Title
Minutes of the January 29, 2024 Meeting
Body
MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY - - - JANUARY 29, 2024 - - - 7:00 P.M.
Chair Chen convened the meeting at 7:01 p.m.
ROLL CALL - Present: Commissioners Miyao, Sullivan, Tilos and Chair Chen - 4.
Absent: Commissioner Miley - 1.
[Staff present: Assistant City Attorney Jason Allen; Assistant City Attorney I Montague Hung; Special Counsel Michael Roush; Deputy City Attorney II Doug McManaway; City Clerk Lara Weisiger; Planning Manager Steven Buckley]
NON-AGENDA PUBLIC COMMENT
None.
COMPLAINT HEARINGS
3-A. Hearing on Sunshine Ordinance Complaint Filed on December 5, 2023
Paul Foreman, Complainant, gave an Opening Statement and Presentation of Facts.
The Assistant City Attorney gave an Opening Statement and Presentation of Facts.
Mr. Foreman gave a Reply to the City/Respondent Opening Statement and Presentation of Facts.
Commissioners asked questions and the Assistant City Attorney, the City Clerk, and Mr. Foreman provided responses.
Speakers:
Zac Bowling, Alameda, discussed Assembly Bill 2449; stated hybrid public comment was fully intentional; he does not see an issue with the way anything was noticed and there was no violation.
Carmen Reid, Alameda, stated that she supports the Complainant’s claim that the City violated the Brown Act by preventing the public from participating in remote public comment for non-agenda items; urged the Commission to comply in the spirit of open government.
Shelby Sheehan, Alameda, stated it would be worth a public discussion to see whether the public thinks non-agenda public comment should be via Zoom; the intent of the Sunshine Ordinance goes farther than the Brown Act.
Jay Garfinkle, Alameda, stated that he supports the Complainant; the blocking of public comment via Zoom during non-agenda items is only to prevent hateful zoom bombing; staff, including the Mayor, is not permitted to make the pronouncements made.
Matt Reid, Alameda, stated the process by which the policy was adopted behind closed doors is out of bounds; the content of the policy is not effective; anyone can call in at any time on any agenda item and Zoom bomb; suggested a quicker mute button; stated the policy excludes groups that use technology to be able to attend meetings.
Dorothy Freeman, Alameda, stated the policy change should not be allowed to happen; it is the Commission’s job to make sure the public can participate.
Mr. Foreman gave a Closing Statement.
The Assistant City Attorney gave a Closing Statement.
The Commission agreed to bifurcate the issues.
Regarding Councilmember Vella attending remotely, Commissioner Tilos and Chair Chen expressed that they do not see any violation.
Commissioners Sullivan and Miyao asked questions.
Commissioner Miyao stated that the two items on his mind is whether the November 21st meeting was in fact compliant; the second is whether the delegated committee to set the agenda has the ability to make decisions on behalf of the Council and is a policy body under the Sunshine Ordinance.
Chair Chen stated Commissioner Miyao’s inquiry regarding the policy body is not part of the complaint.
Commissioner Tilos stated under the current practice, a meeting is not needed or required to make the policy change; Council did not take away a power from the public, it only took away one channel of access.
The Assistant City Attorney stated it would be helpful to consider the items as separate issues; findings each have to be supported by reasoning and basis for each decision to the extent that there is independent analysis.
Commissioner Tilos moved approval of finding the November 21st meeting, which had remote participation by Councilmember Vella, not in violation of the Brown Act.
Chair Chen seconded the motion.
On the call for the question, the motion failed by the following roll call vote: Commissioners Miyao: No; Sullivan: No; Tilos: Aye; and Chair Chen: Aye. Ayes: 2. Noes: 2. [Absent: Commissioner Miley - 1.]
Chair Chen reiterated the second issue is whether or not the decision to eliminate remote access for non-agenda public comment is a violation of the Brown Act.
In response to Commissioner Miyao’s inquiry as to why he does not find a violation, Commissioner Tilos stated the procedures on how a meeting is done were followed.
Commissioner Sullivan moved approval of finding the current exclusion of non-agenda online or telephonic public comment in City Council meetings is in violation of Section 54953 of the Brown Act.
Chair Chen seconded the motion.
The Assistant City Attorney stated that it is important to pin down the specific subsection to substantiate the basis for the decision.
Commissioner Sullivan stated that his motion does not have a specific subsection.
On the call for the question, the motion failed by the following roll call vote: Commissioners Miyao: No; Sullivan: Aye; Tilos: No; and Chair Chen: No. Ayes: 1. Noes: 3. [Absent: Commissioner Miley - 1.]
Chair Chen stated she would like to add to the findings statement that public comment on non-agenda items is of great value to the community and Councilmembers and she hope Council will reconsider the policy.
Commissioner Miyao stated that he would propose clarifying what is considered and the bounds of agenda setting.
The City Clerk stated the issues could be included in the annual report, not the findings statement.
3-B. Hearing on Sunshine Ordinance Complaint Filed on December 13, 2023
Shelby Sheehan, Complainant, gave an Opening Statement and Presentation of Facts.
The Planning Manager gave an Opening Statement and Presentation of Facts.
In response to Chair Chen’s inquiry, the Commission briefly discussed what the complaint is alleging.
The Planning Manager continued the Opening Statement and Presentation of Facts.
Ms. Sheehan gave a Reply to the City/Respondent Opening Statement and Presentation of Facts.
Speakers:
Carmen Reid, Alameda, stated that she wanted to attend the Planning Board meeting but the Zoom link did not work; submitted a video; discussed historic district guidelines.
Zac Bowling, Alameda, stated that he was able to register, access and attend the December 11th meeting with no issues.
Ms. Sheehan gave a Closing Statement.
The Planning Manager gave a Closing Statement.
Commissioner Miyao moved approval of denying the complaint as unfounded.
Chair Chen seconded the motion, which carried by the following roll call vote: Commissioners Miyao: Aye; Sullivan: No; Tilos: Aye; and Chair Chen: Aye. Ayes: 3. Noes: 1. [Absent: Commissioner Miley - 1.]
REGULAR AGENDA ITEMS
4-A. Minutes of the November 6, 2023 Meeting
Commissioner Tilos moved approval of the minutes.
Commissioner Sullivan seconded the motion, which carried by unanimous voice vote - 4. [Absent: Commissioner Miley - 1.]
4-B. Provide Input on the Sunshine Ordinance Being Amended to Move to a Hearing Officer Model to Hear Sunshine Ordinance Complaints
The City Clerk gave a brief presentation.
Speaker:
Zac Bowling, Alameda, stated that he is favor of the Council referral to move to having someone with legal expertise hear complaints; the Rent Review Advisory Committee had success with the hearing officer model; it was vastly improved and less dramatic.
Commissioner Tilos stated that he has mixed feelings about the matter; in the beginning of his time on the Commission, hearings or complaints did not take so long; it is an issue; it turns people off from volunteering; part of the spirit of the Sunshine Ordinance is to have non-attorneys serve on the Commission; suggested the role of the Hearing Officer be to provide a recommendation on complaints, then, the Commission could decide whether to hold a hearing, which is a way for there to still be a role for Commissioners.
Commissioner Sullivan stated that he agrees with appointing a Hearing Officer; the only reason the Commission exists is so the public can be heard; there seems to be a political influence on every Commissioner; expressed concern about how to ensure the Hearing Officer selected is non-partisan.
Commissioner Miyao stated that he supports appointing a Hearing Officer; complaints filed can be very technical and time consuming; having an attorney take on the task would be welcomed; the Council has made the Commission powerless; he would recommend that the Council give the Hearing Officer authority to enforce the Sunshine Ordinance and Brown Act.
Chair Chen stated that before she became a Commissioner, she was a complainant and felt gaslit; she felt exonerated when the OGC sustained her complaint; she has a personal connection to seeing five regular Alameda residents serve on the Commission; initially, there was an inherent conflict of interest when the attorneys who represented the City were also advising the Commission; people come before the OGC when they have trust issues and need an objective body to hear the issues.
The City Clerk clarified in the rent hearings, a pool of outside, independent Hearing Officers rotate based on availability; it is not a City staff person or associated with any City department.
In response to Commissioner Sullivan’s inquiry, the City Clerk stated the Rent Hearing Officers are not appointed by the Council; the Commission can include a recommendation that the Council select the Hearing Officers.
Commissioner Tilos stated if the Hearing Officer has null and void authority, the position would be legitimate, which he doubts the Council would include.
Commissioner Miyao stated the role of the Commission may no longer be needed; procedural items such as the annual report are administrative and would not need a Commission.
Commissioner Tilos stated the Hearing Officer could do the annual report.
Chair Chen stated the last two annual reports were informed by sitting through the hearings; the last two Commissions worked hard to get things ship shape; she is willing to let it go.
4-C. Accept the Annual Report
The City Clerk gave a brief presentation.
Chair Chen stated that she wanted to carry forward some past issues in the report, including a clear definition of legislative bodies of the Brown Act, annual audit of Police Department records requests, clarifying social media and PRA requirements, and adopting a clear policy on remote public comment.
Commissioner Miyao stated that he would like to keep the Annual Report annual and not re-litigate things; issues could be referred to from previous reports, but not added to the current report.
Commissioner Tilos stated that he would not mind including Chair Chen’s carry forward items as an appendix to the annual report.
Commissioner Miyao moved approval of accepting the 2023 Annual Report with the modification of adding Chair Chen’s roll forward items as Appendix C.
Commissioner Tilos seconded the motion, which carried by unanimous voice vote - 4. [Absent: Commissioner Miley - 1.]
4-D. Select Chair and Vice Chair
Commissioner Miyao nominated Commissioner Sullivan as Chair.
Commissioner Sullivan nominated Commissioner Tilos as Chair.
Commissioner Tilos nominated Vice Chair Miley (absent) as Chair, to which the City Clerk stated that Vice Chair Miley informed her that would decline the nomination.
Commissioner TIlos moved approval of appointing Commissioner Sullivan as Chair and Commission Miyao as Vice Chair.
Chari Chen seconded the motion, which carried by unanimous voice vote - 4. [Absent: Commissioner Miley - 1.]
STAFF UPDATE
None.
COMMISSION AGENDA REQUESTS
None.
COMMISSIONER COMMUNICATIONS
None.
ADJOURNMENT
Chair Chen adjourned the meeting at 9:58 p.m.
Respectfully submitted,
Lara Weisiger, City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.