Blogging Bayport Alameda

June 1, 2021

Trust issues

Filed under: Alameda — Lauren Do @ 6:01 am

The City Council meeting tonight is largely housekeeping items and the item about the Open Government Commission and the Sunshine Ordinance should have been the same, but it’s not. As part of this agenda item City Staff is recommending that the Open Government Commission be stripped of its ability to adjudicate cases and, instead, bring on board an independent hearing officer. The concern is phrased in language that appears to be solving problems raised by OGC members that they don’t feel comfortable undertaking legal analysis or parsing case law but regardless of the actual intent of staff it simply feels like a direct assault on the OGC itself.

Staff is pretty careful to use the RRAC as an example and saying that the hearing officer model has done a better job at working its way through the backlog but if we’re worried about time being spent at the OGC there are a lot simpler ways of reducing the time spent during meetings (hint: it involves a time clock).

But it looks like this might be the nut meat of staff’s concern:

While the City Attorney’s Office (CAO) (along with the City Clerk’s Office) staffs the Commission and provides legal advice, this support has not alleviated the Commission’s difficulties in this area.  The Commission has repeatedly shown hesitation to follow the advice of the attorneys staffing the Commission, in certain instances suggesting that the CAO may be biased for the City.  The CAO has assured the Commission that it has erected ethical walls to guard against bias, and has even retained special counsel at the cost of $10,000 or more per hearing, at the request of the Commission, to guard against any perceived bias.  However, neither approach has alleviated the Commission’s concerns.  Moreover, given the Commissioners’ understandable and laudable passion for the subject matter, there have been times where members have refused or shown extreme reluctance to accept the CAO’s advice regarding recusal even when there was a strong legal basis for such advice.  The failure to recuse when required by law further jeopardizes the ultimate viability of adjudicatory decisions.  See e.g., Woody’s Group, Inc. v. City of Newport Beach (2015) 233 Cal.App.4th 1012, 1022 (finding “bias-either actual or an “unacceptable probability” of it-alone is enough on the part of a municipal decision maker is to show a violation of the due process right to fair procedure” and rejecting City Council action based on the participation of one biased member).

The bit about the lack of trust by the OGC about the City Attorney’s advice feels like something that could be resolved by a request that was made by previous iterations of the OGC: having independent counsel specifically for the OGC itself. While staff is quick to point out that the City has retained special counsel for each meeting for distinct issues the contract is with the City Attorney’s office and the contact is via the City Attorney’s office and not with the OGC itself. Everything else, including the concern about members not recusing goes to the issue of trust between the members and the City Attorney’s office itself.

While the staff reports points out that the hearing officer model would be a lot cheaper than retaining special counsel what we’re discussing here is open government and transparency. While we should be cost conscious I don’t know if open government should be sacrificed to save money.

I’ve watched quite a few OGC meetings and they’re definitely messy but given the structure of how the members are chosen it has become a bit of a political board in and of itself. If there are issues with how the OGC interacts with staff perhaps it’s best if the OGC appointments function more like a traditional board and/or commission. The individual City Council member makes the nomination but there must be a majority vote by the City Council for appointment. That way the candidate is more of a consensus candidate. But throwing away the key prong of what the OGC was created for in order to keep the City open and transparent to its citizen is not the way to go about this.

2 Comments »

  1. Lauren, You are 100% correct that much of the problem would be alleviated if the OGC had independent counsel to advise it in complaint proceedings. I believe that I was the first person to raise the issue shortly after my appointment to the commission in 2015. I do need to clarify your statement concerning the current practice of the City Attorney in appointing independent counsel. Such Counsel has never been appointed for the OGC. Below is an excerpt from my letter to Council sent last week.

    “In 2021 the City Attorney finally gave an ear to the problem by hiring independent counsel to participate in the proceedings, but unfortunately elected to apply the tourniquet to the arm that was not bleeding. They hired an attorney to defend the legitimacy of the City action being challenged, rather than provide counsel to the OGC. In the vast majority of complaints, it is the City Attorney that authorized or confirmed the challenged City action. Therefore, it is appropriate for the City Attorney to defend the City. However, for the same reason, it is totally inappropriate for the City Attorney to act as counsel to the OGC. ”

    There are other problems with the proposed amendment to the Sunshine Ordinance, the most glaring of which is the insistence on maintaining the advisory status of decisions made on complaints. On Feb. 4, 2020, the Ordinance was amended repeal the Commission’ s authority to render a binding decision, instead providing that such decision would only be advisory. That decision was based on the City Attorney’s rationale that the remedy given to the OGC in public access complaints constituted an unlawful delegation of legislative powers. I opposed that rationale and argued that the OGC’s function in such a proceeding was quasi-judicial, concerning only the issue of public access, not the underlying legislation. The City Attorney’s current report brings the wheel around full circle. He now argues for a hearing officer based on the rationale the proceeding is quasi-judicial. Based upon the City Attorney’s clear change of mind there is no longer a legal impediment for a complaint decision to be final and binding..

    Council may retain advisory status as a matter of policy. However, Council will be reversing the unanimous decision of the City Council that established the Sunshine Ordinance that Council should not be determining challenges to its own actions. (See pp. 4-6 Council minutes of Oct. 18, 2011)

    The most indefensible part of the advisory status of complaint decisions is its application to complaints concerning refusal of document production requests even though they are not a challenge to Council action. The suggested amendment goes even further astray by giving the right to reject such a decision, not to Council, but to the City Clerk, City Manager and City Attorney, as appropriate. These are the same people who initially turned down the request for documents! It makes a mockery of the process! Most certainly a production of documents complaint decision should be final.

    Comment by Paul Foreman — June 1, 2021 @ 9:04 am

  2. When I first read the staff report, I felt like the staff’s solution to lack of trust was to remove the OGC from the process! Throwing the baby out with the bathwater is no solution.

    According to Alameda’s 2020 Boards and Commissions guide, the Open Government Commission was established “to enforce the City’s Sunshine Ordinance. The responsibilities of the Commission” which are informed by the process of enforcing the Ordinance and “include advising the City Council on appropriate ways in which to implement the Sunshine Ordinance; proposing amendments to the Sunshine Ordinance to the City Council; and reporting to the City Council at least once annually on any practical or policy problems encountered in the administration of the Sunshine Ordinance.”

    To remove the Commission’s primary mission which is to adjudicate complaints from residents as to whether the city council, boards, commissions, and staff have violated the Sunshine Ordinance and delegate that responsibility to an administrative hearing officer – who would be a city employee in the city attorney’s office — seems to fly in the face of sunshine and open government.

    By the time residents file a sunshine ordinance complaint, they are likely to have tried multiple ways resolve the situation through normal channels but have felt stymied by the city. To be able to go before five Alameda residents to seek relief was, for me in 2018, a breath of fresh air and yes, a ray of sunshine. Even if my claim had not been sustained, the experience of being listened to and heard made a big difference to me.

    Unbeknownst to me at the time, my case was the first time in the Open Government Commission’s existence that a complaint had been sustained.

    Serendipitously, I am now a member of the Open Government Commission and find that the fall-out from the upholding of my complaint is still reverberating. While the Commission itself is seeking to improve resident access to public records and open government, messy as it may seem at times, it feels like this recommendation from city staff to remove the responsibility of adjudicating complaints would be a step in the wrong direction. At no time was this possibility was raised in any Open Government Commission meeting for discussion which is in and of itself frustrating and disappointing.

    The Sunshine Ordinance is 10 years old and needs to be updated and now that this commission has heard three cases in 2021 and struggled with the ordinance language each time, we have some concrete suggestions as to how the process and ordinance can be improved.

    We hope that we can incorporate tonight’s discussion with the OGC’s own planning process with an open hearing on all changes before we present a report to Council this fall. In the meanwhile, I have urged the council not to act on the ordinance amendments tonight.

    Comment by Serena Chen — June 1, 2021 @ 11:49 am


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