From: Zac Bowling
To: CityCouncil-List; City Clerk
Subject: [EXTERNAL] Support for Item 10-A (2024-3452)
Date: Thursday, January 4, 2024 10:25:39 PM
Dear Mayor Ezzy Ashcraft and City Council Members,
I am writing in favor of the referral by Mayor Ashcraft and Councilmember Jensen to amend the Sunshine Ordinance, transitioning from the Open Government Commission to a hearing officer model. This change addresses the complexities and legal nuances of recent complaints.
The OGC, established with commendable intentions, has faced certain "operational challenges." The increase in meetings and complaints highlights inefficiencies and confusion over the OGC's role and rulings, particularly with the consequences of certain decisions by the body on complainants and the potential for process abuse.
The OGC's quasi-judicial nature, influenced by political appointments, undermines its impartiality and efficiency. The lack of legal expertise among members further complicates its ability to interpret and apply the Sunshine Ordinance and the Brown Act accurately or how to act on staff and council recommendations that do have the legal expertise, leading to the Commission becoming a stage for proxy political disputes from City Council rather than a forum for transparent, focused deliberation of legitimate open government complaints.
Adopting a hearing officer model would ensure impartiality and expertise, aligning better with the goals of effectively handling Sunshine Ordinance complaints.
I strongly urge the City Council to consider this amendment, as it is vital for maintaining open government principles efficiently and impartially.
Sincerely,
Zac Bowling
From: [email protected]
To: Marilyn Ezzy Ashcraft; Tony Daysog; Malia Vella; Trish Spencer; Tracy Jensen Cc: Manager Manager; Yibin Shen; City Clerk
Subject: [EXTERNAL] Item 10-A on Nov. 21 City Council Agenda Date: Monday, November 20, 2023 10:07:14 AM
Dear Mayor Ashcraft, Vice Mayor Daysog and Council Members Vella, Spencer & Jensen:
I have previously expressed support for Referral 10-A in my capacity as a board member of ACT.
However, I want to add a few more points for your consideration as positive consequences of having OGC complaints decided by a hearing officer.
1. Elimination of the dual role of the city attorney in complaint proceedings:
When I served on the
OGC, my initial and continued concern was that both the Commission and the City agency named as the respondent in a complaint was represented by different assistant city attorneys. I saw this as a clear and unacceptable conflict of interest. Subsequent to the expiration of term of office, the city attorney responded to this concern by initiating a policy of retaining private counsel to represent the respondent City agency and appointing a dedicated assistant city attorney to advise the OGC in the complaint proceeding. Although this assistant city attorney is “walled off” from the rest of the city attorney staff in any discussions about a complaint, I continue to see this as inadequate to resolve the basic conflict of interest.
One of the very positive advantages of having complaints heard by an attorney hearing officer is that it would resolve the conflict. The hearing officer, being a qualified attorney, would have no need for legal counsel. Thus, the city attorney’s function in a complaint proceeding would be limited to defending the respondent city agencies. Obviously, this would also eliminate the need to retain private counsel for respondent agencies.
2. The freeing up of the OGC to concentrate on its non-complaint duties under Sec. 2-22.4 of the Alameda Municipal Code: There are six enumerated duties assigned to the OGC under Sec. 2-22.4.
Only duty a. the hearing of complaints, would be repealed by assigning that duty to a hearing officer.
The other five duties would remain as follows:
“b. Advise City Council on appropriate ways to implement the Sunshine Ordinance; c. Develop goals to ensure practical and timely implementation of the Sunshine Ordinance; d. Report in writing to the City Council at least once annually on any practical or policy problems encountered in the administration of the Sunshine Ordinance; e. From time to time as the Commission sees fit, issue public reports evaluating compliance with the Sunshine Ordinance by the City or any Department, Office, or Official thereof. f. Consider ways to informally resolve those complaints and make recommendations to the Council regarding such complaints;”
Unfortunately, these five duties have not heretofore received as much attention as they should due to the time burden of hearing complaints. The performance of these duties would require the OGC to monitor the complaints, both as to process and results, but would not require the attendance of Commission members at complaint hearings as the monitoring could be done by review of relevant documents and the videos of the hearings.
I hope these comments will be of aid to you in your consideration of Referral 10-A.
Sincerely,
Paul s Foreman
From: Alameda Citizens Task Force
To: Marilyn Ezzy Ashcraft; Tony Daysog; Malia Vella; Trish Spencer; Tracy Jensen Cc: Manager Manager; Yibin Shen; City Clerk
Subject: [EXTERNAL] City Council 10/17/2023 Agenda Item 10-A-Moving to a Hearing Officer to Hear Sunshine Ordinance Complaints.
Date: Friday, October 13, 2023 11:25:16 AM
ACT
Alameda Citizens Task Force
Vigilance, Truth, Civility
Dear Mayor Ashcraft, Vice Mayor Daysog, Council Members Vella, Spencer & Jensen:
We have reviewed the above Referral and believe that it has raised reasonable grounds for moving forward with consideration of amending the Sunshine Ordinance to provide that complaints filed pursuant to AMC Sec. 2-93 et. sec. be heard by a qualified attorney hearing officer, rather than the OGC. However, we strongly believe that any such amendment should include the following provisions in order to ensure that the process will provide meaningful oversight of the compliance of all city agencies with both the Sunshine Ordinance and the Brown Act.
1. Ensuring the Neutrality of the Hearing Officer: The position of a hearing officer to review Sunshine Complaints is very unique and sensitive. This hearing officer will be deciding whether city officers or agencies violated the Sunshine Ordinance or Brown Act. In many cases these complaints are challenging actions specifically approved by the City Attorney. Therefore, it is important that the hearing officer be appointed by a neutral and transparent process. We suggest that the City Manager widely advertise the position and present qualified candidates for interview by the OGC. The advice and consent of the OGC should be a condition precedent to the hiring or discharge of a hearing officer by the City Manager.
2. Public Hearings: The current practice of these complaints being heard in advertised public hearings and subject to all of the requirements of the Sunshine Ordinance should be continued. This is especially important to allow the review of the process in the annual report of the OGC suggested in the Referral. It is also important to allow public participation in the process.
3. Hearing Officer Decisions Final and Binding: The Sunshine Ordinance initially adopted by City Council in 2011 provided in AMC Sec. 2-93.8 that OGC decisions on complaints would be final and binding on the parties. However, in late 2018 the City Attorney advised that the section conflicted with the City Charter and California law because it constituted a legislative function that could only be exercised by City Council. The OGC, which included three attorneys, including Paul Foreman, a current ACT Board Member, argued that their action was not legislative, but was quasi-judicial and thus in full compliance with law. However, the City Attorney maintained his position and the section was subsequently amended to provide that an OGC complaint decision would be advisory only.
We note with favor that Mayor Ashcraft and Council Member Jensen base much of their rationale for a hearing officer on their conclusion that this is an adjudicative matter best decided by a judicial officer. This should remove any legal impediment to the finality of a hearing officer order, subject only to court review. Retaining the current advisory limitation would expose the entire process as meaningless, and hiring a hearing officer to perpetuate it would be a waste of taxpayer money.
4. Meaningful OGC Oversight: We also note with favor the provision of the Referral that states:
“We also recommend that hearing officer decisions be included in the OGC annual report to the Council and include OGC recommendations to address any findings of the hearing officer.”
AMC Sec. 2-22.4 already obligates the OGC to file an annual report and the above makes it clear that it will include oversight of the hearings. However, we are concerned that we can find no record of any of the annual reports being placed on a City Agenda for review and response by City Council. The 2021 report approved by the OGC on February 7, 2022 contained Section IV entitled “Practical and Policy problems encountered in the administration of the Sunshine Ordinance that may still need clarification and/or action by Council.” It raised six issues that never appear to have been presented to City Council and remain unaddressed.
If these annual reports are to be meaningful, they must be placed on a City Council agenda each year for comment and required action.
We hope that the above will be helpful to you in responding to the Referral.
Sincerely,
ACT Board of Directors