Title
Introduction of Ordinance Amending the Alameda Municipal Code, Including Article VIII (Sunshine Ordinance) of Chapter II (Administration) to Clarify Enforcement Provisions and Provide for Other Updates and Enhancements to the Sunshine Ordinance. (City Attorney 10023040) [Not heard on July 20, 2021]
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. Accordingly, staff recommended moving toward a hearing officer model of Sunshine Ordinance complaint adjudication, in addition to making other updates and enhancements, including furnishing updated language for the now-excised null-and-void remedy.
On June 1, 2021, the City Council declined to adopt the proposed ordinance, and directed staff to return with an ordinance that includes only the updated remedies language (and other related updates and enhancements) for introduction and adoption as soon as possible. Accordingly, staff had presented the proposed ordinance in response to this June 1, 2021 City Council direction, placing it on the Council’s July 20, 2021 regular meeting agenda. The item was ultimately continued to this evening’s meeting.
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 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 City 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 AMC to replace the now-removed null-and-void remedy. Due to the press of other duties, the item in question was finally heard on May 3, 2021. Per City Council’s direction, staff has returned with various recommendations to update the remedies provisions of the Sunshine Ordinance. (The proposed ordinance incorporates Commissioner’s Lopilato’s comments submitted to the Council the morning of July 20, 2021 via email.)
DISCUSSION
Null-and-Void Replacement Language and Other Updates and Enhancements
For the City Council’s consideration, staff is transmitting the subcommittee’s proposal, the proposal of the newly-installed commission, and staff proposed amendments.
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 (CAO) 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. 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.
In summary, the newly-installed Commission approved the John Knox White Proposal, with refinements offered by Commissioner LoPilato. At the Council’s June 1, 2021 regular meeting, Commissioner LoPilato included the ordinance language approved by the Commission on May 3, 2021. See Exhibit 2 (Attachment to Correspondence from Commissioner LoPilato, dated June 1, 2021). Below is a summary of the Commission’s recommended changes in the words of Commissioner LoPilato:
• Posting of Actions Taken In Response to “Cure and Correct” Recommendations: The Commission has proposed adding a posting requirement in Section 2-92.4 (Notices and Postings) that was intended as a necessary complement to the Knox White proposal in replacing the ‘null and void’ remedy. In short, while the adjudicator of Sunshine Ordinance complaints now only has the ability to recommend that a policy body “cure and correct” a violation, the City’s website can be used to shine a light on those decisions and the originating body’s acceptance or rejection of that recommendation. This would create a digestible snapshot of the health of the transparency ecosystem in our city and provide the public with neutral information on whether any particular policy body is running roughshod over recommendations that it cure violations of the Sunshine Ordinance.
• Affirm the Commission’s Advisory Role in the Body of the Sunshine Ordinance: Section 2-93.2 (Complaint Procedures) addresses the procedures surrounding alleged violations of the Sunshine Ordinance. The Commission has recommended the addition of a subsection (d) which would clarify that, separate from any adjudicatory function, the Commission has the ability to make non-binding recommendations regarding steps to avoid future similar complaints.
• Null-and-Void Replacement Language: The Commission largely adopted the Knox White proposal with the following refinements (in “redline”):
Staff’s Proposed Amendments
Staff is largely supportive of the newly constituted Commission’s near-unanimous recommendation, as reflected in the proposed ordinance, including the foregoing posting requirements and the affirmation of the Commission’s advisory role. However, staff offers the following additional refinements:
• Maintaining Status Quo Pending Final Review by Commission: Staff’s proposed ordinance encourages, but does not require the City to maintain the status quo pending the final review by the Commission. 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. The Commission’s recommended language would only prevent prejudice to the City where there are “practical impediments to the conduct of the business of the originating body”. Stated another way, once a complaint is filed, regardless of its merit, the originating body (e.g., City Council) must maintain the status quo, prior to the alleged violative conduct, either to “the maximum extent authorized by law” or “to the greatest extent possible” so long as there are no practical impediments. In the example above concerning the City Council’s legislative agenda, it is unclear whether the Commission’s proposal would have prevented the City Council from offering its support for time-critical state legislation while the final adjudication of the complaint remained pending.
• Consideration by Originating Body. The proposed ordinance also makes clear that the Commission’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).
• Elimination of Monetary Fines. Further, 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, including by the Commission.
In summary, staff’s recommendation is largely consistent with the most recent near-unanimous recommendations of the Newly-Installed Commission. Mostly notably, 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, but does not require, 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).
ALTERNATIVES
The City Council may consider taking action on some, all, or none the proposed actions discussed in this agenda report.
FINANCIAL IMPACT
There is no fiscal impact anticipated from the proposed action.
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
Introduction of Ordinance amending the Alameda Municipal Code, including Article VIII (Sunshine Ordinance) of Chapter II (Administration) to clarify enforcement provisions and provide for other updates and enhancements to the Sunshine Ordinance.
CITY MANAGER RECOMMENDATION
The City Manager defers to the City Attorney’s office recommendation.
Respectfully submitted,
John D. Lê, Assistant City Attorney
Financial Impact section reviewed,
Annie To, Finance Director
Exhibits:
1. Subcommittee’s Proposal.
2. Newly-Installed Commission’s Proposal.
cc: Eric Levitt, City Manager