PRA workshop; stated he likes the\nsuggestion about a subcommittee with clear goals; suggested exploring having the City\nCouncil timer feature and guidelines on what type of questions can be asked in advance\nof meetings.\nCommissioner Reid inquired whether it would be possible to establish a subcommittee to\ndiscuss some questions that may be relevant to the Sunshine Ordinance.\nThe City Clerk responded it cannot happen tonight since it is not on the agenda; stated\nthe Commission could explore it at a future meeting.\nAdjournment\nChair Tilos adjourned the meeting at 11:34 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\nApril 5, 2021\n25", "path": "OpenGovernmentCommission/2021-04-05.pdf"}