Title
Discuss and Provide Recommendations Concerning Potential Amendments to Article VIII (Sunshine Ordinance) of Chapter II (Administration) of the Alameda Municipal Code, as Amended, Concerning the Replacement of the “Null and Void” Remedy
Body
To: Chair Schwartz and Members of the Open Government Commission
From: Michael H. Roush, Chief Assistant City Attorney
John D. Lê, Assistant City Attorney
BACKGROUND
On November 1, 2011, the City Council (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.
On December 18, 2019, based on direction from Council, staff prepared and recommended amendments to the Sunshine Ordinance and sought input from the Open Government Commission (“Commission”) concerning those amendments.
On February 4, 2020, staff presented to the Council proposed amendments to the Sunshine Ordinance, which included Commission’s input concerning the proposed amendments. One amendment, in particular, involved removing language, as violative of applicable law, from Section 2-93.8 (Penalties) of the AMC that had allowed the Commission to render any action that violated the Sunshine Ordinance null and void (“null-and-void remedy”).
A majority of the Council adopted staff’s recommendation, including the proposed amendments to Section 2-93.8 (Penalties). See the February 4, 2020 City Council minutes (Exhibit 1). Those amendments are now in effect.
The Council also provided direction to staff to work collaboratively with the Commission to find an effective replacement concerning the null-and-void remedy keeping in mind, however, the legal concerns that led the Council to remove the null and void remedy.
Staff had originally scheduled this item be heard on April 6, 2020; however, that meeting had been postponed due to the COVID-19 pandemic and the related governmental orders. Now that procedures are in place for remote participation, staff has returned to the Commission with this item.
DISCUSSION
Replacement Concerning the Null-and-Void Remedy
The purpose of this agenda item is to facilitate input from the Commission in light of Council direction given at its regular meeting on February 4, 2020.
Council provided direction to staff to work with the Commission to craft language that might serve as a replacement to the null and void remedy that the Council eliminated. With minor variations in the concept, members of the Council offered guidance concerning what a replacement remedy might consist of, including that such a replacement remedy should:
• Allow the Commission, if a violation is found, to make a recommendation to the originating body concerning the violation;
• Allow the originating body an opportunity to make a decision in light of the Commission’s recommendation; and
• Facilitate consideration by the originating body. The Commission’s recommendation concerning the violation would be placed on the originating body’s agenda for future discussion within a reasonable amount of time (next available meeting, consistent with the Sunshine Ordinance and the press of other matters) at which time the originating body would consider in a properly noticed and open meeting whether to concur or not with the Commission’s recommendation.
Other considerations expressed by the Council
• The replacement remedy should reflect the Council’s legal concerns over the now-removed null-and-void remedy, including alignment with the Charter, yet serve as an effective replacement; and
• Any proposed amendment effectuating the replacement remedy should address the “status quo” of the item that led to a sustained finding of a violation while the item is under review by the originating body.
Public Comment
On March 4, 2020, the City Clerk’s Office received an emailed proposal from former Commissioner Paul Foreman concerning the replacement remedy. See Exhibit 2. The proposal was not furnished in redline form to facilitate review of the changes. Nonetheless, staff has prepared a redline version based on the changes proposed. See Exhibit 3.
The proposal would amend the Sunshine Ordinance in a number of respects:
1. Subsections (a) through (e) of Section 2-93.2. In sum, these amendments would provide for an accelerated timeframe for hearing and resolving alleged Section 2-91 violations. The stated goal of these changes would be “giving Council notice of a pending complaint prior to the second reading of a proposed ordinance, thus giving them the opportunity to quickly resolve the matter before the ordinance is adopted”. It retains the timeline for alleged violations of Section 2-91, but shortens them for alleged violations of Section 2-92, as follows:
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Section 2-92 (PUBLIC INFORMATION) |
Section 2-91 (ACCESS TO PUBLIC MEETINGS) |
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Complaint Deadline: |
15 days (current) |
10 days (proposed) |
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Hearing Deadline: |
30 days (current) |
20 (proposed) |
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Opinion Deadline: |
14 days (current) |
5 days (proposed) |
Staff Comment(s): These proposed amendments fall outside of the of the Council’s charge, which involved working with the City Attorney’s Office to propose an effective replacement to the null-and-void remedy. Having sufficient time to convene a hearing and preparing an opinion of the Commission can sometimes pose challenges for the Commission and for staff. In fact, not having sufficient time to schedule/hold the hearing and prepare the opinion is one of the reasons the timeframe for doing so was recently amended.
2. Subsection (g) of Section 2-93.2. The proposed amendment would make delay of an item for which a complaint is received under Section 2-91 (ACCESS TO PUBLIC MEETINGS) the default rule, unless the City Attorney’s Office “certifies” delay would be prejudicial and the Council votes by supermajority (four-fifth votes) to proceed. As noted above, these proposed amendments fall outside of the of the Council’s charge.
Staff Comment(s): This proposed amendment unduly impairs the Council’s ability to adopt local legislation. It would convert any ordinance, for which a complaint is filed (regardless of merit), to an urgency ordinance, which under the Charter requires a four-fifths vote. This would true even if the Council had voted three-fifths to adopt a given ordinance. It creates a presumption that a complaint is valid, rather than presuming Council action giving rise to the complaint proceeded according to applicable law. Staff accordingly does not support this amendment.
3. Subsection (h) of Section 2-93.2. As noted above, these proposed amendments fall outside of the of the Council’s charge. This proposed amendment on its face is somewhat ambiguous as to use of the term “subsection”. The accompanying email does not clarify the ambiguity as to which complaints are subject to this proposed subsection (h). In either event, staff does not support this proposed amendment. Under the Charter, the City Attorney’s Office is the City’s sole legal advisor. See Art. VIII, Sec. 8-2 of Charter (“He shall be the legal advisor of and attorney and counsel for the City and for all officers and boards thereof, in all matters relating to their official duties, and whenever requested in writing by any of them, he shall give his or her legal advice in writing.).” Although the City Attorney may from time to time employ outside counsel, it is the City Attorney’s discretion to do so, with approval from Council, where applicable. It vests in the Chair, an unelected position, the sole discretion to make that determination so long as a complaint is filed.
4. Subsections (a) and (c) of Section 2-93.8 (Penalties). This is the lone amendment that falls squarely within the Council’s charge to this Commission. It would make acceptance of the Commission’s recommendation to cure and correct any violation the default rule, unless the Council voted by supermajority (four-fifths vote) to reject or modify the recommendation. Staff does not support this recommendation for the reasons stated above. Chief among these reasons, it imposes a supermajority on the Council, when only three-fifths vote is required, to reject or modify a recommendation from the Commission. This would be true even if the Commission voted by a three-fifths majority to make the recommendation. It would also remove fines as a potential remedy.
RECOMMENDATION
Discuss and Provide Recommendations Concerning Potential Amendments to Article VIII (Sunshine Ordinance) of Chapter II (Administration) of the Alameda Municipal Code, as Amended, Concerning the Replacement of the “Null and Void” Remedy.
Respectfully submitted,
Michael H. Roush, Chief Assistant City Attorney
John D. Lê, Assistant City Attorney
Exhibits:
1. February 4, 2020 City Council Minutes
2. Email and Proposal from Paul Foreman
3. Redline Version of Foreman Proposal