Title
Discussion of the Unfounded Determination [Not heard on May 2, 2022]
Body
At the April 4, 2022 meeting, the Commission approved discussing Commissioner Cambra’s below proposal at the next Commission meeting when there is business.
February 4, 2022
TO: Chairperson LoPilato & the Commissioners of the Open Government Commission
FROM: Jeff Cambra, Commissioner
RE: Request to Agendize the “Unfounded” Determination
As part of my personal “onboarding” for the position as Commissioner of the Open Government
Commission (OGC), I took the time to review the minutes of the 2021 meetings. I would like to recognize the commissioners of the 2021 OGC that initiated and worked on the revision of the bylaws of the OGC and developed the procedures currently used to conduct hearings of complaints. These were major accomplishments that took a considerable amount of personal time to develop.
The efforts of the commissioners reflected their commitment and determination in achieving the objectives of having an open and accessible government available to the residents it serves. The work done by the OGC in 2021 were foundational and will serve future commissions and the residents of Alameda for years to come. The community should be grateful for the work done by the OGC who worked in cooperation with the City Attorney’s Office. I certainly am. I believe there is one area that the OGC may wish to review as part of an update to the complaint hearing procedures.
During an examination of the Alameda Municipal Code’s Article VIII (Sunshine Ordinance), my attention was drawn to Section 2-93.8, d. which states,
A person who makes more than two (2) complaints in one 12 month period that are determined by the Commission to be unfounded shall be prohibited from making a complaint for the next five (5) years.
On its face, a five year prohibition to filing a complaint to challenge an action of the City of Alameda that may have not have complied with the Brown Act, California Public Records Act, or the City’s Sunshine Ordinance seems arbitrary in time and excessive when the purpose of the ordinance is to promote a more open government. Such a penalty could have a chilling effect on residents who may be raising legitimate concerns regarding compliance with the various open government laws.
Additional concerns involve proper notice to a complainant regarding the possible imposition of the five year ban prior to the filing of an initial or second complaint and the lack of clarity on what considerations individual commissioners would use to determine if a complaint was not only denied, but also unfounded.
The five year penalty was established by City Council action back in 2011, and it does not appear to have been reviewed by the Council during the 2020 amendment action. To be clear, the OGC does not have the authority to amend the penalty time period because it was established by Council action.
While the OGC could not amend the five year penalty provision, Alameda Municipal Code Section 2-22.4, g. does grant the OGC authority to establish complaint procedures. In fact, the OGC exercised this authority when it established the five possible rulings it can use in determining the validity of complaint.
The OGC has created a decision entitled Dismissed Unfounded. It is important that residents who wish to challenge a city action or inaction by filing a complaint with the OGC have notice of the impact of receiving an “unfounded” decision and what considerations commissioners would be using to support an unfounded determination.
I am requesting the OGC to consider agendizing the “unfounded” determination to evaluate
• the justification for a five year prohibition
• if there is proper notice of the penalty to complainants prior to filing a complaint
• the possible considerations or factors that commissioners might use in finding that a complaint should be denied as unfounded.