Title
Introduction of Ordinance Amending the Alameda Municipal Code by Amending Various Provisions of Article VIII (Sunshine Ordinance) of Chapter II (Administration), including Provisions Related to Public Access to Public Meetings and Public Records, and Sunshine Ordinance Enforcement, Including Recommendations to Eliminate the “Null and Void” or “Order to Cure” Remedies and Replace Such Remedies With the Authority for the Open Government Commission to Issue Recommendations to Cure and Correct. (City Manager/City Attorney/City Clerk)
Body
To: Honorable Mayor and Members of the City Council
SUMMARY
It has been over a decade since the City of Alameda (City) started a process, which culminated in the adoption of the Sunshine Ordinance (Ordinance). Many of its substantive provisions have not been updated since that time. The proposed ordinance would amend certain provisions of the Ordinance, including those related to access to public meetings, access to public records, and enforcement of its provisions. The most notable amendment eliminates the “null and void” or “order to cure” remedies, instead authorizing the Open Government Commission (Commission) to issue recommendations to “cure and correct.”
The proposed amendments were presented to the Commission, on December 18, 2019, to solicit the Commission’s input and recommendations. The Commission generally agreed with the recommendations, except for the proposed elimination of the “null and void” or “order to cure” remedies. Given the clear mandate of court decisions that only elected officials have the authority to render legislative matters “null and void” or to cure violations of State law, and despite the Commission’s thoughtful consideration, staff continues to recommend the repeal of the Commission’s authority concerning the “null and void” and “order to cure” remedies.
BACKGROUND
In April 2009, the City initiated efforts to adopt a local open government ordinance (or “sunshine” ordinance) for the City. In February 2010, the City appointed the Sunshine Task Force comprising several members of the public and a facilitator. Its charge was to work with City staff to research, draft, and recommend a sunshine ordinance to the City Council. The stated goal of the Ordinance was to help ensure that the public receives timely notice of City Hall meetings and activities, and timely access to public records and information. On November 1, 2011, the 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.
Many of the substantive provisions of the Ordinance have not been amended since its adoption. The Ordinance covers two principal areas: access to public meetings and access to public records. The Ordinance also has a section devoted to its enforcement. The amendments recommended below cover all three areas. The proposed ordinance that would amend the City’s Sunshine Ordinance is attached as Exhibit 1.
The Ordinance is primarily enforced by the Commission, formed pursuant to Section 2-22 (“Open Government Commission”) of Article II (“Boards and Commissions”) of Chapter II (Administration) of the AMC. No amendments are recommended to that portion of the AMC.
On December 18, 2019, the City Attorney’s Office, in coordination with the City Manager’s Office and the Clerk’s Office, presented proposed amendments to the Ordinance at a special meeting of the Commission. The Commission formally provided its input and recommendations concerning the proposed amendments at that special meeting. The Commission expressed support for most of the proposed amendments, with the exception of the proposed amendment to the Penalties section. The Staff Report to the Commission, outlining all proposed changes, is attached as Exhibit 2.
DISCUSSION
A summary of each of the proposed changes is included below in this report. Staff has also attached the agenda report to the Commission as Exhibit 2. In particular, this report provides additional analysis on the topic of Penalties, where staff and the Commission did not come to agreement.
Section 2-91.1 (“Definitions”)
Many of the Ordinance’s requirements governing access to meetings are imposed on certain “policy bodies” (e.g., posting the agenda at least twelve or seven days prior to the meeting). The Ordinance currently defines “policy body” in a manner that does not comport with the formation of ad hoc bodies, which by their nature are not standing (permanent) committees and have a limited charge or duration. Staff is recommending that the definitions of “passive meeting body” and “policy body” be amended to reflect the way ad hoc committees are treated under the Brown Act and common law and the City’s custom and practice of forming ad hoc meeting bodies.
The Commission agreed with staff’s recommendation.
Section 2-91.5 (“Agenda Requirements” “Regular Meetings”)
The Ordinance requires all documents “material” to an agenda item accompany the agenda. The recommended amendment would clarify that only documents material to the matter anticipated for discussion or the proposed action are required to accompany the agenda.
The Commission agreed with staff’s recommendation.
Section 2-91.12 (“Disclosure of Closed Session Discussions and Actions”)
For closed session items, the proposed amendment grants each Councilmember the option of making a brief statement concerning the Councilmember’s vote or abstention.
The Commission agreed with staff’s recommendation.
Section 2-91.15 (“Public Testimony”)
Staff recommends amending this section in two principal ways.
First, in part, this section states that all staff reports, presentations, comments from interested parties, and council questions should be made/presented prior to public comment. The purpose is to “provide the public with the fullest opportunity for public input before the board, commission or council”. This requirement is not intended to bar subsequent questions or comments by the City Council following public comment. The proposed amendment makes this position more explicit.
Second, the section states that multiple speakers may speak through a “spokesperson” who is limited to fifteen minutes. However, the language concerning a “spokesperson” is no longer consistent with Resolution No. 15382, which prohibits the ceding of time by one speaker to a different speaker. Staff recommends repealing the section. If the City Council is agreeable to allowing appellants and project applicants additional time, which is both commonly authorized and recommended by staff, staff will timely return to the City Council with a Council Rule amendment to address this issue.
The Commission agreed with staff’s recommendation.
Section 2-92.2 (“Responsibilities of Staff”)
Subsection c. of this Section states that all “Custodians of Record” shall within ten (10) days after receiving a records request to “comply with such request”. This language is at odds with what the California Public Records Act requires and does not reflect the practical difficulties of immediate compliance within that timeframe. The proposed amendment would make clear that all that is required is a response within that timeframe. Similarly, this amendment would ensure consistency with other portions of the Ordinance that allow for production of records within a shorter time frame where such records were “previously distributed to the public” (2-91.10).
The Commission agreed with staff’s recommendation.
Section 2-92.4 (“Notices and Posting of Information”)
This Section requires certain documents be posted to the City’s website, including “Draft and Final Environmental Impact Reports and Environmental Impact Statements”. Moreover, environmental documents may be hosted by the environmental consultant in lieu of the City’s website. However, Subsection c. reiterates that “Large documents, such as…those resulting from compliance with the California Environmental Quality Act (CEQA) and the National Environmental Protection Act (NEPA)” shall be posted to the City’s website, but does not carryforward the ability to host the documents via a consultant’s website. The proposed amendment would harmonize this inconsistency.
The Commission agreed with the recommendation, but asked that a web link to the environmental document be placed on the City’s website and be provided to the public. Staff agrees with the Commission’s recommendation and the proposed Ordinance reflects the Commission’s recommendation.
Section 2-92.9 (“Disclosure Requests”)
This amendment is a conforming change to carryforward the amendment discussed above in Section 2-92.2 (Responsibilities of Staff). If the City Council elects to make the change proposed in that section, this Section 2-92.9 would similarly require an amendment to ensure consistency.
Additionally, a new Section e. is added to clarify that Custodians of Record may respond to a records requests by providing an internet link through which responsive documents can be downloaded by the requestor. Because this has been the City’s practice, staff recommends adopting this clarifying amendment.
The Commission agreed with staff’s recommendation.
Section 2-93.2 (“Complaint Procedures Regarding Alleged Violations of Sunshine Ordinance”)
Two amendments are proposed here. First, an amendment is proposed to memorialize the practice of the City Clerk’s Office’s efforts to consult with the complainant, the City, and members of the Commission prior to setting a hearing date for a Commission hearing. The City Clerk’s Office has experienced difficulty both complying with the short timeframe within which to have the hearing conducted and coordinating with unresponsive complainants to set the hearing. Since hearings on complaints are to be heard in short order (30 days from the date of the complaint), the amendment states that failure to respond to inquiries from the Clerk’s Office to obtain an agreeable hearing date could lead to forfeiture of the hearing request.
Overall, the Commission agreed with this proposed amendment, but asked for an amendment that would emphasize that the City Clerk’s Office would, prior to vacating a request for hearing, take all reasonable steps to ensure contact has been made using reasonably available means of contacting the complainant, including the information the complainant provided in their complaint form. Staff agrees with the Commission’s recommendation and the proposed Ordinance reflects the Commission’s recommendation.
Second, staff recommends amending portions of subsection b. related to the Commission’s written decision on Ordinance complaints. The Ordinance currently states that the Commission will prepare a written decision within 14 days. However, staff has found this unworkable where amendments to staff-prepared draft decisions are proposed by Commission members at the hearing and schedules do not align such that the Commission can meet again within a 14 day period. Since modifications to the final decision are often made by Commission members in an open and public meeting, staff is recommending that the 14 days be lengthened to the sooner of either 30 days or the Commission’s next regular meeting. This will allow for greater Commission and staff coordination on finalizing the written decision.
The Commission agreed with staff’s recommendation.
Section 2-93.7 (“Sunshine Ordinance Supersedes All Other Local Laws”)
This provision states that all local laws inconsistent with the Ordinance are superseded. However, this provision has no application to the Charter, which is amended only by a vote of the electorate. This amendment would clarify this point (i.e., all local laws are superseded except the Charter).
The Commission agreed with staff’s recommendation.
Section 2-93.8 (“Penalties”)
Under the current Ordinance (Section 2-93.8 [Penalties]), the Commission may: (1) order the action of a policy body, such as the City Council, to be “null and void” or issue an “order to cure or correct” for violations of Section 2-91 (“P, and/or (2) order the City to comply for violations of Section 2-92 (“Public Information”).
The proposed amendments would eliminate the “null and void” or “order to cure” remedies and provide that the appropriate remedy for a violation of section 2-91 (Public Access to Meetings and Section 2-92 (“Public Information”) would be for the Commission to issue a recommendation that the policy body “cure and correct.” This amendment would be in-line with the two core duties of the Commission, codified in Section 2-22 (“Open Government Commission”): (a) “[h]ear and decide complaints,” and (b) “make recommendations to the Council regarding such complaints”.
Commission Consideration and Recommendation
On December 18, 2019, the Commission unanimously expressed a strong opposition for the proposed amendment to the Penalties Section.. The Commission indicated that the proposed amendment would reduce the authority and power of the Commission. Thus, the Commission voted against this proposed amendment and further stated that it would not support any similar amendment. In sum, in the Commission’s view, the Penalties section in question should remain unchanged.
Staff’s Position & Recommendation
Notwithstanding the Commission’s thoughtful consideration and input, staff continues to recommend the repeal of the “null and void” and “order to cure” remedies.
In general, a City’s legislative body may not, by ordinance or otherwise, divest itself or its successors of powers vested in it by general law. Thompson v. Bd. of Trustees of City of Alameda (1904) 144 Cal. 281, 283. (“it is obvious that it was beyond the powers of the board by ordinance or otherwise to divest itself…of powers vested in it by the general law for the benefit of its constituents”); see also Briare v. Mathews (1927) 202 Cal. 1, 5 (invalidating a Board-adopted resolution limiting its authority over removal of the police chief granted to it by the Charter).
The City Council’s authority to legislate locally stems from its constitutionally granted charter City powers. See Alameda City Charter §§ 3-1, 3-8; Calif. Const., Art. XI, § 5. The authority to repeal is part and parcel of the authority to legislate. Salmon Trollers Mktg. Assn. v. Fullerton (1981) 124 Cal. App. 3d 291, 302 (noting the limitation on the power to delegate legislative authority even extends to quasi-legislative power, including the power to merely suspend law).
The null-and-void/order to cure remedies in question are powers reserved only to the City Council and, in certain narrow instances, to courts of law with competent jurisdiction. Indeed, even in judicial proceedings, local ordinances carry a heavy presumption of validity. See e.g., People v. Johnson (1954) 129 Cal.App.2d 1, 10 (“It is well settled that when an ordinance is passed relating to a matter which is within the legislative power of the municipality, all presumptions are in favor of its validity. . . .”). Longstanding judicial authorities make clear that the City Council is without authority to delegate such power to a subordinate body, such as the Commission, and the Commission is without power to exercise such authority, even if delegated. Thus, staff recommends that the City Council now formally remove this extra-judicial remedy from the Commission’s purview.
On a practical note, staff believes that allowing the Commission to investigate and recommend curative actions is neither “toothless” nor disempowering. Any finding of error and recommendation to correct by the Commission would be accorded serious weight by both the City Council and by courts. Additionally, virtually all other City Boards and Commissions exercise similar powers (investigate/recommend) and none have the power to override City Council decisions. Thus, on a practical-level, this staff recommendation aligns the authority of this Commission with that of other City Boards/Commissions.
A redlined copy of the proposed revisions to the Ordinance is attached as Exhibit 1. Note that Exhibit 1 includes recommendations by the Commission on all matters discussed except for the Penalties section, which is revised per staff’s recommendation.
FINANCIAL IMPACT
There is no financial impact from the proposed action.
MUNICIPAL CODE/POLICY DOCUMENT CROSS REFERENCE
This action is consistent with the AMC.
ENVIRONMENTAL REVIEW
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 IMPACTS
There is no climate impact associated with this action.
RECOMMENDATION
Introduce an ordinance amending the Alameda Municipal Code by amending various provisions of Article VIII (Sunshine Ordinance) of Chapter II (Administration), including provisions related to public access to public meetings and public records, and Sunshine Ordinance enforcement, including recommendations to eliminate the “null and void” or “order to cure” remedies and replace such remedies with the authority for the Open Government Commission to issue recommendations to cure and correct.
CITY MANAGER RECOMMENDATION
The City Manager concurs with the recommendation.
Respectfully submitted,
Yibin Shen, City Attorney
Lara Weisiger, City Clerk
By,
John Le, Assistant City Attorney
Financial Impact section reviewed,
Elena Adair, Finance Director
Exhibits:
1. Sunshine Ordinance Amendments (Redlined)
2. December 18, 2019 Report to Open Government Commission