Minutes of the Regular Joint Meeting of the Oakley City Council/Oakley City Council Acting as the Successor Agency to the Oakley Redevelopment Agency/Oakley Public Financing Authority held February 13, 2024
1) OPENING MATTERS
1.1 Call to Order and Roll Call of the Oakley City Council/Oakley City Council Acting as the Successor Agency to the Oakley Redevelopment Agency/Oakley Public Financing Authority
Mayor Anissa Williams called the meeting to order at 6:30 p.m. in the Oakley City Council Chambers located at 3231 Main Street, Oakley, California. Vice Mayor Shannon Shaw and Councilmembers Hugh Henderson, Dr. George Fuller and Aaron Meadows were also present.
1.2 Pledge of Allegiance to the Flag (Cali Rios, Gehringer Elementary School Student) Mayor Williams introduced Gehringer Elementary School student Cali Rios who led the Pledge of Allegiance to the Flag.
1.3 Proclamation Recognizing February as Black History Month (Michael Dupray and Odessa Lefrancois, East Contra Costa County - NAACP)
Mayor Williams presented the proclamation to Odessa Lefrancois and Velma Wilson with the East Contra Costa County NAACP. Michael Dupray was unable to attend.
Mrs. Lefrancois commented that Black History is American History, and she hopes our nation will one day not have to set only one month aside.
Ms. Wilson shared that African Americans serve this country (veterans). She read a portion of The Black National Anthem and shared that the NAACP will continue striving for a diverse, inclusive community.
1.4 Update from Tim Haile, Executive Director, Contra Costa Transportation Authority Contra Costa Transportation Authority Executive Director Tim Haile provided an update and PowerPoint presentation.
Dr. Fuller inquired if CCTA is working with San Joaquin County to enhance road connection.
Mr. Haile mentioned that expanding SR 239 will open a gateway to the San Joaquin Valley, providing a reduction in traffic.
Mayor Williams called for a brief recess at 7:01 p.m. for staff to resolve audio issues with the livestream. The City Council reconvened at 7:17 p.m.
1.5 Update from Nonprofit Awarded American Rescue Plan Act (ARPA) State and Local Fiscal Recovery Grant Funds, Elizabeth Soleyman, CEO, We Get It Foundation
Elizabeth (Soleyman) La Vasse, CEO of the We Get It Foundation, provided a presentation.
Samantha Dean, a recipient of We Get It Foundation grant funds, thanked the City of Oakley for its support for the Foundation to be able to provide service to children in Oakley and thanked the Foundation.
Vice Mayor Shaw expressed appreciation for the program. She shared that her daughter has Tourette Syndrome and wishes there was an organization like this when her daughter was young.
Mayor Williams inquired if the Foundation has been able to leverage funds for other grant funds and how it plans to continue fundraising.
Ms. LaVasse mentioned the grant award has allowed them to meet local businesses and families, they are receiving donations that they didn’t receive before, and they are looking into other grants and funding.
2) PUBLIC COMMENTS
Lisa Cano Loomis, Oakley Library Manager, shared a presentation of events the Oakley Library hosts and mentioned they use the whole building for programs of which some events are a packed house. She announced during March Spring Break they will be doing an event every day as they will have access to the entire building.
Marilyn Tiernan submitted a public comment card to introduce herself as the liaison for Diablo Water District that was made part of the meeting record. 3) COUNCILMEMBER COMMENTS
Dr. Fuller agreed with Mrs. Lefrancois’ comment made earlier that African American history is American History. He discussed WWII systemic racism and the 1944 Port Chicago explosion where 2/3 of the 320 fatalities and 390 injured were African American sailors. He mentioned 50 African American sailors went on trial for mutiny because after the explosion, they refused to load ships and the penalty was up to death; they were found guilty, imprisoned for 2 years, and received clemency, but some remained in for 3 more months for whatever reason. He mentioned Freddie Meeks was among them and received full pardon from President Clinton in 1999.
4) CONSENT CALENDAR
Dr. Fuller requested to pull items 4.1, 4.2, and 4.3.
Vice Mayor Shaw requested to pull item 4.9.
No public comments were submitted.
It was moved by Councilmember Meadows and seconded by Councilmember Henderson to approve the remainder of the Consent Calendar. Motion was unanimous and so ordered. (5-0) Item 4.1
Dr. Fuller expressed dismay regarding the meeting minutes. He mentioned not including the question he raised to the Assistant City Attorney regarding translation representation for the appellant during the Code Enforcement appeal hearing is a degradation to the accused as it was obvious the appellant did not speak English, he is not certain the appellant understood what was being said, and there is no way to be certain that the translator communicated what was being said to the appellant, and it should be reflected in the minutes. He added that the City does not keep video of the meetings indefinitely on its website to refer to. He also mentioned he asked a question that staff was unable to respond to and Vice Mayor Shaw mentioned it was a Notice of Violation and later referred to her binder; it should have been noted in the minutes.
Mayor Williams requested clarification why it should be noted in the minutes that the appellant brought his own translator when the appellant hired his own translator.
Dr. Fuller requested a legal opinion.
City Attorney Derek Cole mentioned the item is regarding minutes so he will not speak to translation. He mentioned the City Council voted unanimously to have action minutes and the City Clerk followed that direction; if there is a desire to add more detail, a Councilmember can make a motion to include it in the minutes.
Dr. Fuller shared he voted for it because he was not influenced by any papers Vice Mayor Shaw had or any others; he was convinced a violation had occurred but feels the City can and should do better. It was moved by Dr. Fuller to amend the minutes to reflect that the appellant was represented by a translator who was not an official translator, that he commented that it did not appear that the appellant spoke or understood English, and that Councilmember Shaw referred to notes she had in a binder.
Vice Mayor Shaw commented that she prints out the full agenda and places it in a binder for Council meetings and when Dr. Fuller asked about the violation, she flipped through the binder to find the Notice of Violation.
Dr. Fuller clarified the question was whether a bandit line was running through the power hookup where they were or were not being charged by PG&E and that is when he saw Vice Mayor Shaw flipping through 6”-8" of papers in a binder.
Vice Mayor Shaw held the binder up. Dr. Fuller indicated that is not the same binder. Vice Mayor Shaw indicated she does not use the same binder for each meeting. Dr. Fuller mentioned she flipped through the binder when the question was presented and she said “no” and again when the decision was being made, and he believes it should be added to the minutes.
Mayor Williams commented that Dr. Fuller made a motion. She inquired if there was a second to the motion. There being none, the motion died.
It was moved by Vice Mayor Shaw and seconded by Councilmember Meadows to approve the minutes as written. AYES: Henderson, Meadows, Shaw, Williams. NOES: Fuller. (4-1) Item 4.2
Dr. Fuller expressed that he doesn’t agree with the action; he doesn’t see the value of approving an increase in salary for City Councilmembers. It was moved by Councilmember Henderson and seconded by Vice Mayor Shaw to waive the second reading and adopt the ordinance.
AYES: Henderson, Meadows, Shaw, Williams. NOES: Fuller. (4-1) Item 4.3
Dr. Fuller inquired if the Downtown Gateway Plaza and Infrastructure Improvement Project was completed for $7.9 million, and if the Downtown Parking Lot Construction Project was completed for $4.7 million, for a total of about $13 million, all of which Public Works Director/City Engineer Kevin Rohani confirmed is correct. It was moved by Dr. Fuller and seconded by Vice Mayor Shaw to accept the report. Motion was unanimous and so ordered. (5-0) Item 4.9
Vice Mayor Shaw shared that she pulled the item to highlight the project.
Public Works Director/City Engineer Kevin Rohani discussed the project background and mentioned no later than April 2024, staff expects construction on the full widening of E. Cypress Road to begin from Knightsen Avenue to Jersey Island before the canal and to be completed early 2025, and while that is being constructed, the design of the road will be worked on so that in the Spring of 2025, they can begin construction on the portion over the canal crossing that they anticipate will be completed in the Spring of 2026, and while that construction is happening, they will work on a design for the rest of E Cypress Road from Jersey Island to Bethel Island, working eastward, so that by end of 2026 or early 2027, the entire E. Cypress Road should be completed.
It was moved by Vice Mayor Shaw and seconded by Councilmember Meadows to adopt the resolution. Motion was unanimous and so ordered. (5-0)
4.1 Approve Minutes from the Regular Joint City Council/City Council Acting as the Successor Agency to the Redevelopment Agency and Special Public Financing Authority Meeting held January 23, 2024 (Libby Vreonis, City Clerk)
4.2 Waive the Second Reading and Adopt an Ordinance Amending Section 2.1.006 of the Oakley Municipal Code Increasing the Salaries of the Members of the City Council Following the November 2024 General Election (Derek Cole, City Attorney)
4.3 Fiscal Year 2023/24 Second Quarter Report on the Capital Improvement Program (Kevin Rohani, P.E., Public Works Director/City Engineer)
4.4 Award of Construction Contract to SofSURFACES for the Briarwood Park Playground Surfacing Project - Capital Improvement Program (CIP) No. 305 (Kevin Rohani, P.E., Public Works Director/City Engineer)
4.5 Appointment to the Contra Costa County Library Commission for the Remainder of the Current Term Ending June 30, 2025 (Libby Vreonis, City Clerk)
4.6 Acceptance of work associated with the Construction Contract of R & R Pacific Construction, Inc. for the construction of Fiscal Year (FY) 2022/23 Street Repair and Resurfacing Project-Capital Improvement Project (CIP) Number 279 (Kevin Rohani, P.E., Public Works Director/City Engineer)
4.7 Approval of Contract Amendment # 1 with Geosyntec Consultants, Inc. (Geosyntec Consultants) for On-Call Consultant Services Related to the Stormwater NPDES Program for the Remainder of Fiscal Year 2023/2024 (Kevin Rohani, P.E., Public Works Director/City Engineer)
4.8 Consideration of a Resolution Establishing the Rate per Equivalent Runoff Unit for Fiscal Year (FY) 2024/25 and Requesting the Contra Costa County Flood Control and Water Conservation District to Adopt an Annual Parcel Assessment for Drainage Maintenance and the National Pollutant Discharge Elimination System Program (Kevin Rohani, P.E., Public Works Director/City Engineer)
4.9 Authorize the City Manager to Execute a Consulting Services Agreement with Bellecci and Associates, Inc. to Provide Design Services for Capital Improvement Project Number 310- East Cypress Road Widening at CCWD Canal Crossing Project (Kevin Rohani, P.E., Public Works Director/City Engineer)
4.10 Annexation No. 37 (Quick Quack at Laurel Plaza) to the City of Oakley Community Facilities District No. 2015-2 (Parks, Streetlight, Landscape, and Stormwater Services) (Kevin Rohani, P.E., Public Works Director/City Engineer)
4.11 Creating Zone 189 within the Oakley Special Police Tax Area consisting of the Machado Lane project (SD 9615) located west of Machado Lane and south of East Cypress Road (APNs 033-190-003 and 033-190-004) (Kevin Rohani, P.E., Public Works Director/City Engineer)
4.12 Creating Zone 190 within the Oakley Special Police Tax Area consisting of the Sellers Ave project (SD 9614) located at 5911 Sellers Avenue (APN 033-150-013) (Kevin Rohani, P.E., Public Works Director/City Engineer)
4.13 Creating Zone 191 within the Oakley Special Police Tax Area consisting of the Villa Grove project (SD 8807) located on the south side of Carpenter Road and east of O’Hara Avenue (APN 034-110-008) (Kevin Rohani, P.E., Public Works Director/City Engineer)
4.14 City of Oakley Investment Report (2nd Quarter FY 2023/24) (Jeri Tejeda, Administrative Services Director)
4.15 City of Oakley as Successor Agency to the Oakley Redevelopment Agency Quarterly Investment Report (2nd Quarter FY 2023/24) (Jeri Tejeda, Administrative Services Director)
5) PUBLIC HEARINGS
None.
6) REGULAR CALENDAR
6.1 Adopt a Resolution Approving the City of Oakley Fiscal Year 2023/2024 Mid-Year Budget Review including the recommended amendments to the General Fund and ARPA Fund (Jeri Tejeda, Administrative Services Director) Administrative Services Director Jeri Tejeda presented the staff report.
No public comments were submitted.
Councilmember Meadows requested clarification whether $472k or more is being unallocated for software of the remaining $2.8 million and Ms. Tejeda confirmed it is $472k.
Dr. Fuller requested a budget update in May whether there is an increase, it remains same, or there is a decrease, and Ms. Tejeda confirmed a budget study session is scheduled for May 14.
It was moved by Dr. Fuller and seconded by Councilmember Meadows to adopt the resolution as presented. Motion was unanimous and so ordered. (5-0)
6.2 Approval of the Final Agreement for the Purchase of Portions of Contra Costa Assessor Parcel No. 034-090-022 from the Del Barba family for the Laurel Road Widening (Cloverbrook Avenue to O’Hara Avenue) Project -Capital Improvement Project (CIP) Number 280 (Derek Cole, City Attorney and Kevin Rohani, P.E., Public Works Director/City Engineer)
Note: Agreement will be made available on the City's website when it becomes available. https://www.ci.oakley.ca.us/agendas-minutes-videos-archive/ Mayor Williams announced that staff requested the item be continued to February 27, 2024.
6.3 Adopt a Resolution to Extend the Affordable Housing Advisory Ad-Hoc Committee (Danielle Navarro, Assistant City Manager)
City Manager Joshua McMurray presented the staff report. He invited Committee members, Vice Mayor Shaw and Councilmember Meadows, to provide comments. Vice Mayor Shaw and Councilmember Meadows both indicated they made their comments during the last Council meeting.
Dr. Fuller shared that he has voted against this several times, he believes they are getting played, the people in The Oaks are marginalized, they are not receiving services they deserve, they are playing one building against the other creating differential, the reports are not good; the City is engaged in the original building and financing of it and has never received any form of stipend but at that point they should take ownership and set standards by ordinance. He mentioned the residents are suffering. He mentioned he will vote ‘no’ again and as more affordable housing units will be coming in, they need to set standards for maintenance. He indicated that they are 2 months in and still no solution.
Councilmember Henderson suggested extending the Committee out two months to allow for the next meeting and follow up.
Vice Mayor Shaw agreed at least two meetings are needed as there were many questions from the last meeting unanswered and if there are any further expectations, a second meeting would be helpful to allow them to set forth expectations and follow up; she wants to step back but not too early.
Mayor Williams inquired about what power the Council has if they do or do not continue the Committee.
Mr. McMurray mentioned they do not have a lot of power, a lot of time and effort is being given to this topic specifically because of this one development, and the Ad-Hoc Committee could require monthly updates from both management and the property owners. He shared that management is only able to do what is given by ownership and he believes they are trying to listen and want to be responsive. He mentioned he has worked with the project for almost 16 years and these issues continually pop up. He added that for the City to keep some handle on what is going on, an option may be to hold them accountable until there is a proven track record.
Councilmember Meadows mentioned he is okay with extending two months.
Mr. McMurray suggested if a motion is made supporting that, that the motion include extending the Ad-Hoc Committee through March 26, 2024, to allow the Ad-Hoc Committee to meet in February and again in early March, and staff can bring the item back to Council the second meeting of March.
Dr. Fuller commented that he is not looking for power but is looking for accountability. He inquired if the City has part ownership in some form, if the Council can pass an ordinance or standards to then impose fines if not followed so if ownership doesn't go along with it, money is taken out of their pocket and they see a correction needs to be made and they make it.
Mr. McMurray mentioned the City has policies, standards, and procedures in place; they address it from law enforcement and the building code/code enforcement. He mentioned the owner is a partner in the community and there is accountability, there are 5-6 topics that reoccur in discussion, and if they can develop a meaningful report to address these topics, it keeps it at the forefront.
Mayor Williams inquired if the extension of the Ad-Hoc Committee does not stay the red-tag process and Police and Code Enforcement response which Mr. McMurray confirmed is correct and also when it is no longer a standing committee.
Mayor Williams inquired if the Ad-Hoc Committee or City can compel the owners to come speak and report which Mr. McMurray indicated could be discussed by the Ad-Hoc Committee.
Councilmember Meadows inquired if they could make the request now that the owners come to the next Ad-Hoc Committee meeting.
Dr. Fuller inquired what happens if they don’t attend and Councilmember Meadows indicated that shows what they are.
It was moved by Councilmember Meadows and seconded by Councilmember Henderson to extend the Ad-Hoc Committee to March 26, 2024, and direct staff to invite the owners to attend the next Ad-Hoc Committee meeting to be held February 22, 2024. Motion was unanimous and so ordered. (5-0)
7) REPORTS
7.1 CITY MANAGER
(a) City Manager
(b) Business License Update
(c) City Council Follow up List
(d) Library Update
(e) Report Regarding Council Members-Ability to Comment Upon or Express Opinions About Pending or Future Agenda Items
(f) Report regarding the Enforcement of Adopted Councilmember Standards and Censures of Councilmembers
(a) City Manager Joshua McMurray mentioned he will discuss items (a)-(d) and City Attorney Derek Cole will discuss items (e) and (f).
(b) Mr. McMurray indicated the list for new business licenses for January has been provided. (c) Mr. McMurray reviewed each item on the City Council follow-up list with the Council (parenthesis notate action) to confirm if any items should be reprioritized. Vice Mayor Shaw suggested they decide on a memo or for staff to report back at a Council meeting and prioritize dates to which Mr. McMurray agreed would be helpful for staff. • Creekside Park expansion (schedule work session to expand programming/facilities)
• Assess facility needs for growing staff (in progress) • Explore options for future fireworks response/location (Police to provide update to Council on 2/27/24)
• Social media policy for Council (in progress)
• Early public warning system for railroad (in progress with consultant) • AB 1657 quarterly updates through City Manager report or Council workshop (pending)
• Veterans-speaker to address current hardships/concerns (staff will bring someone forward)
• Ascertain safety of rail platform in vicinity of Downtown and Vintage Parkway (memo appropriate, BNSF designs and constructs the train platform) • Presentation regarding funding options for small businesses, including how much has already been provided to non-profits/business (in progress, will bring to Council as a work session)
• Townsend/City Attorney report on AB 1033 and AB 1657 (supra) (staff will provide report by memo)
(d) Mr. McMurray mentioned they have been able to allocate more ARPA funding toward a new library. He shared conceptual renderings and mentioned a new library will cost approximately $1k per square foot so they must find a substantial amount of money. He shared that they recently had a meeting with County Supervisor Burgis along with the County Librarian, Chair of the Library Foundation of Contra Costa, and former Mayor/Councilmember Kevin Romick, and they had a good discussion on how to approach this. He announced there will be a community meeting, a key stakeholder (library, seniors, veterans) meeting, in March. He shared his opinion that they need to set a timeline which he will present on February 27 along with selection of two Councilmembers to sit on the library committee, so they are not chasing the dollar as it will only cost more in time; it is time to move the library from Freedom High School to the Civic Center campus.
(e) Mr. Cole mentioned when Councilmembers are dealing with a legislative matter, comments prior to voting at a Council meeting are unlimited but when Councilmembers act in a judicial capacity it is different. He provided examples, i.e., McDonald’s and Quick Quack items that were quasi-judicial—it would not be right to comment prior to vote, whereas general comments about not having fast food or car washes or convenience stores would deal with policy, a legislative matter. He also provided the example of a fireworks appeal; if a Councilmember commented before the hearing that he/she/they would deny the appeal, it would be prejudging; however, in contrast, if the Councilmember says the Council really needs to do something to enforce the ordinance on July 4th, it is appropriate as a policy matter. He further explained that with bids and contracts where the lowest responsible bidder is selected, if a Councilmember says he/she/they will never approve a contract with a specific contractor, it might be prejudicial in a judicial action; whereas in contrast, if he/she/they says the Council needs to give more attention to local businesses or contracts focusing on local labor, that would be a policy matter and appropriate.
Vice Mayor Shaw commented that a Councilmember can state a type of business opposed and inquired if a specific business is coming on the agenda and the Councilmember says, “I don’t want this type of business”, if that is acceptable.
Mr. Cole explained that the Councilmember could be required to recuse his/her/them self for bias, as addressed in the Sacramento case.
Vice Mayor Shaw inquired if one Councilmember has bias and it is challenged, it could change the decision of the entire Council which Mr. Cole confirmed is correct.
Councilmember Williams inquired if a Councilmember sees that happen, if they would say to that Councilmember that he/she/they should recuse them self, so it doesn’t impact the decision of the Council.
Mr. Cole mentioned it should be handled delicately and he would handle that situation.
Dr. Fuller mentioned many people ask why he voted for tax and consolidation of ECCFPD and CCCFPD because many people thought he would vote against it, but it was an eloquent delivery of the situation that swayed him to vote in favor of it. He mentioned people need to sit up here with an open mind and if strongly opposed, he is honest, and they are welcome to try and convince him otherwise. He agreed with the approach to quasi-judicial matter, to not arrive at the dais having already decided a matter and mentioned he doesn’t even drive by code enforcement matters that are upcoming on an agenda because he does not want to prejudice his decision-making on the dais.
Mayor Williams mentioned quasi-judicial also applies to CUPs, referring to the Newport Beach case, where a Councilmember posted on social media non-approval of a CUP in advance of the decision, and the Council was then forced to approve it because the developer sued.
Mr. Cole mentioned there is a nuance with land use in that if a developer is asking for a General Plan amendment or a zoning amendment, it is more legislative; however, a design review or site plan review is quasi-judicial. He mentioned as a rule of thumb, when dealing with a private applicant (developer, appellant, company bidding on project), don’t say anything in advance of a decision about it as they are probably dealing with a quasi-judicial matter.
Dr. Fuller inquired if someone wants to develop a plot of land in a location that doesn’t look good, if a Councilmember cannot say they don’t want that type of development in that area.
Mr. Cole explained they are starting to get into nuance if they say they oppose development in certain areas of the city. He mentioned the cases provide examples where a Councilmember or Planning Commissioner were very adamant that under no circumstances, they will ever vote for it. He added that if a Councilmember were irrevocably making statements that they have concern about a site and state reasons, they might be okay. He mentioned why take the risk if it involves a quasi-judicial matter; hear it out and make the decision, then once the decision is made, then you can go on your social media an explain to your community why you made the decision.
Dr. Fuller inquired if it is their choice and Mr. Cole confirmed that it is.
Vice Mayor Shaw commented that it is their choice to comment on it before or after, but if specific words for a CUP, “no, absolutely not” or “ensure that it is banned, that they will not get this permit”, are used before the vote comes before the Council, while they can say they had an open mind coming to the dais and can have their mind changed if the position is compelling enough, she is concerned that would not be enough to challenge an appeal if the words are in writing, potentially opening up legal issues.
Mr. Cole explained that the situation that is most fraught for challenge is development because there is a lot of money involved and developers often have resources to challenge public agencies. He mentioned Oakley has very good developers and staff has good relationships with them and their legal counsel so this is not an insinuation; they are sophisticated parties with sophisticated representatives and counsel so when someone is making a paper record on social media that they can easily find, even if the posting is pulled, it can be a problem.
Vice Mayor Shaw inquired if prior to vote, if a Councilmember sees a comment being made, should they contact Mr. Cole to let him know and to handle it.
Mr. Cole recommended if there is concern that statements have been made that involve bias that they individually reach out to him, or Mr. McMurray, and they will address it. (f) Mr. Cole reported that the voters can invoke process for Councilmembers that represent them through voting or recall. He explained that the only other option than Councilmembers’ voluntary compliance is a censure proceeding which he provided in his report. He shared a 2022 U.S. Supreme Court decision that addressed whether there were First Amendment issues and his outline is based on that case. He mentioned censure is what the majority of the Council says it is, there is no standard when it is allowed and when not, it is symbolic when a Council wants to use it, and he and staff are not responsible to invoke or express what they think; it is the Council’s speech, not that of staff. He mentioned if they want a censure policy, he can draft it with their direction.
Dr. Fuller inquired if it is so laissez-faire, why people get so upset with term ‘censure’.
Mr. Cole explained that he has never been censured or sat on a Council like this, but he can imagine there are emotions and politics involved with censure and he can imagine if someone is on the receiving end, it can be upsetting.
Dr. Fuller inquired if the person being accused can have his/her/their own attorney rebut for them, which Mr. Cole confirmed is correct.
Dr. Fuller inquired if outside witnesses and written testimony are allowed.
Mr. Cole clarified that there would not be court-like hearing procedures; they could have people speak during public comment, but there would be no cross examination or sworn testimony; it would be somewhat like our public hearing items for land use matters.
Dr. Fuller inquired if someone contests you didn’t follow proper procedure and you go to the State and they provide documentation that you followed proper procedure if it can be submitted as a rebuttal.
Mr. Cole explained that a censure is a proceeding in front of the Council. He referred to facts of the U.S. Supreme Court case he mentioned earlier where the person subject to censure believed he had a legally valid claim to rebut the censure, and it went to court; there is not another agency that would review a censure such as a state agency.
Dr. Fuller inquired if Councilmember A is being censured and his/her/they attorney gets depositions, letters and arrives at a rebuttal, if the attorney can provide it to the Council.
Mr. Cole explained that the Councilmember would not have a right to compel depositions, but the attorney could bring in written evidence, statements, petitions, and documentary evidence, and the Councilmember could have people to speak on his/her/they behalf. He mentioned that the censure proceeding would be like any other meeting here, the best example being land use hearings.
Dr. Fuller inquired if the Council adopts a censure policy if they could require Councilmembers accusations to be submitted under penalty of perjury.
Mr. Cole explained if that is pleasure of the majority of Council to adopt it that way, they could adopt a trial-like procedure. He mentioned there are currently no procedures for Council for swearing-in witnesses. He mentioned sometimes in code enforcement procedures he has seen that done.
Dr. Fuller inquired if they could establish that as a censure policy.
Mr. Cole mentioned in his opinion it would be overkill and unusual to do that, but if the majority of the Council wants to adopt it, they could.
Dr. Fuller inquired if policy is adopted to establish conduct that the Council finds unbecoming, it could then be applied through censure.
Mr. Cole explained that the Council would need to adopt a resolution to reflect the basis for the censure that would have to be published in advance. He mentioned if they were to have free form discussion where other things could be added in, it might be problematic. He mentioned if it is a new matter not in the resolution, unless it is reasonably related to the resolution, it may be outside the scope of the resolution. He mentioned the resolution frames the basis for the censure.
Vice Mayor Shaw mentioned there are governance guidelines that the Council agreed to and said they would abide by and if someone doesn’t adhere to it by making accusations of her of money laundering for example, or accusing other Councilmembers and the former Mayor of facilitating it, she can bring it up here and combat it and then it goes online, but governance guidelines say to do things in an open forum and she cannot make comments online because it could be a Brown Act violation. She inquired at some point she is very frustrated and something, whether it is censure, has to be done, so she is not wasting others time to defend herself at the dais; if it is something that she has to do, she will, but she shouldn’t have to; the Council should have some form of standards. She mentioned she feels like the entire conversation about witnesses and testimony doesn’t scare her; she has her reasons why she wants to hold someone accountable and if she cannot or if censure is the only way, she will have to decide whether she wants to make a motion to see if anyone else wants to move forward with it. She mentioned that their governance training provides that they should respect the decision moving forward regardless of their position and she doesn’t know if that will always happen if the person voting against it is representing the city, for example, as a liaison or a voting member of a committee. She inquired if there is a way to address that without censure. She also inquired if a committee is established with two Councilmembers selected if the committee could determine whether a censure policy is needed before establishing that policy.
Mr. Cole mentioned the Council can read the decision of U.S. Supreme Court case he mentioned earlier through a Google search that provide censure as recourse. He explained that if the Council has appointed a Councilmember to represent the City on a committee or other agency that there is belief that the appointed Councilmember has misrepresented what the majority of the Council would want, the Council has the right to unappoint the Councilmember and can request it as a future agenda item. He mentioned it doesn’t require censure but reasons would need to be provided.
Vice Mayor Shaw mentioned if a recall is requested, it can happen without censure.
Mr. Cole clarified that the Council could unappoint someone if there is a reason, such as there was misrepresentation or the appointee didn’t carry out the Council’s prerogative.
Vice Mayor Shaw mentioned Mr. Cole mentioned a committee would need to be made in his staff report. She inquired if a motion would need to be made to say she wants a committee to look into it or would the motion be for a committee to look into whether the actions would need… Mr. Cole mentioned a Council censure committee could do a report to Council to look into it and report back before deciding whether to proceed.
Dr. Fuller summarized that the best course of action if someone is unhappy with another Councilmember is to contact Mr. Cole.
Mr. Cole explained he would not be involved, staff serve at the pleasure of the Council, not individual Councilmembers. He mentioned staff can meet with Councilmembers and facilitate their duties, but they act as a Council so coming to him with complaints and concerns, unless there is a legal question to address, he can’t make the Council get along. He suggested if they have a problem with someone to talk to them directly and come to him if they think there is a legal issue.
Dr. Fuller mentioned he heard Mr. Cole say to come to him or Mr. McMurray if someone is upset, and inquired if now he is saying for them to have it out on the dais.
Mr. Cole suggested a Councilmember could sit down with that person and discuss, but unless there is a legal dimension to the issue where a line has been crossed, there is no reason to come to him.
Dr. Fuller inquired what is a legal issue in that regard.
Mr. Cole explained that if they reasonably believe there is a legal issue to come to him, but he can’t broker disputes.
Dr. Fuller commented if he believes there is a legal issue and it is a private matter and he gets his own attorney, that would be considered good judgment.
Mr. Cole explained that they all have a right to have their own attorney, but he represents the City so if there is an issue involving the City and they want to address the issue, it can be raised with him.
Vice Mayor Shaw commented that she believes the two items are getting confused; Mr. Cole said if Councilmembers believe someone has crossed the line regarding pre-judgment on an item, they can come to him, but not for something like this.
Mr. Cole confirmed that is correct. He explained that if Councilmembers have a reasonable concern there might be a bias issue, they can raise that to him or Mr. McMurray, but if they are not getting along, disagreeing or there are political differences, he is not a person that can help because staff serves the Council as a body, not as individuals.
Dr. Fuller asked Mr. Cole if there is a bias, in his mind, what is a good one.
Mr. Cole requested clarification on “good bias”.
Dr. Fuller explained that he just said if there is a bias, to contact him.
Mayor Williams explained he is referring to bias for CUPs and upcoming land use; these are two different issues.
Dr. Fuller inquired about one Councilmember being upset with another.
Mayor Williams commented that she doesn’t believe it has anything to do with being them upset.
Mr. Cole explained the issue he wants to deal with is bias; he doesn’t care if they are upset about it.
Dr. Fuller commented that he understands that.
Vice Mayor Shaw explained that the issue for her is bringing it to Mr. Cole because they need to protect the City, even if it is the way they want to vote and there is bias out there, they should let him know so they protect the City from future lawsuits, whether they are upset or happy about it so it doesn’t hurt the City in the long run.
Mr. Cole agreed.
7.2 OAKLEY CITY COUNCIL/OAKLEY CITY COUNCIL ACTING AS THE SUCCESSOR
AGENCY TO THE OAKLEY REDEVELOPMENT AGENCY
(a) Reports from Council Liaisons to Regional Committees, Commissions and Boards AND Oakley City Council/Oakley City Council Acting as the Successor Agency to the Oakley Redevelopment Agency
Dr. Fuller reported he is happy Councilmember Meadows is Oakley’s MCE representative. He mentioned he is the alternate and received something in the mail that Marin County is taking in a retirement home and storing solar energy into a battery which he thinks would be very cost effective. He mentioned he understand the way it happens now is that power is sent back to PG&E or MCE, whoever is buying it, and they purchase it back; however, if it is stored in a battery, it is available for use or download when not enough energy can be generated.
Councilmember Meadows reported he will be attending the MCE meeting next week, last week he attended the TRANSPLAN meeting, since the last Council meeting he attended the CCTA Planning Committee meeting, and he attended the Oakley Chamber event hosted by Rotary last week.
Vice Mayor Shaw reported she attended the Tri-Delta Transit meeting, had a meeting with a Diablo Water District consultant regarding recycled water, and she also attended the Oakley Chamber meeting.
Mayor Williams reported she attended the Tri-Delta Transit meeting and shared details of that meeting, she had a meeting with a Diablo Water District consultant regarding recycled water, and she attended a Chamber event.
(b) Requests for Future Agendas
Dr. Fuller requested a censure policy. The request was not supported. 8) WORK SESSIONS
9) CLOSED SESSION
9.1 PUBLIC EMPLOYEE PERFORMANCE EVALUATION
Pursuant to Government Code Section 54954.5(e)
Title: City Manager
Mayor Williams announced the item. She mentioned the meeting would be adjourned after Closed Session and the next regular meeting will be held Tuesday, February 27, 2024, in the same location.
10) ADJOURN
There being no further business, the meeting was adjourned at 9:55 p.m.
Respectively Submitted,
Libby Vreonis
City Clerk