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]
In the last round of Sunshine Ordinance updates, we met with the Council to talk about various modifications. The most most of the modifications that the Council directed us to return to were changes to the remedies provision of the Sunshine Ordinance. And with respect to the remedies provision, the Council expressed interest in having us maintain the recommendation role of the Open Government Commission, but to return with the Open Government Commission's recommendation of keeping matters as much status quo as possible when a Commission decision has been rendered. We have met with the Open Government Commission throughout the last year on this topic, and that one major difference between our recommendation and the recommendation of the Sunshine Commission is or the Open Government Commission is, that we recommend that it would be an encouragement but not a mandate, so that city Garden City business can move forward as appropriate. Aside from that, the rest of the changes are minor and in the staff report itself, and we're happy to answer your questions. Thank you, Mr. Shen. Mr. Li, I can tell you in muted. Did you want to add anything? Can you hear me? Just fine? Yeah, just fine. I guess it's just a video. I have nothing to add. I just wanted to make sure you can hear me. All right. Thank you. And, Madam Cook, do we have public speakers on this item? We have one so far. Okay, Counsel, do we have any clarifying questions for Mr. Lay or Mr. Sheehan before we take our public comment? Should we take our public speaker first? Okay, let's do that. Madam Kirk, would you introduce our public speaker, please? We now have two, but the first one is Carmen Reid. All right. Good evening, Speaker Reid. Good evening, Madame Air and City Council Members. I would just like to bring attention to the penalties section in the Sunshine Ordinance. It's to dash 93.8 subsection D, and it states that a person who makes more than two complaints in a in a in a calendar year by the commission is 20. So if if a person who makes more than two complaints in in one year a 12 month period by the commission to which is determined by the commission to be unfounded shall be prohibited from making a complaint for five years. So I find this particularly concerning and this penalty seems rather harsh and unnecessary, especially because the LGC has not traditionally heard many complaints. And if our community wants a more open government, I recommend amending that clause to represent a more fair process instead of discouraging community involvement with the penalty that prohibits engagement. And I would also like to let you know that in San Francisco, the Sunshine Task Force, which is relatively equivalent or similar to the Open Government Commission in Alameda, they do not have a penalty clause like that at all. So it's something just to point out that they do not discourage public involvement. And perhaps we should also follow their lead. Thank you. Thank you. When we finish our public speakers, I'm going to ask the city attorney's office to comment on what exactly is before us this evening. And we have another public speaker. Yes, Jay Garfinkel. Good evening, Speaker Garfinkel. Good evening. I would second Commissioner Read's recommendation. My concern with the Open Government Commission and the Sunshine Ordinance is that while it made sense back around 2011, 2013, when the Sunshine Ordinance was created, it was aimed solely at enforcing the Brown Act. Since that time, we've all become aware of many issues that could use some more sunshine, but they are not related to posting of agendas. For instance, recently there was an error in an agenda and city staff went and changed what had originally been published. That's, um. That's uncalled for. Also, there are frequent additions to the agenda after its initial posting, and in the form, of course, it's finance. Now there is a number of people may submit correspondence over the ensuing two weeks and there's no notification given of the changes, the additions of the correspondence. There are any number of other items that need more openness and transparency. And I would suggest that we do what was what the Council did back in 2000, 11, 12, 13, whatever it was, create excuse me, create a citizens task force, just like you did for the police reform process. The difference I would make here is that I would have this meeting open to the public. I see no reason for secrecy. When discussing transparency, for instance, the ad hoc committee issue needs to be cleaned up. Most of what I've seen happening over the two years that the Sunshine Ordinance has been under scrutiny has been housekeeping. It's been items that restrict transparency. It makes the sunshine or the audit into the Open Government Commission almost useless. All it does is make sure that that agendas are published. Come on. That's not transparency. Yes, it should be done just as is required by the Brown Act. But there are a lot of things that go on in City Hall that the public is simply not aware of. And I think that a committee should be established to find out what the public wants to know and create a mechanism for doing that. Thank you. Thank you. Any further public speakers, Madam Clerk? Joshua. I'll tarea Gualtieri Altieri MEP. Yes. Yes. Good evening. Speaker off here. Thank you, Madam Chair. This is my name is Josh Schulz here. I'm the community relations manager at the Housing Authority of the city of Alameda. And I want to thank everyone for their time. And today I'm announcing the opening of the housing voucher waitlist for both our housing. Project and Mr. Altieri. We're really excited to hear about that. I'm thinking you are probably not speaking about the Open Government Commission and the ordinance amending the Sunshine Ordinance. Yes, that's correct. If you could hang on really briefly for Matt to finish this item and the clerk will see that you were called on in oral communications, which is very shortly. All right. Thank you. It's very important, very important information you have to share. And we look forward to hearing from you at that time under oral communications. Thank you. Thank you. And to I have and I might add, Mr. Asteria has been a member of my vaccine task force and doing great work. Any further public speakers, Madam Clerk? And there's John. Lay. It really is you, Madam Clerk. No additional speakers. Okay. With that, I'm going to close public comment on item six. E continued from July 20th. I did want to ask for a little bit of clarification. As I understand it, there are specific provisions we are looking at this evening with regard to the comments of the first speaker about a penalty section. A person who makes two complaints in 12 months is that Mr. Lay. Mr. Shin, help us understand, if you will. I'm happy to, Madam Mayor. We do not propose any changes to that subdivision of the code. It is a carryover from, I believe, the original or near original, the Sunshine Ordinance. And I believe the intent there was to. Limit the amount of time that complaints complainants if they file unfounded complaints to limit the amount of work that the city's commissions and staff would end up doing with respect to unfounded complaints. We do not make any proposals in this particular round of ordinance changes before you tonight. Thank you. He went to Mr. Lay. No other than that, the I'm not. Sure that the Open Government Commission which had. An opportunity to properly that that issue as well. Thank you. All right. So and then the other one was I was going to ask the clerk. Madam Clerk, could you just tell me a little bit? There was some reference to correspondence may be added, may come in after the original agenda is published. Can you tell us how you handle that? Yes, gladly. So any additional correspondence that comes in, we attach to the agenda item and then as it's updated, if it it's continuing over days, that new new information is coming in. We basically put the date that it was updated and keep adding the most current new additions on the top so people don't have to scroll all the way to the bottom and then it can see it quickly and understand what's been added. And would you say that you often find that correspondence is coming in right up until the time of the council meeting? Yes, ma'am. All right. Thank you for those clarifications. Okay. Council motion discussion. Where are you? Calls over her. Eric Spencer. Thank you, Mayor. So I would like to know if it's possible to have the commission review that penalty that was raised during the public comments of a key member not being allowed to come back for five to file any complaint for five years. I think that's a pretty I don't know what that was based on, but I think in a court of law, you would not see that. And I think it's pretty extreme. So I would like to know the procedure of how to get us to look at to look at that again. And in regards to what I think is being proposed tonight under 2-9, 3.8 penalty subsection A, I have concerns in regards to the use shall. There's two places where it's used here. And tell us if you would tell us again where are you in this is. It's penalties is the name of the stats. So exhibit one the subcommittee's proposal. I'm looking at. Exhibit are you looking at? Exhibit one? Exhibit two. Exhibit two. Same as the newly installed commission proposal. Yeah. So that's. Yeah. Sorry. So that's what I was looking at. Sure. I think the same language might be in both. I'm not sure which one we're supposed to be looking at. That's okay. Which. And your section was two point. 92-93.8 in the title is penalties. Yes. A. Okay. Okay. So. That's third and actually fourth and fifth sentences I believe use the term shall where you have. If I'm reading this correctly, the Open Government Commission is making a decision that they think a decision needs to be reviewed. And then they're saying that such a. Let me see where the sentence is now. Mr. Shannon has his hand up. Council Member Maybe I could be of assistance in, in the fourth exhibit, which is the staff's draft ordinance. You're probably looking at 2-9, 3.8. And in the beginning the red line shows that the original body, the originating body, i.e. the City Council, will be required to consider the Commission's recommendation with the use of the word shall. I believe that's where you're directing us. Okay. So tell me which exhibit you think that. Is in the fourth exhibit. So in the audience. The audience is one minus. Instead of a third. It would be the third exhibit, isn't it? The audience minus the third. Okay. We don't have a fourth exhibit. The fourth item after staff report is updated correspondence. Oh, you know, if you the online version has correspondence as a third and audience is the fourth. And so depending, I guess on where you look in the third or the fourth exhibit. Okay. So what's called Ordnance Stash Sunshine, is that what you're referring to? Yes, I believe that's where Councilmember Spencer is directing us to where her concern is that the originating body shall consider the commission's recommendation. Okay. The original. Okay. Okay. Is that where you are? Councilmember Harry Spencer. It's the same language I think is very similar. But my concern is that I think it needs to be may consider the recommendation. I don't I have concerns about the commission dictating to council that we must consider their recommendation because in the interim as the in the interim, then they also suggest or say that council should keep the status quo. And so I don't understand in this correctly, you have a decision made by council, which we did while I was mayor in regards to cannabis. And there was the issue raised which I look to the city attorney and I asked if they thought the notice was sufficient. The city attorney says yes, and then we proceed with making a decision. However, in the meantime, then there's a change at council and it comes back. But I think if I'm reading this correctly, it would be that the council would have to follow the lead of the Open Government Commission and essentially void that decision, relook at it and then make a decision. So I think that this needs to be may consider, but I don't think it's appropriate if I'm interpreting it correctly or commission to be dictating to council what they have to do. I think not to make a suggestion. Okay. I'm going to ask I'm reading it a little differently, but I'm going to ask the attorneys. Mr. Shay. Mr. Lay, there's this language. The originating body shall be construed as the Commission's recommendation and render a final decision on whether to accept or reject the Commission's recommendation in whole or in part. But it would tell us a little bit about those 2 to 3 sentences. Really? Sure. Madam Mayor, Councilmember Spencer, we're happy to help. So in the example that Councilmember Spencer provided, the commission, for instance, would render a decision at the council. Decision enacting an ordinance is unlawful. Under this proposed language, the Council will be required to consider that recommendation, and it does not automatically mean that the Council's previous decision was void . But you would have to agenda. Is it as soon as possible to consider the Commission's recommendation at that new council meeting? You may accept or reject the Commission's recommendation upon a majority vote, but you would be required to agenda as it and take action on the Commission's recommendation. If you changed it to May, then you may or may not consider the recommendation at your pleasure. To us, both of those are lawful approaches, and we would certainly take the Council's lead on which approach you prefer. Thank you. Any other councilmember, Harry Spencer, did you want to add anything to that or further questions? Yes, thank you. And then it continues on the subsection B of penalties, where, again, the city clerk manager, city attorney, as appropriate, shall promptly consider the commission's recommendation for counsel. I. So, again, I have concerns of the use shall throughout this section. And I really think that it's up to the council at that point, whatever council it is, to decide if they want to revisit an issue or not, and they can consider the Open Government Commission's recommendation. But I have serious concerns of the use of the word shall in both in both of those subsections. And I actually I think briefly, I think the city charter is very clear who has the power, the ultimate power. And I think it truly is council and not the commissioners, unless, in fact, there's a vote by the people to give that authority to the Open Government Commission. And I would question, I think, honestly, giving them power over words, telling us any time of the shall I think is a problem. Thank you. Okay. Thank you. The attorneys. Anybody want to? Weigh in on that. Madam Chair, we as you as you probably are well aware and Councilmember Spencer, we've had many meetings with the commission where the commission would have preferred to go much further than this. And at the end, this was compromised. We attempted to seek the maximum amount of compromise possible, given how far the commission was interested in going. If the Council wish to change the both shows, to me there are certainly no legal problems whatsoever and we can easily do it tonight. So if I'm understanding correctly, this pertains to public information. When there has been a complaint brought in, the commission finds that some there was some violation of providing public information. So may recommend to the city the steps necessary to cure or correct the violation city clerk, city manager and or a city attorney as appropriate to properly consider the Commission's recommendation and inform the Council of their final decision. Do we need another sentence that talks about what the what the Council then does with it? Not necessarily. Because on on the issue of public information, typically that's an administrative action. It's not the council doesn't typically take action on administrative actions. And so that's why we left this sentence in the cities, administrators versus the previous action where it's Brown Act violations, for example, when the council adopts an ordinance and that's why we included the council, the originating body, which includes the council. That's why the difference. Okay. Thank you. Okay. Other accounts from her. Spencer. Thank you. And thank you for asking that follow up question. So my concern would be what happens in our to open government makes a recommendation and then there's a time period before it comes to council. What happens to the council's decision that was made and now they're questioning the public access to the meeting? Does that decision continue moving forward or is it stalled? Mr. Chen. Yes. So the language provides that the city should be encouraged to maintain the status quo. So it will depend on the situation, largely the council by operation of law. The original council action is effective and so I'll give maybe a clear example. So for example, the council directed staff to lobby for a particular bill and there was only a month left before the session was going to end in that scenario. And if the staff do not lobby the council, the action will be nullified. In that scenario, it is more likely that staff would proceed, notwithstanding a commission decision, until the council reverses staff in a different scenario. Let's say the council directed staff to plant 1000 trees and it's going to take three years to plant those trees. Another two months delay would make no difference whatsoever. So in that scenario, I would imagine that staff would delay the planting of those thousand trees and then give the council the final say. Thank you. Other council members. Think. Okay. Do I have a councilwoman outside? I think can't go up. I think I simply wanted to thank all versions of the Open Government Commission that have given this consideration and city attorney Shen and staff, especially Mr. Lei, for their, I would say, very incredible hard work at trying to find a compromise that gets us to a place that provides some accountability at a certain point in time. May just allows the Open Government Commission to become even further a body that makes rulings but doesn't have that doesn't necessarily have impact on the way in which we do business. And I think that this language, with all the changes that have gone into it through the various public meetings, meets that compromise very admirably. It gives the city the flexibility whereby the harm from a finding is reduced, but also does give the public the ability to know that if if a finding of violation is found and there is the time to be here, that that it will be reheard and that that be cured at that point in time. So I'm ready to support it. So are you making a motion? Yes, sir. I will move approval of the of the ordinance as proposed by staff tonight. Okay. Do we have a second to that motion? And we'll continue with discussion. Vice mayor of L.A. We've got a second. I'll second if we can have time to discuss. Absolutely. Okay. We've had a motion by council in Oxford, seconded by Vice Mayor Vella. I think I saw Councilor it. Yes, I can go up. Is that correct? So what kind? Council member defect next, please. Okay. Well, thank you very much to the members of the public who have been involved in this, as well as the Open Government Commission members and our city staff. I, for one, would really like to hash this out even more. I'm not convinced of the language that we're seeing before us. The two areas of my concern let me focus on the first one, and we just had a brief conversation about that. It has to do with maintaining the status quo pending final review by the commission. So under this certain situation, as discussed by City Attorney Evenson and as asked by Councilmember Herrera Spencer if the city council makes a decision. That the Open Government subsequently finds troubling with regard to Brown Act or noticing or whatever under the current language that Lang the the decision of the city council. Should or should not move forward, depending on kind of the the immediacy of the issue as kind of outlined by city attorney even Chen. So if it's something as time sensitive of, say, you have to do something with regard to state legislation in those situations. Even if the Open Government Commission found something troubling with a council decision in those situations, the proposed language would allow the City Council to go ahead and move forward, even if the Open Government Commission found something troubling about that. In other scenarios, maybe there are some things that are kind of long distance in time. At that point in time, staff might defer to the to the Open Government Commission to delay a final decision. So here's here's the way that I see it. I think city staff needs to when they're putting together staff reports and agenda items, they need to factor in the the possibility that the Open Government Commission might have some questions with regard to how certain items are are noticed or gone through our Sunshine Act or or even the Brown Brown Act, the Sunshine Ordinance that is. So our city staff needs to kind of vet within before putting forward an agenda item. They need to do that kind of internal risk assessment and that should be done. I mean, if we're at a certain point where the Open Government Commission does find something that is troubling, I mean. Do we really want to move that forward, even if it's a time sensitive issue? Um, so I, I think in those situations, if the open government finds something troubling about something, then the City Council should revisit it and hold off on on finalizing its decision. So it should not be or should encourage the status quo, but it should be a must encourage the status quo. I think that's a critical part of giving our open government process effectiveness or or power, so to speak. So so I don't agree with that. The use of should encourage the status quo in cases where the Oakland government found something troubling with regard to the council decision. I think in cases where open government finds something that is troubling, the council should review that and hold off on on their decision, on executing their decision until having discussed it further. So that's less my viewpoint on that. The second point that I do want to talk about, what I'm concerned about is the idea that a person can't come back for five years. You know, I don't think that the situation in our open government is such that it's been so troubling where someone has just kind of mucked up the gears of the open government process. I don't think we've come to that situation. So I'm not convinced that that we have the reasons why we should impose such a drastic penalty at the end of the day. You know, if people want to come to city council, if people want to go to the Open Government Commission, that's their right. You know, if the Open Government Commissions don't like what they say or if they find them, you know, always raising things out there, just kind of mock up the gears. Well well, then the local government commission, I'm sure will will will act accordingly in their deliberations and their decision making. But I don't think we should be so heavy handed as to say, okay, well, if you have two things that are troubling and they don't pass muster. Well, now now you're you're, you know, put in the box for five years. I don't think that's fair. I don't think that's democratic. So, you know, let's let's let's let the people have their say, whether it's with the city council or with the commission. And council every day. I just want to remind you what Mr. Lay reminded us, that this issue may well come back before the Open Government Commission. We heard Councilmember Herrera Spencer ask that that happen, but right now it hasn't been vetted by the Open Government Commission and it since it's in the center, I propose that an earlier iteration of their body came up with it should be up to that body to reconsider. But I think that's what you're saying in not so few words, maybe. And that may very well be I'm just reiterating that that is just very drastic. But I think my key point is really the first point. I do think, you know, I agree. I was one of the first person to have concerns about the null and void power, because I just don't think the Open Government Commission has the power to declare things null and void. I don't think the charter gives them that power. So I, I'm going to have to say on that one to the Open Government Commission and to the public, I'm going have to say on that one, I'm going to have to go a staff. But on the matter of, you know, when when Open Government Commission challenges a council decision, I think those decisions should put be put in abeyance. They must be put in abeyance and it should not be should be put in abeyance. So that's where I am landing. So thank you. Thank you. Councilman, that's why. Did I see your hand going up again? No. Okay. Vice mayor of L.A. Yeah, I, you know. I'm going to be moving forward with the recommendations. I think that there have been several lively conversations with the GC. I do just want to put out there that I think we've had the ordinance in place for a decade, I think, or we're coming up on a decade. And you know, there may be a number of things that that, you know, looking back, we may want to change. This dog Sea and Sunshine Ordinance came about from large scale community conversation. And I think that there have been some proposals and differences of opinion about what may or may not be within the kind of the confines of the city charter. And certainly I think that if our constituents are interested in seeing certain things change and there's proposals to take action, whether it be through amending the charter or looking at different alternatives, I'm sure that we will have a robust community conversation on that. And I think that looking back after having this in place for for a number of years, this is a good time to do that, to say, is this working? Is this not working? But in the meantime, I think that there's been a tremendous amount of effort that has been put into the language before us tonight. And I'm prepared to support it. And I know I want to thank all of the volunteers who have served on the LGC over the years that this this item in particular has been discussed at length and proposals have been put forward. I know that there's been a substantial amount of time put into this and that, you know, there might not always have been agreement. But certainly I think everybody came from a place of wanting to have a better ordinance before the city and something that will make sure that we are being as open and transparent as possible. But I do want to encourage, you know, as the council, the city staff, the community, if we want to have a forum for a larger discussion on what open government really means, I think that, you know, we should have that and we can look at the different provisions and what the different options are. But that's not agenda tonight. And so I don't want to get into the specifics of what could or could not be proposed. And I want to thank everybody for their work on this. Thank you. Okay. With that, I think we've all been heard from maybe we have a roll cover, please. Sorry. Councilmember de thug? No. Herrera Spencer. They're not quite. High. Vela. Mayor as he Ashcraft. High. Net carries 3 to 2. All right. Thank you. Thank you, everyone. Thanks. And Mr. Lay, Mr. Shan. All right, so with that, I am going to adjourn the continued July 20, 2021 City Council meeting, and I will open the regular City Council meeting of September seven, 2021.