Speaker 1: Introduction of ordinance amending the Civil Code by amending various provisions of Article eight Sunshine Ordinance of Chapter two Administration, including provisions related to public access to public meetings and public records and Sunshine Ordinance enforcement, including recommendations to eliminate the null and void in order to cure remedies and replace such remedies with the authority for the Open Government Commission to issue recommendations to care and correct.
Speaker 0: Thank you. And we have a okay. And so we have Assistant City Attorney John Lay to do the staff report. Good evening.
Speaker 6: Madam Mayor. Members of the council, members of the public. John Lee, on behalf of the city of Alameda, Alameda City Attorney's Office. I'll keep my remarks brief.
Speaker 0: And just be sure that you speak right into the microphone so everybody who's out, you're seeing.
Speaker 6: Things. So our office was charged with preparing amendments to the Sunshine Ordinance, and we did that in consultation with the city manager's office. And we worked very closely with the city clerk's office, in part because they have a great deal of institutional memory and knowledge in this area, and we thank them for their assistance on that. I'd also like to acknowledge the Open Government Commission when we prepared the amendments which ended it for their discussion and recommendation, and they provided us with very thoughtful and thorough analysis. And I just want to state that we respect the work that they do, and we want to I want to thank them for the input that they provided and the ordinance currently that you have before you. Proposes ten amendments. The first thing I want to do is sort of emphasize that. In nine out of the ten amendments, our office and city staff and the Open Government Commission were able to find common ground. Nine out of the ten we were in agreement. There were probably two minor amendments to those nine, and our office agreed with those amendments as recommended by the Open Government Commission, and those amendments are reflected in the staff report. That is, of course, leaves one amendment that there wasn't such agreement, which is sort of the elephant in the room I'm referring to, obviously the null and void remedy. You might recall that our office did prepare an opinion on this remedy, and I'm not here to reiterate or rehash any of that. I will just simply say that we continue to hold that opinion and we have been keeping an open mind in terms of new facts or law. And that hasn't changed. But I'm I do want to emphasize that if the council does wish to make the amendments as proposed by our office and staff, what sort of remains, even if it were removed and the agency would still have many of the matters they currently have within their purview, they'd still be able to review council actions and all boards and commissions subordinate to the council. They would still be able to impose fines for violations of both portions of the ordinance, public meetings, public records. And they would also, based on our recommendation, be able to make recommendations concerning the complaints that they hear so they could make a recommendation, for example, to care and correct. That would still be within their purview, even if the council chooses to take out an old board remedy. So I'd like to close with this idea that the the amendments here before you are actually the result of great civic engagement, you know, fierce advocacy on the part of the agency for greater transparency through thoughtful legal analysis, not just from our office, but also members of the public. And with that, we recommend that you adopt excuse me, introduce the ordinance up first reading based on staff's recommendation. If you have any questions, I'm here to answer them.
Speaker 0: So, counsel, before we hear from our public speakers. Does anyone have any clarifying questions about the report?
Speaker 9: Councilmember Vela Yes, I'll go ahead and start ahead of Councilman Brody so that he doesn't have to lead on every might. My question is, who recommended that this provision, this null and void provision, be added to the ordinance? How how did it come about?
Speaker 6: I will say that I tried my best to research the issue on my own, and I wasn't able to determine. I know there have been allegations that it was actually prepared by a member of the city attorney's office, none of whom are currently here. I don't know the definitive answer. To tell you the truth.
Speaker 9: Okay. And then.
Speaker 6: And.
Speaker 9: Similarly, are there any other cities that have a similar commission or body that that has this type of power? So our cities.
Speaker 6: Understood. And so when we started this process and we did do some research on other cities that have sunshine ordinances. Actually, the First Amendment coalition keeps a great list of all the cities. As you can imagine, it's a topic of their utmost concern. And we identified 14 jurisdictions that we surveyed and none that we were aware of, and that was probably six months ago, roughly had this null and void remedy and sort of in a bunch of caution. And to make sure that we are thorough, we actually serve those jurisdictions again to see if any changes were made and none that I'm aware of.
Speaker 9: Did you review the meeting, the meeting minutes from when this ordinance was enacted as part of your research?
Speaker 6: I did I did review the meeting minutes. My recollection was that they were quite sparse. Maybe they were more action minutes. I do recall reviewing the tape as well.
Speaker 9: Thank you.
Speaker 0: Then, Mr. Abbott. Councilman Brody? Yeah, well, let's go. I mean, it just makes up the order a little bit. Councilmember Desai, you go next.
Speaker 6: Is a quick question. Was the concept of null and void, was that in the original ordinance that resulted in the creation of the of the AGC? And so at least so if so, then we know a time at which point it was adopted. So I obviously wasn't here when that was adopted. My recollection was that the Sunshine Ordinance was adopted around the same time. That is that the sort of organic statute that created or memorialized the duties and powers of the Open Government Commission, they were around the same time as my understanding it's in a different chapter of the AMC , but it was around the same time. Okay. Quick question. And it's more of a broad question, and I don't know if now's a good time to answer it, but I'll ask it nonetheless. What harm is there if we keep the concept of null and void in the ordinance? What kind of harm results from that? Sure. And it's hard to tell with a crystal ball. I mean, obviously you've got our opinion out there. And so it's a null and void remedy is used again. There is this sort of incongruence about where our office stands and obviously our office is opinion may or may not change, but there there's that risk. Okay. Thank you.
Speaker 0: And I would just ask Mr. Lay for those in the audience in watching who might not have reviewed the staff report. In your opinion, can you just encapsulate a little bit about the the precedent that this would set and.
Speaker 6: Sure. You know, one thing that I've remarked time and again about this remedy is that although it's been in there since its inception, I think it's been used only recently. And are you asking sort of for the for the legal position I'm sorry.
Speaker 0: I shouldn't make this a guessing game. I highlighted in the staff report on page six of of of your staff report about the middle of the page, a little below that the well, you describe how the city council's authority to legislate locally stems from its constitutionally granted charter charter city powers. Sure. And you quote some legal authorities noting the limitation on the power to delegate legislative authority and then talk about the null and void that I'm.
Speaker 6: Happy to bring.
Speaker 0: I want to take it from there.
Speaker 6: Yeah, I think there are really to I mean, if you look at this from sort of a lost perspective, I mean, the general.
Speaker 0: Wants one.
Speaker 6: Yeah, yeah. The general rule is the one that we're citing. And there have been refinements to that general rule. But the general rule essentially states that when you have a policymaking body that's vested with it, with the power, with various powers, and in this case the legislative power to make local law, they cannot delegate that authority. And what is meant by that is that and the purpose behind that is to is to ensure that the policymaking body makes the fundamental policy decisions. Now, there has been some refinements on this general rule over time, including Supreme Court precedent. Ah, Supreme Court, California Supreme Court that talks about when you can do delegation. But we view that authority as separate from sort of the general rule. So the question really for us is, is does the null and void remedy, where does it fall within the law, within the jurisprudence? Is that more of the general rule or is it the refinement? And the refinement is one that you're all very familiar with. You've done it multiple times where you make the overarching decision, the fundamental policy decision, and you leave on to some executive or employee to decide how to fill in the blanks, because it's fully recognized by the courts that the Council can't make every single policy decision possible to ensure that every eventuality is provided for. Instead, what's recognized is the Council may make sort of a fundamental and you did this with the rent ordinance, you did this with cannabis, and you've done it with various other ordinances where you create this regulatory regime, you decide that that's what you want to do and you let staff. Fill in the blanks. And for us, we don't believe the null and void remedy falls within that second bucket where you're just filling in the blanks. That's not what's occurring here, at least in our view. For us, it's more of a fundamental policy decision, in part because the power to make local law includes the power to repeal it. And for us, we feel it falls more into that box. I hope that.
Speaker 0: Thank you.
Speaker 8: Thank you.
Speaker 0: And kills over disagree. You finish with your clarifying questions. You can go. No, no, stay with you and then we'll go to accountability.
Speaker 6: On this subject matter. Some have pointed to Article three, Dash two, as language that allows policymaking boards to establish concepts like the null and void. And they're the way that I receive emails about, you know, referencing 3-2 is when people write the council. May three, Dash two says the council may confer upon any board or office powers and duties. Now, is it correct, though, that there is a part of 3-2 that oftentimes is left out? And that part is the predicate because a full reading of 3-2 is the council may confer upon any board or office powers and duties, and the missing predicate seems to be additional to those set forth in the charter so that we can. What that means is the council can confer upon boards and policymaking bodies, powers and duties, but it has to be consistent with certain parts of the city charter. So if the city charter says that ultimate power making authority rests with the city council, which it does in section three, dash one. Mm hmm. Yeah, I agree. I think that's certainly one possible interpretation of it. Sort of the meaning of additional and whether it means additional to those powers, to those boards and commissions that are actually , you know, set forth into the charter. That's certainly probably the easiest interpretation to take, that it's additional to those. So if not so stated, it's not clear that it's provided for. I think that's sort of the gist of your point. Thank you.
Speaker 0: Okay, Councilman Brody, thank you.
Speaker 3: My questions are on other sections, so hopefully you can answer them. So going to the. I think it's. Section one, Part D policy body shall mean the following blah blah, blah. Okay. I'm looking at the the draft ordinance, but I think that's what it is. Yeah. So I mean, there's the housing authority board fall under that purview.
Speaker 6: Under the definition of a policy body, right. I don't believe so, because I it's not clear to me that they make policy on. Well, they certainly I know that there they observed the the Brown act and so their their meetings are agenda I's a need a lot of the sort of parallel requirements that we have in our sunshine ordinance. Now now if you're asking if they are sort of fall within the purview of the Sunshine Ordinance, you know, I have not thought about that.
Speaker 3: Can you? I could look this up, but could you remind me what? Five, four, 952. Is that what.
Speaker 6: That that that's the portion of the Brown Act that actually defines what a legislative.
Speaker 3: Body. So that's the Brown acts. Somehow their subject has a policy body under the Brown Act. So we're defining a policy a policy body as it's defined under the Brown Act. So it would think I would think that they would also be subject to our Sunshine Ordinance as well.
Speaker 6: Understood. I you know, as I sit here, as I stand here in front of the dias, I mean, I that sounds like a sensible interpretation. I guess what I'm saying is that I don't know that we've actually sort of connected those dots.
Speaker 0: Okay. I want to hear from the city attorney, Ben san, please.
Speaker 5: So, Councilmember, I believe that because the housing authority is currently a separate legal entity, much like the school district, they're not subject to the Sunshine Ordinance.
Speaker 3: Okay. Maybe we could suggest that they adopted voluntarily. So my second question, maybe I'll go back to the way my colleague was describing it. So two Dash 91, dash five.
Speaker 6: Mm hmm.
Speaker 3: So the audience requires all documents material to an agenda item accompany the agenda. So, I mean, we just had an instance today. I know there's a lot of work that needs to be done to put these presentations together, but I mean, should that presentation, which I mean, arguably was material to an agenda item, I mean, should that have been something that was part of the agenda or. Or is that an exemption? And if it's an exemption, then maybe this is not something we want to put in there.
Speaker 6: Which presentation. I'm sorry.
Speaker 3: On the traffic.
Speaker 6: B Oh, I wasn't here for the traffic spillage. I'd say sometimes.
Speaker 3: We have presentations that accompany agenda items should be put on the agenda and sometimes we get them at the last minute. So I'm just wondering where that type of presentation would fall under to Dash 91.5?
Speaker 6: I'm not sure, but I can I can tell you that sort of the intent of the of the amendment was to really just take the language and ensure that it's not just sort of general materiality, in other words, just general relevance to relevance to the entire topic and more about, you know, what the agenda, what the action that's being taken. So we were trying to kind of narrow that a bit so that it was a lot more clear. And I'm I'm not sure that I've answered you, but.
Speaker 3: I mean, who is to decide if it's materials at the object's job.
Speaker 6: I suppose it would be if there was a violation or or alleged violation.
Speaker 3: Okay.
Speaker 6: Yeah.
Speaker 3: I mean, to me, it's just it's unclear. Sure. If it's unclear, then it opens up room for interpretation and controversy. So.
Speaker 6: Sure and.
Speaker 3: Little concerned.
Speaker 6: About that. I understood. And I would just.
Speaker 0: So I will just remind people we're asking clarifying questions about the staff report. Council will have ample time after we've heard our public speakers to do a discussion.
Speaker 6: Now, make not just one note just really quickly and I don't want to leave the impression that the logic will simply be sort of grasping in the dark to figure out what this means. The object is staffed by our office, so they would have the ability to consult our office in terms of determining whether or not there was a violation or what was considered material in light of these changes.
Speaker 3: Okay. And then my last question was, so you have to dash 91 that 1515, which there was a discussion about that vis a vis resolution 15382 which prohibits ceding of time. And then we have to dash 93.7, which says this provision states that all local laws inconsistent with the ordinance are superseded. So I mean, is that 15382 kind of in conflict with two dash 93.7.
Speaker 6: I'm sorry, where's the conflict in the two sections?
Speaker 3: Well, the the Sunshine Ordinance allows you to cede time right and point a spokesperson and 15382 got rid of that option and that's but yet the Sunshine Ordinance says it takes precedence over anything else. So I just wonder if there might have been an issue there.
Speaker 6: Sure. But I'm not aware of it conflicting anywhere else. And to the extent that it does, we can certainly address that in a subsequent amendment. But we did want to clarify that. We wanted it to be consistent with council adopted resolution.
Speaker 0: Right.
Speaker 6: We primarily made the to the extent permitted by law to clarify.
Speaker 0: Mr. Lane, I'm going to interrupt you just so your boss can speak. Mister said.
Speaker 5: So. Council Member I think your point is well taken that the the sunshine ordinance does. You're right the sunshine ordinance allows speakers to see time 15382 does not. And given that one of the reasons we're bringing this forward to you is is our thinking that because you when you adopt it 15302 later, that that is the policy the council wants to effectuate. And therefore, we're proposing the amendment to make the Sunshine Ordinance consistent with the Council's will on that particular issue. If if that is not the Council's will, we're happy to additional changes.
Speaker 3: Well, that was clairement. So then the final question. Sorry. So then does it are we applying that to the 93.7 prospectively or retrospectively?
Speaker 6: Only it would have to be prospectively, I believe. I mean, unless we have a provision that states that it's going to be retrospective, there's a general rule against retrospective.
Speaker 3: But it sounds like.
Speaker 6: Retroactivity.
Speaker 3: Skews it sounds like we did kind of make it retroactive. That said, if we do if. There's something written before then. This supersedes it. But going forward. Well, you can think about that. We can talk about it when it's time to discuss.
Speaker 0: Okay. Any further clarifying questions of counsel before we go to our public speakers? Let's go to our public speakers.
Speaker 1: And we now have eight speakers. So.
Speaker 0: So when we have eight speakers, the individual speaking time goes down to 2 minutes. But rest assured, 2 minutes is a pretty good, long period of time. So to keep things moving along, my goal is always to get us out on the same evening that we started the meeting. I will. And again, no cheering boos doing the wave, what have you. I'm just listened respectfully to speakers, but listen for your name. If you're the next speaker, put yourself out in a position to be next to the podium. Okay. I'm Adam Clark.
Speaker 1: We have Susan Hauser, Steve Larson, then Bill Smith.
Speaker 8: Okay. Good evening, Honorable Mayor Ashcraft, Vice Mayor Knox White and council members. The League of Women Voters of Alameda was a strong advocate for the development of the Open Government Commission or the Commission and participated in its development through the Sunshine Task Force in 2010. You are now being asked to reconsider your decision and remove the main enforcement mechanism from the Commission. We request that you oppose doing so. The Commission stated that the enforcement role is essential to our democracy and the main purpose for the Commission's existence. The City Attorney states that the City Council cannot delegate or grant legislative authority to the Commission, implying that the enforcement provision is legislative. It is not legislative. This enforcement authority did not abdicate any of the City Council's legislative power. The Commission simply evaluates and rules on process issues, not the merits of the Council's legislative action. In summary, the enforcement provision is not legislative. We recommend that after a complaint about improper process is filed, you suspend further action until the Commission has had time to investigate before holding the next and certainly the final hearing on the legislation . The Open Government Commission is more likely to be viewed by the public as a neutral arbiter of council adherence to legislative procedures than the Council itself. The Commission has also proven to be a more accessible arbiter than a court system that requires expensive attorneys. We urge the City Council to reject the proposed amendments to the penalty section of the Sunshine Ordinance. Thank you.
Speaker 0: Thank you.
Speaker 1: Steve Larson. Then Bill Smith, then Kurt Peterson.
Speaker 11: Good evening, Mayor Ashcraft, council members. I'm Steve Swanson and I'm here to speak in opposition to the proposed ordinance and to demand it be tabled. I want you all to understand that it's not that we don't trust you. It's just that we don't trust you. You haven't done any favors for the people of Alameda in the last two or three years with this million dollar payout to the former city manager helping yourself to $40,000, borrow money to pay your personal attorney's fees, holding a special election costing the people of Alameda $700,000 for the sole benefit of one developer and failing to bill that developer for the $700,000 additional cost. And lastly, you're not doing the people of Alameda any favors by trying to tamper with Measure A. The sunshine ordinance is put here and we want to keep that sunshine shining on your conduct. Respectfully request that you table this ordinance. Thank you.
Speaker 0: Thank you. And the next speaker is Bill Smith.
Speaker 11: Mayor Ashcroft, Vice Mayor Knox White and council members. I want to thank you by living by the spirit of the Sunshine Ordinance, a marijuana bill. You passed it, but you went back and reheard it later, eventually. So thank you for that. As you just heard from Mr. Sjöström, there are a number of people in the community that don't trust the council for a number of things. And I think this is an opportunity for you to earn back some of that trust for certain areas. And and that is by keeping the Open Governance Commission, making sure that they have enforcement powers. And so the preferred option is, as you heard from the League of Women Voters, to leave the null and void in and work for that. And you heard the we have a couple of attorneys, Robert Sumwalt and Paul Foreman, both have opinions that would slant more and direction of the alternative, that this council does have the power to delegate, that those things you might find that the housing authority and also the electrical utility probably make policy, too, is my bet. And the housing authority used to be part of the city at one point. So what happened and I think it was during the time the Sunshine Ordnance was in effect, that's another opportunity you might have had. There's also a procedural way to do this. You can just decide, okay, you're going to suspend, as you heard the league, when voters ask you suspend all action. And once somebody files a complaint and it never becomes law, so it doesn't have to be declared null and void, you just suspend action until it's clear whether it's a sunshine committee and you've heard and you've disposed of the the complaint. And then you can also in an emergency. If this I know something's come up an emergency ordinance, you're going to require something like a five unanimous vote of all sitting council members, which would be five, to go ahead and override the the sunshine the government committee to get something passed in a hurry if there is a complaint about it. So you have an opportunity here to maintain confidence, increase confidence.
Speaker 0: Thank you, Mr. Smith. And the next speaker is.
Speaker 1: Curt Peterson, then Paul Foreman, then Trish Spencer.
Speaker 2: Okay.
Speaker 7: Good evening. I already introduced myself earlier. I'm not surprised, Jim, that you don't remember a lot of things about that first meeting.
Speaker 0: Mr. Peterson. We do not countenance ad hominem attacks from the podium. Will restart your time. But you are not here to address individual council members, but the entire body. Wait a.
Speaker 7: Second. It's an actual fact. Mayor, I can't state fact. I was making a point that I too do not remember all the things that were in the Commission's bylaws and rules. It was presented to us by our city attorney, Janet Kern, at that time. Okay. Laura was also there. Jim, was there two other people besides myself who were the original people on the commission were there. We took the bylaws without any question, no discussion whatsoever about it. I brought up one key point in that is someone makes a complaint and that if the board doesn't uphold their decision or what their ruled, the ruling was in their favor, that they were banned for making a request. Again, I think three or five years. Well, a long time. I thought that was inappropriate. But the bottom line is, we were given the the right to do that. That hasn't changed. That was in the original one. I want to say, whoever the attorneys team here brought up more questions than answers about this new ordinance that you're talking about. I cannot believe you would respond to it. He can't give us any answers. It's kind of like the same defense Republicans are doing as far as in the Senate right now. I want some answers. Not well, I don't know. The bottom line is, if you had a city attorney that was doing their job the night that this was in question, they should have actually aired with caution rather than not saying we're going to go along with it. I don't see a problem. Why not just say, wait, we'll look at this. Let's take a step back. We'll make sure you're taking all the teeth and all any kind of authority that the Open Government Commission has away. And that's a shameful.
Speaker 0: Q Thank you, Mr. Peterson. Our next speaker is Mr. Foreman. And be sure to speak right into the speakers. So we get into make sure to speak right into the microphone so we can all hear you.
Speaker 7: In answer to councilman's valid question about where this all came from, read the minutes of October 18th, 2011, starting with page four. City Council knew exactly what they were doing when they passed this ordinance. They specifically said, We do not want council policing its own process. And that's what they did. They were proud of it. They unanimously passed it and their city attorney vetted it. Now, I must state that the staff report is dead wrong in saying the ordinance had not been reviewed since 2011. I served on the commission in 2015 when we reviewed the ordinance line by line and made several revisions there to a city attorney. Was there didn't say a word about this enforcement provision. Both Attorney Schwartz and myself have conducted email useful dialog with Council member Knox White, and we've written to council and to the city attorney. However, our city attorney has not seen fit to dialog with us and attempt to resolve these differences. We are not attorneys litigating against the city for the benefit of our clients. We are citizens of this community or donating our legal research in the public interest. The A.C.T. letters suggest two options that could retain significant enforcement powers in the AGC, while avoiding the issue of delegating legislative powers. If neither of those suggestions satisfy council or the city attorney, I suggest that we follow the procedure followed in 2011 before the audience with adopted appoint a Sunshine Task Force, including a representative of the City Attorney's Office to resolve our differences and present recommendations to council. I would be happy to serve on such a group. Thank you.
Speaker 0: Thank you.
Speaker 1: And Spencer, then Serena Chen, then Brian Schwartz.
Speaker 2: Good evening, counsel. Staff I agree with the city attorney's recommendation on this. I want to thank you for your research. I did hear the comments of members of the public that they do not trust council. I would submit that the response of not trusting council is not to implement something that is illegal or to continue with something that is illegal. I think the body of law and the position that the attorney, our city attorney has made is correct. This has never been challenged in our city. It's the first time it's happened. I think that's why we're all looking at it. We weren't looking at it before because it hadn't occurred. That's why we're looking at it. The night of the ordinance, when it came to us, we did look at our city attorney. They did make a decision of it being within the Brown Act. When it came up for the second reading again, the issues were made. The city attorney weighed in. This is actually the third city attorney that has ruled on has come out on this. We had Janet Kern, we had Michael Roush, and now we've had your office. They have all landed on the same position of counsel being able to move forward and take action. And so I disagree that if people don't trust the council, you don't vote them in or you recall them, you don't implement the wrong law. It is very important that this law is it is clear. And so I hope that you do. And and in regard to the Open Government Commission, they're like every other commission. They should be they make recommendations to council. They do not supersede council. They don't. So thank you very much and good job. City Attorney.
Speaker 0: Thank you. Our next speaker is Sabrina Chen Mischief.
Speaker 8: But evening, Mayor Ashcroft, members of the council. My name is Serena Chen. My middle name is Theresa, which is named after the saint of lost causes. And it starts with a T, and it rhymes with trouble. Basically, I'm the person who filed the Sunshine Ordinance complaint at the urging of several elected officials in this city, not on the council, who, after I told them what had occurred, insisted that I file a complaint and challenge this. I come to you just as a resident of Alameda of over 20 odd years, and I spent 27 years as a public advocate for smokefree, air laws and tobacco control laws. So as in that role, I've attended over 400 city councils, school board and whatever meetings in every single city in this county and in neighboring cities as well as neighboring counties. Every single time anything came up on the agenda, that was in the discussion of the city council that I attended that was different than what was being proposed in the original agenda. The city attorney or someone on that council would lean into the mic and say, Excuse me, Madam Mayor, or excuse me, but I think if we're going down this route, we need to look at whether we want to go with the provisions we have as written or whether we want to rewrite it and bring it back in two weeks. Thanks to that law, I went to the city of Dublin so many times because they kept changing provisions that I saw the hills turn from green to yellow to brown. I wanted a residency there, but it was a pain to have to adhere to the Brown Act. But it was also something that I felt was part of fairness and part of how you run a democracy and good government.
Speaker 0: Thank you, Mrs. Chen. Our next speaker is Mr. Schwartz. Yes.
Speaker 11: Madam Mayor. And Council members. My name's Brian Schwartz and the current chair of the Open Government Commission. I'm a civil rights lawyer locally. I have the greatest respect for all of your volunteerism in coming and dedicating all these hours, and also for all the citizens who come here late on a Tuesday night to do this because of their civic engagement. And that's really what I'm here talking about, because the value that we have of openness and encouraging this kind of civic engagement is why we have the Open Government Commission, and it's exactly why it's so important to reject this amendment at this time and give it some more time to figure out the right way to go about this. The I'm concerned by the city attorney representative's effort to minimize what happened with the open government, commissioned by suggesting, first of all, by burying the lead and saying we agreed on nine out of ten things when the one thing that was really driving this was the one we disagreed on. And then by saying there wasn't such agreement, when in fact unanimously and very strongly the open government commissioners appointed by all different Bense from the city rejected this idea just as they had of of of eliminating the authority and just as they had previously remanded back to council the the ordinances on the on the dispensaries. And I think that's very important. Commissioner, I'm sorry. Councilmember Desai I made it really important question, which was what harm is there here? And the answer was very telling. It was it's hard to tell. And that there's might be potentially a sort of incongruence. Okay. On the other hand, what's the harm of not eliminating null and void? I mean, I'm sorry, of eliminating null and void. It is that we have an absence of due process, Brown Act violations and people suing the city who otherwise wouldn't need to.
Speaker 0: Thank you, Mr. Schwartz. And our next speaker. That's. That's all of our speakers. Okay. Numerous speakers. No one wants to take a speaker, slip out. Okay. With that public comment is closed and we come back to the city council. Who wants to lead off on this one? Councilmember Vella.
Speaker 9: Um, so I guess I have a few more questions and incorporate them into my comments as well. In Section nine, we lay out a timeline essentially that starts from when the complaint is filed and it reads 30 business days, which is about six weeks, and that's to schedule. The hearing. And then again, a formal written decision on the matter can be at a continued meeting within 30 business days of the conclusion of the hearing or at its next regularly scheduled meeting. And I guess my question to the city attorney's office is, have we you know, it's been raised about due process and timing, and I have a concern about these kind of extended timelines. On the one hand, I, I, I understand wanting to have time for parties to meet. On the other hand, depending on the ordinance in question and the impact that it could potentially have, I'm wondering if that sort of timeline really makes sense. So do we look at that when when this recommendation was put through and why 30 business days? I mean, that's.
Speaker 6: Sure that.
Speaker 9: The.
Speaker 6: Time the 30 business days, I realize that it sounds like a long time, but part of it is informed by the process that happens to get this thing on calendar. You know, you've got to coordinate a bunch of schedules together and sometimes it doesn't always align. And if there's a question about sort of shortening that or making it more aligned with how an ordinance would be sort of rendered null and void so that or that or a clear, incorrect recommendation so that the counsel can kind of get to it in time. That's something would have to involve sort of the city clerk's office, because that's a part of the sort of the nuts and bolts that our office isn't directly responsible for, but we want to be sensitive to those needs as well.
Speaker 9: So I think my concern is we have all these other commissions are former mayor Trish Spencer referenced that we have a number of commissions. Those commissions tend to meet monthly or at least have a date held. Is it possible for us to you know, I get that they're they're they're under this ordinance meeting twice a year. But to say sunshine or open government commission, whenever a new commission is convened on an annual basis, come up with regular meeting dates, because it seems to me that it's inherently not transparent to not have kind of dates held because then the person filing the complaint doesn't necessarily know what date it could be heard on the other parties that might be of interest. Don't know when that date is, but if we have a date held and the commissioners I'm on the lead abatement JPA, for instance, and, and in October and November of every year we get together and we say, is there a, you know, third Thursday of the month that works for everyone to have this meeting? So is it possible for us? Because it seems to me that those are the types of transparency issues that potentially exist, where we could get rid of a provision that says something like 30 business days.
Speaker 1: And I'll just give you some past practice just as a little maybe hopefully helpful.
Speaker 0: You might ask.
Speaker 1: The Open Government Commission. Two meetings are on the first Monday. And so when we've had a complaint, I've always attempted to schedule on that first Monday because then, you know, that's kind of the date that people are used to and whatever. But sometimes the complaint, it can't make the date. The complaint is required to be at the hearing. So we've had to have some flexibility to accommodate both sides because the complainant is can't have the matter heard if they don't come to the hearing. That's part of the provision. And so we've had to juggle it sometimes to like a Wednesday instead or, you know, if they needed another day.
Speaker 9: But if there is a date that's on the calendar is being held, then the complainant could look at that and know that's the date that the meeting occurs. It's the same thing that happens with the RAC or the planning board. You know, if you file appeal to planning board, planning boards meetings or planning boards meetings and you basically make it work. So I'm a little concerned that and I hear what you're saying, it's it's just seems like it's odd that we're allowing potentially a delay in actually hearing a matter that I think is of concern. Because if we're trying to legislate something, I think that there needs to be some set process in an expeditious manner to achieving an outcome in that whatever the outcome may be. The other question that I have is, you know, if we remove null and void, what is the remedy? So let's say that that and again, you know, is it just that there's a recommendation and why would somebody go to the Open Government Commission as opposed to just filing in court? Because part of. This is really about getting curing the issue as soon as possible and doing it in a way that removes kind of all the legalese and removes these legal barriers of having to go to court. And so I'm just wondering what what is then the process?
Speaker 5: So Councilmember Vela, as currently proposed, the process would be that the commission would still hear the matter, just like they would do today. And if they believe that there is a violation, they would issue a recommendation to the originating body, which details their findings. And we believe that by having that recommendation and decision be issued, it serves a number of purposes. We believe that that the open and transparent nature of that decision will probably cause the original body to seriously reconsider the decision that was made. And second of all, we believe that any decision that was ultimately, you know, an unfortunate hypothetical ignored by the city, that decision would probably be accorded significant way by a court on judicial review. So we believe that that issue decision has multiple important audiences and it serves an important function.
Speaker 9: So I guess the other follow up to that is if there's how does that work? Because the city attorney's office represents the city, but then they're overseeing and advising the AGC. And if the AGC makes a recommendation against the city or against the process, that's been advised by the city, how does that work?
Speaker 5: So there's well-established judicial precedent that allows a government office to establish ethical walls when appropriate, when conflicting bodies are being represented. And this happens fairly regularly throughout the state. And I'll give another example. When there is an appeal to a personnel board, it's another perfectly good example where the city attorney's office may both be representing the decision maker, which is the Personnel Board and the Human Resources Department, who is proposing a particular discipline and judicial decisions indicate that a government office can impose ethical walls so that its lawyers can represent both functions faithfully.
Speaker 9: So I think, you know, and my questions are really about the process because I am concerned in having this be a transparent process for people to file complaints. And I want this to be more than just about the ordinance that kind of triggered this whole conversation, because there's other ordinances that we've passed through, you know, emergency ordinances and that sort of thing. And I'm concerned if there was an opportunity to say, put potentially hit pause on one of those, what the what the impact would be. But it also seems like some of these issues are process issues that perhaps and what happened with the cannabis ordinance was really unfortunate because of the timing and us going out to recess that there it snowballed into a bigger issue and there were longer delays. But it seems like maybe we could explore other procedural ways of streamlining this so that those sorts of issues don't happen and where we could region dice something and hear it sooner and have a way for the item to be heard sooner so that we can get resolution on it sooner. So that's kind of where I'm coming from. I, I guess I'm a little concerned about removing the ability to have this be a kind of decision to call, to call the question really on the council without going to court. And that's that was the value of this provision when I spoke with some of the people that were on the council at the time was that this would allow that sort of decision to be made with some teeth. But but to really put the council's feet to the fire without having to go through a long, drawn out court process. And the benefit to the city was that it wasn't a long, drawn out court process. So I'm a little concerned if that incentive goes away and you have another council in place that then doesn't really care what the logic says and moves forward and just keeps the thing on the books. And then we're in a situation where we're in court litigating over this issue.
Speaker 0: Okay. Who wants to go next?
Speaker 6: Happy to.
Speaker 0: Councilmember Desai.
Speaker 6: Well, thank you very much. You know, we do need a tool that allows us, the city council, to catch ourselves in instances when we make decisions. The details and substance of which was not publicly noticed, public noticing is key so that the public so that the people can weigh in on matters, so that they can give us their opinions on how we might vote and we on the issues that we might think about as as we deal with these public issues. NULL and void is meant to be that tool. It's meant to be that tool that deals with situations when council comes to a vote and a decision on a topic. The public wasn't properly informed about. NULL and void is a tool that supersedes a council decision and therefore represents a power that, when exercised, is above the city council. But the problem with null and void as I look at it, the problem with null and void is that it has no basis in our city charter. Instead, the city charter at Article 3-1 vests all power in the city council. It is true that in the next article, Article three, Dash two, Article three, Dash two says that the the council can delegate powers to commissions. But Article three, Dash two also says that it can only do so in a manner consistent with the charter. So it has to be consistent with the prior Article three, dash one. So to me that's an important sticking point, is understanding what is the basis of null and void and how does that align with the basis of the council's powers? Now, when we talk about powers, the city charter even becomes even more specific. When you look at, for example, Article one, dash two, dash de D, one of the powers that the city council is vested in is the ability to the ability to make and to enforce laws. And when you put it all together, three dash, two, three dash, one article, one dash, 2-d. What that means is that the City Council is invested in making powers and rules, and we can delegate that to commissions and boards, but we cannot delegate it in a way that places the council in an inferior position. And the way in which null and void is being exercised, I believe, does that. So the remedy is to correct a null and void, but still come up with a tool that deals with situations where the public isn't properly noticed. I would encourage us not to be so adamant that null and void is the only tool. It's altogether possible that members of the public, members of the Open Government Commission can come up with a variety of other tools that checks the City Council. When we make a decision that was not public informed, for example, it's altogether possible. Just thinking off the top of my head. This The Council can create an ordinance that allows the LGC to like like a football referee throw a flag. And when they throw a flag and in situations when they clearly point out that a decision was made when the public was wasn't adequately noticed, when that flag is thrown, then subsequent ordinances, council cooking come up with it is that while the decision of the council can move forward, there would still be certain penalties. For example, perhaps one of the penalties is in those decisions where the public will see what the public was not fully formed, informed. Then the council has to vote on a 4 to 1 basis on on those matters. So it becomes it doesn't altogether eliminate the the decision of the council. It just raises the bar of how to move that that issue forward. So council can still exercise its authority. In other words, these are just kind of off the top of my head ideas that that we might look at, that the public might look at as to continue to create the right check on the city council. When we I mean, there are times when we're going to make accidents, when we're going to make some decisions, when we didn't correctly publicly inform the residents. But when we create those checks, um, let's do so in a way that's aligned with the city charter. And I have no doubt that there are, there are ways, there are many ways for us to create the remedies that are similar to null and void that are and as effective. No one on this dais doubts the effectiveness of null and void. It stopped a certain decision in his track. City Council had to go back and redo that decision. No one no one doubts that. But that decision, though, has to grow out of a basis. And that basis is our city charter. And so as we correct null and void. I would hope that the Odyssey and the public as well as City Council figure out ways to do so in a way that's aligned with the city charter. And I and I have no doubt that we can.
Speaker 0: Thank you. I mean, you can buy me your next wait.
Speaker 4: Go ahead. Thank you. I I'm going to find myself in high alignment with Councilmember Desai. I appreciate the way in which he laid that out. So I was on the on the Sunshine Task Force with Jeff Mitchell, who was charged with writing the the section for the Open Government Commission, which took a section, and he was the former editor of the Alameda Journal. Transparency was extremely important to him. And at every single meeting when we talked about this, the rallying cry from Jeff and others like voters and I would say the other four of us on the task force was that the Open Government Commission needed to have teeth. This was not just supposed to be a body that says, hey, there's a problem and then everything moves on. How do we make sure that when they make a finding, something happens that causes the city to kind of sit up and reassess? Well, I appreciate that. The staff report in the step reporting that the idea that just a finding that is written that says there's a violation will make the city really reconsider it. I think the one time this has happened shows that that was not true. In fact, the city went into full battle mode to tell the ask, you know, basically ask the Open Government Commission to reconsider, not just null and void, but reconsider their decision that a sunshine violation had happened. Right. Everybody put all their power into discrediting the finding of the of the sunshine of the of the Open Government Commission rather than just re agenda using the darn thing and having it done. I mean, that was what was kind of silly to me about this whole thing. It was such an easy cure. And yet we spent months talking about this thing. So I agree completely with with Councilmember de Sug and others that I mean, obviously, the staff lawyers, three of them now that, you know, from as as they have explained it to me, because I am not an attorney, but well, that null and void is not a legal finding. And now that we have all this written about this, it is problematic, you know, that there was a lot of concern around this issue that somebody would sue. There is going to be an issue, whether it's around development or something else that is hot and right, that's going to drive somebody to file a sunshine complaint that's going to put us in a legal position. And if we have some, you know, we're going to end up in court at some point in time fighting null and void and in it. So but at the same time, I am not supportive of just removing it and hoping that at the end of the day, the Open Government Commission's finding is, you know, it's just a finding that sent and hopefully somebody cares enough to take it back up. So, you know, the way I've been thinking about this, knowing that we, you know, it's problematic for this for this body or anybody to undo the actions of the council. You know, we also know that that sometimes actions of the council take a little time to to. You know, we we we give we set up ordinances all the time that take 30 or 60 or 90 days to actually really get up. You know, we might pass a law, but enforcement of that law really doesn't happen for 60 or 90 days if a violation is found. You know, I would propose that that we have a sunshine ordinance that requires that that agenda, that item get agenda based on the next, you know, reasonable agenda for consideration. And that that consideration be both a finding of concurrence or non concurrence with the with the Open Government Commission's finding, but also that it would be that it would include a an opportunity to cure the issue. So actually what they would do is actually put some pressure. The simplest path would not be to find against the Open Government Commission. The simplest path would be to rehear the item and cure the item. You know, and I think that that if we were to write something that also basically said that we will maintain the status quo during that 30 or 40 day period to get it back up on that agenda. Basically, that means that there's, you know, back to the trust issue. There's not that time for, you know, staff or the council to somehow sneakily do a lot of work on the on it while it while it's in existence. It doesn't it doesn't remove that. But it but it basically gives the the the public the opportunity to come back to that body at a publicly at a properly noticed meeting and to weigh in not only on whether there's violation, but weigh in also on the issue itself, publicly noticed at that point in time, it's you know , I don't want to you know, it's not the same as null and void. It does not undo that. I've heard that. Oh, it's not on doing it because the council can also pass it. But if the council doesn't repass it, it's been undone that I do. You know, I, I am convinced of that. Yeah. I'm going to end by just sharing a quick story. As an advocate, I went to the. California Transportation Commission. They badly noticed something that was very significant and had a big timeline. And we filed a complaint ahead of the meeting that that they had not noticed this properly. And then because they didn't know who I was, I sat with with the staff and the county and the council members. The staff said, don't worry about it. You just pass it tonight, give everybody the assurance that it's going to happen and we'll just bring it back and notice it in 30 days. Right. And then they realized that I was there and everybody ran off and and huddled separately. I want to make sure that we're not getting ourselves in that situation where basically we you know, it's just that the finding is just kind of perfunctory. I think Councilmember Vela spoke, too, that there needs to be something that puts a little bit more teeth in that, which brings it back and puts it on the dais and on tape and allows people to stand up and speak. And so if we can come to something that replaces null and void with with an acceptable alternative, you know, I can support it. But, you know, and I'm not I'm not supportive of the staff's recommended language of just removing one void and kind of hoping shame is enough
Speaker 0: . Councilmember Councilmember O.D..
Speaker 3: Thank you. Thank you for also letting me not go first.
Speaker 9: Yeah.
Speaker 0: I was working on it.
Speaker 3: And trust me, you're not the Iowa Democratic Party, so we will get out of here on time today.
Speaker 0: Do we have results? I was working.
Speaker 3: So I also appreciate Councilmember De Sykes comments. Sometimes the non-lawyer distills it in a way that we all can understand. I would just add to it that, you know, there's also the restraints of the United States and the California Constitution. So we could pass any law we want. We could think it's great because Jeff Mitchell thinks it's great. But if it's not constitutional, you know, it's it's not it shouldn't be there. So and I also appreciate both the suggestion from the vice mayor and the suggestion from Councilmember Dysart, you know, that we do replace it with something . So there needs to be some teeth to it and there needs to be some calling out of the council. If we do do something that violates the Sunshine Ordinance, you know, like the idea of immediately putting it on an agenda that we either agree or disagree and then move forward one way or the other. And then, you know, if somebody wants to sue, I mean, there's an opinion on the sunshine or the Open Government Commission, you know, that will have some weight. And then if the council doesn't really have anything supporting of that, you know, I understand that. My only concern here and, you know, I think this is going to not be an issue 99% of the time. So let's not let's not ignore the elephant in the room on what happened here. My my concern is that someone and I'm not saying anyone did this because I think the people on the Open Government Commission exercised their judgment based on their understanding of the rules. And I am not saying anything about the person who filed the complaint, but others, not anyone in this room, not anyone who filed a complaint did say to me that they were going to use that to try to overturn the cannabis. So and which normally wouldn't be a big deal. Right. But the problem that happened was there was an election, there was a swearing in of new people that many people in the community thought had different opinions on it, and that they were going to they were going to use this as a sword to implement their policy and not as a shield to protect the public from non transparency. So and I remember my first meeting, we spent the entire time discussing Del Monte, you know, I can't believe it's still not ground broke yet or maybe it's close to it, but it's been, you know, five, five months. And I guess the argument that was made and maybe it's a legitimate one was that the agenda item said we were discussing delivery only cannabis and then we just and to dispensary's and yet we decided to bump that up to four. So I think that was kind of the that was kind of the gist of the complaint and the finding. So I went back and I remember I went to the meeting on December 2nd, 2014. I sat in the audience back where Catherine sitting now and we had a discussion on the first reading of the De Monte Project and 35 speakers got up. I just kind of the minutes and then after the public comment had closed and the DEA and the masterplan were there, there was a suggestion from the dias to reduce the number of housing units from 414 to 380. Okay. Well, if you're not a housing advocate, you probably don't care about that. But if you are a housing advocate, you didn't go to that meeting thinking that was going to happen, and you didn't go to that meeting thinking that was going to happen after the public comment was closed. So and then we had the second reading, which I wasn't there for, and then we had the thing. So I mean. I think we've got to be careful about what happens during that period when we have a switch, because I think this can be used in a negative way. Now, that's the people that, you know, were against this project, probably didn't know this tool was there and didn't use it. But, you know, if there was a motion to move approval of adding an addendum to modify the master plan on the date to not include city portion A partial B reduced the number of housing units from 414 to 380. And they didn't know about it. I mean, to me, that sounds like a worse violation than anything this council was accused of. So if there are some safeguards that can be put in place during that interim, when there's a change or there might be a change to try to undo a council decision, you know , I'd be open to hear what that is. And the but you know, on the flip side, you know, we don't want to jam things in at the end either. So there has to be some safeguard there. So giving some direction either to the C or staff to develop some replacement that meets the needs that I've heard from my colleagues. But also, you know, doesn't allow this to be used as a sword when there's a change of election, I think would be would be would be super critical to me.
Speaker 0: Thank you. So I'll go last and thank you all for your time and attention and your emails, your remarks this evening and to staff who's put a lot of time and effort into this. There is an adage in law which is bad facts make bad law. And I do recall the particular item that generated the complaint that Ms.. Chan referenced, and I, I was upset about that, too. But at the same time, we have to follow the law and my colleagues to the left and the right. Councilmember Desai again, Vice Mayor Knox, while I think articulated very well, I come at the remedy a little differently what our authority is, what our authority is, and we have to respect the authority that has been delegated to us, and that is not delegate role to others. I do feel that the order to cure remedy is adequate and sufficient. I would certainly be interested in the you see the Open Government Commission if they so choose to, coming up with something that incorporated some of the suggestions we've heard to make sure, for instance, that there is a set time period so someone's complaint does not languish. But I would emphasize that we have a city attorney's office that takes great pride in doing good legal work and advising the city and its boards and commissions. Everyone is certainly capable of making mistakes because we're all human. But this particular issue has been scrutinized extensively, and I am confident in the in the outcome that we've seen. The question was asked the rhetorical question, so what's the harm if we just let the the null and void clause stand? The harm, I would say, is essentially what Councilmember Desai alluded to. This is not a power we can delegate. And then two points that Councilmember Odie raised. It isn't just about an improperly noticed item. That's not the only thing the null and void remedy could be applied to. It could, in the right set of hands be applied to a law that someone doesn't like. And that's that's that's a concern. And again, we were elected to do this job. Now we've heard it said, by gosh, even the League of Women Voters that people don't trust elected representatives. Well, here's the thing. I say this often. If you choose to be an elected office, you better have thick skin, a sense of humor and a backbone. And I can attest to the fact that every one of us sitting up here don't all agree come from different perspectives. But we're working awfully hard for the people we represent. And then I would further quote my favorite president of recent times, Barack Obama, who in his closing address to the nation said, And if you don't like the folks who are representing you and you think you can do better, pick up a clipboard, collect the signatures, and run for public office. And and I wish more people would serve on our boards and commissions. Use that as a. A stepping stone to elected office. I happen to think we have great representative government in this city. We've come to a point of disagreement on this particular item, but I take very seriously the advice that the city attorney's office has given us. I've read the references to the case law and the city charter. And so I, I support the amendments, all of them that the city attorney's office is recommending. But I would also entertain a further remedy not to bring, you know, null and void light back, but to make sure that the intent, the spirit of this law is is honored. And it was something I was going to say, and there is something that concerned me in the staff report, and perhaps it was paraphrased in correctly, but it it did talk about it. And I, I didn't feel that Mr. Lay was burying his lead when he talked about there was agreement on nine of the ten amendments. There were. I think it's maybe just a way to transition in, but be that as it may, it is stated in the staff report and maybe I'm interpreting it wrong, but the commission further stated first they didn't agree with the null and void decision. Commission further stated that it would not support any similar amendment. So I'm concerned that what that means what if first, if indeed that's what the commission said, because they didn't go back and listen to the the actual meeting. But I would expect that our boards and commissions will work cooperatively and collaboratively with our city attorney's office and vice versa because we respect all of our times. But I think that we can come we can maybe have some additional guidelines that make sure that people who have a complaint are taken seriously. I mean, the analogy to the the penalty, the ref, you know, dropping the the filing the penalty, I will say coming so soon after the Super Bowl was a little painful. But hey, but but that it does stop stop the game until they go and, you know, review the the tape and look at it from all those different angles. I still didn't think that was a touchdown the other night. But anyway, I'm over it almost. But you know something that makes sure that, yes, this is taken seriously. You you tell us that that we there needs to be in order to cure it comes to the city council as quickly as possible. And we don't, you know, buried under the rug. So if someone, you know, wants to suggest a way to do that, I'm all ears and that's all for me. Thank you. Let's start with Councilmember Velvet and the vice mayor, then Councilmember Odie Councilmember.
Speaker 9: So there was a suggestion earlier by a couple of members of the public that there may be some sort of task force similar to the original task force or that it go back to the Open Government Commission for them to to weigh in on. I think when we had the task force, we didn't necessarily have the AGC and I don't know what happened in 2015. There was a reference to a review of that. I don't know if that was in connection with being on the AGC because I know Mr. Foreman has been on it before, but perhaps the AGC could could weigh in and let us know what options may work or that they think they could recommend in terms of giving something, giving some teeth to this. I also think looking at the process in nine B, because right now we're saying that we want it to come back quickly from the GC. But again, if there's six weeks between when the complaint is filed and the AGC hears it, that could be problematic. And maybe we want to give them some direction that they can hold. Meeting dates that can be posted on the calendar. If there's no complaint filed, then they can just not have their meeting, which is what other boards do. And then the other thing is, with the Sunshine Ordinance in place, that quick turnaround may be difficult. So if they have a regularly scheduled meeting that this is heard at and depending on when in the month that is, yeah , we may need to have some clause in there that allows them to expedite re agenda using it before the council because of the delay. And I'm out of time.
Speaker 0: Okay. Vice Mayor.
Speaker 4: I have on our screen, I think I saw staff working on something. I was just going to ask if they pass a. They had language they might want to propose based on the commentary that they've heard. Jon Stewart Sorry, it's not up here, but I was going to warn you that I see you typing, okay?
Speaker 0: Like, I can't. I can't even read it that small.
Speaker 4: I just. It seemed like SAP was trying to possibly put put together something. And, you know.
Speaker 0: His staff want to comment.
Speaker 5: Oh, so, Madam Mayor, if I may.
Speaker 0: Yes, I would need a mirror to read that.
Speaker 5: We've been we've been hearing the council comments and then speaking.
Speaker 0: To the microphone, please.
Speaker 5: Oh, yes, we've been hearing the council's comments. And we've we're we've drafted up something for the council's consideration, which I believe addresses both the vice mayor and council member de Suggs concerns that they've raised, which is that one, it comes back to the original commission or the council as soon as practicable, and that this amendment further requires the originating body to make a decision based on the OGC recommendation, which may involve agreeing and caring or disagreeing, and that it further takes into account the vice mayor's concern, which is that lots of things could be happening in the meantime, so that this amendment also provides that the city would take all necessary actions to the extent authorized by law to maintain the status quo.
Speaker 0: Okay, let's hold that thought, because I think the vice mayor inlets, were those your comments that you could see them?
Speaker 4: I mean, yeah, that that looks I just wanted to find out if there was possible language before we started possibly developing new task forces and whatever else.
Speaker 0: But yeah, I am. Thank you for that. Were you done in our call on council member?
Speaker 3: Thank you. I'm not so sure about that maintaining the status quo because there is a law in place about ordinances and when they take effect in 30 days and so on and so forth. So that would kind of overrule that. And I don't know if that works, but I like the idea of council development in about you having meetings regularly scheduled that if there is some issue that it can be addressed ASAP. I also think that ONGC probably is the best body to come up with ideas on how they think that a violation can be enforced most effectively. I mean, there's a fine provision there and we all care about the budget and that may be something that that maybe can be enhanced. The question I did have, though, and we kind of didn't touch on it because we went into the No. One void, but this whole idea that it supersedes other laws, I mean, does that mean anything that it that's different in the past is changed or anything that we passed in the future that conflicts which hopefully neither of our none of our staff lets us do how? I just was not sure about that.
Speaker 5: So council members and the laws cannot anticipate what you would do in the future and it cannot bind future councils. So what it does is that it supersedes laws that were in existence at the time of the adoption. In fact, when you adopt an ordinance, you always adopt a provision called implied repeal, which is in any law that's inconsistent with the ordinance that you're adopting at the time. It's a is repealed to the extent necessary to effectuate your new law. So your new law will always take precedence.
Speaker 3: Well, we should make that clear. That's all. My time is up.
Speaker 0: To the council everyday.
Speaker 6: So with 70 seconds, I'm going to speak quickly. It's hard for me to understand whether or not the proposed language has teeth, but I'd love to get input from the AGC or anyone else on that on what's proposed here.
Speaker 0: And I will make a motion to extend the time because I think this is a an important issue and I don't see that it serves any. Okay. How much time, folks?
Speaker 2: I'm sorry. Four.
Speaker 0: Okay. Okay. Motion to extend time. 5 minutes for everybody.
Speaker 6: Yes.
Speaker 0: Okay. Okay. That's a second. I've got a motion second on favor. I, I think Councilmember Desai seconded. Okay. Okay. So continue, Councilmember.
Speaker 6: So that's basically my point. I said it in 17 seconds. I would bring it input as to they understand our broad parameters or broad parameters. It has to be consistent with the charter as we discussed it. But we also have to believe that within those parameters we can still come up with something that's that's that has teeth , but it's just not null and void null and void concept.
Speaker 0: Okay. So your recommendation to send it back to the board, you see, and that would be the remedy I would favor as opposed to convening yet another subcommittee because I think we want to keep this moving forward. Um, who else didn't finish their comments to Councilmember Gallo?
Speaker 9: I was going to say, I think having it go back to the AGC makes sense. In this instance, I'm a little wary about drafting something tonight and then adopting it, especially in light of the topic that we're discussing. So I'm not going to be supporting I think that that clearly there are other ideas that exist that are out there. Perhaps these can be brought to the GC and discussed and noticed properly and all of that. I do think, like I said, creating a process similar to call for review or appeal to planning board where we have kind of a date set and a turnaround possible would be helpful. Keeping in mind the other provisions of the Sunshine Ordinance that require us to notice things ten days before and all of that, and because I do worry about an instance, let's say, where it's not a cannabis issue that we're dealing with, but we're dealing with an exigent ordinance. For instance, when we were looking at the issue that impacted a tenant who was going to be evicted, who was a Holocaust survivor, and the emergency ordinance that we put into place, and if that had been formed, what that would mean. So and perhaps it's the AGC that can make the determination to suspend certain rules for noticing and still comply with the Brown Act. But maybe not because it's already been been heard and is now being cured, that there's a shorter time frame for adding to the agenda, an item like that.
Speaker 0: And my observation would be that since this is the first reading of an ordinance, I think these amendments might take this a bit beyond what we first contemplated and would recommend would would need another first reading anyway. So I would certainly support sending it back to the Open Government Commission. But again, to work with the City Attorney's Office and I am quite confident we will follow the city attorney's recommendations, but I think this can be made a bit better and give some reassurances and however that needs to be worded. Council Would we at least say that this this amended draft might be a good starting point to to work from?
Speaker 9: I.
Speaker 3: I don't think so. I don't like the maintaining the status quo because you're basically overriding the state law.
Speaker 0: Well, no, I'm saying to send back to the the Open Government Commission very fine.
Speaker 3: Without that, the city shall take all necessary action sentence.
Speaker 0: If you will. That could be directed to staff. Yeah.
Speaker 3: Okay. Just adopting it as is with the direction that we've all decided we want to give.
Speaker 0: I don't know. I don't know what adopting the ordinance is now. It's going to be modified. Why would we adopt it now.
Speaker 9: For a new first reading?
Speaker 3: Life we adopted and then tell The Odyssey to come back in two or three months with replacement. I don't want.
Speaker 0: That. But then in the in the intervening time, this would be the councilman, I mean, councilmember like to be on the council member city attorney.
Speaker 5: I think Mr. Councilmember Otis point is to adopt a staff recommendation with direction to review. I think that's okay. So I think you're in agreement with the mayor.
Speaker 3: Okay.
Speaker 0: Speaking a different language. Okay. Got it. Okay. So are you making a motion?
Speaker 3: Sure. I'll make a motion to.
Speaker 0: Adopt the.
Speaker 3: Adopt the staff report as written with direction for staff to work with the Open Government Commission to find a replacement, an effective replacement to the null and void remedy based on our discussion and anything else they may have.
Speaker 0: Okay. We have a motion by Councilman Brody and a second by Councilmember de suck discussion Vice Mayor next week.
Speaker 4: So I won't be supporting this motion. I feel that we should. Like I said in my comments, I'm happy to remove null and void, but I'm only going to remove it when I know what the remedy is. Because I think that removing something like take all necessary actions to maintain the status quo puts us into the they're now making a finding, but everybody just ignores it. And it's basically it has it it removes any meaning and teeth. I'm also going to just we didn't talk about it but the the the fine $250 public works getting the transportation commission getting fined for violating the Brown Act $250 transfer is going to send 250 bucks. Right. You know, laughing to the finance department. I mean, it's not you know, I don't the fine doesn't really unless we're getting into tens and tens of thousands of dollars, it's not going to have a real big impact on noticing in this body because it doesn't the people getting fined are not the people sitting here. So I have.
Speaker 0: Interject an inquiry.
Speaker 7: Or.
Speaker 0: Would you like staff direction to include that you would like the fines and penalties provision revisited. I even if you're not supporting the motion, would you like to see that be part of staff direction? But you don't have to. Sure.
Speaker 4: Yeah, I just I guess what I'm trying to say is I.
Speaker 0: Think that's a good point. And then you had more to say.
Speaker 4: I do, yes. I would like to make sure that our direction is that that, you know, to to the mayor's point earlier, it's I have very much appreciated hearing from almost all the, uh, open government commission members and their concern about removing null and void, but that the direction is that it's going to be removed and that we are accepting the city, the city attorney's position on this. And therefore, I just want to make sure that if we're going to send it back to the Open Government Commission, that we're trying to find that balance where, you know, to me, all necessary actions to maintain the status quo gets us to a place where they're not repealing it. They're just slow walking there. The roll out, their vice mayor, former vice mayor, city council member, fellow still vice mayor, in my mind, you know, came up with the, you know, the idea of maybe if it's an emergency know, maybe there's some exceptions where whatever else. But but I, I feel like for me in order to repeal this, I need to know what I'm repealing it for. I don't want to repeal it. And then in three months, come back and say, yeah, we can't agree on what's going in there. So now it's just repealed and we have nothing. So which, which I fear is, is a possible outcome.
Speaker 0: And I will just add that I couldn't support anything that is keeping the null and void option in because we've heard several times over that it's it's not a valid remedy given the charter and our authority. So. But we have a motion in a second. Is there any further I'm sorry, Councilmember Rivera.
Speaker 9: So I'm not going to be supporting this motion and for similar reasons as the vice mayor, I would also I think this has been on the books for a long time, and then we knew it was an issue when the complaint got filed. So. For me, it seems like it's been on the books. We knew there was an issue, there was legal research and we've kind of gone back and forth. And so I don't see the harm in waiting another month or 60 days for the GC to weigh in and give us a remedy because it has been on the books for this period of time and I would like that process to happen and to have some teeth proposed that we can all live with and then put it in there so that it works. So I'm I have a similar position as the Vice Mayor.
Speaker 0: And I'm looking forward to the AGC coming back with something.
Speaker 3: But my only point to that is I think we all agree that that is not an authorized remedy under our Charter or the Constitution. So, I mean, if we had an ordinance that says you can discriminate against women and we know that that's unconstitutional, would we just keep that in there until we fix it or would we take it out because we know it violates the law?
Speaker 0: Okay. We have a motion. We have a second. All in favor.
Speaker 6: I just want to say you.
Speaker 0: Yes, yes. Sorry.
Speaker 6: Yes. The quick comment I want to make is I do think that the points that Councilmember Vela and Vice Mayor Knox White are valid, because if we do take a vote, we run the risk of of taking the leverage out that the GC might have because we've made a decision that we're going to. But but by the same token, Councilmember Odie raises a good point that if there is a rule that that is in contradiction to, to a higher rule, do we sit around and let it be? So for me, I'm going to have to believe I'm going to have to have faith that the city attorney is going to work in good faith with the Open Government Commission and the public in creating the language that that is akin to null and void, that does provide some teeth, but is aligned with how we're interpreting the city charter. So I'm going to have faith that that's going to occur even as we move forward with staff recommendations. So that's why I will remain in favor of the vote.
Speaker 0: Thank you. All in favor.
Speaker 4: I oppose. No.
Speaker 0: No. The motion carries 3 to 2. And I just want to comment that this has been an excellent council discussion and I really appreciate the very thoughtful comments and also the melding of different suggestions and perspectives. Thank you, everyone. We look forward to this coming back to us and I'm ready to go on to the next item, people. Okay. Remind me what that is. 60, 60. We have 60 up next. Okay. Excuse me. Excuse me. We are conducting a council meeting. Excuse me, Mr. Peterson. I'm going to call a break if you don't leave now. Miss Smith, would you please would you please give us the.
Speaker 1: Can I read the title really quickly? Thank you. Introduction of Ordinance Amending the code by adding new Section 20 3-9 Personal wireless service facilities in the public right away, and amending Section two Dash 59.3. Limitation in power to make contracts to exempt master license agreements for use of public assets for personal wireless service facility installation and a recommendation. Authorize the city manager designee to negotiate and execute master license agreements for the use of public assets consistent with local law. Good evening, Madam Vice Mayor. Members of council.
Speaker 0: Be sure your right up to the microphone.
Speaker 1: My name is this. Yeah.
Speaker 0: Yeah. Closer is getting pull up. Yeah, I know. It's. We got. We're going to get into Hollywood. I don't know.
Speaker 1: Uh, my name's Aaron Smith and the city's deputy public works director. I know it's getting late, so I'll do my best to present this matter succinctly before you tonight. As an ordinance amending the municipal code to set the regulatory framework and standards for permitting of the installation of wireless facilities in the right away. Further, the ordinance delegates authority to the Public Works Director to publish and amend as necessary relevant administrative documents such as design standards for these facilities, the SUBMITTAL Guidelines for when they go to submit a permit. Accompanying the ordinance will be use of a master license agreement with each of the telecommunication carriers for use of city facilities in
Introduction of Ordinance Amending the Alameda Municipal Code by Amending Various Provisions of Article VIII (Sunshine Ordinance) of Chapter II (Administration), including Provisions Related to Public Access to Public Meetings and Public Records, and Sunshine Ordinance Enforcement, Including Recommendations to Eliminate the “Null and Void” or “Order to Cure” Remedies and Replace Such Remedies With the Authority for the Open Government Commission to Issue Recommendations to Cure and Correct.  (City Manager/City Attorney/City Clerk)