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Consider Directing Staff to Draft an Ordinance Amending the Sunshine Ordinance to Move to a Hearing Officer Model to Hear Sunshine Ordinance Complaints. (Mayor Ezzy Ashcraft and Councilmember Jensen) [Not heard on October 17, November 7, 21, December 5, 19, 2023 or January 2, 2024]
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COUNCIL REFERRAL FORM
The Council can take any of the following actions:
1) Take no action.
2) Refer the matter to staff to schedule as a future City Council agenda item. Concurrence that staff time will be devoted to the item does not signify approval.
3) Take dispositive action only on time sensitive legislative matters if sufficiently noticed such that the public and Council have been provided sufficient information by the published agenda, and no formal published notice of a public hearing is required.
Name of Councilmember(s) requesting referral: Mayor Ezzy Ashcraft and Councilmember Jensen
Date of submission to City Clerk (must be submitted before 5:00 p.m. on the Monday two weeks before the Council meeting requested): 10/2/2023
Council Meeting date: 10/17/2023
Brief description of the subject to be printed on the agenda, sufficient to inform the City Council and public of the nature of the referral:
To increase the effectiveness, efficiency, and impartiality of Open Government Commission (OGC) hearings and decisions, consider directing staff to draft an ordinance amending the Sunshine Ordinance to use a hearing officer, rather than OGC members, to hear complaints.
The Sunshine Ordinance is modeled after the Brown Act and the Public Records Act. Sunshine Ordinance complaints have recently become increasingly complex and Open Government Commissioners are not trained in legal analysis and applying case law to the complaints they hear. This has led to OGC hearings that are excessively time-consuming and confusing.
Additionally, litigating open meetings and public records disputes is typically a judicial function, i.e., handled by a judge, rather than a jury of laypersons. No other City board or commission performs a similar role to the OGC’s hearing and deciding complaints. Using a hearing officer would allow complaints received by the OGC to be handled as effectively, efficiently, and impartially as possible.
Additionally, unlike appointments to all other City boards and commissions which are approved by the entire Council, OGC appointments are political: each member of the Council selects an individual to serve on the OGC. This could result in Commissioners struggling to remain neutral when hearing and deciding complaints.
The OGC has created a complaint hearing process and submission deadlines. They assign an Attorney to advise the Commission and prepare neutral statements for hearings. Hearings could result in five different findings, one from each commissioner. Coordinating the calendars of five commissioners while adhering to submission deadlines also makes scheduling hearings challenging. Hearings are also costly because they require significant staff time and resources. Having one trained professional perform the adjudicatory role would eliminate all of these challenges while assuring decision-making neutrality.
Finally, the City’s successful transition in 2019 to Rent Control Hearings being considered by trained City Hearing Officers, rather than the RRAC, has been very successful and provides a helpful model to follow. That transition has improved the quality of both hearings and decisions. Accordingly, we recommend directing the City Attorney’s Office to return with an Ordinance to transition Sunshine Ordinance adjudicatory responsibilities from OGC members to City Hearing Officers.
We also recommend that hearing officer decisions be included in the OGC annual report to the Council and include OGC recommendations to address any findings of the hearing officer.
This referral should be presented at the next OGC meeting so Commissioners can provide comments prior to staff drafting an ordinance.
The City Council, at its July 25, 2020 Priority Setting Workshop, established the following 5 priorities for 2021:
1. Preparing Alameda for the future
2. Encouraging economic development across the Island
3. Supporting enhanced livability and quality of life, including addressing the housing crisis and homelessness
4. Protecting core services
5. Ensuring effective and efficient operations
Briefly describe which Council priority the subject falls under and how it relates:
#5 increases transparency, efficiency and impartiality