Title
Minutes of the April 4, 2022 Meeting
Body
UNAPPROVED
MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING
MONDAY - - - APRIL 4, 2022 - - - 7:00 P.M.
Chair LoPilato convened the meeting at 7:00 p.m.
ROLL CALL - Present: Commissioners Cambra, Chen, Montgomery, Tilos and Chair LoPilato - 5. [Note: The meeting was conducted via Zoom.]
Absent: None.
[Staff present: Chief Assistant City Attorney Elizabeth Mackenzie; City Clerk Lara Weisiger]
NON-AGENDA PUBLIC COMMENT
None.
COMPLAINT HEARINGS
None.
REGULAR AGENDA ITEMS
4-A. Minutes of the February 7, 2022 Meeting
Commissioner Cambra moved approval of the minutes.
Commissioner Montgomery seconded the motion, which carried by the following roll call vote: Commissioners Cambra: Aye; Chen: Aye; Montgomery: Aye; Tilos: Aye; and Chair LoPilato: Aye. Ayes: 5.
NON-AGENDA PUBLIC COMMENT
Jay Garfinkle, Alameda, discussed Council actions being done in private and defended by the City Attorney’s office; urged the Commission to find ways to make actions more open; suggested citizens be involved in a public committee to determine what the Commission should be doing.
REGULAR AGENDA ITEMS CONTINUED
4-B. Training for Commissioners on the Hearing Process, Conflicts of Interest and Recusals
The Chief Assistant City Attorney gave a training.
Vice Chair Chen inquired whether the conflict of interest and recusal section only pertain to the Open Government Commission (OGC), not the City Council or other Boards and Commissions.
The Chief Assistant City Attorney responded the idea would apply to any legislative body in California; stated in this instance, she is giving the guidance to the OGC.
In response to Vice Chair Chen’s inquiry, the Chief Assistant City Attorney stated the Sunshine Ordinance does not cover a citizen bringing a complaint about a conflict of interest; the hearting would not be about a conflict of interest, the conflict of interest would come about based on the circumstances a Commissioner should recuse themselves because of a conflict of interest regarding the complaint.
In response to Commissioner Cambra’s inquiry regarding the ethical wall separating legal services, the Chief Assistant City Attorney stated the assignment of the advocate Attorney who is going to represent the City is generally done by someone other than herself; depending on the circumstances, the City Attorney may choose to assign it to someone in their office; sometimes the advocate role is assigned to outside counsel; she does not see or talk to outside counsel about any cases and just receives their submissions, including their briefings or arguments, in due course from the City Clerk; when the advocate is internal, the ethical wall is maintained and they do not talk about the pending case; in her role as Chief Assistant City Attorney, she generally stays as a resource or advisor for the other Attorneys in the office, but ceases that role when an Attorney is assigned to defend the City on a Sunshine Ordinance complaint.
Commissioner Cambra inquired whether the OGC does not currently have the authority or mechanism to deal with a Commissioner who refuses to recuse themselves from a hearing.
The Chief Assistant City Attorney responded in the affirmative; stated a process is not outlined in the Sunshine Ordinance; it would be plausible that the Commissioners could discuss and take a vote on whether or not to force a recusal.
Commissioner Cambra inquired whether the entire decision would still be invalidated, if it went to court, even if the non-recusing Commissioner’s vote had no impact on the outcome of the actual case or subject.
The Chief Assistant City Attorney responded it would depend on the type of case, but she believes the decision would be invalidated.
Speaker:
Jay Garfinkle, Alameda, questioned what citizens can do if a Councilmember does not recuse themselves since the OGC cannot address conflict of interest demonstrated by the Council.
Commissioner Cambra stated the training was really beneficial; he would like to see it incorporated in the on-boarding new Commissioner receive.
Chair LoPilato echoed Commissioner Cambra’s comments; thanked the Chief Assistant City Attorney for the training; suggested the City Clerk hyperlink the training in the onboarding materials.
Vice Chair Chen stated that she was reading an article about a Brown Act decision making a San Francisco School Board decision null and void; inquired whether the null and void piece is usually only within the purview of the Superior Court.
The Chief Assistant City Attorney responded in the affirmative; stated the private right of action still exists; pursuing the matter in Superior Court is always a vehicle someone could use.
Vice Chair Chen stated that for issues where people feel a decision was made incorrectly because of a conflict of interest, it seems that private action is the solution.
In response to Vice Chair Chen’s inquiry, the Chief Assistant City Attorney stated she does not want to say definitively that it is definitely a cause of action, but if someone believes that a decision was wrongly made, one of the basis that one may allege is that there was a conflict of interest in the legislative body involved which made it impermissible; it may be one of the grounds used when pursuing a private right of action.
4-C. Discuss Statutory Regulations Controlling the Hearing Process and Opportunities to Encourage Parties to Confer and Attempt to Resolve Issues Prior to the Hearing
Commissioner Cambra gave a presentation.
Vice Chair Chen stated she would like to hear from staff about having a complaint invalidated.
Commissioner Cambra stated that he believes there was a perception because the Complainant did not quite understand; if something allowed the conversation to continue, perhaps it would not have to come to the Commission.
The Chief Assistant City Attorney stated if somebody brings a complaint under the Sunshine Ordinance based on allegedly not meeting the Public Records Act, the complainant needs to be able to show there actually has been a violation; if the City is able to defend itself, there may be some argument that the alleged violation has not ripened and no wrong has been committed yet.
In response to the Chief Assistant City Attorney’s inquiry, Vice Chair Chen stated she that is speaking about the specific incident that triggered this issue; the City could potentially delay providing responsive materials without a violation.
The Chief Assistant City Attorney stated there is not a bright line answer in her opinion because it really depends on the circumstances and depends on the records; she cannot respond in a vacuum as to whether or not an amount of time is unreasonable in a particular instance from the standpoint of the Complainant; as long as the City complies with the 10-day or requested a 14-day extension and produces the records, it comes down to whether or not the time is reasonable.
Vice Chair Chen inquired if Commissioner Cambra’s suggested fix regarding the OGC developing procedures to include finding good cause for an extension of time would help, to which the Chief Assistant City Attorney responded that she believes that would be allowable.
Commissioner Cambra stated that he understands the Chief Assistant City Attorney’s explanation about reasonable amount of time; the frustration comes when all the Complainant hears is that the City is working on it; from the Complainant’s perspective, as long as they hear the City’s working on it, it is within the 15 days and they will have the option to go ahead and file a complaint.
The Chief Assistant City Attorney stated there would then be two competing narratives; one from the Complainant that there is a violation and the other from the City that they have complied; the threshold question the Commissioners would be grappling with would be whether or not the complaint is allowed procedurally.
Chair LoPilato stated her recollection of how the topic came up was the OGC was faced with a two-part complaint in December 2021: that the City did not respond in a timely manner and that the City failed to produce full records; the City advocate argued that the full complaint was time barred because it was not brought within 15 days; the OGC ultimately found the complaint about failing to produce records was time barred because it was not brought within 15 days of the 10-day window in which the City needs to respond; the OGC did decide to hear the complaint with respect to the merits of production and whether or not it was a full production on the basis of the finding that the statute of limitations was not triggered until the individual actually received a response; a variation on Commissioner Cambra’s question is whether the finding regarding the statute of limitations is triggered when an actual production or response is provided is based in case law or a statute and whether it should be part of the complaint procedures.
Commissioner Montgomery inquired whether there is anything that requires the City to release records in one lump sum and whether releasing some records constitutes a start of a response.
The Chief Assistant City Attorney responded that rolling productions are permitted and frequently used; stated it is a technique used to get some documents in the hands of the requester.
Vice Chair Chen stated that she was thinking of the other case regarding Police records when the OGC sustained the complaint; the Commission saw a pattern of certain departments not producing documents until being pushed; if the requester had not filed a complaint, they would not have received the complete documents requested, which seems problematic.
The Chief Assistant City Attorney requested Commissioners to stay within the confines of what is agendized; stated the agenda item does not ask Commissioners to go back and re-try past cases; discussing relative merits of past cases is getting close to going beyond what should be discussed; regarding Vice Chair Chen’s question about when a denial of records turns into a violation and when the 15 days starts ticking will not always be a clear answer; some situations present an easier case, but the situations need to be handled on a case-by-case basis; she wants the OGC to be aware if there is a legitimate question about when the clock started ticking and, more importantly, if the clock was supposed to start ticking, there will be arguments on both sides.
In response to Commissioner Montgomery’s inquiry, Commissioner Cambra stated he is not advocating for any position or decision; his report was to provide background on the perceived problem and concern; inquired whether there was some case law that might provide the Commission with some guidance.
The Chief Assistant City Attorney responded there might be case law; stated she is happy to look into it prior to the next time the Commission discusses the issue.
In response to Commissioner Cambra’s inquiry, the Chief Assistant City Attorney stated there is nothing specific in the Sunshine Ordinance that says a request is closed just by virtue of having filed a complaint; in the absence of anything like that, most likely the request would stay open; gave an example of a requester asking for 10 months’ worth of data and receiving months one through five filing a complaint because they were not satisfied with the extent of the data; stated regardless of the outcome of the complaint, according to the Sunshine Ordinance, months six through 10 need to be produced.
Speaker:
Jay Garfinkle, Alameda, stated that he made a records request, he was told it would take six weeks to produce documents; when he asked how will he know when it is time to file a complaint, he was told that he would have to decide that on his own; suggested that a requester be informed of a set date in which to file a complaint if documents are not produced.
Commissioner Cambra suggested the Commission look to see if there is any guidance from case law; stated that he does not feel comfortable going forward without knowing if there is a skeleton in the closet or a seed that has sprouted that would provide some guidance; he does like the estimate of time suggested in the public comment.
Chair LoPilato stated it is important to stay in the bounds of what the Commission is able to control and recommend; an estimated amount of time provided by the City Attorney’s office is more a matter of internal protocols; the Commissioners is trying to reduce unnecessary complaints; she likes Commissioner Cambra’s suggestions and the general spirit of reminders and information that could be provided to people about opportunities to extend the hearing to prepare evidence or even additional encouragement; one potential path she sees is having an individual Commissioner or a subcommittee work with the City Attorney’s office to identify specific sections to include additional language to flag for Complainants all available paths; suggested letting the issue sit pending another Commissioner initiating an agenda request for a future meeting.
Commissioner Cambra inquired whether it was acceptable to continue the item to allow the Chief Assistant City Attorney to do her research and then come back to Commission to engage in the conversation.
The City Clerk responded that if the Commission wants to continue the item, it needs to be continued to a specific meeting date and time; if the Commission just wants to provide direction to bring it back on the next agenda, it can be done and the discussion would be re-opened.
Chair LoPilato stated she is inclined to just having the item come back on a future date, rather than pinning it to a specific deadline so the Chief Assistant City Attorney could fold it into her workload appropriately.
Commissioner Cambra concurred with Chair LoPilato, stated he is supportive and would make a motion.
The City Clerk stated a motion is not required and staff could just take the direction to bring the item back.
Chair LoPilato’s inquired whether the Chief Assistant City Attorney was agreeable with the direction, to which the Chief Assistant City Attorney responded in the affirmative.
STAFF UPDATE
None.
COMMISSION AGENDA REQUESTS
6-A. Consider Agendizing the Unfounded Determination (Commissioner Cambra)
Commissioner Cambra gave a brief presentation.
Vice Chair Chen stated if people know what unfounded means to the Commission, they could look at their complaint and make a better decision about whether or not to file.
The City Clerk clarified that the term unfounded is defined in the procedure and read the definition: “Complaint rejected with the Commission additionally finding that the complaint lacks a reasonable or rational basis if two complaints are determined to be unfounded within a 12-month period, the complainant is prohibited from filing another complaint for five years.”
Vice Chair Chen stated that she is just not sure it is enough for a regular person to know what would be considered unfounded.
Speaker:
Jay Garfinkle, Alameda, compared the OGC procedures to the court system; stated the complaints he filed were reasonable and were not unfounded; suggested doing away with unfounded; stated all the discussion tonight is perfect evidence for the need to review the Sunshine Ordinance, get the public involved and find solutions that the public could go along with.
Commissioner Cambra stated that he looks at the issue as a two-part decision; if the complaint itself does not have merit, it will not be sustained; if through the course of interaction between the City and the Complainant there was inappropriate or harassing behavior, or if case law is presented that clearly shows the complaint has no merit but the complainant proceeds anyway, that could be the basis for unfounded; there was a concern initially that the complaint process would be used as a method to delay the legislative process; the Commission needs to be careful about when unfounded is being used and make sure that a Complainant knows what the Commission is thinking is unreasonable enough to justify an unfounded determination, in addition to dismissing the complaint.
Vice Chair Chen moved approval of agendizing the issue at the next available meeting.
Chair LoPilato made a friendly amendment to agendize the issue at the next meeting with other scheduled business.
Vice Chair Chen accepted Chair LoPilato’s friendly amendment.
Commissioner Cambra seconded the motion, which carried by the following roll call vote: Commissioners Cambra: Aye; Chen: Aye; Montgomery: Aye; Tilos: Aye; and Chair LoPilato: Aye. Ayes: 5.
COMMISSION COMMUNICATIONS
None.
NON-AGENDA PUBLIC COMMENT
None.
ADJOURNMENT
Chair LoPilato adjourned the meeting at 8:41 p.m.
Respectfully submitted,
Lara Weisiger, City Clerk
The agenda for this meeting was posted in accordance with the Sunshine Ordinance.