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OpenGovernmentCommission/2019-02-04.pdf,1 | OpenGovernmentCommission | 2019-02-04 | 1 | MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING MONDAY FEBRUARY 4, 2019 7:00 P.M. Chair Little convened the meeting at 7:00 p.m. ROLL CALL - Present: Commissioners Schwartz, Shabazz, Tilos and Chair Little - 4. [Note: Commissioner Shabazz arrived at 7:41 p.m.; he had provided notification that he would be late due to a previous engagement.] Absent: Commissioner Henneberry - 1. ORAL COMMUNICATIONS, NON-AGENDA Paul Foreman, Alameda, stated he is concerned about the ability of the Commission to function under the current circumstances; Section 2-93.8 of the Sunshine Ordinance states that the Open Government Commission (OGC) decides complaints and can direct Council action; however, the Interim City Attorney has stated the Section is in violation of the Alameda Charter and State law; he disagrees with the Interim City Attorney; the issue is a real problem. AGENDA ITEMS 3-A. Select Chair and Vice Chair Commissioner Tilos moved approval of having Commissioner Henneberry serve as Chair. Commissioner Schwartz seconded the motion, which carried by unanimous voice vote - 3. [Absent: Commissioners Henneberry and Shabazz - 2.] Commissioner Tilos moved approval of having Commissioner Schwartz serve as Vice Chair. Chair Little seconded the motion, which carried by unanimous voice vote - 3. [Absent: Commissioners Henneberry and Shabazz - 2.] 3-B. Minutes of the November 14, 2018 and December 17, 2018 Meetings Not heard. 3-C. Accept the Annual Public Report Commissioner Schwartz moved approval of the Annual Report. Commissioner Tilos seconded the motion, which carried by unanimous voice vote - 3. Meeting of the Open Government Commission 1 February 4, 2019 | OpenGovernmentCommission/2019-02-04.pdf |
OpenGovernmentCommission/2019-02-04.pdf,2 | OpenGovernmentCommission | 2019-02-04 | 2 | [Absent: Commissioners Henneberry and Shabazz - 2.] 3-D. Hearing on Sunshine Ordinance Complaint Filed January 25, 2019 Serena Chen, Complainant, gave a brief presentation. The Interim City Attorney gave a brief presentation. Chair Little stated a comprehensive summary provided by former Commissioner Foreman outlines the issue. Commissioner Tilos inquired whether the powers of the Commission is a topic that needs to be addressed, to which Chair Little responded the discussion needs to be separate. In response to Commissioner Tilos' inquiry, the Interim City Attorney stated Ms. Chen's complaint is that not attaching the Commission's decision to a January 15th report is a violation of the Sunshine Ordinance; the City's position is that not attaching the decision to the report is not a violation of the Sunshine Ordinance since the Commission did not direct that the decision be part of any subsequent action or report; Ms. Chen secondarily contends that the agenda title was deficient with respect to describing the item the Council was going to consider; the City's position is the title more than adequately described the item which was the re-introduction of the cannabis ordinances and the repeal of the ordinances which the OGC rendered null and void. Commissioner Schwartz inquired whether the Interim City Attorney's position is that the January 15th meeting was a first or second reading of the ordinance. The Interim City Attorney responded had the Council majority voted to re-introduce the ordinance, it would have been the first reading. Chair Little inquired whether the failure of the Council to make a decision maintains the circumstance that the ordinances are still null and void as decided by the OGC. The Interim City Attorney responded in the negative; stated the Council has been advised that the ordinances will remain in full force and effect unless and until Council repeals the ordinances. Commissioner Schwartz inquired what information was given to the public and Council about the impact of keeping the ordinanc… | OpenGovernmentCommission/2019-02-04.pdf |
OpenGovernmentCommission/2019-02-04.pdf,3 | OpenGovernmentCommission | 2019-02-04 | 3 | In response to Commissioner Schwartz's inquiry, the Interim City Attorney stated Attachment 3 of the report includes the information regarding the impacts. Commissioner Schwartz inquired where the report state that the previously null and void ordinances are back in effect. The Interim City Attorney responded the City's position is that the ordinances never went out of effect. Commissioner Tilos stated the ordinances were never null and void because the Commission did not have the power to do so. The Interim City Attorney concurred with Commissioner Tilos; stated if the Commission did not have the authority to render the ordinances null and void, by definition, they were still in full force and effect. Chair Little stated that she is concerned the Commission is entering into a slightly different conversation by arguing the merits of whether or not the Commission has the right to render any Council action null and void; she would like to focus on the complaint before the Commission tonight; inquired whether there are technical questions; inquired what was the rationale behind not including the Commission's decision. The Interim City Attorney responded there was no purposeful thought of not attaching the document; stated when the item was drafted, it seemed agenda report adequately described the issue and paraphrased the Commission's decision. Chair Little stated stating information in the background and paraphrasing created the situation tonight; the Commission's purpose is to make sure issues are made available publicly and not just in the background. Karen Butter, League of Women Voters, read a letter the League submitted on the matter. Paul Foreman, Alameda, stated the failure to attach the decision is a technicality; the real problem is the title misled the public because it was not clear; the process should be two steps: 1) repeal the ordinances, and 2) re-introduce the ordinances. Irene Dieter, Alameda, concurred with Mr. Foreman; stated there was no way for the public to figure out that any no vote was just… | OpenGovernmentCommission/2019-02-04.pdf |
OpenGovernmentCommission/2019-02-04.pdf,4 | OpenGovernmentCommission | 2019-02-04 | 4 | opportunities to come out and speak; the OGC's concern was heard but just did not get the votes. The Interim City Attorney stated with respect to Ms. Chen's comment about the decision not being issued, it was issued that night and was compliant with the 14 days as required by the Sunshine Ordinance; regarding the structure of the ordinances, one section dealt with repealing Ordinances 3227 and 3228; there was nothing that prevented the Council from deciding not to re-introduce the ordinances and rather just repeal them; the Council chose not to repeal the ordinances; the issue brought up by the League of Women Voters recommending that the Commission has its own legal counsel to deliberate matters which may have internal conflict makes sense and he has made a recommended to the Council for that to occur. Chair Little moved approval of sustaining Ms. Chen's complaint. Commissioner Shabazz seconded the motion. Under discussion, Commissioner Shabazz stated, for the record, he attends the Quba Mosque on Haight Street which is adjacent to one of the proposed dispensaries; if at any point he feels there may be a conflict, he would recuse himself from the discussion. In response to Commissioner Shabazz's inquiry regarding the status of the discussion since he arrived late, the City Clerk provided a brief summary. Commissioner Schwartz thanked Ms. Chen and Mr. Agabao for their comments; stated he takes no position on the underlying issue of the ordinance; the Commission should be completely process-oriented and be totally without regard for the underlying content; his concern is with transparency and democracy and whether the public had an opportunity to be heard; the process is needs to be looked at; the process was not clear and the public was confused; transparency is an important value that the City has and everything should have been put out on the table; the Commission's decision should have been included in the staff report and executive summary; the exact status of the ordinances and impacts of passing a new ordin… | OpenGovernmentCommission/2019-02-04.pdf |
OpenGovernmentCommission/2019-02-04.pdf,5 | OpenGovernmentCommission | 2019-02-04 | 5 | underlying issues regarding cannabis and everything to do with transparency in government and making sure the public does not have to hunt for information; the Commission made a decision based on the Sunshine Ordinance to make a Council action null and void, yet it is still unclear whether or not the Commission does have that authority, and it is left for the Council to decide; ultimately she would like to ask the City Council three things: 1) make a determination based on the OGC's decision in December to make the ordinances null and void, 2) the null and void clause of the Sunshine Ordinance needs review with the next City Attorney; if it is deemed unconstitutional, the Commission needs to have some method of oversight, and 3) the Commission needs to have separate legal counsel. The Interim City Attorney requested the Commission review and provide a written decision concerning the matter. Commissioner Schwartz stated redlining the decision on the fly does not make sense; the decision should simply state that the complaint is sustained; if the ordinance does not get sent back for a first reading, the City could potentially be faced with a lawsuit; suggested starting fresh and re-introducing the ordinances. The Interim City Attorney stated the proposed decision could be amended to state there was a violation of Section 2-93.2-B and 2-91.5 and the complaint should therefore be sustained. Commissioner Schwartz moved approval of the decision adding that the Commission based their findings on information presented during the hearing on the matter, including, but not limited to, the fact that the Commission's prior decision was not included in the January 15, 2019 City Council packet, causing average members of the public, or even a well-informed members, to be confused about what the Council was voting on. Commissioner Shabazz requested a friendly amendment; stated that he would not include Commissioner Schwartz comment regarding "average members of the public" as it is an assumption and he wants to remain as factual… | OpenGovernmentCommission/2019-02-04.pdf |
OpenGovernmentCommission/2019-02-04.pdf,6 | OpenGovernmentCommission | 2019-02-04 | 6 | Commissioner Shabazz moved approval of requesting follow-up on the items regarding the legal counsel conflict, as well as the authority of the Commission over City Council decisions. In response to Chair Little's inquiry regarding the follow-up items, the Interim City Attorney stated the items are not technically on the agenda, but the topic has come up within the context of the issue so a motion would be appropriate; the Council is aware of the Commission's concerns and there will be some movement on the issues raised. Commissioner Schwartz stated the Commission should heed its own advice and not have motions at the meeting on issues that were not noticed; he feels confident that the Council will hear the message from tonight's OGC meeting. Chair Little concurred with Commissioner Schwartz. COMMISSIONER COMMUNICATIONS Chair Little welcomed Commissioners Shabazz and Tilos to the Commission; stated she enjoyed serving as Chair and expressed appreciation to former Commissioners Paul Foreman and Irene Dieter for their guidance. Commissioner Shabazz thanked the members of the public for communicating their issues to the OGC; inquired who determines whether there is a conflict of interest. The Interim City Attorney responded once a complaint is received, based on the nature of the complaint, if it would appear that one of the outcomes of the complaint would be contrary to what the law provides and what the Commission is authorized to do, that would trigger having outside counsel advise the Commission. ADJOURNMENT There being no further business, Chair Little adjourned the meeting at 8:16 p.m. Respectfully submitted, Lara Weisiger City Clerk The agenda for this meeting was posted in accordance with the Sunshine Ordinance. Meeting of the Open Government Commission February 4, 2019 6 | OpenGovernmentCommission/2019-02-04.pdf |
OpenGovernmentCommission/2021-11-01.pdf,1 | OpenGovernmentCommission | 2021-11-01 | 1 | MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING MONDAY NOVEMBER 1, 2021 7:00 P.M. Chair Tilos convened the meeting at 7:06 p.m. ROLL CALL - Present: Commissioners Chen, LoPilato, Montgomery, Reid, Shabazz and Chair Tilos - 5. [Note: The meeting was conducted via Zoom.] Absent: None. [Staff present: Chief Assistant City Attorney Elizabeth Mackenzie; City Clerk Lara Weisiger] NON-AGENDA PUBLIC COMMENT None. COMPLAINT HEARINGS 3-A. Hearing on Sunshine Ordinance Complaint Filed on September 21, 2021 Dorothy Freeman, Complainant, and Paul Foreman gave an Opening Statement and Presentation of Facts. Bradford Kuhn, Nossaman, City/Respondent, gave an Opening Statement and Presentation of Facts. Mr. Foreman gave a Reply to the City/Respondent Opening Statement and Presentation of Facts. Commissioner LoPilato inquired whether correspondence was submitted for the September 7, 2021 Closed Session; stated a written submission encouraged purchase of the entire 2.8 acres. Ms. Freeman responded in the affirmative; stated that she probably made a statement; she has made so many that she cannot remember. Commissioner LoPilato inquired whether the term "pre-development agreement" is a technical term. Mr. Foreman responded in the negative; stated legally, there is no such thing as a pre- development agreement; a City ordinance states what has to go in to a Development Agreement (DA); two or three of the terms in the Settlement Agreement (SA) would also be in a DA. Meeting of the Open Government Commission November 1, 2021 1 | OpenGovernmentCommission/2021-11-01.pdf |
OpenGovernmentCommission/2021-11-01.pdf,2 | OpenGovernmentCommission | 2021-11-01 | 2 | Commissioner LoPilato inquired how an eminent domain proceeding can be resolved via settlement if certain segments have to be discussed in open session. Mr. Foreman responded the actual negotiation has to be done in Closed Session; stated once negotiations are completed, the City Attorney could simply ask to present the SA at an open meeting of the City Council for consideration and public input; if it is not accepted, it would start over again; compared the matter to labor negotiations. Commissioner LoPilato inquired how the matter would be agendized, to which Mr. Foreman responded it would have to be agendized for the next meeting; stated in February, the City indicated an agreement was reached in principle; he would not be worried about a two-week delay between a Closed Session and the final presentation. In response to Commissioner Reid's inquiry regarding appraisals, Mr. Foreman stated the question is not germane to the issue, but he could answer if there is no objection from the Commission; he attended a neighborhood meeting at Jean Sweeney Park where Mayor Ezzy Ashcraft explained the original appraisal was approximately $1 million and that the railroad came back with $8 million; the Mayor further explained that due to the large disparity, the Council got a second appraisal, which was significantly higher and led Council to believe the City could not afford to purchase the entire property; he asked the Mayor about the second appraisal; the Mayor said the City Attorney instructed it cannot be revealed. In response to Commissioner Reid's inquiry, Mr. Kuhn stated there was a confidential exchange of appraisals between the City and Union Pacific in the middle of litigation; pursuant to an agreement signed by the parties, the City is not allowed to disclose the valuation information presented by Union Pacific; he is able to say that the second appraisal was significantly higher; the Closed Session was necessary to discuss the risks of litigation on the potential exposure; he does not see any way to have candid d… | OpenGovernmentCommission/2021-11-01.pdf |
OpenGovernmentCommission/2021-11-01.pdf,3 | OpenGovernmentCommission | 2021-11-01 | 3 | limits, which is why there is a provision about R2 in the SA; if the zoning is changed, the land will be a whole lot more valuable than it is today. Ms. Freeman stated approximately 1.7 acres are zoned R2 already, leaving approximately 2.3 acres still zoned for industrial. Mr. Kuhn stated no one is disputing that the SA in no way changes the zoning of the property and somehow eliminates the requirement for Union Pacific to come back to the City Council; Union Pacific has to go through an entire development application process, get public input, and get City approval to develop the property, which is not taken off the table or changed whatsoever by the SA. Mr. Foreman stated that he agrees Union Pacific has to do everything, but the agreement greases the rails; requested the Commission to read it and come to its own conclusion about whether it is germane. Commissioner Reid requested Ms. Freeman to elaborate on the background of the land acquisition and how much community involvement there was up until the Closed Session. Ms. Freeman responded in 2013 when the City started out to develop the Park, she worked with the Recreation and Parks Department on community meetings which had over 300 people attended, as well as 700 to 800 people who participated in an online survey; the survey included options for what people wanted to have in the Park, which was very close to what Jean Sweeney envisioned; as the Park was being developed, it was always understood that the Union Pacific land would become part of the Park; the map portrays that the Union Pacific land is part of the Park, including the bike path; in 2018, the City filed the eminent domain case in public; the case explained that the 1.7 acres zoned R2 was too expensive for the City to purchase; the rest of the 2.8 acres was addressed in public; people believed the Union Pacific land would be added to the Jean Sweeney Park; all the community outreach indicated the land would eventually become part of the Park. Mr. Kuhn clarified a portion of the Union Pacific corri… | OpenGovernmentCommission/2021-11-01.pdf |
OpenGovernmentCommission/2021-11-01.pdf,4 | OpenGovernmentCommission | 2021-11-01 | 4 | to be done in secret from start to finish; this is an exception. In response to Chair Tilos's inquiry, Mr. Kuhn stated the public does not get to control the litigation; the details were disclosed and made available to the public; if the public wants to provide participation, they still have the ability to do so; they can voice their concerns and tell the Council to acquire more land; the open session resolution to acquire the property to begin with was done in accordance with the City Charter. Mr. Foreman stated he and Ms. Freeman are here because they think the citizens had a right to have the proposal presented to the public once the negotiations were completed; whether or not the Council made a good economic decision is not being challenged. Commissioner LoPilato stated the Commission needs to be cautious about too much party to party debate, which is outside of the procedures. In response to Commissioner LoPilato's inquiry, Mr. Kuhn stated the City was quickly approaching a trial date; typical when that happens, the parties want to continue the trail later or take it off calendar if they are engaging in negotiations; that happened in this case; there were preliminary discussions with Union Pacific in February; it took the City until September to get somewhere; the litigation was still active and pending at the time of the Closed Session; the dismissal of the case did not happen until after Closed Session was completed and the SA was signed. Mr. Foreman stated he just wanted the Commission to read the stipulation. Commissioner LoPilato stated that she has read and is familiar with the stipulation; it is beneficial to understand that when a SA is signed by one party, the offer can still be revoked; if an offer is made and an agreement laid out, then the other party listens to an open session and learns all the weaknesses of the City's case, the whole deal can be ended with a simple email to the City Attorney saying the deal is off. Mr. Kuhn concurred with Commissioner LoPilato; stated anyone can revoke a signa… | OpenGovernmentCommission/2021-11-01.pdf |
OpenGovernmentCommission/2021-11-01.pdf,5 | OpenGovernmentCommission | 2021-11-01 | 5 | negotiating position. Commissioner LoPilato inquired whether the settlement is typically considered to be under proceedings or if there is a definition for the term. Mr. Kuhn responded in the affirmative, stated it is all one and the same; he would either settle an eminent domain action via SA, which calls for the exact terms and dismissal after the fact pursuant to a stipulated judgment where the Court transfers the property. Commissioner Reid inquired whether the final Master Plan approved by Council in 2016 includes the parcel in question. Ms. Freeman responded in the affirmative; stated the design includes the 4.52 acres along the southern border. Commissioner Reid inquired why the public would not have the right to know about the reduction in property if it was part of the Master Plan. Mr. Kuhn responded that the public did know about it; the terms were reported out in open session; there were Recreation and Parks meetings well before which discussed potential reductions and changes in size; Ms. Freeman was aware of it before the meeting and submitted a comment letter on it; nothing was hidden from the public; the City decided to resolve pending litigation in Closed Session so they could talk about risks and potential ramifications of moving forward with acquiring the entire corridor and whether or not there was funding. Ms. Freeman stated from copies she obtained of Court case documents and the Recreation and Parks Director's meeting with the public to explain that the west end of the park had to be redesigned, she deduced the change; why it had to be redesigned was not explained; one charts said: "not City-owned property" which was subsequently removed; a blank space showed it would no longer be considered as part of the Park; what was going on was never discussed in public; she was assuming that this was the issue due to the Court records and the meeting about the redesign of the park, but it was never stated by the City. Commissioner Reid inquired whether Mr. Kuhn was involved in the litigation with Unio… | OpenGovernmentCommission/2021-11-01.pdf |
OpenGovernmentCommission/2021-11-01.pdf,6 | OpenGovernmentCommission | 2021-11-01 | 6 | Mr. Foreman stated that he thinks Mr. Kuhn's explanation is contrived; the City negotiated with Union Pacific over a long period of time; the City knew the strengths and weaknesses of the railroad and vice versa; Council came to a consensus as to what would be a good deal; the railroad agreed to it; all the City Attorney had to do was ask whether it could be presented to the public in an open meeting; at the public meeting, nothing has to be disclosed if it would be harmful; the City could have simply stated, like the Mayor did, that the appraisal cannot be disclosed; it still gives the public a chance to speak out and feel they have real input and someone is listening to them; let the public feel they are participating in open government. Commissioner Reid inquired why the City would agree to pay a previously agreed upon price for the full parcel and now decide to pay less than half for a lot less land; further inquired whether the zoning was different in the appraisal process. Mr. Kuhn responded in the affirmative; stated the zoning was different; the original appraisal was done incorrectly; the trail appraisal prepared for the City was massively more expensive than the original $1.1 million deposit. Commissioner Reid inquired whether the appraisal for housing would add much higher valuation than for park land, to which Mr. Kuhn responded in the affirmative. Commissioner Reid inquired how long Mr. Kuhn has been contracted with the City on the project, to which Mr. Kuhn responded he became involved a little over a year ago. Ms. Freeman gave a Closing Statement. Mr. Kuhn gave a Closing Statement. Speakers: Jay Garfinkle, Alameda, stated that he does not find the City Attorney's argument compelling; the City Council and City Attorney's office have a tendency to disregard the people's constitutional right to know what the City government is doing; he is disappointed the Council chose to disregard the will of the people. Jenice Anderson, Alameda, stated that she knew the reasons for the changes to the park project, … | OpenGovernmentCommission/2021-11-01.pdf |
OpenGovernmentCommission/2021-11-01.pdf,7 | OpenGovernmentCommission | 2021-11-01 | 7 | huge variation. In response to Chair Tilos's inquiry regarding timing Commissioners, the City Clerk stated the Complaint Procedure does not list a specific time. Chair Tilos stated he would like to start with five minutes; if more time is needed, Commissioners can request more, up to nine minutes. Commissioner Reid stated that she was surprised Mr. Kuhn was involved; it seems there is considerable bias; the public was involved from the very beginning; then, suddenly, the Council decided not to include the public in the litigation section of the process; the Sunshine Ordinance provides for more transparency; the public has the right to know the reasons regarding the appraisals and has the right to participate; the neighbors should be included in the process. Commissioner Chen stated she has been following the Jean Sweeney Park story since the beginning; everyone who participated in the process feels like part-owners; to have this suddenly happen is terrible; it is a threading the needle issue; under litigation, questions and decisions from the City Council cannot be disclosed; she would rule in favor of the City, but the way it came down does not pass the smell test; the OGC has the opportunity to recommend how to make it better; the neighbors and community still have many future opportunities to speak up on how the land is or is not developed; the iron gates have not shut; she used to follow eminent domain and condemnation of properties, so she realizes a lot of regular folks might not fully grasp how a City can condemn properties for City use, but cannot pay less than the land's value; the OGC's role is to try to figure out a way to bring the community back into the process without jeopardizing the agreement; an open hearing should be held, but in a manner so that Union Pacific does not pull out; there are all kinds of dangers when the flood gates are open in the middle of litigation. Chair Tilos stated if the Commission votes in a certain manner on the issue, it could be sent back and open up the gates. Commiss… | OpenGovernmentCommission/2021-11-01.pdf |
OpenGovernmentCommission/2021-11-01.pdf,8 | OpenGovernmentCommission | 2021-11-01 | 8 | representation in the litigation, which requires being able to have private discussion about the pros and cons; eminent domain proceedings, including a SA, could probably be a subject of debate, but the proceedings seem proper; she is inclined to dismiss the Complaint, but would not find it unfounded; she was troubled by the concept of pre- development agreement; arguments could be made that the pre-development agreement functionally paves the way, but she does not think it legally does anything that takes it out of the pending litigation exception. Chair Tilos stated that he concurs with Commissioner LoPilato's comments; there is definitely substance and he would not say the Complaint is unfounded. Commissioner Montgomery stated that she concurs with Commissioner LoPilato's statements, as well as Commissioner Chen's comments; she is leaning toward denied at this point, but not unfounded; she believes there are things to look at; perhaps a recommendation could be made for the future. Commissioner Reid stated that she agrees with Commissioner Chen that the matter does not pass the smell test in terms of transparency for the community; she is not suggesting the agreement be withdrawn or substantial changes made, but she wonders what harm there is in suggesting to the City Council reagendize the item to make the whole process more transparent; the Commission is here for the public; she is leaning towards transparency and providing the public with as much information as possible and an opportunity to participate. In response to Chair Tilos's inquiry, the Chief Assistant City Attorney stated that when Mr. Kuhn was discussing the ability to exit the agreement, he was talking about the point when the matter came to closed session in September; if there had been a delay at that point or some question on whether or not the City was going to agree to certain terms, Union Pacific or the City could have exited the agreement; at this point, there is a signed SA; she is not prepared to opine on the ramifications of the City tr… | OpenGovernmentCommission/2021-11-01.pdf |
OpenGovernmentCommission/2021-11-01.pdf,9 | OpenGovernmentCommission | 2021-11-01 | 9 | Commissioner Chen stated none of the possible changes are a done deal; decisions will require hearings; the hearings will give the entire community, especially the neighbors, an opportunity to weigh in as the Council deliberates on whether or not to change the zoning or allow a development; it is obvious the Union Pacific attorneys just wanted to get more out of the deal; they are doing their jobs; it is all part of a legal game; there are many more times to get a bite of the apple; the process is not closed; the community has opportunities; everyone will be on alert to practice their democratic rights. Commission Montgomery stated the public could address the matter by speaking at a Council meeting on a non-agenda item or could write a letter to Council; inquired what would be the value of reagendizing the item. Chair Tilos stated Commissioner Montgomery's understanding is correct; reagendizing the item would just be reopening the discussion; the Complainants just want the Council to be more on record about why they made their decisions; it is not an effective use of the Council's time and taxpayers' dollars. The Chief Assistant City Attorney directed the Commissioner's attention to the issue at hand, which is precisely if they have concluded whether there is a violation of the Sunshine Ordinance or the Brown Act; stated there is a litigation exception for conferring with legal counsel regarding pending litigation when discussion in an open session would likely and unavoidably prejudice the position of the City; anyone making a motion should frame it with this specific provision in mind; if there were to be a vote to sustain, there should be a finding of how this falls outside of the litigation exception. Commissioner Reid stated Sunshine Ordinance Section 2-91.10, Council is not required to hold a Closed Session; she is leaning toward sustained to open up the process, let the public weigh in and not close the gates. In response to Chair Tilos's inquiry, the City Clerk stated the way the Complaint Procedure is w… | OpenGovernmentCommission/2021-11-01.pdf |
OpenGovernmentCommission/2021-11-01.pdf,10 | OpenGovernmentCommission | 2021-11-01 | 10 | In response to Chair Tilos's inquiry, the City Clerk stated that she would send the final written decision to Commissioners via Docusign. 3-B. Hearing on Sunshine Ordinance Complaint Filed on October 4, 2021 Jay Garfinkle, Complainant, gave an Opening Statement and Presentation of Facts. Bradford Kuhn, Nossaman, City/Respondent, gave an Opening Statement and Presentation of Facts. Mr. Garfinkle replied to the City/Respondent Opening Statement and Presentation of Facts. Commissioner LoPilato inquired whether Mr. Garfinkle's Exhibit 3 attached to his Complaint is the full set of documents he received that produced by the City. Mr. Garfinkle responded in the negative; stated much of what was produced was repetitious threads. Commissioner LoPilato clarified that she was asking about the larger exhibit which was 1,052 pages. Mr. Garfinkle responded he thought he had pulled out the larger exhibit. Commissioner LoPilato stated that she is trying to gauge whether the Commission has visibility into the full scope of the production, which sounds uncertain; inquired whether Mr. Garfinkle inquired about any of the specific redactions with the City Attorney's office representative that was communicating with him about the production before filing the Complaint. Mr. Garfinkle responded that he does not know if he did; stated it took him a long time, at least a couple of weeks, to go through all the documents; while his Complaint was about the lack of explanation, he was also looking at what was being expressed between the lobbyists and City staff, much of what he thought was inappropriate; it was not just a matter of the redactions; he could not file a Complaint about what they were talking about, his Complaint was about the quality of the redactions; among all of the communications, he felt a number were inappropriate. Commissioner LoPilato clarified that her question is whether Mr. Garfinkle inquired about why there was a redaction, to which Mr. Garfinkle responded in the negative; stated the City Attorney's office is requir… | OpenGovernmentCommission/2021-11-01.pdf |
OpenGovernmentCommission/2021-11-01.pdf,11 | OpenGovernmentCommission | 2021-11-01 | 11 | agenda between the City lobbyists and staff. Mr. Kuhn responded the Public Records Act makes a specific exception for documents governed by the deliberative process privilege; City staff need the ability to comment on, exchange dialogue and share information that goes into the City's decision-making process candidly and confidentially without having all of the draft documents or decisions made available to the public; the Court has said exposing the agency's decision-making process would discourage candid discussions within the agency and undermine the agency's ability to perform its functions; some documents not subject to attorney-client privilege are still not subject to disclosure under the Public Records Act (PRA); draft documents and iterative process are not typically turned over to the public because it would discourage and prevent the City from engaging in a candid and open dialogue, sharing ideas, understanding the basis for certain positions and making revisions without having it be completely open, disclosed, and nitpicked when just trying to gather information. Commissioner Reid inquired whether the deliberative process goes beyond City staff, to which Mr. Kuhn responded it would include consultants and lobbyists as well. Commissioner Reid inquired whether the reason is because it would cause harm to the City. Mr. Kuhn responded in the affirmative; stated if every document was made available to the public, it would discourage candid conversations; everyone would be too worried about putting a draft together or commenting on drafts and exchanging ideas without being able to fully vet and understand different positions. Commissioner Reid inquired how that reconciles with open government and the fact that the public has a right to know the City's process. Mr. Kuhn responded the law makes a specific finding that disclosure of certain deliberative process discussions would inhibit the free and candid communication between staff; it is a finding of the law that allows the iterative process to take place be… | OpenGovernmentCommission/2021-11-01.pdf |
OpenGovernmentCommission/2021-11-01.pdf,12 | OpenGovernmentCommission | 2021-11-01 | 12 | and reasons why certain documents were withheld; for example, when a document redacted based on the deliberative process privilege, staff indicated information was withheld based on the grounds that disclosure would inhibit the free and candid communication between staff and their agents on matters within their purview; that is what was provided and required under the law; the City is not required to go through every single email and provide an exact, precise explanation on every single redaction, especially with thousands of pages of documents. Commissioner LoPilato stated it appears the Complainant is making an argument that the passage of Proposition 59 in 2004 essentially weakened the deliberative process privilege; requested Mr. Kuhn talk a little bit about the legal landscape related to the deliberative process and whether that has shifted post 2004 or if the current state of affairs has changed anything. Mr. Kuhn stated that he does not think anything has changed with respect to what is before the Commission tonight; Proposition 59 is meant to be a Sunshine Ordinance provision and placed a statute of limitations restricting access to certain meetings and records, but it does not suddenly place additional burdens or obligations, or make additional records available to the public. Mr. Garfinkle gave a Closing Statement. Mr. Kuhn gave a Closing Statement. Speaker: Ryan LaLonde, Alameda, thanked the Commission for former Commissioner Shabazz's webinar on the Public Records Act and how to submit requests; stated that he received PRA documents from the County District Attorney's office; the documents Mr. Garfinkle received from the City are the same type as the ones he received from the County, including cover letters stating why there are redactions; there is opportunity to ask for clarification, which he did and the County sent additional information; follow-up is important; Mr. Garfinkle decided not to submit the cover letters that came with the email production; in his case, he worked with the County to get … | OpenGovernmentCommission/2021-11-01.pdf |
OpenGovernmentCommission/2021-11-01.pdf,13 | OpenGovernmentCommission | 2021-11-01 | 13 | In response to Commissioner Chen's inquiry, Commissioner LoPilato stated the cover emails stating the reasons for the redactions are exhibits to the City's Position Statement; Exhibit 8 includes the deliberative process privilege, which Mr. Garfinkle did not include. In response to Chair Tilos's inquiry, Commissioner LoPilato stated Exhibit 2, the City's Position Statement, includes exhibits that are clearly outlined and contain the cover letters. Commissioner Reid stated the question is whether or not the PRA provides transparency in the redactions; questioned why some documents are more redacted than others. Commissioner LoPilato stated sometimes a redaction is a portion of a document; sometimes it is a larger portion of a document; the proper process should be that if someone receives six batches of a rolling production over 1,100 pages and has questions about specific redactions, reach back out to the City for clarification; she did not see any attempt to do so; if there was evidence that the City was not responsive to follow-up questions, she would want to flag that as a possible recommendation for better transparency; unfortunately, the Complainant made no attempt to gain clarification about any of the documents; there is no obligation under the law to provide an explanation of redactions document by document; she is inclined to deny the Complaint and really wishes there had been some attempt for clarification or follow-up on the part of the Complainant. In response to Chair Tilos's inquiry, the Chief Assistant City Attorney stated the language she advises the Commission to look at is Government Code Section 6255, Subsection A which is a provision of the PRA; it states that: "the agency shall justify withholding any record by demonstrating that the record in question is exempt under expressed provisions of this chapter, or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record;" the provision i… | OpenGovernmentCommission/2021-11-01.pdf |
OpenGovernmentCommission/2021-11-01.pdf,14 | OpenGovernmentCommission | 2021-11-01 | 14 | The motion failed due to a lack of second. Commissioner Reid moved approval of dismissing the Complaint on procedural grounds asking that Mr. Garfinkle work with the City Attorney and City Clerk's offices to understand a little more of why the redactions occurred. The Chief Assistant City Attorney stated the dismissal is for procedural or jurisdictional defects; jurisdictional would be if the Commission did not have the authority to make a decision on the Complaint or it is something totally out of the Commission's purview; procedural grounds would be that some sort of procedure was not followed in the actual making of the Complaint; the most classic example would be if a Complainant filed their Complaint after the deadline; stated that she is not sure whether dismissal is really what Commissioner Reid intends. The motion failed due to a lack of second. In response to Commissioner Reid's inquiry, Chair Tilos stated the five options are: 1) Complaint sustained with cure and correct recommendation, 2) Complaint sustained without cure and correct recommendation, 3) Complaint denied, 4) Complaint denied as unfounded, and 5) Complaint dismissed on jurisdictional or procedural grounds. Commissioner Montgomery moved approval of denying the Complaint as unfounded. Commissioner Reid suggested a friendly amendment to deny the Complaint, but not determine it unfounded, as it would be a harsh penalty to the Complainant. Commissioner LoPilato stated that she is inclined to second the motion; she wrestles with the unfounded distinction solely on the basis of what a layperson may interpret; it comes down to what a reasonable community member making a PRA would think. Chair Tilos stated as a non-lawyer person, he is leaning toward unfounded; the City did its due diligence; the Chief Assistant City Attorney also explained the California Supreme Court's position regarding redactions on PRAs. In response to Commissioner Chen's inquiry, Chair Tilos added a minute to everyone's clock. Commissioner Montgomery stated that she did not a… | OpenGovernmentCommission/2021-11-01.pdf |
OpenGovernmentCommission/2021-11-01.pdf,15 | OpenGovernmentCommission | 2021-11-01 | 15 | experience and back-and-forth communication with the County on a similar PRA seems like a more reasonable and collaborative process; she supports the unfounded finding. Commissioner Reid stated that punishing members of the public for bringing forth a PRA Complaint goes against the values of open government; she is very disappointed in the unfounded finding because of the harsh punishment. Commissioner LoPilato seconded the motion, which carried by the following roll call vote: Commissioners Chen: Aye; LoPilato: Aye; Montgomery: Aye; Reid: No; Chair Tilos: Aye. Ayes: 4. Noes: 1. *** Chair Tilos called a recess at 10:04 p.m. and reconvened the meeting at 10:12 p.m. *** REGULAR AGENDA ITEMS 4-A. Selection of Vice Chair Commissioner Chen moved approval of Commissioner LoPilato being Vice Chair. Commissioner Montgomery seconded the motion. Under discussion, Commissioner LoPilato stated that she does not think the Vice Chair should automatically advance to the Chair role in January and could be anyone interested. Chair Tilos concurred with Commissioner LoPilato; stated that he would likely step down; the Vice Chair is the logical choice; he was reluctant when he was voted as Chair, but allowing all members an opportunity and experience to Chair is important. Commissioner LoPilato stated that she is happy to take on the role of Vice Chair until the election in January based on the Commission's constitution at that point. On the call for the question, the motion carried by the following roll call vote: Commissioners Chen: Aye; LoPilato: Abstain; Montgomery: Aye; Reid: Aye; Chair Tilos: Aye. Ayes: 4. Abstention: 1. 4-B. Minutes of the September 20, 2021 and October 4, 2021 Meetings Commissioner Chen moved approval of the minutes. Commissioner LoPilato seconded the motion, which carried by the following roll call vote: Commissioners Chen: Aye; LoPilato: Aye; Montgomery: Aye; Reid: Aye; Chair Tilos: Aye. Ayes: 5. Meeting of the Open Government Commission November 1, 2021 15 | OpenGovernmentCommission/2021-11-01.pdf |
OpenGovernmentCommission/2021-11-01.pdf,16 | OpenGovernmentCommission | 2021-11-01 | 16 | 4-C. Report to City Council on Issues Arising from Implementation of the Sunshine Ordinance Commissioner Chen gave a brief presentation. Commissioner LoPilato stated that she does not think the report is quite in shape to send to the City Council; it was a huge undertaking; she is refining her thoughts on it; the Commission is required to do the reports at least once annually; Complaints are still coming in for 2021; suggested moving the plan to finalize the report closer to January; she is mindful that certain things already feel outdated; specifically Recommendation #3, the City already is publishing the legislative agenda. Commissioner Chen stated work on the Complaint Procedure and form took out half of the recommendations; she feels the relationship with the City Attorney's office is much improved; the report can be updated on an ongoing basis; she concurs with Commissioner LoPilato regarding the timing. Chair Tilos stated the Commission could hold off until January. Commissioner Chen stated things can be lost during the turnover of members; the report is a living document like the Bylaws. Commissioner LoPilato stated the report should be grounded in the statute; some of the recommendations read like directives; leading with an explanation and background of what the Sunshine Ordinance actually says may be a better approach; the recommendations could be reviewed item-by-item; it is important to look at the accuracy and weight that is given to some of the language; the Commission's role should be neutral; the report seems more like an advocacy piece; it might be better received and more effective if it is more neutral and has a gatekeeper tone; the City Council needs to give direction to the Commission and staff on what work the Commission should do in addition to hearing Complaints; the expectations of what the Commission does is a bit limited. *** In response to Chair Tilos's inquiry, the City Clerk stated a vote was needed to consider new items at 10:30 p.m. but since it was missed, the next item could be b… | OpenGovernmentCommission/2021-11-01.pdf |
OpenGovernmentCommission/2021-11-01.pdf,17 | OpenGovernmentCommission | 2021-11-01 | 17 | The City Clerk stated that when the last Sunshine Ordinance amendments were adopted, prior Complaints and decisions were to be posted on the OGC website, which has been done; she welcomes any feedback. The City Clerk further stated that she worked on the Complaint Procedure glossary and Frequently Asked Questions (FAQ) section and will send it out to the Commissioners for feedback. The Chief Assistant City Attorney announced a Citywide Sunshine Ordinance training for all Board and Commission members would be in mid-December; she will be doing a training for the OGC at a public meeting in January. COMMISSION AGENDA REQUESTS None. COMMISSION COMMUNICATIONS None. NON-AGENDA PUBLIC COMMENT None. ADJOURNMENT Chair Tilos adjourned the meeting at 10:56 p.m. Respectfully submitted, Lara Weisiger City Clerk The agenda for this meeting was posted in accordance with the Sunshine Ordinance. Meeting of the Open Government Commission November 1, 2021 17 | OpenGovernmentCommission/2021-11-01.pdf |
OpenGovernmentCommission/2013-02-04.pdf,1 | OpenGovernmentCommission | 2013-02-04 | 1 | APPROVED MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING MONDAY FEBRUARY 4, 2013 7:00 P.M. The meeting was convened at 7:00 p.m. ROLL CALL - Present: Commissioners Aguliar, Cambra, Spanier, Tilos, Wong - 5. Absent: None. 1-A. Select Chair and Vice Chair. Commissioner Spanier moved approval of nominating Commissioner Cambra as Chair. Commissioner Wong seconded the motion, which carried by the following voice vote: Ayes: Commissioners Aguliar, Spanier, Tilos, and Wong - 4. Abstention: Commissioner Cambra - 1. Commissioner Spanier moved approval of nominating Commissioner Aguliar as Vice Chair. Commissioner Tilos seconded the motion, which carried by unanimous voice vote - 5. ORAL COMMUNICATIONS, NON-AGENDA None. AGENDA ITEMS 3-A. Approve the October 1, 2012 Meeting Minutes. Commissioner Wong moved approval of the Minutes. Commissioner Tilos seconded the motion, which carried by unanimous voice vote - 5. 3-B. Review the City of Alameda Public Records Index. The City Clerk gave a brief presentation. Commissioner Tilos inquired about the City of Berkeley's numbering system. The City Clerk responded Alameda would not use Berkeley's numbering system; the Index would be customized for Alameda. Meeting of the Open Government Commission February 4, 2013 1 | OpenGovernmentCommission/2013-02-04.pdf |
OpenGovernmentCommission/2013-02-04.pdf,2 | OpenGovernmentCommission | 2013-02-04 | 2 | Vice Chair Aguliar inquired whether the list presented tonight would be on the City's website. The City Clerk responded the list would be posted on the website following City Council review. Chair Cambra stated having an Index which the average citizen can understand is important; questioned whether the Index should be available in other languages; stated there should be a brief explanation in layman's terms for why a document would be "Exempt;" some records, such as autopsies and real estate transactions, might require a split status that changes from "Exempt" to "Open;" some documents are prevented [from disclosure] by operation of law, such as personnel records; however, the "Exempt" status of some records might be discretionary, which should be reviewed. Vice Chair Aguliar stated citations to Code Sections should be included. The City Clerk stated said citations are required by the Sunshine Ordinance. Commissioner Tilos suggested a hyperlink be created when the list is posted to the website. Chair Cambra inquired whether a hyperlink would incur increased costs, to which the City Clerk responded additional staff time would be needed. Chair Cambra stated everyone needs to be mindful of the possible burden of increased staff time and costs. The City Clerk stated there are going to be costs to develop a new Citywide digital records program; staff is identifying funding; records management is a Council priority. Commissioner Tilos noted translating the Index into other languages would be an extra cost. Chair Cambra stated Google has a language conversion tool; however, the City would have an obligation to ensure translation is accurate. Vice Chair Aguliar inquired whether Chair Cambra is suggesting that only the explanation of the Index be translated into different languages. Chair Cambra responded that he would want to know what the expense would be to translate the entire Index. Vice Chair Aguliar suggested only translating the explanation and not translating the entire Index. Chair Cambra stated that he would l… | OpenGovernmentCommission/2013-02-04.pdf |
OpenGovernmentCommission/2013-02-04.pdf,3 | OpenGovernmentCommission | 2013-02-04 | 3 | Commissioner Tilos stated that he is leaning toward only having the Index in English. Commissioner Spainer stated that she is not opposed to the idea [of multiple languages], but she concurs with Commissioner Tilos. In response to Commissioner Tilos's inquiry regarding documents with a split status, the City Clerk stated one option would be to list a document as "Partially Open" since a document could change from "Exempt" to "Open." Chair Cambra questioned whether having two separate categories, such as: Real Estate Transactions - Under Negotiation and Real Estate Transactions - Completed might be clearer; further stated records prevented by operation of law could be discussed at a later meeting. Vice Chair Aguliar inquired whether Chair Cambra is suggesting that a record be exempt as a matter of law versus discretionary. Chair Cambra responded State law allows cities to exempt certain documents; however, the City could chose to disclose some of said documents. The Assistant City Attorney stated some cities keep arrest logs, some do not; normally, some arrest related information is contemporaneous and would be subject to the Public Records Act; only a certain amount of information would be released; however, health related information cannot be disclosed. Chair Cambra stated once the final Index is created, documents could be reviewed to determine if the City wants to accept the "Exempt" status. COMMISSIONER COMMUNICATIONS 4-A. Chair Cambra stated former Commissioner Petersen addressed having email sent to someone other than City staff and staff was going to research the matter. The City Clerk stated the Commission's email address is pengovcomm@alamedaca.gov; emails would automatically forward to the Chair and Vice Chair so the Chair and Vice Chair would receive any complaints; noted the complaint form is on the website and a meeting has to be called within thirty days of receiving a complaint. Chair Cambra stated the concern was a complaint filed against the City Clerk's Office should not go to the City Clerk on… | OpenGovernmentCommission/2013-02-04.pdf |
OpenGovernmentCommission/2013-02-04.pdf,4 | OpenGovernmentCommission | 2013-02-04 | 4 | ADJOURNMENT There being no further business, Commissioner Wong moved adjournment at 7:30 p.m. Commissioner Tilos seconded the motion, which carried by unanimous voice vote - 5. Respectfully submitted, Lara Weisiger City Clerk The agenda for this meeting was posted in accordance with the Sunshine Ordinance. Meeting of the Open Government Commission February 4, 2013 4 | OpenGovernmentCommission/2013-02-04.pdf |
OpenGovernmentCommission/2012-10-01.pdf,1 | OpenGovernmentCommission | 2012-10-01 | 1 | MINUTES OF THE OPEN GOVERNMENT COMMISSION MONDAY OCTOBER 1, 2012 - - - 7:00 P.M. The meeting was convened at 7:00 p.m. ROLL CALL - Present: Commissioners Jensen, Oddie, Peterson, Spanier, and Wong - 5. Absent: None. ORAL COMMUNICATIONS, NON-AGENDA 2-A. Matthew James Fitzgerald, Alameda, introduced himself. AGENDA ITEMS 3-A. Approve the May 7, 2012 Meeting Minutes. Commission Jensen moved approval of the minutes with correction to the spelling of her last name on page 3. Following Commissioner Spanier's comments, the City Clerk clarified that agendas need to go out twelve days before a City Council meeting; stated a noticing complaint could be filed before a meeting is held. Commissioner Wong seconded the motion, which carried by unanimous voice vote - 5. 3-B. Receive a Status Update on the Public Records Index. The City Clerk stated the Public Records Index is required by the Sunshine Ordinance and would be posted on the City's website to inform people about the types of documents maintained in each department; the Sunshine Ordinance requires that documents be labeled "Open,' "Partially Open," or "Has been determined Exempt;" the list has been drafted and staff is finalizing the documents' open or exempt status; the Index would be brought back to the Commission once the status has been finalized. Commissioner Jensen inquired whether current City website documents would need to be categorized or just the new documents, to which the City Clerk responded all documents would be categorized. COMMISSIONER COMMUNICATIONS 4-A. Commissioner Peterson discussed the public's lack of awareness of the Commission; stated the Sunshine Ordinance should be added to the Open Government section on the website; future meeting dates should be on the calendar now; that he is still concerned with not having Commissioners' email addresses on the website; he Meeting of the Open Government Commission 1 October 10, 2012 | OpenGovernmentCommission/2012-10-01.pdf |
OpenGovernmentCommission/2012-10-01.pdf,2 | OpenGovernmentCommission | 2012-10-01 | 2 | does not believe public correspondence should go through the City Clerk's office but should go directly to the Commission; not having Commissioners' email addresses on the website by now is inexcusable and unacceptable; that he has addressed said concern with the Deputy City Manager. Commissioner Jensen concurred with Commissioner Peterson; urged adding Commissioner e-mail addresses and fax number on letterhead; stated Commissioner email addresses should be unique rather than using the City Clerk's office email address to ensure continuity and privacy. Chair Oddie noted the Commission's meeting date and minutes are listed on the City's website. Commissioner Petersen stated no one attended tonight's meeting; that he does not understand why Commission meeting dates are only calendared on the City's website shortly before a meeting. The City Attorney stated Commissioner Petersen's concern [regarding email addresses] would be restated to the Deputy City Manager; a major revamp of the City's website is underway; domain names have been discussed; clarified that the City Clerk is the repository of all City records and complaints need to go through the City Clerk's office. Chair Oddie inquired whether any complaints have been filed, to which the City Clerk responded in the negative; stated a meeting would have been scheduled if a complaint was filed. Commissioner Jensen requested that the City Clerk's email address be placed on the next agenda. The City Clerk stated all agendas contain said contact information. ADJOURNMENT Commissioner Wong moved approval of adjourning the meeting at 7:15 p.m. Commissioner Jensen seconded the motion, which carried by unanimous voice vote - 5. Respectfully submitted, Lara Weisiger City Clerk The agenda for this meeting was posted in accordance with the Sunshine Ordinance. Meeting of the Open Government Commission 2 October 10, 2012 | OpenGovernmentCommission/2012-10-01.pdf |
OpenGovernmentCommission/2021-08-02.pdf,1 | OpenGovernmentCommission | 2021-08-02 | 1 | MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING MONDAY AUGUST 2, 2021 7:00 P.M. Chair Tilos convened the meeting at 7:00 p.m. ROLL CALL - Present: Commissioners Chen, LoPilato, Reid and Chair Tilos - 4. [Note: The meeting was conducted via Zoom.] Absent: Vice Chair Shabazz - 1. [Staff present: Chief Assistant City Attorney Elizabeth Mackenzie; City Clerk Lara Weisiger] Oral Communications None. Regular Agenda Items 3-A. Review of the Sunshine Ordinance Complaint Form and Procedure Commissioner LoPilato gave a Power Point presentation. Commissioner Reid thanked Commissioner LoPilato for the excellent presentation; suggested the Commission consider an online complaint form process as well; stated the most streamlined approach is something as simple as possible for the average member of the community to be able to reach out to file a complaint; another important issue is what independent outside counsel would look like and who would decide; suggested considering a provisional approach such as having outside counsel for the next six months or for specific number of complaints; noted that she has questions regarding what a prehearing process and an informal complaint process would look like. Chair Tilos summarized Commissioner Reid's questions and comments. Commissioner Chen stated reading Commissioner LoPilato's report and seeing the visual presentation was very helpful; she compared it to having jury instructions, receiving a neutral presentation of the parameters and being able to decide whether or not a complaint matches up with the Commission's duties under the Sunshine Ordinance; she would really value having "jury" instructions as the Commission is the jury and not the judge. Chair Tilos thanked Commissioner LoPilato for the hard work; stated he is leaning towards having an impartial and neutral outside attorney guide the Open Government Commission (OGC), rather than someone from the City Attorney's office. Commissioner Chen stated she would like to test out having a neutral memo to see if it Meeting of the O… | OpenGovernmentCommission/2021-08-02.pdf |
OpenGovernmentCommission/2021-08-02.pdf,2 | OpenGovernmentCommission | 2021-08-02 | 2 | works; she is not convinced either way whether outside legal counsel is needed or whether it could be done in-house with City Attorney staff; if the Commission is not satisfied with the product, then the alternative could be tried; all attorneys are trained to argue multiple sides of any issue; she would like to see a neutral memo first. Commissioner Reid stated the Commission's task is to ask what is the best way for the OGC to serve the public; the OGC needs to ensure that someone who is bringing forward a complaint receives the best chance of being heard and understood; suggested having outside, independent counsel for the next few meetings to see what that would look like; stated the complaints heard this year already took the other approach with the City Attorney's office drafting resolutions, which had a lot of confusion; she would like to try the outside counsel approach, but would like to know a cost estimate first. Commissioner LoPilato stated that she does see the two paths as the most desirable; she is leaning towards the option of what the City Attorney's office proposed because it is an incremental step; there has actually never been a neutral memo come from the City Attorney's office; everything has always been viewed by everyone writing it as an advocacy piece; the City Attorney's office prefers to structure it with the Chief Assistant City Attorney providing advice to the Commission and having outside counsel when necessary; suggested leaning into trust and seeing what that looks like; the memos would be put forth publicly; the Commission would be very aware if they are not neutral; she would also like more guardrails in place and a commitment that the OGC would be receiving an instructional memo. Chair Tilos stated that he would be supportive of trying out a restructured process of having a walled-off Chief Assistant City Attorney, along with providing a neutral memo; it would be a marginal step towards building trust between the OGC and City Attorney's office. Commissioner LoPilato stated it is … | OpenGovernmentCommission/2021-08-02.pdf |
OpenGovernmentCommission/2021-08-02.pdf,3 | OpenGovernmentCommission | 2021-08-02 | 3 | possible vision of what a statement of the case would look like; inquired whether the plan to represent City departments in complaints before the OGC extends to any policy body. The Chief Assistant City Attorney responded that she does not see any difference between policy bodies versus City departments in terms of how the City Attorney's office would represent them. Commissioner LoPilato inquired whether the Chief Assistant City Attorney, as the advisor to the OGC, would be staffing any policy bodies in terms of advising them on Brown Act issues or stepping back from those duties. The Chief Assistant City Attorney responded the City Attorney's office has not determined exactly what her role would be other than she would be stepping back from handling Public Records Act (PRA) requests, which is due to recognition of the fact that at some point one of the productions could be the subject of a Sunshine Ordinance complaint. Commissioner Reid stated that she has concerns about the ethical wall; she is not convinced that the City Attorney's office would be able to truly be a fair and neutral advisor; she wonders if there are other options to explore; suggested considering both outside counsel and a neutral advisor to have a comparison. The Chief Assistant City Attorney stated the idea of an ethical wall is not a new one; case law has been reviewed to support past practices and anticipated future practices in terms of maintaining an ethical wall so that decisions that come out of the Commission would be legally solid; the concept of an ethical wall is used currently in Civil Service Board matters and in adjudicatory appeals to the City Council; the City Attorney's office is comfortable with the process and suggests the format going forward. Commissioner Chen moved approval of accepting Option 2 [Chief Assistant City Attorney with formalized parameters for ethical wall guardrails and commitment to providing transparent, written instructional memo as resource for the OGC] on a provisional basis. Commissioner LoPilato sec… | OpenGovernmentCommission/2021-08-02.pdf |
OpenGovernmentCommission/2021-08-02.pdf,4 | OpenGovernmentCommission | 2021-08-02 | 4 | The City Clerk concurred with the Chief Assistant City Attorney; stated the matter is going to come back anyway; staff could flesh out any additional details which could be brought back at the same time; selecting the option tonight gives staff the understanding direction that can be looked at further. On the call for the question, the motion carried by the following roll call vote: Commissioners Chen: Aye; LoPilato: Aye; Reid: No; Chair Tilos: Aye. Ayes: 3. Noes: 1. [Absent: Vice Chair Shabazz - 1] Under discussion, Commissioner LoPilato stated the next item would be to decide whether the Commission wants to draft a request letter with bullet points to be voted on by the entire Commission; the City Attorney's office could come with any concerns about the requests; the Commission could then submit something formally. Chair Tilos stated the City Attorney's office already knows what the OGC wants and he would rather have them draft the letter to present to the OGC. The Chief Assistant City Attorney stated that she would be happy to commit to doing what Chair Tilos outlined; she could flesh out with her colleagues to make the commitments that Option 2 outlines to the extent they are able to with their resources; her office is also very mindful of the City Council's desire for both parties to work collaboratively so that is a priority for her as well; she will have something for the September meeting that is more fleshed out from her July 19th email. Commissioner LoPilato continued her presentation with Review Area 2 and modifications to the complaint form; suggested revisions return at the next meeting. Chair Tilos stated he is satisfied with the simplicity of the current complaint form and can live with how it is. Commissioner Reid stated that she thinks the complaint form needs some revision; it would be a great idea to include members of the public; suggested proposing a subcommittee, which includes the public, to work on revisions for just the form or also include the complaint procedure; since it is going out t… | OpenGovernmentCommission/2021-08-02.pdf |
OpenGovernmentCommission/2021-08-02.pdf,5 | OpenGovernmentCommission | 2021-08-02 | 5 | Commissioner Chen responded in the negative; stated she thought the form was very simple and even hand-wrote hers. Chair Tilos stated that he does not want to over-complicate the form; the form is really just the first step; subsequent steps in the process get more complex. Commissioner LoPilato concurred with Chair Tilos, stated the form should continue to be simple; the only concern she had was the physical address requirement; complainants should be made aware that the complaint form is made public. Commissioner Reid inquired whether a member of the public could make an anonymous complaint, if it had been done in the past and if it could be included in the process. Chair Tilos stated he would not want to accept anonymous complaints; if someone is filing a complaint, they should step up; it also opens up the door for more complaints. Commissioner Reid stated the City of San Francisco's Sunshine Task Force hears anonymous complaints; she would like the process to be more open and comfortable for people; there are some details on the form that seem inconsistent, including how to file the complaint; the consideration of an online form would be beneficial and bring Alameda into the 21st century. Commissioner Chen stated she finds it difficult to see how the Commission could take an anonymous complaint and yet have the person present their complaint to the OGC. The City Clerk noted the Sunshine Ordinance requires that the complainant attend the hearing. Commissioner Chen stated unless the City Council changes the Sunshine Ordinance, anonymous complaints are not accepted; concurred with Commissioner Reid regarding the inconsistencies in the documents; stated that she will rely on Commissioner Reid's eagle eyes to point out what needs to be fixed. In response to Commissioner LoPilato's inquiry, the City Clerk stated there are digital options at the City's disposal that are easy to use; many forms have been converted to an online submission; the form has not been changed since 2012 and not everyone was emailing back th… | OpenGovernmentCommission/2021-08-02.pdf |
OpenGovernmentCommission/2021-08-02.pdf,6 | OpenGovernmentCommission | 2021-08-02 | 6 | Commissioner Reid stated she would be happy to work with the City Clerk if it is appropriate; she would also gather suggestions from the public. In response to Commissioner Reid's inquiry, Commissioner LoPilato stated that she was envisioning revisions to just the form, rather than the complaint procedure which would be a heavier lift. Commissioner LoPilato continued her presentation with Review Area 3; stated it is the meatier section of the complaint procedure; she took a stab at identifying quite a few areas for revision that could be significant improvements and having more clarity around what the process will entail; inquired whether there is interest in revising the procedures, what should be included and who should do it. In response to Commissioner Reid's inquiry regarding a pre-hearing conference, Commissioner LoPilato stated her term pre-hearing meant written submissions; stated there are various procedural aspects of the complaint procedure, including the complaint committee hearing, that just has not occurred or been implemented. In response to Commissioner Reid's inquiry, the City Clerk stated some complaints have been withdrawn because staff has worked with the complainant; they have not necessarily been called pre-hearing conferences, but it is an example of how complaints are withdrawn. Commissioner Reid stated it would be helpful to include the specific language in the document regarding the willingness of staff to work with the complainant; the timing is also important to clarify on the form. In response to Commissioner Reid's inquiry, the City Clerk stated the 15 day deadline to file a complaint is in the Sunshine Ordinance and is 15 calendar days. In response to Commissioner Chen's inquiry, the City Clerk stated the number of days is a confusing issue; the 15 calendar days is the timeline required to submit a complaint; the Public Records Act timeline differs regarding falling on holidays. Commissioner Reid requested clarification about the PRA timeline, to which the City Clerk responded the i… | OpenGovernmentCommission/2021-08-02.pdf |
OpenGovernmentCommission/2021-08-02.pdf,7 | OpenGovernmentCommission | 2021-08-02 | 7 | Commissioner Chen seconded the motion, which carried by the following roll call vote: Commissioners Chen: Aye; LoPilato: Aye; Reid: No; Chair Tilos: Aye. Ayes: 3. Noes: 1. [Absent: Vice Chair Shabazz - 1] Under discussion, Commissioner LoPilato stated any feedback from Commissioner Reid would be welcome. Commissioner Reid stated if the Commission is taking a collaborative approach, members should work together; if Commissioners are willing to work on a certain topic, the Commission should welcome it. Chair Tilos stated Commissioners are welcome to share their thoughts. 3-B. Staff Update The Chief Assistant City Attorney stated the OGC proposals for the Sunshine Ordinance revisions submitted to the City Council for the July 20th meeting has been continued to the September 7th meeting. The City Clerk announced that Next Request, the City's new PRA system, went live today; staff will be given a little bit of adjustment time before going out with a full press release. 3-C. Determine Next Meeting Date (Due to September Holiday) The City Clerk stated the first Monday in September is the Labor Day holiday; inquired whether Commissioners wanted to select a date tonight, or have her do offline individual polling; the proposed dates are: 9/1, 9/8, 9/15, 9/20, or 9/28. Commissioner LoPilato stated that she would like a date as far away from the holiday as possible. Chair Tilos stated his concern is if the OGC meets on September 28th, they would have to come back in a few days for the October 4th meeting. The City Clerk stated the September and October meetings could be combined as one meeting. The Chief Assistant City Attorney noted she is not available on September 28th, although another attorney in her office could fill in. Chair Tilos stated it seems like people would like more time to think about the date. The City Clerk stated she will conduct offline polling; she just wanted to make it publicly known that there will be no meeting on September 6th since it is a holiday. Meeting of the Open Government Commission August … | OpenGovernmentCommission/2021-08-02.pdf |
OpenGovernmentCommission/2021-08-02.pdf,8 | OpenGovernmentCommission | 2021-08-02 | 8 | COMMISSION COMMUNICATIONS Commissioner LoPilato suggested receiving updates from Commissioners at subsequent meetings of correspondence any member has sent to Council; she would like to be aware of what is going out under the Commission's name. The City Clerk stated she forwarded correspondence to the Council and can also forward it to the Commission offline; there is no need to wait until the next meeting. Commissioner Chen stated the Commission should think ahead about what the table of contents should be on the Annual Report; she would like both Commissioners and staff to begin thinking about it; she feels some members would like to see a more robust annual report; she would like to agendize brainstorming the table of contents. In response to Chair Tilos' inquiry, the City Clerk stated the Commission should not express any consensus under this issue because it is not agendized. Adjournment Chair Tilos adjourned the meeting at 8:32 p.m. Respectfully submitted, Lara Weisiger City Clerk The agenda for this meeting was posted in accordance with the Sunshine Ordinance. Meeting of the Open Government Commission August 2, 2021 8 | OpenGovernmentCommission/2021-08-02.pdf |
OpenGovernmentCommission/2015-10-14.pdf,1 | OpenGovernmentCommission | 2015-10-14 | 1 | MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING WEDNESDAY OCTOBER 14, 2015 - - 7:00 P.M. Chair Aguilar convened the meeting at 7:02 p.m. ROLL CALL - Present: Commissioners Bonta, Dieter, Foreman, Tuazon, and Chair Aguilar - 5. Absent: None. ORAL COMMUNICATIONS, NON-AGENDA None. AGENDA ITEMS 3-A. Minutes of the March 30, 2015 Meeting Commissioner Bonta stated she would pass on a few typos to the City Clerk. Commissioner Dieter moved approval of the minutes as corrected. Vice Chair Foreman seconded the motion, which carried by unanimous voice vote - 5. 3-B. Hearing of Sunshine Ordinance Complaints filed September 15, 2015 The Assistant City Attorney gave a brief presentation. John Klein stated he is embarrassed about needing to be present and thought about withdrawing the complaint because it seems trivial; however, it is not trivial; through the whole process, which has been skeletal, the response has not been as it should be; he submitted five individual records requests directly to the Mayor and each Councilmember because that is the way he wanted to do it; if the City Attorney wanted to consolidate the response, it would have been fine; however, the City Attorney's response on the 11th does not even say who he is responding for; the City Clerk is the custodian of records; that he did not know why he was getting an email from the City Attorney; he thought maybe it is on behalf of the Mayor, but did not know; while the response was timely, it did not include the information the rule requires, which is: when the documents will be ready, how the documents will be delivered and by whom; said information is not in the City Attorney's September 11th response; he did not know who the Attorney was responding for and the required information was not included in the three day response; the Attorney said he needed clarification; the City Attorney inquired if they could talk Wednesday; when they did talk Wednesday, the clarification the Assistant City Attorney needed was the timeframe of the requested documents; questione… | OpenGovernmentCommission/2015-10-14.pdf |
OpenGovernmentCommission/2015-10-14.pdf,2 | OpenGovernmentCommission | 2015-10-14 | 2 | disingenuous; he did not need to deal with a particular Attorney; if an Attorney is out of the office for three days, the City should assign someone else to be responsible for a response; eight days into the ten day period after the conversation with the Attorney, a 14 day extension was requested because the request was voluminous; the conversation was at 2:30 p.m. in the afternoon, by 5:30 p.m., the Attorney knew that the response was voluminous; questioned how he learned so much so quickly; following the emails provided, the Attorney was asked about the definition of voluminous and never replied; the September 11th response was inadequate because it did not include when, how and by whom; if the City's position is that the complaint is frivolous, he suggests timelines mean something under the rule; provided an example of timeliness involved with receiving a parking ticket; timeliness should mean something in this instance and should be more meaningful for the City Attorney; the responsibility to timelines does not decrease as it goes up, but rather includes all of the responsibilities and assumes a much higher standard; that he is a consumer of public records; he has done a number of public record requests with the City Clerk; it is never an issue; rather than getting an email in three days telling him when he will receive the documents, he gets the documents; he is never told the documents will be provided next week; by the end of three days, he has the documents; he submitted a records request this week; 12 minutes later, he received an email from the City Clerk telling when, by whom and how; timelines matter; the complaint is not trivial given all the other incidentals of the interaction and the disingenuous nature of how the request was handled by the Attorney. Vice Chair Foreman inquired if Mr. Klein has received the documents, to which Mr. Klein responded in the affirmative. Vice Chair Foreman inquired if he received the documents on October 2nd, to which Mr. Klein responded that he received them on Octobe… | OpenGovernmentCommission/2015-10-14.pdf |
OpenGovernmentCommission/2015-10-14.pdf,3 | OpenGovernmentCommission | 2015-10-14 | 3 | Attorney to do so during the phone call. Vice Chair Foreman stated to understand the complaint, what Mr. Klein is saying now is that he is not objecting to an Attorney responding as opposed to a Councilmember; inquired whether Mr. Klein is objecting to the Attorney not disclosing who he was representing. Mr. Klein responded in the negative; stated when, how and who within three days; the Attorney gave no information and left the office for three days; his request was on ice for eight days; the issue is the response was not adequate with regard to the rule of three days of giving who, when and how, which may seem trivial; however, it is the behavior around it; the Attorney could have said sorry he was late and that he would do his best to get the documents but might need a few more days; it was not like that; the Attorney's response was defensive; he has had a lot of success of rapid turnaround customer service with the City Clerk's office. Vice Chair Foreman inquired if Mr. Klein had ever requested emails before, to which Mr. Klein responded not specifically. The Assistant City Attorney stated that he does not think anyone from his office or the City has indicated that the complaint is trivial or frivolous; looking at Mr. Cohen's response, it says he would like to obtain some clarification on the request and it would be helpful to discuss it; Mr. Cohen stated he would be out of the office until Wednesday morning; that he does not read the email as defensive; it seems reasonable for a person trying to respond to a public record act request to want to better understand what is being requested; when something comes to the Council, there is a responsibility Meeting of the Open Government Commission October 14, 2016 3 | OpenGovernmentCommission/2015-10-14.pdf |
OpenGovernmentCommission/2015-10-14.pdf,4 | OpenGovernmentCommission | 2015-10-14 | 4 | for the City Attorney's office to check with the Councilmembers about their individual emails; more time is involved when making a records request of a public official as opposed to walking into the City Clerk's office where documents can be obtained immediately; there were reasons why it took longer than what otherwise would be allowed; the email speaks for itself; that he does not find it to be offensive; Mr. Cohen was trying to get some clarification; it is true the email does not say it is on behalf of the five Councilmembers; however, since all of the requests came in on September 7th, if he were the recipient, he would think it would be reasonable to assume it is in response to the requests from that date. Vice Chair Foreman stated that he does not see a problem; the Attorney should have indicated who he was representing; however, he thinks it is obvious; when he read all of the emails, he assumed that the Attorney was responding for everybody; Mr. Klein does have a point that the Attorney said he wanted clarification and what he wanted to know was the timeframe; he understands how Mr. Klein could assume there was something ambiguous in his request; the very simple clarification could have been stated in the Attorney's email. The Assistant City Attorney stated the point of clarification was about the beginning timeframe; correspondence relative to rent control issues have been before the City Council since September, 2014; Mr. Cohen was simply asking how far back in time to go; after a telephone conversation, the email Mr. Cohen sent to Mr. Klein on September 16th indicates that the time frame is June 1st through September 1st; that [timeline] seems to be the point of clarification; there were emails and other material relative to rent control that predated September 2015; that he does not disagree the email could have been more artfully written; however, eventually Mr. Klein received the documents within a reasonable time and within the 14 day extension. Commissioner Bonta stated there is one way to look a… | OpenGovernmentCommission/2015-10-14.pdf |
OpenGovernmentCommission/2015-10-14.pdf,5 | OpenGovernmentCommission | 2015-10-14 | 5 | would take a little bit more time; stated the criteria in Sunshine Ordinance Section 2- 92.9 was met. Mr. Klein responded the language specifies the response has to address by whom, when and how the request will be fulfilled. Commissioner Dieter stated that she is reading Section 2-92.9, which states a request to inspect or obtain copies of public records that is submitted to any department or anybody shall be satisfied no later than 10 business days unless the requester is advised in writing within three business days that additional time is needed to determine whether the request for records is likely to comprise a voluminous amount of separate and distinct writings. Commissioner Bonta inquired if Section 2-92.5 is being referenced, which indicates a request for information to any agent of the City requires the agent to respond to said request within three business days by providing or explaining how, when and by whom. Mr. Klein responded in the affirmation; stated said Section is the one in his complaint. Vice Chair Foreman stated that he thought the issue was frivolous when he first looked at it; however, the more he reviews it, the more he is a little bit concerned; he understand Mr. Klein received the documents in time; Mr. Klein is not complaining about that; he is putting himself in Mr. Klein's shoes; a response was due in three days; the response came in on the third day, which is perfectly okay; the response is clarification is needed; Mr. Klein wrote back less than two hours later asking the Attorney to tell him what is unclear; in hindsight from the 16th, Attorney Cohen could have very easily met the three day requirement and still could have asked for the extension; that he does not have a problem with staff asking for the extension; these are emails and over 400 pages, which might include privileged material; he has no problem whatsoever with the extension; if he were in Mr. Klein's shoes, he would say the Attorney is dragging his feet; he does not know why the Attorney was dragging his feet; it may… | OpenGovernmentCommission/2015-10-14.pdf |
OpenGovernmentCommission/2015-10-14.pdf,6 | OpenGovernmentCommission | 2015-10-14 | 6 | Commissioner Bonta stated Mr. Cohen did respond via email within the three day time period and followed up with a phone call to get clarifying information; the height of customer service is to actually speak to someone directly and try to get the information. Mr. Klein stated it is difficult to understand said reasoning when the rule clearly states within three days the requester will get a response with regarding to when, how and by whom the request will be fulfilled. Vice Chairman Foreman stated that is the issue; Mr. Klein is not complaining about not getting the documents; his formal complaint is limited to the three day rule; that he leans toward the three day rule was violated; what bothers him is that Attorney Cohen may have a perfectly good explanation, but is not here; Attorney Cohen is the one who wrote the email and the Commission is supposed to be having a hearing about the email. Mr. Klein inquired whether the other party is supposed to present, to which the Assistant Attorney responded he is present on Mr. Cohen's behalf because the documents speak for themselves; the Commission has enough information to determine whether or not there was or was not a violation of the ordinance; that he does not think intent, except as read through the email, is relevant. Vice Chair Foreman stated that is a good point; it is not a question of intent. Vice Chair Foreman moved approval of finding that there was a violation of the three day rule and [staff] did not comply with the requirements thereof; the needed clarification could have easily been satisfied in three days. Chair Aguilar stated the City met "by whom:" the City Attorney would be responding on behalf of the Councilmembers; "when" was going to be discussed; the Attorney could not answer "when" because he needed information on the timeframe; he needed to know where to start and stop gathering information; maybe the Attorney could have put the timeframe of the documents in the email or maybe he could not have; maybe he thought it was going to take a lot mor… | OpenGovernmentCommission/2015-10-14.pdf |
OpenGovernmentCommission/2015-10-14.pdf,7 | OpenGovernmentCommission | 2015-10-14 | 7 | The Assistant City Attorney stated the original motion failed and there needs to be another motion or some decision made. Chair Aguilar moved approval that the Sunshine Ordinance was not violated. Commissioner Dieter seconded the motion, which carried by the following voice vote: Ayes: Commissioners Bonta, Dieter, Tauzon and Chair Aguilar - 4. Noes: Vice Chair Foreman - 1. The Assistant City Attorney stated that he draft the decision and provide it to the Commission. COMMISSIONER COMMUNICATIONS The Assistant City Attorney stated the [Sunshine Ordinance] amendments were heard by the City Council in October; the Council has a very lively hour and a half discussion; Council agreed with most of the non-substantive issues that the Commission agreed with; the Council did not accept or wanted further clarification on the more difficult issues that the Commission struggled with; the Council also raised some other issues; he intends to bring a report back to the Commission in January or February for further consideration of the items that the Council had concerns about, plus some new items that have risen in the interim. Vice Chair Foreman inquired if Commissioners could comment on the matter now, to which the Assistant City Attorney responded the matter is not on the agenda; he was providing information about what transpired. Vice Chair Foreman stated that he took it upon himself to defend the Commission's views; he very carefully limited himself defending the Commission's statements; he also very carefully stated his personal opinion but did comment on other issues; the Council had a problem with whether a Commission can write a letter. The Assistant City Attorney stated the matter will be brought back. Commissioner Dieter stated she does not mind meeting in January. The City Clerk stated the next regular meeting is February 1st Chair Aguilar stated maybe the matter should be addressed February 1st Commissioner Dieter inquired if the Commission would be discussing the other two pending issues from the last Commissioner … | OpenGovernmentCommission/2015-10-14.pdf |
OpenGovernmentCommission/2015-10-14.pdf,8 | OpenGovernmentCommission | 2015-10-14 | 8 | The Assistant City Attorney responded both matters will be placed on the agenda. The City Clerk noted Vice Mayor Matarrese requested clarification on the annual report as part of the Sunshine Ordinance discussion. ADJOURNMENT There being no further business, Chair Aguilar adjourned the meeting at 7:41 p.m. Respectfully submitted, Lara Weisiger City Clerk The agenda for this meeting was posted in accordance with the Sunshine Ordinance. Meeting of the Open Government Commission October 14, 2015 8 | OpenGovernmentCommission/2015-10-14.pdf |
OpenGovernmentCommission/2017-02-06.pdf,1 | OpenGovernmentCommission | 2017-02-06 | 1 | MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING MONDAY FEBRUARY 6, 2017 7:00 P.M. Chair Foreman convened the meeting at 7:00 p.m. ROLL CALL - Present: Commissioners Aguilar, Dieter, Little, and Chair Foreman - 4. Absent: Commissioner Henneberry - 1. ORAL COMMUNICATIONS, NON-AGENDA None. AGENDA ITEMS 3-A. Minutes of the October 3, 2016 Meeting Vice Chair Dieter moved approval of the October 3, 2016 Minutes. Commissioner Aguilar seconded the motion, which carried by unanimous voice vote - 4. [Absent: Commissioner Henneberry - 1.] 3-B. Accept the Annual Public Report Vice Chair Dieter stated she thinks the agenda title, "Accept the Annual Public Report" is unclear; she suggested adding the words "on alleged violations of the Sunshine Ordinance and the Number of Public Records Requests" to the title the next time the report is on the agenda, so that the public will know exactly what the report is when reading the agenda title. The Assistant City Attorney took note of Vice Chair Dieter's comments. Commissioner Aguilar moved approval of accepting the annual report. Commissioner Little seconded the motion, which carried by unanimous voice vote - 4. [Absent: Commissioner Henneberry - 1.] COMMISSIONER COMMUNICATIONS Vice Chair Dieter inquired the time frame of the Semi-Annual and Annual Reports, to which the Assistant City Attorney responded she does not know at the moment, but will provide the answer at the next meeting. Vice Chair Dieter requested a copy of the revised Sunshine Ordinance. Meeting of the Open Government Commission February 6, 2017 | OpenGovernmentCommission/2017-02-06.pdf |
OpenGovernmentCommission/2017-02-06.pdf,2 | OpenGovernmentCommission | 2017-02-06 | 2 | The Assistant City Clerk stated she would provide copies to all Commissioners. In response to Chair Foreman's inquiry about when he was elected Chair, the Assistant City Attorney stated the Commission meets twice a year and he was elected in October 2016. Chair Foreman stated he thought the election of officers takes place at the first meeting in February. The Assistant City Attorney stated she will check on the practice, review the by-laws, and inform the Commission. ADJOURNMENT There being no further business, Chair Foreman adjourned the meeting at 7:09 p.m. Respectfully submitted, Irma Glidden Assistant City Clerk The agenda for this meeting was posted in accordance with the Sunshine Ordinance. Meeting of the Open Government Commission February 6, 2017 2 | OpenGovernmentCommission/2017-02-06.pdf |
OpenGovernmentCommission/2020-12-14.pdf,1 | OpenGovernmentCommission | 2020-12-14 | 1 | MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING MONDAY DECEMBER 14, 2020 - - 7:00 P.M. Chair Tilos convened the meeting at 7:04 p.m. ROLL CALL - Present: Commissioners Little, Pauling, Shabazz, Schwartz and Chair Tilos - 5. [Note: The meeting was conducted via Zoom.] Absent: None. [Staff present: Chief Assistant City Attorney Michael Roush, Assistant City Attorney John Le; and City Clerk Lara Weisiger] Oral Communications None. Regular Agenda Items 3-A. Minutes of the November 16, 2020 Meeting Commissioner Schwartz stated he noted some changes in the minutes. The City Clerk acknowledged and confirmed the edits. Commissioner Schwartz moved approval of the minutes. Commissioner Little seconded the motion which carried by the following roll call vote: Commissioners Little: Aye; Pauling: Aye; Shabazz: Aye; Schwartz: Aye; Chair Tilos: Aye. Ayes: 5. 3-B. Consider the Subcommittee Proposal Regarding Potential Amendments to Article VIII (Sunshine Ordinance) of Chapter Il (Administration) of the Alameda Municipal Code to Replace the Null and Void Remedy and Consider Sending the Proposal to the City Council as the Commission's Recommendation Commissioner Schwartz expressed his appreciation to Commissioner Pauling, the City Clerk, and the Chief Assistant City Attorney for working with him on the proposal; stated the proposal captures all the issues discussed at the June 2020 meeting; thanked former Commissioner Paul Foreman for his ideas which lead to drafting the amendments; stated that he did additional research into the argument that the Commission could not implement a requirement of a supermajority vote via an ordinance; he researched the issue extensively and found it is incorrect; the Charter actually states: "the vote of three members of the Council, except as otherwise provided, shall be necessary for any act of or by the Council;" the phrase is very important because it does not create a sacred Meeting of the Open Government Commission December 14, 2020 1 | OpenGovernmentCommission/2020-12-14.pdf |
OpenGovernmentCommission/2020-12-14.pdf,2 | OpenGovernmentCommission | 2020-12-14 | 2 | requirement of three votes for all matters that cannot be changed without a Charter amendment; the proposal lays out a host of other examples requiring a supermajority; things as basic as the Council suspending Rosenburg's Rules of Order, which governs proceedings, needing a four-fifths vote; there are other instances in the Charter that specifically include the phrase "except as otherwise provided;" discussed the sparse authorities that were presented against the proposals; stated the case authorities do not suggest that the Commission cannot make such a proposal; in fact, in some ways the arguments support the proposal. Chair Tilos stated that he appreciates all the examples provided to defend the subcommittee's proposal; it gives the Council a lot to support the recommendation. In response to Vice Chair Shabazz's inquiry regarding the proper meeting process, Chair Tilos stated since it is more cumbersome with Zoom, he prefers to chair the meetings more informally and will not require Commissioners to raise hands or to be called to speak; he will open up the discussion for Commissioners to make opening comments; then, after the presentations, will allow Commissioners to jump into discussion. Commissioner Shabazz stated that he is interested in asserting directly what the Commission is attempting to do with the proposal rather than getting into the details. Commissioner Little stated she appreciates how clear and concise the proposal is; thanked the subcommittee for finding another legislative statute for the Commission to proceed with teeth in the ordinance; stated that she fully supports the proposal. Commissioner Pauling acknowledged Commissioner Schwartz for his efforts in the legal aspects of the proposal and the City Clerk for clarifying the timeline; stated that she is thrilled with the final product and fully supports it. Commissioner Schwartz stated the proposal accomplishes what Commissioner Shabazz wanted by presenting the basics before getting into the weeds. Commissioner Shabazz clarified his commen… | OpenGovernmentCommission/2020-12-14.pdf |
OpenGovernmentCommission/2020-12-14.pdf,3 | OpenGovernmentCommission | 2020-12-14 | 3 | be voted on tonight would have the Commission refer back to the Council a matter which was not properly noticed to cure and correct the improper notice and for the City Council to reject the Commission's recommendation to cure and correct, it would require a four- fifths supermajority. Chair Tilos stated Commissioner Schwartz's synopsis sums up what the Commission has been dealing with for two years. Commissioner Shabazz stated some of the proposed language refers to the City Council, inquired whether the cure and correct applies to other bodies of the City and what would be the distinction. Commissioner Schwartz responded if the Commission finds a violation, steps necessary to cure and correct can be recommended to the originating body unless it has already been cured and/or corrected. In response to Commissioner Little's inquiry, Commissioner Shabazz stated the focus has been related to the power of the City Council; he overlooked the language which stated the "originating body;" he is concerned about whether the City Attorney's office would support the Commissions' recommendation. Chair Tilos stated the subcommittee drafted a proposal for the full Commission in order to have more substance than just a recommendation from a subcommittee of two members; he hopes to have a motion on the proposal after Commission discussion. Commissioner Shabazz concurred with Chair Tilos; inquired whether the written analysis will support the recommendation of the Commission or will there be something different when the proposal goes to the City Council. The Chief Assistant City Attorney responded, at a minimum, the Commission's recommendation will be taken to the Council; the City Attorney's office will do a deep analysis of what the subcommittee and full Commission proposed; if the Attorney's office finds a legal way to support it, it will make the recommendation to the Council. Commissioner Schwartz moved approval of the subcommittee recommendation. Commissioner Shabazz seconded the motion which carried by the following roll c… | OpenGovernmentCommission/2020-12-14.pdf |
OpenGovernmentCommission/2020-12-14.pdf,4 | OpenGovernmentCommission | 2020-12-14 | 4 | Stated that he is disappointed in the level of transparency throughout City Government; the OGC is supposed to be about improving transparency; he would like to know if there is a way the public could communicate in writing and have it considered by the Commission; he would like clarification on publication of reports, specifically on the police reform committee report: Jay Garfinkle, Alameda. Chair Tilos stated the method to provide communications to the Commission is via email. The City Clerk concurred with Chair Tilos, stated an email can be sent to the Commission as a non-agenda oral communication item; the problem is the Commission cannot engage in discussion of a non-agenda item; it would be up to a Commissioner to agendize the item. Chair Tilos concurred; explained to Mr. Garfinkle that after receiving communications on a non-agenda item, a Commissioner could propose to place that item on the agenda to be discussed. The City Clerk further clarified that the item would be agendized to a future meeting. Commissioner Shabazz provided an example of how the process works; stated that he took Mr. Garfinkle's suggestion about having a flow-chart for the PRA process and tried to create one; the item would not necessarily be one that needs to be agendized if there is another method of addressing the issue; another example was that he, as a community member, would go before various boards or commissions and make specific recommendations for issues to be agendized; if that process is appropriate for the OGC, perhaps it is something that can be adopted. Chair Tilos stated the OGC used to only have two scheduled meetings, and would only meet if there was a complaint filed; if there are no meetings on the schedule, this is not the place to be discussing other issues that are not complaints; some of the matters regarding transparency or reporting should go to Council; the main objective of the OGC is to determine if something is broken in the Sunshine Ordinance. The City Clerk stated the next scheduled meeting is in Febr… | OpenGovernmentCommission/2020-12-14.pdf |
OpenGovernmentCommission/2020-12-14.pdf,5 | OpenGovernmentCommission | 2020-12-14 | 5 | truly appreciates the intelligence and curiousness of the Commissioners and how the topics were handled. Chair Tilos thanked Commissioner Pauling for stepping in during an eventful time and for all her help serving on the subcommittee. Commissioner Little thanked the Commission and stated she is excited to see who will be replacing her and Commissioner Pauling; offered her assistance if ever needed, which would no longer be a violation since she is no longer on the Commission; she will be sworn in on the School Board tomorrow night; invited anyone who would like to attend. Chair Tilos wished Commissioners Little and Pauling well in their next endeavors and thanked them for their time on the Commission. Commissioner Shabazz stated that he would like to have the PRA Annual Report on the February meeting; he would also like to add crafting some language that could potentially be in the City Charter or somewhere else to make sure the PRA Annual report is continually done, especially after the comments from tonight regarding transparency and the goals of the Sunshine Ordinance. The Chief Assistant City Attorney stated both the PRA Annual Report and the Annual Report on Complaints are already on the February agenda. In response to Commissioner Shabazz's inquiry, the Chief Assistant City Attorney stated he is retiring but will still be around in January and February. Adjournment Chair Tilos adjourned the meeting at 8:18 p.m. Respectfully submitted, Lara Weisiger City Clerk The agenda for this meeting was posted in accordance with the Sunshine Ordinance. Meeting of the Open Government Commission December 14, 2020 5 | OpenGovernmentCommission/2020-12-14.pdf |
OpenGovernmentCommission/2021-04-05.pdf,1 | OpenGovernmentCommission | 2021-04-05 | 1 | MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING MONDAY APRIL 5, 2021 7:00 P.M. Chair Tilos convened the meeting at 7:00 p.m. ROLL CALL - Present: Commissioners Chen, LoPilato, Reid, Shabazz, and Chair Tilos - 5. [Note: The meeting was conducted via Zoom.] Absent: None. [Staff present: Chief Assistant City Attorney Elizabeth Mackenzie; City Clerk Lara Weisiger; Special Counsel Kristen Rogers, Olson Remcho; Police Captain Jeff Emmitt, Assistant City Attorney Alan Cohen] Oral Communications None. Regular Agenda Items 3-A. Minutes of the March 1, 2021 Meeting Commissioner Chen stated Amy Gong Liu's name was misspelled; the City Clerk noted it will be corrected. Commissioner Reid stated at the end, she made comments regarding submitting a null and void remedy. Commissioner LoPilato stated she had small edits which she emailed to the Clerk's office and shared them with the Commission. Vice Chair Shabazz stated his changes clarifying why he stated he was recusing himself from the Jackson Park Committee because he was invited to be a part of the Committee. Vice Chair Shabazz moved approval of the minutes with the clarifications. Commissioner Chen seconded the motion which carried by the following roll call vote: Commissioners Chen: Aye; LoPilato: Aye; Reid: Aye; Shabazz: Aye; Chair Tilos: Aye. Ayes: 5. 3-B. Hearing on Sunshine Ordinance Complaint Filed by Scott Morris on May 12, 2020 Vice Chair Shabazz stated it was suggested by the City Attorney's office that he recuse himself; he publicly commented on Mr. Morris's initial request via Twitter; he wants to Meeting of the Open Government Commission April 5, 2021 1 | OpenGovernmentCommission/2021-04-05.pdf |
OpenGovernmentCommission/2021-04-05.pdf,2 | OpenGovernmentCommission | 2021-04-05 | 2 | publicly state that he will not be recusing himself, but will make impartial decisions based upon the facts that are presented tonight and also the information that he has reviewed. The Chief Assistant City Attorney stated the City Attorney's office legal opinion is that Vice Chair Shabazz should recuse himself; she wants to give more context to some specifics on the basis for the recommendation; Vice Chair Shabazz did recommend Mr. Morris file a complaint with the OGC publicly via Twitter; it is the City Attorney's opinion that the comment suggested to Mr. Morris that Vice Chair Shabazz would be a receptive audience to Mr. Morris's complaint and that it went beyond just giving information to the public about the complaint process; she is informing the entire Commission of the basis for the advice because of the fact that, should the Commission take action regarding Mr. Morris's complaint and should that action be reviewed by a court, courts do find and do examine the propriety of recusals and whether a recusal was made or not; the City Attorney's office believes that the decision handed down by the Commission could be imperiled or weakened on a judicial review because of the fact that Vice Chair Shabazz has a basis for recusal; she indicated to Vice Chair Shabazz that it is his decision whether to recuse himself and he indicated that he would not recuse himself. In response to Chair Tilos's inquiry regarding how to proceed with Vice Chair Shabazz' recusal issue, the City Clerk stated that there is not anything specific in the bylaws directing it, which she will check quickly. Vice Chair Shabazz stated that he understood the bylaws that someone should state what the concern is and then they can continue; in preparation of Ramadan, he will be stepping away from the meeting briefly to break his fast but will be joining the discussion. The City Clerk stated she just briefly looked though the bylaws and did not see specific direction on recusals. Commissioner LoPilato inquired whether there could be some clarity on t… | OpenGovernmentCommission/2021-04-05.pdf |
OpenGovernmentCommission/2021-04-05.pdf,3 | OpenGovernmentCommission | 2021-04-05 | 3 | the agendas; inquired that the Chief Assistant City Attorney or City Clerk give some specificity with respect to what the Commission has reviewed. The Chief Assistant City Attorney responded basically both sides in each complaint have the option to present written arguments, which can take any form; the written argument submitted on behalf of the City appears more legal in nature because the City has retained outside counsel; another document would perhaps be titled proposed decision or suggested decision; the form of the document looks like a final Commission decision; the document is prepared by outside counsel; it is the conclusion that the outside counsel is urging, but it is not a requirement that the Commission needs to agree with it. The City Clerk stated the City has always prepared a draft decision and presented it to the Commission for every single case; the draft decision gives the Commission a starting point; there have been times where the Commission has taken the opposite position than what was in the draft decision; going forward, it could be made clear that the decision is just a recommendation from the City and not final. Commissioner LoPilato inquired whether the staff report is actually by special counsel and not the staff recommendation or Chief Assistant City Attorney's framing of the issue; and whether it is an advocacy piece it is a position statement by the attorney's representing the City in the adversarial adjudication. The Chief Assistant City Attorney responded in the affirmative; stated the staff report is an adversarial piece and the waters are a bit muddied because it is also the City's position; in this particular instance, the staff report is the position of the City and the particular department within the City. The City Clerk stated the City has always presented the staff report from its viewpoint. Commissioner Reid inquired why staff and special counsel prepare a decision before the Commission hears a case; stated that she understands is has been common practice, but wonders if… | OpenGovernmentCommission/2021-04-05.pdf |
OpenGovernmentCommission/2021-04-05.pdf,19 | OpenGovernmentCommission | 2021-04-05 | 19 | Chair Tilos responded questions and comments only at this time, inquired whether Commissioner Reid had questions for Mr. Garfinkle or Ms. Rogers. Commissioner Reid responded she would hold her questions for now. Commissioner LoPilato stated her understanding of the procedure; inquired whether Mr. Garfinkle verified that Mr. Hofer is a registered lobbyist or if he was just using the term in reference that he was part of a non-profit organization. Mr. Garfinkle responded that he drafted the resolution and presented it to several cities; whether or not he is a registered lobbyist is not the issue; he is acting as a lobbyist and is not a random member of the Alameda community. Commissioner LoPilato inquired whether Mr. Garfinkle was speaking on behalf a group of citizens when using the word "our" in presentation materials, to which Mr. Garfinkle responded it is editorial. Commissioner LoPilato inquired whether the legislative agenda is typically done as a consent calendar item, to which the City Clerk responded in the affirmative; stated it is on the consent calendar every year. Commissioner Reid inquired a definition of what items are allowed to be on the Consent Calendar. The City Clerk responded items that are considered routine. Commissioner Reid inquired whether it could be said that non-controversial items can be on the Consent Calendar. The City Clerk responded she would not make that statement because some people might find spending money on a vehicle controversial and some people might not. Commissioner Reid stated she found the definition in Robert's Rules and just wondered if it aligned with Alameda's policy for its Consent Calendar. The City Clerk stated if there was an item that would bring out the public, it would be definitely placed on the Regular Agenda. Ms. Rogers further clarified that Council or a member of the public could pull an item off the February 16, 2021 Consent Calendar for discussion and had opportunity to do so during the Council meeting. Mr. Garfinkle stated he has issues with the use … | OpenGovernmentCommission/2021-04-05.pdf |
OpenGovernmentCommission/2021-04-05.pdf,20 | OpenGovernmentCommission | 2021-04-05 | 20 | Commissioner Reid inquired how a member of the public would know what SB 271 is on the legislative agenda. Ms. Rogers responded if a member of the public is interested in a topic on the legislative agenda, there is information on literally every bill on the State website; it is the subject of a lot of public discourse and all subject to the same rules and principles and requirements for the meeting to be public; SB 271 is not an obscure piece of legislation; the issue tonight is whether the materials in the agenda provided the notice required for an interested person to show up. Commissioner Reid inquired whether or not the person who made the comments previously reached out to the City. Ms. Rogers responded that she did not know, but that Mr. Garfinkle's complaint is not alleging that it was a serial meeting or that there some improper conduct behind the scenes with respect to the particular issue; the person submitted a public comment and purported to represent an organization comprising 41 different individual member organizations and other Alamedans. In response to Commissioner Reid's inquiry, the City Clerk stated anybody can reach out to the Council at any time; it does not matter whether it is before or after an item is placed on the agenda; a person can comment on the item on the agenda even if they had already reached out to the Council before. In response to Commissioner Reid's inquiry, Ms. Rogers stated that she did not mean to suggest any knowledge of whether when, and what time someone communicated on the particular issue; any member of the public could send an email or submit a comment and still show up to the Council meeting. In response to Commissioner Reid's inquiry, the City Clerk stated there is nothing that prohibits a member of the public from addressing the Council at any time. Commissioner Reid stated she did not see the word Sheriff mentioned in the legislative agenda, although Ms. Rogers stated as such. Ms. Rogers stated the point she was trying to make is that criminal justice reform is … | OpenGovernmentCommission/2021-04-05.pdf |
OpenGovernmentCommission/2021-04-05.pdf,21 | OpenGovernmentCommission | 2021-04-05 | 21 | Commissioner Chen stated open government has to allow comment about the issue; she does not think people had a chance to be part of the discussion. The City Clerk stated there is a speaker waiting and there needs to be a vote before 11:00 p.m. to continue the meeting. Vice Chair Shabazz concurred with the City Clerk; suggested moving to public comment. Public Comment: Stated there was a great example of how this was done properly last summer at the July 21st City Council meeting regarding eight measures of police reform; to suggest support of specific items was jumping the gun; it is up to the City Manager's Office to determine which SBs apply: Matt Reid, Alameda. Vice Chair Shabazz stated in 2018, he attempted to go to the County Registrar of Voters to run for Sheriff, but he was turned away because he does not have any law enforcement background; he would refer to Mr. Hofer and Secure Justice as advocates as opposed to lobbyists; part of the reason he wanted to run for Sheriff was that the current Sheriff at the time had exhibited ties to White supremacist groups, was involved with things related to Immigration and Customs Enforcement (ICE) and certain detainees and also the squalid conditions of the County jails; there was a campaign to audit the Sheriff's Office; whether or not these issues align with principals around reforms, he would say very much so and there will be a race in 2022; he does think that the legislative agenda outlines the various principals; the issue of it being on the Consent Calendar and then being pulled from the Consent Calendar, there was opportunity for people to speak; he is on the fence about it; part of him wants to find the complaint unfounded because it was clear from the legislative agenda that these items and general principles would be discussed; he is concerned that there is not generally a practice for specific legislation to seemingly come before the public; the questions are what are the specific positions Alameda takes on State and federal legislation; what is done if th… | OpenGovernmentCommission/2021-04-05.pdf |
OpenGovernmentCommission/2021-04-05.pdf,22 | OpenGovernmentCommission | 2021-04-05 | 22 | and figure out exactly what bills might fall within various headings of the City's abstract goals; it is important to realize that there is no way the City Council agenda could possibly include references to each bill that the City might support or oppose under the umbrella; Senator Skinner, who represents Alameda, is a co-author with Senator Weiner of San Francisco; it is clear that the legislative agenda is considering a new plank to the public safety and homeland security platform, which includes support policing and racial equity outcomes consistent with actions taken by City Council throughout the year; it is called out and puts people on even further notice; it addresses the issue of broadening the support of reform measures; SB 271 was actually mentioned before it was open to public comment and there was quite a bit of notice; lots of metaphors are used; she believes the road map one is a good way to frame the way to look at the Brown Act and the Sunshine Ordinance; she will say that maybe a legislative agenda should not be on the Consent Calendar and there are all kinds of things that can be suggested when talking about the spirit of open government, but does not think making those suggestions through the vehicle of addressing specific complaints is the best approach; she hopes that when the Commission looks at the ordinance and recommendations, the Commission can weave in some language and contemplate what can be done to advance the issues outside of deciding specific complaints; with respect to this specific complaint, she would find it unfounded. Commissioner Reid concurred with Commissioner Chen; stated that she also views the legislative agenda as generic; nothing really specific is included; watching the February 16th meeting, it was odd that something specific was added on the fly; it did not matter what the bill was; the public did not have time to understand what was discussed; that is where she is landing; it is the Commission's responsibility to ensure that the public is aware and the governmen… | OpenGovernmentCommission/2021-04-05.pdf |
OpenGovernmentCommission/2021-04-05.pdf,23 | OpenGovernmentCommission | 2021-04-05 | 23 | Commissioner Reid stated the Mayor specifically recognized that the speaker had reached out to City Council prior to the meeting, so the speaker was planned, which is fine, but argues that the public did not truly have an opportunity to weigh in; the Brown Act asks ample time be ensured for people to weigh in; five minutes is not an ample amount of time and no other member of the public came forward; there was no way anyone knew besides the Council and the speaker who knew SB 271 was going to be mentioned or that the legislative agenda was going to be pulled and new information was going to be introduced; it should have been agendized and discussed properly. Commissioner LoPilato stated that she wants to underscore there is nothing nefarious about a community member, lobbyist or advocate reaching out to the Council; typically, how that process might work is a person would reach out after seeing the draft ordinance or resolution; the fact the speaker reached out to Council is not uncommon or nefarious, it is engagement; with this issue, it was a distinction without a difference because ultimately, once that legislative agenda was passed, whether SB 271 was listed on it or not, it fell under public safety and criminal justice reform, which was passed and nobody would have had a chance to weigh in on it anyway because that gives the guidance to the City Manager to decide what happens to bills; based on the way the process for this particular issue unfolds, there is no opportunity to weigh in on each bill, it is just not how the process works; if the Commission wants to make another recommendation some day in some other context that it should work differently, then that is something to explore. Vice Chair Shabazz thanked Mr. Garfinkle for bringing the issue to the Commission; stated there are concerns and interests in a couple different areas. Vice Chair Shabazz moved approval of finding the complaint unfounded consistent with the recommendation of the City's Special Counsel. Commissioner Reid stated in no way is she… | OpenGovernmentCommission/2021-04-05.pdf |
OpenGovernmentCommission/2021-04-05.pdf,24 | OpenGovernmentCommission | 2021-04-05 | 24 | the issue is the legislative agenda appears to be a general roadmap; the question is how would someone know; it is not common practice to add a specific bill to the legislative agenda; that has not been done before in Alameda and to her understanding it is not common practice in neighboring cities; it falls out of the scope of the regular process. In response to Commissioner Reid's inquiry, Chair Tilos stated there is already a motion on the floor. Commissioner Chen provided an example of the process to get a resolution passed; stated anyone can present something to the Council, whether it is controversial or not; if the Council decides to put it on the agenda, when the agenda is published, the public has a chance to see it and has the opportunity to pull it for discussion; when that happens, typically, people will come out who might be against it; if the Council still wants to support it, they can vote on it; everybody gets a fair chance; she does not think the public had a fair chance in this instance; if the Council wanted to put bills on the Consent Calendar, name them and give the public a chance to see that and pay attention; if someone was watching the meeting they would not be able to do research fast enough to figure what was going on; it is important to give the public a fair chance. Commissioner LoPilato stated that she agrees with Commissioner Reid regarding transparency and with Commissioner Chen regarding everyone getting a fair chance; there probably are improvements that could happen to the process; she thinks the Commission could find a vehicle to potentially provide recommendations; in the context of the current complaint, there was no violation of the Sunshine Ordinance. Commissioner LoPilato seconded the motion. On the call for the question, the motion carried by the following roll call vote: Commissioners Chen: No; LoPilato: Aye; Reid: No; Shabazz: Aye; Chair Tilos: Aye. Ayes: 3. Noes: 2. 3-D. Discuss and Provide Recommendations Concerning Potential Amendments to Article VIII (Sunshine Ordina… | OpenGovernmentCommission/2021-04-05.pdf |
OpenGovernmentCommission/2021-04-05.pdf,25 | OpenGovernmentCommission | 2021-04-05 | 25 | Commissioner Chen suggested a process for complaints; stated that she hopes there is a list collected of all the Commission's lengthy conversations about all the ways the Sunshine Ordinance is practiced. Commissioner LoPilato suggests two avenues: 1) Section 2-22.4 indicates one of the Commission's duties is to report in writing to the Council at least once annually on any particular policy problems encountered in the administration of the Sunshine Ordinance; she agrees with Commissioner Chen that the Commission is spending about 90% of time on it; the Commission should probably establish a cadence on this in the context of a subcommittee; it should be assumed that complaints will continue to be received and should be explored; 2) Section 2-92.4 states that the Commission shall review public notices to ensure they conform to the requirements of the article and work to improve publicly accessible information databases; suggested welcoming staff's thoughts on what the Commission could best be doing to comply with both those aspects; stated there might be a way to get some suggestions about how the Commission could handle these issues offline in an efficient way; having some cadence may have quicker meetings which would give appropriate time for public comment; noted the great work Vice Chair Shabazz did in his PRA workshop. Commissioner Reid inquired whether it would be possible to hold a special meeting to discuss the null and void remedy, to which Chair Tilos responded he would not like to do so. Vice Chair Shabazz thanked people for attending his PRA workshop; stated he likes the suggestion about a subcommittee with clear goals; suggested exploring having the City Council timer feature and guidelines on what type of questions can be asked in advance of meetings. Commissioner Reid inquired whether it would be possible to establish a subcommittee to discuss some questions that may be relevant to the Sunshine Ordinance. The City Clerk responded it cannot happen tonight since it is not on the agenda; stated the Comm… | OpenGovernmentCommission/2021-04-05.pdf |
OpenGovernmentCommission/2021-04-05.pdf,4 | OpenGovernmentCommission | 2021-04-05 | 4 | to already have the Commission's opinion written seems like a stacked deck; she is concerned about the way the documents come before the Commission; it was not until she saw Mr. Morris's statement that she actually understood what was going on. The City Clerk stated staff hears the Commission and can come back with a different format next time with a more neutral staff report with the two opposing sides attached. The Chief Assistant City Attorney stated she concurs with the City Clerk about the discussion to clarify the staff report format issue; emphasized that the proposed decision submitted by special counsel in both cases is the way that they are advocating; the other side is open to prepare their own desired decision as well; when attorneys file motions in court, typically, both sides prepare a proposed order or decision; it is a way for the attorney to urge the judge; she apologizes that it seems like stacking the deck, but the proposed decision is truly an advocacy piece; she appreciates the comments and the City Attorney's office will work with the City Clerk to clarify the process as appropriate. Complainant Scott Morris gave a brief presentation. Special Counsel Kristen Rogers gave a brief presentation, including outlining objections to Vice Chair Shabazz participating in the discussion. Vice Chair Shabazz inquired whether responses to PRAs are 10 calendar days or 10 business days, to which the City Clerk responded it is 10 calendar days. Commissioner LoPilato inquired whether Mr. Morris received the full time frame of the documents he sought from the other County agencies or if the agencies just gave him more than Alameda. Mr. Morris responded each of the other 12 county agencies gave him the full time frame of the documents he requested, except for the Alameda County Sheriff's office and the Oakland Police Department, neither of which appropriately responded to his request at all which is the subject of litigation right now with the City of Oakland. Commissioner LoPilato inquired whether the notion of… | OpenGovernmentCommission/2021-04-05.pdf |
OpenGovernmentCommission/2021-04-05.pdf,5 | OpenGovernmentCommission | 2021-04-05 | 5 | was taking initially; now it is a 30-day look back period; requested special counsel to walk through the steps of whether the policy was changed and whether there is continuing evaluation of ongoing changes. Ms. Rogers responded that she may have to rely on Captain Emmitt for some details; stated that she understands the 30-day policy went into effect when the Police Department actually undertook to improve its Information Technology (IT); it was a matter of practical possibility of the time to be able to expand the records; the records can be viewed on the Department's website in real time up to 30 days back; it is now the practice and technological capability of the Department to have that 30 days. Commissioner LoPilato stated that she is also curious if someone comes in with a request for 30 days, will they automatically get the information; inquired whether the current practice changed due to Mr. Morris's complaint. The Police Captain responded that he does not now know where the 14-day policy came prior to May 12, 2020 because everyone involved in the executive decision making process at that time has retired; he was promoted to Captain in July 2020; since that time, the City has taken the position that the Police Department would provide 30 days; most of the decision came from knowing that the Department's Computer Aided Dispatch (CAD) and records management system was being upgraded and would be able to handle requests in an almost real time basis; the new system went live on February 24, 2021 and live with the Citizen Rims function on April 1st; information goes back to March 26, 2021; as the system moves forward, the database will continue to build information; there is a specific tab on the Citizen Rims page that is dedicated to arrests and is a rolling 30 day calendar; after 30 days, the names that are 31 days or older will drop off the system; he hopes that the system points citizens in a direction where they will have more information available. Commissioner LoPilato stated Ms. Rogers mentioned that … | OpenGovernmentCommission/2021-04-05.pdf |
OpenGovernmentCommission/2021-04-05.pdf,6 | OpenGovernmentCommission | 2021-04-05 | 6 | elucidate exactly what the judicial landscape looks like; the staff report explains that the Kusar decision in 1993 rested on a statutory interpretation argument supplemented with a purpose of the interplay of the PRA provision as it relates to other protections for exactly the same information that are found in the Penal Code and other somewhat codependent; in some cases, there will be a very clearly articulated privacy interest; in the Kusar case, the rules of civil discovery were also barring some of the accessibility of the requested records. In response to Ms. Roger's inquiry, Commissioner LoPilato stated the explanation provides a good balance with regard to the legal landscape, but she is still interested in the jurisdictional comparisons with respect to the length of the policy and look back. Ms. Rogers stated San Leandro, Pleasanton, Berkeley, Milpitas and San Diego all have 30 day look back policies; the League of California Cities provides top notch legal guidance to municipalities throughout the State. Commissioner Reid inquired what data was finally provided to Mr. Morris and if he received the full scope that he requested. Mr. Morris responded in the affirmative; stated he received the data more or less after a lot of back and forth, he did receive what he requested. Commissioner Reid inquired whether the data is identical to what is currently viewable on Police logs. Mr. Morris responded he is not sure what is currently viewable and is not exactly sure what he ended up getting off the top of his head; the statute defines a lot of things like eye color and things like that he was not even interested in; he was really looking for who was arrested, on what charges and the disposition; he does not recall the specific details of everything included in the statute. Commissioner Reid inquired whether Mr. Morris received a response on April 27th from his initial request on April 15th, to which Mr. Morris responded in the affirmative; stated the dates sound accurate, though he does not have the specific dat… | OpenGovernmentCommission/2021-04-05.pdf |
OpenGovernmentCommission/2021-04-05.pdf,7 | OpenGovernmentCommission | 2021-04-05 | 7 | Mr. Morris responded that he was given the data 30 days at a time; stated the Assistant City Attorney initially only gave him 30 days data; Mr. Morris then cited contradicting case law and was given an additional 30 days data; he was looking for 90 days total data; he specifically wanted to know whether the Police Department changed its booking practices in response to COVID 19 because there had been some guidance from the Sheriff's Office not to book people into jail under particular circumstances; until he complained on Twitter and filed a complaint, he was not able to get the full scope of what he was asking; he does not feel Vice Chair Shabazz was giving him a wink as a receptive audience, it was a way for him to actually get some accountability and the option existed. In response to Commissioner Reid's inquiry regarding how his complaint was classified, Mr. Morris stated the Assistant City Attorney asked him specifically to delay his complaint, not to withdraw it, but delay it for 30 to 60 days for the reason that he was serving other agencies in the area and that he was going to come up with a policy that was more in line with the law; Mr. Morris told the Assistant City Attorney that he consulted with attorneys who said there is not any reading of the statute that does not say the full universe of arrests as retained by the Police Department are available; he stated the City's policy has to be to provide arrests within the period of retention and if they have those records, they have to release them; the Assistant City Attorney knew his position and stated he would work on something that would strike a balance after talking to other Police Departments; that conversation was the last Mr. Morris ever heard from the Assistant City Attorney on the issue; there was no follow up; only after Vice Chair Shabazz approached him regarding the status of his complaint, it was placed on the agenda tonight. Commissioner Reid inquired what the process is from the City's standpoint when a complaint is put on hold. The Assis… | OpenGovernmentCommission/2021-04-05.pdf |
OpenGovernmentCommission/2021-04-05.pdf,8 | OpenGovernmentCommission | 2021-04-05 | 8 | PUBLIC COMMENT: Stated the complaint was handled very poorly by the City; to classify the complaint as voluntarily withdrawn is erroneous and indefensible; it is a violation of how public records requests should operate; to preach about the City's 30 day policy and then release records from day 31 to 90 does not hold water; it sounds like the City does not have a policy: Matt Reid, Alameda. Stated that she found it curious that the balancing test and redacting minors applies when it pertains to APD and their records, but not in regards to our neighbors interested in working on police reform; she is confused why Vice Chair Shabazz is being taken to task tor merely communicating with a reporter, when a Councilmember and former Mayor who released the names of neighbors on a Next Door post: Jenice Anderson, Alameda. Chair Tilos stated the whole reason for the Commission is to be more public and more transparent about records; some things did not go smoothly; he urges the Commission to include that in the discussion; he hopes to tackle some of the points brought up in the conversation that do not seem right. Vice Chair Shabazz stated there is something to say about the process the complainant shared; the 12 day response period violates the California Public Records Act. Chair Tilos stated there is a contradiction between calendar and business days if a response could carry forward if day 10 falls on a Saturday or Sunday. The City Clerk clarified that City Hall is only open 4 days a week, Monday through Thursday; typically, the City tries to respond by Thursday if it falls over the weekend; April 27th was a Monday, which added extra days. Vice Chair Shabazz stated that he asked the question because his understanding is it is calendar days; the law does not state it is business days; regardless of the operations of the City and what typically happens, it did not happen in this case; unless there is some correspondence requesting a 14 day extension, the City did not respond timely and was in violation of the Sunshine Ord… | OpenGovernmentCommission/2021-04-05.pdf |
OpenGovernmentCommission/2021-04-05.pdf,9 | OpenGovernmentCommission | 2021-04-05 | 9 | Commissioner LoPilato stated that she is troubled by the same patterns; requested the Chief Assistant City Attorney to clarify what the timeliness requirement is with respect to calendar or business days under the law. The Chief Assistant City Attorney stated her understanding is that the Public Records Act does not specify a calendar versus business days and that general principles of law indicate that absent a denomination of either of those terms, the default is calendar days; in this case, the request was made on Wednesday, April 15th and the 10 day period would have been on a Saturday, the 25th, so the 27th was the first business day. Commissioner LoPilato stated there is a heightened privacy interest in the differences and types of information someone can request from a Police Department; she does see privacy interest in arrest records relative to calls for service which sounds to be a reasonable premise on which the case law may have developed to have a slight delineation between whether it makes sense to have a temporal limitation on arrest records because there is countervailing privacy interests; from a common sense and societal concern standpoint, it is important to balance transparency and privacy interests. Commissioner LoPilato moved approval of redacting personal information in the May 12, 2020 attachment, which contains the arrest record log; stated that she was troubled to see the information with respect to names and addresses on the website for the purposes of tonight's hearing; it is important to have a mechanism from the transparency standpoint to redact the information. Chair Tilos seconded the motion. In response to Commissioner LoPilato's inquiry, the Chief Assistant City Attorney stated it is an appropriate motion and is fine from a legal standpoint. The City Clerk concurred; stated the redaction can be done. Under discussion, Vice Chair Shabazz stated that he appreciates and supports the motion; his intention for forwarding the materials he received was to share some of the dialogue that… | OpenGovernmentCommission/2021-04-05.pdf |
OpenGovernmentCommission/2021-04-05.pdf,10 | OpenGovernmentCommission | 2021-04-05 | 10 | Vice Chair Shabazz stated that he was surprised no one did the math of 27 minus 15 despite all the legalese; he agrees with Commissioner LoPilato that privacy and balancing is a really important principle and should be in the conversation about policy; it was promised by a staff member to do or work with a member of the community and it was never followed-up; there were some unfulfilled promises going back to the relationship piece; reiterated his experience when requesting information regarding an arrest made at the Target in 2017; his request was stonewalled by the City; he was eventually able to get the correct information from the District Attorney's office; the social media account was used to put out a certain narrative; being able to access information allowed him to nuance the story in a certain way; he appreciates the concerns about privacy rights; there is something to be said about the public interest and journalists being able to access information to tell stories; questioned where Alameda's benchmark is in relation to other agencies; stated there seems to be some challenges regarding the PRA in the City Attorney's Office; one of the potential resolutions is having the Annual Report now; one of the duties of the Commission could perhaps be evaluating the performance of the City Attorney's Office; if there is a sustained complaint and the Commission wants to impose a penalty, perhaps someone could attend a PRA training. In response to Chair Tilos's inquiry, the City Clerk stated the Commission has to have the written decision done within 30 days as required in the Code; the clearer direction the Commission could provide for the written decision to be circulated for all members to sign, the better; the next meeting is not until May which would be past the 30 days. Commissioner Reid inquired whether or not records should be made available to the public if the policy of the City is to retain the records; further inquired if Chair Tilos was leaning more towards sustaining the complaint. Chair Tilos respond… | OpenGovernmentCommission/2021-04-05.pdf |
OpenGovernmentCommission/2021-04-05.pdf,11 | OpenGovernmentCommission | 2021-04-05 | 11 | Vice Chair Shabazz stated that he agrees there was a violation of the Sunshine Ordinance due to the lack of timely response and he is prepared to make a motion to that effect; for his own complaint in 2019, there was a subsequent meeting and process of how the actual decision was written and was hoping that could be a potential option; he is concerned about the behavior of City staff in this situation; people should not have to file a complaint just to receive a response when they make a request under the California PRA. Commissioner LoPilato stated that she is curious about the resolution options; she would like to know how to bifurcate the motion. Chair Tilos stated that he would approve sustaining on the basis of timeliness; discussing the process could come at another meeting. The Chief Assistant City Attorney stated her role is not as an advocate for either side; it is to provide guidance on the law; there is a provision in the Code of Civil Procedure that is accepted for all courts in California that when the last day to perform or complete an act falls on a Saturday, Sunday or holiday, the timeliness limit is extended to the next court day closest to the trial date; there are no references within the PRA so the default is calendar days. Commissioner LoPilato stated that she appreciates the clarification since it is such a tight technicality, which also was not offered up by the complainant; in civil litigation, there is a similar issue that occurs where parties are asked to engage in discovery and document production; it is a little similar in that there is a 30-day timeline; inquired whether there is an analogous production deadline. The Chief Assistant City Attorney responded it is her understanding that if the due date to provide discovery falls on New Year's Day, you would get the benefit of the holiday; stated most attorneys would ensure that documents are postmarked or emailed timely. Vice Chair Shabazz stated that he is hearing it is the spirit of the law versus the letter of the law; he finds it in… | OpenGovernmentCommission/2021-04-05.pdf |
OpenGovernmentCommission/2021-04-05.pdf,12 | OpenGovernmentCommission | 2021-04-05 | 12 | Chair Tilos stated the 10 days refers just to the response, not to the providing of the documents, so it is a false motion. Commissioner Reid restated her motion to sustain the complaint based on the lack of receiving a response within the required 10 day allotment through the California PRA. The Chief Assistant City Attorney noted there is actually a provision in the California Discovery Act that If the last day to perform or complete any act of discovery falls on a Saturday, Sunday or holiday, the time limit is extended until the next court date closer to the trial date. Vice Chair Shabazz seconded the motion. Commissioner Chen stated somehow the Commission wants to punish the wrongdoing by acting on this motion, which really does not get to the heart of the problem; she thinks the Commission has to go another route to get to the heart of the problem and needs to separate whether or not the Sunshine Ordinance was violated as per the complaint; the Commission is bending over backwards to count 10 days and try to use a mechanism that will not allow doing something, which should be done at a later date. Chair Tilos concurred with Commissioner Chen; stated the Commission knows something is wrong but are basing the motion on a technicality where he thinks the Commission needs to dig deeper to find out what is really wrong and form that into a motion. In response to Chair Tilos's inquiry, the City Clerk stated the last time, the Commission actually continued the hearing; the matter was continued and there was not a quorum, so it ended up on a subsequent agenda; the Commission could continue the item to a specific date and formulate the decision on that day in order to get to the other agenda items. Chair Tilos inquired whether the item could be continued to the next meeting or to next Monday, to which the City Clerk responded the timeline is 30 days to formulate the decision. Commissioner Reid withdrawing her previous motion; moved approval of just sustaining the complaint. Vice Chair Shabazz stated there is a motion… | OpenGovernmentCommission/2021-04-05.pdf |
OpenGovernmentCommission/2021-04-05.pdf,13 | OpenGovernmentCommission | 2021-04-05 | 13 | transparency, she is finding herself aligned with Commissioner Chen's comments and still also troubled by what was heard today. Vice Chair Shabazz stated that he is concerned with making sure the Sunshine Ordinance is being applied; neither the complainant or the legal counsel specifically address this; questioned if this issue is not what is sustained or addressed, then what is the process; when there is a pattern, or at least more than one instance of this happening, what is the mechanism to change the behavior; stated at the core of it, he still feels there was a violation even if it was not explicitly stated by the complainant or the presentation. In response to Commissioner Reid's inquiry, Chair Tilos stated her latest motion to sustain was made but not seconded and is being discussed. Commissioner Reid stated that she would amend her motion; the dates fall under 14 days and technically is a violation; pointed out the importance that the requestor did not receive the totality of the information that he requested and the fact that he had to go back and forth, which took an extended period of time; the Commission collaboratively agrees that it was not the procedure that falls within the spirit of the Brown Act and the transparency the Commission is seeking. Commissioner Reid moved approval of sustaining the complaint based on the lack of timeliness. Chair Tilos stated that he likes where Commissioner Reid is going, but wants to phrase it more succinctly; stated the complaint is being sustained due to lack of totality of his requests in an efficient manner. Commissioner Reid amended her motion to include that it did not follow the spirit of the Brown Act and the requestor did not receive the totality of his requests in an efficient manner. Vice Chair Shabazz stated the references to the Brown Act and the PRA does not prescribe a specific time in which records have to be produced, the 10 days is related to a response. Chair Tilos stated that is why he used the word efficient; it was not efficient for Mr. Morris … | OpenGovernmentCommission/2021-04-05.pdf |
OpenGovernmentCommission/2021-04-05.pdf,14 | OpenGovernmentCommission | 2021-04-05 | 14 | is tasked with telling the City Council where problems emerge in the Sunshine Ordinance. Chair Tilos stated Commissioner Chen's comments as something that could be agendized or put under Commissioner Communication for another meeting. The Chief Assistant City Attorney clarified some points, including that the Sunshine Ordinance does require a response from the City within 10 days as to whether or not there are responsive documents; if more time is needed to make that determination, a notice can be sent out to the requesting party that an additional 14 days is needed; there is no set deadline in producing the documents; there is a lot of case law about what a city needs to follow and the efforts it needs to make, but there is no specific time frame or parameters that spell out exactly what the City has to do that is objective; regarding the terms totality and efficiency she is not aware of those terms being used in the Sunshine Ordinance; she does not know whether either of the terms is used in case law that interprets either the Brown Act or PRA; the terms are general and may be used in some case law, but, to her knowledge, it is not used in some standard in the Sunshine Ordinance before the Commission tonight. Commissioner Reid stated the issue is not that the documents did not exist; the issue is that the City was reluctant to give documents to the requestor; Mr. Morris did not receive what he requested until he had to finally push for the information by filing a complaint; when the City responded, all the data was given to Mr. Morris in one day, which was 87 days of data; this is why she strongly feels the complaint is sustained; when a requestor receives resistance or has an obstacle, it is the duty of the Commission to ensure there is transparency and members of the public should be able to confidently request and get information from the City with full transparency; her motion is to sustain the complaint. Vice Chair Shabazz stated that he understands one of the intentions of the California PRA is the balanc… | OpenGovernmentCommission/2021-04-05.pdf |
OpenGovernmentCommission/2021-04-05.pdf,15 | OpenGovernmentCommission | 2021-04-05 | 15 | three different options: 1) sustain, 2) not sustain, and 3) find it unfounded which means it has been found to have no merit; inquired whether any Commissioners asked about the timeliness issue while both parties were still participating via Zoom. Chair Tilos responded in the affirmative; stated he believed Mr. Morris was asked and responded he felt the initial response was timely. The Chief Assistant City Attorney stated that she just wanted to make sure the parties were heard on an issue that seems to be important to some Commissioners. Vice Chair Shabazz stated that he did bring the question up during the clarification part; he noticed Mr. Morris had his hand up, perhaps to respond to the Chief Assistant City Attorney's question. Chair Tilos stated there is a motion that was not seconded; asked if there were any other motions. In response to Commissioner LoPilato's inquiry, the City Clerk stated it is the Commission's prerogative whether to allow Mr. Morris to address the Commission; if there are more questions, the Commission is not prevented from asking questions of anyone. Commissioner LoPilato moved to hear from Mr. Morris whether he had concerns about the timeliness of his request. Mr. Morris stated the 10 day issue was not really a big issue for him; the fact of the matter is that the PRA does have a requirement for this agency to produce records promptly; that is the word that is being danced around; he is surprised that the Assistant City Attorney did not mention this; when you talk about timeliness or efficiency, there is a requirement that once a determination is made that there are records available, those records need to be provided promptly; it is a legal term from statute and what really was violated here. Vice Chair Shabazz moved to sustain Mr. Morris's complaint on the basis that the City did not respond to his request promptly. Chair Tilos stated he that wants to add the phrase in totality. Vice Chair Shabazz stated that he would be against doing so; his perspective is that the Commission is t… | OpenGovernmentCommission/2021-04-05.pdf |
OpenGovernmentCommission/2021-04-05.pdf,16 | OpenGovernmentCommission | 2021-04-05 | 16 | court decision that was cited; questioned whether it is valid to abandon the original complaint because the Commission found violations of the Sunshine Ordinance. The Special Counsel stated that she concurs with the Chief Assistant City Attorney regarding the timeline issues; stated what is really important to recognize is what was included in the materials provided on the 27th was what was going to be required to produce a lot of the records and a very important privacy interest; just because the information is available, does not mean it is easily produced; she thinks the response from the City was timely. In response to Commissioner Reid's inquiry, the City Clerk stated the Commission could have discussion of the motion once it is seconded and also someone could make a call for the question if they feel there has been enough discussion. Commissioner Reid stated from her point of view, the complainant did not receive the information on his request in a prompt manner; on that basis, she requests that the Commission sustain the complaint. Commissioner Chen stated that she agrees with everything Commissioner Reid said, but that is not what the complaint is; she is having trouble and needs clarification; it is clear that the City needs to do better in responding to PRAs, but that is not the issue of the complaint on tonight's agenda. Commissioner Chen made an amended [substitute] motion; moved approval of not sustaining the complaint itself; however, the Commission found a lot of other issues on how the complaint was responded to and would like to explore further with the City Attorney's Office to address them. The amended/substitute motion was not seconded. Vice Chair Shabazz stated that he sees Commissioner Chen's point of view; the question is does the Commission have to make a determination of a violation solely based on what was put into the complaint; he is ready to call the question and may also have an alternate solution. On the call for the question, the motion carried by the following roll call vote: Comm… | OpenGovernmentCommission/2021-04-05.pdf |
OpenGovernmentCommission/2021-04-05.pdf,17 | OpenGovernmentCommission | 2021-04-05 | 17 | Chair Tilos stated the next step is to draft the decision. Vice Chair Shabazz stated as a point of order, he is more interested in the restoring part or what happens next; it is also important to address so the same issue does not happen again. Chair Tilos stated the issue can be addressed with a letter to City Council, as Commissioner Chen suggested, on how to make changes to the policy. The Chief Assistant City Attorney stated that she wants to confirm that to the extent that there is going to be any recommendation from the Commission as to any policy change, it will be a request to the Council to make that policy change and should definitely be agendized. *** Chair Tilos called a recess at 9:55 p.m. and reconvened the meeting at 9:59 p.m. *** 3-C. Hearing on Sunshine Ordinance Complaint Filed by Jay Garfinkle on February 25, 2021 Complainant Jay Garfinkle gave a brief presentation. Special Counsel Kristen Rogers gave a brief presentation. The City Clerk stated a motion is needed to consider remaining items. Commissioner LoPilato moved approval of considering the remaining items in order to get a response back to City Council. Commissioner Chen seconded the motion. Under discussion, Vice Chair Shabazz stated it is great that the City wants a response but he does not know whether it should motivate the Commission's agenda, goals and priorities, which is partially why he suggested the Commission collectively agree on its goals and priorities; he does not know if the Commission would be able to have the substantive discussion within the context of the Brown Act. Chair Tilos stated that he is leaning toward that route as well; he would like to give Mr. Garfinkle his time so he will not vote to consider the next item. On the call for the question, the motion failed by the following roll call vote: Commissioners Chen: Aye; LoPilato: Aye; Reid: No; Shabazz: No; Chair No: Aye. Ayes: 2. Noes: 3. *** Meeting of the Open Government Commission April 5, 2021 17 | OpenGovernmentCommission/2021-04-05.pdf |
OpenGovernmentCommission/2021-04-05.pdf,18 | OpenGovernmentCommission | 2021-04-05 | 18 | Mr. Garfinkle stated the only interested citizen was the lobbyist who created the resolution and lobbied Council; the general public was not aware it was on the agenda which did not allow them to weigh in on a very contentious piece of legislation. Vice Chair Shabazz stated that he believes Mr. Garfinkle is out of order in discussing the specific merits of the legislation. Mr. Garfinkle stated he did not want to debate every issue, but would respond if people have questions; the bottom line is that whether or not a legitimate process or resulted in instruction being given to lobbyists to say that the citizens of Alameda do not want to require previous law enforcement experience for Sheriffs; it is not an affirmative action issue; the question is how to go about getting the most qualified people to be Sheriffs; he believes that if Alameda citizens had the opportunity to weigh in on it, they would have opposed the resolution; they were not even given the opportunity, which is the violation. Vice Chair Shabazz inquired whether there is a specific practice for legislation to be adopted and lobbied by the City. The City Clerk responded most typically, specific legislation that goes to Council goes because it is considered outside the scope of the legislative agenda; the vast majority of stances on bills are done under the umbrella of the legislative agenda. Commissioner Reid stated that she did not see that it was common practice for other cities to include specific bills on their legislative agendas; inquired if that is correct. The City Clerk responded that she has not done a review of other cities and would not be able to comment on it; she would say that Alameda has done various iterations in the past and quite frequently specific Councilmembers raise specific bills under the umbrella. Commissioner Reid inquired whether specific bills appear in the legislative agenda, to which the City Clerk responded generally it there are just larger topic. Commissioner Reid inquired who decides which State bills the City suppor… | OpenGovernmentCommission/2021-04-05.pdf |
OpenGovernmentCommission/2015-02-02.pdf,1 | OpenGovernmentCommission | 2015-02-02 | 1 | MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING MONDAY FEBRUARY 2, 2015 7:00 P.M. The City Clerk convened the meeting at 7:00 p.m. ROLL CALL - Present: Commissioners Bonta, Dieter, Foreman, Tuazon, and Chair Aguilar - 5. Absent: None. ORAL COMMUNICATIONS, NON-AGENDA None. AGENDA ITEMS 3-A. Select Chair and Vice Chair Commissioner Dieter requested an explanation of the responsibilities of the Chair and Vice Chair. City Clerk Weisiger stated the Chair runs the meetings and the Vice Chair would run the meetings in the Chair's absence. Commissioner Dieter inquired whether it [the Chair and Vice Chair responsibility] is only at the meetings, to which the City Clerk responded in the affirmative. Commissioner Tuazon suggested that the Chair and Vice Chair be the representatives appointed by the Mayor and Vice Mayor. Commissioner Foreman noted that he was appointed by the Mayor; inquired who was appointed by the Vice Mayor. Commissioner Dieter responded that she was appointed by the Vice Mayor. Commissioner Bonta inquired how long Commissioner Aguilar has served on the Commission, to which Commissioner Aguilar responded one year. Commissioner Bonta inquired how long others have served, to which Commissioners Foreman and Dieter noted they were newly appointed. Commissioner Bonta stated that she would like to have Commissioner Aguilar serve as the Chair. Commissioner Dieter inquired whether the Commissioners suggested are interested in serving as the Chair. Meeting of the Open Government Commission February 2, 2015 1 | OpenGovernmentCommission/2015-02-02.pdf |
OpenGovernmentCommission/2015-02-02.pdf,2 | OpenGovernmentCommission | 2015-02-02 | 2 | Commissioner Aguilar and Foreman both responded that they are interested. Commissioner Dieter stated that she would be fine with being the Vice Chair. Commissioner Bonta moved approval of selecting Commissioner Aguilar as the Chair. Commissioner Tuazon seconded the motion since Commissioner Aguilar is more experienced. On the call for the question, the motion carried by unanimous voice vote - 5. Commissioner Dieter moved approval of selecting Commissioner Foreman as the Vice Chair since he was appointed by the Mayor. Commissioner Tuozon seconded the motion, which carried by unanimous voice vote - 5. 3-B. Approve the October 7, 2013 and the October 6, 2014 Meeting Minutes The City Clerk noted that she asked Commissioners to view videos in order to weigh in [on the minutes] since there was change in the majority [of the Commission membership]; stated hopefully, at least three members are prepared to vote on the minutes. Vice Chair Foreman inquired whether everyone read the minutes and watched the video, to which the Commissioners responded in the affirmative. Commissioner Dieter stated that she finds it disturbing for the Open Government Commission that one of the meetings was two years old; the Commission should not let that happen; that she hopes this Commission tries to approve the minutes at the consecutive meeting immediately following; plus, if it is close to an election cycle, she would not mind having a special meeting just to approve the minutes so that the next Commissioners that take our place are not faced with trying to understand the intent behind other people and what they were saying to approve the minutes. The City Clerk stated unfortunately the meeting last February ended up being canceled due to lack of a quorum; for the October meeting, two members ended up being absent and Commissioner Tuazon was new; staff did not anticipate that [absences] and did not request members to view [the video] ahead of time; apologized for the circumstance; stated that she appreciated the suggestion to hold a specia… | OpenGovernmentCommission/2015-02-02.pdf |
OpenGovernmentCommission/2015-02-02.pdf,3 | OpenGovernmentCommission | 2015-02-02 | 3 | present; the minutes do not reflect that [staff names]; under Item 3-B: Status Update of the Public Records Index, it says: "The Assistant City Clerk gave a brief presentation;" she thinks the minutes should stand on their own and a person should not be forced to have to go look at a video to understand what took place at a meeting; she thinks the minutes should say what was said and should say something to the effect of: "The Assistant City Clerk gave a brief presentation that stated that Alameda follows Berkeley's Index; it has two parts; everything will be kept for five years at a minimum;" this is what was said; and [it should say:] "disclosure will be added at a later date and will go to Council for approval;" that way no one is forced to have to go look at the video. The City Clerk suggested that she modify the minutes and bring them back to the Commission at the following meeting; she could capture the presentation, then, the Commissioners could read the minutes ahead of time. Commissioner Dieter stated if there are not enough changes, perhaps the minutes can be approved tonight. Vice Chair Foreman moved approval of the minutes as corrected. Commissioner Dieter stated that she is not finished; the very last line says: "The Assistant City Manager noted that Alameda's schedule is in line with other cities;" that she suggests deleting the following clause: "the key distinction is that Alameda has decided to increase the minimum retention to five years instead of two years required by law;' actually, the [Assistant] City Manager talked about various requirements; some are two years, some are three years, and some are ten years, so she thinks it is unnecessary to include that [clause]; it is confusing; unless staff wants to change it to say: "two or three years or other time frames as required by law;" those are the only two changes she has for that meeting [October 7, 2013]. Vice Chair Foreman moved approval of the minutes as corrected. Chair Aguilar seconded the motion, which carried by unanimous voice vote -… | OpenGovernmentCommission/2015-02-02.pdf |
OpenGovernmentCommission/2015-02-02.pdf,19 | OpenGovernmentCommission | 2015-02-02 | 19 | The Commissioners expressed support. The Assistant City Attorney stated Section 7 on Video Recording has been revised to add "for at least 10 years" to put the requirement in writing; the City Clerk indicated that videos are probably held longer. Commissioner Dieter stated the previous Commissioners thought that the reference to years should be left out altogether because it is not an issue; the matter could be brought back if it ever becomes an issue; suggested leaving out the references to the time frame at all because it is not a storage issue; questioned why even raise a flag that after 10 years maybe the City will get rid of it. Commissioner Bonta stated the issue was that there was unlimited storage capacity but there could be other reasons. Commissioner Dieter stated the City Clerk indicated everything is kept and capacity is not an issue. Commissioner Bonta stated adding a timeframe makes sense to give guidance about what the limitations should be; there might be a different driver beyond storage capacity. Commissioner Dieter inquired how would the public know if they want to look at something over 10 years ago that the City might have decided to get rid of that information because the Sunshine Ordinance says that the City only had to keep it for at least 10 years. Commissioner Bonta responded that is exactly what the City would want; stated the City would want the public to have some indication about the requirements to store the information for at least 10 years; the fact that there is information beyond that available perhaps is another articulation; it does not make it lower. Commissioner Dieter inquired what is the purpose of including it, to which the Assistant City Attorney responded that he recalled that there was a 10 year period. The City Clerk stated 10 years was included and is being expanded to at least 10 years because the City is going beyond it; "at least" was clearing up that it was going to go beyond; right now, the City currently has nine years of video posted on the web; starting next … | OpenGovernmentCommission/2015-02-02.pdf |
OpenGovernmentCommission/2015-02-02.pdf,20 | OpenGovernmentCommission | 2015-02-02 | 20 | Commissioner Dieter stated this is for the old VHS because for the new videos, the City has a contract with no limit; the City could keep videos for 40 or 50 years. The City Clerk stated the way technology and capacity are increasing, she would assume that the City would be able to keep that up; at this point, the City does not have 10 years, but videos would be kept up once the City goes past the 10 years. Vice Chair Foreman stated he is okay with leaving it the way it has been changed. The Assistant City Attorney stated the other part of Section 7 is that with the dissolving of redevelopment agencies, the Community Improvement Commission is now the Successor Agency to the Community Improvement Commission; a technicality in terms of the name of that particular policy body. Commissioner Dieter stated there are two references in the Sunshine Ordinance to the Alameda Reuse and Redevelopment Authority (ARRA) which has been disbanded; the City does not even have that anymore. The Assistant City Attorney stated he asked the Community Development Director about whether that should stay and she suggested that it stay in there. Commissioner Bonta stated if the City is keeping videos from the prior 10 years, the ARRA did exist at that time; this is to make sure that the City keeps the ARRA videos. The Assistant City Attorney stated Section 8 on Public Comment by Members of the Policy Body has some language added at the end to make it clear that while members of policy bodies certainly have the right to voice their opinion, it is not intended to prohibit the City Council from removing members if the Council feels the member has gone beyond their assigned duties. Vice Chair Foreman stated that he is not sure why it is in there; if it is a constitutional right, it is a constitutional right; questioned why does it have to be codified; stated what bothers him about it is there are certain things that City Council members cannot comment on as a matter of law if Councilmembers are playing a judicial role; for instance the rules … | OpenGovernmentCommission/2015-02-02.pdf |
OpenGovernmentCommission/2015-02-02.pdf,21 | OpenGovernmentCommission | 2015-02-02 | 21 | because it is a judicial matter that they would have to act on; that was wrong because there is an exception that if you are in a campaign, you can comment; but if you are not in a campaign, you cannot comment because you would be disqualifying yourself from making the decision; stated that he does not know why this language is included or needed; stated that he does not need the Code to tell him that he has a constitutional right to say what he wants to say; in this particular case, it may lead a Councilmember to believe that they can make a comment on a zoning matter when they are specifically prohibited from doing so. Commissioner Dieter stated it makes no sense to say that the Council can remove a member; that she is not sure why that is in the Sunshine Ordinance; they also cannot write a letter that contradicts a policy. Vice Chair Foreman inquired why it is in the Sunshine Ordinance. Commissioner Dieter concurred; stated the entire Section could be removed; particularly the addition; otherwise it should include that members of the City Council can be removed by referendum and address how they could be removed. Commissioner Bonta stated the general structure is that the City Council appoints other policy bodies that serve at the pleasure of the Mayor and Council; it might be ill placed; Council does have the ability to remove members of a policy body. Vice Chair Foreman stated that does make sense but he does not know why it is in the Sunshine Ordinance. Commissioner Dieter inquired what does the section have to do with accessing government, to which the Assistant City Attorney responded he thought that revising the ordinance that members of policy bodies can make public comment, it should be clear some right was not being created that would prevent the City Council from removing a member; then, the person could turn around and sue the City under some right that has been now created in the Ordinance; the addition is a protective measure; Vice Chair Foreman makes a good point that the statement is probably br… | OpenGovernmentCommission/2015-02-02.pdf |
OpenGovernmentCommission/2015-02-02.pdf,22 | OpenGovernmentCommission | 2015-02-02 | 22 | Vice Chair Foreman suggested that the Commission take the position that the matter is outside of its jurisdiction and refer it back to the City Council; this is not a public access issue. Commissioner Dieter concurred. Vice Chair Foreman stated it has to do with Council's power to go over agencies they create; it has nothing to do with sunshine. Councilmember Dieter stated if that is a motion, she seconds it. Vice Chair Foreman stated that is a motion. Commissioner Bonta inquired whether Vice Chair Foreman is referring to the second or third clause, to which Vice Chair Foreman responded that he is referring to the whole section; stated it is not wrong, it is misplaced; it is outside of the Commission's purview. Commissioner Bonta stated every policy body member retaining the constitutional right to comment publically has relevance to how a member of a policy body might continue to speak in public; having something in full transparency and openly available that members are able to speak their mind, which is the intent, is a helpful thing to have in the Sunshine Ordinance. Commissioner Dieter suggested a compromise: leaving in the first part of the provision that was already there that goes with sunshine; the addition added by staff does not belong in the Sunshine Ordinance and actually causes problems. Commissioner Bonta stated the intent is that the City would not have any future liability from exercising its right to remove members. Commissioner Dieter stated that should go somewhere else, such as the City Charter. Commissioner Bonta stated reading the section, people would understand they would be able to speak their mind even sitting on a policy body; after choosing to speak their mind, if the City removed the member, it would not be because they choose to speak their mind; there is a relationship; that she would recommend the language be redrafted. Vice Chair Foreman concurred the language needs to be redrafted; stated that he is worried about the first line; if the Planning Board has to approve a development… | OpenGovernmentCommission/2015-02-02.pdf |
OpenGovernmentCommission/2015-02-02.pdf,23 | OpenGovernmentCommission | 2015-02-02 | 23 | redrafted pretty easily to say that members cannot comment on items they are going to make a judicial decision on. The Assistant City Attorney stated this area of the law is murky; development plan in Alameda are legislative acts, not quasi-judicial, so the judicial rules would not apply; however, for a use permit, which is quasi-judicial, the point is well taken; on the other hand, courts recognize that elected and appointed officials are out in the community; part of being an elected official is listening to the community; the community wants to hear official's opinions on matters; there is a fine line between expressing interest and listening to people, but not showing improper bias; the line can be difficult to draw; drafting something may be difficult, but he will take a stab to try to address the issue more clearly. Commissioner Dieter requested the Assistant City Attorney to explain the last sentence: appointed policies bodies moreover may not take formal action nor undertake activities such as writing a letter that contradicts a policy or a position that the City Council has adopted or expressed. The Assistant City Attorney stated that he has seen situations were an advisory body takes formal action, such as writing a letter, that is contradictory to what the City Council has done; it cases the City and City Council some embarrassment; the idea is to put into written form that advisory bodies are not to do that; it is a policy decision; the language can be left or removed; he has seen it cause difficulty for a City Council in the past, so he put it in. In response to Commissioner Bonta's inquiry, the Assistant City Attorney stated the line is not always bright; a commission can express reservation about a City Council policy or action; however, the commission communicating in a formal way is what this is intended to say should not be done. Commissioner Dieter inquired whether it has ever happened in Alameda, to which the Assistant City Attorney responded that he does not know if it has happened in Alameda… | OpenGovernmentCommission/2015-02-02.pdf |
OpenGovernmentCommission/2015-02-02.pdf,24 | OpenGovernmentCommission | 2015-02-02 | 24 | The City Clerk stated by majority [Council] vote. Vice Chair Foreman stated his compromise would be to leave in the first part and leave out the last part; the particular sentence is not sunshine and has to do with when you can and cannot remove a member from a body. The City Clerk stated the Section was added to inform a member of a body; since sunshine is about providing information, the Attorney's idea is to put more information out there and inform them if they have not read the other provisions that they could be taken off because they might not be aware. Vice Chair Foreman stated inform them in the right section of the law; inquired why it would it be here. The City Clerk responded every board and commission member is required to read the ordinance; they are not required to read the other sections of the law; they are all annually required to read it. The Assistant City Attorney stated that he would redraft and bring back some language that might be more acceptable to the Commission. Commissioner Dieter stated out of all of the Sections, this is the one that is being tabled all together; there is a problem with it. The Assistant City Attorney stated Section 9 the first sentence under 2-92.2 has been moved to the front of the ordinance; in October, the Commission talked about the fact that sometimes the 10 day rule could not always be met and that there are circumstances when additional time is needed; he pulled the language out of the Public Records Act and put it into Subsection C to allow additional time for the custodian of records to respond as long as they gave the reasons for the extensions and the date on which the determination was supposed to be provided. Commissioner Dieter inquired whether there was a typo with the part that was added in Section D should it say employee "or" elected official rather than "of," to which the Assistant City Attorney responded in the affirmative. The Assistant City Attorney stated the new Subsection G has been moved up from a different Section; Section 10 on Responsib… | OpenGovernmentCommission/2015-02-02.pdf |
OpenGovernmentCommission/2015-02-02.pdf,25 | OpenGovernmentCommission | 2015-02-02 | 25 | The Assistant City Attorney continued the sentence: four years after they are filed or adopted; stated the items may be kept, but it is a matter of whether they should be kept on the City's website all the time; it is not that they would not exist, but they would not be on the City's website. Commissioner Dieter stated at the last meeting, discussion was that there is no problem with keeping items on the City's website; space is not a problem; questioned whether agendas and minutes would be removed after four years, to which the Assistant City Attorney responded in terms of the website, correct. Commissioner Dieter inquired why it says agendas and minutes would be removed after four years if there is no capacity problem, to which the Assistant City Attorney responded information would be stale after said length of time. The City Clerk stated some of the things that would change over time would be the Executive Management Work Plans, Capital Improvement Plans and Environmental Impact Reports (EIR), which are very large and could be removed after the project has been approved and completed; said documents get updated so retaining them for a long period might be harder; agendas and minutes are in a database; maybe agendas and minutes can be removed from the Section. Vice Chair Foreman noted the Planning Board never post minutes; inquired if it is violation of the Section, to which the City Clerk responded that she would follow up on the matter. Commissioner Bonta stated there seem to be some things, such as the Alameda Municipal Code, which have the current version, not the prior version for four years past, to which the City Clerk concurred. Chair Aguilar stated the addition should be added at the bottom [of the Section]. Vice Chair Foreman and the Assistant City Attorney concurred. The Assistant City Attorney stated the items could be asterisked with an explanation at the bottom; agendas and minutes will not be asterisked; the rest will because they change after four years. Chair Aguilar inquired whether what woul… | OpenGovernmentCommission/2015-02-02.pdf |
OpenGovernmentCommission/2015-02-02.pdf,26 | OpenGovernmentCommission | 2015-02-02 | 26 | Commissioner Tuazon stated it is still stored somewhere, just out of the website. Commissioner Dieter stated she is glad agendas and minutes are going to be removed; she also has a problem with EIR's, which can take up a lot of space because they are often big; however, when a project is still being built, people may want to go back to that, Alameda Point in particular, which was just passed last year; chances are the City will not move forward with building anything for a couple more years; in four years when the City is getting ready to start with one section, the EIR will already have been removed from the website; it makes more sense to remove it from the City's website once the project is final and has been built out. The City Clerk stated the Alameda Point EIR would be an exception and would be left up; people are going to be referring to it during all the phases; the Section is addressing the more typical EIR for a smaller project that would be completed within one year. Commissioner Dieter inquired could the language be that the EIR would be removed [from the website] when the project has been completed, to which the Assistant City Attorney responded staff can get terminology from Community Development to reflect the concept, which is a valid point. The Assistant City Attorney stated Section 12 on Public Records Index, struck language that was supposed to happen within 12 months from the enactment of the ordinance has been accomplished; there is no reason to keep it in the ordinance any longer; Section 13 on Matters of Public Concern, the attempt was to rework the language without changing the substance; the concern was it was not particularly clear; basically saying that an employee or policy board member can express an opinion as long as it does not materially misrepresent the position of the City or the department or the policy by which a member belongs. Commissioner Dieter inquired if it is similar to the one that the Commission tabled, to which the Assistant City Attorney responded it is similar but … | OpenGovernmentCommission/2015-02-02.pdf |
OpenGovernmentCommission/2015-02-02.pdf,27 | OpenGovernmentCommission | 2015-02-02 | 27 | Commissioner Dieter stated the City Manager might make a statement that does not necessarily represent the City. Vice Chair Foreman added or the Mayor or a Councilmember or a member of the Planning Board; stated they have a right to state their opinion, but questioned not to be disciplined or reprimanded for it; someone can state any opinion on anything and it can be as out in left field and prejudicial to the City, but if you state it as an individual, not as a member of the body, it is not disciplined; there is case law about statements that can be made and not be disciplined under freedom of speech; however, the language is kind of carte blanche. The Assistant City Attorney stated similar to the previous section, the issue is very difficult and contentious; the courts bound around about whether or not a person is bringing forth a matter that is of public concern, which one has the right to do, notwithstanding the fact that the person is an employee, versus bringing forth something that is really just complaining about one's job, which the person does not have the right to do in a public forum; he is just trying to clarify the existing language; that is the only purpose of making the amendments; he attempted to work with what was initially adopted rather than trying to write a very nuanced dissertation about when an employee can and cannot be disciplined. Vice Chair Foreman stated his thoughts would be to not have the Section at all; leave it to the courts to determine in individual situations because the cases are all over the place. The City Clerk stated the intent of the Sunshine Task Force adding the section was so that employees or board and commission members would not feel like if they had an opinion on a project as an individual, they could not come to a Council meeting [to express the opinion]; people would be getting up as an individual and allowed to still have an opinion on a specific project. Vice Chair Foreman stated there is no such thing as the Mayor getting up in public and making a statement a… | OpenGovernmentCommission/2015-02-02.pdf |
OpenGovernmentCommission/2015-02-02.pdf,28 | OpenGovernmentCommission | 2015-02-02 | 28 | private cause of action or offense to disciplinary action" is really good language, except it has been negated in the first sentence; the last sentence says an employee can be disciplined and this first sentence says cannot. Commissioner Bonta stated the first sentence says an employee cannot be disciplined for expression of personal opinions when not materially misrepresenting their position as an employee of the City. The Assistant City Attorney stated this area of the law is not clear; a person has certain constitutional rights; the idea is that the ordinance should not create additional rights beyond that which is already recognized by law; in other words, the ordinance would not give a separate cause of action if someone expresses an opinion and is disciplined for it; the City does not want the fifth cause of action to be a violation of Section 2-92.6 of the Alameda Municipal Code. Commissioner Bonta suggested the Section be redrafted perhaps adding the language provides "additional rights" to the last clause. The Assistant City Attorney stated Section 14 is just housekeeping, clarifying language; Section 15 has been moved to the Section on posting of information; Section 16 has been moved into a previous section dealing with providing records; Section 17 would change the training from every year to every third year; the video is available to anybody elected, appointed or hired. Commissioner Bonta questioned whether Section 2-92.15 on requests by email stating an email has to be acknowledged by similar communication is limiting; stated there are probably instances when calling would be helpful. The Assistant City Attorney stated the Section can be made broader; continued that completes [the review] all of the changes which were discussed in October; staff will redraft the ones the Commissions suggested be worked on; if there is anything else the Commission feels needs some fine tuning or wholesale changes, please let staff know. Vice Chair Foreman inquired when it will be ready; stated there is no hurry but … | OpenGovernmentCommission/2015-02-02.pdf |
OpenGovernmentCommission/2015-02-02.pdf,29 | OpenGovernmentCommission | 2015-02-02 | 29 | Commissioner Dieter stated the Commission was provided a full copy of the Sunshine Ordinance; having the complete Sunshine Ordinance include redlines would be easier to follow versus going back and forth; when there is a redline suggested including a notation, such as moved to versus deleted in its entirety; the City Council would also really appreciate knowing what has been deleted and what has just been rearranged. In response to Commissioner Bonta's inquiry regarding the meeting date, the City Clerk responded the meeting could be held May 4th Commissioner Bonta inquired whether the meeting have to be held on the first Monday, to which the City Clerk responded the Council Chambers are available the first Monday; that she could check availability for other dates. The Commission agreed to hold the next meeting March 30th. Commissioner Dieter addressed the minutes; inquired whether new agenda items could be on a new line; stated it was extremely difficult to read a new line item at the end of the previous line on the current minutes; if the Commission is discussing a particular Section, have it start on a new line; even the agenda item itself could be listed; in this particular one, there was no explanation for potential revisions; in the future, suggested copying and pasting from the agenda into the minutes so the public would know what the actual agenda item was. The City Clerk inquired whether Commission Dieter is asking for example: "3-C Potential Revisions to the City Sunshine Ordinance," to which Commissioner Dieter responded in the affirmative. The City Clerk stated it [the agenda title] is always carried over. Commissioner Dieter stated on the minutes we just approved they were not there. The City Clerk responded it was there. Commissioner Dieter stated that she would show the City Clerk after the meeting. Vice Chair Foreman inquired how Commissioners can add things to the agenda; inquired who does the agenda. The City Clerk responded the City Attorney's Office and City Clerk's office staff the Commission … | OpenGovernmentCommission/2015-02-02.pdf |
OpenGovernmentCommission/2015-02-02.pdf,30 | OpenGovernmentCommission | 2015-02-02 | 30 | Vice Chair Foreman provided an example: recommend to Council under that the Commission's jurisdiction should be expanded; stated the Commission is called Open Government but the actual grant of authority is Sunshine Ordinance; other aspects of the law pertain to open government and the Commission's role should be expanded. The City Clerk stated the Commissioners need to provide the item greater than the seven days ahead of [publication] time; that she would indicate that it is coming from the Commissioner so the other Commissioners understand it is not staff generated. Commissioner Dieter stated it is a little bit more free flowing than the City Council, to which the City Clerk responded the City Council has an extensive Council referral process but the Commission does not have that. Commissioner Dieter inquired when Commissioners have referrals, should it have a staff report. The City Clerk responded typically, staff would want to wait to get direction from the whole Commission before putting too much work into the matter; if the rest of the Commission does not agree with going in that direction; stated it is easier for staff to get direction from the whole Commission. The Assistant City Attorney stated it is similar to a referral; if a Commissioners wants to bring something forward, they would communicate it to the City Clerk; it would then appear under Commissioner Communications; the Commission would have a chance to talk about it because it would be noticed; then if there is support to bring something back, staff would do it; if there is not support, it does not go anywhere. COMMISSIONER COMMUNICATIONS None. ADJOURNMENT There being no further business, Chair Aguilar adjourned the meeting at 9:25 p.m. Respectfully submitted, Lara Weisiger City Clerk The agenda for this meeting was posted in accordance with the Sunshine Ordinance. Meeting of the Open Government Commission February 2, 2015 30 | OpenGovernmentCommission/2015-02-02.pdf |
OpenGovernmentCommission/2015-02-02.pdf,4 | OpenGovernmentCommission | 2015-02-02 | 4 | it goes to the City Manager's Office, and, if by chance a title is legislative, it goes through only the City Attorney's office and it does not get changed; if by chance, a legislative title is unclear, then a clarifying sentence will be added so that the public will understand the agenda meeting." The City Clerk inquired which set of minutes Commissioner Dieter is addressing; noted that she is having trouble finding it [the section being revised]. Chair Aguilar inquired what page. Commissioner Dieter responded page 2; stated it says Item 3-C Discussion and Comment on City Council Titles. The City Clerk stated the minutes being addressed are the October 7, 2013 set. Commissioner Dieter concurred; stated trying to decipher the minutes is very confusing; stated that she is still on the same set [October 7, 2013]; stated [the minutes state:] "The Assistant City Attorney summarized a section of the Sunshine Ordinance" but it does not say what the [Assistant] City Attorney said, so the Commission should add: "stated that a meaningful description of the item should be included in plain English;" that way someone does not have to look at the video to find out what the [Assistant] City Attorney said; on the next page, there was a public speaker; it is a little unclear in these minutes that it was a public speaker; it is underlined; she [the public speaker] actually said: "that she felt the lawyer catch phrases, such as relating thereto and with respect thereto, are not needed; they should not be used;" considering there was only one speaker, the Commission might as well get that [comment] right; that [comment] was by Jane Sullwold; on the next page at the top, it says: "Commissioner Aguilar pointed out that non-legislative agenda items are already required, having a caption on non- legislative items would be redundant; it is the legislative titles that have less flexibility;" the [Assistant] City Attorney actually said that ["it is the legislative titles that have less flexibility"], not Commissioner Aguilar; that those … | OpenGovernmentCommission/2015-02-02.pdf |
OpenGovernmentCommission/2015-02-02.pdf,5 | OpenGovernmentCommission | 2015-02-02 | 5 | Commissioner Dieter inquired whether no one else had any suggested changes [to the October 7, 2013 minutes], to which Chair Aguilar responded in the negative. Commissioner Dieter stated in the next one [the October 6, 2014 minutes] on page 5 under 3-B [Consider potential revisions to the City's Sunshine Ordinance], the paragraph says: "Commissioner Spanier stated that potential revisions seemed to be housekeeping; suggested the Commission review the list and decide about controversial items;" actually, what Commission Spanier said was: "to table controversial items for the next Commissioners;' delete the words "decide about" and make it "table;" down a couple of paragraphs it says: "The Interim Assistant City Attorney gave a brief presentation;" again it does not say what the presentation was; she suggests adding a few words to explain what that [the presentation] was: "gave a brief presentation about some housekeeping and substantive changes to the Sunshine Ordinance were needed and to ask for direction to send to the City Council;" down near the bottom of the page it says: "The Interim Assistant City Attorney responded the matter could be clarified;" that she thinks the Commission needs to clarify that sentence and add to the end of it: "to include advisory committee or advisory body;" stated that she is not trying to be petty; she is just trying to shed some sunshine on the minutes for the public; she thinks it is really important for this body to lead by example; the next to the last paragraph "and not noticed" could include: "does not require an agenda;' that she is going to let a few things go; on the top of page 7 the last part of the end of the second paragraph, she thinks what needs to be added is: "the City Clerk said the only future references to the advisory committee were on pages 4 and 5, so it would be easy to correct;" longer [farther] down under Item 3 it says: "The Interim Assistant City Attorney stated the language should remain;" it is unclear about what language; that she watched the video ab… | OpenGovernmentCommission/2015-02-02.pdf |
OpenGovernmentCommission/2015-02-02.pdf,6 | OpenGovernmentCommission | 2015-02-02 | 6 | background the City Clerk provided; down closer to the end of the page [it states:] "reviewed Item 7: public testimony on an item after being heard by a subcommittee;" she thinks this should be added: "the [Interim Assistant] City Attorney explained that as written the public could not comment on items after being heard by a subcommittee;" that is why it was being brought before the Commission; he [the Interim Assistant City Attorney] did not think there was a reason to have that [sentence in Section 2-91.15a included]; that it should be repealed; at the top of page 9 the end of the first sentence [reads]: "stated the language should be made clear" [that she would like to add:] "so that the public can speak;" "stated the language should be made clear" does not say what language; again, you [the public] would have to watch the video to figure out what language and it goes back to what was said previously about advisory committee meetings so the public can speak; down to about the fifth paragraph [it reads:] "The City Clerk responded the Public Records Act includes the requirement mentioned; the Sunshine Ordinance adopted stricter, faster timelines; stated response is to be provided within" [the language should read:] "a few days", not "ten days;' delete "ten days" and put "a few days;" [the minutes continue:] "but there are times the City cannot respond within ten days;" the City Clerk probably knows exactly what she meant by that [statement]; the City provides a response to whoever is requesting the record, but the City has ten days in which to respond; the next page second line [states:] "Commissioner Spanier stated that the suggestion is to move the requirement to a different Section of the Ordinance" does not say what requirement; [she would like to] add the words: "of the State of the City Address;" [the language should read:] "move the requirement of the State of the City Address to a different Section of the Ordinance;" down to about the sixth paragraph [it says:] "The City Clerk noted "four years" could be… | OpenGovernmentCommission/2015-02-02.pdf |
OpenGovernmentCommission/2015-02-02.pdf,7 | OpenGovernmentCommission | 2015-02-02 | 7 | Vice Chair Foreman stated that he spent a lot of time on the matter today; the whole construct of the ordinance bothers him; he became really embroiled in the Sunshine Ordinance when he was working on the Mayor's campaign and the Del Monte development; he finds the ordinance to be very confusing and in some cases contradictory, which the Assistant City Attorney pointed out in past meeting videos; the basic law is the State law, which sets the minimum standards; the only thing the City of Alameda can do is expand public access; questioned why the approach is basically restating the entire Government Code in the Municipal Code; stated if he had worked on the ordinance when it was created, he would have suggested an ordinance to supplement the [State] sunshine code, not completely restate it; a person has to read both when doing research as he had to do; his suggestion would make it [the City's Sunshine Ordinance] much shorter; that he would publish the Government Code on the City's website and this [City Sunshine Ordinance] would be a supplement; in the notice area, one expansion is going from a three day notice to a 12 day notice; almost everything else is repetition of what is already in the Government Code; that [his proposal for a shorter ordinance] is one approach; the other approach is to do what has been done; using the City existing ordinance in its current form needs to use the same language [as the Government Code]; for instance, the word "policy body" does not appear in the Government Code; the closest synonym for "policy body" is "legislative body;" if State law, which provides the minimum standards, uses the term "legislative body," Alameda should not be using the word "policy body" because it leads one to the conclusion that they are two separate things and they are not; it would be very difficult even for an accomplished lawyer to try to figure out some of these inconsistencies; another example would be "passive body;" there is no terminology "passive body" in the Government Code; that he understands… | OpenGovernmentCommission/2015-02-02.pdf |
OpenGovernmentCommission/2015-02-02.pdf,8 | OpenGovernmentCommission | 2015-02-02 | 8 | least have the ordinance track what is in State law, the Commission can make a recommendation to go to the Council and get said direction. The City Clerk stated that she could provide a little background; the year-long process was comprised of a group just like the Open Government, one member put on by each Councilmember; the group reviewed various sunshine ordinances from other cities and complied them together at public meetings with public input; a piecemeal approach was used; the group liked some things from some cities and liked some things from other cities, which was used to come up with an ordinance specifically catered for Alameda; language could be different because it could have possibly been cut and pasted from different cities; the group was supposed to create the Ordinance in three meetings, but ended up meeting 11 times; then, they finalized the Ordinance and sent it to Council; the process was lengthy. Vice Chair Foreman inquired whether that is pretty much in place, to which the City Clerk responded in the affirmative; stated that [process] is how the Ordinance was established. Vice Chair Foreman stated it might be difficult to switch horses now, but the matter should at least keep that in mind going through the Ordinance; for one more example, State law defines "meeting;" Alameda's law defines "meeting;" there is really no difference between the two, but the same language is not used; if there is no difference, the City should use exactly the same language, not a paraphrase; changing the language creates risk; that he understands if the Commission wants to remain on the current track and just try to be consistent with State law; the Ordinance has been through a process; the Commission cannot very well turn it upside down. The Assistant City Attorney stated if the Commission's direction is to see that the language in the Ordinance tracks what is in State law to the extent possible, staff can do that; the matter could be brought back to the Commission; the task is a doable task, but will take a li… | OpenGovernmentCommission/2015-02-02.pdf |
OpenGovernmentCommission/2015-02-02.pdf,9 | OpenGovernmentCommission | 2015-02-02 | 9 | if the State law says the agenda has to be posted 72 hours before the meeting, the local ordinance, even with a Charter City, probably could not say it only has to be 48 hours; on the other hand, it could have 12 days rather, than three days for Council and 7 days for commissions. Commissioner Bonta stated it is likely that a lot of these analogs that were created, such as the use of policy bodies in the ordinance, are largely driven by the fact that the local government bodies are groupings working together at the City level; stated that she would be inclined to not undo the work of an open process and the year of work to come to this Ordinance; the work would be undone by thinking that the State code language could just be slapped on; that she agrees that there are some areas where the ordinance could have some clarification; the idea of a policy body was probably generated because the City is a local government. Vice Chair Foreman stated the State law is written for local government; it is not written for the State legislator; it is written almost exclusively for local government; that he does not know why policy body was put in there; when you read policy body and you read legislative body it is exactly the same thing. The Assistant City Attorney stated that he can speculate that the thought might have when you read legislative bodies many people might think that is simply the City Council because Council makes final decision as opposed to a policy body which might sound broader to a layperson; he does not know if that would enter the equation or not; that he can see how that could have played a part in coming up with that term rather than legislative body; that is just a guess on his part, but it sounds logical that may have been part of the reasoning process. Vice Chair Foreman stated the Commission can just go through the Ordinance piece by piece and vote. Commissioner Bonta inquired whether staff recommends reviewing the Ordinance or tabling the questions until the Commission has had a clear opportunity f… | OpenGovernmentCommission/2015-02-02.pdf |
OpenGovernmentCommission/2015-02-02.pdf,10 | OpenGovernmentCommission | 2015-02-02 | 10 | Commissioner Tuazon stated that sounds reasonable. Vice Chair Foreman stated the Commission can just work from the red lines. Commission Dieter stated the Commission can just go down [the redline]; inquired whether anybody has input under findings or if the Commission is okay with the findings the way that it has been edited. Vice Chair Foreman stated that he is okay with it. Commissioner Dieter stated that she is okay with the first section. The Assistant City Attorney stated [on Section 11 staff is not deleting the section entirely from the ordinance; that he simply moved it to a substantive section where he thought it made more sense. Vice Chair Foreman stated the Commission will talk about that when the section is addressed. Chair Aguilar inquired whether having the Assistant City Attorney identify the changes would be easier, to which the Assistant City Attorney responded he can walk through the red line; stated for Section 1 on Findings, the concept was that the matter seemed to be more of a substantive issue rather than a finding; he moved the Section to Section 2-91.4(h); similarly, Section 2 on Responsibility of the City Manager and Mayor were in other portions of the Ordinance but having the Sections standalone made more sense. Chair Aguilar inquired whether there are any comments on Section 2, to which Commissioner Dieter responded in the negative; stated this is exactly what was decided upon by the former Commissioners; it was achieved and clear. The Assistant City Attorney stated Section 3 on Definition of Passive Meeting Body, described more of a passive meeting itself, not a body, so the Section was deleted. Vice Chair Foreman stated that he has a comment on Section 2-91.1; suggested Subsection B be revised to quote the Government Code definition of a meeting word for word; stated the definition should be word for word and in the same order, unless the term meeting is being expanded and broader than the Government Code; otherwise, the City is bound by a definition in the State Code and bound by a s… | OpenGovernmentCommission/2015-02-02.pdf |
OpenGovernmentCommission/2015-02-02.pdf,11 | OpenGovernmentCommission | 2015-02-02 | 11 | Vice Chair Foreman moved approval of directing the [Assistant] City Attorney to review the definition of meeting in Section 2-91.1(B); if he determines it to be identical to the Government Code Section, he use the Government Code language; if he believes it not to be identical, he make whatever edits he believes are appropriate. Chair Aguilar inquired whether the motion is to have the changes come back to the Commission for approval, to which Vice Chair Foreman concurred. Commissioner Dieter stated the direction is fine with her. On the call for the question, the motion carried by unanimous voice vote - 5. Vice Chair Foreman stated his opinion is that the term passive meeting body, wherever it occurs in the Ordinance, be changed to non-legislative body. Commissioner Dieter stated before the Commission goes there [addresses said change], the former Commissioners had a long discussion on the matter at the previous meeting; everyone had a problem with the word "passive body" and "passive meeting body;" what was agreed upon was that it would be changed to something that everyone would understand: advisory committee or advisory body. Vice Chair Foreman stated that he recalls that; the problem with it is that advisory bodies formed by the Council as a whole, by ordinance or an official Council action, are not passive meeting bodies as defined in the document; advisory bodies are subject to the Sunshine Ordinance just as much as City Council with a few minor exceptions; the word "advisory" cannot be used interchangeably with passive or non-legislative; most advisory bodies, such as the Open Government Commission, are not passive bodies; Commissioner Dieter is right the discussion did occur; that he is suggesting using the word "non-legislative." Commissioner Dieter inquired the difference between a policy body and an advisory body. The Assistant City Attorney responded the difficulty is that as defined, advisory bodies, such as the Planning Board, Open Government Commission or Recreation and Park Commission, are advisor… | OpenGovernmentCommission/2015-02-02.pdf |
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