Title
Hearing on Sunshine Ordinance Complaint Filed by Jay Garfinkle on February 25, 2021
Body
To: Honorable Members of the Open Government Commission
From: Olson Remcho, LLP, Special Counsel to the Commission
Background
1. The Complaint
Complainant Jay Garfinkle claims that the City Council violated the Brown Act by taking formal action on February 16, 2021, to add support of Senate Bill (“SB”) 271 to the 2021-22 Legislative Agenda without noticing the consideration of SB 271 in the meeting agenda. Mr. Garfinkle argues that the Council’s discussion and action on SB 271 violated the Brown Act because the Council failed to provide public notice that Agenda item 5-E concerning the 2021-22 Legislative Agenda included consideration of SB 271, and as a result, the public was not given the opportunity to participate in the decision-making process. Mr. Garfinkle states that he does not have a position on SB 271, but requests that the Open Government Commission (the “OGC”) require the City and its contracted lobbyists to cease support of SB 271 until Alameda residents have an opportunity to review the bill.
2. City Council Action
In compliance with the Sunshine Ordinance, the City Clerk timely published the agenda and supporting materials for the City Council’s meeting on February 16, 2021. In relevant part, the agenda explained that items on the consent calendar are routine and will be approved by one motion unless an item is removed from the consent calendar at the request of the Council or the public. Specific to Agenda item 5-E, Recommendation to Approve the 2021-22 Legislative Agenda for the City of Alameda, the staff report explained the City’s longstanding practice of adopting an annual Legislative Agenda to guide the City’s legislative advocacy efforts and enable staff, the Mayor, and the City Council to respond quickly to most legislative issues as they arise, rather than considering legislative policy on a bill-by-bill basis. The 2021-22 Legislative Agenda describes the City’s policy position in eleven discrete subject matter areas; the City uses the Legislative Agenda as a roadmap to take positions on legislation or legislative matters. In 2020, for example, the City took a position on 43 bills and seven state budget items pursuant to the authority delegated to the City’s advocacy team in the Legislative Agenda for that year. The staff report noted that significant or urgent issues not defined in the Legislative Agenda will be brought to the Council for consideration. The Council has annually adopted prior versions of the Legislative Agenda since 2013. See Exhibit 1 for the agenda and supporting documents.
At the City Council meeting on February 16, 2021, the Council pulled Agenda item 5-E from the Consent Calendar for discussion of various changes to the 2021-22 Legislative Agenda, including inclusion of SB 271, SB 314, and the correction of typographical errors. SB 271, introduced in the 2021-22 legislative session, would eliminate the statutory requirement that candidates for the office of the county sheriff have law enforcement experience to be eligible to run for the office. See Exhibit 2 (SB 271 [Weiner]).
In response to a written request from a community member to support SB 271, Vice Mayor Malia Vella inquired during the February 16th meeting whether the City Council would consider adding support of SB 271 to the 2021-22 Legislative Agenda. The Vice Mayor stated that the legislation would eliminate the requirement that individuals have law enforcement background prior to running for the sheriff’s office and noted that the election of a sheriff is a public process, which voters should decide rather than limiting who may be eligible for the sheriff’s office. Thereafter, the City Council heard public comments on Agenda item 5E. A community member speaking on behalf of Secure Justice, a large organization comprising over 41 member organizations representing thousands of Alameda residents, urged the Council to add support of SB 271 to the 2021-22 Legislative Agenda and stated that he had submitted a resolution in support of SB 271 for the Council’s consideration. See Exhibit 2 (Resolution in Support of SB 271). The Council also discussed the inclusion of SB 341 and other changes to the legislative agenda. In response to a question about whether the Brown Act permits two legislative measures to be added to the 2021-22 Legislative Agenda, the City Attorney advised that it did because the City Council’s meeting notice included consideration of the City’s legislative agenda for the current legislative session. The Council voted 3 to 2 to approve the inclusion of SB 271 in the 2021-22 Legislative Agenda. The Council also voted 4 to 1 to approve the 2021-22 Legislative Agenda with the inclusion of SB 314, the correction of typographical errors, and direction for staff to return in the future with an economic development legislative recommendation.
Discussion
Because the Council pulled Agenda item 5-E from the Consent Calendar to discuss, in part, the inclusion of support of SB 271 in the 2021-22 Legislative Agenda, Mr. Garfinkle complains that the Council violated the Brown Act by failing to expressly notice consideration of SB 271 in the meeting agenda, thereby depriving the public of “the opportunity to participate in the decision making process” to include support of SB 271 in the 2021-22 Legislative Agenda.
Under the Brown Act, the City Council must timely post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting and may not act or discuss any item not appearing on the posted agenda, unless an exception applies. Gov. Code, § 54954.2(a). In this instance, the Council complied with the law because the February 16th agenda was timely posted, contained a brief general description regarding the recommendation to approve the 2021-22 Legislative Agenda, which was attached to the agenda, and explained that items on the consent calendar could be removed if requested by the Council or the public. Because significant legislative issues not included in the 2021-22 Legislative Agenda must be brought to the Council for consideration, the Council pulled Agenda item 5-E off the consent calendar to discuss adding support of SB 271 to the Legislative Agenda and making other changes. The Council’s consideration of adding support of the bill to the 2021-22 Legislative Agenda is consistent with the general import of the noticed agenda because the Legislative Agenda includes the City’s position on a wide variety of policy matters, including public safety and criminal justice reform, topics addressed by SB 271. Moreover, members of the public had the opportunity to provide public comment. Indeed, an organization representing thousands of Alameda residents voiced its position in support of adding support of SB 271 to the Legislative Agenda.
While the February 16th noticed agenda did not expressly include SB 271 in the description, the Council complied with the Brown Act by putting the public on notice it would consider the City’s position on a wide variety of policy matters as part of its consideration of the City’s Legislative Agenda, including public safety, which is the subject of SB 271. Indeed, the Legislative Agenda attached to Agenda Item 5-E specifically noted that one objective of the City’s lobbying efforts for 2021-22 would be to “support measures that reform the criminal justice system in California,” and SB 271 is a criminal justice reform measure. Exhibit 1 at 14 (Draft Legislative Agenda). Accordingly, the City’s agenda description complied with the Brown Act.
Moreover, even if there had been an agendizing error (which there was not), that would not provide a basis for voiding the Council’s action. In Olson v. Hornbrook Community Services District, 33 Cal. App. 5th 502 (2019), the court concluded that any action alleged to have violated certain provisions of the Brown Act would not be null and void if the action was taken in substantial compliance with that section. Specifically, a body substantially complies with the requirement to provide a brief general description of each business item on the agenda when it provides “the public a fair chance to participate in matters of particular or general concern by providing the public with more than mere clues from which they must then guess or surmise the essential nature of the business to be considered by a local agency.” Id. at 519 (quoting San Diegans for Open Gov't v. City of Oceanside, 4 Cal. App. 5th 637, 643 (2016)).
In Olson, plaintiffs alleged that the district violated the Brown Act when it discussed and approved multiple items not listed specifically on the agenda that were part of the consent calendar item described as “approve bills and authorize signatures on Warrant Authorization Form for District expenses received through January 24, 2017.” 33 Cal. App. 5th at 520. The court determined that the description of the agenda item “leaves no confusion as to the essential nature of the District's action” and that those interested in the District's expenses would know from the agenda description that they needed to attend the meeting to participate in that matter. Id. at 520-21.
As in Olson, the February 16th agenda provided the public clear notice that consent items could be removed from the consent calendar by the Council and that the essential nature of the Council’s action included consideration of the 2021-22 Legislative Agenda, which describes the City’s positions on a wide variety of legislative issues, including public safety and criminal reform issues such as those addressed by SB 271. As noted in the staff report, the Legislative Agenda serves as a roadmap for the City’s legislative advocacy, including formal positions on legislation. Accordingly, the Council was not required to list SB 271 on the agenda before considering the issue and taking action to add support of the bill to the Legislative Agenda. Community members were provided sufficient notice based on the agenda description and attachment and could have attended the meeting to participate in the discussion and action of legislative matters such as the City’s position on a bill like SB 271.
The noticed agenda also complied with the Sunshine Ordinance requirement that the Council’s published agenda contain a “meaningful description” of each item of business to be transacted or discussed at the meeting. Mun. Code § 2-91.5. “A description is meaningful if it is sufficiently clear and specific to alert a person…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.” Id. Here, the description was sufficiently clear and specific to notify the public that the Council would be taking action on the recommendation to approve the 2021-22 Legislative Agenda, which includes the Council’s position on legislative issues such as SB 271, and any community member interested in SB 271 or other legislative matter could have attended the meeting or offered public comment on any of the policy matters addressed in the Legislative Agenda.
Moreover, the Council’s separate motion and approval to add support of SB 271 to the 2021-22 Legislative Agenda does not require that SB 271 be expressly noticed. In San Joaquin Raptor Rescue Center v. County of Merced, 216 Cal. App. 4th 1167, 1177 (2013), the court concluded that the County’s adoption of an environmental impact document without notice violated the Brown Act because the document was a distinct item of business, and not a mere component of the land use project that was noticed. The court reasoned that the approval of the environmental impact document involved a separate action by the Commission and concerned discrete, significant issues of environmental compliance. Id. Here, while the Council approved the inclusion of SB 271 to the 2021-22 Legislative Agenda through a separate vote, SB 271 does not concern distinct issues apart from the 2021-22 Legislative Agenda, which addresses public safety and the City’s direction to its legislative advocacy team on criminal justice reform measures. In fact, the Council’s position on SB 271 will provide additional guidance to the City’s legislative advocacy team, which was the entire purpose of the item.
Accordingly, the proposed remedy is unnecessary because Alameda residents received adequate notice of the Council’s action to approve the 2021-22 Legislative Action, which includes taking positions on legislative measures like SB 271. Thus, the public had an opportunity to review the various policy matters covered by the Legislative Agenda and those interested in the City’s position on a wide variety of policy matters, including public safety and criminal justice reform, could have participated in the discussion and action relating to SB 271 at the Council meeting on February 16, 2021.
Recommendation
Special Counsel, on behalf of the City Council, recommends that the OGC find the complaint to be unfounded on the follow independent grounds.
1. The City Council meeting on February 16, 2021 complied with the Brown Act and the Sunshine Ordinance.
2. The description of Agenda item 5-E, Recommendation to Approve the 2021-22 Legislative Agenda for the City of Alameda, complied with the Brown Act and the Sunshine Ordinance, providing the public adequate notice and a fair chance to participate in the discussion and action relating to the City’s position on policy matters, including SB 271.
Exhibits:
1. February 16, 2021 City Council Materials
2. SB 271 (Weiner) bill language and resolution
3. Complaint
4. Draft Commission Decision