Title
Introduction of Ordinance Amending the Alameda Municipal Code, Including Section 2-22 (Open Government Commission) and Article VIII (Sunshine Ordinance) of Chapter II (Administration) to Establish a Hearing Officer Form of Adjudication of Sunshine Ordinance Complaints, Clarifying Enforcement Provisions, and Providing for Other Updates and Enhancements to the Sunshine Ordinance. (City Attorney)
Body
To: Honorable Mayor and Members of the City Council
EXECUTIVE SUMMARY
In February 2020, based on Staff’s recommendation, the City Council removed the null-and-void remedy from the Sunshine Ordinance and directed staff to work with the Open Government Commission (Commission) to review impacts of this decision. Staff has conducted a number of meetings with the Commission and considered several proposals, including a proposal by the newly-constituted Commission.
During the course of this collaboration with the Commission, staff observed an uptick in the number of Sunshine Ordinance hearings and the difficulty the Commission faces in adjudicating such matters. As discussed more fully below, staff recommends moving toward a hearing officer model of Sunshine Ordinance complaint adjudication, in addition to making other updates and enhancements, as discussed more fully below. Under this model, which is already in use for adjudication of the Rent Control cases, the Commission would retain a role in considering the Hearing Officer’s decisions, but only in the context of making recommendations to the Council.
BACKGROUND
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.
On December 18, 2019, based on direction from City 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 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”).
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 obtain further input from the Commission regarding the amendment, consistent with the Commission’s general role of providing recommendations to the Council. For the sake of brevity, staff does not detail the entirety of the prior history of that collaboration, since it is already contained in the agenda report to the Commission (https://alameda.legistar.com/LegislationDetail.aspx?ID=4806047&GUID=42365166-FC1F-4210-AE7F-51B73F6A9116&FullText=1). For purposes of this agenda report, staff notes that ultimately the Commission formed a subcommittee and prepared a proposal to add an additional replacement remedy, which was unanimously adopted by the Commission on December 14, 2020.
Sometime after, the Commission’s composition changed such that three new Commission members were sworn in to serve on the Commission. Accordingly, staff returned to the entire Commission on February 1, 2021 to obtain input from the newly constituted Commission, including those newly-sworn Commission members. At that meeting, the Commission requested additional information from staff.
Staff had intended to conclude this collaboration on March 1, 2021 by providing additional requested information and obtaining final input prior to returning to City Council with an ordinance that would amend the Municode to replace the now-removed null-and-void remedy. However, the Commission was required to continue the item twice in favor of hearing multiple Sunshine Ordinance complaints which occupied the entirety of two regular meetings. Two months later, the item in question was finally heard on May 3, 2021. Handling the three hearings and preparing for a fourth potential hearing gave staff and the Commission valuable insight into the adjudication process and informs the staff recommendation contained in this agenda report.
DISCUSSION
Adjudication of Sunshine Ordinance Complaints
Consistent with recent experiences with numerous adjudicatory hearings by the Commission, staff recommends that the adjudicatory function be transferred to City of Alameda (City) Hearing Officers, similar to the City Council’s recent decision to transfer Rent Control cases from the Rent Review Advisory Committee (“RRAC”) to Hearing Officers, which has proved to be successful.
Under existing local law, the Commission is charged with “hear[ing] and decid[ing] complaints…[under]…the Sunshine Ordinance.” AMC, §2-22.4(a). In this capacity, the Commission is called upon to act as a judicial body, akin to an administrative law judge or a trial judge. It is this adjudicatory role of the Commission that staff believes could benefit from some relief.
Because the Sunshine Ordinance is modeled after the Brown Act and the Public Records Act, this adjudicatory role can be quite complex, especially in terms of applying legal doctrines to cases. As a practical matter, litigating open meetings and public records disputes in the judicial process is typically handled by judges, rather than by either administrative bodies or juries. See Exhibit 1 - Matrix of Other Cities, Exhibit 1 to Item 3-B, Open Government Commission Agenda, dated May 3, 2021(<https://alameda.legistar.com/LegislationDetail.aspx?ID=4806047&GUID=42365166-FC1F-4210-AE7F-51B73F6A9116>). . This is consistent with longstanding legal principles that questions of law are reserved for judges while questions of fact are reserved for juries. People v. Ivey (1874) 49 Cal. 56 (An instruction, leaving to the jury to decide questions of law, is erroneous.)
The Commission has made clear that it is uncomfortable undertaking legal analysis, or parsing case law. For instance, during an appeal heard by the Commission on March 1, 2021, some Commission members commented that they did not feel comfortable engaging in legal analysis (Commissioner “wants to be careful not to overstep the authority granted to the Commission by delving into case law and legal analysis; it is not appropriate for the Commission to research case law, particularly since at the outset, the Commission does not have access to the ability to do their own research; cautioned against having legal citations in any written decision”; Commission expressed worry “that engaging in discussion that involve interpreting case law or complaints that involve lengthy legal analysis would create a chilling effect on those willing to serve on the Commission; a person should not have to be an attorney to be on the Commission; the practical lived experience of having gone through the processes is very relevant”; Two other Commissioner’s comments were consistent with this sentiment), even when one Commission Member is a licensed and practicing attorney. This is certainly understandable, given the complexity of the topics (Brown Act and the Public Records Act) with ever-evolving case law. While the City Attorney’s Office (CAO) (along with the City Clerk’s Office) staffs the Commission and provides legal advice, this support has not alleviated the Commission’s difficulties in this area. The Commission has repeatedly shown hesitation to follow the advice of the attorneys staffing the Commission, in certain instances suggesting that the CAO may be biased for the City. The CAO has assured the Commission that it has erected ethical walls to guard against bias, and has even retained special counsel at the cost of $10,000 or more per hearing, at the request of the Commission, to guard against any perceived bias. However, neither approach has alleviated the Commission’s concerns. Moreover, given the Commissioners’ understandable and laudable passion for the subject matter, there have been times where members have refused or shown extreme reluctance to accept the CAO’s advice regarding recusal even when there was a strong legal basis for such advice. The failure to recuse when required by law further jeopardizes the ultimate viability of adjudicatory decisions. See e.g., Woody's Group, Inc. v. City of Newport Beach (2015) 233 Cal.App.4th 1012, 1022 (finding “bias-either actual or an “unacceptable probability” of it-alone is enough on the part of a municipal decision maker is to show a violation of the due process right to fair procedure” and rejecting City Council action based on the participation of one biased member).
In light of these ongoing concerns, Staff recommends relieving the Commission of its obligation to conduct adjudicatory proceedings and transferring that function to City Hearing Officers. Staff believes the City’s successful transition of Rent Control Hearings from the RRAC to City Hearing Officers in 2019 is a helpful model to follow. There, prior to moving to a hearing officer model, Rent Control hearings required a great deal of time to staff and adjudicate. RRAC members, similar to Commission members, often struggled with transitioning from their mediation roles into adjudication, which often occurred when parties would not agree to a mediated result. After an uptick in the number of cases, as can sometimes happen, staff and the members of the RRAC were overwhelmed. RRAC Commissioners expressed similar hesitation with reviewing complex legal analysis. For example, RRAC members often struggled with applying the many factors they were permitted to consider under then-Ordinance 3148, for “determining a fair resolution concerning the Rent Increase”. In particular, the RRAC often struggled with weighing the factor of the “Landlord’s interest in earning a just and reasonable rate of return on the Landlord's property”. Finally, a five-member adjudicatory body faces unique logistical challenges-e.g., fielding multiple clarifying questions, providing each member an opportunity for oral deliberation, and summarizing comments and concerns of all five members into a single motion for approval of a quorum of members-that a single hearing officer would not have to overcome. Since the transition to a hearing officer model in 2019, City Hearing Officers have successfully and efficiently adjudicated 26 Rent Control cases.
The same is true here, albeit on a smaller scale. In fact, this item was delayed by two meeting cycles (two months) because the Commission faced a similar uptick in the number of cases. To put this trend into context, since the inception of the Sunshine Ordinance, which has been in place for almost a decade, the City has received 18 complaints and held eight (8) hearings. Yet, seven (7) of those hearings have been heard in the last three years alone.
Additionally, City Hearing Officers are appointed based on legal training and experience. (See Exhibit 2, Administrative Regulations Regarding Administrative Hearings) They are required to be impartial and are subject to rules of disqualification that govern judicial disqualification. Consistent with the positive experience in the Rent Control context, Hearing Officers are well suited to handle administrative hearings where complex legal principles and case law must be applied to unique factual issues.
Under the proposed Ordinance, the Commission will continue to have a role in the process. All Hearing Officer decisions will be promptly forwarded to the Commission upon issuance. The Commission will then have the opportunity to review each decision and allow Hearing Officer’s decisions to inform the Commission’s recommendations regarding the implementation of the Sunshine Ordinance to the City Council. Additionally, Commissioners would have much more freedom to bring complaints themselves without the need to be concerned with recusals/conflicts, as they would no longer have an adjudicatory role.
Clarification and Enhancement of Remedies Provisions
Staff’s Proposed Amendments
Staff recommends further enhancements and clarifications to the Sunshine Ordinance’s remedies provisions. First, the proposed ordinance makes clear that the Hearing Officer’s decisions must be promptly considered by the originating body/official. This ensures that decisions are further daylighted for review but does not supplant the original jurisdiction of the originating bodies (e.g., the City Council). Second, the proposed ordinance eliminates the monetary fines provisions of the Ordinance, which has never been implemented and has been criticized by all parties as being ineffectual and inappropriate. Finally, given this transition and in light of recommendations obtained from certain Commissioner(s) and staff’s recommendation to move to a hearing officer model, staff recommends forgiving all prior unfounded complaints so that all members of the public will have fresh starts in the new forum. Staff’s recommendation is largely consistent with the most recent near-unanimous recommendations of the Newly-Installed Commission, with the exception that staff’s recommendation does not require the City to maintain the status quo until the originating body considers the Commission’s recommendation. Instead, the proposed ordinance encourages status quo. Staff believes that flexibility is required to prevent undue prejudice against the City (e.g., frivolous complaints could unnecessarily impede important City Council objectives).
Staff is further transmitting complete recommendations from the Commission to the City Council for its review. However, as earlier presented to the Commission and further explained below, staff does not support the subcommittee’s recommendations.
Subcommittee’s Proposal
The subcommittee’s proposal is set forth more fully in the Commission’s December 14, 2020 agenda report. See Exhibit 1, (Subcommittee Proposal), to Item 3-B, Open Government Commission Agenda, dated December 14, 2020 (<https://alameda.legistar.com/LegislationDetail.aspx?ID=4709156&GUID=C009F781-8021-44C4-9347-603FA525FBF4>). In summary, the subcommittee proposed the following changes:
• Section 2-93.2: Complaint Procedures:
o For complaints under § 2-91 (PUBLIC ACCESS TO MEETINGS):
§ Reduce time to file a complaint from 15 days to 10 days.
§ Reduce time to hear a complaint from 30 days to 20 days.
§ Reduce time to issue written decision from 30 days to 5 days.
§ Automatic stay on any action related to an item upon filing of complaint. To avoid a stay, the City Attorney’s Office must issue a letter demonstrating prejudice to the City and a City Council supermajority (four-fifths, 4/5) vote is required to proceed despite the filing of a complaint.
• Section 2-93.8: Penalties:
o For complaints under § 2-91 (PUBLIC ACCESS TO MEETINGS):
§ Remove monetary fines as a penalty for sustained violations.
§ Commission may still order cure and correction, except where the body has already made a cure and correction or the cure and correction would “interfere with the conduct of an election”.
o For complaints under § 2-92 (PUBLIC RECORDS):
§ Remove monetary fines as a penalty for sustained violations.
o If the City Council receives a cure-and-correct recommendation, it must accept it and can only reject it with a supermajority (four-fifths, 4/5) vote.
Staff has expressed serious concern with a number of the subcommittee’s proposal; specifically, the subcommittee’s recommendation that the Sunshine Ordinance be amended to require that the City Council act by supermajority (4/5 vote) in the following two instances: (1) to undo an automatic stay imposed until a Sunshine Ordinance complaint is resolved by the Commission [Section 2-93.2(g)]; and (2) to decline to accept a cure-and-correct recommendation from the Commission issued in response to a complaint [Section 2-93.8(c)]. Earlier, staff identified the proposed provisions as violative of the Charter, which states that all City Council actions, except otherwise specified, require only a simple majority. In response, the subcommittee cited “numerous other resolutions and ordinances hav[ing] provisions that reference a 4/5 supermajority, without requiring additional Charter authority.” At its December 14, 2020 meeting, the subcommittee members presented instances in the Municode as the justification for its 4/5 supermajority requirements in its proposal.
Based on the subcommittee’s justification for imposing a supermajority requirement, staff undertook a review of the sections of the Municode identified by the subcommittee. See Exhibit 3 (Analysis of Other Alleged Instances of Supermajority to Item 3-B, Open Government Commission Agenda, dated February 1, 2021 (https://alameda.legistar.com/LegislationDetail.aspx?ID=4764364&GUID=E804E9D7-E6B8-4554-9667-7DF247F7F8CD). Staff’s analysis, which was shared with the Commission (some of whom no longer serve in this capacity), found that the existing supermajority requirements are generally grounded in some manner in state law, consistent with the Charter, or purely relate to parliamentary procedure and carry no substantive effect. Special Counsel, in consultation with the CAO, reviewed and analyzed all such “other” instances analyzed, and the reasons for each. Furthermore, in addition to what was identified by the subcommittee, Staff notes that one additional super-majority requirement exists in AMC Section 2-22, which requires four City Council votes to remove an Open Government Commission Member. This was adopted in 2012, in conjunction with the now repealed and legally defective null-and-void remedy. Staff believes this provision is likewise legally defective and would recommend repealing it if the City Council directs so.
Proposed Amendments of Newly-Installed Commission
As noted above, staff returned to newly-installed Commission to obtain their input on February 1, 2021 and received their input on May 3, 2021. Staff’s current recommendations largely track the newly-installed Commission’s recommendations.
In summary, the newly-installed Commission approved the John Knox White Proposal (see Exhibit 4 (Staff Revisions to Subcommittee Proposal) to Item 3-B, Open Government Commission Agenda Item No. 3-B, dated May 3, 2021 <https://alameda.legistar.com/LegislationDetail.aspx?ID=4806047&GUID=42365166-FC1F-4210-AE7F-51B73F6A9116> ), with refinements offered by Commissioner LoPilato (see Exhibit 6 (Proposed Commissioner LoPilato Revisions) to Item 3-B, Open Government Commission Agenda Item, dated May 3, 2021, <https://alameda.legistar.com/LegislationDetail.aspx?ID=4806047&GUID=42365166-FC1F-4210-AE7F-51B73F6A9116>).
Below is a summary of the Commission’s recommended changes:
• Post on the City’s website decisions and the originating body’s response, where a clear-and-correct is ordered, on Sunshine Ordinance complaints.
• To accompany the power to make cure-and-correct recommendations, explicitly state that the Commission to consider informal means to resolve complaints and may make nonbinding recommendations.
• Adopt Knox White proposal with the following refinements (in redline):
As indicated above, staff is largely supportive of the newly constituted Commission’s near-unanimous recommendation, as reflected in the proposed ordinance; with the exception that the staff proposed ordinance encourages but does not require the City to maintain the status quo pending the final review of the Hearing Officer’s recommendation/decision. Originally, staff had supported the inclusion of requiring the “status quo” ante language. As framed above, “maintaining the status quo” means maintaining it “ante,” i.e., maintaining what was in place prior to the challenged action by the originating body. This language could be potentially abused. For example, if a complaint is filed on the City Council’s approval of its legislative agenda, the City could be barred from supporting or opposing time-critical legislation until the case is heard by a Hearing Officer and potentially re-heard by the City Council. This significant delay could be prejudicial to timely accomplishing the City’s critical priorities. Notably, this must be done regardless of whether the complaint has merit or not. Similarly, forcing the City to maintain the status quo unless the City can show prejudice vests an inordinate amount of discretion in staff charged with making that determination and could prove difficult to apply in practice. Encouraging but not requiring maintenance of the status quo accomplishes the Commission’s interest without potentially prejudicing the City’s critical priorities.
ALTERNATIVES
The City Council may consider take action on some, all, or none the proposed actions discussed in this agenda report.
FINANCIAL IMPACT
Staff estimates that there would be approximately six Sunshine Ordinance hearings per year, and that the cost of a hearing officer’s time for each hearing would be approximately $1,500 to $2,000, for a total estimated cost to the General Fund ranging from $9,000 to $12,000 annually.
Staff expects a reduction in overall expenditures with the transition to Hearing Officers. Given that the use of Hearing Officers would alleviate the need to use outside counsel, which costs approximately $10,000 per hearing for OGC hearings, we expect that the City would save approximately $8,000 for each hearing.
MUNICIPAL CODE/POLICY DOCUMENT CROSS REFERENCE
This action is consistent with the AMC.
ENVIRONMENTAL REVIEW
The California Environmental Quality Act (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 IMPACT
There are no identifiable climate impacts or climate action opportunities associated with the subject of this report.
RECOMMENDATION
Introduce an Ordinance amending the Alameda Municipal Code, including Section 2-22 (Open Government Commission) and Article VIII (Sunshine Ordinance) of Chapter II (Administration) to establish a hearing officer form of adjudication of Sunshine Ordinance complaints, clarifying enforcement provisions, and providing for other updates and enhancements to the Sunshine Ordinance
CITY MANAGER RECOMMENDATION
The City Manager concurs with the City Attorney’s Office recommendation to introduce an Ordinance amending the Alameda Municipal Code and Article VIII.
Respectfully submitted,
Elizabeth Mackenzie, Chief Assistant City Attorney
John D. Lê, Assistant City Attorney
Financial Impact section reviewed,
Annie To, Finance Director
Exhibits:
1. Matrix of Other Cities
2. Regulations for Administrative Hearings
cc: Eric Levitt, City Manager