Title
Introduction of Ordinance Amending the Alameda Municipal Code by Amending Section 2-22 (Open Government Commission) and Article VIII (Sunshine Ordinance) of Chapter II (Administration) to Establish a Hearing Officer Form of Adjudication of Sunshine Ordinance Complaints, Clarify Enforcement Provisions, and Revise the Duties of the Open Government Commission (OPTION A); or
Introduction of Ordinance Amending the Alameda Municipal Code by Deleting Section 2-22 (Open Government Commission) and Amending Article VIII (Sunshine Ordinance) of Chapter II (Administration) to Eliminate the Open Government Commission, Establish a Hearing Officer Form of Adjudication of Sunshine Ordinance Complaints, and Clarify Enforcement Provisions (OPTION B). (City Attorney, City Clerk)
Body
To: Honorable Mayor and Members of the City Council
From: Yibin Shen, City Attorney
EXECUTIVE SUMMARY
On January 16, 2024, by way of referral, City Council directed staff to draft an ordinance amending the Sunshine Ordinance to use hearing officers, rather than the Open Government Commission, to hear complaints about violations of the Sunshine Ordinance. The referral/direction was based on the fact that recently Sunshine Ordinance complaints have become increasingly complex legally, Commission members are typically not trained to interpret statutes/ordinances nor to apply case law to the complaints. Accordingly, hearings on these complaints have been time consuming and confusing. The City Council motion also directed staff to provide a progress review at 6 and 12 months after converting to the hearing officer model.
As discussed more fully below, the proposed amendments to the Sunshine Ordinance (Option A) would move adjudication of Sunshine Ordinance complaints to a hearing officer model, in addition to making other changes consistent with such model. Such a model is already in successful use for adjudication of disputes under the City of Alameda’s (City) Rent Control Ordinance. Additionally, while the Commission would no longer exercise any adjudicatory function, it would retain is general advisory role to the City Council consistent with the roles of other Boards and Commissions of the City.
Alternatively, if City Council concludes that removing the adjudicatory function from the Open Government Commission essentially eliminates the need for the Commission, the Option B ordinance would eliminate the Commission in its entirety. Based on the Commission’s comments, the City Clerk proposed the Option B alternative be presented to City Council for consideration.
BACKGROUND
On November 1, 2011, City Council amended the Alameda Municipal Code (“AMC”) to add a new Article VIII (Sunshine Ordinance) to Chapter II (Administration), which is codified beginning at Section 2.90. In part, it created the Open Government Commission.
Under the Sunshine Ordinance, the Commission is charged with “hear[ing] and decid[ing] complaints…[under]…the Sunshine Ordinance.” AMC, §2-22.4(a). In this capacity, the Commission is called upon to act as a judicial body, akin to an administrative law judge or a trial judge.
Because the Sunshine Ordinance is modeled after the Brown Act and the Public Records Act, this adjudicatory role can be quite complex, especially in terms of applying legal doctrines to the facts of particular complaints. As a practical matter, adjudicating open meetings and public records disputes in the judicial process is typically handled by judges, rather than by administrative bodies. Moreover, no other City board or commission is called upon to perform a similar role as the Open Government Commission is asked to perform. Furthermore, recently the Sunshine Ordinance complaints have been increasingly complex, causing lengthy and confusing hearings.
While the City Attorney’s Office (CAO) (along with the City Clerk’s Office) staffs the Commission and provides legal advice, this support has not alleviated the Commission’s difficulties in wrestling with these issues. In addition, notwithstanding that the CAO has assured the Commission that the office has erected ethical walls to guard against conflicts, Commission members have expressed concern that the CAO has an inherent conflict in providing advice to it in light that it is often a decision of the City Council that is the subject of the complaint.
In light of these ongoing concerns, on January 16, 2024, Council directed staff to draft an amendment to the Sunshine Ordinance relieving the Commission of its obligation to conduct adjudicatory proceedings and transferring that function to City Hearing Officers. These amendments are set forth in the amendments in the proposed ordinance identified as Option A.
City Council also directed staff to inform the Open Government Commission of this direction to staff and seek the Commission’s input. Staff informed the Commission of this on January 29, 2024. The Commission understood the reason for this City Council action because it recognized that hearings on these complaints have become very technical and time consuming but felt the process would be hurt by not having members of the community weigh in on complaints. While there was some suggestion that the hearing officer’s decision should be advisory to the Commission (who would then make the final decision) or that if hearing officers were to be the decision maker, the hearing officer ought to have authority to enforce a remedy for a violation, rather than just make a recommendation, the Commission expressed a sentiment that if the Commission was not authorized to hear complaints, it had no meaningful function and should be disbanded. Accordingly, if City Council elects to disband the Commission, staff has prepared an alternative ordinance (Option B) that would disband the Commission, as well as make the other changes to the Sunshine Ordinance as set forth in Option A.
DISCUSSION
City Council articulated several reasons for this direction in addition to the fact that no other board or commission is asked to perform this adjudicatory function. For example, unlike appointments to other boards or commissions that are approved by the full Council, each member of the City Council appoints a resident to the Open Government Commission. Given these political appointments, it could lead to individual commissioners struggling to remain unbiased when hearing and deciding complaints. Also, because the complaint hearing process has strict deadlines, coordinating the calendars of five commissioners, the complainant, and City staff is often challenging. Additionally, hearing officers are appointed based on legal training and experience (see Exhibit 1, Regulations Regarding Administrative Hearings) and are required to be impartial and are subject to disqualification. Finally, in 2019, the City successfully transitioned to having hearing officers deciding rent control disputes rather than an appointed committee (the Rent Review Advisory Committee [RRAC]) because, as has been the case with the Open Government Commission, the issues before the RRAC became more and more complex, involving statutory interpretation and application of case law, functions for which the RRAC members did not have the requisite training.
Under the proposed Option A Ordinance, the Commission will continue to have an general advisory role to the City Council. It will continue to receive copies of the hearing officers’ decisions (as will the City Council) and it will continue to create an Annual Report detailing complaints and the outcome of the hearings with the Commission making any recommendations to strengthen the Sunshine Ordinance.
If City Council determines that the Commission not hearing complaints eliminates the need for the Commission, City Council should introduce the Option B ordinance that would disband the Commission as well as including the substantive changes in the Option A Ordinance. Based on the Commission’s comments, the City Clerk proposed the Option B alternative be presented to City Council for consideration.
ALTERNATIVES
City Council may consider taking action on some, all, or none the proposed actions discussed in this agenda report.
FINANCIAL IMPACT
Staff estimates that there would be approximately six Sunshine Ordinance hearings per year, and that the cost of a hearing officer’s time for each hearing would be approximately $1,500 to $4,000, for a total estimated cost to the General Fund ranging from $9,000 to $24,000 annually. These costs may be entirely or partially offset by the fact that the Commission currently requires significant attorney staffing. At the Commission’s request, each Commission hearing is typically staffed by two attorneys (one representing the Commission and one representing the City), one of which is often outside counsel which bills at rates ranging from $350 to $500 per hour.
MUNICIPAL CODE/POLICY DOCUMENT CROSS REFERENCE
This action amends the AMC.
ENVIRONMENTAL REVIEW
The California Environmental Quality Act (CEQA) applies only to projects that have the potential for causing a significant effect on the environment. This action is not a project pursuant to Public Resources Code section 21065 and CEQA Guidelines section 15378.
CLIMATE IMPACT
There are no identifiable climate impacts or climate action opportunities associated with the subject of this report.
RECOMMENDATION
Introduce an ordinance amending the Alameda Municipal Code by amending Section 2-22 (Open Government Commission) and Article VIII (Sunshine Ordinance) of Chapter II (Administration) to establish a hearing officer form of adjudication of Sunshine Ordinance complaints; or introduce an ordinance amending the Alameda Municipal Code be deleting Section 2-22 (Open Government Commission) and amending Article VIII (Sunshine Ordinance) of Chapter II (Administration) to eliminate the Open Government Commission, establish a hearing officer form of adjudication of Sunshine Ordinance complaints.
Respectfully submitted,
Michael Roush, Special Counsel
Lara Weisiger, City Clerk
Financial Impact section reviewed,
Margaret O’Brien, Finance Director
Exhibit:
1. Regulations for Administrative Hearings