Title
Introduction of Ordinance Amending the Alameda Municipal Code by Amending, Adding and Deleting Sections of Article VIII (Sunshine Ordinance) of Chapter II (Administration) Concerning Local Standards to Ensure Public Access to Public Meetings and Public Records. (City Attorney 2310)
Body
To: Honorable Mayor and Members of the City Council
From: Janet C. Kern, City Attorney
Re: Introduction of Ordinance Amending the Alameda Municipal Code by Amending, Adding and Deleting Sections of Article VIII (Sunshine Ordinance) of Chapter II (Administration) Concerning Local Standards to Ensure Public Access to Public Meetings and Public Records
BACKGROUND
In 2014 and 2015, the Open Government Commission considered a number of amendments to the City’s Sunshine Ordinance. In March 2015, the Commission recommended to the City 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 changes to these sections as well as to 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, are reflected 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).
Staff revised the relevant sections of the Ordinance and presented the amendments to the Commission at its February 1, 2016 meeting. Unapproved minutes from that meeting are attached. Attached is a draft Ordinance that incorporates the amendments Council found acceptable in October 2015, along with the amendments recommended by the Commission.
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. In October 2015, Council agreed with the Commission that staff’s proposal was too restrictive and, with input from Commissioner Foreman (who stated for the record that he was speaking solely on his own behalf and not on behalf of the Commission), directed staff to have the Commission consider this item further.
The Commission has distilled this issue into one sentence: “In order to insure that all communications to Policy Board members presented in a public meeting are shared with the public, Policy Board members are prohibited from communicating electronically with others during public meetings that pertain to the business thereof.” Staff believes this adequately addresses the concern that the use of electronic communication devices during meetings will be prohibited if those communications are about the subject matter that the City Council is discussing. It also does not purport to prohibit the incidental use of such devices for innocuous purposes such as accessing a calendar, using a calculator or informing a family member about the length of a meeting.
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 members 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. It has been deleted.
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’s interest to hold a meeting elsewhere.
The proposed amendment to Section 2-91.14, as recommended by the Commission, provides that flexibility, notwithstanding that the proceedings, while audio and video recorded, would not be live streamed. The Commission also added to this section that all recordings would be archived indefinitely in digital form on the City’s website 72 hours after the meeting.
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 had 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.
In addition, under the Public Records Act, a public agency may take longer to provide the documents in “unusual circumstances”. The Commission felt it was important to identify in the ordinance what that term means and that has been added to Section 2-92.2 (c).
FINANCIAL IMPACT
Introduction (and subsequent adoption) of this Ordinance will have no impact on the City’s General Fund.
MUNICIPAL CODE/POLICY DOCUMENT CROSS REFERENCE
The attached Ordinance, if adopted, amends the Municipal Code. Its intent is to strengthen and clarify the City’s goal to have its government be transparent and to ensure there is continued public access to meetings and public records.
ENVIRONMENTAL REVIEW
Introduction (and subsequent adoption) of this Ordinance is not subject to environmental review in that it is not a “project” for purposes of the California Environmental Quality Act (CEQA). The Ordinance is an organizational or administrative activity of the City that will not result in direct or indirect physical changes in the environment. CEQA Guidelines, Section 15378 subd. (b)(5).
RECOMMENDATION
As recommended by the Open Government Commission, introduce the attached Ordinance amending the Sunshine Ordinance concerning local standards to ensure public access to public meetings and public records.
Respectfully submitted,
Janet Kern, City Attorney
Financial Impact section reviewed
Elena Adair, Finance Director
Exhibits:
1. Redline changes to the Sunshine Ordinance
2. Current Sunshine Ordinance
3. City Council agenda report 2015-2034 from October 6, 2015 and minutes thereof
4. Open Government Commission unapproved minutes of February 1, 2016