Title
Hearing on the Sunshine Ordinance Complaint Filed on October 30, 2018 and the November 14, 2018 Open Government Commission Hearing and Decision, Including Scope of Legal Authority of the Open Government Commission to Impose Certain Penalties under the Sunshine Ordinance and Potential Next Steps.
Body
PLEASE SEE ATTACHED REVISED 3-A. STAFF REPORT
To: Honorable Chair Members of the Open Government Commission
From: Michael H. Roush, Interim City Attorney
QUESTION(S)
Whether the Open Government Commission has the legal authority under Section 2-93.8 (Penalties), subsection (a), of the Alameda Municipal Code (“AMC”) to order the City Council to renotice the first reading of an ordinance based on a finding that the agenda description violated the City’s Sunshine Ordinance?
ANSWER(S)
No. The Open Government Commission (“Commission”) does not have the authority to invalidate a final legislative act based on a finding that the agenda description for the first reading violates the City’s Sunshine Ordinance by requiring a new first reading of an ordinance, given that the Council has already adopted such an ordinance at a duly noticed regular meeting. To hold otherwise would be inconsistent with the Charter and the organic local statute that created the Commission, in addition to constituting an improper delegation of the Council’s authority to legislate locally.
At the outset, this Office recognizes that although this issue may have been avoided if the Commission had had the benefit of this memo at or prior to the hearing on the complaint. That, however, did not occur for various reasons including (a) prior to Ms. Chen’s complaint, the Commission had not (to our knowledge) ever heard a complaint that called for the null and void remedy, (b) our Office did not believe (and continues not to believe) that a violation of the Sunshine Ordinance occurred at the Council’s October 16 meeting, and (c) the issue demanded a thorough and thoughtful legal analysis which time did not permit. For those reason, we (and I in particular) sincerely apologize.
Accordingly, we are returning this item to the Commission on December 17, requesting that it re-evaluate its decision to ensure that it complies with local law. To that end, we are attaching two draft decisions for the Commission to consider, Attachments A and B. Attachment A is generally the same as the proposed Decision provided to the Commission previously but with updated information as to Background, etc., and finding no violation of the Sunshine Ordinance. Attachment B would track the Commission’s earlier decision but, for the reasons set forth herein, would be framed as a recommendation to the City Council. If the Commission adopts Attachment A (with whatever wordsmithing changes it deems necessary), staff intends to place an item on an upcoming Council agenda requesting direction as to proposed amendments to the Sunshine Ordinance consistent with this memo. If the Commission adopts Attachment B, staff will place an item on an upcoming Council agenda for direction in order to carry out the Commission’s decision as well as requesting direction as to proposed amendments to the Sunshine Ordinance consistent with this memo.
BACKGROUND
At its May 18, 2018 goal-setting work session, City Council directed staff to report to Council on a number of issues concerning cannabis regulations. Staff prepared the requested analysis in a semi-annual report for Council consideration at its July 24, 2018 meeting. At that meeting, the Council directed staff to prepare the required ordinances to amend the Zoning Code and the Cannabis Business Regulatory Ordinance.
On October 16, 2018, after a public hearing on the Planning Board’s recommendations, the Council introduced two ordinances amending the Cannabis Business Regulatory Ordinance and the Land Use Ordinance (Ordinance Nos. 3227 and 3228, respectively). In relevant part, at that meeting, the Council introduced an ordinance that modified its original direction to staff from including the addition of two “delivery-only” dispensaries (closed to the public) to including the addition of two “delivery-required” dispensaries (open to the public). The Council then voted 3-2 to approve those ordinances for final passage, after these items were removed from the consent calendar to take further public comment, at the Council’s regular meeting on November 7, 2018. Those Ordinances are now in effect.
On October 30, 2018, a member of the public filed a complaint with the Commission alleging the Council’s modification effectively increased the cap for full-service dispensaries from two to four. After conducting a hearing on the matter on November 14, 2018, Commission decided to sustain the complaint, and, in order to give force and effect to the penalty provisions of the Sunshine Ordinance that provides for a “null and void” remedy, ordered that the Council “re-notice” the October 16, 2018 agenda concerning the two cannabis ordinances. That decision effectively called for a new first reading of such ordinances, so that interested parties would have the opportunity to be heard at a new public hearing after which the Council would consider re-introducing the two ordinances.
For the reasons set forth below, we continue to believe that there was no violation of the Sunshine Ordinance concerning the Council’s October 16, 2018 agenda concerning the cannabis ordinances. But if the Commission continues to conclude otherwise, we are providing this memo to the Commission on an issue of first impression to clarify the jurisdictional limits of the Commission’s legal authority to impose penalties under the City’s Sunshine Ordinance.
DISCUSSION
The Commission’s decision and order that a Council adopted ordinance is null and void implicate a number of provisions of local law, but in particular, the City’s Sunshine Ordinance, the local organic statute that created and sets forth the duties of the Commission, and the City’s Charter.
Sunshine Ordinance
The City adopted the Sunshine Ordinance (Ordinance No. 3036), codified at §§ 2-90 of the Alameda Municipal Code (“AMC”) et seq., on November 2, 2011. Under the Sunshine Ordinance, the Commission is the primary regulatory and enforcement body of the Sunshine Ordinance and its various provisions. See § 2-93.1 (Primary Regulatory and Enforcement Body).
In relevant part, one such provision, section 2-91.5 (Agenda Requirements; Regular Meetings), requires that the City publish regular meeting agendas twelve (12) days before a regular meeting of the City Council. See § 2-91.5(a). Each item of business to be transacted or discussed must contain a “meaningful description”. See id. A meaningful description is defined to mean one that is clear yet concise:
“A description is meaningful if it is sufficiently clear and specific to alert a person of average intelligence and education whose interests are affected by the item that he or she may have reason to attend the meeting or seek more information on the item. The description should be brief, concise and written in plain, easily understood English. It shall refer to any explanatory documents that have been provided to the policy body in connection with an agenda item, such as correspondence or reports, and such documents shall be posted with the agenda or, if such documents are of more than one (1) page in length, made available for public inspection and copying at a location indicated on the agenda during normal office hours.” See id. at subsection (b).
The foregoing should be viewed in light of the goal of the Sunshine Ordinance, which is “to ensure that the citizens of Alameda have timely access to information, opportunities to address the various legislative bodies prior to decisions being made, and easy and timely access to all public records”. See § 2-90.1 (Goal).
The enforcement provisions of the City’s Sunshine Ordinance require that any violations of its provisions must be asserted within 15 days of the challenged action. See § 2-93.2(a). Upon filing of a complaint, the City must schedule a hearing within 30 days. See id. at subsection (b). At the hearing, after taking testimony from the complainant and the City, the Commission is to render a formal written decision on the matter. Id.
If the Commission finds a violation of certain provisions of the Sunshine Ordinance, it may impose penalties. At issue in this opinion is the language of Section 2-93.8. That section states that if the Commission finds a violation of section 2-91, it “may order an action of a body null and void and/or may issue an order to correct or cure.” See 2-93.8 (Penalties), subsection (a). It may also impose a fine on the City. Id.
Article II, Section 2-22 (Open Government Commission)
Under Section 2-22 (Open Government Commission) of the AMC (Ordinance No. 3042, adopted January 4, 2012), the City constituted the Commission by ordinance to “advise the City Council on the administration of the Sunshine Ordinance, and hear and decide complaints of violations of the Sunshine Ordinance.” See § 2-22.1 (Commission Created; Purpose). The Commission’s duties are expressly limited to the following:
a. Hear and decide complaints by any person concerning alleged non-compliance with the Sunshine Ordinance;
b. Advise City Council on appropriate ways to implement the Sunshine Ordinance;
c. Develop goals to ensure practical and timely implementation of the Sunshine Ordinance;
d. Report in writing to the City Council at least once annually on any practical or policy problems encountered in the administration of the Sunshine Ordinance;
e. From time to time as the Commission sees fit, issue public reports evaluating compliance with the Sunshine Ordinance by the City or any Department, Office, or Official thereof.
f. Consider ways to informally resolve those complaints and make recommendations to the Council regarding such complaints;
g. The Commission shall approve by-laws specifying a general schedule for meetings, requirements for attendance by its members, and procedures and criteria for removing members for non-attendance as well as all enforcement petition and complaint procedures. The schedule shall provide for monthly meetings. A meeting shall be canceled if there is no matter pending.
h. The commission will meet at least semi-annually or as needed based on the receipt of an alleged complaint of violation of this ordinance. Members of the Commission shall serve without compensation.
City Charter
Under the City Charter, the Council has all powers of the City and all powers vested in city councils, except those powers reserved to the People or delegated to other officers or boards by the Charter. See Article III (City Council), Sec. 3-1.
In relevant part, the City’s Charter outlines the process for passing local legislation (ordinances), the authority of which is vested in the Council itself. All public regulations must be adopted by ordinance. See id., at Sec. 3-10. Each ordinance requires a first and second “reading”. At the first reading, the ordinance is introduced and approved by the Council. Final adoption of an ordinance must happen at a subsequent meeting more than five days later (sometimes referred to the “second reading”). See id., at Sec. 3-11. Before final adoption, the public is given notice of the “date, time and place of hearing (sic) on its final adoption.” See id., at Sec. 3-13. All ordinances adopted by the Council (or majority thereof) shall become effective thirty days after “final passage,” with exceptions that are not relevant here. See id., at Sec. 3-12. The Charter does not delegate the Council’s power to legislate locally, nor is it abridged in any way. Ordinarily, the thirty-day period is reserved for the referendum process (the customary path for challenging an ordinance granted final passage) to conclude.
Council’s Action Concerning Cannabis Ordinances
On October 4, 2018, the City published the agenda description for the agenda item at issue here (Item 6-G) for the Council’s October 16, 2018 regular meeting. The City prepared the agenda description based on Council direction received on July 24, 2018, and it reads in its entirety as follows:
“Public Hearing to Consider Introduction of Ordinance Amending the Alameda Municipal Code by Amending Section 30-10 (Cannabis) to (1) Add Cannabis Retail Businesses as Conditionally Permitted Uses in the C-1, Neighborhood Business and C-M, Commercial-Manufacturing Zoning Districts; (2) Add Two Delivery-Only Cannabis Retail Businesses as a Conditionally Permitted Use in the C-M, Commercial-Manufacturing Zoning District; (3) Amend Certain Portions of the Zoning Code to Enable Cannabis Retail Businesses to Dispense Non-Medicinal or “Adult Use” Cannabis; and (4) Amend Certain Portions of the Zoning Code to Eliminate the Dispersion Requirement for Delivery-Only Cannabis Businesses;
Introduction of Ordinance Amending the Alameda Municipal Code by Amending Article XVI (Cannabis Businesses) of Chapter VI (Businesses, Occupations and Industries) to (1) Eliminate the Cap on Testing Laboratories; (2) Add Two Delivery-Only Dispensaries; (3) Allow Adult Use; (4) Create a Two-Tier Buffer Zone from Sensitive Uses for Dispensaries and Cultivation Businesses; and (5) Make Other Clarifying Revisions; and
Recommendation to Confirm Continued Use of Request for Proposal (RFP) Process to Administer Cannabis Retail Dispensary Business Operators’ Permit Selection Process. (Economic Development)”
(Double Underline Added.)
At the October 16 meeting, prior to introducing the ordinances on first reading, the Council instead replaced the words “delivery only” with “delivery required,” which changed the Council’s direction in two respects: (1) the two additional dispensaries would be open to the public, but (2) must offer a cannabis delivery service.
Complainant’s Complaint
On October 30, Ms. Serena Chen filed a complaint with the Commission alleging a violation of section 2-91.5 (Agenda Requirements; Regular Meetings) of the AMC. In sum, Ms. Chen alleged that the agenda description was inadequate because it led her to believe that she did not need to appear because the Council was considering adding two dispensaries that were closed to the public, not full-service, storefront dispensaries. The City Clerk scheduled the Commission hearing for November 14, 2018, one week after the Council granted final passage to the ordinances at issue here on second reading (November 7, 2018).
November 7, 2018 Regular Council Meeting
Prior to the Commission hearing, the City Attorney’s Office emailed Ms. Chen the day she filed her complaint to apprise that she still could address the Council on the cannabis ordinances at the Council’s November 7, 2018 meeting. She was informed she had the right to appear and speak publicly or submit written comments in lieu of an appearance. On November 7, 2018, when the Council considered final adoption of the two cannabis ordinances at issue here (Ordinance Nos. 3227 and 3228), two members of the public, including Ms. Chen, offered public comment. Ms. Chen also submitted written comments to the Council on the Ordinances.
Before the Council adopted the two ordinances on second reading, the Council asked staff to address some concerns raised by the public commenters, after which the Council adopted the two cannabis ordinances (Ordinance Nos. 3227 and 3228).
Commission’s Deliberation and Decision
On November 14, 2018, the Commission heard Ms. Chen’s complaint. After hearing from Ms. Chen and the City, the Commission began deliberation. During deliberation, the Commission was instructed on the applicable law and the implications of finding a violation. The Commission ultimately voted to sustain the complaint and found a violation of the Sunshine Ordinance’s provisions that require a meaningful description. The Commission, then, granted-for the first time-the null-and-void remedy, by attempting to direct the Council to set aside the granting of final passage of the two ordinances and ordering the Council to renotice the introduction of the two ordinances in question on first reading.
Legal Analysis
The Commission’s decision to sustain the complaint was wrongly decided for two principal reasons: (1) the City’s agenda title provided a “meaningful description” within the meaning of the Sunshine Ordinance; and (2) even if the Commission disagrees, it does not have legal authority to order a new first reading under the Sunshine Ordinance via the null-and-void remedy because it would amount to an improper delegation of legislative power. A more harmonious reading of the Commission’s jurisdictional authority, while giving its decision and order the intended effect, would be for the Commission to recommend the Council (a) re-notice the first reading of the two ordinances in question (Ordinance Nos. 3227 and 3228), using the agenda title from the Council’s November 7 meeting concerning the item and (b) repeal the two Ordinances in question, in order to give effect to the Commission’s decision
1. The City’s Description of the Agenda Item Considered by Council Complied with the City’s Sunshine Ordinance.
The City’s Sunshine Ordinance requires that the City provide members of the public with a meaningful description of an agenda item. As noted above, “meaningful” is defined under the Ordinance to mean sufficiently clear and concise to inform an interested party that they may have a reason to either attend the meeting or request further information.
The City’s agenda description concerning the introduction of the cannabis ordinances on first reading met this standard:
Add Two Delivery-Only Cannabis Retail Businesses as a Conditionally Permitted Use in the C-M, Commercial-Manufacturing Zoning District
The City Attorney’s Office has opined that, based on the foregoing agenda description, members of the public were informed that the Council would consider a proposal to increase the number of “Cannabis Retail Businesses” by two. The Council was well within its authority to convert the requirement that these businesses be “delivery-only” to “delivery-required”. Although the distinction between the two is that the latter is open to the public, whereas the former is not, the State does not recognize such a distinction when the cannabis business in question is issued a permit from the Bureau of Cannabis Control. Moreover, the words “open to the public” or “closed to the public” were not part of the agenda description (although it was part of the agenda report) and Ms. Chen’s complaint does not take issue with this omission. This is significant because the Sunshine Ordinance provision in question only governs the agenda description, not the agenda report.
Additionally, Ms. Chen has suffered no real prejudice. She was given an opportunity, and did, speak and submit written comments on the agenda item at issue before the Council took final action, as did another member of the public, at the Council’s November 7 meeting.
2. The Commission’s Authority to Order Council Action Null and Void is an Impermissible Delegation of Legislative Power.
Leaving aside the issue of whether the City committed a Sunshine Ordinance violation, and assuming one exists, the Commission’s authority to order an action of the City Council null and void exceeds the permissible bounds of Council’s delegation authority.
A legislative body such as a city council may properly delegate powers to an administrative body such as the Commission if the legislative body retains control over fundamental policy decisions and there are adequate safeguards. This limitation on the power to delegate legislative authority even extends to quasi-legislative power, including the power to merely suspend law.
To our knowledge, for the first time since the Sunshine Ordinance’s adoption, the Commission ordered a first reading of two adopted ordinances null and void. The Commission does not have jurisdiction to annul a final Council, legislative action as such would constitute an impermissible encroachment on the Council’s power to repeal or grant final passage of any ordinance.
First, when viewed in context, the Sunshine Ordinance’s null-and-void remedy is without precedent. A survey of fourteen local jurisdictions that have adopted “Sunshine” ordinances did not reveal a single local jurisdiction with a null-and-void remedy. One such jurisdiction has clarified that violations of its ordinance do not invalidate actions to approve ordinances.
Additionally, as applied here, the null and void remedy is at odds with the Brown Act. Under the Brown Act, the null-and-void remedy is available in a civil action, but it is typically a judicial determination reserved for courts of law. Even in that context, there are exceptions to use of this extraordinary remedy. For example, the null-and-void remedy is not appropriate where the City substantially complied with the Brown Act. See Government Code § 54960.1(d)(1). Similarly, the null-and-void remedy may not be granted where the action taken is “in connection with the collection of any tax”. See id., at subsection (d)(4). However, the Sunshine Ordinance offers no guidelines on the proper granting of, or even limitations on, this extraordinary remedy.
Second, and most significantly, is the null-and-void remedy cannot be applied to the legislative action of a City Council without conflicting with certain provisions of the City’s Charter. Under the City’s Charter, the Council is vested with all powers of the City and powers vested in city councils. See Article III, Sec. 3-1. Chief among these powers is the power to legislate locally. To be sure, the Council also has the authority to vest in officers or boards “powers and duties additional to those set forth in the Charter.” See id., at Sec. 3-3. However, use of the null-and-void remedy to effectively repeal an ordinance contravenes the Charter’s provisions related to local lawmaking. Nowhere in the Charter is a subordinate body delegated the power to halt ordinances granted final passage by the Council. Built into the local legislative process, and enshrined in the Charter, is the ability of members of the public to be heard, no fewer than two times at two different open and public meetings. Separate and apart from this process, under State Elections Law, anyone may challenge an ordinance granted final passage by referendum, but must do so in accordance with applicable law, including garnering the requisite number of signatures. Unless cabined in some way, the null-and-void remedy is arguably an end-run around that process as well.
Third, the null-and-void remedy contradicts the local organic statute that formed the Commission and governs its continued existence. Although the Commission has the authority to hear and decide Sunshine Complaints (§ 2-22.4(a) of the AMC), it is also tasked with considering ways to informally resolve these disputes and to make recommendations to the Council concerning them (§ 2-22.4(f) of the AMC). At a minimum, the Sunshine Ordinance lacks guidelines for assisting the Commission to decide whether to make a recommendation or use the extraordinary null-and-void remedy; indeed, the Commission’s express duty to make recommendations concerning complaints under § 2-22.4(f) of the AMC contradicts their putative authorization to independently order actions of the Council null and void.
Fourth, and finally, the null-and-void remedy is an improper delegation of quasi-legislative power under common law because it gives the Commission the power to suspend (or effectively nullify) local law, a power that if left unchecked remains limitless and unbounded. It would apply even if the Council substantially complied with the noticing provisions that are applicable here, but most problematic, however, is it would even apply if the City had committed a mere technical violation. For example, if the City had failed to append an exhibit mentioned in an agenda report (see § 2-91.5(e)), the Commission could render null and void the Council’s action to adopt an ordinance discussed by that agenda report. This is true not only because the null-and-void remedy applies to any violation of section 2-91.5 of the AMC, but because the Sunshine Ordinance does not contain any safeguards or limitations on this extraordinary remedy.
RECOMMENDATION
We continue to recommend that the Commission find no violation of the Sunshine Ordinance and adopt the decision referenced as Attachment A.
If the Commission concludes otherwise, the appropriate course of action would be for the Commission’s decision and order be written as set forth in Attachment B. The outcome of Attachment B gives effect to Commission’s conclusion but imposes a remedy harmonious with its jurisdiction and the Council’s authority under the Charter. That is, the Commission’s decision and order would be to recommend that (a) the Council consider re-introducing the two ordinances following a noticed public hearing, which would allow members of the public another opportunity to be heard on the ordinances, (b) the agenda title for these items track the agenda title that appeared on the Council’s November 7 agenda concerning the items because that agenda title satisfied Sections 2-90.1 and 2-91.5, and (c) Ordinances Nos. 3227 and 3228 be repealed, even though if the ordinances were re-introduced and subsequently adopted, there would be no substantive change to either Ordinance. The Commission’s recommendation, if followed, would therefore allow members of the public to be heard but would also carry out the intent of the Commission that the ordinances in question be repealed.
We look forward to discussing this item with the Commission on December 17.
Footnotes:
1 The only exception is not relevant here: an urgency ordinance. See id., at Sec. 3-12.
2 For instance, if the Council takes no action following the Commission’s decision, the cannabis ordinances adopted by the Council at its regular meeting on November 7, 2018 would not take effect under the Commission’s reading of the null-and-void remedy.