For six years, the Vanguard has believed that Davis needs to both extend and codify its open government provisions. This November, the city of Dixon, which is also a general law city, will have an ordinance on the ballot that will put sweeping changes in their open government policies into effect.
On Friday, I presented this proposal to the Davis City Council. There have been some modifications since then. Many of the provisions have been taken and often modified from the proposals in the Dixon ballot initiative. In addition, there are some additions to that ballot initiative that the Vanguard is proposing.
It is the hope of the Vanguard that the city council can introduce this measure in some form by March. A number of items in here need to have clear city policies. While we make specific proposals at times, the specifics are subject to discussion, adjustment, negotiation and compromise.
The Vanguard is prepared, if it is necessary, to put this matter on the ballot sometime in 2013 or 2014 where the citizens can vote on it.
I will quickly summarize some key provisions in the ordinance and then put the proposals in their entirety at the end of this article. I will note there is language that is lifted from Dixon that is in legalese, but much is my layman summarization of proposals that will obviously have to be drafted if and when this needs to go on the ballot.
In California, public bodies are primarily subject to two laws. First, the Brown Act requires provisions for holding open meetings, including noticing of those meetings and providing materials in a timely basis, as well as precluding a majority of the body from conferring in private to make decisions outside of the public light.
On the other hand, the California Public Records Act, weak as it may be, provides that public agencies are required to disclose their documents and inner workings to the public upon specific request.
While these laws set the floor for conduct of the public agency, in most cases they represent only the minimum requirements. Where exemptions are not specifically exclusive, the agency is entitled to go well above and beyond the requirements of both laws. This ordinance seeks to, in many cases, maximize transparency and public process.
In the era of digital communications devices, it seems necessary to specify policies and procedures, particularly during council meetings. The Vanguard did not go as far as the Dixon initiative in proscribing their use. Instead, we simply wish for any communications to be subject to both the Brown Act and the Public Records Act.
Thus, a majority of council could not communicate privately on the matters before them via these devices and at the same time, text messages and emails should be subject to disclosure under the Public Records Act.
We establish both citizen and council free speech rights. The Vanguard believes there need to be uniform policies regarding public comment and council comments that should change mayor to mayor. The provision would set three-minute time limits, would not require the speakers to identify themselves (consistent with the Brown Act Provision), and would allow, under specific circumstances, extended time for speaking.
At the same time, we believe elected councilmembers should not be subject to limitations in their speaking time. However, we do establish a four-fifths rule that would prevent the possibility of filibustering.
We have a provision that allows members of the public to put items on the agenda. There have been times when the council and city staff have appeared to block discussion of some items. Davis is an engaged community and it seems appropriate that citizens should be able to put matters before the council, at least for discussion.
One example is that the Vanguard has attempted for several years now to put a records retention policy before the city council. For several years we have known that the city’s records retention policy is out of date, they have destroyed video recordings of meetings until not that long ago, and there has been no avenue for getting the issue addressed.
Moreover, several councilmembers have promised to address an Open Government ordinance, but for many reasons, time and busy schedule being at the top, this has not happened.
We also include an internal lobbying limitation. This is an area of serious concern that would prevent city employees, council members, or the agents of either, from lobbying or briefing a majority of council members on pending actions.
This would prevent a powerful union from being able to lobby the majority of council on a policy. It would also prevent the city manager from gaining consensus on an item before council. I remember a few times that Former City Manager Emlen would use as a negotiation tactic with outside groups that he had a majority of council on his side. This would prevent his ability to do that. In short, the Brown Act prevents an elected official from being able to reach consensus outside of public view, so why should an unelected official be able to do so?
Right now the council can meet in closed session and the matters before them stay hidden from the public in perpetuity, unless there is reportable action. The changes here would force the council to disclose matters as much as possible, it would require recording the proceedings and having to justify withholding information beyond a certain length of time.
We would change a lot of public record policy. We would require the city to keep logs of documents to facilitate public access to information. We also change the record retention policies requiring the storage of video recordings and communications. It would also clarify city policies on private email disclosure requirements.
We would also change campaign finance reporting policies and require online postings of donations and donor information.
Finally, we would create a special commission to oversee city policies. Right now we foresee a five-member commission, each member appointed by a member of the council, that meets quarterly to review city policies and oversee complaints.
—David M. Greenwald reporting
Key Provisions of Draft Davis Open Government Ordinance
1. Create Davis Open Government Act
a. Supplement the Ralph M. Brown Act and the California Public Records Act with rules providing the public with greater access to meetings of City legislative bodies and to records of City departments and officials.
2. Meeting Schedule
a. Open Session City Council meetings would begin no earlier than 6:30 p.m. and end no later than 11:00 p.m.
b. Time can be extended by a unanimous vote of the City Council.
c. No item can begin after 10 pm
3. Meeting Agendas
a. Any member of the public may request a member of a legislative body to place an item subject to the body’s jurisdiction on its agenda for a future meeting. Any request signed by 20 or more Davis registered voters must be considered as a demand for placing an item on the agenda without the support of any member of the legislative body.
4. Meeting-Related Documents
a. All Agendas and documents should be posted on the website and in publicly accessible locations no later than noon Thursday prior to a council meeting
b. Except under limited circumstances, any substantial documents must be available at the same time or the item should be removed from the public calendar and placed on the next available agenda
5. Digital Communication Devices
a. “Digital communication device” includes smartphones, laptop and tablet computers and other similar hardware capable of sending and receiving electronic messages or accessing the Internet.
b. Communications between members via digital communications devices during the meeting should be subject to all Brown Act limitations
c. Information sent, received or stored on such devices is subject to the applicable records retention statute in the Government Code and to the disclosure requirements of the California Public Records Act and this Chapter.
6. Citizen Speech Rights
a. On each agenda item members of the public shall be permitted to address the body, with no additional time constraints (3-minute comments) and without identifying themselves, when the item is taken up for discussion.
b. Members of the public, who are considered “parties” to the action, can request at the time of the meeting additional time to adequately address points
c. The Council shall not prohibit public criticism of the body or staff, expressed either orally or by holding signs that do not block the view of others attending.
d. When the council substantially changes a motion on the floor, they should consider a second public comment section with comments limited at that time to one minute
e. Speakers have the right to use presentation tools, which shall be provided by the City, if available and requested five business days in advance of the meeting date, or if supplied by the speaker and brought to the meeting room before the meeting and installed and loaded by staff.
7. Councilmember Free Speech Rights
a. Every member of a legislative body retains the rights of any citizen to comment publicly on the wisdom or propriety of government actions, including those of the legislative body of which he or she is a member.
b. Bodies shall not sanction, reprove or deprive members of their rights as elected or appointed officials to express their judgments or opinions, including those judgments or opinions pertaining to the wisdom, propriety or lawfulness of discussions or actions taken in closed session.
c. The Mayor or Chair may not attempt to limit or otherwise infringe on the rights of councilmembers to speak during meetings
d. The Mayor may limit discussion prior to an item or during an item by consent of four-fifths of the membership.
8. Internal Lobbying
a. No City employee, member of the council, or agent of either shall privately lobby or brief a majority of the members of that or another legislative body, either at one place and time or serially, to propose, oppose, or otherwise discuss any recommendation or agenda item pending or to be submitted to such legislative body.
9. Closed Session
a. The Council shall not meet in closed session until the presiding officer and members of the body have had the opportunity to discuss the basis for convening into closed session, to ask questions, and to respond to questions from the public.
b. Immediately following the end of any closed session where no agreements were made or final actions were taken, the legislative body shall make a report in open session describing all other matters decided or any direction given either by unanimous consensus or vote, and if by vote, the vote or abstention of each member.
i. This disclosure shall be followed by an opportunity for public comment and a re-vote in full view of the public
c. All closed sessions of any legislative body shall be audio recorded in their entirety and made a part of the record of the meeting. The recordings shall be archived in the custody of the City Clerk. These recordings and any other records of the closed session shall be made available to the public whenever all rationales for keeping the records confidential are no longer applicable. The City shall provide equipment on site allowing for immediate review of the audio tape.
d. All audio recordings made in closed session are to be made part of the open, public record after 12 months, unless a majority of the council votes in open session to keep the recording confidential for another 6 months. The council may again take another public vote after that 6 month extension is up. Once 24 months has passed, the audio recording is automatically open to the public, unless the City Attorney declares in open session that opening the record puts the City in financial or other legal jeopardy and a majority votes in open session to extend its closure for yet another 6 months, which can be repeated, but only as long as the same provision is followed by the City Attorney and the Council in place.
e. Before any final decision in closed session to act on a sale, lease, gift, purchase, or exchange of any property to which the City has or will have an ownership or possessory interest, the council shall notice for open session a discussion of the advisability of taking the proposed action. This open discussion should make clear the monetary values involved.
f. Where the justification for holding a closed session on “anticipated litigation” is that the “existing facts and circumstances” suggest there is some “significant exposure to litigation,” the City Attorney shall publicly state, prior to the closed session, those facts and circumstances and release copies of any supporting documentation. In open session, a low to high range should be revealed for how much money the City anticipates its attorney costs will run for said action
g. With respect to any closed session discussion pertaining to employee salaries and benefits, the City Council shall not use as its designated representative any employee having a direct financial interest in the outcome of the negotiations.
h. No closed sessions shall be held for discussions of any proposed City Manager goals and performance objectives. Nor shall any related documents be withheld from the public.
i. No closed sessions shall be held for discussions of any proposed City Manager salary increase, any incentives, bonuses or monetary awards, or other non-salary compensation. Nor shall any related documents be withheld from the public.
j. After closed session labor negotiation consultations resulting in a proposed agreement supported by a majority of council members, the agreement shall be made public at the same time as it is presented to the members of the employee organization.
k. The agreement shall be open for public discussion and comment thirty (30) days prior to the final City Council vote.
10. Campaign Finance Disclosures
a. City Clerk should prepare an electronic form for all candidates running for City Council
b. City Clerk should prepare another form for all groups raising money to be expended in a City Council race or in a ballot measure contest
c. The candidates/groups would be required to use these electronic forms to report the names, addresses and occupations of their donors, as well as the amounts donated and when the donations were made.
d. Once reported, the City Clerk would be responsible to make these electronic forms available for public viewing on the City website
e. The City Clerk should make a summary document which shows how many donors each candidate or group accepted money from, the total amount of the donations, the average amount of the donations, etc.
f. These summary documents should be made available for public viewing on the City website.
11. Public Records
a. The City shall keep a log of all submitted public records access requests, and the responses thereto, showing, as a minimum, the date of the request, a brief summary of the request, the date the response was completed and the records were available, an indicator to denote if no records were available, the name of the requester (when furnished), their email address (when furnished) and the staff member(s) responsible for processing the request.
b. All requests received via any format where an email address was provided shall be sent a return email acknowledgement of the receipt within one (1) business day after the request is received. Reasonable effort shall be exerted to promptly complete requests or make documents available within two (2) business days.
c. The City Clerk shall publish in the annual budget document the number of public records requests received during that fiscal year, the number of requests where documents were made available, the number of requests where no documents were made available, and the number of requests completed (or records made available) within: 24 hours, 2 days, and over 10 days.
d. The City Clerk shall promptly report to the City council any improper hindrance in the offering of public records. Such hindrances include managerial direction to falsely indicate that electronic records are unavailable or instructions to falsely respond to a request indicating no documents are responsive when the Clerk has knowledge of responsive documents. If anyone improperly hinders the offering of public records, this misconduct shall be reported to the public, and the city manager or the appropriate supervisor shall determine any appropriate penalties, up to and including termination.
e. Any withholding of information shall be justified, in writing, within two (2) business days of the day of the request. All withholdings shall cite the justifying legal authority and, where that authority is an exemption from disclosure under the California Public Records Act, the public interest in favor of not disclosing. A withholding on the basis that disclosure would incur civil or criminal liability shall cite any statutory or case law supporting that position.
12. Public Records: Fees
a. No fee shall be charged for copies of documents routinely produced in multiple copies. e.g. Meeting Agendas and packets.
b. Reproduction charges for documents copied to the order of the requester shall not exceed five (5) cents per page copy charges. If the direct cost of duplication, as defined by case law interpretation of the California Public Records Act, is more than five cents per page the City shall provide documentation of that.
13. Public Records: Drafts
a. Draft documents and memoranda or other written communications between staff, members of legislative bodies, and/or third parties concerning a proposed policy, action or agreement subject to approval or review by a legislative body shall be preserved and made available for public review beginning fifteen (15) days prior to the presentation for approval by a legislative body.
14. Public Records: Litigation
a. Litigation-related records, other than attorney-client communications subject to unwaived privilege under the Evidence Code, shall be subject to disclosure when the litigation to which they relate has been settled, finally adjudicated or precluded by a statute of limitations.
b. Other communications to some degree relevant to litigation are public records subject to disclosure at any time, including without limitation: (i) pre-litigation claims against the City, (ii) records received or created by a department in the ordinary course of business that were not subject to the attorney-client privilege at the time of their creation, and (iii) amounts billed by or paid to outside counsel or other independent contractors, identifying the case or other matter to which they relate and the general types of service rendered.
c. No attorney representing the City shall solicit or agree to any settlement provision that would restrict disclosure of terms or communications between each party after settlement and any such provision shall be void.
d. No communication to or from a legal advisor to the City shall be exempt from disclosure as confidential attorney-client communication or otherwise to the extent that it concerns an actual or potential conflict of interest, analyzes a proposed legislative provision or administrative action of the City, or reports on the status of negotiations relating to a claim by or against the City
15. Public Records Personnel
a. Applications for all governmental positions for hire or appointment shall be made public at the same time the legislative body, City staff or other hiring individual receives them.
16. Public Records Police Reports
a. Law enforcement reports prepared by the Police Department are public records. Any redactions shall be accompanied by the legal basis therefor.
b. Records exempt from disclosure under the California Public Records Act pertaining to any investigation, arrest or other law enforcement activity shall be disclosed to the public to the full extent permitted by law after the prosecution to which they relate has been finally adjudicated, the District Attorney or a court determines that a prosecution will not be sought against the subject involved, or the statute of limitations for filing charges has expired, whichever occurs first.
c. The Police Department shall maintain a public record, separate from the personnel records of particular employees, of the number of citizen complaints against the department or its officers, the number and types of cases in which discipline is imposed and the nature of the discipline imposed. This record shall be maintained in a format that, to the extent possible, assures that the names and other identifying information of individual officers involved is not disclosed directly or indirectly.
17. Public Records: City Business
a. Contracts, contract bids, responses to requests for proposals and all other records of communications between the City and individuals or business entities seeking contracts shall be open to inspection and copying following the contract award or acceptance of a contract offer.
b. All bills, claims, invoices, vouchers or other records of payment obligations, as well as records of actual disbursements showing the amount paid, the payee and the purpose for which payment is made shall be public records and available to the public.
18. Public Records: Record Retention Policy
a. The City Needs to Update its Record Retention Policy
b. It needs to provide for retention of all video and audio recordings of public meeting in perpetuity
c. All email communications by City Councilmembers from PUBLIC and PRIVATE accounts (relating to city business) need to be downloaded quarterly and stored in perpetuity
d. All email communications by City Employees from PUBLIC need to be downloaded quarterly and stored in perpetuity
e. All mobile device records that are construed to be public records also needed to be retained and stored in perpetuity
f. The City shall maintain a public records research index that identifies types of records maintained by departments and offices, including those of elected officials and legislative bodies. The index shall be available to the public and organized under a uniform reference system that permits a general understanding of the types of records maintained, in which offices and departments, and for what periods of retention.
g. The Index shall be sufficient to aid the public in making a focused inquiry regarding public records. The Index shall be posted on the City’s website and available in written form in the City Clerk’s office and in the Davis Public Library.
h. The Index shall classify each type of record as either: (1) “Open,” meaning accessible to the public without exception and subject to immediate disclosure; or (2) “Partially Open,” meaning possibly containing some exempt content, such that review is required; or (3) “Closed,” meaning that disclosure of the document is prohibited by state or federal law. Each classification of a record as “Partially Open” or “Closed” shall identify the specific legal authority relied upon in assigning that classification.
19. Open Governance Commission
a. The City Needs to create a five-member Open Governance Commission to review this document and the city’s adherence to the Brown Act and Public Records Act
b. Each Councilmember will appoint one member
c. The Mayor will be the liaison to the commission and the Mayor Pro Tem the alternate
d. The Commission will meet quarterly
e. The City Clerk shall be responsible for preparing and maintaining the Index. He/she shall report on the progress of developing the Index to the Open Governance Commission on at least a quarterly basis until it is completed, which shall be no later than twelve (12) months from the enactment of the ordinance
f. The Commission shall serve as an ombudsman board to review citizen complaints concerning compliance with this Chapter to periodically report to the City Council recommended changes in practices to improve public access, or recommended improvements to this Chapter.
g. The City Attorney shall, upon request by the legislative body, provide legal counsel for the Commission. If a majority of the Commission or the City Attorney determines that there is a conflict of interest which the Commission declines to waive, the City shall, at the Commission’s request, provide the reasonable fees and expenses of outside counsel chosen by the Commission, from the City Attorney’s budget.
20. Open Governance Enforcement
a. A Legislative body shall cure and correct an action challenged as involving a violation of the Brown Act, this Chapter or both, by placing the action on a subsequent meeting agenda for separate determinations of whether to cure and correct the challenged action and, if so, whether to affirm or rescind the challenged action after first taking any new public comment.
b. Any person may institute proceedings for injunctive relief, declaratory relief, or writ of mandate in the Superior Court of Solano County to enforce his or her right to inspect or to receive a copy of any public record or class of public records, to enforce his or her right to attend any meeting required to be open, or to compel compliance with any other requirement of this Chapter.
c. The court shall award costs and reasonable attorneys’ fees to the plaintiff who is the prevailing party in an action brought to enforce this Chapter. Payment of the plaintiff’s attorney fees shall be imposed on the City Attorney (or whichever counsel was consulted) if his or her advice supported the violation. If the City officials who caused the violation did so without reliance on the appropriate attorney’s advice because they never sought it, if they withheld or misstated key material facts in asking for it, or if they simply disregarded the attorney’s advice, they shall be jointly and severally liable to pay the plaintiff’s attorney fees.