TO:
Honorable Mayor and Members of the City Council
FROM:
David N. Carmany, City Manager
SUBJECT:Title
Remaining Open Government Initiatives; Authorization for the City Manager to Adopt the Public Records Act Protocol; and Direction on Future Open Government Initiatives.
RECEIVE PUBLIC INPUT AND TAKE ACTION ON OPEN GOVERNMENT INITIATIVES
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Recommended Action
RECOMMENDATION:
Staff recommends that the City Council:
1. Provide the public with an opportunity to discuss the following Open Government Initiatives;
2. Provide direction on the remaining Open Government Initiatives;
3. Authorize the City Manager to adopt the Public Records Protocol; and
4. Provide direction on the appropriate forum for considering future Open Government Initiatives.
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FISCAL IMPLICATIONS:
There are no fiscal implications with the recommended actions.
BACKGROUND:
On August 13, 2013, the City Council had a publicly noticed meeting to address the remaining "Open Government" issues. The August 13, 2013 City Council agenda report is attached as Attachment 1. After public comments and a discussion among the Councilmembers, the Council directed staff to return on October 1, 2013 to provide another opportunity for the public to provide input prior to Council action. The draft excerpt ("Excerpt") of the minutes of that meeting is attached as Attachment 2.
DISCUSSION:
The Ad Hoc Open Government Subcommittee ("the Subcommittee") was formed in June 2011 to discuss, consider and make recommendations to the City Council regarding Open Government initiatives. The two members of the Subcommittee have been Mayor Lesser and Mayor Pro Tem Howorth. Since its formation, the Subcommittee has held eight publicly noticed meetings to receive public input, establish goals, create a vision statement, and develop initiatives to improve openness and transparency in City government. Each meeting was videotaped and archived and is available for viewing on the City website.
The May 21, 2013 City Council Agenda Staff Report, attached as Attachment 3, describes the various Open Government Initiatives explored by the Subcommittee since 2011. The initiatives were compiled for ease of reference on a "Matrix," which is attached as Attachment 4. The Matrix lists 28 Open Government initiatives, five of which are outstanding and require direction by the City Council.
At its July 2, 2013 meeting, the City Council received public input and began discussion regarding the remaining five initiatives. Thereafter, Council directed that this agenda item be placed on the agenda of the August 13, 2013 meeting to provide the public with an additional opportunity for input. After discussion on August 13, 2013, the Council directed staff to place this item on the Agenda for October 1, 2013, to provide another opportunity for the public to provide input prior to Council action.
Below are summaries of the remaining Open Government issues:
1. Special Meetings (Matrix Item No. 2)
Issue: The Brown Act requires that the City provide not less than 24 hours' notice of special meetings.
Should the City provide an additional notice period beyond the requirements of the Brown Act in advance of special meetings?
Recommendation: Continue to comply with the Brown Act. In addition, direct the City Clerk to provide at least one week notice for Council workshops, budget study sessions, and strategic plan meetings whenever staff is aware of such meetings in advance.
August 13, 2013 Council Comments:
Councilmembers want compliance with the spirit of the Brown Act, not just the letter of the law. Thus, staff should continue to (a) fully comply with the Brown Act's noticing requirements; and (2) notice special meetings in advance of 24 hours prior to the special meeting.
2. Format of City Council Minutes: Action or Summary? (Matrix Item No. 8)
Minutes serve as the official legislative record of City Council meetings and are intended to be a written account of the actions taken on the items presented at a meeting.
There are several styles of minutes including action minutes, summary minutes and verbatim/semi-verbatim minutes. As explained more fully in Attachment 8, City staff and the City Clerk's Association of California recommend action minutes. Every City Council meeting is recorded and archived and each set of minutes contains a reference and link to the video with the following statement, "For video of meeting, click on the following link."
Issue: Should the City Clerk take action minutes or summary minutes as a record of City Council meetings?
Recommendation: Use action minutes for City Council meetings.
August 13, 2013 Council Comments:
Councilmembers discussed the relative merits of action minutes and summary minutes. The Council sought and received input from the City Clerk. A Councilmember indicated he prefers action minutes, but that all minutes state that the audio and video of the meeting are on-line.
3. Public Input on Staff Reports prior to Publication (Matrix Item No. 18)
Issue: Residents have requested an opportunity to provide input on City staff reports prior to publication. See discussion in Attachment 8.
Should residents be provided with an opportunity to comment on or supplement City staff reports prior to their publication?
Recommendation: Direct City staff to explore additional opportunities for public outreach and input prior to finalizing staff reports and direct the City Clerk to distribute correspondence from the public prior to Council meetings so Councilmembers may consider such input prior to making a decision.
August 13, 2013 Council Comments:
As shown in the Excerpt, two Councilmembers stated that public input prior to publication of the agenda is not "appropriate" or "practical."
4. Public Records Act Protocol (Matrix Item 20)
The California Public Records Act is a State law that establishes and guides the public's right to access records concerning the conduct of the people's business. In March 2011, the City entered into a settlement agreement with the late Richard McKee (the "McKee Settlement Agreement") regarding litigation he filed against the City seeking relief for alleged violations of the Brown Act and the Public Records Act. A copy of the McKee Settlement Agreement is attached as Attachment 5.
Section 1a(iv) of the McKee Settlement Agreement provides that the City Manager "develop and adopt a protocol for responding to requests for public records which complies with the Public Records Act." In accordance with that provision, the City Manager developed a Public Records Act Protocol ("Protocol") consistent with the Public Records Act, which is attached as Attachment 6. While the Protocol has been developed and its guidelines are being followed by City staff, it has not been formally adopted. It was discussed by the Subcommittee and the City Manager has deferred its adoption until the Subcommittee's recommendations were considered by the City Council.
Staff also developed a Public Records Act Request Log ("Log") attached as Attachment 7, which the City Clerk has used since July 2012 to track City Public Records Act requests.
Issue: Should the City Manager adopt the Public Records Act Protocol and Public Records Act Log?
Recommendation: Direct the City Manager to adopt the Public Records Act Protocol and Public Records Act Log.
August 13, 2013 Council Comments:
Councilmembers discussed whether the Council should direct the City Manager to formally adopt the Protocol, and, perhaps, have the Council ratify it. One Councilmember commented that the City should consider improving the Protocol at a later date. One Councilmember expressed some concerns about the Protocol.
5. Direction on Future Open Government Initiatives
An outstanding question is whether new Open Government initiatives should be developed by an ad hoc subcommittee of the City Council or the full City Council. The work of the Subcommittee over the past two years raised the profile of Open Government initiatives and the adoption of various recommendations, but a City staff member and legal counsel who supported much of its work are no longer affiliated with the City. In the absence of City staff to develop new initiatives, biannual City Council Strategic Plan meetings provide a forum for exploring new Open Government initiatives.
The City is deeply committed to serving the public and increasing public participation. Regardless of the forum selected, City staff will continue to explore and identify additional opportunities for public participation and greater transparency for consideration by the City Council. For example, City staff members are developing a public engagement manual as a guide for staff to be presented to City Council at an upcoming meeting.
Issue: Should Open Government initiatives be developed by City staff for discussion at City Council Strategic Plan sessions or through a City Council ad hoc subcommittee?
Recommendation: Continue to encourage broad public engagement in community decision-making and develop Open Government initiatives at future City Council Strategic Plan meetings.
August 13, 2013 Council Comments:
Councilmembers thanked the Subcommittee for its efforts and acknowledged the time Councilmembers Howorth and Lesser have devoted to exploring and implementing Open Government initiatives. All felt that the full Council had an ongoing obligation to go beyond the spirit of the law for the purposes of open government and transparency. One commented that the Council, as a whole, should explore additional transparency.
The Council directed staff to return the five outstanding items to another Council meeting for the purpose of receiving further public input prior to taking action.
For ease of reference, prior staff reports and attachments are included in Attachment 8.
CONCLUSION:
Staff recommends that the City Council:
1. Provide the public with an opportunity to discuss these items;
2. Provide direction on the remaining Open Government Initiatives;
3. Authorize the City Manager to adopt the Public Records Protocol; and
4. Provide direction on the appropriate forum for considering future Open Government Initiatives
Attachments:
1. August 13, 2013 City Council Agenda Report
2. Excerpt of Draft Minutes of August 13, 2013
3. May 21, 2013 City Council Agenda Report from the Ad Hoc Open Government Subcommittee
4. Open Government Initiatives Matrix
5. McKee Settlement Agreement
6. Public Records Act Protocol
7. Public Records Act Log, February 25, 2013
8. Public Records Act Log, September 19, 2013
9. March 12, 2013 Ad Hoc Open Government Subcommittee Agenda, Staff Reports and Attachments
10. William Victor (MB Property Owner) Letter
11. William Victor (MB Property Owner) Letter 2