Title
Consider Further Revisions to the Sunshine Ordinance Amendments
Body
To: Chair Aguilar and Members of the Open Government Commission
From: Janet Kern, City Attorney
Michael Roush, Interim Assistant City Attorney
Subject: Consideration of Further Revisions to Amendments to the Sunshine Ordinance
Summary
In 2014 and 2015, the Open Government Commission considered a number of amendments to the City’s Sunshine Ordinance and in March 2015, the Commission recommended to the City Council a number of amendments. The City Council considered those amendments in October 2015, accepted most of the recommended amendments, had concerns about certain of the amendments and expressed an interest in additional amendments. Accordingly, rather than adopt amendments to the Ordinance piecemeal, the Council directed staff to revise the draft Ordinance and present comprehensive amendments to the Commission for its consideration and recommendation. This agenda report and draft Ordinance carries out that Council direction.
Background
As stated above, the Commission considered various amendments to the Sunshine Ordinance at three separate meetings in 2014 and 2015. The Commission recommended to the Council a number of amendments, most significantly concerning whether (1)Policy Bodies should use electronic communication devices at public meetings, (2) the definition of “meeting” and “Policy Body” under the Ordinance needed clarification, (3) a Policy Body member should be allowed to submit comments on matters on the Body’s agenda when the member was not present at the meeting, (4) the Ordinance should address whether members of Policy Bodies or public employees may make public comments or express opinions about matters of public concern and (5) the frequency of training on the Ordinance should be changed.
The Council considered the Commission’s recommended these and other, less substantive, changes to the Ordinance on October 6, 2015. The Council agenda report and the minutes from that meeting are attached. Except as set forth below, the Council agreed with the Commission’s recommendations and those amendments will not be discussed in this agenda report. Those amendments, however, along with the explanation for those changes, are set forth in the attached draft Ordinance.
The areas the Council wanted the Commission to consider further were items (1), (3) and (4), above, as well as proposed changes to Sections 2-91.14 (whether, notwithstanding the public interest in doing so, the City Council should not meet in facilities where live streaming of the meeting is not possible) and to Section 2-92.2 (whether to conform the Ordinance to the requirements of the California Public Records Act concerning the time in which to respond to requests for public records).
Discussion
Use of Electronic Communication Devices
Originally staff had recommended not only that this subject matter be moved from the “Findings” section of the Ordinance to a substantive section but also that there should be a bright line rule that the use of electronic communication devices at public meetings, other than for the purpose of a member’s accessing agenda materials that are on a member’s iPad or laptop computer, would be prohibited. The Commission felt staff’s proposal did not reflect today’s technological reality and members should be able to use these devices to access information relevant to the subject matter at hand.
Council agreed with the Commission that staff’s proposal was too restrictive and, with input from Commissioner Forman (who stated for the record that he was speaking solely on his own behalf and not on behalf of the Commission), directed staff to revise this section.
Staff has done so by dividing the use of electronic communication devices into three parts. See Section 2-91.4 (h). When the Policy Body is considering a legislative matter, i.e., matters of general application such as a General Plan amendment, the use of these devices would be strongly discouraged but not prohibited. When the Policy Body is considering a quasi-judicial matter, i.e., applying regulations to particular facts and/or when due process issues are at play, such as a conditional use permit, the use of electronic communication devices would be prohibited, other than for accessing agenda materials on member’s iPad or laptop computer. Notwithstanding the above, such devices may be used at any time during meetings for innocuous purposes such as using a calculator or communicating with a family member about an item unrelated to City business, for example, what time the meeting is expected to end.
The reality is that this section will be largely self-policing in that it will be difficult for a member of the public to know if a member is using his or her cell phone or iPad for an innocuous purpose or not. Presumably, however, policy board members will adhere to what the Ordinance provides and act accordingly.
Submitting Comments When a Policy Body Member is Not Present at a Meeting
The Commission and staff had recommended policy body members who were unable to attend a public meeting should be prohibited from submitting comments on items on the agenda for that meeting because a member should make a decision only after considering all the comments of the public, other board members and staff. By a member’s submitting comments (whether pro, con or neutral) before having considered these comments could call into question the overall fairness of the process.
City Council did not agree and directed that prohibition (it was set forth in Section 2-91.6 (e)) be deleted and the attached draft Ordinance has deleted that subsection.
Requiring All City Council Meetings to be Live Streamed
Whether all City Council meetings must be live streamed is a new issue. Currently the Sunshine Ordinance requires all meetings to be audio and video recorded and, where technologically possible, to be live streamed. Because it is technologically possible to live stream meetings only in the Council Chambers, taken literally this Ordinance precludes the City Council from conducting its meeting in another location in the City, even though because of an expected large turnout of the community, it would be in the public interest to hold a meeting elsewhere.
The proposed amendment to Section 2-91.14 provides that flexibility, notwithstanding that the proceedings, while audio and video recorded, would not be live streamed.
Public Comments by Members of Policy Bodies/Opinions of Public Concern
The Ordinance in one section provides that members of every policy body retains their full constitutional right to comment on governmental actions, including those of the member’s own policy body. Section 2-91.17. Another section of the Ordinance provides that City employees and advisory board members shall not be disciplined or discouraged from expressing personal opinions on matters of public concern so long as the opinion does not purport to represent the opinion of the City, the member’s policy body or the employee’s Department. Section 2-92.6.
In March 2015 the Commission questioned why either of these two sections needed to be in the Ordinance but if the first section were to remain, it should reflect that the Charter empowers the City Council to remove advisory board members. Staff had also recommended that this section provide that advisory boards should not take formal action contradicting a formal policy or position of the City Council. The Commission recommended that sentence not be included. City Council agreed with the Commission on both counts and Section 2-91.17 has been so amended.
As to the other section, the Commission in March 2015 felt it was largely redundant as to advisory board members and that issues concerning disciplining public employees would be better served in personnel rules or Memoranda of Understanding. The City Council agreed and this section (Section 2-92.6) has been deleted.
Responding to Requests for Public Records
Under the California Public Records Act (Government Code, section 6250 et seq.), a public agency is to respond to a request for public records within 10 days but in unusual circumstances the time to respond may be extended for an additional 14 days. The Act does not require an immediate response to the requester as to how, when or by whom the information will be provided. The current Ordinance, by contrast, not only does not provide for an extension of time in which to respond to requests for public records but also requires the person to whom the request was directed to reply within three days with either the information requested or explaining how, when and by whom the information will be provided.
Most requests for public records are routine in nature, are sent to the City Clerk, and are responded to as provided by the Ordinance. Other requests, however, are voluminous in nature, sometimes must be reviewed by the City Attorney’s Office to determine if some of the documents are exempt from disclosure, or are sent to elected officials or administrative employees who may not realize that a response to the request must be made within three days. In those situations, although the requester receives the information, the failure to respond to the request within three day as to how, when and by whom the information will be provided, or the failure to provide the information within the 10 day time frame, could lead to a technical violation of the Ordinance.
To prevent that type of technical violation of the Ordinance, City Council recommended that Section 2-92.2 be amended so that it conforms to the Public Records Act in order to provide flexibility to City staff when the response to a request will take more than 10 days and to eliminate the need for a response within three days as to how, when and by whom the information will be provided as that requirement poses a trap for the unwary and adds little, if any, value to the requester.
Recommendation
Staff recommends the Open Government Commission consider the attached Ordinance amending the Sunshine Ordinance and then recommend to the City Council that the Ordinance be adopted.
Respectfully submitted,
Janet Kern, City Attorney
Michael Roush, Interim Assistant City Attorney