Title
Potential Revisions to the Sunshine Ordinance
Body
To: Chair and Members of the Open Government Commission
From: Janet Kern, City Attorney
Michael Roush, Interim Assistant City Attorney
Re: Potential Revisions to the Sunshine Ordinance
BACKGROUND
At the Commission's October 6, 2014 and February 2, 2015 meetings, staff presented a number of proposed changes to the City's Sunshine Ordinance. A copy of those staff reports is attached. Based on those discussions at those meetings, the Commission directed staff to return a redlined version of the Ordinance to the Commission who would then review the proposed changes and make a recommendation to the City Council as to whether all or some of the revisions should be adopted.
For the most part, the Commission agreed with the revisions to the Ordinance that staff presented at the February 2, 2015 meeting. To the extent the Commission had questions, concerns, or requested revisions to what had been presented at the February 2015 meeting, they are discussed below. Moreover, to assist the Commission, where sections have been moved within the Ordinance, or where material has been added or deleted, staff has presented in [brackets] but within the Ordinance a brief explanation as to the move, addition or deletion.
DISCUSSION
1. Section 2-91.4 (h) Use of Electronic Communication Devices. The Committee felt that this subsection as drafted was too narrow and did not reflect today's technological reality that elected and appointed officials should be able to use their personal smart phones or I-pads during a meeting to access information relevant to the subject matter then under discussion but should not be allowed to use such devices to send or receive information to/from inappropriate sources. For example, an official may want to access electronically a portion of the City's Municipal Code, even though such portion is not part of the agenda materials. The Ordinance, both in its current form and as presented at the Commission's February 2015 meeting, would not allow that. As now redrafted, however, subsection (h) would permit such access. If this language were adopted, there would no longer be a bright line rule as to what is/is not permitted and elected and appointed officials will need to police themselves at meetings when it comes to the use of electronic communication devices.
2. Section 2-91.14 (c). Retaining Audio and Video Recordings for Ten Years. Subsection c) requires audio and video recordings be kept "for at least ten years". Staff had added language to that subsection that suggested that such recordings could be destroyed after ten years. The Committee recommended that suggestion be deleted and it has been.
3. Section 2-91.17 Public Comments by Members of Policy Bodies. Staff had added language to this subsection to make it clear that the subsection's intent was not to prevent the City Council from removing a member of an appointed body. Staff also added language that would prohibit an appointed body from taking formal action that contradicts a policy or position that the City Council itself has adopted or expressed. The Committee asked for the rationale why those provisions had been added. As to the former, this provision already exists in the City Charter (Section 10-9) so staff has included in the subsection the reference to the Charter. As to the latter, it seems incongruous for a subordinate body to take a position or draft a letter to an outside organization that contradicts a policy or position that the elected representatives have adopted or expressed. Accordingly, staff has clarified the language but the concept remains in the amendment.
4. Section 2-92.4 Retention of Certain Documents. Somewhat similar to the issue in section 2-91.14 c) above, the Ordinance as currently drafted provides certain documents must be posted on the City's website "for a period of at least four years". Staff attempted to clarify that certain of these documents may be removed four years after they were filed or adopted. The Committee felt the wording of the current Ordinance did not need to be changed but that certain of the documents, e.g., Executive Management Plans, Capital Improvement Plans, etc., could be asterisked with the note that they could be removed from the Website after four years and environmental documents could be removed after the project which related to the documents has been built out.
5. Section 2-92.6 Opinions of Public Concern. As staff understands it, the purpose of this section is to not penalize public employees and appointed officials from expressing personal opinions when those matters are of "public concern" so long as it was clear such opinion did not represent that of the City, the employee's department or the appointed official's appointed body. The problem, in part, is conflating the two groups since different standards apply. Another problem is that the line is not always bright under what circumstances a public employee may exercise his or her opinion about a matter of "public concern" and still have First Amendment protection from being disciplined. Staff has separated the two groups and has provided some guidance as to when First Amendment protection applies to statements made by public employees.
In addition to these items, Commissioner Foreman expressed concern that the definition of "Meeting" in the Ordinance was duplicative of the definition of "Meeting" under the Brown Act and thought that perhaps the public would be better served if the definitions were the same. Staff has reviewed both definitions and finds them consistent, even if the wording differs somewhat.
For example, the Ordinance defines meeting, in part, to mean "a congregation of a majority of the members of a policy body at the same time and place". Section 2-91.1 (b)(1). The Brown Act defines meeting to mean "any congregation of a majority of the members of the legislative body at the same time and location, including teleconference location as permitted under Section 54953, to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the legislative body." Gov. Code, section 54952.2 (a).
The Ordinance, moreover, also defines "meetings" to include what are commonly known as "serial meetings". i.e., a series of gatherings, each of which involves less than a majority of a policy body, but the outcome of which is that a majority of the policy body members-including through the use of intermediaries or communications media--have heard, discussed or deliberated on an item within the subject matter jurisdiction of the City. Section 2-91.1 (b) (2)(3). The Brown Act, on the other hand, forbids "serial meetings", i.e., it forbids a majority of the members of a legislative body, outside a "meeting", to use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate or take action of any item of city business. Gov. Code, section 54952 (b)(1).
The Ordinance also sets forth a number of matters that are not "meetings". Section 2-91.1 (b) (4). The Brown Act essentially accomplishes the same thing by setting forth a number of matters involving members of a legislative body-some of which are not identified in the Ordinance--to which the Brown Act does not apply. Gov. Code, section 54952.2 (c). (For example, the Brown Act does not apply to the attendance of a majority of the members of a legislative body at an open and noticed meeting of another body of a local agency, but that exception does not appear in the Sunshine Ordinance. On the other hand, although it is not considered a meeting under the Sunshine Ordinance for a majority of the policy body to attend a purely social or ceremonial occasion (if no city business is discussed) [Section 2-91.1 (b)(4)(C)] and the Brown Act does not forbid such attendance (Gov. Code, section 54952.2 (c)(5)), the Sunshine Ordinance also adds the word "recreational" to describe "occasion" and prohibits a majority from attending social, recreational or ceremonial occasions when such meetings are conducted in venues, such as restaurants, where public access is permitted only if consideration is provided. Similar language does not appear in the Brown Act.
Section 2-91.1 could be revised to have its language and structure more consistent with the Brown Act but the section (and the Ordinance generally) is slightly more restrictive than the Brown Act itself. Staff seeks direction from the Commission on this issue.
If the Commission has any questions concerning these items, please let staff know.
Recommendation
If the Commission is satisfied that the Ordinance amendments are now in an acceptable form, the Commission may recommend to the City Council that the amendments be adopted.
Respectfully submitted,
Janet Kern, City Attorney
Michael Roush, Interim Assistant City Attorney
Attachments:
1. Redlined Version of the Sunshine Ordinance
2. Current Sunshine Ordinance
3. February 2, 2015 Staff Report, w/o attachments
4. October 6, 2014 Staff Report, w/o attachments