62 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA • Assemble documents and materials. Documents and materials provided to newly elected officials usually include the charter, an organization chart, a list of advisory boards and commissions, and other documents that explain organizational structure as well as recent agenda packets, the budget document, council-adopted goals, and progress reports. If you plan to provide an orientation notebook, see the “Orientation Notebook: What to Include” sidebar.
In some communities, an issues booklet acquaints elected officials with basic facts about critical issues and the status of key programs. An issues booklet is particularly useful when there are a number of newly elected council members; when complex and divisive issues dominate the debate; or when controversial issues must be addressed during an elected official’s first weeks on the job.
• Provide council candidate orientations. Council candidate orientations not only provide a head start for those individuals eventually elected, but also help inform all those running for election. To avoid the appearance of favoritism or partisanship in an orientation program for candidates, you should complete an issues booklet well before the candidate filing date that will be made available to all the candidates.
Additionally, some exposure to the staff will likely decrease the likelihood of staff being made an “easy target” during the election process because some sense of personal relationship will have already been established. While there are no guarantees, many find these types of candidate orientation programs increase the odds of a more fact-based election process and provide the opportunity to build credibility between the staff and candidates, regardless of who is eventually elected.
• Determine strategies for success. Decide on the structure and components of your orientation program, taking into consideration the needs of the participants, issues facing the community, style of the manager, and resources. Additionally, they will gain confidence in the capacity of the organization and its staff to perform their roles at a high level. As you plan, remember that newly elected council members will be able to take on new responsibilities more quickly if they have ample opportunities to ask questions, express concerns, listen to experts, and witness government in action.
• Plan the agenda and logistics. Participants will learn more if they are actively involved and challenged to apply what they are learning.
Encourage discussion, feedback, and questions. Provide checklists, worksheets, and handouts. Avoid the appearance of lecturing.
Schedule events as far in advance as possible and avoid holidays and crunch times (such as when the budget is due). Check with participants and presenters to identify dates and times.
Before the orientation program takes place, provide all presenters and participants a detailed agenda for each program/event. Include your . . . complete an
issues booklet
well before
the candidate
filing date. . . .
Agenda Item #5.1.
Copyright ®2016 ICMA New Council Member Orientation 63
purpose and goals on the written agenda, as well as the times and locations of all activities.
• Rehearse program activities. After you have drafted a schedule of activities, review all handouts or digital materials to ensure that they are error free and easy to follow. Review each day’s events to make sure that participants will be able to follow the flow of information, that there is variety among the presentation styles, and that all activities reinforce your goals.
You may want to ask presenters for outlines of their presentations to ensure that their outlines are consistent with your goals and with each other. Well before the orientation program, schedule a meeting for all employees who will be involved. Use the meeting room scheduled for their presentations so that you can familiarize them with the room setup and equipment. Make sure you have arranged for all the equipment the presenters will need.
If you are conducting a tour, schedule a dry run using the vehicles and equipment that will be used in the actual tour. Note the time for travel and for presentations, and adjust the schedule accordingly.
Keep in mind that a well-organized, well-planned, and well-implemented program will create a positive impression for your newly elected officials, while a poorly planned and executed effort could have the opposite effect. • Evaluate your effectiveness. Evaluation strategies should attempt to define the strengths and weaknesses of the program for future planning. Ask participants what they found most useful and what changes they would suggest. Include program planners, employees, and presenters in your evaluation process.
Effective Orientation Practices
The first few weeks and months of a new council member’s service are a critical period for the council member and the local government organization. How effective the transition is can have significant short- and longterm implications for the organization and the community. A thoughtful and appropriate orientation program that is consistent with your resources and organizational culture can be an important tool in helping to make this transition successful.
The authors’ review of several programs and their own experience suggest that the following practices makes for an effective new council member orientation program:
• Do something! Even if you cannot muster a comprehensive orientation, do as much as you can. Doing nothing to prepare new council members should not be an option.
• Treat all council members alike. Make the same opportunities available to all new council members with no exceptions. Also be sensitive to the possibility of current council members feeling “left out” and counter that possibility by providing them access to the same information created for all of the new members.
Even if you
cannot muster a
comprehensive
orientation,
do as much
as you can.
Agenda Item #5.1.
64 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA • Be flexible on timing and format. Although one council member should not be favored over others, be willing to be flexible in regard to adjusting the format, timing, or style of the orientation to meet the individual needs of the council members.
• Include the entire executive team. It is important for council members to get to know the staff they will interact with on a regular basis early in their tenure.
• Use a consistent format for all departments. Do not allow one department with more resources to put on a bigger show than those with fewer resources.
• Keep materials a manageable size. Providing a comprehensive resource document is helpful, but if it is too voluminous, it may not be read. Try to find a good balance between completeness and too much detail. Try to summarize complex topics and reference where additional information can be found, most likely through your local government’s website. • Maintain neutrality on the topic of changing government standard operating procedures. Provide useful information, but do not overly advocate for the status quo. It is not likely to be taken well if the presentation comes across as “this is the way we do it (and we do not plan to change).”
Final Word
The authors surveyed more than 30 cities while preparing this material.
When asked about the reaction of newly elected officials to their orientation program at the completion of the orientation, nearly all answered, “Very appreciative and amazed at the depth and breadth of the services provided by the city.” Often we are so close to the organization that we assume others know its complexity; the reality is that they do not. A newly elected council member has a steep learning curve, and as the local government manager, your job is to use a strong orientation program to start the learning process and set the tone and quality of these new relationships.
Additional Resources
“10 Habits of Highly Effective Councils,” by Carl H. Neu Jr., PM (November 1997).
“Answering the Cheshire Cat: The First 45 Days of a New Council,”by S. Bruce Peever, PM (August 2005).
“Consensus Building: Keys to Success,” IQ Report, Volume 36, Number 10 (2004). Discusses various levels of consensus, misunderstandings about what consensus means, and the fact that consensus is based on trust and shared vision. Details general techniques for building consensus and provides specific guidance when issues are professional or become personal.
Concludes with a short discussion of consensus building as a necessary Agenda Item #5.1.
Copyright ®2016 ICMA New Council Member Orientation 65
skill for the local government manager of the future. By Herbert A. Marlowe Jr. and Larry Arrington. Item no. E-43219.
“Effective Council Meetings,” IQ Report, Volume 37, Number 1 (2005).
Focuses on preserving (or bringing back) a level of courtesy and decorum in council meetings; addresses the need for rules of procedure that establish clear standards of behavior; offers a simplified version of Robert’s Rules of Order; and introduces a values framework to help elected officials identify what lies at the root of public problems and make wise decisions in response. By Robert K. Bush, William L. Steude, Dave Rosenberg, and Phillip Boyle. Item no. E-43334.
Leading Your Community: A Guide for Local Elected Leaders (2008).
Provides a quick and easy-to-understand introduction to the roles, responsibilities, and relationships of local elected officials. This 90-page guide provides a framework to help the newly elected official strengthen his/her effectiveness as an individual leader and as a member of the local leadership team. By Christine Becker. Item no. E-43546. “Manager as Coach: Increasing the Effectiveness of Elected Officials,” IQ Report, Volume 35, Number 10 (2003). Highlights development activities and communication strategies for local government managers who want to help elected officials perform effectively, both individually and collectively.
Focuses on the values of successful teamwork, representative democracy, professional management, sound political leadership, and collaboration.
Includes coaching action plan. By Carl H. Neu Jr. Item no. E-43067. “The Paperless Council,” IQ Report, Volume 34, Number 10 (2002).
Describes how information technology can be used to prepare material for council meetings and then make it available to council members and the public. Discusses the importance of local government size; the sophistication of the IT infrastructure and staffing; interest expressed by council members, the manager, the staff, and the public; the kinds and amounts of investment needed; ways of promoting the paperless council; evaluation; and issues of security and equity. By Sheldon S. Cohen. Item no. E-43054. “The Value of Going Back to the Basics,” by Gus Morrison and Jan Perkins, Western City (June 2005).
KEY NOTES
• An orientation program lets you help elected officials become acquainted quickly with a wide variety of topics to which they have had little or no exposure and yet about which they may need to make significant decisions.
• The sooner your orientation program is able to give new members an understanding of group decision-making dynamics, the sooner they Agenda Item #5.1.
66 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA learn how to function best in this environment, and the more likely it is that they will be effective in their new role.
• To whatever degree organizational resources allow, the more comprehensive the orientation, the better.
• Do not allow one department with more resources to put on a bigger orientation presentation than those with fewer resources. • If possible, try to complete at least one phase of the orientation (e.g., the meeting with the local government manager and department staff) before the new council members assume office.
• At the orientation provide a list of department heads and their contact information, and describe how—and in what circumstances—it is appropriate for council members to contact staff.
• The orientation can help newly elected officials understand that in many states, their electronic communications can now be considered a public record, which means that with every e-mail and social media engagement, elected officials need to appreciate the potential impact on the organization and its colleagues.
• It is important to brief newly elected members as soon as possible regarding their role in the event of a community emergency, since an emergency incident generally occurs with little or no warning. • Remember that you can build on existing orientation programs and materials offered by state associations, other local governments, and national associations.
• In some communities, an issues booklet acquaints elected officials with basic facts about critical issues and the status of key programs. • Newly elected council members will be able to take on new responsibilities more quickly if they have ample opportunities to ask questions, express concerns, listen to experts, and witness government in action.
• After you conduct an orientation, ask participants what they found most useful and what changes they would suggest.
Agenda Item #5.1.
Copyright ®2016 ICMA Council and Board Meetings 67
Chapter 5
COUNCIL AND
BOARD MEETINGS
Where local government democracy
takes center stage
Agenda Item #5.1.
O
ne of the most visible manifestations of the council-manager relationship is the actual and perceived effectiveness of council meetings (also called governing board or board meetings). These meetings are the key points in the local government process where the community’s elected leaders make decisions on the community’s behalf. Successful governing board meetings are a top priority for elected officials.
The Right Ingredients
When these meetings are successful, the elected representatives provide clear policy direction for the staff to implement. However, to a large extent, “the [meeting] process is the product.” That is, what preparation went into the agenda, how the council reaches its decisions, how council members interact with each other and staff, and how public participation is encouraged and facilitated are critical ingredients to the actual and perceived success of the meeting.
Successful meetings end with the council, staff, and public believing that the decision-making process was thoughtful and deliberative, and with all participants in the process feeling that their role and perspective were considered, respected, and appreciated. While some will judge the meeting simply from the perspective of their agreement with the decisions reached, most will also place high value on how those decisions were reached.
From a council’s perspective, a successful meeting requires that council members be fully informed regarding the topics on which they will be making decisions, including complete and unbiased information and alternatives. As manager you need to provide this information on a timely basis and in form(s) reasonable for council members to digest.
It’s tempting to judge a meeting’s success based on the decisions made, but ultimately the manager and staff should judge the success of the meeting based on what role they played in placing the council in the best possible position to make an informed choice.
Citizens, the press, and other interested parties should take from the meeting a sense that the process was open, that all views were heard and respected, and that the council made a thoughtful decision, carefully considering all appropriate factors. A council meeting is in many ways like a performance. This is not to suggest that the meeting is intended to be entertaining (though meetings can be!) or artificial, but to recognize that the meeting is the council’s public demonstration of its community leadership role. It is quite possibly the most prominent venue for judging both individual council member performance and the performance of the council as a whole. How successful that performance is, is critical to the council and therefore also to the relationship between the council and the manager.
To establish and maintain a good working relationship with the council, the manager needs to be perceived as playing his or her part effectively in ensuring successful council meetings.
68 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA It’s tempting
to judge a
meeting’s
success based
on the decisions
made, but
ultimately the
manager and
staff should
judge the
success of the
meeting based
on what role
they played in
placing the
council in the
best possible
position to
make an
informed
choice.
Agenda Item #5.1.
Meeting Protocols
Clear meeting protocols are a fundamental component for effective council meetings. These protocols cover a wide variety of topics ranging from planning and preparing for council meetings to participants’ conduct and operating procedures during meetings, to post-meeting follow-up with the council and staff.
Robert’s Rules of Order (or a similar set of protocols) can spell out the process for conducting business and, in essence, serve as procedural guidelines regarding meeting conduct. While meetings can vary in formality from community to community, rules and protocols serve as the foundation for the conduct of meetings. Of critical importance is getting council or board buy-in on the need and value of such rules and making sure that all members are familiar with the protocols.
In addition to general protocols, most cities and counties also have a series of local policies regarding the conduct of meetings. Here are a few examples:
• Consent calendars. Consent calendars let you group a number of routine action items in one vote. It is generally assumed that these items do not require a staff presentation and will not require council discussion. Consent calendars can be one of the most efficient techniques in designing an efficient meeting.
• Waiving the reading of ordinances and resolutions. There are often opportunities to forgo the formal reading of ordinances and resolutions prior to a vote. A policy allowing such waivers can save considerable time. • Speaker time limits. Few things are more appreciated, while often difficult to attain, than reasonable brevity of remarks at council meetings. While such brevity is appreciated regardless of who is speaking, formal limits are generally only applicable to members of the public. Although such limits (often 3 or 5 minutes) can be controversial, they can be very effective in moving meetings along while allowing the public to provide input. Guidelines are sometimes also developed to encourage reasonable brevity by staff and elected officials. • Maximum meeting duration. Many organizations find it useful to set a time by which meetings must end (particularly for night meetings). The concept is based on the belief that the likelihood for effective decisionmaking decreases toward the end of a long meeting, particularly if the hour is late. Additionally it is viewed as unreasonable to expect the public to be able to reasonably participate in a meeting that goes long into the night. Often such maximums can be waived by a majority of the board based on specific circumstances.
Longer Term Agenda Planning
An obvious, but sometimes not fully appreciated, component of successful council meetings is carefully planning, sometimes months in advance, the Copyright ®2016 ICMA Council and Board Meetings 69
Agenda Item #5.1.
70 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA topics to appear on particular agendas. It is easy to appreciate that the nature and content of agenda items significantly affect how challenging a particular issue may be. Perhaps not fully recognized is the impact of when an item appears on a meeting agenda and what other items are also on the agenda. The number and type of issues scheduled in a particular time frame affect how successfully the staff and governing board deal with those issues.
It follows, then, that planning for meetings, sometimes months in advance, and scheduling agenda items strategically can have a significant impact on the success of your meetings.
The Relationship Between Goals, Work Plans, and Meeting Agendas
Ideally agenda planning and your organization’s goals and work plans will be carefully linked, recognizing that neither should completely drive the other. That is, you wouldn’t want to schedule items for meeting agendas without making sure the timing is reasonable based on existing goals and work plans, making sure there is sufficient time to properly prepare the item for the governing board’s review. Prematurely scheduled items can result in rushed or incomplete staff work.
Still, items should not be scheduled for consideration solely based on the work plan for that particular item. Equally important is consideration of how the confluence of the various individual topics can impact the success of the overall meeting.
Project schedules and agenda planning need to be carefully linked to ensure that before items are scheduled for review, sufficient time has been allocated for their completion and that the impact of agenda items on each other has been carefully considered.
Spacing Complex or Controversial Issues
Many consider an ideal meeting as having a good balance of both routine and significant (more complex and/or controversial) issues. A lot of “everyday” work needs to be done at meetings, and those items need to be as successfully managed as any others. The real challenges, however, come up when one or more difficult/complex/controversial issues need to be addressed in the same agenda. These, by their very nature, require more care and planning. Having too many of these issues either on the same agenda or in close proximity timewise can have a significant impact on their eventual outcome:
• Gauging stress levels. Consequences for not properly spacing/ scheduling agenda items include the extremes of council members believing that there was not enough substance to the meeting to merit their time, to members being frustrated with the length or amount of controversy related to a particular meeting. While managers often gauge the tolerance of elected officials for meeting length, managers Agenda Item #5.1.
Copyright ®2016 ICMA Council and Board Meetings 71
should also be aware of the council’s level of tolerance for the degree of complexity or controversy in a meeting.
It is common, and quite natural, for elected officials to feel stressed and uncomfortable when dealing with difficult, controversial, and/or complex issues. Even though these are normal aspects of elected office, it doesn’t mean these circumstances are not difficult. When elected officials are confronted with too much controversy in a particular meeting, it can impact their decision making, or even their willingness to make a decision.
• Creating issue overload. When scheduling an issue that is anticipated to be challenging and/or controversial, it’s critical to take into consideration the other items on the agenda. You should consider not only the amount of time required by an item but also the amount of controversy associated with it. Often a more positive resolution to an issue can be attained when the council is not already stressed from its deliberations on a previous issue (or by its anticipation of an upcoming issue later on the agenda).
Issue overload can also negatively impact staff by making the preparation for an upcoming meeting difficult given all the work needed to prepare multiple challenging items for council review.
Councils and staff aren’t the only ones affected by the number and types of issues considered on the same agenda or in close time proximity. This can also impact the public’s perception of the organization and its elected officials as well as the public’s response to issues.
It can result in the public associating what in other circumstances would be unrelated topics.
• Balancing urgency with timing. Also critical is the staff’s and board’s ability to prioritize and be disciplined. Often there’s pressure from a variety of sources to get items on the council agenda immediately. This produces a natural tension between a sense of urgency and the need to have adequate time to prepare the item for consideration, as well as avoid overloading a particular agenda or a specific period of time. Too many items considered on the same agenda or in close time proximity can result not only in less than ideal preparation but also longer than ideal meetings and issue overload—particularly if many of the issues are of a complex or controversial nature.
Agenda Preparation and Planning
The likelihood of a meeting being successful is often determined more by what preparation goes into planning the meeting than by what the staff does at the meeting itself. Many managers believe that their real work occurs before (and after) the meeting versus at the meeting itself. How the planning is undertaken for the meeting, including who plays what role in the preparation for the meeting, is critical.
When elected
officials are
confronted
with too much
controversy
in a particular
meeting,
it can impact
their decision
making, or
even their
willingness to
make a decision.
Agenda Item #5.1.
72 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA Who Sets the Agenda
The first question each organization needs to address is, who sets the agenda—that is, who determines what will appear on the agenda and in what order? The answer to this question varies significantly from one organization to another. Sometimes it is the manager who exclusively sets the agenda, and in other cases, the mayor or chair determines the agenda.
Often the two work together to formulate the agenda.
Additionally, agenda content can certainly be influenced by the governing board itself and, at times, subcommittees of the governing board.
Various approaches can be valid, but the key is to have clarity about who does what. And certainly from the manager’s perspective, it is critical that she or he have the ability to influence the agenda due to the key role the organization’s staff plays in preparing for and participating in the meeting.
Often the best approach is the manager and mayor or chair working collaboratively in preparing the agenda. As manager you are able to bring to the process knowledge of the pending issues as well as staff workload and related issues. The mayor or chair is able to bring the perspective of an elected official. And of significance, the mayor or chair will be the individual responsible for actually managing and conducting the meeting.
Who Places Items on the Agenda
Regardless of the approach, having clear policy and protocols regarding who plays what role is a must. Without clarity, the agenda preparation process is likely to be a regular source of contention. Everyone needs to understand who has the authority to initiate the placing of a new item or topic on the agenda. Can the manager, the mayor, an individual council member, a certain number of council members, or some combination of the above? Since even the appearance of certain topics on a council agenda can have repercussions, the authority to do so must be clear to everyone and recognized.
Factoring in Agenda Preparation Time
Another important aspect of placing items on council agendas is the allocation of sufficient staff time to prepare the requisite reports, do proper noticing, and the like. So while it is obvious that agendas need to be planned around the available time at the meeting itself, upcoming agendas also need to consider the available staff time to prepare for the item. Without reasonable preparation time, staff reports are likely to be inadequate and public noticing insufficient, and staff will be subject to overload and burnout. All are likely to contribute to unsuccessful meeting deliberations.
Providing Advance Public Notification
Another important component of a successful meeting is making sure that adequate notification to interested parties is carried out in a timely fashion.
From the outset, the staff need to thoughtfully consider which groups and individuals are (or are likely to view themselves as) affected by a particular topic or decision. Failing to do so almost certainly ensures a challenging From the outset,
the staff need
to thoughtfully
consider which
groups and
individuals are
(or are likely to
view themselves
as) affected by a
particular topic
or decision.
Agenda Item #5.1.
Copyright ®2016 ICMA Council and Board Meetings 73
item, with people showing up at the meeting saying they were not adequately notified of the council discussions. Of course, even worse is this concern being raised after the meeting. In these instances you must deal with not only their perceptions regarding the issue at hand but also their belief that they were not considered important to the deliberation—or even worse, that they were purposefully kept in the dark. “Clocking” the Agenda
It is also important to anticipate how much time will be required to work through the various issues on the agenda, as well as the complexity and amount of controversy that will be loaded into one agenda. While estimating how much time each item is likely to take is never precise, the attempt at least gives you some sense of what is realistic for any particular meeting.
Some organizations place estimated timing on a planning agenda and sometimes even on a final agenda. This serves not only to estimate what is feasible for a particular meeting but also to gauge progress as the meeting unfolds.
Weighing the Items
The nature of the items is equally critical. Are the items complex or straightforward, routine or controversial? Are a significant number of constituents likely to come to address any of the issues? Are any of the agenda items likely to generate strong emotions? Your answers to these questions will significantly inform decisions regarding agenda planning. As an example, an emotionally charged item that draws many citizens can have an unanticipated impact on another agenda item.
Ordering Agenda Items
Lastly, the order of items on an agenda can have a significant impact. More complex and difficult issues are sometimes best considered earlier in the meeting when the council members are “fresh.” You may want to get some routine business done first in order to get a challenging meeting off on a positive note. At the same time, it’s usually good to avoid making a packed audience interested in an emotionally charged item wait long for their item to come up.
Staff-Prepared Reports
Two of the most important and fundamental ingredients for a successful governing board meeting are the staff research and report preparation that occur in advance. Staff reports are generally the primary basis for the discussion and deliberations at the meeting. The quality of the reports can, to a large extent, determine the ability of the meeting to achieve its goals.
Who Prepares the Reports
The first question once an item is placed on a governing board agenda is, who is going to prepare the report? Will it be someone in the manager’s office (possibly the manager herself/himself), a department head, or While estimating
how much time
each item is likely
to take is never
precise, the
attempt at least
gives you some
sense of what is
realistic for any
particular meeting.
Agenda Item #5.1.
74 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA another member of a line department? Is report preparation limited to certain levels of staff or those with certain experience? Will it be prepared by one or more staff who have worked closest to the issue, regardless of report preparation experience or level in the organization? In many organizations the answer can often be “all of the above.” The right person or persons to prepare a report depends on many factors including those noted above. Having one or more staff members who have worked closest on a topic prepare the first draft of the report ensures that the technical information creates a good foundation even if the report is subsequently modified by others more experienced with producing material for the governing board. These protocols can and do vary widely from one organization to another. The key is to make sure that the final product is clear and complete and facilitates decision making.
Training and Guidelines for Report Preparation
You shouldn’t assume that a very capable staff person who does not have experience writing governing board reports will be able to prepare a great report without training and guidance. Preparation of these reports is a sensitive and often demanding exercise. And with so much riding on the outcome of these agenda items, the ability to write effective reports should not be taken for granted.
Many organizations have set up training programs to assist staff in learning how to write quality staff reports. These programs are aimed at staff members who have no experience preparing reports or who do so only occasionally. The programs show staff the fundamentals as well as nuances of report writing. These organizations appreciate that writing consistently well-prepared reports is a learned skill and that offering report preparation training is to everyone’s benefit.
Report preparation guidelines often include report length, report components and format, how to present recommendations, and the like. In regard to report length, the item’s subject matter—including relative complexity—dictates some variance, but an individual’s writing style should not dictate report length.
Whether you offer report-writing training and/or written guidelines, report preparation tools help establish a consistency among reports, which in turn helps governing board members focus on the substance of the reports rather than be derailed by reports that vary widely in format, style, length, and components.
Organizations should be clear in regard to what is considered an adequately prepared staff report. Inconsistency in this regard can often result in delayed decision making or, even worse, a rejected recommendation primarily based on how the recommendation is framed.
Report Sections
Establish a clear understanding of the fundamental, required components of staff reports—that is, the elements that need to be consistently included Organizations
should be
clear in regard
to what is
considered an
adequately
prepared
staff report.
Agenda Item #5.1.
Copyright ®2016 ICMA Council and Board Meetings 75
and presented in the same order. Among the sections typically in reports are these:
• Recommendation
• Executive Summary
• Background/History
• Staff Review/Analysis
• Financial Impact
• Summary/Conclusion
• Pros/Cons
• Alternatives.
Each organization should define what sections or components are required in each report to ensure consistency with whatever standards are developed.
Final Report Approval
Organizations also need to have clear procedures regarding review and approval of reports. Who has the final say on what the report contains and its recommendation? Do reports require review at multiple levels of the organization? Who figuratively or literally is required to “sign off” on the reports? The manager needs to establish organizational clarity and consistency regarding all of these issues.
Recommendations
Issues that are viewed as “pure policy” often do not carry a recommendation, but the bottom line for most staff reports comes down to the recommendation(s). This is where all the research, analysis, and professional opinion are distilled into action. By making a recommendation, the staff is entrusted with a very significant role in the public decision-making process.
As manager, your job is to ensure that this ability to significantly influence the process of government is carefully and thoughtfully exercised. • When no recommendation is proffered. It can be challenging to determine in which cases a recommendation should not be offered.
An issue simply being controversial is not a good reason to forego a recommendation. It can be perceived as the staff dodging a difficult issue while not assisting the governing board by providing their best professional judgment (professional judgment for which they are compensated).
On the other hand, a decision revolving around a community value judgment (e.g., whether to establish a local minimum wage or determining an overall land use philosophy [residential only, heavily commercial, etc.]) is usually not one for which the staff is best positioned to offer a recommendation. These can be cases where the staff would only be offering its personal opinion regarding a community value—a role that is best served by the community’s elected representatives.
By making a
recommendation,
the staff is
entrusted with a
very significant
role in the public
decision-making
process. As
manager, your
job is to ensure
that this ability
to significantly
influence the
process of
government is
carefully and
thoughtfully
exercised.
Agenda Item #5.1.
76 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA • Alternatives and pros and cons. Even when staff make a recommendation, legitimate alternatives to the recommended action may exist. You and your staff need to exercise caution in giving the impression that there is only “one right way” when in fact there are often alternatives that could be reasonable. The credibility of your recommendations can be enhanced by including a review of legitimate and carefully thought-out alternatives in the staff report.
The review of the alternatives, as well as the recommendation itself, should include a review of the various pros and cons associated with each potential course of action. This can be a challenging exercise since it is natural to not fully see the advantages of courses of action that are not being recommended. Additionally, it is challenging to avoid biasing a report if there is a strong sense of one course of action being the correct way to proceed. However, if this very important prerogative is going to be exercised appropriately, care and thought must be brought to bear in regard to an open and honest appraisal of the pros and cons of both the recommended action as well as its legitimate alternatives.
Working Through Controversial and Complex Issues
in Advance
Many difficult, challenging, and/or complex issues have little chance of resulting in a successful review and decision-making process if they are rushed. Many issues can be successfully resolved if policy makers are given time to become comfortable with the scope and complexity of the topic. The difference between success and failure can simply be how much of an opportunity the elected board has to become familiar with the issue and gain confidence with the recommendations being offered. There is no better recipe for failure than rushing a complex or controversial issue.
The “Multiple Touch” Rule
Consider this concept the “multiple touch” or “multiple exposure” rule. That is, an elected board can become comfortable with what initially appears to be a very challenging issue by having more than one opportunity to discuss and provide input. Simply having more time to consider the issue and recommendation can increase the odds of the policy makers becoming confident enough in the recommended course of action to proceed.
There are many ways to provide “multiple touches” for a council, including these:
• Board subcommittees. A subset of the council can delve into a challenging topic in advance of full council consideration. This can help identify and answer questions in advance, provide the staff with additional information regarding how to present the issue to the full group, and create positive momentum if the subcommittee is able to support the proposal.
• Study/work sessions. It can be helpful to allow the council to review and discuss significant topics in advance of when they will actually There is no
better recipe
for failure
than rushing
a complex or
controversial
issue.
Agenda Item #5.1.
Copyright ®2016 ICMA Council and Board Meetings 77
need to make a decision regarding the issue. The use of study or work sessions accomplishes similar goals as the use of a council subcommittee, but engages the full council in the conversation.
Although more time-consuming, getting feedback from the entire board in advance has two advantages: It helps policy makers become more comfortable with the issue, and it provides valuable information for the staff to prepare its final recommendation or proposal.
• Individual member briefings. While being mindful of any relevant statutes regarding discussion of issues with elected officials outside formal meetings, providing individual or small-group briefings of policy makers prior to formal consideration can help increase comfort levels with the issue(s) while alerting the manager to questions and issues in advance.
These and other techniques can significantly increase the odds that at the end of the process the elected board will make a decision on the merits of the issue, not because they are feeling rushed or not fully prepared.
Receiving Council/Board Questions in Advance
One very valuable factor for improving the odds for a successful board meeting is when the manager is aware of or able to respond to council member questions in advance of the actual meeting.
Being aware of such questions alerts staff to the issues on the minds of the policy makers and, with sufficient advance notice, allows staff to be prepared to respond to those questions either in advance of the meeting or at the meeting. Since the goal for each meeting is to arrive at well-informed decisions, and with the likelihood of that outcome decreasing with unanswered questions, the effort of the elected officials to identify and communicate their questions in advance and the effort of staff to respond (or be prepared to respond) are well worth it.
Establishing Working Norms
Receiving questions before the meeting works best when the manager and the council create a working norm that establishes that council members will forward their questions prior to the meeting as often as is possible.
While this takes both time and effort on the elected officials’ part, the manager can communicate to them how significant this factor is to the success of the meeting and to their ability to make good decisions. The odds of council members being willing to provide questions in advance increases significantly when they understand why.
Council members can appreciate that it’s in no one’s best interest when staff are unable to answer questions at the meeting. Additionally, a good deal of meeting time can be saved by answering questions prior to the meeting that are not necessary to ask at the meeting itself. Even if a board member believes it is important to publicly ask a question (and get a response) at the meeting, alerting staff to the question in advance (and Agenda Item #5.1.
78 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA possibly even getting an answer in advance) greatly increases the odds of getting an answer to the question.
Nonetheless, even with agreement about this good practice, it is not always easy to implement. Well-intended elected officials may not get around to submitting questions in advance due to a lack of time or as a result of procrastination. Anything staff can do to make the task for the council members easier—for instance, sending a reminder or direct outreach to elected officials in advance of the meeting—increases the likelihood of getting the questions in advance.
Another challenge is getting the questions far enough in advance to actually undertake the research (if necessary) to respond to the question. It helps to have agreed-upon protocols regarding how far in advance of the meeting the questions should be provided. Such understandings need to be in the context of when the elected officials get their agenda materials and how far in advance of the meeting is considered appropriate for the staff to respond.
Handling the Surprises
Sometimes managers encounter an elected official who may believe it is to his or her political advantage to “stump the staff” and surprise them with questions at the meeting. The elected official may want to either derail an item or, for whatever reason, place the staff in an awkward position. (Also see “When Things Go Wrong” chapter.) While working with elected council members who purposely engage in such behavior is challenging, it is often the reality of our work. That’s why creating the cultural norm (and value) of not surprising staff at meetings is so important. With the norm in place, peer pressure may prevail and put a halt to the kind of behavior described here. Regardless of getting questions in advance of the meeting, staff need to do all they can to anticipate potential questions and be adequately prepared to respond.
Staff Presentations at the Meeting
As important as a quality staff-written report distributed prior to the meeting is, equally critical is the actual presentation of the material at the meeting.
How the information is presented and how questions are responded to can often make all the difference in regard to the successful conclusion of an agenda item.
Who Presents
One of the first questions that needs to be answered is, who presents the report? A good practice is to have a general understanding regarding this issue within the organization in order to have a reasonable level of consistency among the various departments. Who presents can vary significantly depending on the nature of the item and the experience and capabilities of staff in particular departments, which makes having an overall organizational philosophy helpful. ...staff need to
do all they can
to anticipate
potential
questions and
be adequately
prepared to
respond.
Agenda Item #5.1.
Copyright ®2016 ICMA Council and Board Meetings 79
In some organizations, and more commonly in the past, the manager is the primary presenter of staff reports to the elected body. It is now not unusual for department heads and other staff to present reports at the meeting. Experience in presenting such reports can often be a criterion for making this determination, as can familiarity with the topic and authorship of the report. It can make sense to have the person who prepared the report give the presentation since she or he is most familiar with the report and related background. However, that person may or may not have much experience in formally presenting reports in public. Many organizations view allowing relatively inexperienced staff to make such presentations as part of the organization’s responsibility to help staff members grow and develop in their careers. Of course, the significance of the issue and the relative controversy surrounding the issue are important factors as well.
What Is Presented
It is important to have an understanding between the council and the manager and staff regarding the length, format, and content of staff presentations of agenda items. Should the presentation simply be a brief summary of the written report? Should it be simply being available to respond to questions? Should it be a complete recap of the contents of the report? While the answers can vary depending on the nature of the topic, expectations of staff and the council need to be in sync to the greatest extent possible. Making a presentation that the council views as either inadequately brief or overly long can hinder a successful outcome.
Presentation Training
Making an effective staff presentation at a public meeting does not come naturally to most. It usually takes training and practice. (Also see “Training and Guidelines for Report Preparation” earlier in this chapter.) The ability to learn from other staff members who are viewed as experienced and successful in making presentations is important. Having agreed-upon formats can be helpful. Some organizations have training programs specifically designed to assist staff members in becoming proficient presenters. And of course, the opportunity to practice presenting, whether in simulations or at actual meetings, is extremely valuable. Sometimes staff members are provided the opportunity to deliver reports on more routine items to get their initial experience. Additionally, making a presentation to advisory commissions and committees can be a good way to get initial experience prior to presenting to the governing board.
Style of Presentations
Reasonable consistency among presenters and departments regarding the format and style of presentations is a must. The nature of the presentations should not vary dramatically simply because the staff or department has more or less experience in making such presentations or resources to bring to the effort. As manager, you should set and communicate guidelines regarding presentation length, visual aids, how to respond to questions, and so on.
Working with
other staff
members to
brainstorm
potential
questions
can be very
helpful.
Agenda Item #5.1.
80 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA Visual aids can be a very valuable component of staff presentations.
More complex or detailed ideas can benefit from visual aids such as PowerPoint talking points. Reports with important numbers or statistics can benefit from graphs and charts. Sometimes photographs, computer simulations, maps, and the like can make a significant difference in communicating a message.
Staff Preparedness
Responding to questions can be the most challenging aspect of a staff presentation. Even if everyone does their best to provide questions in advance, unanticipated questions are asked at meetings. The ability of staff to adequately prepare for those questions is critical. Fair or not, the ability of a staff member to respond to questions “on the fly” can determine the policy board’s ultimate confidence in the staff’s proposal or recommendation.
Working with other staff members to brainstorm potential questions can be very helpful. Likewise, carefully listening to the entire question before responding is critical. A frequent misstep is to start thinking about how to respond to a question prior to having carefully listened to the entire question. How to respond to questions is often the area where the most training and assistance for relatively inexperienced staff members is needed.
It is also important to have agreement among staff regarding who will answer certain questions. Who should respond can often vary depending on the technical nature of the question as well as the level of sensitivity. A manager or department head may feel it is appropriate for one of their staff members to make the presentation, but may reserve the prerogative to respond to certain types of questions if they arise. It is critical for staff members not to come across as defensive or frustrated when responding to questions— even when a question is unfair or asked in a confrontational manner.
When a staff presentation does not go well, it is critical to learn from that experience. What were the factors that contributed to the less-thansuccessful outcome? What lessons can be learned, where can presentations be improved? Making good staff presentations is not easy and cannot be taken for granted. By making this an area of continuous improvement, you greatly enhance the odds of having a successful meeting.
Role of the Mayor or Chair at the Meeting
Another area requiring a clear understanding among the participants is the role of the mayor or chair at meetings. In successful meetings, the manager and the mayor have distinct and complimentary roles.
In most local government organizations, the chair is in charge of running the meeting. In chairing the meeting, the chair leads the governing board through the agenda and manages most aspects of the meeting. The chair maintains decorum and assures that the meeting operates consistent with established policies and protocols. Included in the mayor’s responsibilities is welcoming and managing public input and council discussion.
Included in
the mayor’s
responsibilities
is welcoming
and managing
public input
and council
discussion.
Agenda Item #5.1.
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The effectiveness of the chair in running the meeting is another factor that significantly impacts the success of the meeting. His or her demeanor, preparedness, and professionalism can significantly influence the conduct of the other meeting participants. How the chair runs the meetings also often determines how others view the effectiveness of the meeting.
As manager you play an important role in helping the chair succeed. It’s up to you to make sure that the chair has all the information needed to successfully undertake the role of managing the meeting. This includes providing the chair all relevant background information on each agenda topic in a timely fashion. You can also provide meeting management training and offer suggestions on how to handle challenging topics.
Role of the Manager at the Meeting
While the role of managers at governing board meetings varies widely for many reasons, the key common thread is the need for the manager to do whatever he or she can to contribute to a successful meeting.
The combination of the manager’s style and the culture/history of the organization shapes quite different roles for the manager from one community to another. For some managers and in some settings, the manager may play a very visible and active role in the meeting. For other managers in other settings, the manager may appear almost like an interested spectator.
Some managers believe that they should be actively engaged in the meeting with presentations and in discussion with the governing board.
Others view their role as being available to either staff or the board as may be necessary to help resolve an issue. In some instances, once the manager has been with an organization long enough to establish confidence in the work of staff, the manager can rely more on those staff members taking on the principle roles in meetings. However, even when the manager prefers staff members to take the lead, the manager may choose to be the lead on particularly critical or sensitive topics.
Some managers believe that their primary contribution to the success of governing board meetings is the work they do in advance of the meeting— including helping prepare the chair, council, and staff. The manager plays a critical role in regard to scheduling agenda items, assuring quality written and verbal staff reports, and crafting well-justified recommendations.
The manager also needs to be available to assist at the meeting— including supporting the mayor, other council members, and the staff. Making suggestions on how to proceed if the council becomes bogged down on an issue can be a particularly valuable contribution to meeting success.
Before jumping in,
• Carefully consider if your “intervention” into the discussion among the elected officials would be welcome and how likely it is to be helpful. • If concerning a controversial issue, carefully consider if your “suggestions or comments” would be viewed as taking sides in support or opposition to one or more of your elected officials.
The combination
of the manager’s
style and the
culture/history of
the organization
shapes quite
different
roles for the
manager from
one community
to another.
Agenda Item #5.1.
82 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA • At times it may be sufficient to simply summarize or rephrase what appears to be an evolving consensus.
• There may be times when offering an alternative approach can be welcome.
Managers often view the most successful meetings as those in which they don’t need to say anything at all.
Letting the Council Decide
One of the biggest decisions for managers is determining that, having done all they reasonably can to assist the governing board on a challenging issue, it is time to disengage. Once the manager and staff have done the research, prepared and presented their recommendation, and responded to questions, it’s time to allow the governing board to make its decision—even if its decision seems less than optimal.
It can be a serious mistake for the manager, or an individual staff member, to appear to be unable to “accept no for an answer.” Managers need to understand the difference between recommending and advocating versus appearing to be unwilling to accept any conclusion other than the staff recommendation.
Also, continuing to engage once the council is in full debate mode can appear to be actively taking sides, which can be damaging to the council-manager relationship. Managers and staff need to appreciate that it is ultimately the governing board’s meeting and the governing board’s role to make the final decision.
One of the toughest challenges for professional staff is to be fully accepting of the right in a democratic system for the governing board to make the final decision when staff think, from their professional perspectives, it is the “wrong” decision. Governing boards have the right to make decisions within their authority, even if managers and staff don’t agree with them.
After the Meeting
Often what the staff does after the meeting is as important, or even more important, than what it does before the meeting. A meeting debrief provides the opportunity to learn from both the good and the bad experiences. Examining what went well at a successful meeting can build the foundation for future successful meetings. Possibly even more important, examining what did not go well provides the basis for positive change and future meeting success.
Sometimes councils judge staff more by what happens after the meeting than by what happens at the meeting. Does the staff implement decisions not consistent with the staff’s recommendations as faithfully and judiciously as it implements those decisions consistent with the staff’s recommendations? It can be very damaging to the governing board–staff Managers
often view
the most
successful
meetings
as those in
which they
don’t need to
say anything
at all.
Agenda Item #5.1.
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relationship if the staff appears to drag its feet in implementing council decisions or does so in what appears to be a half-hearted manner.
A true test of staff’s professionalism is the ability to effectively implement decisions it did not recommend and does not agree with.
When Things Do Not Go Well
All managers will experience meetings that do not go well. This may take the form of staff recommendations not being accepted, staff mistakes, fair or unfair criticism, or hostile conduct by the council or the public. In such cases it is the manager’s responsibility not only to see what lessons can potentially be learned but also to set an example for staff on how to respond to a difficult meeting. Whether or not the manager can retain a positive attitude often determines how staff will respond—and how long it may take the staff to “recover.”
While as manager you need not serve as an apologist for poor behavior on the part of the governing board or public, you should avoid furthering the negative gloom by appearing negative or overly critical.
Additionally, if the performance of one or more staff members was the cause for a poor outcome, how you deal with the resulting frustration will speak volumes to the staff. While such circumstances require staff learning, accountability, and improvement, how you communicate the lessons will be carefully viewed and probably long remembered by staff. Focusing on improvement likely has a much better long-term payoff than focusing on the frustrating aspects of what has already occurred.
At the end of the day your priority should be on keeping staff focused on a more successful future, not on dwelling on a negative meeting experience.
The Right Ingredients for Successful Meetings
Many ingredients result in a successful council–manager relationship. One key criterion for judging that relationship is the real and/or perceived success of the governing board’s formal meetings. While the manager does not have complete control over the success of these meetings, with careful planning and skilled execution, the odds of success increase significantly, as do the odds for a positive staff–governing board relationship. Never allow disagreements to become personal.
Although no single meeting component is likely to make or break a well-planned meeting, it helps to keep in mind what the invested parties need from each other to come away feeling that the meeting was a valuable use of their time. • What the staff (and public) need from the governing board:
• An effective and engaged chair
• A commitment to “do the homework”
• Asking questions in advance
• Professional conduct/demeanor
A true test
of staff’s
professionalism
is the ability
to effectively
implement
decisions
it did not
recommend
and does not
agree with.
Agenda Item #5.1.
84 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA • Attentive listening
• Respectful/thoughtful deliberation
• Clear direction.
• What the governing board needs from the staff:
• A well-planned agenda
• Complete and professional staff reports
• Anticipation of issues and questions
• Clear and complete staff presentations
• Useful responses to questions
• Well-thought-out recommendations
• Timely follow-through on the meeting’s decisions.
Final Word
Perhaps more than anything, understanding your role and your professional and personal investment in conducting a successful meeting can help you appreciate your influence and the affect you will have on others at the meeting. Consider these experience lessons:
• Be realistic regarding expectations.
• Understand that you do not control the entire process or the outcome. • Realize that democracy in action is often messy.
• Always keep your cool/manage your frustrations.
• Keep issues and feelings in perspective.
• Don’t compromise the success of future meetings by your reaction to a difficult meeting.
• After your last meeting, whether it went poorly or great, start focusing on having the best possible NEXT meeting.
KEY NOTES
• While some will judge a meeting simply from the perspective of their agreement with the decisions reached, most will also place high value on how those decisions were reached.
• A board meeting is quite possibly the most prominent venue for judging both individual council member performance and the performance of the council as a whole.
• Rules and protocols are the foundation for the conduct of meetings.
Consequently, councils must have buy-in on the need and value of such rules and must be sure that all members are familiar with the protocols.
Agenda Item #5.1.
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• The number, order, and type of issues scheduled in a particular time frame affect how successfully the staff and governing board deal with those issues.
• Many consider an ideal meeting as having a good balance of both routine and significant (more complex and/or controversial) issues. • Everyone needs to understand who has the authority to initiate the placing of a new item or topic on the meeting agenda.
• With so much riding on the outcome of agenda items, many organizations have set up training programs to assist staff in learning how to write quality staff reports.
• Staff needs to do all it can to anticipate potential questions and be adequately prepared to respond.
• Many organizations view allowing relatively inexperienced staff to make board presentations as part of the organization’s responsibility to help staff members grow and develop in their careers. • Some organizations have training programs specifically designed to assist staff members in becoming proficient presenters. • Fair or not, the ability of a staff member to respond to questions “on the fly” can determine the board’s ultimate confidence in the staff’s proposal or recommendation.
• It’s up to the manager to make sure that the mayor or chair has all the information needed to successfully undertake the role of managing the meeting.
• A staff meeting debrief provides the opportunity to learn from both the good and the bad experiences.
• A true test of staff’s professionalism is the ability to effectively implement decisions it did not recommend and does not agree with. • Even after a meeting that did not go well, the manager’s priority should be on keeping staff focused on a more successful future, not on dwelling on a negative meeting experience.
Agenda Item #5.1.
Agenda Item #5.1.
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Chapter 6
BEST PRACTICE
COUNCIL RETREATS
An essential tool for helping councils
achieve their goals
Agenda Item #5.1.
H
igh performance starts with good council direction and the council’s articulation of desired outcomes. “If you don’t know where you are going, you might not end up there” (the late Yogi Berra’s often-quoted observation) is especially true in local government. As discussed in other chapters, the key responsibility and added value of the governing body is to describe the community’s future desired state so that the chief administrator can implement the processes and procedures necessary to bring that future state to reality.
One of the best tools for exploring, discussing, and agreeing on these outcomes is a successful council retreat, also sometimes called leadership summit or annual planning session. The nomenclature is not nearly as important as the components associated with them. Together these actions comprise the makings of retreats that serve the governing body, the local government, and the public effectively.
1. Select a Facilitator
In general, using an external facilitator (or at the very least someone other than the chief administrator) to guide the retreat discussion is important. This allows the administrator to fully engage as a participant in the retreat and allows her or him to represent the administrative side of the organization in the discussions. Although almost all chief administrators have the skills necessary to facilitate (and many do it exceptionally well), doing so in this situation can lead to role confusion and put a limit on representation of the “implementing” components.
If there is neither budget nor appetite for an external facilitator and the manager does need to fill the role of facilitator, it is often helpful at the outset to provide a mechanism (like a hat or placard or a button) to allow the manager to shift roles. Sometimes the manager may need to say, “Speaking now as the county manager, not as the facilitator” in order to be clear about his or her comments.
2. Develop a Purpose
The first step in designing the retreat is simply to articulate what it is you hope to accomplish.
With newly elected members or with groups that do not function well, it may be that team building and governance process are the key values of the retreat. With tenured or cohesive groups, it may be that long-range visioning, community strategic planning, or thorny issue discussion is most critical. Likewise, in every event it is important to set expectations appropriately. Expecting long-term dysfunction to turn into a love fest in a day and a half is not realistic, although agreeing on and practicing good group dynamics certainly is, and remarkable progress can definitely be made.
A pre-retreat conversation to establish the desired outcomes needs to include at a minimum both the chief elected and chief appointed official (CAO). Many times the CAO can do this in his or her individual meetings 88 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA By understanding
your own
preferences and
those of your
colleagues, . . .
you can become
more comfortable
with the group
process. . .
Agenda Item #5.1.
with the elected officials, and sometimes it can be done in a work session environment.
Having everyone together for a one-, two-, or three-day event is such an important investment that you want to know going into it everyone’s expectations, so that the event can be designed to meet them.
3. Conduct Pre-Meetings
Council members come in all personality types, and not all of them are willing to put difficult issues on the table in front of their peers, especially if there is any fear of reprisals or attacks by colleagues, the media, or the public. Consequently, when it can be afforded and the group is willing, it is always wise to ask the facilitator to meet individually with the participants ahead of time. The facilitator can use the premeeting to get to know the individuals, develop some rapport prior to the event, and get a sense of what they hope to accomplish. Often it is possible to structure the agenda such that individuals’ key issues are tackled as a matter of course and not as a result of their pushing for it, thus lowering the perceived threat of participation.
This is also the time to uncover any “bombshells” that might be in the works or unspoken dissatisfactions that might exist. Again, it is much better for the facilitator to know about these issues going into the event so that they can be planned for and defused if possible.
4. Use a Personality Profiling Instrument
Many personality profiling instruments are available: Insights®, DiSC, and MBTI are all popular, and of course folks have their favorites. The key is to recognize that everyone receives, processes, and communicates information differently and most certainly arrives at a decision point differently. By understanding your own preferences and those of your colleagues on the council and staff, you can become more comfortable with the group process and provide a framework and context for appropriate communication.
It is not unusual for a council to have a member who prefers verbal exchange, one who prefers abbreviated written reports, and still another who wants lengthy chapter and verse (with a Q&A opportunity) on every issue. When the pressure cooker of important decisions on live TV comes into play, it is critical that the team already have a framework for dealing with the resulting discord. While not a panacea, personality profiling provides a common language to use to highlight these differences in a positive fashion.
Use of a personality profiling instrument has the added advantage of being fun, so it makes a great icebreaker and kickoff to the retreat.
And, since groups have “personalities” just as individuals do, it can be very helpful to profile the separate teams involved—elected officials, appointed professional, and staff—to build respect for each and the way each processes information and communicates, as well as for what each values in the communications process.
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Agenda Item #5.1.
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5. Set the Agenda
With proper pre-meetings, personality profiles in hand, and, where appropriate, input of the mayor and city or county manager, the facilitator can craft a realistic agenda for the manager’s consideration.
Because in most environments retreats are open meetings and must be publicly posted as such, it is important that the agenda comply with local standards and yet also reflect where the key energies of the event are intended to be invested. The emphasis here is on realistic. If this is the first retreat for a council and group dynamics are the focus, don’t put the community’s BHAG (big hairy audacious goals) on the agenda as well. Conversely, with a tenured group with successful dynamics, don’t waste this precious offsite time by playing “soft toss”—that is, by building an agenda of items that really don’t need much discussion!
6. Choose the Venue
Sometimes elected bodies are able to journey nearby to a dedicated event facility to hold their retreat. These facilities are designed, maintained, and staffed to provide all the amenities needed for everything to run smoothly. However, in-town venues such as hotel meeting spaces, civic centers, and even borrowed corporate or chamber facilities will work just as well. These do often require more effort on the part of staff to arrange and set up.
Since community values vary significantly, it may be acceptable in some cases to travel to a resort-style environment, while for others, being Spartan is the order of the day. Whatever the decision, make sure the group supports it. Having an elected official choose not to attend because of the venue (especially if that official makes a big deal of it in the press!) generally sabotages the whole affair. Similarly, having elected officials popping in and out so they can take care of their day jobs because it is “just down the street” can be disjoining as well.
7. Design the Room Setup
Group dynamics are strongly influenced by room setup. Think about it this way: If you were going to have an important conversation with your family about a topic that everyone has a stake in, such as where to go on summer vacation, or whether to invest in a pool or a basketball court in the backyard, where would you have that conversation? For some it would be the kitchen or dining room table, or perhaps around the couch, love seat, and recliner in the family room. Almost no one would say, “Well, we would get up on a dais facing an audience so we couldn’t see each other’s eyes or read their body language.” Nor would they say, “Well, we would set up a U-shaped set of tables with uncomfortable wooden chairs with no padding where we sit shoulder to shoulder with no chance of eye contact.”
The point is that almost always making provision for round tables with comfortable seating with room to spread out and observe each other is simply a basic step for good conversation. If, as is often the case, Agenda Item #5.1.
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presentations need to be made that involve screens and speakers, the round tables can be oriented facing the screen with seating only on three-fourths or even just half of the table.
Comfort is key to keeping folks engaged and committed to a severalhour or multi-day event.
8. Be Thoughtful About Timing
Some councils like their retreats to coincide with elections in order to coalesce the team quickly. Others use retreats to set budget priorities, and therefore like to hold a retreat when the annual revenue picture is clearly seen. Still others use retreats to set manager goals and prefer scheduling the retreat at the end of or first of the calendar year. Of course, a well-designed retreat with a cohesive group will provide some components of all of these purposes, so just about any time is a good time! Time of day is also a concern for some councils. Many elected officials have other employment, sometimes with limited flexibility, so evenings and weekends are best. Others can make arrangements for vacation or time off, so weekdays are preferable.
Because group dynamics can be interrupted with significant time lapses, holding a retreat across two or three evenings can be more problematic processwise than one continuous event, but again, with the proper commitment, can certainly be made to work.
9. Designate the Attendees
The goal of course is 100% council member participation as well as full participation of the chief administrator. Beyond that, the retreat’s objective to some degree determines who else needs to participate. If council team building in the face of ongoing unhealthy behavior is the key desired outcome, then having fewer additional participants is better.
None of us like having difficult conversations with observers present.
If significant conversation about thorny community issues is on the agenda, then the presence of subject matter experts is certainly helpful.
Be careful not to shortchange your consideration of who needs to be in the meeting, given the consequences of inadvertently forgetting to include a necessary participant.
Because in most jurisdictions members of the CAO team—think deputies, assistants, and department heads—are so critical to goal accomplishment, it is often very helpful to have them participate. Their presence has the added advantage of demonstrating the competence and commitment of the organization’s leaders.
As long as there is agreement in advance, not all of the staff team necessarily needs to stay all of the time. Perhaps the team building and some issue conversations are improved with staff’s presence, but the council would feel more comfortable discussing council-staff relations without staff present. This does need to be known ahead of time so that no one feels excluded or gets their feelings hurt by being asked to leave.
Be careful not to
shortchange your
consideration
of who needs
to be in the
meeting . . .
Agenda Item #5.1.
92 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA Again, in almost all instances retreats are indeed open meetings, so in many jurisdictions, media or citizen observers may be present. It is also important to decide and direct their involvement in advance. Some communities invite stakeholders to participate on specific issues that will be discussed in the retreat. Others take the position that anyone is allowed to observe, but only the council and staff can participate. Local tradition and the agenda can inform this discussion, but it needs to be announced (usually by the facilitator or chief elected official) at the beginning of the retreat, and then adhered to. If exceptions are made, undoubtedly the folks to whom the privilege is not granted will feel disregarded or even insulted, so being consistent is paramount.
10.Carefully Design the Follow-up
Congratulations! All the planning, advance work, and attention to logistics paid off, and your retreat was a resounding success. The personality profiles were a big hit, and in fact the council asked that council members’ descriptors be located at their workshop venues as reminders of their importance in communication. Thanks to your excellent facilitator, the elected members came home with a more complete understanding of their role in the governance process; an added bonus was that a handful of challenging community and organizational issues were successfully addressed.
You and your staff were fully prepared and garnered significant accolades for your performance. Now, with the event behind you, you take a deep breath and get ready to finally get back to some of those vital things you have been putting off while making sure the retreat came off without a hitch.
But before you do, be sure to convey the success to your team. (Also see “When Things Go Wrong” elsewhere in this book.) Several of your key staff were present at the retreat and saw your achievements and the council’s hard work firsthand, but most members of your organization were not there. Because the retreat outcomes also have an impact on the professional futures of all staff, it makes sense to quickly convey to the broader team the sense of success, energy, and cohesiveness that was achieved. A timely organizational communication of some sort is absolutely in order, whether it is in person, by podcast, blog, e-mail, or good old memo.
Remember, if staff members don’t know what really happened, they will make it up (and generally not in the most positive light), so this additional immediate investment pays big dividends in terms of the organization capturing the positive momentum created by its leaders.
11. Conduct a Debrief
While you are at it, borrow a valuable process from our military commanders and convene an AAR (after action review) session with your core team within the first week you are back, before the pressures of the daily grind cause the glow to fade. What went well, Be sure to
convey the
success [of
the retreat] to
your team.
Agenda Item #5.1.
Copyright ®2016 ICMA Best Practice Council Retreats 93
what especially resonated with the council, what needs to be tweaked for next year? What new insights about individuals, the team, and each other did you gain?
Be sure to capture the AAR logistical learnings in writing and keep them handy for next year. It will be here in the blink of an eye, and being able to quickly review what worked and what needs to be modified will get you ahead of the curve next time around. In fact, if your future retreat schedule is sufficiently set—even within a few-week range—go ahead and get on your facilitator’s and venue’s tentative calendars right now. Presuming that either or both will be available on short notice can be problematic.
Ask your facilitator to weigh in on the AAR issues as well. He or she will come in contact with dozens or hundreds of elected officials from multiple jurisdictions in many different venues throughout the year, and while observing client confidentiality, the facilitator can use that experience to help you decipher behaviors and comments. If you are comfortable doing so, this is also an opportune time to ask the facilitator for personal feedback. “What advice do you have for me?” is a great question.
12.Do Damage Control If Necessary
Occasionally, hopefully very occasionally, feelings can be hurt or relationships damaged during a council retreat. For members of council, allowing oneself to be vulnerable during personality profiling or visioning provides another member the opportunity to take advantage or seek leverage. In these cases, it is critical to act quickly to keep the transgression from poisoning the exercise, or even the entire relationship. In extreme cases of bad behavior, immediate intervention or perhaps follow-up mediation or team building may be needed.
Certainly, the facilitator should help navigate these minefields and provide good counsel on how to repair fractures.
If members of staff feel attacked, undervalued, diminished, or undermined as a result of the retreat, it may be necessary for the manager to interpret these emotions and help process them. Emotional states are hugely significant in your work life, and the savvy manager keeps his or her finger on this pulse.
Maintaining composure and dignity at all times is certainly a hallmark of the professional, and if in a truly worst case scenario the manager finds that he or she is on the receiving end of attacks or vitriol, responding calmly and appropriately helps maintain the proper environment for the retreat.
Like an infection or nagging injury, ignoring any of these problems does not help it go away. In fact, addressing any of them in the moment, or as soon as possible, is typically the best course of action. While perhaps unpleasant and even perilous, being willing to take this risk demonstrates the poise and professionalism of the manager.
In extreme cases
of bad behavior
[at a retreat],
immediate
intervention . . .
may be needed.
Agenda Item #5.1.
Pre-Retreat Checklist
• Select a facilitator
• Develop key purpose
• Conduct pre-meetings
• Select personality profile instrument
(facilitator to administer)
• Develop agenda and meeting day(s)
schedule
• Select venue and designate room set-up
• Designate attendees
Post-Retreat Checklist
• Organizational communication
• Event AAR (After Action Review) and
logistics capture
• Tentative schedule for next year
• Facilitator debrief
• Low-hanging fruit harvest
• Outcome delegation
• Reprioritization
• Council feedback
• Use of what you learned
SIDEBAR
RETREAT CHECKLISTS
94 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA
13.Delegate the Follow-up
Convene another session right after the retreat to effectively delegate quick follow-up actions to the appropriate departments and individuals.
Council members will remember their key issues and any broad direction given, so be sure to have a process to provide feedback to council members on what you are doing. This sends the correct message that you highly value their participation and involvement. Any low-hanging fruit should be quickly harvested and the harder stuff put in process.
Now is also the time to do any appropriate resource reprioritization.
Especially in these challenging times, there is little to no organizational “slack,” so if the retreat resulted in additional outcomes (as they almost always do!), be sure to let your staff know what priorities can be shifted.
It is far better to do the critical things well and some things not at all, than to do everything poorly.
Agenda Item #5.1.
Copyright ®2016 ICMA Best Practice Council Retreats 95
14.Convey the Delegation
Be sure to provide the council with synopses of these actions. They will appreciate knowing that their time was well spent and valued appropriately and will be much more likely to be willing to invest in additional sessions in the future.
Finally, leverage your success with appropriately frequent reminders of the retreat with the council as well as staff. “Remember at the retreat when we agreed . . .” or, “Recall that my personality profile says I love analysis, so bear with me while I . . .” gives everyone a sense of connectedness back to the event and process and helps keep the jackpot flowing.
KEY NOTES
• You want to know going into a retreat everyone’s expectations, so that the event can be designed to meet them.
• This is also the time to uncover any “bombshells” that might be in the works or unspoken dissatisfactions that might exist so that they can be planned for and defused if possible.
• While not a panacea, personality profiling provides a common language to use to highlight differences among retreat participants in a positive fashion.
• Group dynamics are strongly influenced by room setup. Making provision for round tables with comfortable seating, with room to spread out and observe each other, is simply a basic step for enabling good conversation.
• Comfort is key to keeping folks engaged and committed to a severalhour or multi-day event. • The goal of course is to have 100% council member participation as well as full participation of the chief administrator. Beyond that, the retreat’s objective to some degree determines who else needs to participate.
• Be careful not to short change your consideration of who needs to be in the meeting, given the consequences of inadvertently forgetting to include a necessary participant.
• Retreats are typically open meetings, so media or citizen observers may be present. It is important to decide and direct their involvement in advance.
Agenda Item #5.1.
96 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA • Because the retreat outcomes have an impact on the professional futures of all staff, it’s important to quickly convey to the broader team the sense of success, energy, and cohesiveness that was achieved. • As part of your meeting debrief, ask the facilitator for personal feedback. “What advice do you have for me?” is a great question. • Any low-hanging fruit from the retreat outcomes should be quickly harvested and the harder stuff put in process.
• If the retreat resulted in additional, new outcomes (as they almost always do!), be sure to let your staff know what priorities can be shifted to address these.
Agenda Item #5.1.
Copyright ®2016 ICMA When Things Go Wrong 97
Chapter 7
WHEN THINGS
GO WRONG
Learning how to manage the bumps in the road
Agenda Item #5.1.
I
first heard the maxim “One minute you are on top of the world, and the next minute the world is on top of you” from Buford Watson, ICMA’s president in 1986. His point of course was that in the local government world you can be doing everything right—living the code of ethics, communicating relentlessly, implementing good governance, even managing inspirationally—and things can still go wrong.
Think of great managers—the mentors, teachers, and pundits in our world—who have wound up “in transition” after a council election. Think of sincere, hard-working professionals whom you know who are embroiled in a controversy not of their own making. Think of that colleague who poured his or her heart and soul into a community only to be shown the door based on groundless accusations.
Whether it is a dissident elected official, that rogue department head, the unscrupulous community activist, the reputation-seeking journalist, or even just being in the wrong place at the wrong time, the simple fact is that when you live your life in the fishbowl of public administration, sometimes things just don’t work out the way you want them to.
With that said, there are things you can do to try to prevent these occurrences and some steps you can take to deal with them forthrightly when they do occur. While this chapter can’t address every possible challenge, here are some of the more common ones.
The “Bad Apple” Governing Body Member
While ICMA surveys show that in general most local government managers feel that they have “good or excellent” relationships with their governing bodies, that rating is not uniform for all members of a council or governing body. In fact, the anecdotes and stories associated with the difficult council member are pervasive.
• These “bad apple” elected officials
• Treat every staff presentation as an inquisition
• Routinely disclose confidential information to the media • Spend all their time on minutia and miss the big picture completely • Are never prepared for the meeting and regularly ask questions that were answered in the council or board packet
• Are never willing to bring closure and always want more information before they vote
• Refuse to abide by the meeting rules of order
• Circumvent the administrator, going instead to internal staff, including even the assistant or assistant to
• Are always trying to make staff (and the chief administrator) look bad.
In addition, the bad behavior of these members also has a tendency to negatively impact the other members of the governing body. 98 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA . . . when you
live your life in
the fishbowl
of public
administration,
sometimes things
just don’t work
out the way you
want them to.
Agenda Item #5.1.
Since these behaviors largely fall in the governance arena, the best case scenario is that the manager doesn’t have to be involved in disciplining governing body behavior at all. The mayor or the most senior or most influential member can take the repeat offender aside and help that person see “the good governance light.”
Ideally you have with your board or council some agreement on good governance behaviors as discussed in the governance chapter in this publication. Also ideally, these behaviors have been codified to some extent and were put in place before the disruptive member came on board.
Putting good governance procedures in place when councils are supportive may sound unnecessary. “They already govern well, why push process on them?” is a common refrain. But just as negotiating your employment agreement when everyone is on good terms makes sense, so does developing the council process manual when the group is cohesive and cordial.
In reality, though, the brunt of the challenging behavior is directed at the administrator and/or staff, and so logically some of the intervention does involve the chief administrator as well. Here are some strategies that often work.
• Meet with the member individually. This one-on-one meeting— preferably in a location where the elected member feels comfortable— is designed to accomplish several things. It demonstrates the administrator’s approachability and professionalism. It helps build, or starts to build, a relationship. It starts to educate the elected official on the roles and responsibilities of his or her office. (Remember, most elected officials have no formal training in governance and may have picked up bad habits or bad information traveling their board journey.) And, it informs the administrator as to motives, concerns, and objectives.
Often just the engaging bears good fruit as the elected official determines that the administrator is as fully invested in the success of the organization and the community as the official is. With this common ground of common interest, rhetoric can be toned down and progress reinstated.
• Use personality profiling tools. In addition to experiencing the value of using personality profiling tools with individuals and with groups (as described in “Best Practice Council Retreats” elsewhere in this book), learning about profiling tools can inform both the elected official and the administrator about techniques to communicate well with each other. Since different skills and talents are often rewarded or applied differently in the unique spheres of elected and appointed office, it sometimes take conscious, determined effort and solid techniques to bridge between those spheres, particularly when friction already exists.
Using personality profiling tools is not a panacea, but certainly provides additional mechanisms to forge communication links and build trust.
Copyright ®2016 ICMA When Things Go Wrong 99
Remember, most
elected officials
have no formal
training in
governance..
Agenda Item #5.1.
A highly regarded and well-tenured manager recently shared her story with us. “After a nice run of supportive councils, we had several new members as a result of term limits. Most of these were willing to learn and acknowledged the work that their predecessors had done. One, however, began almost immediately to complain about the police department—especially his perception that there was a lack of trust and engagement with the minority community, and that minorities were disproportionately stopped and searched. In his opinion we were ‘profiling.’
”We compiled and shared reams of statistics, charts, graphs, and reports to prove that this was not the case, but the member just kept getting louder and more strident in tone. “Finally, after several meetings with me and with the police chief, I invited the member to accompany me on a ride-along with our midnight shift commander to observe firsthand what the officers were experiencing. As luck would have it, we were dispatched to a loud-music call in the council member’s district, and he was able to experience up close the challenges associated with policing a large group of people, several of whom appeared to be under the influence of something.
“Fortunately our officers handled the encounter professionally and cordially and were able to convince the host to lower the volume and keep the party under control. “This was a real eye-opener for the member, and as a result he signed up for and attended our Citizen’s Police Academy, and over the next year or two became one of the police department’s biggest supporters. “I am convinced that the personal touch of meeting with him, supplying him with data, and most importantly, sharing the ride-along with him gave me personally, as well as the city, the credibility we needed to have in order to educate this member.”
SIDEBAR
EXPERIENCE IS A GOOD TEACHER
100 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA Think of it as a mutual language that can be used without emotion or bias to describe personal behaviors in a nonthreatening way. “I bet that’s your ‘D’ coming out” is much less threatening to hear than, “You act like you have to control every situation.”
• Accommodate the member when possible and when it is not unethical or unduly burdensome to do so. Interest-based negotiating teaches you that it is always valuable to look beyond the words used by the difficult council member to try to understand what that person truly hopes to gain or accomplish. Getting past the bombastic rhetoric to desired outcomes is often a path to accommodation. Fulfilling campaign promises or being responsive to constituent requests is political currency for the elected official, and sometimes these are easy winAgenda Item #5.1.
Copyright ®2016 ICMA When Things Go Wrong 101
wins for the administrator and the elected official. Within the latitude of organizational resources, it is amazing how much rapport you can build by accommodating the elected official (while not compromising ethical or mission-critical components).
However, it is not unusual for elected officials to make promises or state positions that they find later they cannot fulfill or sustain. Either out of honest intent or campaign expediency, some candidates for office make commitments and promises that are virtually impossible to fulfill within legal or budgetary constraints. Add in even just a little reluctance from the incumbent tenured members and you have a recipe for confrontation when the election is over and the new member wants to advance his or her commitment. Unfortunately, delivering the bad news about the law or the money often falls to the administrator, and we all know what happens to the messenger.
As you meet with the member, let the member know that your goal is to help her or him be successful within the confines of the rules and resources available. Ask questions. Come prepared with alternatives or compromises. If this process works, and it often does, you can help create a valuable governing body member.
• Enlist an ally or two. When you’ve met with a difficult member to no avail, then the next step is to try the “two-on-one” approach. Is there a mutually trusted individual within the community whom you can recruit to help in the conversation? Perhaps the mayor can fill this role if perceived as fair by the new member. Again, this is a time to listen and let your partner probe. It is a time to educate and inform, not to threaten or issue ultimatums.
If this approach does not work, then the “more” component may be needed. More is simply more. Typically the new member is influenced by two or three or four individuals. Often in the face of wise counsel from others besides the administrator, the new member will put forth or accept a compromise without tagging the administrator as an obstructionist.
For this approach to be successful, you need to
▪ Assure the member that you work for the council as a whole and intend to follow its majority direction expeditiously.
▪ Be as responsive and transparent as possible.
▪ Stay calm and recognize it isn’t personal. The member would be acting this way irrespective of who sits in the manager’s seat. ▪ Make sure your staff is truly prepared. If this means practice sessions, extra packet review, or utilizing more senior members for council appearances, be willing to invest resources in flawless presentations.
▪ Reach out even more. If this means a special one-on-one review of the agenda, it would be worth it to protect staff.
Agenda Item #5.1.
Not long ago, a city manager friend told a story about the candidate who used an employee union-sponsored forum in a neighborhood community center to announce his pledge to double the number of youth sports fields in the adjacent park within the first year of his term. Unbeknownst to the candidate, of course, additional fields were an impossibility in that location due to local and federal floodway regulations.
The staff members’ hope that this pledge would be quietly forgotten was dashed when at the swearing-in ceremony, the now newly elected official reiterated it on live TV and gave a “first 100 days” list to the city manager.
In trying to educate the new member about the regulations, my friend was told, “I gave my word on this one. You are either with me or against me. It’s a litmus test. What’s it going to be?” Fortunately my friend used the just-described “one, two, more” approach for this difficult conversation, starting with a one-on-one meeting to communicate that his goal is to help the council member be successful within the confines of the rules and resources available.
Ultimately the manager invoked the “more” component. To repeat: More is simply more. Ideally, there are two or three or four individuals who can exert influence on the new member.
It was at this stage that my friend’s new official finally accepted the fact that the fields couldn’t happen where he had envisioned, and he opened up to the possibility of a bond issue for parks, which ultimately passed!
SIDEBAR
THE ONE, TWO, MORE COMMUNICATION APPROACH
102 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA ▪ Determine if there are individuals or institutions in the broader community who might be influential with the inquisitor and approach them for assistance.
▪ Remain professional at all times. While it is tempting to use the inquisitor’s tactics against him, that simply reflects badly on the manager, the staff, and the community and emboldens the questioner. ▪ Be patient. The emotional energy required to behave as an inquisitor and the lack of substantive response often result in short tenures for disruptive members.
▪ Respect democracy. Like it or not (especially not!), the inquisitor is elected and must be accorded the respect of the office.
Extreme cases of council members who cross a code-of-conduct—and even legal—line do, unfortunately, exist. One such instance is presented in detail in the case study (“[Year 2002] Councilmanic Interference: When a Council Member Crosses the Line”) at the end of this chapter.
Agenda Item #5.1.
Copyright ®2016 ICMA When Things Go Wrong 103
Undermining by Staff
As a new manager one of your first challenges is to gain the support of your own staff. While the vast majority of the senior team members you might encounter are professionals in their own right, and recognize the legitimacy of the selection of the administrator by the governing body, occasionally a member of your own team will be the source of pushback or even outright insubordination. This can take the form of subtle behaviors or, if the staff member feels emboldened, out-and-out overt disobedience.
These individuals may approach one or more council members directly, leading to the manager being taken by surprise by those members. These back channels can be ripe for incorrect or incomplete information, again leading to discomfort for the manager.
Here are some steps you can take to create an environment supportive of open communication and trust at the same time that it does not accept destructive or irresponsible behaviors.
• Build rapport. Beginning immediately after taking the reins, reach out to each staff person, connecting with them personally and helping them understand how the administrator operates is always one of the first orders of business when newly appointed. Continuing to communicate values, levels of performance expected, and support provided is also critical—especially since initially the new administrator is likely “drinking from the fire hose” trying to get to know the community and the governing body as well as the staff.
• Respect legitimate professional disagreement. Since professional staff members are often highly trained and highly skilled in their fields of expertise, it is critical that their recommendations and positions be fully appreciated. Even if the administrator has a background as an engineer, planner, or public safety professional, disagreements about a recommendation or direction need to be addressed early on and fully discussed. Helping staff appreciate that it is okay to disagree internally up until the manager conveys a final direction helps keep everyone in the conversation and legitimizes their contributions.
• Convey expectations. Staff members need to know that the team moves forward together and that the administrator will support them in difficult times. They also need to know that after all the conversations, debates, and disagreements, once a decision is made on how to proceed, they are expected to be fully on board. This is very similar to the administrator’s commitment to the governing body that once a vote is taken, the administrator fully supports the majority position. The administrator needs to be clear that no exceptions to this behavior will be tolerated.
• Hold staff accountable. The old adage that the behavior you tolerate from your weakest member becomes the standard for all members continues to be true. If the administrator allows any member of the team to act in a manner contrary to the team, then all other members of the [Staff] also need
to know that . . .
once a decision
is made on how
to proceed, they
are expected
to be fully
on board.
Agenda Item #5.1.
Change is hard, and most managers have experienced the worry on the part of their new staff team when moving to a new community. “Is my job on the line?” “Will there be a reorganization?” “Will I lose stature?” are all common concerns. “Will you finally address the misbehavior of one of the team members?” is less common, certainly less verbalized, but perhaps even more closely watched.
One manager put it this way: “While doing my first-month workplace visits and conducting my first series of staff meetings, I was struck by the aggressive behavior of one of the senior members of the team. The fact that this individual was in charge of our large utility operation had given him great influence, and while he was technically competent, I was extremely put off by his personal behavior.
“After several meetings trying to ameliorate his abrasiveness (and in my view, his bullying), I finally gave him an ultimatum, ‘my way or the highway.’ “The individual chose to leave, and we did it professionally and even cordially.
You could almost feel the collective sigh of relief from the department, and even from the other departments.
“One of the key staff members stopped by my office to share that he was enjoying his job more than he had in years and remarked, ‘We had been treated that way for so long, we had forgotten what it was to be respected.’”
SIDEBAR
ADDRESSING PROBLEMATIC SITUATIONS OR INDIVIDUALS
104 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA team wonder if the administrator really means what he or she says. This may require being willing to confront a bully or a passive-aggressive individual, and when such confrontation is necessary, it is better to do it sooner rather than later.
• Sever dysfunctional relations and bad matches. Sometimes, after all the conversations, team building, and accommodations, it becomes clear that the “fit” with a staff member simply isn’t there. To protect the integrity and unity of the team, it is simply necessary to acknowledge this and move on professionally. While each community is different, this may simply mean giving the staff member the opportunity to find another position, negotiating a severance, or at the end of the day terminating her or his employment.
None of these options is fun, and can be hugely stressful for all involved. Nonetheless, when a bad situation is allowed to linger, the cancer can spread to other parts of the organization. People start taking sides, and Agenda Item #5.1.
Copyright ®2016 ICMA When Things Go Wrong 105
if no action is taken, the team can actually cease to be one, with people retreating into silos or building their own safety zones.
While a generalization, and so subject to the errors of generalizing, most people in the organization will prefer clearly communicated decisive action, even if they disagree with it, over the confusion and misunderstandings associated with tolerating insubordination.
The Organizational Misstep
Despite all best efforts, mistakes are sometimes made. In fact, with the rate of innovation necessary to be successful in local government today, mistakes are inevitable. They need to be mistakes of good intention, not ineptitude, reflective of a desire to serve and certainly not malfeasance. The key to surviving and even getting stronger through mistakes is to acknowledge them quickly, determine what went wrong, adjust the behavior or the system, and rectify them if possible.
Hiding, obfuscating, or denying mistakes is a recipe for disaster. Presume that all will be known eventually, likely on the front page, as it were.
Your best bet is to get out ahead of the ugliness and deliver the bad news yourself. The governing body and the community may still be angry, but they at least will not feel betrayed. As contrary as it sounds, the administrator often gains, rather than loses, respect by being willing to acknowledge mistakes.
The message becomes that innovation requires risk taking. Not wild gambles but calculated risks. For innovation to occur, staff must risk money, other resources such as time, and their reputations. Most importantly, they must risk mistakes and likely criticism. Staff will not innovate when any misstep or mistake is criticized by top management or elected officials.
Instead, they will try to make any recommendation or proposal perfect with no chance of failure before trying it out. Unless the administrator can create an environment that encourages “smart risks,” there will be little if any innovation regardless of how much innovation is desired by the council. (See “Strategies to Help Board Members Support Smart Risks” sidebar in the chapter on governance.)
The CEO Risk
Trust is a foundational component of leadership. Author Stephen Covey’s concept of an “emotional bank account” remains valid. His concept is about cultivating the habit of always doing the right thing no matter the circumstances in order to make deposits into a “trust account.” That way, when something challenging happens, you have earned the right to the benefit of the doubt.
In local government so many things can go wrong: a bad law enforcement encounter, a missed test for environmental compliance, a critical audit, an internal theft, an organizational misbehavior. It is always painful to admit that results were less than hoped for or that a member of the team As contrary as
it sounds, the
administrator
often gains,
rather than
loses, respect
by being willing
to acknowledge
mistakes.
Agenda Item #5.1.
106 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA transgressed a boundary, but doing so quickly and voluntarily keeps the rumor mill more quiet than it would otherwise be, and it sets the foundation that the administrator has nothing to hide.
In fact, in local government administrators can become embroiled in controversies absolutely not of their own or the organization’s making.
Weather disasters, mass casualty events, diversity issues, economic issues, indiscretions by governing body members, and other types of calamities somehow seem to find their way to the administrator’s doorstep.
Almost always, openness is the best course of action. If indeed the local government mis-stepped in its behaviors or in its response to another’s behavior, being fully forthcoming often calms the storm. The governing body, the media, the stakeholders, and affected parties can see the transparency for themselves.
Admittedly being open is not always the first choice of your advisors.
Sometimes the legal team or law enforcement team will advocate to maintain confidentiality, and this must be judiciously evaluated and respected.
However, when facts are not shared, fabrications are often made, and rarely to the benefit of the administrator or organization. Unless it is absolutely illegal or imprudent to do so, being transparent often short-circuits the rumor mill or media frenzy.
Additionally, communicating relentlessly is even more important in the face of crisis or disaster. Governing body members have an inherent aversion to being surprised with information from other sources, so you must keep them fully in the loop. Remember that anything written can be (and likely will be) shared, so if it is indeed confidential, verbal communication is best. Don’t sugarcoat or make excuses. Provide facts, timelines, and courses of action and address questions. There will be time later to assign blame; the key at this juncture is to address what can be addressed, deal with the immediate, and mitigate damage.
Being Placed in Transition
Being in transition is one of the unpleasant components of our profession.
Whether it is a governing body change, a difference in styles, or being made a scapegoat, sometimes an administrator is forced to move on.
Ideally a previously negotiated employment agreement is in place that sets forth the parameters of such a transition and, also ideally, the governing body is willing to honor the agreement. ICMA is a prodigious resource for these agreements (see ICMA’s Model Employment Agreement). Colleagues in your state or region are also great resources for what is common or acceptable in agreements in your distinctive geographic (and political) environment. Most are very willing to share their agreements (likely they are public information anyway) and, more importantly, to tell the stories associated with negotiating key provisions.
Almost always,
openness is the
best course
of action.
Agenda Item #5.1.
Copyright ®2016 ICMA When Things Go Wrong 107
Additionally, several states associations (e.g., the Texas City Management Association) maintain relationships with legal counsel who are well versed in public agreements and can be counted on to advise their members.
When faced with transition,
• Always take the high road. Anything said in anger or in hurt will likely be regretted later, so stay generous in your comments and your behaviors.
• Take care of your family. Spouses and children, parents and friends often become collateral damage in transitions. They have little to no control and feel the same anger and fear that the administrator does, without the ability to impact the circumstances. Make sure you are communicating as much with them as you ever did with your governing body. Demonstrating your confidence (even if you don’t feel it yourself) while acknowledging honestly the challenges helps alleviate their anxiety. • Reach out to colleagues. No one can appreciate your circumstances as much as someone who has traveled your path. While it may seem that “everyone knows,” the fact is that everyone is as busy with their own lives and communities as you have been, so they may in fact be surprised—and chagrined—that they did not know and had not reached out to you.
• Utilize the services of ICMA. This is the time to be more open to assistance, not less. Attending a regional summit or ICMA’s annual conference is a way to recharge batteries, reconnect with the underlying mission of local government, and expand your network.
You can also expand your network by actively engaging in the Knowledge Network.
• Accept the phone calls of folks you don’t know. Again, the natural tendency after an upset of this nature is to withdraw or become reclusive. The profession has formal resources (senior advisors, managers-in-transition programs, etc.) and also informal ones. Many members provide short-term opportunities, paid and even unpaid, that keep you in the loop, fill voids in resumes, and help you feel productive.
These may in fact come from folks you do not know but who are in your circle of influence.
• Stay focused on your job—which is getting another job. Again, ICMA has multiple career resources to assist you in this arena.
Local government administration is a noble calling, even when things seem to be going wrong. It is in the face of truly difficult challenges that you can best model the behaviors that set professional managers and administrators apart. In order to fulfill your calling, build trust and be trustworthy.
Never compromise your ethics for expediency. Communicate relentlessly.
Be transparent. Practice patience. Be persistent and predictable in your pursuit of excellence. Recognize that as painful as it is, you do serve at the No one can
appreciate your
circumstances
as much as
someone who
has traveled
your path.
Agenda Item #5.1.
108 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA pleasure of the governing body and that upsets do occur. Reach out to your colleagues. Make the most of the services of ICMA. Stay positive.
In many cases things will work out. Even if they don’t, observers will look at your behavior and recognize the professionalism!
CASE STUDY
[Year 2002] Councilmanic Interference: When a Council Member Crosses the Line
By Kevin C. Duggan
Adapted from the July 2006 issue (volume 88, number 6) of Public Management magazine, a special issue edited by John Nalbandian and Shannon Portillo. Copyright © 2006 by ICMA. Duggan was the city manager of Mountain View, California, when he wrote this case study.
2006 Nalbandian/Portillo comment: This article reflects the core strength of council·manager government and the ethical commitments of professional local government managers. . . . We highlight two points in this article. First is the enduring obligation of a professional city manager to promote good government. Second, we see in Duggan’s strategy the way the relationship between the manager and the council has evolved into a partnership. Although Duggan took the lead, the council’s support—even if silent—cannot be discounted.
Of all the things I thought I would encounter in my career, testifying in front of a grand jury and then a superior court jury on the history and purpose of the council-manager form of government and on how a council member had violated it, was not one of them. This is the story of a city manager dealing with one of the most challenging professional experiences imaginable—reporting a council member for misconduct.
Those of us who have chosen the profession of local government management recognize that establishing and maintaining effective working relationships with council members can be among our most important and challenging responsibilities. I never anticipated, however, that the issue of a council member’s attempts to thwart the principles of the council-manager form would become one of the toughest episodes in my own professional life.
Any of us who have been in this business for any length of time have encountered a few council members who choose to “push the envelope” in influencing the administrative/management side of local government.
Always, I have tried to avoid the politicalization of basic local government services while understanding that council members must be informed about and relate to some of the nonpolicy aspects of governing.
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In most cases, we can find a reasonable balance. Even when a council member clearly crosses over into the area of a n inappropriate attempt to influence staff’s administrative responsibilities, the issue can generally be resolved through the manager’s diplomatic yet clear explanation of the problems being caused. Often, council members do not fully understand the impact that they are having on staff and will commit themselves to taking a different approach once they do. I also believe that most of us in our profession pride ourselves on helping council members succeed in their roles and “keeping them out of trouble” when necessary.
This story is about what happened when the above-noted techniques did not work and a manager was faced with a tough choice between undesirable options. In this particular case, the impasse resulted in a decision by the city attorney and myself to report a council member’s (the then-mayor’s) misconduct to the district attorney. And this move eventually resulted in the council member’s removal from office.
A byproduct of the decision was an attempt by this council member and his attorney to put the management of the organization on trial, together with, effectively, the council-manager form of government.
The Problem
While issues concerning the council member’s conduct came to a head early in his second four-year term, problems with his conduct manifested themselves earlier in his tenure.
Understanding that Mountain View is in the middle of Silicon Valley but that the community’s heritage is farming, it’s helpful to know that the difficult council member came from a longtime local farming family, had longstanding ties to the community, and ran on the platform that he would be a “neighborhood cou ncil member.”
Though he had a rather direct interpersonal style, the first year or two of his first term were without major stumbling blocks. Then, a series of increasingly problematic behaviors brought the “councilmanic interference” issue to a peak during the latter part of his first term and the early part of his second term.
Among the behavior patterns and actions that were problematic were:
• Directly contacting staff at various levels of the organization suggesting, and sometimes demanding, certain things be done or not done. • Displays of anger and temper directed at staff members at various levels of the organization.
• Attempting to influence code enforcement activities on properties near his home, including some properties he wanted to buy for personal or family financial gain.
• Communicating the clear expectation that he was entitled to rights and privileges above and apart from other residents because he was “a member of the city family.”
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110 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA Among the incidents that got the most exposure in the press, once the grand jury had issued “accusations” in this case, were these:
• A demand that the police chief be fired for not giving him advance warning of a search warrant to be served on his home as part of a criminal investigation of a family member.
• An order to code enforcement staff to pursue action against a neighboring property owner whose property he wished to acquire. • Refusal to pay for the replacement of a fire hydrant destroyed by a family member, and outrage displayed when he was billed for the damage. • Numerous questionable city-charged expenses, including the purchase of a $700 tuxedo.
• A confrontation with the building official, in which the council member demanded that a multimillion dollar, private construction project be shut down immediately because he thought the construction crane being used was unsafe and that the developer was too influential in the community.
As if the actions described above were not enough, the incidents that brought the interference issue to a crisis were his demands that staff block the development of a property he wished to acquire, immediately adjacent to property already owned by his family. He made it clear that he would see to it that both the planning director and I would be fired if the project were not blocked.
The conclusion that the situation was hopeless came when he asked me into his office one afternoon (while serving his one-year term as mayor) and told me that conditions needed to be placed on the development of the property in question. His aims were to discourage the current owner from proceeding, to lower the value of the property, and to increase the likelihood that the property owner would be willing to sell to him! Interestingly enough, this meeting took place just four hours before my annual council performance evaluation. The implication was clear: how I responded to his demands would influence his approach to my performance evaluation.
Investigation and Trial
Throughout the period of this conduct, both the city attorney and I met individually with this council member many times in attempts to correct and modify his behavior. At first, we hoped that our efforts to inform him of the problems and likely consequences of his conduct were succeeding.
In one case, when his belligerence had been directed at another council employee—the city clerk—the council was informed of his conduct and intervened to prevent a recurrence.
I even used my closed-session performance evaluation meetings as opportunities to express to the council the increasing need I felt to take action over the improper conduct of a council member because of the impact his behavior was having on my ability to carry out my responsibilities.
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My goals were to modify the behavior and specifically to protect staff from his attempts to influence their work through confidential, one-on-one meetings. (He recognized the damage that would accrue to the city, the council, and the staff if the matters discussed in the private meetings had to be dealt with publicly.)
Reporting the Conduct
When it became apparent that his inappropriate behavior was escalating, that it had crossed legal lines, and that staff could not be shielded from his conduct, the city attorney and I concurred in a decision to report the conduct to an appropriate authority, regardless of the consequences. While we understood that it was not our role to determine what should be the outcome of any investigation, we felt we were obligated to disclose that the conduct was occurring.
The city attorney and I expected that the day would come when we could not adequately mitigate this conduct. We believed our recourse would likely be to report the conduct to the rest of the council. Because the conduct had become so severe and the legal implications so serious, however, we decided that referring the matter to the district attorney was an option that needed to be considered.
One of the drawbacks of referring the matter to the council was that this move would require that accusations be made public prior to an independent investigation. Because of the “sunshine” laws in California, the council would have to consider the allegations in open session.
Additionally, any such investigation begun by the council would likely have been seen as politically motivated by this council member and his supporters. After consulting with two other council members and the vice mayor (because the council member in question was mayor), we decided that the city attorney would consult with the district attorney of Santa Clara County.
Each council member, including the mayor, was notified of this referral.
District Attorney Investigation
Based on his independent review of the facts, the district attorney chose to investigate the matter. Surprisingly, during the five-month investigation, this activity did not leak to the press. Needless to say, we found it extremely awkward working with the mayor during this period; also, many city employees had to be interviewed by a district-attorney investigator as part of the probe.
While the district attorney considered filing criminal charges on a number of counts, he finally determined to charge the mayor under a little-known and rarely used provision of California state law that provides for the removal from office of an elected official for misconduct. This procedure requires that a grand jury find sufficient basis for “accusations” to be filed against the elected official, then for a superior court jury to find the elected official guilty on the same standard of proof as required for a criminal conviction (unanimous agreement “beyond a reasonable doubt”).
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112 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA Grand Jury Proceedings
What followed were the closed grand jury proceedings, which involved the testimony of several city employees. In my case, testimony included an extensive explanation of the council-manager form of government and its adoption in the city charter.
One month later, the grand jury issued its “accusations” against the mayor for corruption and willful misconduct. The grand jury transcript also was released, detailing all the instances of misconduct. Next came a media frenzy that covered the entire San Francisco Bay area. Living through this media blitz and being personally featured in the coverage were unpleasant experiences for me and for other staff members.
Council Member’s Accusatory Defense
Anticipating the action of the grand jury, the mayor already had hired one of the most high-powered defense attorneys in Santa Clara County, who immediately began his media campaign to question the motivation of the mayor’s chief accusers, namely, the city attorney and myself. The mayor also had used the period of the investigation to prepare his key supporters to take the offensive. The “spin” was that the city manager and city attorney were out to “get” the mayor for a variety of reasons, ranging from our desire to control city government to our fear for our jobs, as he claimed that he had been critical of our performance. However, no such criticism was ever evident to us, either within or outside the context of our annual performance evaluations.
Of particular note was the premise of the defense attorney that, since council-manager government did not allow this council member to directly intervene in the organization on behalf of his constituents, he could simply ignore the city charter and its council -manager provisions in order to address citizen concerns.
This attorney also suggested that, since some communication and contact with city staff are permitted, primarily to respond to routine inquiries, there had been no clear demarcation line to determine “councilmanic interference.” Meanwhile, the mayor was able to pack one council meeting with supporters who made it clear that they felt he was being unjustly prosecuted.
For the first time in my career, I had members of the public saying the city attorney and I should resign for overreacting to the mayor’s behavior. Not only was it evident that the mayor was not going to resign, but also that he was going to fight the charges vigorously and accuse his accusers in the process.
Media Blitz
For a manager who prefers a low-profile approach to city management, this was quite a turn of events. What ensued was four months of media coverage leading up to the public trial. Having my own integrity and job security challenged in the media by the mayor’s attorney and supporters was to me particularly frustrating. The councilor’s (through the normal rotation proAgenda Item #5.1.
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cess, he was again a council member at the time of the trial) legal defense strategy was to put his accusers on trial.
During the lead-up to the trial, it was important to me that the matter not become too great a distraction from the organization, or a significant impediment to the work of the city. I needed to avoid appearing distracted and preoccupied if city staff were to continue to function effectively. Also, the ci ty attorney and I had to deal with the anxiety of staff members who were subpoenaed to testify at the trial.
The trial started off on a less-than-positive note, with the district attorney needing to drop three of the four accusations (counts) brought against the council member relating to the property conflict of interest. Bizarrely, it was determined that the defendant did not “technically” have a conflict of interest relating to his family’s property (even though he and his family lived there) because it was held in trust by his father.
Form of Government on Trial
The lone remaining count was violating the city charter by interfering with the responsibilities of the city manager. Therefore, in actuality, the council-manager form of government, and how it functioned in Mountain View, were put on trial. Testimony stretched out for more than two weeks and was covered daily in the media. To say that this was a stressful period is an understatement.
Testifying on the history and purpose of council-manager government was certainly one of my most interesting professional experiences. The case clearly became a testing ground for the principles and values inherent in the form. Specifically, it was a testing ground for our professional obligation to shield city staff from political interference and demands for special treatment by an elected official.
The defense attorney attempted to make the case that any council member contact with city staff that was condoned by the city manager “opened the gates” for his client’s conduct.
More personally, I had the unique experience of being cross-examined about confidential memos I had submitted to the council during my own annual performance evaluation. Also, to counter misinformation from the defense, I took the unusual step of giving the district attorney my most recent performance evaluation to present to the jury!
The Verdict
At the conclusion of the testimony, the wait for the verdict began. After almost four days of deliberations, the jury returned a verdict of “guilty of misconduct in office.”
Newspaper editorials called the verdict a “victory for honest government” and suggested that this council member was lucky not to have been criminally prosecuted. Ironically, the main reason he was not being prosecuted in this way was his lack of success in getting city staff to do what he Agenda Item #5.1.
114 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA wanted. So, in effect, we had saved him from being more legally liable than he would otherwise have been.
Some of his political supporters continued to defend the council member, claiming he had been convicted only on a “technicality.” In a further attempt to make public relations points, the council member resigned one day before the superior court judge was scheduled to sign the removal-from-office order. The judge, however, refused to acknowledge the resignation as sufficient and issued the removal order anyway.
Lessons Learned
For both the city attorney and myself, opting to publicly accuse a mayor/ council member of misconduct was one of the hardest decisions of our professional lives. In advance, we knew that this course of action would be difficult and professionally risky. On the one hand, we felt we had no other choice consistent with our professional ethics, but, on the other hand, we realized that the consequences of our action were likely to be significant for the community and for ourselves. While this move was difficult to make, we concluded that we had to act.
Al though we as individuals were willing to put up with this council member’s threats and attempts at intimidation as long as we could block his efforts, when it ultimately became evident that we could no longer fulfill our obligations to the council, staff, city charter, and community without disclosing his behavior, the appropriate course of action became inescapable (regardless of any personal consequences). We saw clearly that the staff could no longer be shielded from his conduct and that we must inform the council that one of its members was acting in a manner not consistent with their stated values, with the city charter, and, most likely, with state law.
The most difficult aspect of these types of situations is determining when the problematic conduct has gotten to the point where there is no alternative besides public disclosure.
Looking back on this experience, we would offer the following observations:
• Recognize that it can be extremely difficult to determine when your personal intervention with a council member has not been sufficient to fulfill your professional and ethical obligations to your organization and community.
• Don’t underestimate the ability of a core group of supporters to rationalize the behavior of “their guy” and to take the offensive on his behalf.
• Clearly understand at what point you must disclose illegal/unethical conduct, even though you may not play a role in determining the appropriate remedy for the conduct.
• Appreciate that our ultimate responsibility as managers is not to individual council members, but to the council as a whole and to the employees of the organization, the community, the ethics of our Agenda Item #5.1.
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profession, and the laws governing the form of government in which we serve.
• Understand that attempts to establish reasonable flexibility in setting administrative/policy boundaries can later be attacked as removing all such distinctions.
• Appreciate that the value of having a strong working relationship with your city attorney cannot be minimized.
• Develop a mature understanding that doing what is right will often not be easy, may subject you to personal attack, and may have negative personal and/or professional consequences.
• Recognize that, although they probably won’t be as vocal as your critics, many members of your community will have increased confidence in you and in the organization for your willingness to confront unethical behavior.
• Realize that acting ethically will result in local government employees’ acknowledgement of your willingness to “walk the talk” in regard to principled conduct.
Conclusion
Fundamental to our service to our communities and our professional values is the need to consider thoughtfully when we as managers are morally, ethically, and/or legally required to confront misconduct. While our primary goal should be to educate those we work with to prevent misconduct, this priority does not absolve us of an obligation to take more drastic action if we are unsuccessful in preventing it.
Our greatest risk is the potential to rationalize that we don’t really need to take action when confronted with the negative consequences of doing so. We need to reflect seriously and carefully on this point if we are to be prepared to act.
As we have heard over and over recently in relation to corporate and organizational scandals, the leaders of organizations should be held accountable to answering three questions when illegality or corruption is exposed:
• What did you know?
• When did you know it?
• What did you do about it?
If we are to strive to be leaders of ethical organizations, we must be prepared to respond to these questions. As difficult as my experience was, it meant a chance for our organization to prove its commitment to the values we espouse. And, to say the least, it furnished some unusual and unexpected forums in which to explain the structure and value of the council-manager form of government.
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KEY NOTES
• The simple fact is that when you live your life in the fishbowl of public administration, sometimes things just don’t work out the way you want them to.
• The “bad behavior” (i.e., behavior counter to the goals and culture of the board or council) of even just one council member has a tendency to negatively impact the other members of the governing body.
• Ideally, the mayor or the most senior or most influential member of the council can take the offending council member aside and help that person see “the good governance light.”
• In reality, though, often the brunt of the challenging behavior is directed at the administrator and/or staff, and so logically some of the intervention does involve the chief administrator as well. • Interest-based negotiating teaches you that it is always valuable to look beyond the words used by a difficult council member to try to understand what that person truly hopes to gain or accomplish.
Getting past the bombastic rhetoric to desired outcomes is often a path to accommodation.
• If the administrator allows any member of the staff team to act in a manner contrary to the team, then all other members of the team wonder if the administrator really means what he or she says. • When a bad situation is allowed to linger, staff members start taking sides, and if no action is taken, the team can actually cease to be one, with people retreating into silos or building their own safety zones. • Innovation is necessary to be successful in local government today, so of course mistakes are inevitable. The key to surviving and even getting stronger through mistakes is to acknowledge them quickly, determine what went wrong, adjust the behavior or the system, and rectify the mistakes if possible.
• As contrary as it sounds, the administrator often gains, rather than loses, respect by being willing to acknowledge mistakes. • Unless the administrator can create an environment that encourages “smart risks,” there will be little if any innovation regardless of how much innovation is desired by the council.
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• In local government, administrators can become embroiled in controversies absolutely not of their own or the organization’s making. Almost always, openness is the best course of action. • Having an employment agreement in place prior to any kind of transition is a level of protection that all managers need. • In keeping the governing body members well-informed about emerging problems, if the information you need to share is confidential, remember that anything written can be (and likely will be) shared, so verbal communication is best.
• Communicating relentlessly is paramount in the face of crisis or disaster.
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Copyright ®2016 ICMA “May the Force Be with You”: A Set of 12 Best Practices in Council-Manager Relations 119 Chapter 8
“MAY THE FORCE BE
WITH YOU”: A SET OF
12 BEST PRACTICES IN
COUNCIL-MANAGER
RELATIONS
Mastering the essentials
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I
f you find yourself at this chapter, you have either been a faithful reader or, like an impatient reader of mystery novels, you’ve skipped ahead to the end. In either case, we want to send you off with some final thoughts on how to maximize the potential of a great working relationship with your elected officials. Enjoy the list!
1. Always Have Time for Your Elected Officials: It will be a big problem if elected officials don’t feel important or valued by the manager.
Elected officials don’t run for office to feel ignored. It is easy to underestimate how much elected officials look to the manager for cues in regard to how they are valued. With all the demands on the manager’s time, it is easy to find it difficult to be available as often as some elected officials would like. Make it a priority to be available and responsive to your elected officials—it is much more important than you might think. Always ask each of them individually how much and how they want and like to be communicated with. Listen to both their verbal and nonverbal (i.e., body language) response.
2. Help Your Elected Officials Become Better Policy Makers: Make it easier for elected officials to stay focused on what they are supposed to do. “Making policy” is not easy. Few elected officials come to their roles with the knowledge and skill to do so effectively. It is frankly easier for them to help you do your job than to do their own. And since they all were elected to “do something” if not busy working on policy issues, they will gravitate to more administrative areas. So help your newly elected officials learn what policy making is all about and how to go about doing it. Create structures (strategic plans, general plans, policy development, legislative goals, etc.) that help them do meaningful work in their area of responsibility—decreasing the odds that they will gravitate to help you do your work since they are not finding meaning in their roles. Help them find “early wins” in their arena and they are more likely to stay in it.
3. Have Clear Communication and Understanding Regarding Your Council’s Expectations: You can’t meet their expectations if you don’t know what they are.
While sometimes time-consuming and challenging, it is critical for the manager to have a clear dialogue with elected officials about their expectations concerning the manager’s performance. A meaningful conversation on this topic can occur during performance evaluations or in some other setting. Having an understanding with your elected officials that they will “let you know if there is a problem” is not sufficient. You need to proactively seek input and feedback so that you can better understand their expectations of you before you run into issues with your performance not matching their expectations. 120 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA . . . help your
newly elected
officials learn
what policy
making is all
about . . .
help them do
meaningful
work.
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4. Never Compete with Elected Officials for Public Recognition or Attention: You get paid—let the elected officials have the limelight.
By and large elected officials work very hard for relatively little, if any, compensation. One of the major “rewards” for their service is public recognition for organizational success. It is often too easy for the public and/or press to focus on the manager as the reason for organizational/community success. While it is quite natural to be tempted to accept such praise (particularly if it is well deserved), the contribution of the council (and often staff) should be emphasized.
Councils are fully cognizant of what their professional managers are paid for their work. It follows, then, that council members expect the manager to make sure they get the “compensation” of public recognition.
5. Implement City Council Decisions Faithfully: It doesn’t matter whether you like the decision; it’s yours to implement.
We should all know that the nature of our local government democracies dictates that the will of the people is discerned by the elected body. Whether right or wrong (at least from your point of view), councils have the right to make those decisions. While you can appreciate your obligation to carry out the will of the elected officials, you can sometimes do so halfheartedly or with little enthusiasm.
If you do so, it will be noticed and will not be appreciated. Your professionalism requires you to implement decisions you disagree with as effectively as decisions you recommended (and this also helps avoid you and the staff being blamed for any lack of success resulting from the board’s decision).
6. Do the “Small Stuff” Well So That Your Elected Officials Can Trust You on the “Big Stuff”: Pay attention and remember what is important to your elected officials.
It can be tempting, quite understandably, to put a low priority on what we perceive to be low-priority issues raised by council members (often on behalf of constituents). Whether it’s a pothole to be filled or a street tree to be trimmed, it can be frustrating to feel pulled away from “higher priority” responsibilities. However, the more effectively you and your team respond to these “small things” (particularly since these will never seem to be minor concerns to elected officials or one of their constituents), the more credibility you and the organization will establish with your elected officials. It increases the odds that when a significant or complex issue is before them, the elected officials will have confidence in your recommendation. However, if you have not demonstrated the ability to get the “small stuff” accomplished, elected leaders may not trust you and the staff when the “big stuff” rolls around.
Copyright ®2016 ICMA “May the Force Be with You”: A Set of 12 Best Practices in Council-Manager Relations 121 Your
professionalism
requires you
to implement
decisions you
disagree with
as effectively as
decisions you
recommended. . . .
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7. Always Maintain Your Professionalism: If you ever make it personal, watch out!
It is inevitable that you and your elected officials will at times not agree on a course of action. As long as such disagreements remain at a professional level, little damage is usually incurred. However, if such disagreements ever degenerate into what appears to be personal animosity, the ability to maintain an effective relationship is greatly compromised. Even when provoked, do your best to never appear to personally have a problem with your elected official (versus viewing a policy question from a different perspective). Once your elected official believes it has become personal, that perception is very hard to overcome. Treat your least supportive member just as you would your most supportive one, and he or she might just become it!
8. Be Realistic About “Management vs. Policy”: Avoid “I want to play in your yard, but you better not play in mine.”
The need for managers to withstand the efforts of elected officials to become directly involved in the management of the day-to-day operations of the city is clearly understood. However, the line of separation can be blurry. It is also clear that leaving the council completely in the dark regarding what is occurring within the organization can lead to serious issues for the manager. Additionally, it is certain that the manager (via recommendations and the like) will influence policy positions. If the manager is going to influence policy, she/he must be willing to find balance in terms of allowing elected officials some reasonable understanding of what is happening administratively in the organization.
9. Present Facts and Information Accurately and Completely:
Avoid spinning at all costs.
It is completely understandable to become “invested” in your recommendations to your elected bodies. While, fortunately, few in our profession would intentionally mislead the elected bodies to achieve a desired outcome, it is possible to do so inadvertently. Not presenting all legitimate options or not completely and fairly identifying the pros and cons of options can be tempting when you are convinced regarding what direction the council should take. Never forfeit your credibility by appearing to overly influence a decision by not presenting all the relevant facts in a clear and unbiased fashion.
10. Be Realistic About the Number and Types of Issues You Ask Your Council to Tackle at One Time: Don’t try to take on everything at once.
When we know that there is much work to be done, it can be tempting to bring many issues forward in close time proximity. Whether it Never forfeit
your credibility
by appearing
to overly
influence a
decision. . .
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is at one meeting, or a series of meetings in close proximity, it is easy to overload councils with either too much workload or too much controversy. This can lead to poor decision making, and even resentment. Sometimes bad decisions result when a different sequencing of issues or more time to consider the topics could have resulted in a more positive outcome. Don’t overload your councils with work or controversy—timing can be everything!
11. If Elected Officials Don’t Trust Your Honesty and Integrity, Nothing Else Matters: Establishing and maintaining trust must be your highest priority.
Many factors can impact the success you have in establishing and maintaining a successful working relationship with your elected officials. None is more important than trust. If your elected officials don’t trust you to be honest and straightforward with them, nothing else matters. You can be the smartest or most skilled manager around, but without trust, little else matters. Never squander that trust by what you do or say. Mistakes can usually be forgiven, violation of trust usually cannot.
12. Every Time Your Council Changes, Your Job Becomes New Again:
Never take the relationship for granted.
Most managers taking on a new job, especially first-time managers, take nothing for granted. They actively seek input and feedback. They work hard to develop a strong relationship with the council as a whole and with individual council members. The longer you serve in these roles, the more casual you can become in regard to establishing and retaining a positive working relationship. Assume, because it is usually true, every time your council changes it becomes a “new job” for you.
Don’t forget how you acted (and took nothing for granted) as a new and/or first-time manager. Never take the relationship for granted, even if your council doesn’t change.
Final Final Word
It no doubt came as no surprise that a good deal of this book deals with the unique challenges of being a CAO in local government, and in particular, the challenges that can arise in working with and for elected officials.
However, we are hopeful that you come away with a sense of how meaningful and important this work is as well.
Between the two of us, we have served as CAOs of local governments for several decades. Both of us feel incredibly fortunate to have been able to play the roles we played in our respective communities, and neither of us would trade the experience for anything. While we both have faced our share of challenging times, they were far outweighed by our positive experiences.
Copyright ®2016 ICMA “May the Force Be with You”: A Set of 12 Best Practices in Council-Manager Relations 123 Mistakes can
usually be
forgiven,
violation of
trust usually
cannot.
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124 Making It Work: The Essentials of Council-Manager Relations Copyright ®2016 ICMA It’s useful to keep in mind that there are challenging times in all professions and jobs. That is not unique to local government management.
However, with the challenges of our profession come a singular variety of experiences, an unusually high degree of meaningfulness in our work, and an important sense of satisfaction when we do our work well.
Congratulations on your decision to choose local government professional management as a career. While you work to overcome its inherent challenges, never forget the value and purposefulness of the work you do.
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RELATED RESOURCES
These links take you to online ICMA resources mentioned throughout this publication. In addition, ICMA’s Knowledge Network is an online focal point of thought, resources, expertise, and interaction related to all local government topics. Here you will find a learning community for local government leaders to exchange ideas and a place to disseminate best, leading, and emerging practices. You can explore the realm of council-manager relations through the “topics” pages featured in the Knowledge Network. • ICMA’s “Practices for Effective Local Government Leadership” • ICMA’s Life, Well Run program
• Steve Bryant’s article, “Council/Manager Relationships Revisited,” November 2015 Public Management
• 2015 survey of 250 California city and county managers • ICMA Manager Evaluations Handbook
• Ken Hampian’s May 2004 Public Management article entitled “Six Reasons Why It’s Best to Work Through the Manager” • ICMA Code of Ethics
• ICMA Voluntary Credentialing Program
• Senior Advisor Program
• Frank Benest’s online “City Managers Need Coaches Too” column (Career Compass No. 45)
• “Elected Officials” topic in the Knowledge Network
• Robert’s Rules of Order
• Resources available through national organizations: ICMA as well as the National League of Cities (NLC), the United States Conference of Mayors (USCM), and the National Association of Counties (NACo) • Model employment agreement
• Regional summits or ICMA’s annual conference
• ICMA Career Network has multiple career resources
• A collection of select articles from Mike Conduff’s Council Relations column in Public Management magazine. (Note: This is premium content available only to ICMA members.)
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Copyright ®2016 ICMA Item number: e-44010
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Vision and Mission Statements adopted by the City of St. Helena City Council on May 11, 2021, Resolution No. 2021-62.
City of St. Helena
Council Vision
St. Helena strives to be a diverse, inclusive, family-friendly, economically and environmentally sustainable community which prudently manages all of its resources, continues to improve its infrastructure, ensures its water security, provides a full range of housing, business, cultural and recreational opportunities and cherishes its historic, small-town character, beautiful natural environment and high quality of life.
Council Mission
The City of St. Helena is dedicated to serving its citizens by:
• Promoting a culture of equity, diversity and inclusion • Supporting thriving families and ensuring the health and wellbeing of our youth • Ensuring our long-term economic sustainability and focusing on new and diverse sources of revenue
• Preventing, preparing for, and mitigating fire and other local emergencies • Improving and maintaining City infrastructure
• Updating our water management policies to ensure an adequate water supply • Responding innovatively to climate change challenges and adopting environmentally sustainable best practices
• Preserving our historic, small-town, rural character
• Expanding recreational, active transportation and cultural opportunities • Facilitating innovative, well-designed housing for residents of all backgrounds, ages and income levels
• Encouraging full civic participation and ongoing communication • Strengthening regional collaboration with other public entities and building partnerships with local service providers and stakeholders Agenda Item #5.1.
CITY OF ST. HELENA
RESOLUTION NO. 2021- 62
Resolution rescinding resolution 2016-47 and adopting the City of St. Helena' s new Council Vision and Council Mission
RECITALS
A. On February 22, 2000 the City Council adopted resolution 2000-28 approving the current mission statement which is: " We will conduct city affairs on behalf of our citizens using an open and creative process'; and
B. On April 12, 2016, the City Council approved resolution 2016-47 approving the City's new Vision and Mission Statements; and
C. At the March 4, 2021 Goai Setting special City Council meeting Vice Mayor pohring and Council Member Hall agreed to collaborate on bringing forward a new vision and mission statement for the community; and
D. The new Council vision for the City of St. Helena is:
St. Helena strives to be a diverse, inclusive, family-friendly, economically and environmentaily sustainable community which prudently manages all of its resources, continues to improve its infrastructure, ensures its water security, provides a full range of housing, business, cultural and recreational opportunities and cherishes its historic, small-town character, beautiful natural environment and high quality of life.
E. The new Council Mission for the City of St. Helena is:
The City of St. Helena is dedicated to serving its citizens by:
Promoting a culture of equity, diversity and inclusion
Supporting thriving families and ensuring the health and wellbeing of our youth
Ensuring our long-term economic sustainability and focusing on new and diverse sources of revenue
Preventing, preparing for, and mitigating fire and other local emergencies Improving and maintaining City infrastructure
Updating our water management policies to ensure an adequate water supply Responding innovatively to climate change challenges and adopting environmentally sustainable best practices
Preserving our historic, small-town, rural character
Agenda Item #5.1.
Expanding recreational, active transportation and cultural opportunities Facilitating innovative, well-designed housing for residents of all backgrounds, ages and income levels
Encouraging full civic participation and ongoing communication Strengthening regional collaboration with other public entities and building partnerships with local service providers and stakeholders
RESOLUTION
Now, therefore, the City Council of the City of St. Helena resolves as follows:
1. The City Council rescinds resolution 2016-47; and
2. The City Council adopts the new Council vision and Council mission.
Approved at a Reguiar Meeting of the St. Helena City Council on May 11, 2021, by the following vote:
Mayor Geoff Ellsworth: Yes
Vice Mayor Paul Dohring: Yes
Council Member Anna Chouteau: Yes
Council Member Lester Hardy:
Council Member Eric Hall:
APPROVED:
V '
Geof Ellsworth, Mayor
Yes
Yes
F ST.
G`a yd Mar
V
ATTEST:
1 • _ i..i% '
Agenda Item #5.1.
Council Approved Three-Year Goals and 2021/22 Work Plan
WHO WHAT NOTES
ESTIMATED
STAFFING
HOURS
Q1 Q2 Q3 Q4
A Police Chief Complete Glass Fire After Action Report to improve emergency preparedness for future events.
Completed and presented at Special Council Meeting of 6/29/2021. 100% X 240
B City Engineer Adoption of Integrated Utility Master Plan Findings/Recommendations. Preliminary Council presentation held 7/30/2020. 95% X 80 C
City Engineer + Assistant
to the City Manager +
City Manager
Complete analysis of St. Helena Vine Trail route options and facilitate Council decision making on preferred route.
This item was discussed at ATSC in November 2021. Additional informational presentations have been provided by the Vine Trail to the St.
Helena Unified School District Board and the Chamber of Commerce. An update and Council discussion is planned on 1/11/2022.
90% X 40
D City Engineer + GHD
Complete Phase I - Citywide Active Transportation Plan/Safe Routes to School Plan (Madrona/Spring St. Pedestrian Improvements).
Phase I draft report with short term recommendations is complete and under review by the City Engineer. Presentation for Phase I recommendations went to ATSC on 10/3/2021. Council discussion tentatively planned for February 2022.
85% X 100
E City Engineer Construct Spring Street Bike Lanes. Design is complete and construction contract was executed on 10/27/2021; the striping will occur in Spring 2022. 95% X 20
F
City Engineer + Acting PW
Director
Create a Comprehensive Water Security Framework to manage initiatives Presented to City Council on 7/27/2021. 100% X 160 G
City Engineer + City
Attorney
Complete conservation easement for Flood Control Project. This was adopted at the 10/12/21 City Council meeting. 100% X 80 H
City Attorney (Lead) +
City Engineer
Prepare Draft Water Will Serve Policy for City Council Review. 20% X 160 I Chief of Police Develop emergency evacuation plan and procedures. Zonehaven evacuation program announced 7/2/2021. 100% X 160 J
City Engineer +
Operations Manager
Complete Public Works Standards Update. Standards are developed; operations staff has reviewed and it has been sent to Director of Public Works for final review. 75% X 180 K City Engineer + GHD Complete Phase II - Citywide Safe Routes to School (SR2S) analysis.
GHD has began working on Phase II. Existing conditions report has been developed and a walking workshop will be scheduled in early 2022. 10% X 120
PROJECT
STATUS
FY 2021-22
TARGET
COMPLETION
% Complete
GOAL 1 Improve and Maintain Safe and Reliable City Infrastructure with a Commitment to Environmental Stewardship, Public Health, and Public Safety Quarter 2 Update Revised 1/4/22
1
Agenda Item #5.1.
Council Approved Three-Year Goals and 2021/22 Work Plan
WHO WHAT NOTES
ESTIMATED
STAFFING
HOURS
Q1 Q2 Q3 Q4
PROJECT
STATUS
FY 2021-22
TARGET
COMPLETION
% Complete
A
Planning Director (Lead)
+ City Manager + CM Hall
+ CM Hardy
Consider and synthesize stakeholder housing recommendations and recommend short and long-term housing initiatives to the City Council, including advancing the use of one or more of city-owned parcels (including Adams Street) for affordable housing.
Council working group to consider revenue options when analyzing housing options for Adams Street parcel. In November 2021, Council held a Special Meeting to discuss surplus City properties; direction was provided on moving forward with affordable housing on the City's Railroad Avenue parcel. Additional work needed on developing short and long-term initiatives.
30% X 80
B
Planning Director (Lead)
+ Lise Wise Consulting Complete Zoning Code update.
Schedule may be adjusted depending on scope of comments and revisions requested by the Zoning Code Subcommittee. All sections of the draft code have been submitted to staff for review with the exception of the Affordable Housing Chapter. LWC is concurrently working on an update to the Inclusionary Housing Ordinance which is under internal review and will need feedback from the City Council prior to inclusion in the Affordable Housing Chapter. About 5% of the code remains to go to the subcommittee for review. (PD Overlay and Affordable Housing Chapter). 50% X 450
C
Planning Director (Lead)
+ Assistant Admin.
Services Director
Update Housing Impact Fees for workforce housing and consider updates to inclusionary housing ordinance.
Recommendations for updates to IHO ordinance will be folded into the zoning code update. 35% X 90
D
Planning Director (Lead)
+ Mintier Harnish Advance work on General Plan Housing Element Update To date there has been a joint meeting of the Planning Commission and City Council, three Focus Group meetings, and in one community workshop. The housing sites inventory process has begun and housing sites are being evaluated for potential inclusion in the Housing Element in order to accommodate our RHNA allocation.
20% X 500
GOAL 2 Stabilize, Maintain and Improve Access to Housing Quarter 2 Update Revised 1/4/22
2
Agenda Item #5.1.
Council Approved Three-Year Goals and 2021/22 Work Plan
WHO WHAT NOTES
ESTIMATED
STAFFING
HOURS
Q1 Q2 Q3 Q4
PROJECT
STATUS
FY 2021-22
TARGET
COMPLETION
% Complete
A
City Manager + Assistant
to the City Manager
Consider recommendations to governing language presented by Parks & Recreation Commission and ATSC.
Both ATSC and the PRC have created subcommittees to evaluate governing language. Council will consider a first reading of a revised P&R Commission ordinance on 1/11/2022. ATSC will be reviewing their Ad Hoc Committee recommendations for a Resolution in February 2022.
45% X 160
B
City Manager + Assistant
to the City Manager
Identify and advance internal and community social justice, diversity and inclusion initiatives.
Action framework presented to City Council on 5/11/2021. Staff has complete draft ordinance research for creation of a DEI Committee and is planning distributing an internal employee DEI Survey in January 2022, and has made suggestions to the nonprofit grant applications (see goal 5F), pursuant to the City's DEI Strategy.
35% X 160
C City Manager
Provide quarterly updates on workplan status/completed tasks; enhance City website for community communication purposes. Updates will be provided at the completion of each quarter. 50% X 160 D
Police Chief + City
Attorney
Review and consider updates to Police Policies to ensure alignment with core City values. Currently under review by Chief of Police. 60% X 350 E
HR/IT Director + City
Manager
Prepare/present to the City Council an employee succession plan and/or strategy to help retain employees and minimize turnover costs. Next steps include reviewing draft succession plan with City Manager. 75% X 24 F
Planning Director (Lead)
+ Vice Mayor Dohring
Prepare/present citywide design guidelines to the Planning Commission for adoption.
The new draft zoning code includes some design illustrations and multifamily objective standards have been drafted as part of the new code. 60% X 350 G Chief of Police Implement State and Federal DOJ mandated reporting system, radio encryption system, and software/training.
County of Napa awarded $1.4 million for equipment and software. St.
Helena Police Dept. is equipped and waiting on County to equip and implement.
90% X TBD
GOAL 3 Enhance Organizational Performance, Communications, and Commit to Full Public Participation and Regional Collaboration Quarter 2 Update Revised 1/4/22
3
Agenda Item #5.1.
Council Approved Three-Year Goals and 2021/22 Work Plan
WHO WHAT NOTES
ESTIMATED
STAFFING
HOURS
Q1 Q2 Q3 Q4
PROJECT
STATUS
FY 2021-22
TARGET
COMPLETION
% Complete
A Admin. Services Director Complete Impact Fee Study and Cost Allocation Plan (including inclusionary fees and housing fees) for City Council adoption. 90% X 60
B
City Manager (Lead) +
Admin Services Director +
Mayor Ellsworth + Vice
Mayor Dohring
Prepare financing and revenue options for City Council review and consideration to address City Infrastructure deficiencies.
Presented at 6/8/2021 City Council Meeting. Direction provided to pursue opinion research services. Council awarded contract to FM3 Research on 9/14/2021.
100% X 60
C
Planning Director (Lead)
+ Parks & Recreation
Commission + City
Engineer
Advance progress on development of walking trails.
The St. Helena Open Space Trails ad hoc subcommittee presented their final report to the Parks & Recreation Commission on 7/26/2021. The PRC endorsed the report. The draft plan will need a CEQA consultant to prepare the appropriate documentation prior to City Council action and City staff are working to bring a consultant on board in January 2022. 50% X 150
D
Business Liaison + City
Manager + CM Chouteau
+ CM Hall
Prepare and implement COVID Business Recovery Plan & Continuity Strategy for Phase 1 Downtown Streetscape Project.
Business Recovery Strategy presented to City Council August 21, 2021.
Continuity strategy for Streetscape Project to align with project. 80% X 60 E
Planning Director (Lead)
+ CM Chouteau + CM
Hall
Develop marketing collateral for prospective tenants and prioritize targeted business types. 5% X TBD
F
Parks & Recreation
Director (Lead) + Parks &
Recreation Commission
Prioritize General Plan "Parks & Recreation" Chapter action items with appropriate staff and Parks & Recreation Commission feedback into short (1-2 years) and long-term (3-5 year) actionable tasks; advance short-term tasks.
Ad Hoc Subcommittee continues to review implementing actions and discuss recommended updates with the Parks & Recreation Commission. 60% X 30 G
Planning Director (Lead)
+ City Engineer
Develop Parklet's Policy for City Council review and consideration.
Time has been focused on other public space activation opportunities as directed by City Council in March 2021. Staff have begun conversations with a parklet designer who has done work in Calistoga to evaluate options for St. Helena. Additional work is needed on development of a draft policy. 15% X 60
H TBD
Initiate pedestrian activation of Money Way beginning with garbage/recycling consolidation.
Next steps include a site visit and agreement with the County to get reimbursed for items as part of the scope of the grant. 0% X 120 GOAL 4 Ensure Long-Term Economic Sustainability while Supporting St. Helena's Charm and Rural Character* (*Draft goal title ) Quarter 2 Update Revised 1/4/22
4
Agenda Item #5.1.
Council Approved Three-Year Goals and 2021/22 Work Plan
WHO WHAT NOTES
ESTIMATED
STAFFING
HOURS
Q1 Q2 Q3 Q4
PROJECT
STATUS
FY 2021-22
TARGET
COMPLETION
% Complete
A
Assistant to the City
Manager + Vice Mayor
Dohring and Council
Member Chouteau
Redwood Forest Expansion: In coordination with Paul Asmuth, determine opportunities to include youth during the planting of the redwood trees.
Connect with Biology teacher Lisa Luhn to tie in an educational component.
Redwood Forest Planting Day was held 7/9/2021. Additional coordination will occur on the educational side in coming months and development of a longer term management agreement with the participating non-profit. 90% X 120
B
Assistant to the Manager
City + Vice Mayor
Dohring and Council
Member Chouteau
The Council will designate two to three Youth Representatives to speak once every two months at City Council meetings. These individuals would a) provide an update on youth related issues in the community and b) act as a liaison to youth when feedback is requested on City Council matters.
Staff and Council representatives Vice Mayor Dohring and Council Member Chouteau have developed a student representative selection process which has been reviewed by and agreed to by SHUSD Supt. Presentations to the St. Helena High School Sr and Jr class were made in December 2021 and interviews/prep for first CC meeting will be conducted mid January 2022 with students presenting in February 2022.
70% X 60
C
Assistant to the City
Manager + Vice Mayor
Dohring and Council
Member Chouteau
Distribute Youth Survey to High School and Middle School to receive direct feedback from the youth.
The survey has been created and distributed; ad hoc committee is reviewing results. 100% X 20
D
Asst. Admin. Services
Director
Prepare and submit $500,000 CDBG grant in partnership with Aldea Children & Family Services to support delivery of youth and family mental health services. Completed. 100% X 12 E
Assistant to the City
Manager + Vice Mayor
Dohring and Council
Member Chouteau
Create a Diversity, Equity and Inclusion Committee with a seat for a youth member to identify recommendations to ensure a more socially diverse and inclusive community.
Staff is working on bringing a draft ordinance to City Council for discussion and feedback in February 2022. 10% X 200
F
Assistant to the Manager
City + Vice Mayor
Dohring and Council
Member Chouteau
Consider refining the Nonprofit Grant Criteria to specifically state that a grant will be awarded to a nonprofit that supports thriving families and enhances the safety, wellbeing and healthy development of youth and related issues.
Staff met with Mayor Ellsworth and Vice Mayor Dorhing in late December 2021 with proposed amendments to the grant application. Council will receive recommended changes to this program at their January 11, 2022 meeting.
90% X 10
GOAL 5 Support Thriving Families and Enhance the Safety, Well-Being, and Healthy Development of our Youth Quarter 2 Update Revised 1/4/22
5
Agenda Item #5.1.
Council Approved Three-Year Goals and 2021/22 Work Plan
WHO WHAT NOTES
ESTIMATED
STAFFING
HOURS
Q1 Q2 Q3 Q4
PROJECT
STATUS
FY 2021-22
TARGET
COMPLETION
% Complete
A
Planning Director (Lead)
+ ATSC + Planning
Commission
Prioritize General Plan "Climate Action" Chapter action items with appropriate staff and Planning Commission/ATSC Committee feedback into short (1-2 years) and long-term (3-5 year) actionable tasks.
ATSC has reviewed these items. Next step is to bring forward at a future City Council meeting in February 2022. 60% X 60
B
Assistant to the City
Manager + PW
Operations Manager
Development of an Integrated Pest Management Policy. This policy was adopted by the City Council at the October 28, 2021 meeting.
100% X 60
C
City Engineer + Water
Consultant Advance the City's public trust commitments to water and climate change. Council adopted interim protocols for Stonebridge Wells on 4/27/2021. Water Security Framework presented to City Council on 7/27/2021. 25% X TBD D
Assistant to the City
Manager + Planning and
Building Director
Consider joining countywide Joint Powers Agreement (JPA) to support, coordinate, and advance regional climate action initiatives. Approved 4/13/2021. 100% X 60 E
NVTA/Planning
Director/Public Works
Director
Develop and adopt VMT thresholds in accordance with State law. 10% X 70 F
Assistant to the City
Manager + City Manager
+ PW Operations
Manager
Consider alternatives to Gas Leaf Blowers 0% X TBD
GOAL 6 Support Initiatives That Respond To And Plan For Climate Change Quarter 2 Update Revised 1/4/22
6
Agenda Item #5.1.
Council Approved Three-Year Goals and 2021/22 Work Plan
WHO WHAT NOTES
ESTIMATED
STAFFING
HOURS
Q1 Q2 Q3 Q4
PROJECT
STATUS
FY 2021-22
TARGET
COMPLETION
% Complete
A
Assistant to the City
Manager (Lead) + City
Manager
Coordinate tenant improvements and relocation of City Hall and Police operations to Napa Valley College Upper Valley Campus.
Architectural drawings for tenant improvements were submitted to the Division of State Architect on 9/13/2021. Staff anticipates DSA final sign off the last weekend of January 2022.
35% X 400
OTHER
Quarter 2 Update Revised 1/4/22
7
Agenda Item #5.1.
Summary of the Major Provisions and Requirements
of the Ralph M. Brown Act
The Ralph M. Brown Act is California's “sunshine” law for local government. It is found in the California Government Code beginning at Section 54950. In a nutshell, it requires local government business to be conducted at open and public meetings, except in certain limited situations. The Brown Act is based upon state policy that the people must be informed so they can keep control over their government.
A. Application of the Brown Act to “Legislative Bodies” The requirements of the Brown Act apply to “legislative bodies” of local governmental agencies. The term “legislative body” is defined to include the governing body of a local agency (e.g., the city council) and any commission, committee, board or other body of the local agency, whether permanent or temporary, decision-making or advisory, that is created by formal action of a legislative body (Section 54952).
Standing committees of a legislative body, which consist solely of less than a quorum of the body, are subject to the requirements of the Act. Some common examples include the finance, personnel, or similar policy subcommittees of the city council or other city legislative body that have either some “continuing subject matter jurisdiction” or a meeting schedule fixed by formal action of the legislative body. Standing committees exist to make routine and regular recommendations on a specific subject matter, they survive resolution of any one issue or matter, and are a regular part of the governmental structure.
The Brown Act does not apply to ad hoc committees consisting solely of less than a quorum of the legislative body, provided they are composed solely of members of the legislative body and provided that these ad hoc committees do not have some “continuing subject matter jurisdiction,” and do not have a meeting schedule fixed by formal action of a legislative body. Thus, ad hoc committees would generally serve only a limited or single purpose, they are not perpetual and they are dissolved when their specific task is completed.
Standing committees may, but are not required to, have regular meeting schedules. Even if such a committee does not have a regular meeting schedule, its agendas should be posted at least 72 hours in advance of the meeting (Section 54954.2). If this is done, the meeting is considered to be a regular meeting for all purposes. If not, the meeting must be treated as a special meeting, and all of the limitations and requirements for special meetings apply.
The governing boards of private entities are subject to the Brown Act if either of the following applies: (i) the private entity is created by an elected legislative body to exercise lawfully delegated authority of the public agency, or (ii) the private entity receives funds from the local agency and the private entity's governing body includes a member of the legislative body who was appointed by the legislative body (Section 54952).
The Brown Act also applies to persons who are elected to serve as members of a legislative body of a local agency who have not yet assumed the duties of office (Section 54952.1). Under this provision, the Brown Act is applicable to newly elected, but not-yet-sworn-in councilmembers.
B. Meetings
The central provision of the Brown Act requires that all “meetings” of a legislative body be open and public. The Brown Act definition of the term “meeting” (Section 54952.2) is a very broad definition that encompasses almost every gathering of a majority of Council members and includes:
“Any congregation of a majority of members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains.” In plain English, this means that a meeting is any gathering of a majority of members to hear or discuss any item of city business or potential city business.
OFFICES ACROSS CALIFORNIA AND IN WASHINGTON, D.C. www.BBKlaw.com 1
Agenda Item #5.1.
There are six specific types of gatherings that are not subject to the Brown Act. We refer to the exceptions as: (1) the individual contact exception; (2) the seminar and conference exception; (3) the community meeting exception; (4) the other legislative body exception; (5) the social or ceremonial occasion exception; and (6) the standing committee exception.
Unless a gathering of a majority of members falls within one of the exceptions discussed below, if a majority of members are in the same room and merely listen to a discussion of city business, then they will be participating in a Brown Act meeting that requires notice, an agenda, and a period for public comment.
1. The individual contact exception
Conversations, whether in person, by telephone or other means, between a member of a legislative body and any other person do not constitute a meeting (Section 54952.2(c)(1)). However, such contacts may constitute a “serial meeting” in violation of the Brown Act if the individual also makes a series of individual contacts with other members of the legislative body serving as an intermediary among them. An explanation of what constitutes a “serial meeting” follows below.
2. The seminar and conference exception
The attendance by a majority of members at a seminar or conference or similar educational gathering is also generally exempt from Brown Act requirements (Section 54952.2 (c)(2)). This exception, for example, would apply to attendance at a California League of Cities seminar. However, in order to qualify under this exception, the seminar or conference must be open to the public and be limited to issues of general interest to the public or to cities. Finally, this exception will not apply to a conference or seminar if a majority of members discuss among themselves items of specific business relating to their own city, except as part of the program.
3.. The community meeting exception
The community meeting exception allows members to attend neighborhood meetings, town hall forums, chamber of commerce lunches or other community meetings sponsored by an organization other than the city at which issues of local interest are discussed (Section 54952.2(c)(3)). However, members must observe several rules that limit this exception.
First, in order to fall within this exception, the community meeting must be “open and publicized.” Therefore, for example, attendance by a majority of a body at a homeowners association meeting that is limited to the residents of a particular development and only publicized among members of that development would not qualify for this exemption. Also, as with the other exceptions, a majority of members cannot discuss among themselves items of city business, except as part of the program.
4. The other legislative body exception
This exception allows a majority of members of any legislative body to attend meetings of other legislative bodies of the city or of another jurisdiction (such as the county or another city) without treating such attendance as a meeting of the body (Section 54952.2(c)(4)). Of course, as with other meeting exceptions, the members are prohibited from discussing city business among themselves except as part of the scheduled meeting.
5. The social or ceremonial occasion exception
As has always been the case, Brown Act requirements do not apply to attendance by a majority of members at a purely social or ceremonial occasion provided that a majority of members do not discuss among themselves matters of public business (Section 54942.2(c)(5)).
6. The standing committee exception
This exception allows members of a legislative body, who are not members of a standing committee of that body, to attend an open and noticed meeting of the standing committee without making the gathering a meeting of the full legislative body itself. The exception is only applicable if the attendance of the members of the legislative body who are not standing committee members would create a gathering of a majority of the legislative body; if not, then there is no "meeting." If their attendance does establish a quorum of the parent legislative body, the members of the legislative body who are not members of the standing committee may only attend as “observers” (Section 54952.2(c)(6)). This means that members of the legislative body who are not members of the standing committee should not speak at the meeting, sit in their usual seat on the dias or otherwise participate in the standing committee's meeting.
OFFICES ACROSS CALIFORNIA AND IN WASHINGTON, D.C. www.BBKlaw.com 2 Agenda Item #5.1.
With a very few exceptions, all meetings of a legislative body must occur within the boundaries of the local governmental agency (Section 54954). Exceptions to this rule which allow the City Council to meet outside the City include meeting outside the jurisdiction to comply with a court order or attend a judicial proceeding, to inspect real or personal property, to attend a meeting with another legislative body in that other body's jurisdiction, to meet with a state or federal representative to discuss issues affecting the local agency over which the other officials have jurisdiction, to meet in a facility outside of, but owned by, the local agency, or to visit the office of the local agency's legal counsel for an authorized closed session. These are meetings and in all other respects must comply with agenda and notice requirements. “Teleconferencing” may be used as a method for conducting meetings whereby members of the body may be counted towards a quorum and participate fully in the meeting from remote locations (Section 54953(b)). The following requirements apply: the remote locations may be connected to the main meeting location by telephone, video or both; the notice and agenda of the meeting must identify the remote locations; the remote locations must be posted and accessible to the public; all votes must be by roll call; and the meeting must in all respects comply with the Act, including participation by members of the public present in remote locations. A quorum of the legislative body must participate from locations within the jurisdiction, but other members may participate from outside the jurisdiction. No person can compel the legislative body to allow remote participation. The teleconferencing rules only apply to members of the legislative body; they do not apply to staff members, attorneys or consultants who can participate remotely without following the posting and public access requirements.
All actions taken by the legislative body in open session and the vote of each member thereon must be disclosed to the public at the time the action is taken. (Section 54953(c)(2)).
C.Serial Meetings
In addition to regulating all gatherings of a majority of members of a legislative body, the Brown Act also addresses some contacts between individual members of legislative bodies. On the one hand, the Brown Act specifically states that nothing in the Act is intended to impose Brown Act requirements on individual contacts or conversations between a member of a legislative body and any other person (Section 54952.2(c)(1)). However, the Brown Act also prohibits a series of such individual contacts if they result in a “serial meeting” (Section 54952.2(b)).
Section 54952.2(b)(1) prohibits a majority of members of a legislative body outside of a lawful meeting from directly or indirectly using a series of meetings to discuss, deliberate or take action on any item of business within the subject matter jurisdiction of the body. Paragraph (b)(2) expressly provides that substantive briefings of members of a legislative body by staff are permissible, as long as staff does not communicate the comments or positions of members to any other members.
A serial meeting is a series of meetings or communications between individuals in which ideas are exchanged among a majority of a legislative body (i.e., three council members) through either one or more persons acting as intermediaries or through use of a technological device (such as a telephone answering machine, or e-mail or voice mail), even though a majority of members never gather in a room at the same time. Serial meetings commonly occur in one of two ways; either a staff member, a member of the body, or some other person individually contacts a majority of members of a body and shares ideas among the majority (“I’ve talked to Councilmembers A and B and they will vote ‘yes.’ Will you?”) or, without the involvement of a third person, member A calls member B, who then calls member C, and so on, until a majority of the body has reached a collective concurrence on a matter.
We recommend the following guidelines be followed to avoid inadvertent violation of the serial meeting rule. These rules of conduct apply only when a majority of a legislative body is involved in a series of contacts or communications. The types of contacts considered include contacts with local agency staff members, constituents, developers, lobbyists and other members of the legislative body.
OFFICES ACROSS CALIFORNIA AND IN WASHINGTON, D.C. www.BBKlaw.com 3 Agenda Item #5.1.
1. Contacts with staff
Staff can inadvertently become a conduit among a majority of a legislative body in the course of providing briefings on items of local agency business. To avoid an illegal serial meeting through a staff briefing:
a. Individual briefings of a majority of members of a legislative body should be “unidirectional,” in that information should flow from staff to the member and the member's participation should be limited to asking questions and acquiring information. Otherwise, multiple members could separately give staff direction thereby causing staff to shape or modify its ultimate recommendations in order to reconcile the views of the various members, resulting in an action outside a meeting.
b. Members should not ask staff to describe the views of other members of the body, and staff should not volunteer those views if known.
c. Staff may present its viewpoint to the member, but should not ask for the member's views and the member should avoid providing his or her views unless it is absolutely clear that the staff member is not discussing the matter with a quorum of the legislative body.
2. Contacts with constituents, developers and lobbyists As with staff, a constituent or lobbyist can also inadvertently become an intermediary who causes an illegal serial meeting.
Constituents' unfamiliarity with the requirements of the Act aggravate this potential problem because they may expect a member of a legislative body to be willing to commit to a position in a private conversation in advance of a meeting. To avoid serial meetings via constituent conversations:
a. First, state the ground rules “up front.” Ask if the constituent has or intends to talk with other members of the body about the same subject; if so, make it clear that the constituent should not disclose the views of other members during the conversation.
b. Explain to the constituent that you will not make a final decision on a matter prior to the meeting. For example:
“State law prevents me from giving you a commitment outside a meeting. I will listen to what you have to say and give it consideration as I make up my mind.”
c. Do more listening and asking questions than expressing opinions. d. If you disclose your thoughts about a matter, counsel the constituent not to share them with other members of the legislative body.
3. Contacts with fellow members of the same legislative body Direct contacts concerning local agency business with fellow members of the same legislative body, whether through face-to-face or telephonic conversations, notes or letters, electronic mail or staff members, are the most obvious means by which an illegal serial meeting can occur. This is not to say that a member of a legislative body is precluded from discussing items of agency business with another member of the body outside of a meeting; as long as the communication does not involve a quorum of the body, no “meeting” has occurred. There is, however, always the risk that one participant in the communication will disclose the views of the other participant to a third or fourth member, creating an illegal serial meeting. Therefore, we recommend you avoid discussing local agency business with a quorum of the body or communicating the views of other members outside a meeting.
These suggested rules of conduct may seem unduly restrictive and impractical, and may make acquisition of important information more difficult or time-consuming. Nevertheless, following them will help assure that your conduct comports with the Brown Act's goal of achieving open government. If you have questions about compliance with the Act in any given situation, please ask for advice.
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D. Notice and Agenda Requirements
Two key provisions of the Brown Act that ensure that the public's business is conducted openly are the requirements that legislative bodies post agendas prior to their meetings (Sections 54954.2, 54955 and 54956) and that no action or discussion may occur on items or subjects not listed on the posted agenda (Section 54954.2(a)(2)). Limited exceptions to the rule against discussing or taking action on an item not on a posted agenda are discussed below.
Legislative bodies, except advisory committees and standing committees, are required to establish a time and place for holding regular meetings (Section 54954(a)). Meeting agendas must contain a brief general description of each item of business to be transacted or discussed at the meeting (Section 54954.2(a)). The description need not exceed 20 words.
Each agenda must be posted in a place that is freely accessible to the public and must be posted on the agency’s website, if it has one. After January 1, 2019, additional online posting requirements apply. Agenda posting requirements differ depending on the type of meeting to be conducted.
If the meeting is a “regular meeting” of the legislative body (i.e., occurs on the body’s regular meeting day, without a special meeting call), the agenda must be posted 72 hours in advance of the meeting (Section 54954.2(a)). For “special meetings,” the “call” of the meeting and the agenda (which are typically one and the same) must be posted at least 24 hours prior to the meeting (Section 54956). Each member of the legislative body must personally receive written notice of the special meeting either by personal delivery or by “any other means” (such as fax, electronic mail or U.S. mail) at least 24 hours before the time of the special meeting, unless they have previously waived receipt of written notice. Members of the press (including radio and television stations) and other members of the public can also request written notice of special meetings and if they have, that notice must be given at the same time notice is provided to members of the legislative body. A special meeting may not be held to discuss salaries, salary schedules or compensation paid in the form of fringe benefits of a local agency “executive” as defined in Government Code section 3511(d). However, the budget may be discussed in a special meeting. Section 54956(b).
Both regular and special meetings may be adjourned to another time. Notices of adjourned meetings must be posted on the door of the meeting chambers where the meeting occurred within 24 hours after the meeting is adjourned (Section 54955). If the adjourned meeting occurs more than five days after the prior meeting, a new agenda for that adjourned meeting must be posted 72 hours in advance of the adjourned meeting (Section 54954.2(b)(3)).
The Brown Act requires the local agency to mail the agenda or the full agenda packet to any person making a written request no later than the time the agenda is posted or is delivered to the members of the body, whichever is earlier. The agency may charge a fee to recover its costs of copying and mailing. Any person may make a standing request to receive these materials, in which event the request must be renewed annually. Failure by any requestor to receive the agenda does not constitute grounds to invalidate any action taken at a meeting (Section 54954.1).
If materials pertaining to a meeting are distributed less than 72 hours before the meeting, they must be made available to the public as soon as they are distributed to the members of the legislative body. Further, the agenda for every meeting of a legislative body must state where a person may obtain copies of materials pertaining to an agenda item delivered to the legislative body within 72 hours of the meeting. (Section 54957.5).
A legislative body that has convened a meeting and whose membership is a quorum of another legislative body (for example, a city council that also serves as the governing board of a housing authority) may convene a meeting of that other legislative body, concurrently or in serial order, only after an oral announcement of the amount of compensation or stipend, if any, that each member will receive as a result of convening the second body. No announcement need be made if the compensation is set by statute or if no additional compensation is paid to the members. (Section 54952.3(a)).
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E. Public Participation
1. Regular Meetings
The Brown Act mandates that agendas for regular meetings allow for two types of public comment periods. The first is a general audience comment period, which is the part of the meeting where the public can comment on any item of interest that is within the subject matter jurisdiction of the local agency. This general audience comment period may come at any time during a meeting (Section 54954.3).
The second type of public comment period is the specific comment period pertaining to items on the agenda. The Brown Act requires the legislative body to allow these specific comment periods on agenda items to occur prior to or during the City Council's consideration of that item (Section 54954.3).
Some public entities accomplish both requirements by placing a general audience comment period at the beginning of the agenda where the public can comment on agenda and non-agenda items. Other public entities provide public comment periods as each item or group of items comes up on the agenda, and then leave the general public comment period to the end of the agenda. Either method is permissible, though public comment on public hearing items must be taken during the hearing. Caution should also be taken with consent calendars. The body should have a public comment period for consent calendar items before the body acts on the consent calendar, unless it permits members of the audience to “pull” items from the calendar.
The Brown Act allows a body to preclude public comments on an agenda item in one situation, where the item was considered by a committee of the body which held a meeting where public comments on that item were allowed. So, if the body has standing committees (which are required to have agendized and open meetings with an opportunity for the public to comment on items on that committee's agenda) and the committee has previously considered an item, then at the time the item comes before the full body, the body may choose not to take additional public comments on that item.
However, if the version presented to the body is different from the version presented to, and considered by, the committee, the public must be given another opportunity to speak on that item at the meeting of the full body (Section 54954.3).
2. Public Comments at Special Meetings
The Brown Act requires that agendas for special meetings provide an opportunity for members of the public to address the body concerning any item listed on the agenda prior to the body's consideration of that item (Section 54954.3).
Unlike regular meetings, in a special meeting the body does not have to allow public comment on any non-agenda matter.
3. Limitations on the Length and Content of the Public's Comments A legislative body may adopt reasonable regulations limiting the total amount of time allocated to each person for public testimony. For example, typical time limits restrict speakers to three or five minutes. A legislative body may also adopt reasonable regulations limiting the total amount of time allocated for public testimony on legislative matters, such as a zoning ordinance or other regulatory ordinance (Section 54954.3(b)). However, we do not recommend setting total time limits per item for any quasi-judicial matter such as a land use application or business license or permit application hearing. Application of a total time limit to a quasi-judicial matter could result in a violation of the due process rights of those who were not able to speak to the body during the time allotted.
The Act precludes the body from prohibiting public criticism of the policies, procedures, programs, or services of the agency or the acts or omissions of the city council (Section 54954.3 (c)). This does not mean that a member of the public may say anything. If the topic of the public's comments is not within the subject matter jurisdiction of the agency, the member of the public can be cut off.
The body also may adopt reasonable rules of decorum for its meetings which preclude a speaker from disrupting, disturbing or otherwise impeding the orderly conduct of public meetings. Also, the right to publicly criticize a public official does not include the right to slander that official, though the line between criticism and slander is often difficult to determine in the heat of the moment. Care must be given to avoid violating the speech rights of speakers by suppressing opinions relevant to the business of the body.
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The use of profanity may be a basis for stopping a speaker. However, it will depend upon what profane words or comments are made and the context of those comments in determining whether it rises to the level of impeding the orderly conduct of a meeting. While terms such as “damn” and “hell” may have been disrupting words thirty years ago, today's standards seem to accept a stronger range of foul language. Therefore, if the chair is going to rule someone out of order for profanity, the chair should make sure the language is truly objectionable and that it causes a disturbance or disruption in the proceeding before the chair cuts off the speaker.
4. Discussion of Non-Agenda Items
A body may not take action or discuss any item that does not appear on the posted agenda (Section 54954.2).
There are two exceptions to this rule. The first is if the body determines by majority vote that an emergency situation exists. The term “emergency” is limited to work stoppages or crippling disasters (Section 54956.5). The second exception is if the body finds by a two-thirds vote of those present, or if less than two-thirds of the body is present, by unanimous vote, that there is a need to take immediate action on an item and the need for action came to the attention of the local agency subsequent to the posting of the agenda (Section 54954.2 (b)). This means that if four members of a five-member body are present, three votes are required to add the item; if only three are present, a unanimous vote is required.
In addition to these exceptions, there are several limited exceptions to the no discussion on non-agenda items rule. Those exceptions are:
• Members of the legislative body or staff may briefly respond to statements made or questions posed by persons during public comment periods;
• Members or staff may ask questions for clarification and provide a reference to staff or other resources for factual information;
• Members or staff may make a brief announcement, ask a question or make a brief report on his or her own activities; • Members may, subject to the procedural rules of the legislative body, request staff to report back to the legislative body at a subsequent meeting concerning any matter; and
• The legislative body may itself as a body, subject to the rules of procedures of the legislative body, take action to direct staff to place a matter of business on a future agenda.
The body may not discuss non-agenda items to any significant degree under these exceptions. The comments must be brief. These exceptions do not allow long or wide-ranging question and answer sessions between the public and city council or between legislative body and staff.
When the body is considering whether to direct staff to add an item to a subsequent agenda, these exceptions do not allow the body to discuss the merits of the matter or to engage in a debate about the underlying issue.
To protect the body from problems in this area, legislative bodies may wish to adopt a rule that any one member may request an item to be placed on a subsequent agenda, so that discussion of the merits of the issue can be easily avoided. If the legislative body does not wish to adopt this rule, then the body's consideration and vote on the matter must take place with virtually no discussion.
It is important to follow these exceptions carefully and interpret them narrowly because the city would not want to have an important and complex action tainted by a non-agendized discussion of the item.
5. The public's right to photograph, videotape, tape-record and broadcast open meetings The public has the right to videotape or broadcast a public meeting or to make a motion picture or still camera record of such meeting (Section 54953.5). However, a body may prohibit or limit recording of a meeting if the body finds that the recording cannot continue without noise, illumination, or obstruction of a view that constitutes, or would constitute, a disruption of the proceedings (Section 54953.5). These grounds would appear to preclude a finding based on nonphysical grounds such as breach of decorum or mental disturbance.
Any audio or video tape record of an open and public meeting that is made, for whatever purpose, by or at the direction of the city is a public record and is subject to inspection by the public consistent with the requirements of the Public Records Act. The city must not destroy the tape or film record of the open and public meeting for at least 30 days following the date of the taping or recording. Inspection of the audiotape or videotape must be made available to the public for free on equipment provided by the city (Section 54953.5).
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Any audio or video tape record of an open and public meeting that is made, for whatever purpose, by or at the direction of the city is a public record and is subject to inspection by the public consistent with the requirements of the Public Records Act. The city must not destroy the tape or film record of the open and public meeting for at least 30 days following the date of the taping or recording. Inspection of the audiotape or videotape must be made available to the public for free on equipment provided by the city (Section 54953.5).
If a member of the public requests a duplicate of the audio or videotape, the city must provide such copy. If the city has an audiotape or videotape duplication machine, the city must provide the copy on its own machine. If the city does not have such a machine, the city must send it out to a business that can make a copy. The city may charge a fee to cover the cost of duplication.
The Brown Act requires written material distributed to a majority of the body by any person to be provided to the public without delay. If the material is distributed during the meeting and prepared by the local agency, it must be available for public inspection at the meeting. If it is distributed during the meeting by a member of the public, it must be made available for public inspection after the meeting (Section 54957.5).
One problem in applying this rule arises when written materials are distributed directly to a majority of the body without knowledge of City staff, or even without the members knowing that a majority has received it. The law still requires these materials to be treated as public records. Thus, it is a good idea for at least one member of the body to ensure that staff gets a copy of the document so that copies can be made for the city’s records and for members of the public who request a copy.
F. Closed Sessions
The Brown Act allows a legislative body during a meeting to convene a closed session in order to meet privately with its advisors on specifically enumerated topics. Sometimes people refer to closed sessions as “executive sessions,” a holdover term from the Brown Act's early days. Examples of business which may be conducted in closed session include personnel evaluations or labor negotiations, pending litigation, and real estate negotiations (See Sections 54956.7 through 54957 and Sections 54957.6 and 54957.8). Political sensitivity of an item is not a lawful reason for a closed session discussion.
The Brown Act requires that closed session business be described on the public agenda. And, there is a “bonus” of sorts for using prescribed language to describe litigation closed sessions in that legal challenges to the adequacy of the description are precluded (Section 54954.5). This so-called “safe harbor” encourages cities to use a very similar agenda format. The legislative body must identify the City's negotiator in open session before going into closed session to discuss either real estate negotiations or labor negotiations.
The legislative body must reconvene the public meeting after a closed session and publicly report specified closed session actions and the vote taken on those actions (Section 54957.1). There are limited exceptions for certain kinds of litigation decisions, and to protect the victims of sexual misconduct or child abuse.
Contracts, settlement agreements or other documents that are finally approved or adopted in closed session must be provided at the time the closed session ends to any person who has made a standing request for all documentation in connection with a request for notice of meetings (typically members of the media) and to any person who makes a request within 24 hours of the posting of the agenda, if the requestor is present when the closed session ends (Section 54957.1).
The Brown Act also includes detailed requirements describing when litigation is considered “pending” for the purposes of a closed session (Section 54956.9). These requirements involve detailed factual determinations that will probably be made in the first instance by the City Attorney.
Roberts v. City of Palmdale, 5 Cal.4th 363 (1993), a California Supreme case, affirms the confidentiality of attorney-client memoranda. See also Section 54956.9(b)(3)(F) with respect to privileged communications regarding pending litigation.
Closed sessions may be started in a location different from the usual meeting place as long as the location is noted on the agenda and the public can be present when the meeting first begins. Moreover, public comment on closed session items must be allowed before convening the closed session.
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One perennial area of confusion is whether a body may discuss salary and benefits of an individual employee (such as a city manager) as part of an evaluation session under Section 54957. It may not. However, the body may designate a negotiator to negotiate with that employee and meet with its negotiator in closed session under Section 54957.6 to provide directions.
The employee in question may not be present in such a closed session.
G. Enforcement
There are both civil remedies and criminal misdemeanor penalties for Brown Act violations. The civil remedies include injunctions against further violations, orders nullifying any unlawful action, and orders determining the validity of any rule to penalize or discourage the expression of a member of the legislative body (Section 54960.1). The provision relating to efforts to penalize expression may come up in the context of measures by the legislative body to censure or penalize one of its members for breaching confidentiality or other violations. This area of law is charged with difficult free speech and attorney-client privilege issues. The tape recording of closed sessions is not required unless the court orders such taping after finding a closed session violation (Section 54960).
Prior to filing suit to invalidate an action taken in violation of the Brown Act, the complaining party must make a written demand on the legislative body to cure or correct the alleged violation. The written demand must be made within 90 days after the challenged action was taken in open session unless the violation involves the agenda requirements under Section 54954.2, in which case the written demand must be made within 30 days. The legislative body is required to cure or correct the challenged action and inform the party who filed the demand of its correcting actions, or its decision not to cure or correct, within 30 days. A suit must be filed by the complaining party within 15 days after receipt of the written notice from the legislative body, or if there is no written response, within 15 days after the 30-day cure period expires.
Any person may also seek declaratory and injunctive relief to find a past practice of a legislative body to constitute a violation of the Brown Act (Section 54960). In order to do so, the person must first send a “cease and desist” letter to the local agency, requesting that the practice cease. If the agency replies within a designated time, and disavows the practice, no lawsuit may be initiated. However, if the agency fails to reply or declares its intent to continue the practice, the lawsuit seeking to declare the practice a violation of the Brown Act may be filed, and attorney fees will be granted in the event the practice is found to violate the Act.
A member of a legislative body will not be criminally liable for a violation of the Brown Act unless the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled under the Brown Act (Section 54959). This standard became effective in 1994 and is a different standard from most criminal standards. Until it is applied and interpreted by a court, it is not clear what type of evidence will be necessary to prosecute a Brown Act violation.
Under Section 54963, it is a violation of the Brown Act for any person to disclose confidential information acquired in a closed session. This section enumerates several nonexclusive remedies available to punish persons making such disclosures and to prevent future disclosures.
H. Conclusion
The Brown Act contains many rules and some ambiguities; it can be confusing and compliance can be difficult. In the event that you have any questions regarding any provision of the law, you should contact your City Attorney.
Please contact either of today's presenters if you would like more details on these issues and how your agency can address them:
OFFICES ACROSS CALIFORNIA AND IN WASHINGTON, D.C. www.BBKlaw.com 9 Lauren Langer
(310) 643-8448
[email protected]
Trevor Rusin
(310) 643-8448
[email protected]
Agenda Item #5.1.
Open & Public V
A GUIDE TO THE RALPH M. BROWN ACT
REVISED APRIL 2016
Agenda Item #5.1.
ii OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
ACKNOWLEDGEMENTS
ACKNOWLEDGEMENTS
The League thanks the following individuals for their work on this publication:
Brown Act Committee
Michael Jenkins, Committee Chair
City Attorney, Hermosa Beach, Rolling Hills and West Hollywood Michael W. Barrett
City Attorney, Napa
Damien Brower
City Attorney, Brentwood
Ariel Pierre Calonne
City Attorney, Santa Barbara
Veronica Ramirez
Assistant City Attorney, Redwood City
Malathy Subramanian
City Attorney, Clayton and Lafayette
Paul Zarefsky
Deputy City Attorney, San Francisco
Gregory W. Stepanicich
1st Vice President, City Attorneys’ Department
City Attorney Fairfield, Mill Valley, Town of Ross
League Staff
Patrick Whitnell, General Counsel
Koreen Kelleher, Assistant General Counsel
Corrie Manning, Senior Deputy General Counsel
Alison Leary, Deputy General Counsel
Janet Leonard, Legal Assistant
Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 1
Open & PublicV
A GUIDE TO THE RALPH M. BROWN ACT
REVISED APRIL 2016
CHAPTER 1: IT IS THE PEOPLE’S BUSINESS ....................................................5 CHAPTER 2: LEGISLATIVE BODIES.................................................................11 CHAPTER 3: MEETINGS.................................................................................17 CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION ...................29 CHAPTER 5: CLOSED SESSIONS....................................................................41 CHAPTER 6: REMEDIES .................................................................................55 Agenda Item #5.1.
2 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
TABLE OF CONTENTS
TABLE OF CONTENTS
CHAPTER 1: IT IS THE PEOPLE’S BUSINESS ..........................................5 The right of access ...................................................................................................................6 Broad coverage ........................................................................................................................6 Narrow exemptions .................................................................................................................7 Public participation in meetings ..............................................................................................7 Controversy..............................................................................................................................8 Beyond the law — good business practices............................................................................8 Achieving balance ....................................................................................................................9 Historical note ..........................................................................................................................9 CHAPTER 2: LEGISLATIVE BODIES.......................................................11 What is a “legislative body” of a local agency? ......................................................................12 What is not a “legislative body” for purposes of the Brown Act? .........................................14 CHAPTER 3: MEETINGS........................................................................17 Brown Act meetings...............................................................................................................18 Six exceptions to the meeting definition...............................................................................18 Collective briefings.................................................................................................................21 Retreats or workshops of legislative bodies..........................................................................21 Serial meetings.......................................................................................................................21 Informal gatherings ................................................................................................................24 Technological conferencing ...................................................................................................24 Location of meetings..............................................................................................................25 CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION ......29 Agendas for regular meetings................................................................................................30 Mailed agenda upon written request.....................................................................................31 Notice requirements for special meetings ............................................................................32 Notices and agendas for adjourned and continued meetings and hearings ........................32 Notice requirements for emergency meetings .....................................................................32 Notice of compensation for simultaneous or serial meetings ..............................................33 Educational agency meetings ................................................................................................33 Notice requirements for tax or assessment meetings and hearings....................................33 Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 3
Non-agenda items..................................................................................................................34 Responding to the public .......................................................................................................34 The right to attend and observe meetings ............................................................................35 Records and recordings .........................................................................................................36 The public’s place on the agenda ..........................................................................................37 CHAPTER 5: CLOSED SESSIONS ..........................................................41 Agendas and reports..............................................................................................................42 Litigation.................................................................................................................................43 Real estate negotiations ........................................................................................................45 Public employment ................................................................................................................46 Labor negotiations .................................................................................................................47 Labor negotiations — school and community college districts ............................................48 Other Education Code exceptions .........................................................................................48 Joint Powers Authorities ........................................................................................................48 License applicants with criminal records ..............................................................................49 Public security........................................................................................................................49 Multijurisdictional law enforcement agency .........................................................................49 Hospital peer review and trade secrets.................................................................................49 Other legislative bases for closed session.............................................................................50 Who may attend closed sessions ..........................................................................................50 The confidentiality of closed session discussions .................................................................50 CHAPTER 6: REMEDIES ........................................................................55 Invalidation .............................................................................................................................56 Applicability to Past Actions ..................................................................................................57 Civil action to prevent future violations.................................................................................57 Costs and attorney’s fees ......................................................................................................58 Criminal complaints ...............................................................................................................58 Voluntary resolution...............................................................................................................59 Agenda Item #5.1.
4 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 5 5
Chapter 1
IT IS THE PEOPLE’S BUSINESS
The right of access.............................................................................................................. 6 Broad coverage ................................................................................................................... 6 Narrow exemptions ............................................................................................................ 7 Public participation in meetings ......................................................................................... 7 Controversy......................................................................................................................... 8 Beyond the law — good business practices ...................................................................... 8 Achieving balance............................................................................................................... 9 Historical note..................................................................................................................... 9 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
Agenda Item #5.1.
6 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 1: IT IS THE PEOPLE’S BUSINESS
The right of access
Two key parts of the Brown Act have not changed since its adoption in 1953. One is the Brown Act’s initial section, declaring the Legislature’s intent:
“In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.” “The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”1
The people reconfirmed that intent 50 years later in the November 2004 election by adopting Proposition 59, amending the California Constitution to include a public right of access to government information:
“The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”2 The Brown Act’s other unchanged provision is a single sentence:
“All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter.”3 That one sentence is by far the most important of the entire Brown Act. If the opening is the soul, that sentence is the heart of the Brown Act.
Broad coverage
The Brown Act covers members of virtually every type of local government body, elected or appointed, decision-making or advisory. Some types of private organizations are covered, as are newly-elected members of a legislative body, even before they take office.
Similarly, meetings subject to the Brown Act are not limited to face-to-face gatherings. They also include any communication medium or device through which a majority of a legislative body Chapter 1
IT IS THE PEOPLE’S BUSINESS
PRACTICE TIP: The key to the
Brown Act is a single sentence.
In summary, all meetings shall
be open and public except
when the Brown Act authorizes
otherwise.
Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 7
discusses, deliberates or takes action on an item of business outside of a noticed meeting. They include meetings held from remote locations by teleconference.
New communication technologies present new Brown Act challenges. For example, common email practices of forwarding or replying to messages can easily lead to a serial meeting prohibited by the Brown Act, as can participation by members of a legislative body in an internet chatroom or blog dialogue. Communicating during meetings using electronic technology (such as laptop computers, tablets, or smart phones) may create the perception that private communications are influencing the outcome of decisions; some state legislatures have banned the practice. On the other hand, widespread cablecasting and web streaming of meetings has greatly expanded public access to the decision-making process.
Narrow exemptions
The express purpose of the Brown Act is to assure that local government agencies conduct the public’s business openly and publicly. Courts and the California Attorney General usually broadly construe the Brown Act in favor of greater public access and narrowly construe exemptions to its general rules.4
Generally, public officials should think of themselves as living in glass houses, and that they may only draw the curtains when it is in the public interest to preserve confidentiality. Closed sessions may be held only as specifically authorized by the provisions of the Brown Act itself.
The Brown Act, however, is limited to meetings among a majority of the members of multimember government bodies when the subject relates to local agency business. It does not apply to independent conduct of individual decision-makers. It does not apply to social, ceremonial, educational, and other gatherings as long as a majority of the members of a body do not discuss issues related to their local agency’s business. Meetings of temporary advisory committees — as distinguished from standing committees — made up solely of less than a quorum of a legislative body are not subject to the Brown Act.
The law does not apply to local agency staff or employees, but they may facilitate a violation by acting as a conduit for discussion, deliberation, or action by the legislative body.5 The law, on the one hand, recognizes the need of individual local officials to meet and discuss matters with their constituents. On the other hand, it requires — with certain specific exceptions to protect the community and preserve individual rights — that the decision-making process be public. Sometimes the boundary between the two is not easy to draw.
Public participation in meetings
In addition to requiring the public’s business to be conducted in open, noticed meetings, the Brown Act also extends to the public the right to participate in meetings. Individuals, lobbyists, and members of the news media possess the right to attend, record, broadcast, and participate in public meetings. The public’s participation is further enhanced by the Brown Act’s requirement that a meaningful agenda be posted in advance of meetings, by limiting discussion and action to matters listed on the agenda, and by requiring that meeting materials be made available.
Legislative bodies may, however, adopt reasonable regulations on public testimony and the conduct of public meetings, including measures to address disruptive conduct and irrelevant speech.
PRACTICE TIP: Think of the
government’s house as being
made of glass. The curtains may
be drawn only to further the
public’s interest. A local policy
on the use of laptop computers,
tablets, and smart phones during
Brown Act meetings may help
avoid problems.
Agenda Item #5.1.
8 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
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Controversy
Not surprisingly, the Brown Act has been a source of confusion and controversy since its inception.
News media and government watchdogs often argue the law is toothless, pointing out that there has never been a single criminal conviction for a violation. They often suspect that closed sessions are being misused.
Public officials complain that the Brown Act makes it difficult to respond to constituents and requires public discussions of items better discussed privately — such as why a particular person should not be appointed to a board or commission. Many elected officials find the Brown Act inconsistent with their private business experiences. Closed meetings can be more efficient; they eliminate grandstanding and promote candor. The techniques that serve well in business — the working lunch, the sharing of information through a series of phone calls or emails, the backroom conversations and compromises — are often not possible under the Brown Act.
As a matter of public policy, California (along with many other states) has concluded that there is more to be gained than lost by conducting public business in the open. Government behind closed doors may well be efficient and business-like, but it may be perceived as unresponsive and untrustworthy.
Beyond the law — good business practices
Violations of the Brown Act can lead to invalidation of an agency’s action, payment of a challenger’s attorney fees, public embarrassment, even criminal prosecution. But the Brown Act is a floor, not a ceiling for conduct of public officials. This guide is focused not only on the Brown Act as a minimum standard, but also on meeting practices or activities that, legal or not, are likely to create controversy. Problems may crop up, for example, when agenda descriptions are too brief or vague, when an informal gettogether takes on the appearance of a meeting, when an agency conducts too much of its business in closed session or discusses matters in closed session that are beyond the authorized scope, or when controversial issues arise that are not on the agenda.
The Brown Act allows a legislative body to adopt practices and requirements for greater access to meetings for itself and its subordinate committees and bodies that are more stringent than the law itself requires.6
Rather than simply restate the basic
requirements of the Brown Act, local open meeting policies should strive to anticipate and prevent problems in areas where the Brown Act does not provide full guidance. As with the adoption of any other significant policy, public comment should be solicited.
A local policy could build on these basic Brown Act goals:
A legislative body’s need to get its business done smoothly; The public’s right to participate meaningfully in meetings, and to review documents used in decision-making at a relevant point in time;
A local agency’s right to confidentially address certain negotiations, personnel matters, claims and litigation; and
The right of the press to fully understand and communicate public agency decision-making.
PRACTICE TIP: Transparency
is a foundational value for
ethical government practices.
The Brown Act is a floor, not a
ceiling, for conduct.
Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 9
An explicit and comprehensive public meeting and information policy, especially if reviewed periodically, can be an important element in maintaining or improving public relations. Such a policy exceeds the absolute requirements of the law — but if the law were enough, this guide would be unnecessary. A narrow legalistic approach will not avoid or resolve potential controversies. An agency should consider going beyond the law, and look at its unique circumstances and determine if there is a better way to prevent potential problems and promote public trust. At the very least, local agencies need to think about how their agendas are structured in order to make Brown Act compliance easier. They need to plan carefully to make sure public participation fits smoothly into the process.
Achieving balance
The Brown Act should be neither an excuse for hiding the ball nor a mechanism for hindering efficient and orderly meetings. The Brown Act represents a balance among the interests of constituencies whose interests do not always coincide. It calls for openness in local government, yet should allow government to function responsively and productively.
There must be both adequate notice of what discussion and action is to occur during a meeting as well as a normal degree of spontaneity in the dialogue between elected officials and their constituents.
The ability of an elected official to confer with constituents or colleagues must be balanced against the important public policy prohibiting decision-making outside of public meetings.
In the end, implementation of the Brown Act must ensure full participation of the public and preserve the integrity of the decision-making process, yet not stifle government officials and impede the effective and natural operation of government.
Historical note
In late 1951, San Francisco Chronicle reporter Mike Harris spent six weeks looking into the way local agencies conducted meetings. State law had long required that business be done in public, but Harris discovered secret meetings or caucuses were common. He wrote a 10-part series on “Your Secret Government” that ran in May and June 1952.
Out of the series came a decision to push for a new state open meeting law. Harris and Richard (Bud) Carpenter, legal counsel for the League of California Cities, drafted such a bill and Assembly Member Ralph M. Brown agreed to carry it. The Legislature passed the bill and Governor Earl Warren signed it into law in 1953.
The Ralph M. Brown Act, known as the Brown Act, has evolved under a series of amendments and court decisions, and has been the model for other open meeting laws — such as the Bagley-Keene Act, enacted in 1967 to cover state agencies.
Assembly Member Brown is best known for the open meeting law that carries his name. He was elected to the Assembly in 1942 and served 19 years, including the last three years as Speaker. He then became an appellate court justice.
PRACTICE TIP: The Brown Act
should be viewed as a tool
to facilitate the business of
local government agencies.
Local policies that go beyond
the minimum requirements
of law may help instill public
confidence and avoid problems.
Agenda Item #5.1.
10 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 1: IT IS THE PEOPLE’S BUSINESS
ENDNOTES:
1 California Government Code section 54950
2 California Constitution, Art. 1, section 3(b)(1)
3 California Government Code section 54953(a)
4 This principle of broad construction when it furthers public access and narrow construction if a provision limits public access is also stated in the amendment to the State’s Constitution adopted by Proposition 59 in 2004. California Constitution, Art. 1, section 3(b)(2). 5 California Government Code section 54952.2(b)(2) and (c)(1); Wolfe v. City of Fremont (2006) 144 Cal.App.4th 533
6 California Government Code section 54953.7
Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov.
Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT11 11 Chapter 2
LEGISLATIVE BODIES
What is a “legislative body” of a local agency? ................................................................ 12 What is not a “legislative body” for purposes of the Brown Act? .................................... 14 Agenda Item #5.1.
12 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 2: LEGISLATIVE BODIES
The Brown Act applies to the legislative bodies of local agencies. It defines “legislative body” broadly to include just about every type of decision-making body of a local agency.1 What is a “legislative body” of a local agency?
A “legislative body” includes:
The “governing body of a local agency” and certain of its subsidiary bodies; “or any other local body created by state or federal statute.”2 This
includes city councils, boards of supervisors, school boards and boards of trustees of special districts. A “local agency” is any city, county, city and county, school district, municipal corporation, successor agency to a redevelopment agency, district, political subdivision or other local public agency.3
A housing authority is a local agency under the Brown Act even though it is created by and is an agent of the state.4 The California
Attorney General has opined that air pollution control districts and regional open space districts are also covered.5
Entities created pursuant
to joint powers agreements are also local agencies within the meaning of the Brown Act.6
Newly-elected members of a legislative body who have not yet assumed office must conform to the requirements of the Brown Act as if already in office.7 Thus, meetings
between incumbents and newly-elected members of a legislative body, such as a meeting between two outgoing members and a member-elect of a five-member body, could violate the Brown Act.
Q. On the morning following the election to a five-member legislative body of a local agency, two successful candidates, neither an incumbent, meet with an incumbent member of the legislative body for a celebratory breakfast. Does this violate the Brown Act?
A. It might, and absolutely would if the conversation turns to agency business. Even though the candidates-elect have not officially been sworn in, the Brown Act applies.
If purely a social event, there is no violation but it would be preferable if others were invited to attend to avoid the appearance of impropriety. Appointed bodies — whether permanent or temporary, decision-making or advisory — including planning commissions, civil service commissions and other subsidiary committees, boards, and bodies. Volunteer groups, executive search committees, task forces, and blue ribbon committees created by formal action of the governing body are legislative bodies. When the members of two or more legislative bodies are appointed to serve on an entirely separate advisory group, the resulting body may be subject to the Chapter 2
LEGISLATIVE BODIES
PRACTICE TIP: The prudent
presumption is that an advisory
committee or task force is
subject to the Brown Act. Even
if one clearly is not, it may want
to comply with the Brown Act.
Public meetings may reduce the
possibility of misunderstandings
and controversy.
Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 13
Brown Act. In one reported case, a city council created a committee of two members of the city council and two members of the city planning commission to review qualifications of prospective planning commissioners and make recommendations to the council. The court held that their joint mission made them a legislative body subject to the Brown Act.
Had the two committees remained separate; and met only to exchange information and report back to their respective boards, they would have been exempt from the Brown Act.8 Standing committees of a legislative body, irrespective of their composition, which have either: (1) a continuing subject matter jurisdiction; or (2) a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body.9 Even if it comprises
less than a quorum of the governing body, a standing committee is subject to the Brown Act. For example, if a governing body creates long-term committees on budget and finance or on public safety, those are standing committees subject to the Brown Act. Further, according to the California Attorney General, function over form controls. For example, a statement by the legislative body that the advisory committee “shall not exercise continuing subject matter jurisdiction” or the fact that the committee does not have a fixed meeting schedule is not determinative.10 “Formal action” by a legislative body includes authorization given to the agency’s executive officer to appoint an advisory committee pursuant to agency-adopted policy.11
The governing body of any private organization either: (1) created by the legislative body in order to exercise authority that may lawfully be delegated by such body to a private corporation, limited liability company or other entity; or (2) that receives agency funding and whose governing board includes a member of the legislative body of the local agency appointed by the legislative body as a full voting member of the private entity’s governing board.12 These include some nonprofit corporations created by local agencies.13 If a local agency contracts with a private firm for a service (for example, payroll, janitorial, or food services), the private firm is not covered by the Brown Act.14 When a member of a legislative body sits on a board of a private organization as a private person and is not appointed by the legislative body, the board will not be subject to the Brown Act. Similarly, when the legislative body appoints someone other than one of its own members to such boards, the Brown Act does not apply. Nor does it apply when a private organization merely receives agency funding.15
Q: The local chamber of commerce is funded in part by the city. The mayor sits on the chamber’s board of directors. Is the chamber board a legislative body subject to the Brown Act?
A: Maybe. If the chamber’s governing documents require the mayor to be on the board and the city council appoints the mayor to that position, the board is a legislative body. If, however, the chamber board independently appoints the mayor to its board, or the mayor attends chamber board meetings in a purely advisory capacity, it is not.
Q: If a community college district board creates an auxiliary organization to operate a campus bookstore or cafeteria, is the board of the organization a legislative body? A: Yes. But, if the district instead contracts with a private firm to operate the bookstore or cafeteria, the Brown Act would not apply to the private firm. Certain types of hospital operators. A lessee of a hospital (or portion of a hospital) PRACTICE TIP: It can be
difficult to determine whether
a subcommittee of a body falls
into the category of a standing
committee or an exempt
temporary committee. Suppose a
committee is created to explore
the renewal of a franchise or a
topic of similarly limited scope
and duration. Is it an exempt
temporary committee or a nonexempt standing committee? The answer may depend on factors
such as how meeting schedules
are determined, the scope of the
committee’s charge, or whether
the committee exists long enough
to have “continuing jurisdiction.”
Agenda Item #5.1.
14 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 2: LEGISLATIVE BODIES
first leased under Health and Safety Code subsection 32121(p) after January 1, 1994, which exercises “material authority” delegated to it by a local agency, whether or not such lessee is organized and operated by the agency or by a delegated authority.16 What is not a “legislative body” for purposes of the Brown Act? A temporary advisory committee composed solely of less than a quorum of the legislative body that serves a limited or single purpose, that is not perpetual, and that will be dissolved once its specific task is completed is not subject to the Brown Act.17 Temporary committees are sometimes called ad hoc committees, a term not used in the Brown Act. Examples include an advisory committee composed of less than a quorum created to interview candidates for a vacant position or to meet with representatives of other entities to exchange information on a matter of concern to the agency, such as traffic congestion.18
Groups advisory to a single decision-maker or appointed by staff are not covered. The Brown Act applies only to committees created by formal action of the legislative body and not to committees created by others. A committee advising a superintendent of schools would not be covered by the Brown Act. However, the same committee, if created by formal action of the school board, would be covered.19
Q. A member of the legislative body of a local agency informally establishes an advisory committee of five residents to advise her on issues as they arise. Does the Brown Act apply to this committee?
A. No, because the committee has not been established by formal action of the legislative body.
Q. During a meeting of the city council, the council directs the city manager to form an advisory committee of residents to develop recommendations for a new ordinance. The city manager forms the committee and appoints its members; the committee is instructed to direct its recommendations to the city manager. Does the Brown Act apply to this committee?
A. Possibly, because the direction from the city council might be regarded as a formal action of the body notwithstanding that the city manager controls the committee. Individual decision makers who are not elected or appointed members of a legislative body are not covered by the Brown Act. For example, a disciplinary hearing presided over by a department head or a meeting of agency department heads are not subject to the Brown Act since such assemblies are not those of a legislative body.20 Public employees, each acting individually and not engaging in collective deliberation on a specific issue, such as the drafting and review of an agreement, do not constitute a legislative body under the Brown Act, even if the drafting and review process was established by a legislative body.21
County central committees of political parties are also not Brown Act bodies.22 ENDNOTES:
1 Taxpayers for Livable Communities v. City of Malibu (2005) 126 Cal.App.4th 1123, 1127 Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 15
2 California Government Code section 54952(a) and (b)
3 California Government Code section 54951; Health and Safety Code section 34173(g) (successor agencies to former redevelopment agencies subject to the Brown Act). But see Education Code section 35147, which exempts certain school councils and school site advisory committees from the Brown Act and imposes upon them a separate set of rules.
4 Torres v. Board of Commissioners of Housing Authority of Tulare County (1979) 89 Cal.App.3d 545, 549- 550
5 71 Ops.Cal.Atty.Gen. 96 (1988); 73 Ops.Cal.Atty.Gen. 1 (1990) 6 McKee v. Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force (2005) 134 Cal.
App.4th 354, 362
7 California Government Code section 54952.1
8 Joiner v. City of Sebastopol (1981) 125 Cal.App.3d 799, 804-805 9 California Government Code section 54952(b)
10 79 Ops.Cal.Atty.Gen. 69 (1996)
11 Frazer v. Dixon Unified School District (1993) 18 Cal.App.4th 781, 793 12 California Government Code section 54952(c)(1). Regarding private organizations that receive local agency funding, the same rule applies to a full voting member appointed prior to February 9, 1996 who, after that date, is made a non-voting board member by the legislative body. California Government Code section 54952(c)(2)
13 California Government Code section 54952(c)(1)(A); International Longshoremen’s and Warehousemen’s Union v. Los Angeles Export Terminal, Inc. (1999) 69 Cal.App.4th 287, 300; Epstein v. Hollywood Entertainment Dist. II Business Improvement District (2001) 87 Cal.App.4th 862, 876; see also 85 Ops.Cal.Atty.Gen. 55 (2002)
14 International Longshoremen’s and Warehousemen’s Union v. Los Angeles Export Terminal (1999) 69 Cal.
App.4th 287, 300 fn. 5
15 “The Brown Act, Open Meetings for Local Legislative Bodies,” California Attorney General’s Office (2003), p. 7
16 California Government Code section 54952(d)
17 California Government Code section 54952(b); see also Freedom Newspapers, Inc. v. Orange County Employees Retirement System Board of Directors (1993) 6 Cal.4th 821, 832. 18 Taxpayers for Livable Communities v. City of Malibu (2005) 126 Cal.App.4th 1123, 1129 19 56 Ops.Cal.Atty.Gen. 14, 16-17 (1973)
20 Wilson v. San Francisco Municipal Railway (1973) 29 Cal.App.3d 870, 878-879 21 Golightly v. Molina (2014) 229 Cal.App.4th 1501, 1513 22 59 Ops.Cal.Atty.Gen. 162, 164 (1976)
Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov.
Agenda Item #5.1.
16 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT17 17 Chapter 3
MEETINGS
Brown Act meetings ......................................................................................................... 18 Six exceptions to the meeting definition.......................................................................... 18 Collective briefings............................................................................................................ 21 Retreats or workshops of legislative bodies..................................................................... 21 Serial meetings ................................................................................................................. 21 Informal gatherings........................................................................................................... 24 Technological conferencing .............................................................................................. 24 Location of meetings ........................................................................................................ 25 Agenda Item #5.1.
18 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 3: MEETINGS
The Brown Act only applies to meetings of local legislative bodies. The Brown Act defines a meeting as: “… and any congregation of a majority of the members of a legislative body at the same time and location, including teleconference location as permitted by Section 54953, to hear, discuss, deliberate, or take any action on any item that is within the subject matter jurisdiction of the legislative body.”1
The term “meeting” is not limited to
gatherings at which action is taken but includes deliberative gatherings as well. A hearing before an individual hearing officer is not a meeting under the Brown Act because it is not a hearing before a legislative body.2 Brown Act meetings
Brown Act meetings include a legislative body’s regular meetings, special meetings, emergency meetings, and adjourned meetings.
“Regular meetings” are meetings occurring at the dates, times, and location set by resolution, ordinance, or other formal action by the legislative body and are subject to 72- hour posting requirements.3
“Special meetings” are meetings called by the presiding officer or majority of the legislative body to discuss only discrete items on the agenda under the Brown Act’s notice requirements for special meetings and are subject to 24-hour posting requirements.4 “Emergency meetings” are a limited class of meetings held when prompt action is needed due to actual or threatened disruption of public facilities and are held on little notice.5 “Adjourned meetings” are regular or special meetings that have been adjourned or re-adjourned to a time and place specified in the order of adjournment, with no agenda required for regular meetings adjourned for less than five calendar days as long as no additional business is transacted.6
Six exceptions to the meeting definition
The Brown Act creates six exceptions to the meeting definition:7 Individual Contacts
The first exception involves individual contacts between a member of the legislative body and any other person. The Brown Act does not limit a legislative body member acting on his or her own. This exception recognizes the right to confer with constituents, advocates, consultants, news reporters, local agency staff, or a colleague.
Individual contacts, however, cannot be used to do in stages what would be prohibited in one step. For example, a series of individual contacts that leads to discussion, deliberation, or action among a majority of the members of a legislative body is prohibited. Such serial meetings are discussed below.
Chapter 3
MEETINGS
Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 19
Conferences
The second exception allows a legislative body majority to attend a conference or similar gathering open to the public that addresses issues of general interest to the public or to public agencies of the type represented by the legislative body.
Among other things, this exception permits legislative body members to attend annual association conferences of city, county, school, community college, and other local agency officials, so long as those meetings are open to the public. However, a majority of members cannot discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within their local agency’s subject matter jurisdiction.
Community Meetings
The third exception allows a legislative body majority to attend an open and publicized meeting held by another organization to address a topic of local community concern. A majority cannot discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within the legislative body’s subject matter jurisdiction. Under this exception, a legislative body majority may attend a local service club meeting or a local candidates’ night if the meetings are open to the public. “I see we have four distinguished members of the city council at our meeting tonight,” said the chair of the Environmental Action Coalition.“I wonder if they have anything to say about the controversy over enacting a slow growth ordinance?”
The Brown Act permits a majority of a legislative body to attend and speak at an open and publicized meeting conducted by another organization. The Brown Act may nevertheless be violated if a majority discusses, deliberates, or takes action on an item during the meeting of the other organization. There is a fine line between what is permitted and what is not; hence, members should exercise caution when participating in these types of events.
Q. The local chamber of commerce sponsors an open and public candidate debate during an election campaign. Three of the five agency members are up for re-election and all three participate. All of the candidates are asked their views of a controversial project scheduled for a meeting to occur just after the election. May the three incumbents answer the question?
A. Yes, because the Brown Act does not constrain the incumbents from expressing their views regarding important matters facing the local agency as part of the political process the same as any other candidates.
Agenda Item #5.1.
20 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 3: MEETINGS
Other Legislative Bodies
The fourth exception allows a majority of a legislative body to attend an open and publicized meeting of: (1) another body of the local agency; and (2) a legislative body of another local agency.8
Again, the majority
cannot discuss among themselves, other than as part of the scheduled meeting, business of a specific nature that is within their subject matter jurisdiction. This exception allows, for example, a city council or a majority of a board of supervisors to attend a controversial meeting of the planning commission.
Nothing in the Brown Act prevents the majority of a legislative body from sitting together at such a meeting. They may choose not to, however, to preclude any possibility of improperly discussing local agency business and to avoid the appearance of a Brown Act violation. Further, aside from the Brown Act, there may be other reasons, such as due process considerations, why the members should avoid giving public testimony or trying to influence the outcome of proceedings before a subordinate body.
Q. The entire legislative body intends to testify against a bill before the Senate Local Government Committee in Sacramento. Must this activity be noticed as a meeting of the body?
A. No, because the members are attending and participating in an open meeting of another governmental body which the public may attend.
Q. The members then proceed upstairs to the office of their local Assembly member to discuss issues of local interest. Must this session be noticed as a meeting and be open to the public?
A. Yes, because the entire body may not meet behind closed doors except for proper closed sessions. The same answer applies to a private lunch or dinner with the Assembly member.
Standing Committees
The fifth exception authorizes the attendance of a majority at an open and noticed meeting of a standing committee of the legislative body, provided that the legislative body members who are not members of the standing committee attend only as observers (meaning that they cannot speak or otherwise participate in the meeting).9
Q. The legislative body establishes a standing committee of two of its five members, which meets monthly. A third member of the legislative body wants to attend these meetings and participate. May she?
A. She may attend, but only as an observer; she may not participate.
Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 21
Social or Ceremonial Events
The final exception permits a majority of a legislative body to attend a purely social or ceremonial occasion. Once again, a majority cannot discuss business among themselves of a specific nature that is within the subject matter jurisdiction of the legislative body.
Nothing in the Brown Act prevents a majority of members from attending the same football game, party, wedding, funeral, reception, or farewell. The test is not whether a majority of a legislative body attends the function, but whether business of a specific nature within the subject matter jurisdiction of the body is discussed. So long as no such business is discussed, there is no violation of the Brown Act.
Grand Jury Testimony
In addition, members of a legislative body, either individually or collectively, may give testimony in private before a grand jury.10 This is the equivalent of a seventh exception to the Brown Act’s definition of a “meeting.”
Collective briefings
None of these exceptions permits a majority of a legislative body to meet together with staff in advance of a meeting for a collective briefing. Any such briefings that involve a majority of the body in the same place and time must be open to the public and satisfy Brown Act meeting notice and agenda requirements.
Retreats or workshops of legislative bodies
Gatherings by a majority of legislative body members at the legislative body’s retreats, study sessions, or workshops are covered under the Brown Act. This is the case whether the retreat, study session, or workshop focuses on long-range agency planning, discussion of critical local issues, or team building and group dynamics.11
Q. The legislative body wants to hold a team-building session to improve relations among its members. May such a session be conducted behind closed doors? A. No, this is not a proper subject for a closed session, and there is no other basis to exclude the public. Council relations are a matter of public business.
Serial meetings
One of the most frequently asked questions about the Brown Act involves serial meetings. At any one time, such meetings involve only a portion of a legislative body, but eventually involve a majority. The Brown Act provides that “[a] majority of the members of a legislative body shall not, outside a meeting … use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.”12 The problem with serial meetings is the process, which deprives the public of an opportunity for meaningful observation of and participation in legislative body decision-making.
Agenda Item #5.1.
22 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 3: MEETINGS
The serial meeting may occur by either a “daisy chain” or a “hub and spoke” sequence. In the daisy chain scenario, Member A contacts Member B, Member B contacts Member C, Member C contacts Member D and so on, until a quorum has discussed, deliberated, or taken action on an item within the legislative body’s subject matter jurisdiction. The hub and spoke process involves at least two scenarios. In the first scenario, Member A (the hub) sequentially contacts Members B, C, and D and so on (the spokes), until a quorum has been contacted. In the second scenario, a staff member (the hub), functioning as an intermediary for the legislative body or one of its members, communicates with a majority of members (the spokes)
one-by-one for for discussion, deliberation, or a decision on a proposed action.13 Another example of a serial meeting is when a chief executive officer (the hub) briefs a majority of members (the spokes) prior to a formal meeting and, in the process, information about the members’ respective views is revealed. Each of these scenarios violates the Brown Act.
A legislative body member has the right, if not the duty, to meet with constituents to address their concerns. That member also has the right to confer with a colleague (but not with a majority of the body, counting the member) or appropriate staff about local agency business. An employee or official of a local agency may engage in separate
conversations or communications outside of an open and
noticed meeting “with members of a legislative body in
order to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body.”14 The Brown Act has been violated, however, if several one-on-one meetings or conferences leads to a discussion, deliberation, or action by a majority. In one case, a violation occurred when a quorum of a city council, by a letter that had been circulated among members outside of a formal meeting, directed staff to take action in an eminent domain proceeding.15 A unilateral written communication to the legislative body, such as an informational or advisory memorandum, does not violate the Brown Act.16 Such a memo, however, may be a public record.17 The phone call was from a lobbyist. “Say, I need your vote for that project in the south area. How about it?”
“Well, I don’t know,” replied Board Member Aletto. “That’s kind of a sticky proposition. You sure you need my vote?”
“Well, I’ve got Bradley and Cohen lined up and another vote leaning. With you I’d be over the top.”
Moments later, the phone rings again. “Hey, I’ve been hearing some rumbles on that south area project,” said the newspaper reporter. “I’m counting noses.
How are you voting on it?”
Neither the lobbyist nor the reporter has violated the Brown Act, but they are facilitating Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 23
a violation. The board member may have violated the Brown Act by hearing about the positions of other board members and indeed coaxing the lobbyist to reveal the other board members’ positions by asking “You sure you need my vote?” The prudent course is to avoid such leading conversations and to caution lobbyists, staff, and news media against revealing such positions of others.
The mayor sat down across from the city manager. “From now on,” he declared, “I want you to provide individual briefings on upcoming agenda items. Some of this material is very technical, and the council members don’t want to sound like idiots asking about it in public. Besides that, briefings will speed up the meeting.”
Agency employees or officials may have separate conversations or communications outside of an open and noticed meeting “with members of a legislative body in order to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body.”18 Members should always be vigilant when discussing local agency business with anyone to avoid conversations that could lead to a discussion, deliberation or action taken among the majority of the legislative body. “Thanks for the information,” said Council Member Kim. “These zoning changes can be tricky, and now I think I’m better equipped to make the right decision.” “Glad to be of assistance,” replied the planning director. “I’m sure Council Member Jones is OK with these changes. How are you leaning?” “Well,” said Council Member Kim, “I’m leaning toward approval. I know that two of my colleagues definitely favor approval.”
The planning director should not disclose Jones’ prospective vote, and Kim should not disclose the prospective votes of two of her colleagues. Under these facts, there likely has been a serial meeting in violation of the Brown Act.
Q. The agency’s website includes a chat room where agency employees and officials participate anonymously and often discuss issues of local agency business. Members of the legislative body participate regularly. Does this scenario present a potential for violation of the Brown Act?
A. Yes, because it is a technological device that may serve to allow for a majority of members to discuss, deliberate, or take action on matters of agency business.
Q. A member of a legislative body contacts two other members on a five-member body relative to scheduling a special meeting. Is this an illegal serial meeting? A. No, the Brown Act expressly allows a majority of a body to call a special meeting, though the members should avoid discussing the merits of what is to be taken up at the meeting.
PRACTICE TIP: When briefing
legislative body members,
staff must exercise care not to
disclose other members’ views
and positions.
Agenda Item #5.1.
24 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 3: MEETINGS
Particular care should be exercised when staff briefings of legislative body members occur by email because of the ease of using the “reply to all” button that may inadvertently result in a Brown Act violation.
Informal gatherings
Often members are tempted to mix business with pleasure — for example, by holding a postmeeting gathering. Informal gatherings at which local agency business is discussed or transacted violate the law if they are not conducted in conformance with the Brown Act.19 A luncheon gathering in a crowded dining room violates the Brown Act if the public does not have an opportunity to attend, hear, or participate in the deliberations of members.
Thursday at 11:30 a.m., as they did every week, the board of directors of the Dry Gulch Irrigation District trooped into Pop’s Donut Shoppe for an hour of talk and fellowship. They sat at the corner window, fronting on Main and Broadway, to show they had nothing to hide. Whenever he could, the managing editor of the weekly newspaper down the street hurried over to join the board.
A gathering like this would not violate the Brown Act if board members scrupulously avoided talking about irrigation district issues — which might be difficult. This kind of situation should be avoided. The public is unlikely to believe the board members could meet regularly without discussing public business. A newspaper executive’s presence in no way lessens the potential for a violation of the Brown Act.
Q. The agency has won a major victory in the Supreme Court on an issue of importance.
The presiding officer decides to hold an impromptu press conference in order to make a statement to the print and broadcast media. All the other members show up in order to make statements of their own and be seen by the media. Is this gathering illegal? A. Technically there is no exception for this sort of gathering, but as long as members do not state their intentions as to future action to be taken and the press conference is open to the public, it seems harmless.
Technological conferencing
Except for certain nonsubstantive purposes, such as scheduling a special meeting, a conference call including a majority of the members of a legislative body is an unlawful meeting. But, in an effort to keep up with information age technologies, the Brown Act specifically allows a legislative body to use any type of teleconferencing to meet, receive public comment and testimony, deliberate, or conduct a closed session.20 While the Brown Act contains specific requirements for conducting a teleconference, the decision to use teleconferencing is entirely discretionary with the body. No person has a right under the Brown Act to have a meeting by teleconference.
“Teleconference” is defined as “a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 25
audio or video, or both.”21 In addition to the specific requirements relating to teleconferencing, the meeting must comply with all provisions of the Brown Act otherwise applicable. The Brown Act contains the following teleconferencing requirements:22 Teleconferencing may be used for all purposes during any meeting; At least a quorum of the legislative body must participate from locations within the local agency’s jurisdiction;
Additional teleconference locations may be made available for the public; Each teleconference location must be specifically identified in the notice and agenda of the meeting, including a full address and room number, as may be applicable; Agendas must be posted at each teleconference location, even if a hotel room or a residence;
Each teleconference location, including a hotel room or residence, must be accessible to the public and have technology, such as a speakerphone, to enable the public to participate; The agenda must provide the opportunity for the public to address the legislative body directly at each teleconference location; and
All votes must be by roll call.
Q. A member on vacation wants to participate in a meeting of the legislative body and vote by cellular phone from her car while driving from Washington, D.C. to New York. May she? A. She may not participate or vote because she is not in a noticed and posted teleconference location.
The use of teleconferencing to conduct a legislative body meeting presents a variety of issues beyond the scope of this guide to discuss in detail. Therefore, before teleconferencing a meeting, legal counsel for the local agency should be consulted.
Location of meetings
The Brown Act generally requires all regular and special meetings of a legislative body, including retreats and workshops, to be held within the boundaries of the territory over which the local agency exercises jurisdiction.23
An open and publicized meeting of a legislative body may be held outside of agency boundaries if the purpose of the meeting is one of the following:24
Comply with state or federal law or a court order, or attend a judicial conference or administrative proceeding in which the local agency is a party; Inspect real or personal property that cannot be conveniently brought into the local agency’s territory, provided the meeting is limited to items relating to that real or personal property; Q. The agency is considering approving a major retail mall. The developer has built other similar malls, and invites the entire legislative body to visit a mall outside the jurisdiction. May the entire body go?
A. Yes, the Brown Act permits meetings outside the boundaries of the agency for specified reasons and inspection of property is one such reason. The field trip must be treated as a meeting and the public must be allowed to attend.
Agenda Item #5.1.
26 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 3: MEETINGS
Participate in multiagency meetings or discussions; however, such meetings must be held within the boundaries of one of the participating agencies, and all of those agencies must give proper notice;
Meet in the closest meeting facility if the local agency has no meeting facility within its boundaries, or meet at its principal office if that office is located outside the territory over which the agency has jurisdiction;
Meet with elected or appointed federal or California officials when a local meeting would be impractical, solely to discuss a legislative or regulatory issue affecting the local agency and over which the federal or state officials have jurisdiction; Meet in or nearby a facility owned by the agency, provided that the topic of the meeting is limited to items directly related to the facility; or
Visit the office of its legal counsel for a closed session on pending litigation, when to do so would reduce legal fees or costs.25
In addition, the governing board of a school or community college district may hold meetings outside of its boundaries to attend a conference on nonadversarial collective bargaining techniques, interview candidates for school district superintendent, or interview a potential employee from another district.26 A school board may also interview members of the public residing in another district if the board is considering employing that district’s superintendent.
Similarly, meetings of a joint powers authority can occur within the territory of at least one of its member agencies, and a joint powers authority with members throughout the state may meet anywhere in the state.27
Finally, if a fire, flood, earthquake, or other emergency makes the usual meeting place unsafe, the presiding officer can designate another meeting place for the duration of the emergency. News media that have requested notice of meetings must be notified of the designation by the most rapid means of communication available.28
Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 27
Endnotes:
1 California Government Code section 54952.2(a)
2 Wilson v. San Francisco Municipal Railway (1973) 29 Cal.App.3d 870 3 California Government Code section 54954(a)
4 California Government Code section 54956
5 California Government Code section 54956.5
6 California Government Code section 54955
7 California Government Code section 54952.2(c)
8 California Government Code section 54952.2(c)(4)
9 California Government Code section 54952.2(c)(6)
10 California Government Code section 54953.1
11 “The Brown Act,” California Attorney General (2003), p. 10 12 California Government Code section 54952.2(b)(1)
13 Stockton Newspaper Inc. v. Redevelopment Agency (1985) 171 Cal.App.3d 95 14 California Government Code section 54952.2(b)(2)
15 Common Cause v. Stirling (1983) 147 Cal.App.3d 518
16 Roberts v. City of Palmdale (1993) 5 Cal.4th 363
17 California Government Code section 54957.5(a)
18 California Government Code section 54952.2(b)(2)
19 California Government Code section 54952.2; 43 Ops.Cal.Atty.Gen. 36 (1964) 20 California Government Code section 54953(b)(1)
21 California Government Code section 54953(b)(4)
22 California Government Code section 54953
23 California Government Code section 54954(b)
24 California Government Code section 54954(b)(1)-(7)
25 94 Ops.Cal.Atty.Gen. 15 (2011)
26 California Government Code section 54954(c)
27 California Government Code section 54954(d)
28 California Government Code section 54954(e)
Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov.
Agenda Item #5.1.
28 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT29 29 Chapter 4
AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Agendas for regular meetings .......................................................................................... 30 Mailed agenda upon written request ............................................................................... 31 Notice requirements for special meetings ....................................................................... 32 Notices and agendas for adjourned and continued meetings and hearings ................... 32 Notice requirements for emergency meetings ................................................................ 32 Notice of compensation for simultaneous or serial meetings ......................................... 33 Educational agency meetings........................................................................................... 33 Notice requirements for tax or assessment meetings and hearings............................... 33 Non-agenda items............................................................................................................. 34 Responding to the public .................................................................................................. 34 The right to attend and observe meetings ....................................................................... 35 Records and recordings .................................................................................................... 36 The public’s place on the agenda ..................................................................................... 37 Agenda Item #5.1.
30 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Chapter 4
AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Effective notice is essential for an open and public meeting.
Whether a meeting is open or how the public may participate in that meeting is academic if nobody knows about the meeting.
Agendas for regular meetings
Every regular meeting of a legislative body of a local agency — including advisory committees, commissions, or boards, as well as standing committees of legislative bodies — must be preceded by a posted agenda that advises the public of the meeting and the matters to be transacted or discussed.
The agenda must be posted at least 72 hours before the regular meeting in a location “freely accessible to members of the public.”1 The courts have not definitively interpreted the “freely accessible” requirement. The California Attorney General has interpreted this provision to require posting in a location accessible to the public 24 hours a day during the 72-hour period, but any of the 72 hours may fall on a weekend.2 This provision may be satisfied by posting
on a touch screen electronic kiosk accessible without charge to the public 24 hours a day during the 72-hour period.3
While posting an agenda on an agency’s Internet website will not, by itself, satisfy the “freely accessible” requirement since there is no universal access to the internet, an agency has a supplemental obligation to post the agenda on its website if: (1) the local agency has a website; and (2) the legislative body whose meeting is the subject of the agenda is either (a) a governing body, or (b) has members that are compensated, with one or more members that are also members of a governing body.4
Q. May the meeting of a governing body go forward if its agenda was either inadvertently not posted on the city’s website or if the website was not operational during part or all of the 72-hour period preceding the meeting?
A. At a minimum, the Brown Act calls for “substantial compliance” with all agenda posting requirements, including posting to the agency website.5 Should website technical
difficulties arise, seek a legal opinion from your agency attorney. The California Attorney General has opined that technical difficulties which cause the website agenda to become inaccessible for a portion of the 72 hours preceding a meeting do not automatically or inevitably lead to a Brown Act violation, provided the agency can demonstrate substantial compliance.6
This inquiry requires a fact-specific examination of whether the agency or its legislative body made “reasonably effective efforts to notify interested persons of a public meeting” through online posting and other available means.7 The Attorney General’s
opinion suggests that this examination would include an evaluation of how long a technical problem persisted, the efforts made to correct the problem or otherwise ensure that the public was informed, and the actual effect the problem had on public Agenda Item #5.1.