Title
Approve Report to City Council on Issues/Problems Arising from Implementation of the Sunshine Ordinance
Body
Prepared by the OGC Sub-Committee on Practical and Problems Encountered on Administration of the Sunshine Ordinance (Commissioners Rasheed Shabazz and Serena Chen)
I. Background
The duties of the Open Government Commission include advising the City Council on the implementation of the City of Alameda’s Sunshine Ordinance, developing goals to ensure the practical and timely implementation of ordinance, and report in writing to City Council at least once annually on any practical or policy problems encountered in the administration of the Sunshine Ordinance (Ordinance, 2-22.4 (b-d).
At the May 3, 2021, Commission meeting, Commissioners agreed to form a subcommittee to address practical and policy problems encountered and appointed Commissioners Chen and Shabazz to meet and report back at the next OGC meeting. The Subcommittee members met three times via telephone in May, July, and September.
After discussing the preliminary report at the 7/20/21 and 9/20/21 OGC meetings, the Sub-committee agreed to prepare a report to the City Council after a final approval the at the 10/4/21 OGC meeting.
Some of the issues covered by the Sub-Committee at the 7/20 OGC meeting have since been addressed: staff plan on conducting an orientation for new OGC members later this year; proposed amendments to the OGC By-Laws have been made and will be agendized on the 10/4/21 OGC meeting for approval; and amendments to the complaint process have been presented and will be further discussed and (possibly adopted) at the 11/1/21 meeting.
Through the latter two processes outlined above, the roles and responsibilities of the OGC members and the CAO’s office have been clarified, providing an operational framework through which new issues can be addressed.
II. Areas of Review
What remains are issues that have arisen in adjudicating complaints covering the Public Records Act (PRA); clarifications in the language of the Sunshine Ordinance as it pertains to Public Meetings Access; clarification of what constitutes a “conflict of interest” requiring recusal by members of the OGC.
III. Potential Courses of Action
a. Public Records Act
i. Background: Four complaints filed have related to PRAs. Three of OGC complaints that have come before the commission have related to PRAs (Klein, 2015; Shabazz, 2019; Morris, 2020). Two of those complaints have been sustained. Issues arising from these complaints and hearings inform the findings and recommendations.
ii. Shabazz 2019
1. On 1/22/19, Shabazz filed PRA requesting records related to APD and new law SB1421. City did not respond timely. On 5/29/19, Shabazz filed complaint. City responded stating there were no responsive records and attempted to dissuade hearing.
2. City claimed “hundreds of requests” per year.
3. Staff recommended finding of a “technical violation.”
4. Staff also claimed no pattern existed.
5. At 7/23/19 and 12/18/19 meeting, Commission found city violated timely response and sustained complaint as violation. Suggested remedy was annual PRA report.
6. Subsequently, City released info related to in-custody death of Shelby Gattenby to Shabazz (when??). The release of this information contradicts city’s claim that there were no responsive records, instead, [phrase that info could not be released yet due to whatever reason].
7. In a subsequent PRA (add date), Shabazz requested PRA logs for City. On xxx date, City responded with logs for [insert dept dates]. The City Attorney’s office requests were not included.
8. After follow-up emails, on [insert date], CAO released log.
9. Altogether, there were xx complaints between 201xx to 201xx. [see Exhibit xxx]
10. The complaint
11. Recommendation:
a. Add language to sunshine ordinance to include annual PRA report as part of annual report.
b. Format of naming convention to track total complaints.
iii. Scott Morris complaint
1. CAO denied request. Morris needed to follow-up multiple times to obtain records. Staff stated they would work with Morris to develop policy, but did not.
2. Complaint inaccurately reported as “voluntarily suspended” on annual report.
3. Raises concerns of pattern of CAO.
4. Although Olson Remcho hired as independent party, clearly coordinated with City of Alameda. [reference to Shabazz tweet]
5. Recommendation:
a. Staff create clear policy and publish to website.
b. Attend PRA training
c. City Council add similar staff evaluation metric for CAO as Clerk related to PRAs
iv. Olson Remcho Request
1. On [insert date], Shabazz filed PRA for invoices and contracts for Olson Remcho. City responded on 4/14 claiming exemptions for agreement and invoices.
2. Recommendation:
3. Commission recommend City Council direct staff to conduct report on PRAs, modeled after City of Oakland’s Public Ethics Commission [note May 2021 report].
4. In accordance with SO 2-22.4(e), the development of a report on Alameda’s public records system, modeled after the City of Oakland’s “Spotlight on Oakland’s Public Records System: A Data-Driven Review of City Agency Performance and Opportunities for Improvement,” Public Ethics Commission, City of Oakland, May 2021, <https://www.oaklandca.gov/news/2021/spotlight-on-oaklands- public-records-system>.
5. In accordance with SO 2-22.4(d), the development of a 10-Year Report that will provide
6. an overview of the creation of the Sunshine Ordinance and Open Government Commission ordinance and the accomplishments of the OGC and most importantly recommendations, based on the data and interviews with past Commissioners, staff, and complainants, as to how the Sunshine Ordinance and the Open Government.
v. Commission can be improved.
1. Develop goals and establish a timeline to address short-term and long-term “fixes” to ensure practical and timely implementation of the Sunshine Ordinance.
vi. Hearing and Complaint
1. Presentation of complaints - complaint should be listed first
2. Informal new alert
3. Representation of cases in Annual Report
vii. Ordinance improvement
1. PRAs
a. Pre-2019
b. Shabazz
c. Morris
2. Meetings
a. Chen I & Chen I
b. Foreman (ad hoc)
c. Garfinkle (leg. Agenda of city)
b. The City of Alameda’s exemption of ad hoc committee(s) to be exempt from Brown Act public noticing and access requirements has caused confusion because there is no definition of “ad hoc committee” in the definition section.
Under AMC Article VIII Sunshine Ordinance <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=54952.> - Public Access to meetings
2.91 - 1 Definitions (c) ((2)) “Passive meeting body” shall not include an ad hoc committee (i.e., appointed for a single purpose for a temporary basis)
The Brown Act <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=54952.>, however considers all commissions, commissions, boards or other body of a local agency, whether permanent or temporary, decision-making or advisory, created by charter, ordinance, resolution, or formal action of a legislative body [to be] considered a “legislative body.” (Brown Act, Chapter 9. Meetings, Section 54952. <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=54952.>)
The Brown Act does exempt advisory committees, composed solely of the legislative body that are less than a quorum of the legislative body - unless it is a standing committee. . .
Groups advisory to a single decision-maker or appointed by staff are not covered as long as they are not created by formal action of the legislative body, based on a 193 opinion by the California Attorney General. 56 Ops.Cal.Atty.Gen. 14, 16-17 (1973)
c. CAO provide clear definition of what circumstances constitute a “conflict of interest” and when recusal is required for the OGC and all “legislative bodies.”