{"body": "OpenGovernmentCommission", "date": "2021-11-01", "page": 1, "text": "MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING\nMONDAY NOVEMBER 1, 2021 7:00 P.M.\nChair Tilos convened the meeting at 7:06 p.m.\nROLL CALL -\nPresent:\nCommissioners Chen, LoPilato, Montgomery, Reid,\nShabazz and Chair Tilos - 5. [Note: The meeting was\nconducted via Zoom.]\nAbsent:\nNone.\n[Staff present: Chief Assistant City Attorney Elizabeth Mackenzie;\nCity Clerk Lara Weisiger]\nNON-AGENDA PUBLIC COMMENT\nNone.\nCOMPLAINT HEARINGS\n3-A. Hearing on Sunshine Ordinance Complaint Filed on September 21, 2021\nDorothy Freeman, Complainant, and Paul Foreman gave an Opening Statement and\nPresentation of Facts.\nBradford Kuhn, Nossaman, City/Respondent, gave an Opening Statement and\nPresentation of Facts.\nMr. Foreman gave a Reply to the City/Respondent Opening Statement and Presentation\nof Facts.\nCommissioner LoPilato inquired whether correspondence was submitted for the\nSeptember 7, 2021 Closed Session; stated a written submission encouraged purchase\nof the entire 2.8 acres.\nMs. Freeman responded in the affirmative; stated that she probably made a statement;\nshe has made so many that she cannot remember.\nCommissioner LoPilato inquired whether the term \"pre-development agreement\" is\na\ntechnical term.\nMr. Foreman responded in the negative; stated legally, there is no such thing as a pre-\ndevelopment agreement; a City ordinance states what has to go in to a Development\nAgreement (DA); two or three of the terms in the Settlement Agreement (SA) would also\nbe in a DA.\nMeeting of the\nOpen Government Commission\nNovember 1, 2021\n1", "path": "OpenGovernmentCommission/2021-11-01.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-11-01", "page": 2, "text": "Commissioner LoPilato inquired how an eminent domain proceeding can be resolved via\nsettlement if certain segments have to be discussed in open session.\nMr. Foreman responded the actual negotiation has to be done in Closed Session; stated\nonce negotiations are completed, the City Attorney could simply ask to present the SA at\nan open meeting of the City Council for consideration and public input; if it is not accepted,\nit would start over again; compared the matter to labor negotiations.\nCommissioner LoPilato inquired how the matter would be agendized, to which Mr.\nForeman responded it would have to be agendized for the next meeting; stated in\nFebruary, the City indicated an agreement was reached in principle; he would not be\nworried about a two-week delay between a Closed Session and the final presentation.\nIn response to Commissioner Reid's inquiry regarding appraisals, Mr. Foreman stated the\nquestion is not germane to the issue, but he could answer if there is no objection from the\nCommission; he attended a neighborhood meeting at Jean Sweeney Park where Mayor\nEzzy Ashcraft explained the original appraisal was approximately $1 million and that the\nrailroad came back with $8 million; the Mayor further explained that due to the large\ndisparity, the Council got a second appraisal, which was significantly higher and led\nCouncil to believe the City could not afford to purchase the entire property; he asked the\nMayor about the second appraisal; the Mayor said the City Attorney instructed it cannot\nbe revealed.\nIn response to Commissioner Reid's inquiry, Mr. Kuhn stated there was a confidential\nexchange of appraisals between the City and Union Pacific in the middle of litigation;\npursuant to an agreement signed by the parties, the City is not allowed to disclose the\nvaluation information presented by Union Pacific; he is able to say that the second\nappraisal was significantly higher; the Closed Session was necessary to discuss the risks\nof litigation on the potential exposure; he does not see any way to have candid dialogue\nin open session; he does not think it is fair to reach a decision in Closed Session and then\nask for public input, but not be able to discuss the risks of the litigation and potential\nexposure; it puts the City Council in an unfair position; the ultimate outcome was the same\nbecause the SA was disclosed and reported out in open session; the details were fully\nlaid out to the public.\nMr. Foreman stated the Council was not obligated to keep the appraisals a secret, but\nagreed to do so; the Council could have come to an open meeting to make the same\ndisclosure that the Mayor and Mr. Kuhn just made and the public would at least have\nsomething to discuss; the Complaint is not about a bad decision, it is about a secret\nconclusion that was made without public input.\nCommissioner Reid stated that she is trying to understand how the appraisal fits into the\ncontext of the current zoning; inquired about the current zoning of the property.\nMr. Foreman responded the current zoning on a small piece of the property is industrial\nand Union Pacific (UP) wants to raise to R2 and is also talking about density beyond R2\nMeeting of the\nOpen Government Commission\nNovember 1, 2021\n2", "path": "OpenGovernmentCommission/2021-11-01.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-11-01", "page": 3, "text": "limits, which is why there is a provision about R2 in the SA; if the zoning is changed, the\nland will be a whole lot more valuable than it is today.\nMs. Freeman stated approximately 1.7 acres are zoned R2 already, leaving\napproximately 2.3 acres still zoned for industrial.\nMr. Kuhn stated no one is disputing that the SA in no way changes the zoning of the\nproperty and somehow eliminates the requirement for Union Pacific to come back to the\nCity Council; Union Pacific has to go through an entire development application process,\nget public input, and get City approval to develop the property, which is not taken off the\ntable or changed whatsoever by the SA.\nMr. Foreman stated that he agrees Union Pacific has to do everything, but the agreement\ngreases the rails; requested the Commission to read it and come to its own conclusion\nabout whether it is germane.\nCommissioner Reid requested Ms. Freeman to elaborate on the background of the land\nacquisition and how much community involvement there was up until the Closed Session.\nMs. Freeman responded in 2013 when the City started out to develop the Park, she\nworked with the Recreation and Parks Department on community meetings which had\nover 300 people attended, as well as 700 to 800 people who participated in an online\nsurvey; the survey included options for what people wanted to have in the Park, which\nwas very close to what Jean Sweeney envisioned; as the Park was being developed, it\nwas always understood that the Union Pacific land would become part of the Park; the\nmap portrays that the Union Pacific land is part of the Park, including the bike path; in\n2018, the City filed the eminent domain case in public; the case explained that the 1.7\nacres zoned R2 was too expensive for the City to purchase; the rest of the 2.8 acres was\naddressed in public; people believed the Union Pacific land would be added to the Jean\nSweeney Park; all the community outreach indicated the land would eventually become\npart of the Park.\nMr. Kuhn clarified a portion of the Union Pacific corridor was never going to be part of the\nPark; every public project always has public involvement and input; candidly, any piece\nof litigation involving the City has some sort of public dialogue because taxpayer dollars\nare at stake, but does not bring the matter outside of the exemption which allows the City\nCouncil to meet in Closed Session to discuss and resolve pending litigation; otherwise,\nevery matter the City decides regarding litigation would be open to the public, which\ncannot be the case.\nMr. Foreman stated Complainants are not alleging that is the case; they are alleging when\nthere is an obligation to do something in public, it has to be done in public; it does not\nhave to disrupt the negotiation process or the closed nature of it; with ordinary litigation\nthat had nothing to do with public hearings or a claim against the City, there is no\nobligation to allow public input; it is a private matter; this is a public matter that involves a\npublic park, housing and zoning; every time the City has litigation, it does not mean it has\nMeeting of the\nOpen Government Commission\nNovember 1, 2021\n3", "path": "OpenGovernmentCommission/2021-11-01.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-11-01", "page": 4, "text": "to be done in secret from start to finish; this is an exception.\nIn response to Chair Tilos's inquiry, Mr. Kuhn stated the public does not get to control the\nlitigation; the details were disclosed and made available to the public; if the public wants\nto provide participation, they still have the ability to do so; they can voice their concerns\nand tell the Council to acquire more land; the open session resolution to acquire the\nproperty to begin with was done in accordance with the City Charter.\nMr. Foreman stated he and Ms. Freeman are here because they think the citizens had a\nright to have the proposal presented to the public once the negotiations were completed;\nwhether or not the Council made a good economic decision is not being challenged.\nCommissioner LoPilato stated the Commission needs to be cautious about too much\nparty to party debate, which is outside of the procedures.\nIn response to Commissioner LoPilato's inquiry, Mr. Kuhn stated the City was quickly\napproaching a trial date; typical when that happens, the parties want to continue the trail\nlater or take it off calendar if they are engaging in negotiations; that happened in this case;\nthere were preliminary discussions with Union Pacific in February; it took the City until\nSeptember to get somewhere; the litigation was still active and pending at the time of the\nClosed Session; the dismissal of the case did not happen until after Closed Session was\ncompleted and the SA was signed.\nMr. Foreman stated he just wanted the Commission to read the stipulation.\nCommissioner LoPilato stated that she has read and is familiar with the stipulation; it is\nbeneficial to understand that when a SA is signed by one party, the offer can still be\nrevoked; if an offer is made and an agreement laid out, then the other party listens to an\nopen session and learns all the weaknesses of the City's case, the whole deal can be\nended with a simple email to the City Attorney saying the deal is off.\nMr. Kuhn concurred with Commissioner LoPilato; stated anyone can revoke a signature\nat any time.\nCommissioner LoPilato stated Mr. Foreman outlined what a compliant process under the\nComplainant's interpretation would look like; inquired what that timeline and process\ncould entail.\nMr. Kuhn responded City Council could have gone into closed session, discussed the\nmatter, stated no decision was reached, put it on a future Council agenda in open session,\nget public input and reach a decision; he thinks it is form over substance because the\npublic did have a chance to weigh in on the matter; Ms. Freeman even submitted a letter\nbefore the City Council hearing; the Recreation and Parks Department held public\nmeetings about potential revisions to the Park layout and design; ultimately, the City\nCouncil gets to make decisions on pending litigation, weighing the risks and the budget;\nlaying the cards out on the table for Union Pacific to see would completely change their\nMeeting of the\nOpen Government Commission\nNovember 1, 2021\n4", "path": "OpenGovernmentCommission/2021-11-01.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-11-01", "page": 5, "text": "negotiating position.\nCommissioner LoPilato inquired whether the settlement is typically considered to be\nunder proceedings or if there is a definition for the term.\nMr. Kuhn responded in the affirmative, stated it is all one and the same; he would either\nsettle an eminent domain action via SA, which calls for the exact terms and dismissal\nafter the fact pursuant to a stipulated judgment where the Court transfers the property.\nCommissioner Reid inquired whether the final Master Plan approved by Council in 2016\nincludes the parcel in question.\nMs. Freeman responded in the affirmative; stated the design includes the 4.52 acres\nalong the southern border.\nCommissioner Reid inquired why the public would not have the right to know about the\nreduction in property if it was part of the Master Plan.\nMr. Kuhn responded that the public did know about it; the terms were reported out in open\nsession; there were Recreation and Parks meetings well before which discussed potential\nreductions and changes in size; Ms. Freeman was aware of it before the meeting and\nsubmitted a comment letter on it; nothing was hidden from the public; the City decided to\nresolve pending litigation in Closed Session so they could talk about risks and potential\nramifications of moving forward with acquiring the entire corridor and whether or not there\nwas funding.\nMs. Freeman stated from copies she obtained of Court case documents and the\nRecreation and Parks Director's meeting with the public to explain that the west end of\nthe park had to be redesigned, she deduced the change; why it had to be redesigned was\nnot explained; one charts said: \"not City-owned property\" which was subsequently\nremoved; a blank space showed it would no longer be considered as part of the Park;\nwhat was going on was never discussed in public; she was assuming that this was the\nissue due to the Court records and the meeting about the redesign of the park, but it was\nnever stated by the City.\nCommissioner Reid inquired whether Mr. Kuhn was involved in the litigation with Union\nPacific, to which Mr. Kuhn responded in the affirmative.\nCommissioner Montgomery inquired whether there would have been any effect on the\nnegotiation or settlement if the matter been placed on a later agenda date.\nMr. Kuhn responded that he does not want to speculate, but would assume that if there\nwas an open session and the City disclosed valuation, potential exposure and the risks\nof acquiring the entire corridor, it would significantly impact the negotiating position with\nUnion Pacific.\nMeeting of the\nOpen Government Commission\nNovember 1, 2021\n5", "path": "OpenGovernmentCommission/2021-11-01.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-11-01", "page": 6, "text": "Mr. Foreman stated that he thinks Mr. Kuhn's explanation is contrived; the City negotiated\nwith Union Pacific over a long period of time; the City knew the strengths and weaknesses\nof the railroad and vice versa; Council came to a consensus as to what would be a good\ndeal; the railroad agreed to it; all the City Attorney had to do was ask whether it could be\npresented to the public in an open meeting; at the public meeting, nothing has to be\ndisclosed if it would be harmful; the City could have simply stated, like the Mayor did, that\nthe appraisal cannot be disclosed; it still gives the public a chance to speak out and feel\nthey have real input and someone is listening to them; let the public feel they are\nparticipating in open government.\nCommissioner Reid inquired why the City would agree to pay a previously agreed upon\nprice for the full parcel and now decide to pay less than half for a lot less land; further\ninquired whether the zoning was different in the appraisal process.\nMr. Kuhn responded in the affirmative; stated the zoning was different; the original\nappraisal was done incorrectly; the trail appraisal prepared for the City was massively\nmore expensive than the original $1.1 million deposit.\nCommissioner Reid inquired whether the appraisal for housing would add much higher\nvaluation than for park land, to which Mr. Kuhn responded in the affirmative.\nCommissioner Reid inquired how long Mr. Kuhn has been contracted with the City on the\nproject, to which Mr. Kuhn responded he became involved a little over a year ago.\nMs. Freeman gave a Closing Statement.\nMr. Kuhn gave a Closing Statement.\nSpeakers:\nJay Garfinkle, Alameda, stated that he does not find the City Attorney's argument\ncompelling; the City Council and City Attorney's office have a tendency to disregard the\npeople's constitutional right to know what the City government is doing; he is disappointed\nthe Council chose to disregard the will of the people.\nJenice Anderson, Alameda, stated that she knew the reasons for the changes to the park\nproject, including Union Pacific changing the land price; she does not follow Ms. Freeman\nand did not get the information from her, nor is she part of the group bringing forward the\nComplaint; the public knew about the changes to the plan before the September 7th\nmeeting, so it was not out of the blue; the person who did the bulk of the Complaint was\nbanned from bringing Complaints to the OGC for several years; she feels if anyone else\ndid a by-proxy Complaint, it would be called out; she thinks the whole Complaint is\nridiculous.\nCommissioner Reid stated the closed session discussions placed a veil on the appraisal\nprocedure; whether or not the valuation was based on housing or parkland would have a\nMeeting of the\nOpen Government Commission\nNovember 1, 2021\n6", "path": "OpenGovernmentCommission/2021-11-01.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-11-01", "page": 7, "text": "huge variation.\nIn response to Chair Tilos's inquiry regarding timing Commissioners, the City Clerk stated\nthe Complaint Procedure does not list a specific time.\nChair Tilos stated he would like to start with five minutes; if more time is needed,\nCommissioners can request more, up to nine minutes.\nCommissioner Reid stated that she was surprised Mr. Kuhn was involved; it seems there\nis considerable bias; the public was involved from the very beginning; then, suddenly, the\nCouncil decided not to include the public in the litigation section of the process; the\nSunshine Ordinance provides for more transparency; the public has the right to know the\nreasons regarding the appraisals and has the right to participate; the neighbors should\nbe included in the process.\nCommissioner Chen stated she has been following the Jean Sweeney Park story since\nthe beginning; everyone who participated in the process feels like part-owners; to have\nthis suddenly happen is terrible; it is a threading the needle issue; under litigation,\nquestions and decisions from the City Council cannot be disclosed; she would rule in\nfavor of the City, but the way it came down does not pass the smell test; the OGC has the\nopportunity to recommend how to make it better; the neighbors and community still have\nmany future opportunities to speak up on how the land is or is not developed; the iron\ngates have not shut; she used to follow eminent domain and condemnation of properties,\nso she realizes a lot of regular folks might not fully grasp how a City can condemn\nproperties for City use, but cannot pay less than the land's value; the OGC's role is to try\nto figure out a way to bring the community back into the process without jeopardizing the\nagreement; an open hearing should be held, but in a manner so that Union Pacific does\nnot pull out; there are all kinds of dangers when the flood gates are open in the middle of\nlitigation.\nChair Tilos stated if the Commission votes in a certain manner on the issue, it could be\nsent back and open up the gates.\nCommissioner LoPilato stated that she does not think putting the item back on another\nagenda would open up the gates; the agreement has been signed; the Complainants\nacknowledged that the possible remedy of having it brought into open session, with the\nonly goal to have a discussion, would not change the outcome; there is a flawed\nassumption by the Complainants that the public could ask the City Council questions\nwhether in open or closed session; public comment can happen and Councilmembers\ncan share their reasoning, but the forum for asking questions is to directly contact the\nCouncilmember and ballot box power; there is not going to be an open session questions\nand answers on a SA; remedy-wise, there is not a lot to do; she thinks the OGC has the\njurisdiction to look at the matter and make a decision; substantively, it falls within the\npending litigation exception; she cannot imagine having attorney-client discussion in a\npublic session; it would not serve the City's interests; when she thinks about how tax\ndollars are spent, she would like to be able to trust that the City can have effective\nMeeting of the\nOpen Government Commission\nNovember 1, 2021\n7", "path": "OpenGovernmentCommission/2021-11-01.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-11-01", "page": 8, "text": "representation in the litigation, which requires being able to have private discussion about\nthe pros and cons; eminent domain proceedings, including a SA, could probably be a\nsubject of debate, but the proceedings seem proper; she is inclined to dismiss the\nComplaint, but would not find it unfounded; she was troubled by the concept of pre-\ndevelopment agreement; arguments could be made that the pre-development agreement\nfunctionally paves the way, but she does not think it legally does anything that takes it out\nof the pending litigation exception.\nChair Tilos stated that he concurs with Commissioner LoPilato's comments; there is\ndefinitely substance and he would not say the Complaint is unfounded.\nCommissioner Montgomery stated that she concurs with Commissioner LoPilato's\nstatements, as well as Commissioner Chen's comments; she is leaning toward denied at\nthis point, but not unfounded; she believes there are things to look at; perhaps a\nrecommendation could be made for the future.\nCommissioner Reid stated that she agrees with Commissioner Chen that the matter does\nnot pass the smell test in terms of transparency for the community; she is not suggesting\nthe agreement be withdrawn or substantial changes made, but she wonders what harm\nthere is in suggesting to the City Council reagendize the item to make the whole process\nmore transparent; the Commission is here for the public; she is leaning towards\ntransparency and providing the public with as much information as possible and an\nopportunity to participate.\nIn response to Chair Tilos's inquiry, the Chief Assistant City Attorney stated that when Mr.\nKuhn was discussing the ability to exit the agreement, he was talking about the point\nwhen the matter came to closed session in September; if there had been a delay at that\npoint or some question on whether or not the City was going to agree to certain terms,\nUnion Pacific or the City could have exited the agreement; at this point, there is a signed\nSA; she is not prepared to opine on the ramifications of the City trying to get out of the\nSA, but will say it is definitely beyond the scope and jurisdiction of the OGC; to clarify the\npoint, Mr. Kuhn's statement had to do with the status at the beginning of September, not\nnow.\nChair Tilos stated since the matter did not pass the smell test, he would consider kicking\nit back but it would not change the outcome; it is a done deal; he would not say the\nComplaint is unfounded because there is definitely something going on; Complaint denied\nseems to be more appropriate.\nCommissioner Reid stated that she agrees with Chair Tilos; bringing it back would give\nthe public an opportunity to be aware and weigh in; this has been going on since 2013;\nleave the doors open to allow the public to be aware; she does not see the harm in it\nsince the outcome will not change; the OGC would be doing its job to create transparency.\nChair Tilos stated the public is definitely aware now; it is after the fact, but there are quite\na few attendees at the meeting.\nMeeting of the\nOpen Government Commission\nNovember 1, 2021\n8", "path": "OpenGovernmentCommission/2021-11-01.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-11-01", "page": 9, "text": "Commissioner Chen stated none of the possible changes are a done deal; decisions will\nrequire hearings; the hearings will give the entire community, especially the neighbors,\nan opportunity to weigh in as the Council deliberates on whether or not to change the\nzoning or allow a development; it is obvious the Union Pacific attorneys just wanted to get\nmore out of the deal; they are doing their jobs; it is all part of a legal game; there are many\nmore times to get a bite of the apple; the process is not closed; the community has\nopportunities; everyone will be on alert to practice their democratic rights.\nCommission Montgomery stated the public could address the matter by speaking at a\nCouncil meeting on a non-agenda item or could write a letter to Council; inquired what\nwould be the value of reagendizing the item.\nChair Tilos stated Commissioner Montgomery's understanding is correct; reagendizing\nthe item would just be reopening the discussion; the Complainants just want the Council\nto be more on record about why they made their decisions; it is not an effective use of the\nCouncil's time and taxpayers' dollars.\nThe Chief Assistant City Attorney directed the Commissioner's attention to the issue at\nhand, which is precisely if they have concluded whether there is a violation of the\nSunshine Ordinance or the Brown Act; stated there is a litigation exception for conferring\nwith legal counsel regarding pending litigation when discussion in an open session would\nlikely and unavoidably prejudice the position of the City; anyone making a motion should\nframe it with this specific provision in mind; if there were to be a vote to sustain, there\nshould be a finding of how this falls outside of the litigation exception.\nCommissioner Reid stated Sunshine Ordinance Section 2-91.10, Council is not required\nto hold a Closed Session; she is leaning toward sustained to open up the process, let the\npublic weigh in and not close the gates.\nIn response to Chair Tilos's inquiry, the City Clerk stated the way the Complaint Procedure\nis written, the Chair can waive the time limit or a supermajority vote is required to amend\nthe times.\nChair Tilos stated he will extend the time one minute for each Commissioner.\nCommissioner LoPilato moved approval of denying the Complaint on the basis that there\nwas no violation of the Brown Act or Sunshine Ordinance as the matter fell within pending\nlitigation exception.\nCommissioner Chen seconded the motion, which carried by the following roll call vote:\nCommissioners Chen: Aye; LoPilato: Aye; Montgomery: Aye; Reid: No; Chair Tilos: Aye.\nAyes: 4, Noes: 1.\nIn response to Chair Tilos's inquiry, the Chief Assistant City Attorney stated that she has\nenough information to draft a short written decision.\nMeeting of the\nOpen Government Commission\nNovember 1, 2021\n9", "path": "OpenGovernmentCommission/2021-11-01.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-11-01", "page": 10, "text": "In response to Chair Tilos's inquiry, the City Clerk stated that she would send the final\nwritten decision to Commissioners via Docusign.\n3-B. Hearing on Sunshine Ordinance Complaint Filed on October 4, 2021\nJay Garfinkle, Complainant, gave an Opening Statement and Presentation of Facts.\nBradford Kuhn, Nossaman, City/Respondent, gave an Opening Statement and\nPresentation of Facts.\nMr. Garfinkle replied to the City/Respondent Opening Statement and Presentation of\nFacts.\nCommissioner LoPilato inquired whether Mr. Garfinkle's Exhibit 3 attached to his\nComplaint is the full set of documents he received that produced by the City.\nMr. Garfinkle responded in the negative; stated much of what was produced was\nrepetitious threads.\nCommissioner LoPilato clarified that she was asking about the larger exhibit which was\n1,052 pages.\nMr. Garfinkle responded he thought he had pulled out the larger exhibit.\nCommissioner LoPilato stated that she is trying to gauge whether the Commission has\nvisibility into the full scope of the production, which sounds uncertain; inquired whether\nMr. Garfinkle inquired about any of the specific redactions with the City Attorney's office\nrepresentative that was communicating with him about the production before filing the\nComplaint.\nMr. Garfinkle responded that he does not know if he did; stated it took him a long time, at\nleast a couple of weeks, to go through all the documents; while his Complaint was about\nthe lack of explanation, he was also looking at what was being expressed between the\nlobbyists and City staff, much of what he thought was inappropriate; it was not just a\nmatter of the redactions; he could not file a Complaint about what they were talking about,\nhis Complaint was about the quality of the redactions; among all of the communications,\nhe felt a number were inappropriate.\nCommissioner LoPilato clarified that her question is whether Mr. Garfinkle inquired about\nwhy there was a redaction, to which Mr. Garfinkle responded in the negative; stated the\nCity Attorney's office is required to provide it, he should not have to ask for it.\nCommissioner Reid thanked Mr. Garfinkle for bringing his Complaint forward; inquired\nwhat type of information would be exempt related to draft position statements and why\nthe documents were redacted if they are just conversations regarding the legislative\nMeeting of the\nOpen Government Commission\nNovember 1, 2021\n10", "path": "OpenGovernmentCommission/2021-11-01.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-11-01", "page": 11, "text": "agenda between the City lobbyists and staff.\nMr. Kuhn responded the Public Records Act makes a specific exception for documents\ngoverned by the deliberative process privilege; City staff need the ability to comment on,\nexchange dialogue and share information that goes into the City's decision-making\nprocess candidly and confidentially without having all of the draft documents or decisions\nmade available to the public; the Court has said exposing the agency's decision-making\nprocess would discourage candid discussions within the agency and undermine the\nagency's ability to perform its functions; some documents not subject to attorney-client\nprivilege are still not subject to disclosure under the Public Records Act (PRA); draft\ndocuments and iterative process are not typically turned over to the public because it\nwould discourage and prevent the City from engaging in a candid and open dialogue,\nsharing ideas, understanding the basis for certain positions and making revisions without\nhaving it be completely open, disclosed, and nitpicked when just trying to gather\ninformation.\nCommissioner Reid inquired whether the deliberative process goes beyond City staff, to\nwhich Mr. Kuhn responded it would include consultants and lobbyists as well.\nCommissioner Reid inquired whether the reason is because it would cause harm to the\nCity.\nMr. Kuhn responded in the affirmative; stated if every document was made available to\nthe public, it would discourage candid conversations; everyone would be too worried\nabout putting a draft together or commenting on drafts and exchanging ideas without\nbeing able to fully vet and understand different positions.\nCommissioner Reid inquired how that reconciles with open government and the fact that\nthe public has a right to know the City's process.\nMr. Kuhn responded the law makes a specific finding that disclosure of certain\ndeliberative process discussions would inhibit the free and candid communication\nbetween staff; it is a finding of the law that allows the iterative process to take place before\nthings are completely opened and shared.\nIn response to Commissioner Reid's inquiry, Mr. Kuhn stated the City produced\ndocuments on a rolling basis; six batches of documents were produced; some batches\nhad no redactions, some had a few; in the case where there were redactions, there was\nan explanation provided about the basis or reasoning why certain records were redacted\nwhen the documents were produced.\nCommissioner Reid stated her understanding is the PRA requires the City to explain\nprecisely why there was a redaction in whole or in part; she does not see it in the\nexamples.\nMr. Kuhn stated the City's Position Statement includes cover emails explaining the basis\nMeeting of the\nOpen Government Commission\nNovember 1, 2021\n11", "path": "OpenGovernmentCommission/2021-11-01.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-11-01", "page": 12, "text": "and reasons why certain documents were withheld; for example, when a document\nredacted based on the deliberative process privilege, staff indicated information was\nwithheld based on the grounds that disclosure would inhibit the free and candid\ncommunication between staff and their agents on matters within their purview; that is what\nwas provided and required under the law; the City is not required to go through every\nsingle email and provide an exact, precise explanation on every single redaction,\nespecially with thousands of pages of documents.\nCommissioner LoPilato stated it appears the Complainant is making an argument that the\npassage of Proposition 59 in 2004 essentially weakened the deliberative process\nprivilege; requested Mr. Kuhn talk a little bit about the legal landscape related to the\ndeliberative process and whether that has shifted post 2004 or if the current state of affairs\nhas changed anything.\nMr. Kuhn stated that he does not think anything has changed with respect to what is\nbefore the Commission tonight; Proposition 59 is meant to be a Sunshine Ordinance\nprovision and placed a statute of limitations restricting access to certain meetings and\nrecords, but it does not suddenly place additional burdens or obligations, or make\nadditional records available to the public.\nMr. Garfinkle gave a Closing Statement.\nMr. Kuhn gave a Closing Statement.\nSpeaker:\nRyan LaLonde, Alameda, thanked the Commission for former Commissioner Shabazz's\nwebinar on the Public Records Act and how to submit requests; stated that he received\nPRA documents from the County District Attorney's office; the documents Mr. Garfinkle\nreceived from the City are the same type as the ones he received from the County,\nincluding cover letters stating why there are redactions; there is opportunity to ask for\nclarification, which he did and the County sent additional information; follow-up is\nimportant; Mr. Garfinkle decided not to submit the cover letters that came with the email\nproduction; in his case, he worked with the County to get the specific documents he\nneeded, it was not a fishing expedition; Mr. Garfinkle's Complaint is unfounded in the fact\nthat there was no due diligence on his part to actually get to the bottom of what he really\nwanted.\nCommissioner Reid stated the PRA provides protections for the disclosure of documents;\nshe questions whether or not the exemptions were justified; she does not see that the\ndeliberative process privilege outweighs the importance of the public receiving the\ninformation; she does not see specific information on the disclosures provided in the\ndocuments themselves.\nCommissioner Chen stated that she has the same question as the speaker; the\ndocuments did not include the emailed explanation of the redactions.\nMeeting of the\nOpen Government Commission\nNovember 1, 2021\n12", "path": "OpenGovernmentCommission/2021-11-01.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-11-01", "page": 13, "text": "In response to Commissioner Chen's inquiry, Commissioner LoPilato stated the cover\nemails stating the reasons for the redactions are exhibits to the City's Position Statement;\nExhibit 8 includes the deliberative process privilege, which Mr. Garfinkle did not include.\nIn response to Chair Tilos's inquiry, Commissioner LoPilato stated Exhibit 2, the City's\nPosition Statement, includes exhibits that are clearly outlined and contain the cover\nletters.\nCommissioner Reid stated the question is whether or not the PRA provides transparency\nin the redactions; questioned why some documents are more redacted than others.\nCommissioner LoPilato stated sometimes a redaction is a portion of a document;\nsometimes it is a larger portion of a document; the proper process should be that if\nsomeone receives six batches of a rolling production over 1,100 pages and has questions\nabout specific redactions, reach back out to the City for clarification; she did not see any\nattempt to do so; if there was evidence that the City was not responsive to follow-up\nquestions, she would want to flag that as a possible recommendation for better\ntransparency; unfortunately, the Complainant made no attempt to gain clarification about\nany of the documents; there is no obligation under the law to provide an explanation of\nredactions document by document; she is inclined to deny the Complaint and really\nwishes there had been some attempt for clarification or follow-up on the part of the\nComplainant.\nIn response to Chair Tilos's inquiry, the Chief Assistant City Attorney stated the language\nshe advises the Commission to look at is Government Code Section 6255, Subsection A\nwhich is a provision of the PRA; it states that: \"the agency shall justify withholding any\nrecord by demonstrating that the record in question is exempt under expressed provisions\nof this chapter, or that on the facts of the particular case the public interest served by not\ndisclosing the record clearly outweighs the public interest served by disclosure of the\nrecord;\" the provision itself does not provide any specificity for going item by item; further\ninterpretation is found in Case law; in this instance, Case law speaks to how the California\nSupreme Court has spoken to what Code Section 6255 actually requires; the Supreme\nCourt found in Section 6255, Subsection A that a requestor was not entitled to a specific\nlog; the reasoning is that in the PRA, the legislature went to great lengths to impose very\nspecific requirements in certain cases; the Supreme Court opined that if a public agency\nwas required to enumerate each time and each record and what the various exception\nwas for each record, it could have done so and chose not to; it was extrapolated that a\nblanket explanation is sufficient; the Case cited is Haney VS. Superior Court; the PRA\ndoes not require an itemized list of every single redaction in a document request; a blanket\nemail with an explanation, such as the one the City provided, would be acceptable under\nthe PRA.\nCommissioner Reid moved approval of sustaining the Complaint and to cure and correct,\nso that Mr. Garfinkle receives a thorough explanation of why the documents were\nredacted.\nMeeting of the\nOpen Government Commission\nNovember 1, 2021\n13", "path": "OpenGovernmentCommission/2021-11-01.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-11-01", "page": 14, "text": "The motion failed due to a lack of second.\nCommissioner Reid moved approval of dismissing the Complaint on procedural grounds\nasking that Mr. Garfinkle work with the City Attorney and City Clerk's offices to understand\na little more of why the redactions occurred.\nThe Chief Assistant City Attorney stated the dismissal is for procedural or jurisdictional\ndefects; jurisdictional would be if the Commission did not have the authority to make a\ndecision on the Complaint or it is something totally out of the Commission's purview;\nprocedural grounds would be that some sort of procedure was not followed in the actual\nmaking of the Complaint; the most classic example would be if a Complainant filed their\nComplaint after the deadline; stated that she is not sure whether dismissal is really what\nCommissioner Reid intends.\nThe motion failed due to a lack of second.\nIn response to Commissioner Reid's inquiry, Chair Tilos stated the five options are: 1)\nComplaint sustained with cure and correct recommendation, 2) Complaint sustained\nwithout cure and correct recommendation, 3) Complaint denied, 4) Complaint denied as\nunfounded, and 5) Complaint dismissed on jurisdictional or procedural grounds.\nCommissioner Montgomery moved approval of denying the Complaint as unfounded.\nCommissioner Reid suggested a friendly amendment to deny the Complaint, but not\ndetermine it unfounded, as it would be a harsh penalty to the Complainant.\nCommissioner LoPilato stated that she is inclined to second the motion; she wrestles with\nthe unfounded distinction solely on the basis of what a layperson may interpret; it comes\ndown to what a reasonable community member making a PRA would think.\nChair Tilos stated as a non-lawyer person, he is leaning toward unfounded; the City did\nits due diligence; the Chief Assistant City Attorney also explained the California Supreme\nCourt's position regarding redactions on PRAs.\nIn response to Commissioner Chen's inquiry, Chair Tilos added a minute to everyone's\nclock.\nCommissioner Montgomery stated that she did not accept the friendly amendment to the\nmotion.\nCommissioner Chen stated that she has been frustrated with the Complaint because it\nkept changing every few hours and there was no time limit; there was opportunity for the\nComplainant to do more due diligence; this is not the first Complaint he has filed; on one\nhand, she does not want to find it unfounded because it seems severe; on the other hand,\nthe Complainant had the opportunity to prepare a more solid Complaint; the speaker's\nMeeting of the\nOpen Government Commission\nNovember 1, 2021\n14", "path": "OpenGovernmentCommission/2021-11-01.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-11-01", "page": 15, "text": "experience and back-and-forth communication with the County on a similar PRA seems\nlike a more reasonable and collaborative process; she supports the unfounded finding.\nCommissioner Reid stated that punishing members of the public for bringing forth a PRA\nComplaint goes against the values of open government; she is very disappointed in the\nunfounded finding because of the harsh punishment.\nCommissioner LoPilato seconded the motion, which carried by the following roll call vote:\nCommissioners Chen: Aye; LoPilato: Aye; Montgomery: Aye; Reid: No; Chair Tilos: Aye.\nAyes: 4. Noes: 1.\n***\nChair Tilos called a recess at 10:04 p.m. and reconvened the meeting at 10:12 p.m.\n***\nREGULAR AGENDA ITEMS\n4-A. Selection of Vice Chair\nCommissioner Chen moved approval of Commissioner LoPilato being Vice Chair.\nCommissioner Montgomery seconded the motion.\nUnder discussion, Commissioner LoPilato stated that she does not think the Vice Chair\nshould automatically advance to the Chair role in January and could be anyone\ninterested.\nChair Tilos concurred with Commissioner LoPilato; stated that he would likely step down;\nthe Vice Chair is the logical choice; he was reluctant when he was voted as Chair, but\nallowing all members an opportunity and experience to Chair is important.\nCommissioner LoPilato stated that she is happy to take on the role of Vice Chair until the\nelection in January based on the Commission's constitution at that point.\nOn the call for the question, the motion carried by the following roll call vote:\nCommissioners Chen: Aye; LoPilato: Abstain; Montgomery: Aye; Reid: Aye; Chair Tilos:\nAye. Ayes: 4. Abstention: 1.\n4-B. Minutes of the September 20, 2021 and October 4, 2021 Meetings\nCommissioner Chen moved approval of the minutes.\nCommissioner LoPilato seconded the motion, which carried by the following roll call vote:\nCommissioners Chen: Aye; LoPilato: Aye; Montgomery: Aye; Reid: Aye; Chair Tilos: Aye.\nAyes: 5.\nMeeting of the\nOpen Government Commission\nNovember 1, 2021\n15", "path": "OpenGovernmentCommission/2021-11-01.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-11-01", "page": 16, "text": "4-C. Report to City Council on Issues Arising from Implementation of the Sunshine\nOrdinance\nCommissioner Chen gave a brief presentation.\nCommissioner LoPilato stated that she does not think the report is quite in shape to send\nto the City Council; it was a huge undertaking; she is refining her thoughts on it; the\nCommission is required to do the reports at least once annually; Complaints are still\ncoming in for 2021; suggested moving the plan to finalize the report closer to January;\nshe is mindful that certain things already feel outdated; specifically Recommendation #3,\nthe City already is publishing the legislative agenda.\nCommissioner Chen stated work on the Complaint Procedure and form took out half of\nthe recommendations; she feels the relationship with the City Attorney's office is much\nimproved; the report can be updated on an ongoing basis; she concurs with\nCommissioner LoPilato regarding the timing.\nChair Tilos stated the Commission could hold off until January.\nCommissioner Chen stated things can be lost during the turnover of members; the report\nis a living document like the Bylaws.\nCommissioner LoPilato stated the report should be grounded in the statute; some of the\nrecommendations read like directives; leading with an explanation and background of\nwhat the Sunshine Ordinance actually says may be a better approach; the\nrecommendations could be reviewed item-by-item; it is important to look at the accuracy\nand weight that is given to some of the language; the Commission's role should be\nneutral; the report seems more like an advocacy piece; it might be better received and\nmore effective if it is more neutral and has a gatekeeper tone; the City Council needs to\ngive direction to the Commission and staff on what work the Commission should do in\naddition to hearing Complaints; the expectations of what the Commission does is a bit\nlimited.\n***\nIn response to Chair Tilos's inquiry, the City Clerk stated a vote was needed to consider\nnew items at 10:30 p.m. but since it was missed, the next item could be bumped; a vote\nis needed to continue past 11:00 p.m.\n***\nCommissioner Chen stated she would like to have the report come back on the January\nagenda.\n4-D. Consider Amending the Sunshine Ordinance Complaint Form. Not heard.\nSTAFF UPDATE\nMeeting of the\nOpen Government Commission\nNovember 1, 2021\n16", "path": "OpenGovernmentCommission/2021-11-01.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-11-01", "page": 17, "text": "The City Clerk stated that when the last Sunshine Ordinance amendments were adopted,\nprior Complaints and decisions were to be posted on the OGC website, which has been\ndone; she welcomes any feedback.\nThe City Clerk further stated that she worked on the Complaint Procedure glossary and\nFrequently Asked Questions (FAQ) section and will send it out to the Commissioners for\nfeedback.\nThe Chief Assistant City Attorney announced a Citywide Sunshine Ordinance training for\nall Board and Commission members would be in mid-December; she will be doing a\ntraining for the OGC at a public meeting in January.\nCOMMISSION AGENDA REQUESTS\nNone.\nCOMMISSION COMMUNICATIONS\nNone.\nNON-AGENDA PUBLIC COMMENT\nNone.\nADJOURNMENT\nChair Tilos adjourned the meeting at 10:56 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 1, 2021\n17", "path": "OpenGovernmentCommission/2021-11-01.pdf"}