Title
Discuss and Provide Recommendations Concerning Potential Amendments to Article VIII (Sunshine Ordinance) of Chapter II (Administration) of the Alameda Municipal Code, as Amended, to Replace “Null and Void” Remedy
Body
To: Chair Tilos and Members of the Open Government Commission
BACKGROUND
At the request of the Open Government Commission (“Commission”), staff begins this agenda report by summarizing its prior legislative history for greater context.
Local Legislative Context
In late 2017, the City Council adopted two ordinances (Zoning and Regulatory) that covered all aspects of regulating the commercial operations of cannabis businesses in Alameda. These ordinances were effective beginning January 18, 2018.
The regulatory ordinance capped the maximum number of permits to be issued for dispensaries at two. On July 24, 2018, the Council directed staff to amend the ordinances in various ways, but in relevant part, to increase the cap on dispensaries from two to four: two open to the public and two “delivery-only”.
On October 16, 2018, the Council revised the ordinance by converting the two additional “delivery-only” dispensaries to “delivery-required” (i.e., open to the public) dispensaries. After making those revisions, the Council introduced on first reading on the two ordinances (Zoning and Regulatory).
Following the first reading, on October 30, 2018, a member of the public filed a complaint with the Commission concerning the agenda title.
On November 7, 2018, the Council took final action to adopt the two ordinances on second reading, after taking further public comment, including comment from the OGC complainant, in addition to other members of the public.
The complaint was heard by the OGC on November 14, 2018. After deliberation, the OGC sustained the complaint, thereby deeming the two ordinances null and void and determined that the Council may consider re-noticing the ordinances following a public hearing to allow members of the public to be heard.
Thereafter, the City Attorney’s Office provided a legal memorandum to the Commission that set forth in more detail why the Commission did not have the legal authority to render Ordinances adopted by the City Council null and void. Rather, if the Commission continued to conclude that there had been a violation of the Sunshine Ordinance, it should only recommend to the City Council that the ordinances be considered for re-introduction following a public hearing and that the adopted Ordinances be repealed.
The complaint was returned to the Commission on December 17, 2018, for further consideration in light of the City Attorney’s memorandum. Nevertheless, the Commission did not change its prior decision, continued to sustain the complaint, ordered both cannabis ordinances null and void, and noted that the Council may reintroduce the two ordinances after a properly noticed public hearing.
Cannabis business applicants and other members of the community publicly expressed concern that the current situation may affect the continuing validity of the ordinances, which would leave open the possibility of a legal challenge to such ordinances, thereby leaving a cloud of uncertainty surrounding any permit approvals issued under those ordinances.
Eventually, on February 19, 2019, the Council adopted a motion to direct staff to notice a public hearing concerning the repeal of the two cannabis ordinances and the replacement of those ordinances with new ordinances with the same or similar provisions.
Removal of Null-and-Void Remedy
On December 18, 2019, based on direction from City Council, staff prepared and recommended amendments to the Sunshine Ordinance and sought input from the Commission concerning those amendments.
On February 4, 2020, staff presented to the City Council proposed amendments to the Sunshine Ordinance, which included Commission’s input concerning the proposed ordinance. 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 City Council adopted staff’s recommendation, including the proposed amendments to Section 2-93.8 (Penalties). The City Council also provided direction to staff to work collaboratively with the Commission to find an effective replacement to the null-and-void remedy, to the extent authorized by law.
Replacement of Null-and-Void Remedy
Due to some delay caused by the COVID-19 pandemic, on June 24, 2020, the Commission considered two proposals to replace the null-and-void remedy: one added to the agenda by the City’s Attorney’s Office (originally proposed by Councilmember Knox White on February 4, 2020) in a supplemental memorandum (Knox White Proposal) and one from former Commission member, Mr. Paul Foreman (“Foreman Proposal”). The Commission did not consider or vote on the Knox White Proposal. Instead, in a series of motions, the Commission voted to embrace the Foreman Proposal, with minor modifications.
On November 16, 2020, after taking additional steps to further consider the Foreman Proposal, including retaining special counsel (Olson Remcho) to conduct legal analysis of the Foreman Proposal, and, in light of the legal analysis by Olson Remcho, the City Attorney’s Office presented these findings to the Commission for their consideration. In its agenda report, the City Attorney’s Office analyzed the Foreman Proposal and recommended adoption of the Knox White Proposal. Ultimately, the Commission refused to consider either proposal and instead resolved to form a subcommittee, consisting of former members Schwartz and Pauling, with the limited charge of preparing an alternative, third proposal.
On December 14, 2020, the Commission presented the subcommittee’s findings and proposal. The Commission voted unanimously to recommend the subcommittee’s proposal to the full Council.
Following the 2020 election cycle, the composition of the Commission had substantially changed and a majority of the Commission’s membership was now comprised of new members. In an effort to be inclusive of the new Commission members and to seek their valued input, staff had decided to return to the Commission for further discussion on this item and to ensure all members of the current Commission have had a chance to participate and provide input into this process.
Accordingly, on February 1, 2021, staff returned to the Commission to obtain input, including the newly installed members. At that meeting, the Commission wondered why the item had returned. Staff reiterated the goal of getting input from the new members prior to bringing the item to Council.
Significantly, some discussion ensued about whether staff had prevented the item from being transmitted to the Council. With this agenda report, staff intends to clarify that the Commission was not and cannot be prevented by staff from transmitting the Subcommittee’s Proposal, which the Commission is free to do so, if that is the Commission’s will.
In either event, the Commission eventually requested that staff return with responses to address certain areas of inquiry agreed to by the Commission prior to bringing the item Council. These areas of inquiry were designed to facilitate and elicit further and final input from the Commission regarding a replacement remedy.
DISCUSSION
Areas of Inquiry
The Commission directed staff to report back about the following matters: (1) whether the City Attorney’s Office would support a replacement remedy that imposes a supermajority requirement on the Council; (2) what is the legal and financial harm of adopting a replacement remedy unsupported by staff (e.g., supermajority); (3) survey other local jurisdictions on how they ensure accountability and compliance (“benchmarking”); and (4) whether staff would support an amendment requiring the Commission’s vote on a Sunshine Ordinance complaint, shortly after the hearing, as a means of ensuring accountability.
1. City Attorney’s Office’s Position on Supermajority
The City Attorney’s Office remains concerned with any recommended proposal that imposes a supermajority requirement for the reasons stated in prior agenda reports. See Item No. 3-B, June 24, 2020 Commission Agenda; Item No. 3-B, November 16, 2020 Commission Agenda; Item No. 3-C, February 1, 2021 Commission Agenda. The City Attorney’s Office, and Special Counsel from Olson Remcho, continues to believe that any such requirement could not be implemented except through a charter amendment by the voters.
2. Legal/Financial Harm of Proceeding Against Legal Advice
Any action taken in violation of the Charter or other applicable laws carries innumerable potential consequences. As the replacement remedy would be part of the Sunshine Ordinance, the consequences mentioned here could extend to any action subject to review by this Commission, including any action taken by the Council, and any of its subordinate boards and commission-e.g., approval of a development agreement, adoption of a resolution placing a local measure on the ballot, adoption of an ordinance to protect a vulnerable population or otherwise furthering the ends of justice, etc.-which is found to violate the Sunshine Ordinance, rightly or wrongly.
3. “Benchmarking”
The Commission requested staff to survey jurisdictions that have sunshine ordinances for the limited purpose of seeing how they ensure accountability and compliance. As some Commission members may recall, the City Attorney’s Office referenced 14 jurisdictions that had such ordinances or transparency laws. The Commission may find relevant the following aspects of those ordinances:
• Null-and-Void Remedy. No ordinance reviewed by staff contains a null-and-void remedy. In fact, one jurisdiction (San Jose) explicitly states noncompliance “will not result in invalidation of any action taken by the City.” Instead, that jurisdiction’s ordinance makes clear that the invalidation, if any, “shall be subject to invalidation pursuant to the provisions of the Brown Act.” Notably, under the Brown Act, invalidation is often not an appropriate remedy where there is evidence of substantial compliance.
• Enforcement. The vast majority (9), explicitly or implicitly, rely on private right of action for enforcement. Three jurisdictions, explicitly state in their ordinances that they are enforced through civil litigation: San Francisco, Vallejo, and Gilroy. The others are silent on the topic of enforcement, and therefore, default to the remedies under the Brown Act, which allow for court action. Some further provide that violations can lead to findings of “official misconduct” (San Francisco, Vallejo, San Jose). A minority of jurisdictions, however, provide for a cure-and-correct remedy (Oakland, San Jose). San Jose, for example, provides that if a violation is sustained, the “open government committee” may issue a “demand” to the “subject” body to cure and correct; inaction on the demand allows the committee to refer the matter to the city attorney or the city council for further action, although no further specification is provided on what that action would look like.
Staff has prepared a chart with greater detail. See Exhibit 1.
4. Lopilato Proposal
Member Lopilato offered a proposal for the Commission’s and the City Attorney’s Office’s consideration as follows: amend the Sunshine Ordinance to require that any vote of the Commission on a Sunshine Ordinance complaint be published in some manner as a means of ensuring accountability. Presumably, this would happen before a final decision, but shortly after the hearing on the matter.
The City Attorney’s Office does not have a legal objection to this proposal. Further, an initial consultation with the Clerk’s Office indicates this proposal is a viable option.
Replacement Remedies Considered to Date
5. Foreman Proposal
As noted above, the Foreman Proposal was presented to the Commission on in an earlier meeting, alongside the Knox White Proposal. For the reasons stated in a previous agenda report, staff does not support the Foreman Proposal. See Item No. 3-B, June 24, 2020 Commission Agenda; Item No. 3-B, November 16, 2020 Commission Agenda.
6. Knox White Proposal
Staff continues to recommend that the Commission consider supporting the Knox White Proposal for the reasons set forth in a previous agenda report. Item No. 3-B, November 16, 2020 Commission Agenda.
For ease of reference, staff has attached this proposal as an exhibit to this agenda report. See Exhibit 2.
7. Subcommittee Proposal
The subcommittee’s proposal is set forth more fully in the Commission’s December 14, 2020 agenda report. Item No. 3-B, December 14, 2020 Commission Agenda.
At this time, in its current form, staff does not support the Subcommittee Proposal for the reasons stated in a previous agenda report to the Commission. Item No. 3-C, February 1, 2021 Commission Agenda. However, for the Commission’s consideration, staff has prepared revisions that would best address some of staff's legal concerns with the Proposal.
For ease of reference, staff has attached both the Subcommittee’s proposal and staff’s revisions as an Exhibits 3 and 4, respectively, to this agenda report.
RECOMMENDATION
Discuss and Provide Recommendations Concerning Potential Amendments to Article VIII (Sunshine Ordinance) of Chapter II (Administration) of the Alameda Municipal Code, as Amended, to Replace “Null and Void” Remedy.
Respectfully submitted,
Elizabeth A. Mackenzie, Chief Assistant City Attorney
John D. Lê, Assistant City Attorney
Exhibit(s):
1. Matrix of Other Cities, Sunshine Ordinances
2. Supplemental Memo, dated June 11, 2020 (Knox White Proposal)
3. Subcommittee Proposal
4. Staff’s Revisions to Subcommittee’s Proposal