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Possible amendments to Sections 67.7 and 67.10 to 67.17 of the Sunshine Ordinance and subsequent sections as time permits. (discussion and possible action item) (attachment)
- Sec 67.7 Agenda Requirement; Regular Meetings.
- Sec 67.10 Closed Sessions: Permitted Topics.
- Sec 67.11 Statement and Reasons for Closed Sessions.
- Sec 67.12 Disclosure of Closed Session Discussions and Actions.
- Sec 67.13 Barriers to Attendance Prohibited.
- Sec 67.14 Tape Recording, Filming and Still Photography.
- Sec 67.15 Public Testimony.
- Sec 67.16 Minutes
- Sec 67.17 Public Comment by Members of Policy Bodies.
Member Pilpel noted that there are still some texts that are double-underlined in §67.3 that needs to be removed. There is an item that refers to a meeting as a hearing, but can't find it right now.
Chair Comstock: Member Pilpel I believe you expressed concerns about the posting of agendas outside meeting rooms.
Member Pilpel: My problem with that is, there are often meetings of bodies outside City Hall, where agendas can't be posted because there is no facility for doing so. And the provision to apply that requirement only to meetings that take place at City Hall creates a double standard.
Vice-Chair Craven: I'm happy to apply that requirement to all meetings; I believe that limitation was put in place in response to your concerns. I'd say just make the requirement and let each entity figure out how to implement it.
Member Wolfe: so strike the language that refers to meetings at City Hall and make the requirement for all meetings.
Member Pilpel: The posting requirements in 67.12 that may conflict – "shall be posted by the close of business" if the notice is required to be posted. And outside the meeting room could be anywhere, while adjacent is language used by the Brown Act. 54955 "posting conspicuously." This section imposes an additional burden, so now agencies have to plan further ahead. I'd be ok with posting outside the room if it was "not less than 45 days before the meeting." This burden would require agencies to get to the site to post agendas when meetings often don't take place where the office is.
Vice-Chair Craven: So we will take out "posted outside the meeting room" and add a new sentence at the end: the agenda shall also be posted outside the meeting room as soon as practicable, but no later than the start of the meeting.
Public comment regarding 67.7: Kimo Crossman asked that public comment be taken at the beginning of an item, rather than the end, and he said that San Jose is going to a 10-day notice, ten days for agendas and for staff reports and urged the Task Force to go to ten days as well. 72 hours is no longer the standard. There has also been an ongoing suggestion that there be an online calendar of all city meetings, this is being done by other cities, and we are falling behind. Also any action contemplated by an agenda item should be included in the agenda description.
Member Pilpel: it is in 67.7(a) on my copy.
Kimo Crossman: it is not underlined on the copy I have, so I did not note it.
Vice-Chair Craven: With regard to a master calendar, the question is, who has access to the calendar. We have a city calendar and an events calendar. You can say – in C. "and on the city calendar."
Member Wolfe: This is a technological thing; we have the capability, very simply to post these things online. If a committee were to post a change on their website, it would automatically change the master calendar. It is not as complex as some may think.
Vice-Chair Craven: There is a calendar of meetings and events on the website, so whoever is in charge of posting agendas and meetings on the current site, would have to have access to the master document, the question is, what we want to force the city to do.
Member Pilpel: the question is how far down we would want the postings to be required, Board of Supervisors, ok, but the all the smaller meetings, I don't think so.
Member Craven: this section only applies to policy bodies.
Member Pilpel: still it's a large number of bodies.
Chair Comstock: I had made this suggestion before, but heard no support for it at the C&A Committee, the idea I proposed would be to have a Virtual Sunshine Kiosk – I think this is the place for it 67.7. All we need is some language.
Member Craven: We already require posting of notice and agendas with the library, it's not that much extra work to also post on a central calendaring system, It would require some complexity, passwords, training and some protocol.
Member Pilpel: how about making participation in the kiosk idea voluntary, rather than required.
Member Pilpel: the language needs to include a link to the agenda.
Vice-Chair Craven: at the end of (a): and a link to the agenda on a central "master calendar" available on the City's website where the date, time and location of all city policy body meetings shall be listed.
Regarding 67.10: Kimo Crossman asked if the "master calendar" would also be used for posting notices for passive bodies. Chair Comstock responded that the language applies only to policy bodies.
Chair Comstock: there were questions and public testimony about the agenda posting at branch libraries being satisfied it there is a computer available.
Member Wolfe: "Readily accessible" should not include branches that have waiting lists for computer use.
Vice-Chair Craven: we had a lengthy discussion of this item already and decided to leave it as is.
Member Pilpel: what if the DSL or whatever is down?
Chair Comstock: in instances such as these, I believe the Library Commission could come up with their own policy as to how to deal with problems that come up.
Member Wolfe: as long as there is a commission or body that can deal with the "what If" minutia, it is ok as is. That would give flexibility as well as some problems may exist in some branches that do not in others.Member Pilpel: I want to look at subsection (i) "after the hearing" should be "meeting" and what does "go on the record" what does that mean? Is this referring to 67.16's requirement that a 150 word statement be included in the minutes?
Vice-Chair Craven: "discussion of the item" rather than "hearing on" and statements or comments received after the hearing "shall be included in the public record," rather than "go on the record." And this does not mean that it must be included in the minutes, but in the same folder or whatever.
Chair Comstock: 67.10 is next, but with regard to 67.9 there are some real concerns regarding text that need to be discussed. The specific problem some members objected to was the 48 hour requirement and the stipulation that a member of a body could request a postponement of an item if related materials were not posted for public consideration in a timely manner.
Vice-Chair Craven: that item is not agendized.
Chair Comstock asked the Administrator to scheduled §67.9 for the next special meeting.
Chair Comstock: 67.10 Closed Sessions.
Member Pilpel: "the employee complained" of should be the employee who is the subject of the complaint.
Vice-Chair Craven: or charges. This deals with employee evaluation, so responding employee is better. If the employee who is the subject of the discussion requests a public hearing, the hearing shall be public. Delete lines 10, 11 and 12. It doesn't make sense to allow a public hearing and exclude certain people. While in a trial circumstance this is meant to prevent collusion, it doesn't work well in that situation, and I see no reason to include it here.
Member Pilpel: back to sub (a) " when a body meets to discuss security matters" they're not required to make any findings as to what constitutes a threat. I think there needs to be a process to find that there is a threat. There was a former requirement that counsel had to prepare the justification for closed session.
Vice-Chair Craven: neither the Brown Act nor the Ordinance is clear on this.
Member Pilpel: I'd like to make the law clear that a committee could not hear an item in closed session unless they have jurisdiction over the matter.
Vice-Chair Craven: the question here is, should we require more justification for closed sessions than we already do? I believe San Jose requires someone to be responsible, under penalty of perjury in the statement of justification.
Member Pilpel: posing a threat to a public building, etc insert "under their jurisdiction" or the right of public access, etc. "under their jurisdiction."
Member Pilpel: It would like to strike subsection (c) the MOU. Since the MOU doesn't exist anymore, we should strike it.
Chair Comstock: asked DCA Llorente to check the status of this MOU.
Chair Comstock: 67.11 moving on.
Member Pilpel: does the justification for closed sessions have to be made in writing or orally?
Vice-Chair Craven: it should be stated in the agenda. It should read, "the case of regular and special meetings, the statement shall be made in the form of the agenda disclosures.
Chair Comstock: 67.12. So why is (e) underlined? Isn't this existing language?
Vice-Chair Craven: it was moved from 67.8-1 (b). Can we have a note here in brackets that it has been moved from that location?
Member Wolfe: in (f)(3) does that refer to itself, or to the entire city?
Chair Comstock: this only applies to the closed sessions to which this section refers. This section is similar to New Jersey's proposed rules, and just as they reserve the authority to adopt procedures to deal with the situations as they come up, we will need that leeway because some details may not have been worked out.
Member Pilpel: all prior closed sessions? Does that work?
Vice-Chair Craven: it's going to be fairly cursory. It will be a new burden on policy bodies. They can go through the list and confirm that disclosure would continue to be a problem, until they come to one, such as an expected litigation that did not materialize and the statute of limitations has expired, and they could then release the file on that item. After the policy body becomes accustomed to this requirement, they will set up processes that will make the quarterly review quick and easy.
Member Pilpel: the bodies will have to go back through their entire history and review each closed session?
Vice-Chair Craven: this is ongoing; it does not mean that they will have to go back 500 years. The words "all closed sessions" should be changed to "these closed sessions" to indicate that these are the sessions that have occurred since the adoption of this section.
Member Pilpel: so, for example, the Board held a meeting 20 years ago, and there are no existing members who were privy to those closed sessions. Are the new members authorized to disclose the contents of such a meeting?
Vice-Chair Craven: yes.
Chair Comstock: the new members inherit all obligations, rights and privileges of former members.
Sections 67.7 through 67.12 were discussed and the Administrator recorded recommended amendments.
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