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2021-09-07 Continued 2021-07-20 Regular CC MinutesContinued July 20, 2021 Regular Meeting Alameda City Council September 7, 2021 1 MINUTES OF THE CONTINUED JULY 20, 2021 CITY COUNCIL MEETING TUESDAY- -SEPTEMBER 7, 2021- -6:59 P.M. Mayor Ezzy Ashcraft convened the meeting at 7:11 p.m. ROLL CALL - Present: Councilmembers Daysog, Herrera Spencer, Knox White, Vella, and Mayor Ezzy Ashcraft – 5. [Note: The meeting was conducted via Zoom] Absent: None. CONTINUED AGENDA ITEMS (21-523) Introduction of Ordinance Amending the Alameda Municipal Code, Including Article VIII (Sunshine Ordinance) of Chapter II (Administration) to Clarify Enforcement Provisions and Provide for Other Updates and Enhancements to the Sunshine Ordinance. Introduced. The City Attorney gave a brief presentation. Outlined the “penalties” section of the Sunshine Ordinance; stated that she finds the section concerning; the penalty is harsh and unnecessary; the Open Government Commission (OGC) has not heard many complaints; urged Council to amend the clause and represent a fair process; noted San Francisco’s Sunshine Task Force does not have a similar penalty clause and Alameda should follow: Carmen Reid, Alameda. Expressed support for speaker Reid’s comments; stated that he is concerned about transparency; outlined a published agenda error change; stated changes are made to matters on published agendas including u pdated correspondence; many items need more transparency; urged Council create a Citizens Task Force which holds public meetings; expressed support for changes to the ad hoc committee provision; outlined previous updates made to the Sunshine Ordinance : Jay Garfinkle, Alameda. Mayor Ezzy Ashcraft stated Council is considering specific provisions; requested clarification on the penalties provision of the Sunshine Ordinance. The City Attorney stated staff has not proposed any changes to the penalty section of the ordinance; the section is a carryover and is intended to limit the amount of work for City staff and Commissions related to unfounded complaints. Mayor Ezzy Ashcraft requested clarification about correspondence being added to agenda items. The City Clerk stated any additional correspondence that comes in is attached to the agenda item; as correspondence is received, the date updated; new correspondence added at the top of the document. Continued July 20, 2021 Regular Meeting Alameda City Council September 7, 2021 2 Mayor Ezzy Ashcraft inquired whether correspondence is ofte n received up until the time of the meeting, to which the City Clerk responded in the affirmative. Councilmember Herrera Spencer stated that she would like to know whether it is possible to have the OGC review the penalty provision; the provision is extr eme; she would like to know the procedure of having the provision reviewed; expressed concern about the use of the term “shall” under Section 2-93.8.a. The City Attorney stated the ordinance shows the originating body being required to consider the Commission’s recommendation with the use of the term “shall.” Councilmember Herrera Spencer stated that she is concerned by the use of the term “shall;” the term “may” should be used instead; she has concerns about the Commission dictating that Council must consider a recommendation; the interim poses Council keeping status quo; outlined an instance related to cannabis ordinances; stated the language reads as though Council has to follow the lead of the OGC to void the original decision, re-evaluate the matter and make another decision; it is not appropriate for a Commission to dictate to Council what must be done; Commissions may make recommendations. Mayor Ezzy Ashcraft requested clarification for the use of the term “shall” versus “may” in the ordinance. The City Attorney stated if the Commission renders a decision that a Council decision enacting an ordinance is unlawful, Council would be required to consider the recommendation; the decision does not automatically mean that the previous Council decision is void; however, the matter must be agendized as soon as possible to discuss and consider the Commission’s recommendation; the Council may accept or reject the Commission’s recommendation upon a majority vote; if Council wants to change the term to “may,” Council may or may not consider the Commission’s recommendation; both approaches are lawful. Councilmember Herrera Spencer stated that she has concerns over the use of the term “shall” throughout the section; Council must decide at the time whether or not to re-visit an issue; Council may consider the OGC’s recommendation; the City Charter is clear about which body has the ultimate power which is City Council, not Board s and Commissions; a vote of the people needs to give authority to the OGC; any use of t he term “shall” is a problem. The City Attorney stated staff has met with the OGC many times; the OGC would like to have gone much further than the proposed language; the proposed language seeks the maximum compromise possible; there are no legal problem s if Council wishes to change “shall” to “may;” the changes can easily be made. Mayor Ezzy Ashcraft stated that she understands the section as pertaining to a violation Continued July 20, 2021 Regular Meeting Alameda City Council September 7, 2021 3 in providing public information found by the Commission; noted the OGC may recommend to the City, the steps necessary to cure or correct the violation; inquired whether the section needs another section which discusses Council’s process to cure or correct. The City Attorney responded in the negative; stated the issue of public informatio n is typically administrative action; Council does not take action on administrative actions; staff left the language included under the administrative section; the section for Brown Act violations differs. Councilmember Herrera Spencer stated that she is concerned about the time period between the OGC making a recommendation and the matter being brought to Council; inquired what happens to the decision made by Council in the meantime and whether the decision continues moving forward or becomes stalled. The City Attorney responded the language provides that the City is encouraged to maintain the status quo; stated the action will largely depend on the situation; the original Council action will be effective by operation of law; if a scenario were Council directing staff to lobby for a particular bill that has a timeframe, staff will likely proceed, notwithstanding a Commission decision; outlined a scenario related to planting trees over a three year time period in which a two-month delay would likely cause no difference; staff would likely delay action in said scenario. Councilmember Knox White expressed support for the consideration given to the matter; stated staff has worked to find a compromise that provides some accountability; future OGC’s might be a ruling body and might not necessarily have impact on the City doing business; the changes meet the compromise admirably and provide flexibility to the City whereby the harm from a finding is reduced; the proposed language gives the public the ability to know that findings of violations will be re-heard and cured; expressed support for the staff recommendation. Councilmember Knox White moved introduction of the ordinance. Vice Mayor Vella seconded the motion. Under discussion, Councilmember Daysog stated that he would like to hash the matter out even further; he is not convinced of the language being proposed; expr essed concern about maintaining the status quo pending final review by the Commission; stated if Council makes a decision that the OGC subsequently finds troubling, the current language leaves the decision of Council moving forward or not depending on the immediacy of the issue as outlined by the City Attorney; noted the legislation matter situation will allow Council to move forward even when the OGC has found the matter troubling; City staff needs to factor in and vet the possibility of the OGC having questions regarding certain matters; if the OGC finds a troubling matter, Council should not want to move the matter forward even if it is time-sensitive; Council should re-visit and hold off on executing matters deemed troubling by the OGC; the term should read : Continued July 20, 2021 Regular Meeting Alameda City Council September 7, 2021 4 “must encourage status quo;” the matter is critical and gives the OGC process effectiveness and power; he does not agree with the use of the term “should;” expressed concern about the five year penalty; stated that he does not think the situation in government has been so troubling for someone to muck up the gears of the government process; he is not convinced of imposing such a drastic p enalty; it is the right of the people to attend OGC and Council meetings; he does not think Council should be so heavy handed in the penalty; the penalty is not fair or democratic. Mayor Ezzy Ashcraft stated the matter may return to the OGC. Councilmember Daysog stated that he has concerns over the Null and Void provision; the OGC does not have the power to declare matters Null and Void; when the OGC challenges a Council decision, the decisions must be put in abeyance. Vice Mayor Vella expressed support for the recommendations; stated there have been several lively conversations with the OGC; the ordinance has been in place for over one decade; a number of things may need to be changed going forward; the OGC and Sunshine Ordinance came about from large-scale community conversation; there have been proposals and differences in opinion on what may or may not be within the confines of the City Charter; if constituents are interested in seeing certain things change, proposals to take action through amending the Charter or other alternatives can occur via robust community conversation; it is a good time to make changes; a tremendous amount of effort has been put forth in the proposed language before Council; she is prepared to support the matter; expressed su pport for all members of the OGC through the years; stated a substantial amount of time has been put into the matter; an ordinance has been put forth which will ensure the City is as open and transparent as possible; she would like to encourage Council, th e OGC, staff and the community to have a larger discussion on the meaning of open government. On the call for the question, the motion carried by the following roll call vote: Councilmembers Daysog: No; Herrera Spencer: No; Knox White: Aye; Vella: Aye; and Mayor Ezzy Ashcraft: Aye. Ayes: 3. Noes: 2. ADJOURNMENT There being no further business, Mayor Ezzy Ashcraft adjourned the meeting at 7:47 p.m. Respectfully submitted, Lara Weisiger City Clerk The agenda for this meeting was posted in accordance with the Sunshine Ordinance.