Introduction of Ordinance Amending the Alameda Municipal Code by Amending, Adding and Deleting Sections of Article VIII (Sunshine Ordinance) of Chapter II (Administration) Concerning Local Standards to Ensure Public Access to Public Meetings and Public Records.  (City Attorney 2310)
Oh, there's PowerPoint. All right. All right. I don't like. Oh, I'm sorry. I don't think it was attached to sir. I had the ordnance red line and then the current ordnance and the staff report in the open government minutes is there. Well, there was but that but I think we can I think we can probably do without it. I'll get through the report. Do you want to see the red line? But you want to get through that? Okay. Absolutely. Exhibit one. Sure. I think that might be. It's not on. Yeah. Yeah. We don't have a problem. Should pull up exhibit one, the red line. I can just walk through that. That'd be great. Madam Mayor, members of the council, Michael Roush from the city attorney's office, this matter as the amendment to the Sunshine Ordinance is back in front of you. It was before the council back in October of 2015. The council looked at a number of changes at that time, accepted some and sent some back to the Open Government Commission for its consideration with a recommendation back to the Council. There are three major items that the Council wanted the Commission to look at further, and those are the items that I will address tonight. The other parts of the redlined ordinance I certainly can come back to if anyone has any further questions about that. Well, let me focus on the three major items and those items being the use of electronic devices at meetings. The amendments to the provisions concerning responsive responding to Public Records Act requests. And the third item having to do with the training. The Council will recall that we had recommended that the prohibition on the use of electronic devices be fairly broad so that they would not be able to be used at the meeting. Council had some concerns about whether or not that was unnecessary, if the prohibition was too broad. And so we sent the matter back to the commission for it to look at, and it came back with the language for that section that essentially reads very succinctly in order to ensure that all communications to policy board members presented in a public meeting are shared with the Public Policy Board members are prohibited from communicating electronically with others during public meetings that pertains to the business thereof. This is in section 2.91891.4 Subsection H. And so we would recommend, based on the commission's recommendation of that, that that language be adopted, but with one slight change, and that would be after the word meetings that we add about matters. So the last part would read the policy board members are prohibited from communicating electronically with others during public meetings about matters that pertain to the business thereof. We think that will make the sentence read a little better, clarify it. And so we would recommend that be a slight modification to what the Commission recommended. The other primary change is in section 2.9, 2.2, talking about the circumstances under which public records must be provided to people who request them. Currently, the way the ordinance reads is that there is a very short time frame or for the city to respond when a person makes a request for public records. Basically within a three day period informing the person who, how and when those documents will be presented, that could be a trap for the unwary. For example, if a a for example, one of the requests came to a an elected official who may have been out of town and would know about it until he or she got back. It would be a technical violation of the ordinance. And certainly that's not the intent of what this ordinance is supposed to do. So what what the commission has recommended is that that that language be deleted from the ordinance, and instead the language in the Public Records Act be inserted, which basically still provides a barrier, a very short time frame in which to provide those records basically ten days, but also allows for the records to be produced in a slightly longer period of time when there are unusual circumstances and the ordinance defines what those unusual circumstances are. For example, if the records are very voluminous or if they have to be obtained offsite and again, we paraphrase what's in the Public Records Act itself. The the final area. Has to do with the with the training section. Currently, the ordinance provides that there will be annual training on the Sunshine Ordinance. As much as everyone loves the ordinance, I would like to have that annual training. It probably is an overkill situation. So we are recommending that it be done every three years rather than every year. We typically tape those recordings or tape those presentations so that as people are hired by the city who are required to review the ordinance or as people are appointed to policy bodies or new council members come on board, they can review that so that they'd be up to speed in terms of what that ordinance provides. So with those being the three major changes, the Commission is recommending that the ordinance be amended as set forth in the red line version, and I'll be glad to answer any questions about those changes or any other changes. Clarifying questions. We do have one speaker. I'm going to go ahead and call the speaker then at this time, Irene Dieter. Hello, Mayor. City staff and City Council. As a member of the Open Government Commission, I wanted to thank you all for your very thoughtful discussion last time on this issue and for taking the consideration of the Commission's input. I really appreciate it. It actually broadened my perspective of different areas within the ordinance, and it also showed how advisory bodies in the city council can work meaningful, meaningfully together to accomplish the task at hand. I'd also like to thank the City Attorney's Office for working to synthesize all the input that we made and going into all the intricacies of every little detail. I really appreciate that. And the one thing that I wanted to talk to you about is I think there's one mistake that is in the red line version and understandably so. I it was pretty hard. We talked about public discussion, public comment in a couple of provisions within the Sunshine Ordinance. And I think there may have been a mistake about not deleting one little section in the ordinance by accident. If you even look at the minutes of February 2nd and March 30th in your packet, it explains the whole conversation of the commissioners . So that one section that I'm referring to is on public comments by members of public bodies, which is 2-91.17. City staff had recommended that there be language added to that provision and of the thoughts that were the recommendation that the commissioners expressed was contrary to that, that we didn't think it was conducive to the Sunshine Ordinance to admonish volunteer board members that they can be removed by the city council, particularly in such a positive document, and particularly because it's under the public comment section. So I do think it was an oversight and I think it should remain committed. And I hope that you agree. And if you're unsure about it, the Open Government Commission can always look at it on the next go around of edits to the ordinance. So other than that one sentence, I urge you to take steps, recommendations from the Open Government Commission. Can you clarify? Are you speaking what sentence? The one that's in red? Yes, the one that shows that it's been added. All right. The one that talks about the removal. Right. Thank you. A bit harsh. Yeah. All right. That being said, any other questions, Vice Mayor? I agree with the speaker in that section. Should. I would like to see it deleted. I hope my colleagues agree with me and also on the the training section. I'd like to have my colleagues consider adding a training when the ordinance is revised. And I think you can say every three years, but I think there should be some sort of notification or training upon revisions, and we would agree with that. And just coincidentally, assuming that these amendments were passed, we certainly have training planned for this summer that will discuss the whole ordinance as well as these amendments. May I suggest that perhaps that that training occur when there, say, substantive or significant substantive changes to the ordinance? I mean, there may be some tweaks here and there that may not necessarily trigger the need for the training. But certainly when you have these kinds of revisions, we would certainly think that would be a good idea. I'm amenable to that. Yes. Thank you. Member Ashcroft. And so I am. I agree with Miss Dieter. And by the way, in reading the minutes, I really appreciated your comments. I thought they were very well stated and persuasive on this Section two, dash 2.91, Dash 17 Public comment by members of policy bodies. Notwithstanding that language, there is still the direction that we as members of the City Council have had that if we were to say, attend, oh, a planning board meeting and say express our opinion about some matter pending before the planning board that then comes to the city council, that could create a problem for us of a different kind. Is that something separate and apart from the Sunshine Ordinance? Correct. The the issue that that you raise is whether or not an appearance before an advisory body, let's say, with respect to a quasi judicial matter in particular, and and a council member expresses a viewpoint there. And then that matter comes to the city council, whether or not your participation would be construed as undue bias, and that might be a problem. Section 91 two, Dash two, Dash 9117 really doesn't address that. It really seems to go to a somewhat different issue, but the point you raise is valid. But the sunshine on this doesn't really address that. Right. And I think it's covered in case law in other other areas that the point I raised. Okay. And so any other questions or comments from Council member Jody? So if if we do take out that entire sentence on 2.91, just 17. The. It's the part. It's not the whole section. Yeah. The sentence. The part that says. Nothing. Nothing shall be construed to provide rights to appointed policy members beyond those recognized by law or to create any new private cause of action. I mean, is that something that we might want to keep in there? I mean, I agree that if you have something in the charter that is there, there's no really need to reference it because it's kind of like overkill and it is kind of a little bit kind of pointless to get somebody. But is there some some reason why that second part of that sentence is in there? Well, I think it it certainly wouldn't hurt to have that in there. I think the idea is that this section expresses the idea that that advisory body members and policy body members have the right to express an opinion. But we certainly don't want to necessarily create some sort of. Right. Should the council take action under the charter section to remove someone that someone would then say, Well, I now have some kind of vested right or some sort of liberty interest, which now you've created, that would then give me a cause of action to litigate against the city. So I would agree with Council member Ody that if you take out even if you take out that introductory clause, that you leave the rest of it in just as a belt and suspenders approach. And nothing in this section shall be construed to provide correct rights to blah, blah, blah. Leave it. Leave it there to the end. It's actually sorry. It's actually referring to section 10.10, dash nine of the city charter. So I will leave it to the legal eagles to reword it accordingly, because you can't just make that clause the sentence. We'll have to tweak that a little bit. But if the concept remains, if the council is an agreeable to keeping the concept, then we can work that language in appropriately. I think it's a point well taken. I think we need us. I think we need to get the language, though, because this is first reading. If you want to go through that, another first reading. So perhaps if I understood what you're suggesting, Councilmember, is that in the read section, we would delete the in that in that section two nine going down one, two, three, four lines and adding nothing . Well, adding something that, you know, prefaces that. Nothing. Nothing in this section. Nothing in this section or nothing in the charter shall be. Construe, construe to and then pick it up with. Nothing shall be construed to provide rights to. Something like that. Just so. Yeah. I mean, that part, I think, has some value. So I swear. I. I'm I'm I'm not seeing too much value in there because it's already by law. So the entire red line section from in that section 10.9 all the way through new private cause of action, I would say just delete it. That would be my preference. My preference is to delete it. And I think that that's what. The and we're addressing a problem that's not there. I, I think. So at this point. I'm just concerned that we're going to has the city attorney said they were going to create some private cause of action, that if for some reason the city council did remove somebody that could say, they could say I was removed for exercising my free speech rights. This is under public comment under a section of public comment. And I would I would support the Open Government Committee's discussion on this and value that. And at this point, we've had a representative and we know we share their that sentence in its entirety to be stricken. I would agree with that. But I mean, I have a right to have a differing opinion and I just want to protect the city from. So is there a consensus to honor the work of the prior committee with this report to us or to make this change? But if I would, I would characterize it as that. I think I'm perfectly fine taking out the part that refers to the city charter and the note the mention of the council being able to remove somebody. But I think there should be we should at least provide some protection that we're not giving anybody any special right or creating any cause of action. Is that not true, then, with every one that serves on anything, I mean, why would that even be necessary to be included? You can always say you're not giving anyone one any additional rights for any reason unless it is actually affirmatively stated that you are providing that. I'm not sure why you would need to say that you're not. That's a belt and suspenders as the city. If if the council would like to leave it in, it should read something along the lines of. Nothing in this. Nothing in this section concerning the exercise of a member of a policy body to make public comment is intended to remove the council, is intended to prohibit the council member, etc.. That would be again, I think that gives the cat, the council and the city the most protection. But is it critical? I mean, I don't think it's critical. I think it gives you more protection than not having it. And may I make one suggestion? So what I would just do is I would remove all the reference to nothing, you know, is intended to prohibit the council from removing a member. But I would say no sentence, nothing in this section, because we've already discussed what the section is about in the first sentence. So nothing in this section shall be construed to provide rights to appointed policy body members beyond those recognized by law, or to create any new private cause of action. And I do think that's just a good safety precaution. As you know, we do get sued. And so it's I don't and I don't think that that has any kind of harsh implications back to the policy body members. So I appreciate that. I actually don't know when this city was sued by an appointed policy body member. And I am and I'm considering. The standard. I'm concerned with that suggestion that that's actually a concern. So do we have a motion to make? You had a motion, right? No. Did you? I will put one in. Yes. I moves that we adopt the. Ordinance presented with the exception of removing the red line section and 2.91-17 into. To consider adding the words to. A required training session when there are substantial, substantial revisions to the ordinance. Then I think staff had set about to add the words about matters to subsection H. Earlier to include that. As described by Mr.. Rausch, an American. All right. I have a question for our staff member. Question for the staff. So what is ultimately staff's recommendation with regard to this discussion that we just had? I mean, whatever staff recommendations I'm fine with. Well, I think again, I think that Councilmember Ashcroft's suggestion is is a good one for providing. Support for a situation where there could be some type of litigation filed because somebody might be removed based on public comment is a critical. The answer is no. Is it better? In my opinion, the answer is yes. Okay. So my concern with that would be that it could be chilling to members of the public to actually serve and then to speak, which is actually contrary to what we're trying to do here. We're actually speaking specifically that we do allow members of public bodies to also speak. And that's what this. Is about. With The Voice. I tend to agree with that because I think there's a problem. It's a problem we don't have and we've never had. I think the risk is low. It's always better to pile on protections, but then it becomes unreadable or not comprehensible. So I think the risk is low enough to excise the entire section that was red lined in. So there's the motion of. I'll second it. All those in favor. I. I. All those. And I suppose. I'm going to vote no and. Nothing. So a motion fails. Two in favor, three oppose. There another motion. I will make the identical motion that the Vice Mayor made with the friendly amendment that we include. The clause that I had stated in my comments. Their second. Second. Although some favor. I. Oppose no oppose. So three in favor to oppose motion carries next item six d. Adoption resolution, adopting an addendum to the Certified Final Environmental Impact Report for the Army to point project for a new ferry Terminal Lagoon in Alameda Point approving a memorandum of understanding between the City and Water Emergency Transportation Authority and provide a framework for collaboration on funding operations and maintenance of the ferry terminal and approving a ferry terminal plan. Yes. All right. Good evening, Mayor. Councilmembers Jennifer Bass, news director. We're here to ask you to take two or three actions tonight, all related to implementing a new ferry terminal at the seaplane lagoon at all points. So the three actions are approve seaplane lagoon ferry terminal plan approved memorandum of Understanding with the Water Emergency Transportation Authority and then adopt an addendum to the army to point the air. A little bit of background. The reason we're doing a ferry terminal plan, other than it makes sense to have a plan when you're moving forward with trying to obtain funding and other things, is that the disposition and development agreement the city entered into last year with Alameda Point Partners contemplated ? This is an important step. It was very important to AMI to point partners to facilitate the development of a new ferry terminal. And we'll talk about why on another side and as well as part of the city's plans for for the base to have a ferry terminal. And so it made sense to jointly develop together as partners as part of this DDA, this planning effort to start to work towards that Sea Plan Lagoon Ferry terminal. And so became kind of a essentially a condition to closing on the land as a condition that both parties agreed to to work together to adopt a ferry terminal plan. So that's what you have. That's one of the actions you have before you tonight. And the other is the memorandum of understanding. And this is really in line with having we, the Public Water Transit Agency in the Bay Area, provide that service for us, just like they do at Main Street and Harbor Bay. And part of in order to essentially move forward with a new location and expansion of ferry service, there's a policy that the water merchants wish to has that requires this kind of a number of steps that you follow and trying to implement that new service that they've adopted as part of their expansion policy. And one of those key steps is to adopt enter into a memorandum of understanding. And so that's why we're here tonight with that menu. And we'll talk more about each of these. Also, just as as a side note, and we'll talk a little bit more about the money. But our main point partners as part of their disposition, a development agreement agreed to provide a $10 million upfront contribution towards the construction of that new ferry terminal. The benefits. I want to stop and kind of do a little bit big picture before we get into the details of each of these documents. But there's a number of reasons. And when we the staff came to you with the site project in June, there were a big part of this was really focusing on the ferry terminal and the importance of it and all the benefits for not only, we believe, for the city, but for the developer and for the Water Emergency Transportation Authority. And this kind of combines all of those. But the from the city's perspective, why staff is recommending this to you tonight is really, we believe, as part of this strategy of getting people out of their cars developing. And I'm at a point in a smart way that really minimizes traffic impacts and congestion as having a transit hub at the heart of Alameda Point is an important component of that. And to do that as soon as possible so that you are attracting residents, attracting employers that are coming to the site because you have a ferry terminal, because there is ferry access to San Francisco, so that you're attracting people that are already predisposed to using transit. And so that is a key component of our overall transportation strategy and a key benefit to having that ferry terminal at the Sea Planet, going within walking and biking distance, but primarily walking distance of where the residents