OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 31
awareness, among other factors.8 The City Attorneys’ Department has taken the position that obvious website technical difficulties do not require cancellation of a meeting, provided that the agency meets all other Brown Act posting requirements and the agenda is available on the website once the technical difficulties are resolved.
The agenda must state the meeting time and place and must contain “a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session.”9
Special care should be taken to describe on the agenda each distinct action to be taken by the legislative body, and avoid overbroad descriptions of a “project” if the “project” is actually a set of distinct actions that must each be separately listed on the agenda.10
Q. The agenda for a regular meeting contains the following items of business:
• Consideration of a report regarding traffic on Eighth Street; and • Consideration of contract with ABC Consulting.
Are these descriptions adequate?
A. If the first is, it is barely adequate. A better description would provide the reader with some idea of what the report is about and what is being recommended. The second is not adequate. A better description might read “consideration of a contract with ABC Consulting in the amount of $50,000 for traffic engineering services regarding traffic on Eighth Street.”
Q. The agenda includes an item entitled City Manager’s Report, during which time the city manager provides a brief report on notable topics of interest, none of which are listed on the agenda.
Is this permissible?
A. Yes, so long as it does not result in extended discussion or action by the body.
A brief general description may not be sufficient for closed session agenda items. The Brown Act provides safe harbor language for the various types of permissible closed sessions. Substantial compliance with the safe harbor language is recommended to protect legislative bodies and elected officials from legal challenges.
Mailed agenda upon written request
The legislative body, or its designee, must mail a copy of the agenda or, if requested, the entire agenda packet, to any person who has filed a written request for such materials. These copies shall be mailed at the time the agenda is posted. If requested, these materials must be made available in appropriate alternative formats to persons with disabilities.
A request for notice is valid for one calendar year and renewal requests must be filed following January 1 of each year. The legislative body may establish a fee to recover the cost of providing the service. Failure of the requesting person to receive the agenda does not constitute grounds for invalidation of actions taken at the meeting.11 PRACTICE TIP: Putting together
a meeting agenda requires
careful thought.
Agenda Item #5.1.
32 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Notice requirements for special meetings
There is no express agenda requirement for special meetings, but the notice of the special meeting effectively serves as the agenda and limits the business that may be transacted or discussed.
Written notice must be sent to each member of the legislative body (unless waived in writing by that member) and to each local newspaper of general circulation, and radio or television station that has requested such notice in writing. This notice must be delivered by personal delivery or any other means that ensures receipt, at least 24 hours before the time of the meeting.
The notice must state the time and place of the meeting, as well as all business to be transacted or discussed. It is recommended that the business to be transacted or discussed be described in the same manner that an item for a regular meeting would be described on the agenda — with a brief general description. As noted above, closed session items should be described in accordance with the Brown Act’s safe harbor provisions to protect legislative bodies and elected officials from challenges of noncompliance with notice requirements.
The special meeting notice must also be posted at least 24 hours prior to the special meeting using the same methods as posting an agenda for a regular meeting: (1) at a site that is freely accessible to the public, and (2) on the agency’s 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.12 Notices and agendas for adjourned and continued meetings and hearings
A regular or special meeting can be adjourned and re-adjourned to a time and place specified in the order of adjournment.13 If no time is stated, the meeting is continued to the hour for regular meetings. Whoever is present (even if they are less than a quorum) may so adjourn a meeting; if no member of the legislative body is present, the clerk or secretary may adjourn the meeting. If a meeting is adjourned for less than five calendar days, no new agenda need be posted so long as a new item of business is not introduced.14 A copy of the order of adjournment must be posted within 24 hours after the adjournment, at or near the door of the place where the meeting was held.
A hearing can be continued to a subsequent meeting. The process is the same as for continuing adjourned meetings, except that if the hearing is continued to a time less than 24 hours away, a copy of the order or notice of continuance must be posted immediately following the meeting.15 Notice requirements for emergency meetings
The special meeting notice provisions apply to emergency meetings, except for the 24-hour notice.16 News media that have requested written notice of special meetings must be notified by telephone at least one hour in advance of an emergency meeting, and all telephone numbers provided in that written request must be tried. If telephones are not working, the notice requirements are deemed waived. However, the news media must be notified as soon as possible of the meeting and any action taken.
Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 33
News media may make a practice of having written requests on file for notification of special or emergency meetings. Absent such a request, a local agency has no legal obligation to notify news media of special or emergency meetings — although notification may be advisable in any event to avoid controversy.
Notice of compensation for simultaneous or serial meetings A legislative body that has convened a meeting and whose membership constitutes a quorum of another legislative body, may convene a simultaneous or serial meeting of the other legislative body only after a clerk or member of the convened legislative body orally announces: (1) the amount of compensation or stipend, if any, that each member will be entitled to receive as a result of convening the meeting of the other legislative body; and (2) that the compensation or stipend is provided as a result of convening the meeting of that body.17 No oral disclosure of the amount of the compensation is required if the entire amount of such compensation is prescribed by statute and no additional compensation has been authorized by the local agency. Further, no disclosure is required with respect to reimbursements for actual and necessary expenses incurred in the performance of the member’s official duties, such as for travel, meals, and lodging.
Educational agency meetings
The Education Code contains some special agenda and special meeting provisions.18 However, they are generally consistent with the Brown Act. An item is probably void if not posted.19 A school district board must also adopt regulations to make sure the public can place matters affecting the district’s business on meeting agendas and to address the board on those items.20 Notice requirements for tax or assessment meetings and hearings The Brown Act prescribes specific procedures for adoption by a city, county, special district, or joint powers authority of any new or increased tax or assessment imposed on businesses.21 Though written broadly, these Brown Act provisions do not apply to new or increased real property taxes or assessments as those are governed by the California Constitution, Article XIIIC or XIIID, enacted by Proposition 218. At least one public meeting must be held to allow public testimony on the tax or assessment. In addition, there must also be at least 45 days notice of a public hearing at which the legislative body proposes to enact or increase the tax or assessment. Notice of the public meeting and public hearing must be provided at the same time and in the same document. The public notice relating to general taxes must be provided by newspaper publication. The public notice relating to new or increased business assessments must be provided through a mailing to all business owners proposed to be subject to the new or increased assessment. The agency may recover the reasonable costs of the public meetings, hearings, and notice.
The Brown Act exempts certain fees, standby or availability charges, recurring assessments, and new or increased assessments that are subject to the notice and hearing requirements of the Constitution.22 As a practical matter, the Constitution’s notice requirements have preempted this section of the Brown Act.
Agenda Item #5.1.
34 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Non-agenda items
The Brown Act generally prohibits any action or discussion of items not on the posted agenda.
However, there are three specific situations in which a legislative body can act on an item not on the agenda:23
When a majority decides there is an “emergency situation” (as defined for emergency meetings);
When two-thirds of the members present (or all members if less than two-thirds are present) determine there is a need for immediate action and the need to take action “came to the attention of the local agency subsequent to the agenda being posted.” This exception requires a degree of urgency. Further, an item cannot be considered under this provision if the legislative body or the staff knew about the need to take immediate action before the agenda was posted. A new need does not arise because staff forgot to put an item on the agenda or because an applicant missed a deadline; or When an item appeared on the agenda of, and was continued from, a meeting held not more than five days earlier.
The exceptions are narrow, as indicated by this list. The first two require a specific determination by the legislative body. That determination can be challenged in court and, if unsubstantiated, can lead to invalidation of an action.
“I’d like a two-thirds vote of the board, so we can go ahead and authorize commencement of phase two of the East Area Project,” said Chair Lopez. “It’s not on the agenda. But we learned two days ago that we finished phase one ahead of schedule — believe it or not — and I’d like to keep it that way. Do I hear a motion?”
The desire to stay ahead of schedule generally would not satisfy “a need for immediate action.” Too casual an action could invite a court challenge by a disgruntled resident.
The prudent course is to place an item on the agenda for the next meeting and not risk invalidation.
“We learned this morning of an opportunity for a state grant,” said the chief engineer at the regular board meeting, “but our application has to be submitted in two days. We’d like the board to give us the go ahead tonight, even though it’s not on the agenda.”
A legitimate immediate need can be acted upon even though not on the posted agenda by following a two-step process:
First, make two determinations: 1) that there is an immediate need to take action, and 2) that the need arose after the posting of the agenda. The matter is then placed on the agenda.
Second, discuss and act on the added agenda item.
Responding to the public
The public can talk about anything within the jurisdiction of the legislative body, but the legislative body generally cannot act on or discuss an item not on the agenda. What happens when a member of the public raises a subject not on the agenda?
PRACTICE TIP: Subject to very
limited exceptions, the Brown
Act prohibits any action or
discussion of an item not on the
posted agenda.
Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 35
While the Brown Act does not allow discussion or action on items not on the agenda, it does allow members of the legislative body, or its staff, to “briefly respond” to comments or questions from members of the public, provide a reference to staff or other resources for factual information, or direct staff to place the issue on a future agenda. In addition, even without a comment from the public, a legislative body member or a staff member may ask for information, request a report back, request to place a matter on the agenda for a subsequent meeting (subject to the body’s rules or procedures), ask a question for clarification, make a brief announcement, or briefly report on his or her own activities.24 However, caution should be used to avoid any discussion or action on such items.
Council Member Jefferson: I would like staff to respond to Resident Joe’s complaints during public comment about the repaving project on Elm Street — are there problems with this project?
City Manager Frank: The public works director has prepared a 45-minute power point presentation for you on the status of this project and will give it right now.
Council Member Brown: Take all the time you need; we need to get to the bottom of this. Our residents are unhappy.
It is clear from this dialogue that the Elm Street project was not on the council’s agenda, but was raised during the public comment period for items not on the agenda. Council Member A properly asked staff to respond; the city manager should have given at most a brief response. If a lengthy report from the public works director was warranted, the city manager should have stated that it would be placed on the agenda for the next meeting.
Otherwise, both the long report and the likely discussion afterward will improperly embroil the council in a matter that is not listed on the agenda.
The right to attend and observe meetings
A number of Brown Act provisions protect the public’s right to attend, observe, and participate in meetings.
Members of the public cannot be required to register their names, provide other information, complete a questionnaire, or otherwise “fulfill any condition precedent” to attending a meeting.
Any attendance list, questionnaire, or similar document posted at or near the entrance to the meeting room or circulated at a meeting must clearly state that its completion is voluntary and that all persons may attend whether or not they fill it out.25 No meeting can be held in a facility that prohibits attendance based on race, religion, color, national origin, ethnic group identification, age, sex, sexual orientation, or disability, or that is inaccessible to the disabled. Nor can a meeting be held where the public must make a payment or purchase in order to be present.26 This does not mean, however, that the public is entitled to free entry to a conference attended by a majority of the legislative body.27 While a legislative body may use teleconferencing in connection with a meeting, the public must be given notice of and access to the teleconference location. Members of the public must be able to address the legislative body from the teleconference location.28 Agenda Item #5.1.
36 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Action by secret ballot, whether preliminary or final, is flatly prohibited.29 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.30 Q: The agenda calls for election of the legislative body’s officers. Members of the legislative body want to cast unsigned written ballots that would be tallied by the clerk, who would announce the results. Is this voting process permissible? A: No. The possibility that a public vote might cause hurt feelings among members of the legislative body or might be awkward — or even counterproductive — does not justify a secret ballot.
The legislative body may remove persons from a meeting who willfully interrupt proceedings.31 Ejection is justified only when audience members actually disrupt the proceedings.32 If order cannot be restored after ejecting disruptive persons, the meeting room may be cleared. Members of the news media who have not participated in the disturbance must be allowed to continue to attend the meeting. The legislative body may establish a procedure to re-admit an individual or individuals not responsible for the disturbance.33
Records and recordings
The public has the right to review agendas and other writings distributed by any person to a majority of the legislative body in connection with a matter subject to discussion or consideration at a meeting. Except for privileged documents, those materials are public records and must be made available upon request without delay.34 A fee or deposit as permitted by the California Public Records Act may be charged for a copy of a public record.35 Q: In connection with an upcoming hearing on a discretionary use permit, counsel for the legislative body transmits a memorandum to all members of the body outlining the litigation risks in granting or denying the permit. Must this memorandum be included in the packet of agenda materials available to the public? A: No. The memorandum is a privileged attorney-client communication.
Q: In connection with an agenda item calling for the legislative body to approve a contract, staff submits to all members of the body a financial analysis explaining why the terms of the contract favor the local agency. Must this memorandum be included in the packet of agenda materials available to the public?
A. Yes. The memorandum has been distributed to the majority of the legislative body, relates to the subject matter of a meeting, and is not a privileged communication.
Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 37
A legislative body may discuss or act on some matters without considering written materials. But if writings are distributed to a majority of a legislative body in connection with an agenda item, they must also be available to the public. A non-exempt or otherwise privileged writing distributed to a majority of the legislative body less than 72 hours before the meeting must be made available for inspection at the time of distribution at a public office or location designated for that purpose; and the agendas for all meetings of the legislative body must include the address of this office or location.36 A writing distributed during a meeting must be made public:
At the meeting if prepared by the local agency or a member of its legislative body; or
After the meeting if prepared by some other person.37 Any tape or film record of an open and public meeting made for whatever purpose by or at the direction of the local agency is subject to the California Public Records Act; however, it may be erased or destroyed 30 days after the taping or recording. Any inspection of a video or tape recording is to be provided without charge on a video or tape player made available by the local agency.38 The agency may impose its ordinary charge for copies that is consistent with the California Public Records Act.39
In addition, the public is specifically allowed to use audio or video tape recorders or still or motion picture cameras at a meeting to record the proceedings, absent a reasonable finding by the legislative body that noise, illumination, or obstruction of view caused by recorders or cameras would persistently disrupt the proceedings.40
Similarly, a legislative body cannot prohibit or restrict the public broadcast of its open and public meetings without making a reasonable finding that the noise, illumination, or obstruction of view would persistently disrupt the proceedings.41
The public’s place on the agenda
Every agenda for a regular meeting must allow members of the public to speak on any item of interest, so long as the item is within the subject matter jurisdiction of the legislative body. Further, the public must be allowed to speak on a specific item of business before or during the legislative body’s consideration of it.42
Q. Must the legislative body allow members of the public to show videos or make a power point presentation during the public comment part of the agenda, as long as the subject matter is relevant to the agency and is within the established time limit? A. Probably, although the agency is under no obligation to provide equipment.
Moreover, the legislative body cannot prohibit public criticism of policies, procedures, programs, or services of the agency or the acts or omissions of the legislative body itself. But the Brown Act provides no immunity for defamatory statements.43
PRACTICE TIP: Public speakers
cannot be compelled to give
their name or address as a
condition of speaking. The clerk
or presiding officer may request
speakers to complete a speaker
card or identify themselves for
the record, but must respect a
speaker’s desire for anonymity.
Agenda Item #5.1.
38 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Q. May the presiding officer prohibit a member of the audience from publicly criticizing an agency employee by name during public comments?
A. No, as long as the criticism pertains to job performance.
Q. During the public comment period of a regular meeting of the legislative body, a resident urges the public to support and vote for a candidate vying for election to the body. May the presiding officer gavel the speaker out of order for engaging in political campaign speech?
A. There is no case law on this subject. Some would argue that campaign issues are outside the subject matter jurisdiction of the body within the meaning of Section 54954.3(a).
Others take the view that the speech must be allowed under paragraph (c) of that section because it is relevant to the governing of the agency and an implicit criticism of the incumbents.
The legislative body may adopt reasonable regulations, including time limits, on public comments. Such regulations should be enforced fairly and without regard to speakers’ viewpoints. The legislative body has discretion to modify its regulations regarding time limits on public comment if necessary. For example, the time limit could be shortened to accommodate a lengthy agenda or lengthened to allow additional time for discussion on a complicated matter.44 The public does not need to be given an opportunity to speak on an item that has already been considered by a committee made up exclusively of members of the legislative body at a public meeting, if all interested members of the public had the opportunity to speak on the item before or during its consideration, and if the item has not been substantially changed.45
Notices and agendas for special meetings must also give members of the public the opportunity to speak before or during consideration of an item on the agenda but need not allow members of the public an opportunity to speak on other matters within the jurisdiction of the legislative body.46
Endnotes:
1 California Government Code section 54954.2(a)(1)
2 78 Ops.Cal.Atty.Gen. 327 (1995)
3 88 Ops.Cal.Atty.Gen. 218 (2005)
4 California Government Code sections 54954.2(a)(1) and 54954.2(d) 5 California Government Code section 54960.1(d)(1)
6 ___ Ops.Cal.Atty.Gen.___, No. 14-1204 (January 19, 2016) 16 Cal. Daily Op. Serv. 937 (Cal.A.G.), 2016 WL 375262
7 North Pacifica LLC v. California Coastal Commission (2008) 166 Cal.App.4th 1416, 1432 8 ___ Ops.Cal.Atty.Gen.___, No. 14-1204 (January 19, 2016) 16 Cal. Daily Op. Serv. 937 (Cal.A.G.), 2016 WL 375262, Slip Op. at p. 8
9 California Government Code section 54954.2(a)(1)
10 San Joaquin Raptor Rescue v. County of Merced (2013) 216 Cal.App.4th 1167 (legislative body’s approval of CEQA action (mitigated negative declaration) without specifically listing it on the agenda violates Brown Act, even if the agenda generally describes the development project that is the subject of the CEQA analysis.)
Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 39
11 California Government Code section 54954.1
12 California Government Code sections 54956(a) and (c) 13 California Government Code section 54955
14 California Government Code section 54954.2(b)(3)
15 California Government Code section 54955.1
16 California Government Code section 54956.5
17 California Government Code section 54952.3
18 Education Code sections 35144, 35145 and 72129
19 Carlson v. Paradise Unified School District (1971) 18 Cal.App.3d 196 20 California Education Code section 35145.5
21 California Government Code section 54954.6
22 See Cal.Const.Art.XIIIC, XIIID and California Government Code section 54954.6(h) 23 California Government Code section 54954.2(b)
24 California Government Code section 54954.2(a)(2)
25 California Government Code section 54953.3
26 California Government Code section 54961(a); California Government Code section 11135(a) 27 California Government Code section 54952.2(c)(2)
28 California Government Code section 54953(b)
29 California Government Code section 54953(c)
30 California Government Code section 54953(c)(2)
31 California Government Code section 54957.9.
32 Norse v. City of Santa Cruz (9th Cir. 2010) 629 F.3d 966 (silent and momentary Nazi salute directed towards mayor is not a disruption); Acosta v. City of Costa Mesa (9th Cir. 2013) 718 F.3d 800 (city council may not prohibit “insolent” remarks by members of the public absent actual disruption). 33 California Government Code section 54957.9
34 California Government Code section 54957.5
35 California Government Code section 54957.5(d)
36 California Government Code section 54957.5(b)
37 California Government Code section 54957.5(c)
38 California Government Code section 54953.5(b)
39 California Government Code section 54957.5(d)
40 California Government Code section 54953.5(a)
41 California Government Code section 54953.6
42 California Government Code section 54954.3(a)
43 California Government Code section 54954.3(c)
44 California Government Code section 54954.3(b); Chaffee v. San Francisco Public Library Com. (2005) 134 Cal.App.4th 109; 75 Ops.Cal.Atty.Gen. 89 (1992)
45 California Government Code section 54954.3(a)
46 California Government Code section 54954.3(a)
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.
40 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 ACT41 41 Chapter 5
CLOSED SESSIONS
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 Agenda Item #5.1.
42 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
A closed session is a meeting of a legislative body conducted in private without the attendance of the public or press. A legislative body is authorized to meet in closed session only to the extent expressly authorized by the Brown Act.1
As summarized in Chapter 1 of this Guide, it is clear that the Brown Act must be interpreted liberally in favor of open meetings, and exceptions that limit public access (including the exceptions for closed session meetings) must be narrowly construed.2
The most common purposes of the closed
session provisions in the Brown Act are to avoid revealing confidential information (e.g., prejudicing the city’s position in litigation or compromising the privacy interests of employees).
Closed sessions should be conducted keeping those narrow purposes in mind. It is not enough that a subject is sensitive, embarrassing, or controversial. Without specific authority in the Brown Act for a closed session, a matter to be considered by a legislative body must be discussed in public. As an example, a board of police commissioners cannot meet in closed session to provide general policy guidance to a police chief, even though some matters are sensitive and the commission considers their disclosure contrary to the public interest.3
In this chapter, the grounds for convening a closed session are called “exceptions” because they are exceptions to the general rule that meetings must be conducted openly. In some circumstances, none of the closed session exceptions apply to an issue or information the legislative body wishes to discuss privately. In these cases, it is not proper to convene a closed session, even to protect confidential information. For example, although the Brown Act does authorize closed sessions related to specified types of contracts (e.g., specified provisions of real property agreements, employee labor agreements, and litigation settlement agreements),4 the
Brown Act does not authorize closed sessions for other contract negotiations.
Agendas and reports
Closed session items must be briefly described on the posted agenda and the description must state the specific statutory exemption.5
An item that appears on the open meeting portion of the agenda may not be taken into closed session until it has been properly agendized as a closed session item or unless it is properly added as a closed session item by a two-thirds vote of the body after making the appropriate urgency findings.6
The Brown Act supplies a series of fill in the blank sample agenda descriptions for various types of authorized closed sessions, which provide a “safe harbor” from legal attacks. These sample Chapter 5
CLOSED SESSIONS
PRACTICE TIP: Some problems
over closed sessions arise
because secrecy itself breeds
distrust. The Brown Act does
not require closed sessions and
legislative bodies may do well
to resist the tendency to call a
closed session simply because
it may be permitted. A better
practice is to go into closed
session only when necessary.
Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 43
agenda descriptions cover license and permit determinations, real property negotiations, existing or anticipated litigation, liability claims, threats to security, public employee appointments, evaluations and discipline, labor negotiations, multi-jurisdictional law enforcement cases, hospital boards of directors, medical quality assurance committees, joint powers agencies, and audits by the California State Auditor’s Office.7
If the legislative body intends to convene in closed session, it must include the section of the Brown Act authorizing the closed session in advance on the agenda and it must make a public announcement prior to the closed session discussion. In most cases, the announcement may simply be a reference to the agenda item.8
Following a closed session, the legislative body must provide an oral or written report on certain actions taken and the vote of every elected member present. The timing and content of the report varies according to the reason for the closed session and the action taken.9 The announcements
may be made at the site of the closed session, so long as the public is allowed to be present to hear them.
If there is a standing or written request for documentation, any copies of contracts, settlement agreements, or other documents finally approved or adopted in closed session must be provided to the requestor(s) after the closed session, if final approval of such documents does not rest with any other party to the contract or settlement. If substantive amendments to a contract or settlement agreement approved by all parties requires retyping, such documents may be held until retyping is completed during normal business hours, but the substance of the changes must be summarized for any person inquiring about them.10
The Brown Act does not require minutes, including minutes of closed sessions. However, a legislative body may adopt an ordinance or resolution to authorize a confidential “minute book” be kept to record actions taken at closed sessions.11 If one is kept, it must be made available to members of the legislative body, provided that the member asking to review minutes of a particular meeting was not disqualified from attending the meeting due to a conflict of interest.12 A court may order the disclosure of minute books for the court’s review if a lawsuit makes sufficient claims of an open meeting violation.
Litigation
There is an attorney/client relationship, and legal counsel may use it to protect the confidentiality of privileged written and oral communications to members of the legislative body — outside of meetings. But protection of the attorney/client privilege cannot by itself be the reason for a closed session.13
The Brown Act expressly authorizes closed sessions to discuss what is considered pending litigation. The rules that apply to holding a litigation closed session involve complex, technical definitions and procedures. The essential thing to know is that a closed session can be held by the body to confer with, or receive advice from, its legal counsel when open discussion would prejudice the position of the local agency in litigation in which the agency is, or could become, a party.14 The litigation exception under the Brown Act is narrowly construed and does not permit activities beyond a legislative body’s conferring with its own legal counsel and required support staff.15 For example, it is not permissible to hold a closed session in which settlement negotiations take place between a legislative body, a representative of an adverse party, and a mediator.16 PRACTICE TIP: Pay close
attention to closed session
agenda descriptions. Using
the wrong label can lead
to invalidation of an action
taken in closed session if not
substantially compliant.
Agenda Item #5.1.
44 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
The California Attorney General has opined that if the agency’s attorney is not a participant, a litigation closed session cannot be held.17 In any event, local agency officials should always consult the agency’s attorney before placing this type of closed session on the agenda in order to be certain that it is being done properly.
Before holding a closed session under the pending litigation exception, the legislative body must publicly state the basis for the closed session by identifying one of the following three types of matters: existing litigation, anticipated exposure to litigation, or anticipated initiation of litigation.18 Existing litigation
Q. May the legislative body agree to settle a lawsuit in a properly-noticed closed session, without placing the settlement agreement on an open session agenda for public approval? A. Yes, but the settlement agreement is a public document and must be disclosed on request. Furthermore, a settlement agreement cannot commit the agency to matters that are required to have public hearings.
Existing litigation includes any adjudicatory proceedings before a court, administrative body exercising its adjudicatory authority, hearing officer, or arbitrator. The clearest situation in which a closed session is authorized is when the local agency meets with its legal counsel to discuss a pending matter that has been filed in a court or with an administrative agency and names the local agency as a party. The legislative body may meet under these circumstances to receive updates on the case from attorneys, participate in developing strategy as the case develops, or consider alternatives for resolution of the case. Generally, an agreement to settle litigation may be approved in closed session. However, an agreement to settle litigation cannot be approved in closed session if it commits the city to take an action that is required to have a public hearing.19
Anticipated exposure to litigation against the
local agency
Closed sessions are authorized for legal counsel to inform the legislative body of a significant exposure to litigation against the local agency, but only if based on “existing facts and circumstances” as defined by the Brown Act.20 The legislative body may also meet under this exception to determine whether a closed session is authorized based on information provided by legal counsel or staff. In general, the “existing facts and circumstances” must be publicly disclosed unless they are privileged written communications or not yet known to a potential plaintiff.
Anticipated initiation of litigation by the local agency A closed session may be held under the exception for the anticipated initiation of litigation when the legislative body seeks legal advice on whether to protect the agency’s rights and interests by initiating litigation.
Certain actions must be reported in open session at the same meeting following the closed Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 45
session. Other actions, as where final approval rests with another party or the court, may be announced when they become final and upon inquiry of any person.21 Each agency attorney should be aware of and make the disclosures that are required by the particular circumstances.
Real estate negotiations
A legislative body may meet in closed session with its negotiator to discuss the purchase, sale, exchange, or lease of real property by or for the local agency. A “lease” includes a lease renewal or renegotiation. The purpose is to grant authority to the legislative body’s negotiator on price and terms of payment.22 Caution should be exercised to limit discussion to price and terms of payment without straying to other related issues such as site design, architecture, or other aspects of the project for which the transaction is contemplated.23
Q. May other terms of a real estate transaction, aside from price and terms of payment, be addressed in closed session?
A. No. However, there are differing opinions over the scope of the phrase “price and terms of payment” in connection with real estate closed sessions. Many agency attorneys argue that any term that directly affects the economic value of the transaction falls within the ambit of “price and terms of payment.” Others take a narrower, more literal view of the phrase.
The agency’s negotiator may be a member of the legislative body itself. Prior to the closed session, or on the agenda, the legislative body must identify its negotiators, the real property that the negotiations may concern24 and the names of the parties with whom its negotiator may negotiate.25 After real estate negotiations are concluded, the approval and substance of the agreement must be publicly reported. If its own approval makes the agreement final, the body must report in open session at the public meeting during which the closed session is held. If final approval rests with another party, the local agency must report the approval and the substance of the agreement upon inquiry by any person, as soon as the agency is informed of it.26 “Our population is exploding, and we have to think about new school sites,” said Board Member Jefferson.
“Not only that,” interjected Board Member Tanaka, “we need to get rid of a couple of our older facilities.”
“Well, obviously the place to do that is in a closed session,” said Board Member O’Reilly. “Otherwise we’re going to set off land speculation. And if we even mention closing a school, parents are going to be in an uproar.” A closed session to discuss potential sites is not authorized by the Brown Act. The exception is limited to meeting with its negotiator over specific sites — which must be identified at an open and public meeting.
Agenda Item #5.1.
46 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
Public employment
The Brown Act authorizes a closed session “to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee.”27 The purpose of this exception — commonly referred to as the “personnel exception” — is to avoid undue publicity or embarrassment for an employee or applicant for employment and to allow full and candid discussion by the legislative body; thus, it is restricted to discussing individuals, not general personnel policies.28 The body must possess the power to appoint, evaluate, or dismiss the employee to hold a closed session under this exception.29 That authority may be delegated to a subsidiary appointed body.30 An employee must be given at least 24 hours notice of any closed session convened to hear specific complaints or charges against him or her. This occurs when the legislative body is reviewing evidence, which could include live testimony, and adjudicating conflicting testimony offered as evidence. A legislative body may examine (or exclude) witnesses,31 and the California Attorney General has opined that, when an affected employee and advocate have an official or essential role to play, they may be permitted to participate in the closed session.32 The employee has the right to have the specific complaints and charges discussed in a public session rather than closed session.33 If the employee is not given the 24-hour prior notice, any disciplinary action is null and void.34
However, an employee is not entitled to notice and a hearing where the purpose of the closed session is to consider a performance evaluation. The Attorney General and the courts have determined that personnel performance evaluations do not constitute complaints and charges, which are more akin to accusations made against a person.35 Q. Must 24 hours notice be given to an employee whose negative performance evaluation is to be considered by the legislative body in closed session? A. No, the notice is reserved for situations where the body is to hear complaints and charges from witnesses.
Correct labeling of the closed session on the agenda is critical. A closed session agenda that identified discussion of an employment contract was not sufficient to allow dismissal of an employee.36 An incorrect agenda description can result in invalidation of an action and much embarrassment.
For purposes of the personnel exception, “employee” specifically includes an officer or an independent contractor who functions as an officer or an employee. Examples of the former include a city manager, district general manager or superintendent. Examples of the latter Include a legal counsel or engineer hired on contract to act as local agency attorney or chief engineer.
Elected officials, appointees to the governing body or subsidiary bodies, and independent contractors other than those discussed above are not employees for purposes of the personnel exception.37 Action on individuals who are not “employees” must also be public — including discussing and voting on appointees to committees, or debating the merits of independent contractors, or considering a complaint against a member of the legislative body itself.
PRACTICE TIP: Discussions of
who to appoint to an advisory
body and whether or not to
censure a fellow member of
the legislative body must be
held in the open.
Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 47
The personnel exception specifically prohibits discussion or action on proposed compensation in closed session, except for a disciplinary reduction in pay. Among other things, that means there can be no personnel closed sessions on a salary change (other than a disciplinary reduction) between any unrepresented individual and the legislative body. However, a legislative body may address the compensation of an unrepresented individual, such as a city manager, in a closed session as part of a labor negotiation (discussed later in this chapter), yet another example of the importance of using correct agenda descriptions.
Reclassification of a job must be public, but an employee’s ability to fill that job may be considered in closed session.
Any closed session action to appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee must be reported at the public meeting during which the closed session is held. That report must identify the title of the position, but not the names of all persons considered for an employment position.38 However, a report on a dismissal or non-renewal of an employment contract must be deferred until administrative remedies, if any, are exhausted.39
“I have some important news to announce,” said Mayor Garcia. “We’ve decided to terminate the contract of the city manager, effective immediately.
The council has met in closed session and we’ve negotiated six months severance pay.”
“Unfortunately, that has some serious budget consequences, so we’ve had to delay phase two of the East Area Project.”
This may be an improper use of the personnel closed session if the council agenda described the item as the city manager’s evaluation. In addition, other than labor negotiations, any action on individual compensation must be taken in open session.
Caution should be exercised to not discuss in closed session issues, such as budget impacts in this hypothetical, beyond the scope of the posted closed session notice.
Labor negotiations
The Brown Act allows closed sessions for some aspects of labor negotiations. Different provisions (discussed below) apply to school and community college districts.
A legislative body may meet in closed session to instruct its bargaining representatives, which may be one or more of its members,40 on employee salaries and fringe benefits for both represented (“union”) and non-represented employees. For represented employees, it may also consider working conditions that by law require negotiation. For the purpose of labor negotiation closed sessions, an “employee” includes an officer or an independent contractor who functions as an officer or an employee, but independent contractors who do not serve in the capacity of an officer or employee are not covered by this closed session exception.41 These closed sessions may take place before or during negotiations with employee representatives. Prior to the closed session, the legislative body must hold an open and public session in which it identifies its designated representatives.
PRACTICE TIP: The personnel
exception specifically prohibits
discussion or action on
proposed compensation in
closed session except for a
disciplinary reduction in pay.
Agenda Item #5.1.
48 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
During its discussions with representatives on salaries and fringe benefits, the legislative body may also discuss available funds and funding priorities, but only to instruct its representative. The body may also meet in closed session with a conciliator who has intervened in negotiations. 42 The approval of an agreement concluding labor negotiations with represented employees must be reported after the agreement is final and has been accepted or ratified by the other party. The report must identify the item approved and the other party or parties to the negotiation.43 The labor closed sessions specifically cannot include final action on proposed compensation of one or more unrepresented employees.
Labor negotiations — school and community college districts Employee relations for school districts and community college districts are governed by the Rodda Act, where different meeting and special notice provisions apply. The entire board, for example, may negotiate in closed sessions.
Four types of meetings are exempted from compliance with the Rodda Act:
1. A negotiating session with a recognized or certified employee organization;
2. A meeting of a mediator with either side;
3. A hearing or meeting held by a fact finder or arbitrator; and
4. A session between the board and its bargaining agent, or the board alone, to discuss its position regarding employee working conditions and instruct its agent.44 Public participation under the Rodda Act also takes another form.45 All initial proposals of both sides must be presented at public meetings and are public records. The public must be given reasonable time to inform itself and to express its views before the district may adopt its initial proposal. In addition, new topics of negotiations must be made public within 24 hours. Any votes on such a topic must be followed within 24 hours by public disclosure of the vote of each member.46 The final vote must be in public.
Other Education Code exceptions
The Education Code governs student disciplinary meetings by boards of school districts and community college districts. District boards may hold a closed session to consider the suspension or discipline of a student, if a public hearing would reveal personal, disciplinary, or academic information about the student contrary to state and federal pupil privacy law. The student’s parent or guardian may request an open meeting.47
Community college districts may also hold closed sessions to discuss some student disciplinary matters, awarding of honorary degrees, or gifts from donors who prefer to remain anonymous.48 Kindergarten through 12th grade districts may also meet in closed session to review the contents of the statewide assessment instrument.49
Joint Powers Authorities
The legislative body of a joint powers authority may adopt a policy regarding limitations on disclosure of confidential information obtained in closed session, and may meet in closed session to discuss information that is subject to the policy.50 PRACTICE TIP: Prior to the
closed session, the legislative
body must hold an open
and public session in which
it identifies its designated
representatives.
PRACTICE TIP: Attendance
by the entire legislative body
before a grand jury would not
constitute a closed session
meeting under the Brown Act.
Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 49
License applicants with criminal records
A closed session is permitted when an applicant, who has a criminal record, applies for a license or license renewal and the legislative body wishes to discuss whether the applicant is sufficiently rehabilitated to receive the license. The applicant and the applicant’s attorney are authorized to attend the closed session meeting. If the body decides to deny the license, the applicant may withdraw the application. If the applicant does not withdraw, the body must deny the license in public, immediately or at its next meeting. No information from the closed session can be revealed without consent of the applicant, unless the applicant takes action to challenge the denial.51 Public security
Legislative bodies may meet in closed session to discuss matters posing a threat to the security of public buildings, essential public services, including water, sewer, gas, or electric service, or to the public’s right of access to public services or facilities over which the legislative body has jurisdiction. Closed session meetings for these purposes must be held with designated security or law enforcement officials including the Governor, Attorney General, district attorney, agency attorney, sheriff or chief of police, or their deputies or agency security consultant or security operations manager.52 Action taken in closed session with respect to such public security issues is not reportable action.
Multijurisdictional law enforcement agency
A joint powers agency formed to provide law enforcement services (involving drugs; gangs; sex crimes; firearms trafficking; felony possession of a firearm; high technology, computer, or identity theft; human trafficking; or vehicle theft) to multiple jurisdictions may hold closed sessions to discuss case records of an on-going criminal investigation, to hear testimony from persons involved in the investigation, and to discuss courses of action in particular cases.53 The exception applies to the legislative body of the joint powers agency and to any body advisory to it. The purpose is to prevent impairment of investigations, to protect witnesses and informants, and to permit discussion of effective courses of action.54 Hospital peer review and trade secrets
Two specific kinds of closed sessions are allowed for district hospitals and municipal hospitals, under other provisions of law.55
1. A meeting to hear reports of hospital medical audit or quality assurance committees, or for related deliberations. However, an applicant or medical staff member whose staff privileges are the direct subject of a hearing may request a public hearing.
2. A meeting to discuss “reports involving trade secrets” — provided no action is taken.
A “trade secret” is defined as information which is not generally known to the public or competitors and which: 1) “derives independent economic value, actual or potential” by virtue of its restricted knowledge; 2) is necessary to initiate a new hospital service or program or facility; and 3) would, if prematurely disclosed, create a substantial probability of depriving the hospital of a substantial economic benefit.
The provision prohibits use of closed sessions to discuss transitions in ownership or management, or the district’s dissolution.56
Agenda Item #5.1.
50 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
Other legislative bases for closed session
Since any closed session meeting of a legislative body must be authorized by the Legislature, it is important to carefully review the Brown Act to determine if there is a provision that authorizes a closed session for a particular subject matter. There are some less frequently encountered topics that are authorized to be discussed by a legislative body in closed session under the Brown Act, including: a response to a confidential final draft audit report from the Bureau of State Audits,57 consideration of the purchase or sale of particular pension fund investments by a legislative body of a local agency that invests pension funds,58 hearing a charge or complaint from a member enrolled in a health plan by a legislative body of a local agency that provides Medi-Cal services,59 discussions by a county board of supervisors that governs a health plan licensed pursuant to the Knox-Keene Health Care Services Plan Act related to trade secrets or contract negotiations concerning rates of payment,60 and discussions by an insurance pooling joint powers agency related to a claim filed against, or liability of, the agency or a member of the agency.61 Who may attend closed sessions
Meetings of a legislative body are either fully open or fully closed; there is nothing in between.
Therefore, local agency officials and employees must pay particular attention to the authorized attendees for the particular type of closed session. As summarized above, the authorized attendees may differ based on the topic of the closed session. Closed sessions may involve only the members of the legislative body and only agency counsel, management and support staff, and consultants necessary for consideration of the matter that is the subject of closed session, with very limited exceptions for adversaries or witnesses with official roles in particular types of hearings (e.g., personnel disciplinary hearings and license hearings). In any case, individuals who do not have an official role in the closed session subject matters must be excluded from closed sessions.63
Q. May the lawyer for someone suing the agency attend a closed session in order to explain to the legislative body why it should accept a settlement offer? A. No, attendance in closed sessions is reserved exclusively for the agency’s advisors.
The confidentiality of closed session discussions
The Brown Act explicitly prohibits the unauthorized disclosure of confidential information acquired in a closed session by any person present, and offers various remedies to address breaches of confidentiality.64 It is incumbent upon all those attending lawful closed sessions to protect the confidentiality of those discussions. One court has held that members of a legislative body cannot be compelled to divulge the content of closed session discussions through the discovery process.65 Only the legislative body acting as a body may agree to divulge confidential closed session information; regarding attorney/client privileged communications, the entire body is the holder of the privilege and only the entire body can decide to waive the privilege.66 PRACTICE TIP: Meetings are
either open or closed. There is
nothing “in between.”62
Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 51
Before adoption of the Brown Act provision specifically prohibiting disclosure of closed session communications, agency attorneys and the Attorney General long opined that officials have a fiduciary duty to protect the confidentiality of closed session discussions. The Attorney General issued an opinion that it is “improper” for officials to disclose information received during a closed session regarding pending litigation,67 though the Attorney General has also concluded that a local agency is preempted from adopting an ordinance criminalizing public disclosure of closed session discussions.68 In any event, in 2002, the Brown Act was amended to prescribe particular remedies for breaches of confidentiality. These remedies include injunctive relief; and, if the breach is a willful disclosure of confidential information, the remedies include disciplinary action against an employee, and referral of a member of the legislative body to the grand jury.69 The duty of maintaining confidentiality, of course, must give way to the responsibility to disclose improper matters or discussions that may come up in closed sessions. In recognition of this public policy, under the Brown Act, a local agency may not penalize a disclosure of information learned during a closed session if the disclosure: 1) is made in confidence to the district attorney or the grand jury due to a perceived violation of law; 2) is an expression of opinion concerning the propriety or legality of actions taken in closed session, including disclosure of the nature and extent of the illegal action; or 3) is information that is not confidential.70 The interplay between these possible sanctions and an official’s first amendment rights is complex and beyond the scope of this guide. Suffice it to say that this is a matter of great sensitivity and controversy.
“I want the press to know that I voted in closed session against filing the eminent domain action,” said Council Member Chang.
“Don’t settle too soon,” reveals Council Member Watson to the property owner, over coffee. “The city’s offer coming your way is not our bottom line.” The first comment to the press may be appropriate if it is a part of an action taken by the City Council in closed session that must be reported publicly.71 The second comment to the property owner is not — disclosure of confidential information acquired in closed session is expressly prohibited and harmful to the agency.
PRACTICE TIP: There is a
strong interest in protecting the
confidentiality of proper and
lawful closed sessions.
Agenda Item #5.1.
52 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
ENDNOTES:
1 California Government Code section 54962
2 California Constitution, Art. 1, section 3
3 61 Ops.Cal.Atty.Gen. 220 (1978); but see California Government Code section 54957.8 (multijurisdictional law enforcement agencies are authorized to meet in closed session to discuss the case records of ongoing criminal investigations, and other related matters). 4 California Government Code section 54957.1
5 California Government Code section 54954.5
6 California Government Code section 54954.2
7 California Government Code section 54954.5
8 California Government Code sections 54956.9 and 54957.7 9 California Government Code section 54957.1(a)
10 California Government Code section 54957.1(b)
11 California Government Code section 54957.2
12 Hamilton v. Town of Los Gatos (1989) 213 Cal.App.3d 1050; 2 Cal.Code Regs. section 18707 13 Roberts v. City of Palmdale (1993) 5 Cal.4th 363
14 California Government Code section 54956.9; Shapiro v. Board of Directors of Center City Development Corp. (2005) 134 Cal.App.4th 170 (agency must be a party to the litigation). 15 82 Ops.Cal.Atty.Gen. 29 (1999)
16 Page v. Miracosta Community College District (2009) 180 Cal.App.4th 471 17 “The Brown Act,” California Attorney General (2003), p. 40 18 California Government Code section 54956.9(g)
19 Trancas Property Owners Association v. City of Malibu (2006) 138 Cal.App.4th 172 20 Government Code section 54956.9(e)
21 California Government Code section 54957.1
22 California Government Code section 54956.8
23 Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904; see also 93 Ops.Cal.Atty.Gen. 51 (2010) (redevelopment agency may not convene a closed session to discuss rehabilitation loan for a property already subleased to a loan recipient, even if the loan Incorporates some of the sublease terms and includes an operating covenant governing the property); 94 Ops.Cal.Atty.Gen. 82 (2011) (real estate closed session may address form, manner and timing of consideration and other items that cannot be disclosed without revealing price and terms).
24 73 Ops.Cal.Atty.Gen. 1 (1990)
25 California Government Code sections 54956.8 and 54954.5(b) 26 California Government Code section 54957.1(a)(1)
27 California Government Code section 54957(b)
28 63 Ops.Cal.Atty.Gen. 153 (1980); but see Duvall v. Board of Trustees (2000) 93 Cal.App.4th 902 (board may discuss personnel evaluation criteria, process and other preliminary matters in closed session but only if related to the evaluation of a particular employee). 29 Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.App.4th 1165; 85 Ops.Cal.Atty.Gen. 77 (2002)
30 Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.App.4th 1165; 80 Ops.Cal.Atty.
Gen. 308 (1997). Interviews of candidates to fill a vacant staff position conducted by a temporary committee appointed by the governing body may be done in closed session.
Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 53
31 California Government Code section 54957(b)(3)
32 88 Ops.Cal.Atty.Gen. 16 (2005)
33 Morrison v. Housing Authority of the City of Los Angeles (2003) 107 Cal.App.4th 860 34 California Government Code section 54957(b); but see Bollinger v. San Diego Civil Service Commission (1999) 71 Cal.App.4th 568 (notice not required for closed session deliberations regarding complaints or charges, when there was a public evidentiary hearing prior to closed session). 35 78 Ops.Cal.Atty.Gen. 218 (1995); Bell v. Vista Unified School District (2000) 82 Cal.App.4th 672; Furtado v. Sierra Community College (1998) 68 Cal.App.4th 876; Fischer v. Los Angeles Unified School District (1999) 70 Cal.App.4th 87
36 Moreno v. City of King (2005) 127 Cal.App.4th 17
37 California Government Code section 54957
38 Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.App.4th 1165 39 California Government Code section 54957.1(a)(5)
40 California Government Code section 54957.6
41 California Government Code section 54957.6(b); see also 98 Ops.Cal.Atty.Gen. 41 (2015) (a project labor agreement between a community college district and workers hired by contractors or subcontractors is not a proper subject of closed session for labor negotiations because the workers are not “employees” of the district).
42 California Government Code section 54957.6; and 51 Ops.Cal.Atty.Gen. 201 (1968) 43 California Government Code section 54957.1(a)(6)
44 California Government Code section 3549.1
45 California Government Code section 3540
46 California Government Code section 3547
47 California Education Code section 48918; but see Rim of the World Unified School District v. Superior Court (2003) 104 Cal.App.4th 1393 (Section 48918 preempted by the Federal Family Educational Right and Privacy Act in regard to expulsion proceedings). 48 California Education Code section 72122
49 California Education Code section 60617
50 California Government Code section 54956.96
51 California Government Code section 54956.7
52 California Government Code section 54957
53 McKee v. Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force (2005) 134 Cal.
App.4th 354
54 California Government Code section 54957.8
55 California Government Code section 54962
56 California Health and Safety Code section 32106
57 California Government Code section 54956.75
58 California Government Code section 54956.81
59 California Government Code section 54956.86
60 California Government Code section 54956.87
61 California Government Code section 54956.95
62 46 Ops.Cal.Atty.Gen. 34 (1965)
63 82 Ops.Cal.Atty.Gen. 29 (1999)
Agenda Item #5.1.
54 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
64 Government Code section 54963
65 Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 327; see also California Government Code section 54963.
66 Roberts v. City of Palmdale (1993) 5 Cal.4th 363
67 80 Ops.Cal.Atty.Gen. 231 (1997)
68 76 Ops.Cal.Atty.Gen. 289 (1993)
69 California Government Code section 54963
70 California Government Code section 54963
71 California Government Code section 54957.1
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 ACT55 55 Chapter 6
REMEDIES
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.
56 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 6: REMEDIES
Certain violations of the Brown Act are designated as misdemeanors, although by far the most commonly used enforcement provisions are those that authorize civil actions to invalidate specified actions taken in violation of the Brown Act and to stop or prevent future violations. Still, despite all the safeguards and remedies to enforce them, it is ultimately impossible for the public to monitor every aspect of public officials’ interactions. Compliance ultimately results from regular training and a good measure of self-regulation on the part of public officials. This chapter discusses the remedies available to the public when that self-regulation is ineffective.
Invalidation
Any interested person, including the district attorney, may seek to invalidate certain actions of a legislative body on the ground that they violate the Brown Act.1 Violations of the Brown Act, however, cannot be invalidated if they involve the following types of actions:
Those taken in substantial compliance with the law. No Brown Act violation is found when the given notice substantially complies with the Brown Act, even when the notice erroneously cites to the wrong Brown Act section, but adequately advises the public that the Board will meet with legal counsel to discuss potential litigation in closed session;2 Those involving the sale or issuance of notes, bonds or other indebtedness, or any related contracts or agreements;
Those creating a contractual obligation, including a contract awarded by competitive bid for other than compensation for professional services, upon which a party has in good faith relied to its detriment;
Those connected with the collection of any tax; or
Those in which the complaining party had actual notice at least 72 hours prior to the regular meeting or 24 hours prior to the special meeting, as the case may be, at which the action is taken.
Before filing a court action seeking invalidation, a person who believes that a violation has occurred must send a written “cure or correct” demand to the legislative body. This demand must clearly describe the challenged action and the nature of the claimed violation. This demand must be sent within 90 days of the alleged violation or 30 days if the action was taken in open session but in violation of Section 54954.2, which requires (subject to specific exceptions) that only properly agendized items are acted on by the governing body during a meeting.3 The legislative
body then has up to 30 days to cure and correct its action. If it does not act, any lawsuit must be filed within the next 15 days. The purpose of this requirement is to offer the body an opportunity to consider whether a violation has occurred and to weigh its options before litigation is filed.
Chapter 6
REMEDIES
Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 57
Although just about anyone has standing to bring an action for invalidation,4 the challenger must show prejudice as a result of the alleged violation.5
An action to invalidate fails to state a cause of
action against the agency if the body deliberated but did not take an action.6 Applicability to Past Actions
Any interested person, including the district attorney, may file a civil action to determine whether past actions of a legislative body occurring on or after January 1, 2013 constitute violations of the Brown Act and are subject to a mandamus, injunction, or declaratory relief action.7 Before filing
an action, the interested person must, within nine months of the alleged violation of the Brown Act, submit a “cease and desist” letter to the legislative body, clearly describing the past action and the nature of the alleged violation.8
The legislative body has 30 days after receipt of the letter to provide an unconditional commitment to cease and desist from the past action.9 If the body
fails to take any action within the 30-day period or takes an action other than an unconditional commitment, a lawsuit may be filed within 60 days.10
The legislative body’s unconditional commitment must be approved at a regular or special meeting as a separate item of business and not on the consent calendar.11 The unconditional commitment must be substantially in the form set forth in the Brown Act.12 No legal action may thereafter be commenced regarding the past action.13 However, an action of the legislative body in violation of its unconditional commitment constitutes an independent violation of the Brown Act and a legal action consequently may be commenced without following the procedural requirements for challenging past actions.14
The legislative body may rescind its prior unconditional commitment by a majority vote of its membership at a regular meeting as a separate item of business not on the consent calendar. At least 30 days written notice of the intended rescission must be given to each person to whom the unconditional commitment was made and to the district attorney. Upon rescission, any interested person may commence a legal action regarding the past actions without following the procedural requirements for challenging past actions.15
Civil action to prevent future violations
The district attorney or any interested person can file a civil action asking the court to:
Stop or prevent violations or threatened violations of the Brown Act by members of the legislative body of a local agency;
Determine the applicability of the Brown Act to actions or threatened future action of the legislative body;
Determine whether any rule or action by the legislative body to penalize or otherwise discourage the expression of one or more of its members is valid under state or federal law; or
Compel the legislative body to tape record its closed sessions.
PRACTICE TIP: A lawsuit to
invalidate must be preceded by
a demand to cure and correct
the challenged action in order
to give the legislative body
an opportunity to consider its
options. The Brown Act does not
specify how to cure or correct
a violation; the best method
is to rescind the action being
complained of and start over, or
reaffirm the action if the local
agency relied on the action and
rescinding the action would
prejudice the local agency.
Agenda Item #5.1.
58 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 6: REMEDIES
It is not necessary for a challenger to prove a past pattern or practice of violations by the local agency in order to obtain injunctive relief. A court may presume when issuing an injunction that a single violation will continue in the future where the public agency refuses to admit to the alleged violation or to renounce or curtail the practice.16 Note, however, that a court may not compel elected officials to disclose their recollections of what transpired in a closed session.17 Upon finding a violation of the Brown Act pertaining to closed sessions, a court may compel the legislative body to tape record its future closed sessions. In a subsequent lawsuit to enforce the Brown Act alleging a violation occurring in closed session, a court may upon motion of the plaintiff review the tapes if there is good cause to think the Brown Act has been violated, and make public the relevant portion of the closed session recording.
Costs and attorney’s fees
Someone who successfully invalidates an action taken in violation of the Brown Act or who successfully enforces one of the Brown Act’s civil remedies may seek court costs and reasonable attorney’s fees. Courts have held that attorney’s fees must be awarded to a successful plaintiff unless special circumstances exist that would make a fee award against the public agency unjust.18 When evaluating how to respond to assertions that the Brown Act has been violated, elected officials and their lawyers should assume that attorney’s fees will be awarded against the agency if a violation of the Act is proven.
An attorney’s fee award may only be directed against the local agency and not the individual members of the legislative body. If the local agency prevails, it may be awarded court costs and attorney’s fees if the court finds the lawsuit was clearly frivolous and lacking in merit.19 Criminal complaints
A violation of the Brown Act by a member of the legislative body who acts with the improper intent described below is punishable as a misdemeanor.20 A criminal violation has two components. The first is that there must be an overt act — a member of a legislative body must attend a meeting at which action is taken in violation of the Brown Act.21 “Action taken” is not only an actual vote, but also a collective decision, commitment or promise by a majority of the legislative body to make a positive or negative decision.22 If the meeting involves mere deliberation without the taking of action, there can be no misdemeanor penalty.
A violation occurs for a tentative as well as final decision.23 In fact, criminal liability is triggered by a member’s participation in a meeting in violation of the Brown Act — not whether that member has voted with the majority or minority, or has voted at all.
The second component of a criminal violation is that action is taken with the intent of a member “to deprive the public of information to which the member knows or has reason to know the public is entitled” by the Brown Act.24
PRACTICE TIP: Attorney’s
fees will likely be awarded if
a violation of the Brown Act is
proven.
Agenda Item #5.1.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 59
As with other misdemeanors, the filing of a complaint is up to the district attorney. Although criminal prosecutions of the Brown Act are uncommon, district attorneys in some counties aggressively monitor public agencies’ adherence to the requirements of the law.
Some attorneys and district attorneys take the position that a Brown Act violation may be pursued criminally under Government Code section 1222.25 There is no case law to support this view; if anything, the existence of an express criminal remedy within the Brown Act would suggest otherwise.26
Voluntary resolution
Arguments over Brown Act issues often become emotional on all sides. Newspapers trumpet relatively minor violations, unhappy residents fume over an action, and legislative bodies clam up about information better discussed in public. Hard lines are drawn and rational discussion breaks down. The district attorney or even the grand jury occasionally becomes involved. Publicity surrounding alleged violations of the Brown Act can result in a loss of confidence by constituents in the legislative body. There are times when it may be preferable to consider re-noticing and rehearing, rather than litigating, an item of significant public interest, particularly when there is any doubt about whether the open meeting requirements were satisfied.
At bottom, agencies that regularly train their officials and pay close attention to the requirements of the
Brown Act will have little reason to worry about
enforcement.
ENDNOTES:
1 California Government Code section 54960.1.
Invalidation is limited to actions that violate the
following sections of the Brown Act: section 54953 (the basic open meeting provision); sections 54954.2 and
54954.5 (notice and agenda requirements for regular
meetings and closed sessions); 54954.6 (tax hearings);
54956 (special meetings); and 54596.5 (emergency
situations). Violations of sections not listed above
cannot give rise to invalidation actions, but are subject to the other remedies listed in section 54960.1.
2 Castaic Lake Water Agency v. Newhall County Water
District (2015) 238 Cal.App.4th 1196, 1198
3 California Government Code section 54960.1 (b) and
(c)(1)
4 McKee v. Orange Unified School District (2003) 110 Cal.
App.4th 1310, 1318-1319
5 Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547, 556, 561 6 Boyle v. City of Redondo Beach (1999) 70 Cal.App.4th 1109, 1116-17, 1118 7 Government Code Section 54960.2(a); Senate Bill No. 1003, Section 4 (2011-2012 Session) 8 Government Code Sections 54960.2(a)(1), (2)
9 Government Code Section 54960.2(b)
Agenda Item #5.1.
60 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 6: REMEDIES
10 Government Code Section 54960.2(a)(4)
11 Government Code Section 54960.2(c)(2)
12 Government Code Section 54960.2(c)(1)
13 Government Code Section 54960.2(c)(3)
14 Government Code Section 54960.2(d)
15 Government Code Section 54960.2(e)
16 California Alliance for Utility Safety and Education (CAUSE) v. City of San Diego (1997) 56 Cal.App.4th 1024; Common Cause v. Stirling (1983) 147 Cal.App.3d 518, 524; Accord Shapiro v. San Diego City Council (2002) 96 Cal. App. 4th 904, 916 & fn.6
17 Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 334-36 18 Los Angeles Times Communications, LLC v. Los Angeles County Board of Supervisors (2003) 112 Cal.
App.4th 1313, 1327-29 and cases cited therein
19 California Government Code section 54960.5
20 California Government Code section 54959. A misdemeanor is punishable by a fine of up to $1,000 or up to six months in county jail, or both. California Penal Code section 19. Employees of the agency who participate in violations of the Brown Act cannot be punished criminally under section 54959.
However, at least one district attorney instituted criminal action against employees based on the theory that they criminally conspired with the members of the legislative body to commit a crime under section 54949.
21 California Government Code section 54959
22 California Government Code section 54952.6
23 61 Ops.Cal.Atty.Gen.283 (1978)
24 California Government Code section 54959
25 California Government Code section 1222 provides that “[e]very wilful omission to perform any duty enjoined by law upon any public officer, or person holding any public trust or employment, where no special provision is made for the punishment of such delinquency, is punishable as a misdemeanor.” 26 The principle of statutory construction known as expressio unius est exclusio alterius supports the view that section 54959 is the exclusive basis for criminal liability under the Brown Act.
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.
Agenda Item #5.1.
1400 K Street, Suite 400, Sacramento, CA 95814
Phone: (916) 658-8200 | Fax: (916) 658-8240
www.cacities.org | www.cacities.org/events | www.westerncity.com Agenda Item #5.1.
CITY OF ST. HELENA
RESOLUTION NO. 2021- 63
RESCINDING RESOLUTION NO. 2019- 18 ADOPTING RULES OF
PROCEDURE FOR THE CONDUCT OF COUNCIL MEETINGS AND CITY
COUNCIL STANDARDS OF CONDUCT, AND RE-ESTABLISHING
RULES OF PROCEDURE FOR THE CONDUCT OF COUNCIL
MEETINGS AND RE-ESTABLISHING CITY COUNCIL STANDARDS OF
CONDUCT
RECITALS
A. WHEREAS, City Council Rules of Procedure for the Conduct of Council Meetings are established to provide an effective environment for the City Council to provide leadership; and
B. WHEREAS, City Council Standards of Conduct are established to provide guidance to Council Members to assist in fully understanding the role and scope of the responsibilities of office; and
C. WHEREAS, City Council reviews City Council Rules of Procedure for the Conduct of Council Meetings and reviews City Council Standards of Conduct and revise as deemed necessary; and
D. WHEREAS, on May 11, 2021 the City Council adopted a new Council Vision and Council Mission; and
E. The City Council Rules of Procedure for the Conduct of Council Meetings & Standards of Conduct have been updated to include the new Council Vision and Council Mission.
RESOLUTION
NOW, THEREFORE, the City Council of the City of St. Helena resolves as follows:
1. Resolution No. 2019- 18 Adopting Rules of Procedure for the Conduct of Council Meetings is hereby rescinded; and
2. City Council Rules of Procedure and Standards of Conduct are adopted and hereby made part of this resolution. Attached hereby as Exhibit A.
Approved at a Regular Meeting of the St. Helena City Council on May 11, 2021, by the following vote:
Agenda Item #5.1.
Mayor Geoff Ellsworth: Yes
Vice Mayor Paul Dohring: Yes
Council Member Anna Chouteau: Yes
Council Member Lester Hardy:
Council Member Eric Hall
APPROVED:
C
Ce orth, Mayor
Yes
Yes
ATTEST:
I ..: v i (
Agenda Item #5.1.
Exhibi A- City Council Rules o Pmcedure and S andards of Conduct Agenda Item #5.1.
Exhibit A
CITY COUNCIL
RULES OF PROCEDURE FOR THE
CONDUCT OF COUNCIL
MEETINGS
E'
STANDARDS OF CONDUCT
Agenda Item #5.1.
TABLE OF CONTENTS
1. PURPOSE .................................................................................................... 4
1. 1 Council- Manager Form of Government .............................................. 4
1. 2 City Council Vision and City Council Mission ..................................... 4
2. RULES OF PROCEDURE FOR THE CONDUCT OF
COUNCIL MEETINGS ............................................................................... 5
2. 1 Regular Meeting ................................................................................ 5 22 Special, Emergency, and Adjourned Meetings .................................. 5
2. 3 Regular Meeting Agenda ................................................................... 6
2. 4 Public Testimony and Comments Before the Council ........................ 7
2. 5 Roll Call and Voice Votes .................................................................. 8
2. 6 Consent Items ............................................................................. 9
2.7 Reports ....................................................................................... 9
2. 8 Closing Time of Council Meetings ..................................................... 9
2.9 Old Business ................................................................................. 9
2. 10 New Business ........................ ....................................................... 9
2. 11 Office of the Mayor ...................................................................... 10
2. 12 Office of Mayor Pro Tempore (Vice Mayor) ................................ 10
2. 13 Action by the Council ................................................................... 10
2. 14 Adoption by Majority Vote ........................ ................................... 11
2. 15 Discussion ................................................................................... 11
2. 16 Ratification of Actions .................................................................. 11
2.17 Procedural Motions ........................ ............................................. 11
2. 18 Withdrawal of Motion ................................................................... 12
2. 19 Duty to Vote ........................ ........................................................ 13
2.20 Introduction and Passage of Ordinance ........................ .............. 13
2.21 Closed Sessions ........................ ................................................. 13 222 Quorum ....................................................................................... 14 223 Telephonic Attendance Of Council Members At Council Meetings...................................................................................... 14
2.24 Public Hearings ........................................................................... 16
2.25 Appointments to Committees and Boards ................................... 16
2. 26 Rosenberg' s Rules of Order: Simple Parliamentary Procedures for the 21 st Century ..................................................................... 17 2 Agenda Item #5.1.
3. CITY COUNCIL STANDARDS OF CONDUCT ......................................... 17
3. 1 Policy Purpose ............................................................................... 17
3.2 Ethics ............................................................................................. 17
3.3 Code of Ethics and Conduct .......... ................................................ 20
3.4 Enforcement and Sanctions ............................................................. 25
3. 5 I mplementation .............. ................................................................ 29 Exhibit—Rosenberg's Rules of Order. Simple Parliamentary Procedures for the 2151 Century
3 Agenda Item #5.1.
PURPOSE
The purpose for establishing City Council Protocols is to provide an effective environment for the City Council to provide leadership. The protocols may be amended by resolution adopted by a majority vote of the Council Members and should be reviewed on a regular basis to ensure that the document remains helpful to the Council by providing a framework for effective leadership.
The protocols set forth herein are not intended to limit the inherent power and general legal authority of the Ciry Council. Any of the protocols herein may be waived by a majority vote of the Council Members when it is deemed that there is good cause to do so based upon the particular facts and circumstances.
1. 1 Council-Manager Form of Government
The City of St. Helena operates according to the Council-Manager form of government which vests authority in an elected Ciry Council which, in tum, hires an appointed executive, the City Manager. The City Council is composed of five members elected from the City on a nonpartisan basis to serve overlapping four-year terms. The Mayor is elected at-large to serve a two-year term as presiding officer at City Council meetings and as the official head of the City for legislative and ceremonial purposes. The City Manager is appointed by the City Council and serves at the pleasure of that body.
The City Council is the City' s legislative and policy-making body. Acting as a whole, the City Council is responsible for setting the direction of City policy and for adopting ordinances, resolutions and other orders as necessary for governing the City. The City Manager is responsible for the overall administration of the City, which includes implementation of the general policies set by the City Council in addition to the day-to-day operation of all City functions. The City Manager, with the help of the Staff, provides the City Council with the information needed to fulfill its policy-making role.
The Council- Manager form of government separates legislative and executive responsibilities in a manner similar to state and federal governments. This system provides " checks and balances" of both policy and administrative branches of government by limiting the power of each.
1. 2 City Council Vision and City Council Mission
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 Agenda Item #5.1.
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 See Resolution Number2021-_, dated May 11, 2021.)
2. RULES OF PROCEDURE FOR THE CONDUCT OF COUNCIL MEETINGS
2. 1 Regular Meeting
The Council shall hold a Regular Meeting on the second and fourth Tuesday of each month, except that the Council may by motion at a Regular Meeting and with adequate public notice, either cancel that meeting or reschedule it to some other date.
Regular Meetings shall be held at the Vintage Hall Board Room, 465 Main Street, St. Helena, and shall begin at 6: 00 p. m. If it is necessary to hold a closed session prior to the start of a Regular Meeting, the closed session may begin earlier than the normal starting time to allow the Regular Meeting to begin at 6:00 p. m. The closed session shall begin in an open meeting and the Council shall adjourn to closed session.
Agenda Item #5.1.
2.2 Special, Emergency, and Adjourned Meetings
a) Special Meetings. The Mayor or the Vice Mayor in the Mayor's absence or a majority of the members of the Council or the City Manager may at any time call a Special Meeting. At least twenty-four hours before a Special Meeting, written notice of the meeting stating its time and place and the subjects to be considered shall be ( a) delivered to the Mayor and each Councilmember personally or by any other means; ( b) posted on the Council's principal bulletin board, City website and place of ineeting; and c) emailed to the agenda subscribers. Only those items of business specified in the notice may be considered at a Special Meeting called in this manner.
b) Emergency Meeting. The Council may hold an Emergency Meeting in emergency situations as set forth in the City's Municipal Code and State Law.
c) Adjourned Meeting. A properly called Regular, Special, or Emergency Meeting may be adjourned to a time and place specified. A copy of the notice of adjournment shall be posted as specified on the door of the place where the meeting was held within twenty-four hours after the time of the adjournment. Further notice need not be given of an adjourned session of a properly called Regular, Special, or Emergency Meeting.
2. 3 Regular Meeting Agenda
a) Setting and Posting of Agenda. The agenda of business to come before the Council at a Regular Meeting shall normally be closed at the end of eighteen business days preceding the meeting. Under State Law the agenda for a Regular Meeting must be posted at least seventy-two ( 72) hours prior to the scheduled convening of the Regular Meeting, and no items may be added to the agenda fewer than seventy-two (72) hours prior to the meeting except as may be allowed by State Law. The City Council endeavors to publish the meeting agenda at least ten days prior to the meeting.
b) Placing Items on the Council Agenda. Each City Council agenda shall specifically provide for a discussion of Future Agenda Items. Any Council Member may request that an item be considered on a future agenda during that portion of the City Council meeting and, upon agreement by a second Council Member concurring that Staff time and City resources should be expended on the item, the item shall be placed on the soonest practical regularly scheduled Council meeting as determined by the City Manager. A member of the public may request that an item be placed on a future agenda during Public Forum or through other communicafion with a Council Member. Staff reports may not be prepared on Council Member requested items until Council discussion has occurred and direction provided by the Council unless Staff otherwise determines. If Council action is contemplated, proposed action shall be included in the Staff report. The City Agenda Item #5.1.
Manager may also add any item of business to a future agenda in his or her sole discretion.
c) Agenda Packet Distribution. Each Councilmember shall be furnished a copy of the agenda and the package of agenda material by 5: 00 p. m., on the Friday eleven days preceding a Regular Meeting, and the agenda and agenda materials shall be available for public inspection and distribution or copying at that time. Each Councilmember may opt out from receiving a paper agenda and instead receive and review the agenda electronically on a City issued iPad. Any agenda materials not included in the agenda package by 5:00 p. m., that Friday shall be separately identified, and the Council may by majority vote continue such agenda item until the following meeting to allow for proper study of the materials.
d) Order of Agenda. The business of the Council shall be taken up for consideration in substantially the following order except as may be otherwise ordered:
1. Call to Order
2. Pledge of Allegiance
3. Roll Call
4. Public Forum
5. Reports by Staff and City Council, Future Agenda Items and AB 1234 Reports
6. Presentations and Public Recognitions
Staff Briefing
8. Consent Items and Items Removed from Consent
9. Public Hearings
10. Old Business
11. New Business
12. Items likely to be placed on the next or future meeting agenda.
13. Adjournment
e) A copy of the agenda and the package of agenda materials shall be made available for public inspection at City Hall and at the St. Helena Public Library at or near the time they are circulated to the City Council.
2.4 Public Testimony and Comments Before the Council
a) Addressing the Council Generally. Each person addressing the Council may give his or her name and address ( optional) in an audible tone of voice for the record. Each person' s comments are limited to four minutes except as provided in section (b) regarding land use Public Hearings. In the further interest of time, speakers may be asked to limit their comments to Agenda Item #5.1.
new materials and not repeat what a prior speaker said. Organized groups may choose a single spokesperson who may speak for the group. Speakers may not concede their allotted time to another speaker. The Mayor may extend time for the speaker.
b) Addressing Council at Land Use Public Hearings. An applicant appellant at a land use Public Hearing shall be permitted to address the Council for 15 minutes following the Staff report. If there is a spokesperson for the opposition, the spokesperson shall be permitted to speak for 15 minutes. All other speakers are limited to four minutes each. Applicant shall first be permitted five minutes at close of public comments for rebuttal.
If the applicant is the appellee the appellant shall have 15 minutes, the applicant appellee shall have 15 minutes, the appellant five minutes, and the applicant appellee five minutes.
c) Presentation by Spokesperson. Whenever any group of persons wishes to address the Council on the same subject matter, it shall be proper for the Mayor to request that a spokesperson be chosen by the group to address the Council, and, in case additional matters are to be presented at the time by any other member of the group, to limit the number of persons so addressing the Council so as to avoid unnecessary repetition before the Council.
d) Irrelevant Testimony. The Mayor shall rule out of order any testimony not relevant to the agenda item then under discussion.
e) Protocol. The purpose of public testimony is for Councilmembers to benefit from the views of the public. Comments from the public should be directed towards the Council. Councilmembers and Staff should avoid entering into a dialogue with members of the public who may address the Council. Questions raised by members of the public may be referred to Staff.
f) Public Comment on Agendized Items. Members of the public are entitled to speak on any item on the agenda during a Public Hearing on the subject matter opened by the Mayor. Each person is entitled to speak on any agenda item only once at any meeting, and the right to speak at the appropriate time waives any further right to address the Council on that item at that meeting. Participation in debate on any item before the Council shall be limited to members of the Council, although Councilmembers may ask members of the public for additional information.
g) Public Comment on Non-Agendized Items. Members of the public are entitled to speak on matters of municipal concern not on the agenda, during consideration of that portion of the meeting agenda entitled "Public Forum" when that item is called by the Mayor. Each person is entitled to speak on non- agendized items only once at any meeting. Brief questions by Councilmembers for clarifications may be posed and answered, and Councilmembers may make requests that items be placed on future e
Agenda Item #5.1.
agendas, but in accordance with State Law, no substantive discussion may take place unless and until the matter properly appears on the agenda.
2.5 Roll Call and Voice Votes
A roll call vote shall be taken on the approval of the Consent Calendar, the introduction of ordinances, and the adoption of ordinances, resolutions, and orders for the payment of money. Roll call votes shall be entered in the minutes of the Council showing those members voting yes, those voting no, and those abstaining or absent.
Any other motion may be passed by voice vote provided, however, that any Councilmember may request a roll call vote on any items to be voted on.
2. 6 Consent Items
Those items on the agenda considered routine by the City Manager shall be grouped together under "Consent Items" and the recommended actions approved by a single vote of the Council. At the request of any Councilmember or any other person, a Consent Item shall be considered separately following approval of the remaining "Consent Items." Items approved under the heading "Consent Items" will appear in the Council minutes in their proper form, as if approved item by item.
2.7 Reports
Under the agenda heading " Reports" the City Manager, other City Staff, and Councilmembers may make reports on matters not on the agenda. Also at this time, Councilmembers or Staff may identify issues or agenda items that need to be addressed by the City Attomey during the meeting, and may propose future agenda items.
2.8 Closing Time of Council Meetings
Council meetings shall adjourn by 9: 00 p. m. However, the Council may by majority vote extend the meeting up to an additional thirty minutes (9: 30 p. m.) if the Council deems such extension necessary. A unanimous Council vote shall be required to extend the meeting past 9: 30 p. m. and adjourn by 10:00 p.m. Otherwise, the meeting shall be adjourned to another day acceptable to the Council, or unfinished business may be continued to the next regular meeting.
2. 9 Old Business
Old Business" will include uncompleted items carried over from a prior meeting agenda and placed under this agenda heading for consideration.
2. 10 New Business
0 Agenda Item #5.1.
The Council shall not consider any resolution, motion, or matter which does not affect the conduct of the business of the City of St. Helena or its corporate powers or duties as a municipal corporation nor shall the Council consider any resolution or motion supporting or disapproving any legislation or action pending in the Legislature of the State of California, the Congress of the United States or before any officer or agency of the State or Nation unless such proposed legislation or action, if adopted, will affect the conduct of the municipal business or the powers and duties of the City of St. Helena or its officers or employees as such.
2. 11 Office of the Mayor
The Mayor shall preside at meetings of the Council, shall be entitied to vote on all matters, and shall be considered a Councilmember for all purposes, including the determination of whether a quorum is present. The Mayor will recognize members that wish to speak.
The Mayor shall have the following powers:
a) To rule motions in or out of order, including any motion patently offered for obstructive or dilatory purposes;
b) To enforce the Council' s rules regarding public testimony and to determine whether a speaker has gone beyond reasonable standards of courtesy in his or her remarks and to entertain and rule on objections from other members on this ground;
c) To ensure that the public has reasonable opportunity to be heard; d) To entertain and answer questions of parliamentary law or procedure; e) To call a brief recess at any time;
f) To adjourn in an emergency;
g) To appoint a Vice Mayor subject to Council approval who shall serve during the term of the Mayor, and becomes the Mayor Pro Tempore in the Mayor's absence.
2.12 Office of Mayor Pro Tempore
A Councilmember who serves as Mayor pro tempore shall be entitled to vote on all matters and shall be considered a Councilmember for all purposes, including the determination of whether a quorum is present. In the Mayor's absence, the Mayor pro tempore shall have the Mayor's powers and duties. If the Mayor should become physically or mentally unable to perform the duties of his or her office, the other Councilmembers may by unanimous vote declare the Mayor is incapacitated and confer the Mayor's powers and duties on the Mayor pro tempore.
When the Mayor declares that he or she is no longer incapacitated, and a majority of the Council concurs, the Mayor shall resume the exercise of his or her powers and duties. If both the Mayor and the Mayor pro tempore are absent from a fG7
Agenda Item #5.1.
meeting, the Council may elect from among its members a temporary chair to preside at the meeting.
2.13 Action by the Council
Action by the Council shali be by motions made and voted upon. A motion shall require a second. The Mayor and any other Councilmember may make or second a motion. A substantive motion is out of order while another substantive motion is pending.
2.14 Adoption by Majority Vote
A motion shall be adopted by a majority of the votes cast, a quorum being present, unless otherwise required by these rules or the laws of Califomia. Resolutions, orders for the payment of money, and all ordinances require at least three votes for passage.
2.15 Discussion
The City Council shall address an agenda item as follow:
a)
b)
c)
d)
e)
Staff shall introduce the agenda item and present the Staff report.
City Council shall ask questions of Staff.
The Mayor will invite public comment on the item.
Having received all public testimony, the Council will deliberate on the matter.
If appropriate, the Mayor will entertain a motion, including any motion proposed by the Mayor.
f) If a motion has received a second, the Mayor shall state the motion and if any Council Member wishes for the discussion, open for additional Council discussion.
g) The Mayor shall preside over the discussion according to the following general principles:
1. The maker of the motion is entitled to speak first;
2. A person who has not spoken on the issue shall be recognized before someone who has already spoken;
3. To the extent possible, the discussion shall altemate between opponents and proponents of the measure.
2. 16 Ratification of Actions
Agenda Item #5.1.
To the extent permitted by law, the Council may ratify actions taken on its behalf but without its prior approval. A motion to ratify is a substantive motion.
2. 17 Procedural Motions
a) In addition to substantive proposals, the following procedural motions, and no others, shall be in order. Unless othervuise noted, each motion is debatable, may be amended, and requires a majority of the votes cast, a quorum being present, for adoption. b) To Adjoum. The motion may be made only at the conclusion of action of a pending substantive matter; it cannot interrupt deliberation of a pending matter.
c) To Take a Brief Recess.
d) Call to Follow the Agenda. The motion must be made at the first reasonable opportunity, or the right to make it is waived for the outof-order item in question. e) To Suspend the Rules. The motion requires for adoption a vote of a majority of the quorum of the Council. The Council may not suspend provisions of the rules that are state requirements imposed by law on the Council.
f) To Divide a Complex Motion and Consider It by Paragraph. g) To Call the Previous Question. The motion is not in order until every member has had an opportunity to speak once.
h) To Continue an Item to a Future Meeting Certain.
i) To Refer to Staff for Action.
Q) To Amend. An amendment to a motion must be pertinent to the subject matter of the motion. An amendment is improper if the amended motion has the same effect as rejection of the original motion. A motion may be amended, and that amendment may be amended, but no further amendments may be made until the last amendment is disposed of by a vote.
k) To Reconsider. The motion must be made by a member who voted with the prevailing side, and only at the meeting during which the original vote was taken, including any continuation of that meeting through adjournment to a time and place certain, or at the next Regular Meeting unless intervening actions taken based on the original action make such reconsideration impracticable. The motion cannot interrupt deliberation on a pending matter, but is in order at any time before final adjournment of the meeting.
I) To Rescind or Repeal a Previous Action. A motion to rescind or repeal a previous action is not in order if the rescission or repeal is 12 Agenda Item #5.1.
forbidden by law or made inappropriate by virtue of actions taken in accordance with the previous action.
m) To call for a Straw Vote. The Mayor, at the Mayor's discretion, may call for a Straw Vote among members on any item prior to inviting public testimony or Council comment.
2.18 Withdrawal of Motion
A motion may be withdrawn by the introducer at any time before a vote, with or without the consent of any " seconder' of the motion. However, any other Councilmember may ask to be considered the introducer of the motion and, if again seconded, debate may continue without further interruption.
2. 19 Duty to Vote
Every member must vote on every item unless prevented from doing so by virtue of an actual or potential conflict of interest under applicable State Law. Any member who believes he or she has a conflict or potential conflict of interest must announce such at the initiation of discussion or when such conflict or potential conflict becomes apparent, and shall refrain from any part in the debate, deliberations, or voting on that issue, except as allowed by State Law.
2.20 Introduction and Passage of Ordinance
A proposed ordinance shall be deemed to be introduced on the date the subject matter is first voted on by the Council. The Mayor shall read the title of the ordinance, after which a roll cail vote shall be taken to introduce the ordinance.
The City Clerk shall then read the ordinance in its entirety unless such reading is waived by a separate motion adopted by unanimous vote of the Councilmembers present. An ordinance, other than an urgency, may not be passed within five days of its introduction or alteration. Corrections of typographical or clerical errors are not alterations.
2. 21 Closed Sessions
a) The Council may hold closed sessions only as provided for by law and according to the provisions herein.
b) As part of any regular or special City Council meeting as appropriate, the City Council, the City Attomey, and relevant Staff may discuss and agree upon the need for any future closed sessions, including the legal authority for the closed session and the nature of the matter to be discussed, in adequate detail to meaningfully inform the public while maintaining required confidentiality and any applicable attorney-client privilege. Where the City Manager and City Attorney agree that the 13 Agenda Item #5.1.
nature of a matter requires consideration in closed session, the requirement for prior open session discussion shall not apply. c) The City Council agenda for any regular or special Council meeting shall include general information about closed sessions as follows:
The City Council will convene in open session at the
stated time, but will then adjourn to address any closed sessions items listed on the agenda. The public is
invited to address the Council with comment on any
listed closed session item immediately prior to
Council's adjournment into closed session or
consistent with any other provisions permitting public
comment. The Council will reconvene in Public
Session at 6:00 p. m. or at the first Council meeting
following any closed session. At that time, if
appropriate and as required under the Brown Act, any
actions taken during the preceding closed session will
be announced by the City Attorney or Mayor. if
necessary, the Council may reconvene in closed
session to continue discussion of listed items following the completion of open session business.
d) The City Council agenda for any regular or special Council meeting at which the Council will adjourn to closed session shall provide notice of that closed session as provided for under the Brown Act and shall include a narrative description of the legal authority for the closed session and the nature of the matter to be discussed in adequate detail to inform the public while maintaining required confidentiality or any applicable attorney-client privilege. Reporting out of closed session shall be consistent with the requirements of Brown Act, and may be of greater detail than required when the disclosure of such detail is not inconsistent with maintaining required confidentiality and any applicable attorney-client privilege.
2.22 Quorum
A majority of the actual membership of the Council, including the Mayor but excluding vacant seats, shall constitute a quorum. A member who has withdrawn from a meeting without being excused by majority vote of the remaining members present shall be counted as present for purposes of determining whether or not a quorum is present.
2.23 Telephonic Attendance Of Council Members At Council Meetings a) The City Council Procedures provisions concerning Telephonic Attendance shall apply to all Boards and Commissions as well as the City Council. Requests by Council Members to attend a Council meeting via telephonic appearance are actively discouraged. 14 Agenda Item #5.1.
Telephonic attendance shall only be permitted in the event of extraordinary events such as a medical, family or similar emergency requiring a Council Member's absence. In addition, at least a quorum of the Council must participate from a location within the City Govemment Code Section 54953( b)( 3)).
b) If these two threshold requirements are met, the Council Member who will be appearing telephonically must ensure that:
1. The meeting agenda identifies the teleconference location and is posted at that location in an area that is accessible and visible 24 hours a day for at least 72 hours prior to the meeting.
2. The teleconference location is open and fully accessible to the public, and fully accessible under the Americans with Disabilities Act, throughout the entire meeting. These requirements apply to private residences, hotel rooms, and similar facilities, all of which must remain fully open and accessible throughout the meeting, without requiring identification or registration.
3. The teleconference technology used is open and fully accessible to all members of the public, including those with disabilities.
4. Members of the public who attend the meeting at the
teleconference location have the same opportunity to address the Council from the remote location that they would if they were present in Council Chambers.
5. The teleconference location must not require an admission fee or any payment for attendance.
6. If the Council Member determines that any or all of these requirements cannot be met, he or she shall not participate in the meeting via teleconference.
c) Approved Teleconference Guidelines for Council Members:
1. One-week advance written notice must be given by the Council Member to the City Clerk's office; the notice must include the address at which the teleconferenced meeting will occur, the address the Council packet should be mailed to, who is to initiate the phone call to establish the teleconference connection, and the phone number of the teleconference location. Cellular telephones shall not be used to participate in teleconferenced meetings.
2. The Council Member is responsible for posting the Council agenda in the remote location, or having the agenda posted by somebody at the location and confirming that posting has occurred.
The City Clerk will assist, if necessary, by faxing or mailing the agenda to whatever address or fax number the Council Member requests; however, it is the Council Member's responsibility to 15 Agenda Item #5.1.
ensure that the agenda arrives and is posted. If the Council Member will need the assistance of the City Clerk in delivery of the agenda, the fax number or address must be included in the one-week advance written notice above.
The Council Member must ensure that the location will be publicly accessible while the meeting is in progress.
4. The Council Member must state at the beginning of the Council meeting that the 72-hour posting requirement was met at the location and that the location is publicly accessible. The Council Member also must describe the location. Furthermore, the City Clerk will provide Council with a quarterly report detailing the telephone charges associated with teleconferenced meetings.
2.24 Public Hearings
Public Hearings shall be scheduled and notice published without any action required by the City Council, excepting that the Council may, if it so desires, scheduled a Public Hearing on an item of interest for a date certain. In order to accommodate members of the public responding to a noticed Public Hearing, such Hearings will, to the extent practicable, begin at 6:00 p.m. At the time designated for the Public Hearing, or soon after as is practicable, the Mayor shall direct the attention of the Council Members to the Staff report and Staff may respond to questions from Council members, after which the Mayor shall formally open the Public Hearing and members of the public shall be ailowed to speak in accordance with the rules set forth elsewhere in these Rules of Procedure. When the allotted time expires, or when no one wishes to speak who has not done so, the Mayor shall declare the hearing closed.
Following the close of the Public Hearing, the Council may discuss or take action on the matter in accordance with these rules. The Mayor may in his or her discretion allow questions and/or comments from the public after close of Public Hearing.
2.25 Appointments to Committees and Boards
The City Clerk posts a Notice of Vacancy in the City designated posting locations, the City's website and sends a Media Release to the St. Helena Star advertising vacancies to Commissions, Committees and Boards.
Applicants must submit a completed application to the City Clerk and shall be interviewed by the Council at a special meeting prior to a regular meeting.
Applicants are requested to list references on their applications and individual Council Members may contact those references as part of the interview process.
Council Members contacting references should disclose this information during the appointment process.
16 Agenda Item #5.1.
Council reviews applicants for appointments to Commissions, Committees and Boards based on interviews and qualifications. Council shall rank all applicants from highest to lowest and appoint by ballot process. Mayor shall nominate applicants and appointments are subject to approval by the majority of Council.
Depending on the qualifications of the applicants and the needs of the City, there may be times when the City Council does not appoint an applicant who has applied. If an applicant is not appointed, the City Clerk will automatically readvertise for the vacant position( s) to seek additional applicants.
2.26 Rosenberg' s Rules of Order: Simple Parliamentary Procedures for the 21 st Century
All procedural matters not otherwise provided for in or controlled by state law or by any ordinance, resolution, rule or regulation of the City shall be governed by Rosenberg' s Rules of Order: Simple Parliamentary Procedures forthe 2151 Century attached as Exhibit). However, no ordinance, resolution, or other action of the Council shall be invalidated or the legality thereof otherwise affected by the failure or omission of the Council to observe or follow such rules. Certain procedures relating to motions, agenda item discussion, debate, and courtesies contained in Rosenberg's Rules of Order. Simple Parliamentary Procedures for the 215 Century are incorporated into this document, except to the extent they are modified by this Protocol document.
3. CITY COUNCIL STANDARDS OF CONDUCT
3. 1 Policy Purpose
The St. Helena City Council adopts this Code of Ethics and Conduct to assure that all elected and appointed officials, while exercising their office, conduct themselves in a manner that will instill public confidence and trust in the fair operation and integrity of St. Helena's City government.
3. 2 Ethics
The citizens and businesses of St. Helena are entitled to have fair, ethical and accountable local government. To this end, the public should have full confidence that their elected and appointed officials:
Comply with both the letter and spirit of the laws and policies affecting the operations of government;
Are independent, impartial and fair in their judgment and actions; Use their public office for the public good, not for personal gain; and Conduct public deliberations and processes openly, unless required by law to be confidential, in an atmosphere of respect and civility. 17 Agenda Item #5.1.
Therefore, members of the City Council, City Treasurer, and City Clerk and of all Boards, Committees and Commissions shall conduct themselves in accordance with the following ethical standards:
a) Act in the Public Interest. Recognizing that stewardship of the public interest must be their primary concem, members will work for the common good of the people of St. Helena and not for any private or personal interest, and they will assure fair and equal treatment of all persons, claims and transactions coming before them.
b) Comply with both the spirit and the letter of the Law and City Policy. Members shall comply with the laws of the nation, the State of Califomia and the City of St. Helena in the performance of their public duties.
c) Conduct of Members. The professional and personal conduct of members while exercising their office must be above reproach and avoid even the appearance of impropriety. Members shall refrain from abusive conduct, personal charges or verbal attacks upon the character or motives of other members of Council, Boards, Committees and Commissions, the Staff or public.
d) Respect for Process. Members shall perform their duties in accordance with the processes and rules of order established by the City Council.
e) Conduct at Public Meetings. Members shall prepare themseives for public issues, listen courteously and attentively to all public discussions before the body, and focus on the business at hand.
f) Decisions Based on Merit. Members shall base their decisions on the merits and substance of the matter at hand, rather than on unrelated considerations. When making adjudicative decisions ( those decisions where the member is called upon to determine and apply facts peculiar to an individual case), members shall maintain an open mind until the conclusion of the hearing on the matter and shall base their decisions on the facts presented at the hearing and the law.
g) Communication. Members shall publicly disclose substantive information that is relevant to a matter under consideration by the pody which they may have received from sources outside of the public decisionmaking process. 8 Agenda Item #5.1.
h) Conflict of Interest. In order to assure their independence and impartiality on behalf of the common good and compliance with conflict of interest laws, members shall use their best efforts to refrain from creating an appearance of impropriety in their actions and decisions. Members shall not use their official positions to influence government decisions in which they have ( a) a material financial interest, ( b) an organizational responsibility or personal relationship which may give the appearance of a conflict of interest, or (c) a strong personal bias.
A member who has a potential conflict of interest regarding a particular decision shall disclose the matter to the City Attorney and reasonably cooperate with the City Attorney to analyze the potential conflict. If advised by the City Attomey to seek advice from the Fair Political Practices Commission ( FPPC) or other appropriate state agency, a member shall not participate in a decision unless and until he or she has requested and received advice allowing the member to participate. A member shall diligently pursue obtaining such advice. The member shall provide the Mayor and the City Attorney a copy of any written request or advice, and conform his or her participation to the advice given. In providing assistance to members, the City Attorney represents the City and not individual members.
In accordance with the law, members shall disclose investments, interests in real property, sources of income, and gifts; and if they have a conflict of interest regarding a particular decision, shall not, once the conflict is ascertained, participate in the decision and shall not discuss or comment on the matter in any way to any person including other members unless otherwise permitted by law.
i) Gifts and Favors. Members shall not take any special advantage of services or opportunities for personal gain, by virtue of their public office that is not available to the public in general. They shall refrain from accepting any gifts, favors or promises of future benefits which might compromise their independence of judgment or action or give the appearance of being compromised.
j) Confidential Information. Members must maintain the
confidentiality of all written materials and verbal information provided to members which is confidential or privileged. Members shall neither disclose confidential information without proper legal authorization, nor use such information to advance their personal, financial or other private interests. k) Use of Public Resources. Members shall not use public resources which are not available to the public in general ( e.g., City Staff time, l9
Agenda Item #5.1.
equipment, supplies or facilities) for private gain or for personal purposes not otherwise authorized by law.
I) Representation of Private Interests. In keeping with their role as stewards of the public interest, members of Council shall not appear on behalf of the private interests of third parties before the Council or any Board, Committee, Commission or proceeding of the City, nor shall members of Boards, Committees and Commissions appear before their own bodies or before the Council on behalf of the private interests of third parties on matters related to the areas of service of their bodies. m) Advocacy. Members shall represent the official policies or positions of the City Council, Board, Committee or Commission to the best of their ability when designated as delegates for this purpose. When presenting their individual opinions and positions, members shall explicitly state they do not represent their body or the City of St. Helena, nor wili they allow the inference that they do. Councilmembers and Board, Committee and Commission members have the right to endorse candidates for all Council seats or other elected offices. It is inappropriate to mention or display endorsements during Council meetings, or Board, Committee and Commission meetings, or other official City meetings.
n) Policy Role of Members. Members shall respect and adhere to the council-manager structure of St. Helena City government as outlined in the St. Helena City Code. In this structure, the City Council determines the policies of the City with the advice, information and analysis provided by City Staff, Boards, Committees and Commissions, and the public. Except as provided by the City Code, members shali not interfere with the administrative functions of the City or the professional duties of City Staff; nor shall they impair the ability of Staff to implement Council policy decisions.
o) Independence of Boards, Committees and Commissions.
Because of the value of the independent advice of Boards, Committees and Commissions to the public decision-making process, members of Council shall refrain from using their position to unduly influence the deliberations or outcomes of Board, Committee and Commission proceedings. p) Positive Work Place Environment. Members shall support the maintenance of a positive and constructive work place environment for City employees and for citizens and businesses dealing with the City. Members shall recognize their special role in dealings with City employees to in no way create the perception of inappropriate direction to Staff. 20 Agenda Item #5.1.
3. 3 Code of Ethics and Conduct
The Code of Ethics and Conduct are designed to describe the manner in which elected and appointed officials should treat one another, City Staff, constituents, and others they come into contact with while representing the City of St. Helena. a) Elected and Appointed Officials' Conduct with Each Other in Public Meetings
Elected and appointed officials are individuals with a wide variety of backgrounds, personalities, values, opinions, and goals. Despite this diversity, all have chosen to serve in public office in order to preserve and protect the present and the future of the community. In all cases, this common goal should be acknowledged even though individuals may not agree on every issue.
1. Honor the role of the chair in maintaining order
It is the responsibility of the chair to keep the comments of inembers on track during public meetings. Members should honor efforts by the chair to focus discussion on current agenda items. If there is disagreement about the agenda or the chair's actions, those objections should be voiced politely and with reason, following procedures outlined in parliamentary procedure.
2. Practice civility and decorum in discussions and debate Difficult questions, tough challenges to a particular point of view, and criticism of ideas and information are legitimate elements of debate by a free democracy in action. Free debate does not require nor justify, however, public officials to make belligerent, personal, impertinent, slanderous, threatening, abusive, or disparaging comments.
3. Avoid personal comments that could offend other members If a member is personally offended by the remarks of another member, the offended member should make notes of the actual words used and call for a" point of personal privilege" that challenges the other member to justify or apologize for the language used. The chair will maintain control of this discussion.
4. Demonstrate effective prob/em-solving approaches
Members have a public stage and have the responsibility to show how individuals with disparate points of view can find common ground and seek a compromise that benefits the community as a whole.
Agenda Item #5.1.
b) Elected and Appointed Officials' Conduct with the Public in Public Meetings
Making the public feel welcome is an important part of the democratic process. No signs of partiality, prejudice or disrespect should be evident on the part of individual members toward an individual participating in a public forum. Every effort should be made to be fair and impartial in listening to public testimony.
1. Be we/coming to speakers and treat them with care and gentleness.
a. While questions of clarification may be asked, the official' s primary role during public testimony is to listen.
2. Be fairand equitab/e in allocating public hearing time to individual speakers.
a. The chair will determine and announce limits on speakers at the start of the public hearing process.
3. Practice active listening
a. It is disconcerting to speakers to have members not look at them when they are speaking. It is fine to look down at documents or to make notes, but reading for a long period of time or gazing around the room gives the appearance
of disinterest. Members shall try to be conscious of facial expressions, and avoid those that could be interpreted as smirking," disbelief, anger or boredom.
4. Maintain an open mind
a. Members of the public deserve an opportunity to influence the thinking of elected and appointed officials.
5. Ask for clarification, but avoid debate and argument with the public
a. Only the chair — not individual members — can interrupt a speaker during a presentation. However, a member can
ask the chair for a point of order if the speaker is off the topic or exhibiting behavior or language the member finds disturbing.
c) Elected and Appointed Officials' Conduct with City Staff Governance of a City relies on the cooperative efforts of elected officials, who set policy, appointed officials who advise the elected, and City Staff who implement and administer the Council' s policies. Therefore, every effort should be made to be cooperative and show mutual respect for the contributions made by each individual for the good of the community. 22 Agenda Item #5.1.
1. Treat all Staff as professionals
a. Clear, honest communication that respects the abilities, experience, and dignity of each individual is expected.
Poor behavior towards Staff is not acceptable.
2. Do not disrupt City Staff from theirjobs
a. Elected and appointed officials should not disrupt City Staff while they are in meetings, on the phone, or
engrossed in performing their job functions in order to have their individual needs met. Do not attend City Staff meetings unless requested by Staff — even if the elected or appointed official does not say anything, his or her presence implies support, shows partiality, may intimidate Staff, and hampers Staff' s ability to do theirjob objectively.
3. Never publicly criticize an individual employee
a. Elected and appointed officials should never express concerns about the performance of a City employee in
public, to the employee directly, or to the employee's
manager. Comments about Staff performance should only
be made to the City Manager through private
correspondence or conversation. Appointed officials
should make their comments regarding Staff to the City
Manager or the Mayor.
4. Do not get involved in administrative functions
a. Elected and appointed officials acting in their individual capacity must not attempt to influence City Staff on the making of appointments, awarding of contracts, selecting of consultants, processing of development applications, or granting of City licenses and permits.
5. Do not solicit political support from Staff
a. Elected and appointed officials should not solicit any type of political support ( financial contributions, display of posters or lawn signs, name on support list, etc.) from City Staff. City Staff may, as private citizens with constitutional rights, support political candidates but all such activities must be done away from the workplace.
6. No Attorney-Client Relationship
a. Members shall not seek to establish an attorney-client relationship with the City Attorney, including his or her Staff and attorneys contracted to work on behalf of the City. The City Attomey represents the City and not individual
23 Agenda Item #5.1.
members. Members who consult with the City Attorney
cannot enjoy or establish an attorney-client relationship with the attomey.
d) Council Conduct with Boards, Committees and Commissions The City has established several Boards, Committees and Commissions as a means of gathering more community input. Citizens who serve on Boards, Committees and Commissions become more involved in government and serve as advisors to the City Council. They are a valuable resource to the City' s leadership and should be treated with appreciation and respect.
1. Respect Role of Liaison to City's Boards,
Commitfees and Commissions
Several of the City's Boards, Committees and Commissions have a Council Member who serves as its Council liaison. The City Council will collectively review and approve liaison appointments annually. Council Members serving as liaisons should act as an advisor and resource to committee/board/commission members and the committee/board/commission' s Staff liaison when issues regarding process, procedure, attendance, interpersonal or public relations arise.
2. Respect that Boards, Committees and Commissions serve the community, not individua/ Councilmembers
The City Council appoints individuals to serve on Boards, Committees and Commissions, and it is the responsibility of Boards, Committees and Commissions to follow policy
established by the Council. But Board, Committee and
Commission members do not report to individual
Councilmembers ( whether or not they are serving as liaisons), nor should Councilmembers feel they have the power or right to threaten Board, Committee and Commission members with
removal if they disagree about an issue. Appointment and reappointment to a Board, Committee or Commission should be based on such criteria as expertise, ability to work with Staff and the public, and commitment to fulfilling official duties. A Board, Committee or Commission appointment should not be used as a political " reward."
3. Be respectlul of diverse opinions
A primary role of Boards, Committees and Commissions is to represent many points of view in the community and to provide the Council with advice based on a full spectrum of concerns and perspectives.
Councilmembers may have a closer working relationship with some individuals serving on Boards, Committees and Commissions, but must 2A
Agenda Item #5.1.
be fair and respectful of all citizens serving on Boards, Committees and Commissions.
4. Keep politica/ support away from public forums
Board, Committee and Commission members may offer political support to a Councilmember, but not in a public forum while conducting official duties. Conversely, Councilmembers may support Board, Committee and Commission members who are running for office, but not in an official forum in their capacity as a Councilmember.
e) Elected and Appointed Officials' Conduct With Each Other and the Public in Private Encounters
Continue Respectful Behavior in Private
The same level of respect and consideration of differing points of view that is deemed appropriate for public discussions, and set forth above in subsections ( a) through ( d), should be maintained in private conversations, including telephone calls, texts, e-mails or other forms of communication. Council Members and appointed officials shall refrain from abusive conduct, intimidation, bullying tactics, personal charges, or verbal attacks upon the character or motives of other members or the public.
2. Be Aware of the Insecurity ( Non- Confidentiality) of Written Notes, Texts, Voicemail and E-mail
Technology allows words written or said without much forethought to be distributed wide and far. Would you feel comfortable to have this note faxed to others? How would you feel if this voicemail message was played on a speakerphone in a full office? What would happen if this Email or text message were forvvarded to others? Written notes, voicemail messages, texts and E- mail should be treated as potentially public" communication.
3. Understand that Even Private Conversations can have Public Presence Elected and appointed officials are always on display — their actions, demeanor, fitness, mannerisms, language and timing and form of communication are monitored by people around them that they may not know. Lunch table conversations will be eavesdropped upon, parking lot debates will be watched, late- night e- mails will be questioned and casual comments between individuals before and after public meetings noticed.
3. 4 Enforcement and Sanctions
a) Acknowledgement of Code of Ethics and Conduct
Upon assuming office each Councilmember, and each Board, Committee and Commission Member ("Membe"), shall sign a statement affirming that he or she has been provided with and has read the Code of Ethics and 25 Agenda Item #5.1.
Conduct. Each Councilmember, Board, Committee and Commission Member, shall adhere to the Code of Ethics and Conduct as well as the Council' s Rules of Procedure. Councilmembers who do not sign an acknowledgement that they have read and understand the Code of Ethics and Conduct shall be ineligible for intergovernmental assignments or Council subcommittees. Board, Committee and Commission members who do not sign an acknowledgement that they have read and understand the Code of Ethics and Conduct are not eligible to hold office. b) Ethics Training for Loca/ Officials
Councilmembers, City Treasurer, City Clerk, Board, Committee and Commission Members shall report annually to the City Clerk with respect to his or her compliance with State or City mandated requirements for ethics training. Councilmembers, City Treasurer, City Clerk, Board, Committee and Commission Members who are out of compliance with State or City mandated requirements for ethics training shall not represent the City on intergovernmental assignments or Council subcommittees and may be subject to sanctions.
c) Behavior and Conduct
The St. Helena Code of Ethics and Conduct expresses standards of ethical conduct expected for members of the St. Helena City Council, Boards, Committees and Commissions. Each Member him or herself has the primary responsibility to assure that he or she understands and satisfies the ethical standards, so that the public can continue to have full confidence in the integrity of govemment. The chairs of Boards, Committees and Commissions and the Mayor and Council have the additional responsibility to intervene when actions of Members that appear to be in violation of the Code of Ethics and Conduct are brought to their attention. Without violating Brown Act serial meeting requirements, individual Members should point out to the offending Member perceived infractions of the Code of Ethics and Conduct. If the offenses continue, then the process under 3. 4(e) 1- 10 shall govern.
d) Council Authority
Under California law, the Council does not have the legal authority to remove Members elected or appointed to the City Council or to otherwise deprive them of their office. However, as provided in Section 3.4(e) 9., a majority of the Councilmembers may remove a Councilmember from any or all Council honorary and/or ceremonial positions and ad-hoc and standing committees, as well as from positions with other govemmental agencies or other organizations they hold by virtue of appointment by the City Council. e) Process to Address Alleged Violation of Code of Ethics and Conduct 26 Agenda Item #5.1.
1. Complaint Where any person has substantial evidence that a Member has materially violated the Code of Ethics and Conduct, he or she may file a written statement with the City Clerk who will then provide it to the City Council, and the affected Member. The name of the complainant shall initially be redacted and kept confidential and not disclosed until it has been determined as provided in Section
3.4(e) 2 that there is substantial evidence that the Member has materially violated the Code of Ethics and Conduct.
Substantial evidence" means evidence that reasonably supports a conclusion. It does not mean simply any evidence, nor does it include mere opinions. It must be reasonable in nature, credible, and of solid value.
2. Hearing Officer. Upon receipt of a Complaint as provided in Section 3.4(e) 1., or upon the direction of the City Council, the Mayor, in consultation with the City Manager, shall make a preliminary determination whether there is substantial evidence to support a conclusion that a Member has materially violated the Code of Ethics and Conduct, thereby warranting the further proceedings below. If the Mayor either submitted the Complaint or is the subject of the Complaint, the Vice Mayor ( and who is not the subject of the complaint) shall make the preliminary determination as provided above.
If the Mayor (or, where the Mayor is disqualified as set forth above, the Vice Mayor) makes the initial determination that there is substantial evidence to support a conclusion that a Member has materially violated the Code of Ethics and Conduct, thereby warranting the further proceedings, he or she, in consultation with the City Manager, shall appoint an independent Hearing Officer to review and investigate the Complaint. If the Mayor either submitted the Complaint or is the subject of the Complaint, the Vice Mayor ( and who is not the subject of the complaint) shall appoint the Hearing Officer as provided above.
In the event both the Mayor and Vice Mayor are disqualified as set forth above or otherwise unable to carry out the duties under this Section, the Council member with the longest tenure shall do so. If two or more Council members have equal tenure, the Council member ( who is not the subject of the Complaint) shall be selected by a process of drawing straws supervised by the City Clerk.
3. Investigation. To the extent reasonably practicable, the Hearing Officer shall investigate and report, within not more than thirty (30) days, as to whether there is substantial evidence in support of an allegation that a Member has materially violated the Code of Ethics and Conduct. If the Hearing Officer concludes that there is not substantial evidence to support an alleged violation, or that the violation was not material, he or she shall so report to the Council and the matter shall be deemed dismissed unless the Council directs that a public hearing be held pursuant to Section 3.4(e) 5. If the Hearing Officer concludes that there is substantial evidence to support an alleged material violation of the Code of Ethics and Conduct, he or she shall issue a report (" Report") to the City Council and the Member. The Hearing Officer shall allow the affected Member a reasonable 27 Agenda Item #5.1.
opportunity to provide any written comments, evidence and/or arguments which the Hearing Officer shall consider in the investigation and Report.
4. Enforcement The City Council, in its sole discretion, shall enforce the Code of Ethics and Conduct against Members depending upon the extent and severity of the violation by means of either (i) a waming (ii) a written reprimand; ( iii) censure; iv) removal from assignments; or (v) other action as deemed appropriate to the City Council, including without limitation disavowal and/ or disapproval of the Member's violation and/or other action and/or statement. The following procedure shall be utilized:
5. Receipt of Report. As reasonably practicable, within 30 days after receipt of the Report, the Council will hold a public hearing after which it will determine, among any other determination the Council may deem appropriate, whether the Complaint should be dismissed, a warning should be issued, a written reprimand should be issued, censure issued, or the Member should be removed from his or her office only for Members other than Council members) or assignments. The City shall provide written notice of the public hearing and opportunity to be heard to the affected Member. The City Council determination shall be set forth in written findings that the Council may direct staff to prepare for subsequent Council approval.
6. DismissaL Where the Council, based on the Report and any statement from the affected Member, determines that it is clear that no violation occurred or that only a trivial or de minimus violation occurred, or that the Complaint was motivated by revenge or other improper motive, the Council may dismiss the Complaint.
7. Warning. Where the Council, based on the Report and any statement from the affected Member, determines that there is some evidence that only a minor violation or a questionable practice has occurred, the Council may issue a written waming to the affected Member specifying the violation(s) and requesting corrective action.
8. Reprimand. Where the Council, based on the Report, any statement from the affected Member, and other evidence accepted, determines that there is substantial evidence that the Member has materially violated one or more provisions of the Code of Ethics and Conduct, the Council may adopt a resolution reprimanding the affected Member for their conduct, stating that any violations shall cease, and requesting corrective action. The affected Member may file a rebuttal to the Reprimand with the City Clerk which will become a matter of public record.
9. Censure. Where the Council, based on the Report, any statement from the affected Member, and other evidence accepted at a public hearing of the matter, determines that there is substantial evidence that the Member has materially violated one or more provisions of the Code of Ethics and Conduct, and that such violation( s) impugn the integrity or dignity of the City or that such violations are egregious or chronic in nature, then the Council may adopt a resolution censuring Agenda Item #5.1.
the affected Member by condemning his or her actions, removing the Member from all appointive positions representing the City in front of other governments and agencies, demoting the affected Commissioner, Committee or Board member appointed by the City Council who holds a position of chairperson or vice chairperson, stating that the violations shali cease, and demanding corrective actions. The affected Member may file a rebuttal to the Censure with the City Clerk which will become a matter of public record.
10. Remova/ from Office. Notwithstanding any of the provisions in this Section 3.4, the City Council may remove any Commissioner, Committee or Board member appointed by the City Council at its pleasure, and nothing in the Code of Ethics and Conduct or these rules effects or diminishes such power nor vests such Commissioners or Board members with any additional rights.
3. 5 Implementation
The Code of Ethics and Conduct is intended to be self-enforcing and is an expression of the standards of conduct for members expected by the City. It therefore becomes most effective when members are thoroughly familiar with it and embrace its provisions.
For this reason, this document shall be included in the regular orientations for candidates for City Council, City Treasurer, City Clerk, applicants to Board, Committee and Commissions, and newly elected and appointed officials. Members entering office shall sign a statement ( example below) acknowledging they have read and understand the Code of Ethics and Conduct. In addition, the Code of Ethics and Conduct shall be periodically reviewed by the City Council, Boards, Committees and Commissions, and updated it as necessary.
I affirm that I have read and understand the City of St. Helena Code of Ethics and Conduct for Elected and Appointed Officials.
Signature
29 Date
Agenda Item #5.1.
Exhibit
Rosenberg' s Rules of Order:
Simple Parliamentary
Procedures for the 21 st Century
Agenda Item #5.1.
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Agenda Item #5.1.
Rosenberg' s Rules of Order:
Simple Parliamentary
Procedures for the 21st
1 he rules of procedure ac mectings
should be simple enough for most
peoplc co unJerscand. Unforcunamly,
chaz hasdc always becn che case. Virmally all clubs, associacions, hoards, councils and bodics follow a set of mles, Roberti Rrcler ofOrda, whieh arc cmbodied in a small but complex book.
Virtually no one 1 know has actually
rcad this book mver [o eover.
Worsc ycc, [ hc book was wriacn For
ano[ hcr cime and purposc. [ f you arc
running hc dricish Padiamenc, Robar'r
ReJu ofOrd r is a dandy and yuire uscful handbook. On thc othcr hand, if you ie mnning a meeting of a fivemember budy with a few members of the publie in attendanee, a simplified
version of dic rulcs of padiamcntary
procedure is in order, Hence, [ he birth
of" Rosenberg's Rules of Ordee"
This publicacion covca chc rulcs of
parliamcntary proceJurc bascd on my
20 years of experience chairing mectings
in state and loeal govcrnmcnt. "Chac
rules have becn simplified and slimmed
down For 21st eenmry meceings, yct
diey m[ ain che basie cenea oforder m
whic6 wc arc accmmmcd.
Roscnbcrg's Rulcs ofOrdcr" are supported by the follo ving four prineiple+
1. Rulu should establish order. Thc
first purpose of the rulcs of parliamenr.iry proccJurc is m cs[ ablish a framework for the orderly wnduct
of ineetings.
2. Rula should be cleae Simple rules
lead to widcr undcrs[ anding and
participation. Complcrz rulrs crcacc
nvo dasscs: thosc who unders[ and
and patticipatc and d osc who do
noc fully undcrscand and do noc
fully pattieipate.
3. Rules should be user-friendly. That
is, the rules must be simple enough
that citixens feel they have becn ahlc
m parcieipatc in the proccss.
4. Ruks should enForce the will oF
he majority while protecting the
rights oFthe minority. Thc ultimam
purpose of [he rules of procedure is
ro enwurege discussion anJ m facilitam Jeeision- making by the body. In a democrary, the majority rula. The
rulcs must enablc thc majority m
acprcss itsdf and Fashion a msult,
whilc permiccing chc minoriry ro also
cxpress i[ sclf (but no[ dominatc) and
fully par[ itipatc in thc pmccss.
The Chairperson Should Take a
Back Seat During Discussions
While all mcmbcrs oFthc govcrning
body should know and undcrstand thc
rulcs oFpadiamcn[ ary pmccJurc, it is
thc chairpercon ( chaid vho is chargcd
wi[ I applying thc rulcs of cunduct.
Thc c6air should bc wcll vcrscd in d ose
There are exceptions to the general rule of free
and open deUate on motions. The exceptions all
apply when there is a desire to move on.
Century
by Davr Rosenbcrg
rules, because the chair, for all incencs
and purpos s, makc•s thc final ruling on
thc rulcs. In fact, all decisions by [ hc
chair arc final unlcss ovcrrulcd by [hc
governing body iuelf.
Uecause che chair conduas che meecing,
i[ is wmmon courtcsy for [ he ehair to
ake a less ac[ ivc role than ather membcrs of chc body in debares and discussions. This Joes not mean that the chair should not participate in the debate or
discussion. On thc contrary, as a memher of thc hody, thc chair has full righ[ s m par[ icipa[ c in deha[ cs, discussions
and daision-making. Thc chair should,
howcvcG strivc ro bc chc la.a ro speak at
hc discussion and dcba[ c stagc, and
should nat makc or second a motion
unless he ur s6e is convinced that no
othcr membcr of thc body will do so.
The Basic Format for an
Agenda Item Discussion
Formal mcetings normally have a written,
published agenda; inFormal mcetinys
may havc only an oral or unJcrs[ ood
agenda. In cither ease, [ he mecting is
governed by the agcnda and [ he agenda
constimres chc bocly's agrecd- upon mad
map for [hc mccting. And cach agcnJa
i[ cm can bc handlcd by thc chair in thc
following basic furmat.
First, thc e6air should dearly announec
dic agcnda item number and should
dearly scare what thc subjea is. The
chair should [ hen announw thc fonnat
that will bc followed.
Second, following tha[ agenda format,
he ehair should invite the appropriate
people to report on thc itcm, induding
any mwmmcndation chcy migh[ havc.
The appropriace person may be chc
ehair, a member of ehe governing body,
www.cadtfes.org
Agenda Item #5.1.
Rorrnbrrg'r Rulrr ofOrdrr: Simplr PnrlianJrntnry Proadnre for tfie 21tt Cenn y a staff person, or a committce chair
chargcd with praviding information
about thc agcnda iccm.
Third, thc chair should ask mcmbcrs
of du body if [hcy have any reehnieal
qu xions for darificacion. Ac chis poinc,
membcrs of the governing body may uk
darifying qucvcions m chc pcople who
reportcd on thc irem, and [ hey should
he given timc to respond.
Fourth, the chair should invite public
commenrs or, if appropriate at a formal
meering, open the mceting to publie
input. If numerous members of [he publie indie m a drsire m spcak to the subjecr, thc chair may limic thc [ ime of eaeh publie speaker. Ac die conelusion of ehc
publie wmments, the chair should announce [ hat puhlic input hac eoncludcd or that the public hearing, as the case
may be, is closcd).
Fihh, the ehair should invite a motion
from thc govcrning body membcrs. Thc
chair should announcc [ hc namc of dic
mcmbcr who makcs [ hc mo[ ion.
Sizth, chc chair should demrminc iFany
member of chc body wishes [ a seeond
thc motion. Thc chair sl ould annoimcc
the name uF the memher whu scconds
thc motion. It is normally good practicc
for a motion ro rcyu rc a sccond bcforc
procecding with i[, ro cnsurc [ hat it is
noc just anc mcmbcr of thc bady who
is inmresmd in a parcicular approach.
However, a seeond is not an absulutc
rcquirement, and the ehair can proceed
with eonsiJcration and a votc on the
motion even when there is no seeond.
This is a mattcr Ick to thc disuction
of chc chair.
eventh, if che mo[ ion is made and seconded, chc ehair shauld make surc cvcryonc undcrs[anJs the motion. This is done in one of [hrec ways:
I. Thc chair can ask the makcr of [hc
motion tu rcpcac ir,
2. Thc chair can mpca[ thc motion; or
3. Thc ehair ean ask [ he sccrc[ ary
or che clerk of the body m repeat
tlie motion.
2 League of California Cities
Eighth, thc chair should now invire discussion of the motion by the members oF [ hc govcrning body. IF therc is no
desircd discussion or thc discussion hac
cndcd, thc chair should announce that
thc body will vom on thc motioa If
thcrc has bcen no discussion or a vcry
bricf discussion, the votc should procccd
immcdiatcly, and thcrc is no nccd ro mpc.nt thc motion. If thcrc has becn subscancial discussion, ic is normally beu ro makc surc cveryonc unders[ ands thc
mocion by mpra[ ing it.
Motions arc made in a simple nvo-stcp
proeess. Fint, the ehair reeognizes thc
membee Sewnd, the member makes a
motion 6y preecding the member's
dcsind approach with thc words: " I
mwc ..." A typic l motion migh[ bc:
1 movc that wc givc 10 days' notice in
thc fi mtt For all our mcetings."
The chair usually initiates [ he motion by:
I. Invicing [ he membea m make a
mo[ ion: "A motion at this time
would be in arder."
DeUate on policy is healthy; debate on personaliries
is not. The chair has the right to cttt off discussion
that is too personal, too loud or too crude.
Ninth, thc c6air takcs a votc. Simply
asking for thc " aycs" and chcn chc " nays"
is normally sutFcicnt. If mcmbcrs oF[ hc
body do nor vo c, thcn [ h y "absrain."
Unlcss [ he mles af the body provide
o[ hrnvise or unless a supervmajoriry is
rcquircd ( as delineared later in these
rules), a simple majoriry dcmnnincs
whet6er the motion passcs or is dcfcired.
Tenth, t6c chair should announcc the
nsult of thc vote and should announce
w6at action ( if any) thc body has taken.
In announcing the msulc, [ hc chair
should indicate the namcs oF the membcrs, if an}' who vo[ ed in tlic m'moriry on the motion. fhis announeement
might takc d e Following form " The
motion passcs by a vore of 3- 2, wi[I
Smith and Joncs disscnting. Wc have
pasxd thc motion nquiring 10 days'
nocice for all fumn mcctings uF this
govcrning body."
Motions in General
Motions am the vehides for decisionmaking. It is usually best to have a mooion beForc the governing hody prior ro discussing an agenda imm, ro 6clp everyone Foeus on the motiun before them.
Z. 5u csting a mocion m che members:
A mo[ ion would be in ordrr that wc
givc 10- days' notice in thc fumrc for
all our mectings."
3. Making thc motion.
As noteJ, t6e cliair has every righc as a
mcmbcr of thc body m make a mo[ ion,
but normally s6ould do so only if he or
shc wishc•s a mocion m bc made buc nu
o[ her mcmber seems willing ro do so.
The Three Basic Motions
Thrcc motions arc t6c most common:
The buic motion. Thc basic mo[ ion
is [ he onr that puts fonvard a decision for consideration. A basie motion migh[ be: " 1 move d at we creatc a five- membcr wmmittec to plan
and put on our annual fundreisee"
2. The motion ro amend. IFa mcmbcr
wan[ s m change a basic motion chat
is undcr discussion, hc or s6e would
move m amcnd it. A mocion m
amend might be: " 1 move that wc
amend the motion to havc a 10-
membcr eommitre " A motion to
amend takes the buic mo[ ion c6at is
bcForc [ he body and seeks ro ehangc
ic in somc way.
Agenda Item #5.1.
3. The substitute motion. If a mcmber
wants ro complctcly do away with
tlie basic motion under diswssion
and put a new motion bcforc thc
goveming body, he or she would
movc a substi[ u[ c mo[ ion " A subs[ imte motion might be: " I move a substimte mo[ ion [ haz wc eancel [ he annual fundraiser this ycar."
Motions m amend and substitute mocions am oftcm m fused. But thcy are quite dif%rent, and so is their effict,
if passed.
A motion to amend s Yks ro rc[ ain [ hc
bacie motion on the floor, but [ o modify
it in somc way.
A substimtc motion sceks m tlimw our
thc basic motion on [ hc flaor and subs[ im[ c a new and difTerent mation for it.
Thc dccision as ro whedmr a mution is
really a motion ro amend or a substimte
mo[ ion is IcFt ro thc chaic So that if a
mcmber makes what that membcr calls a
motion to amcnd, but thc chair dctcrmincs it is rcnlly a subscimre motion, [ hc chair's designation govcrns.
When Multiple Motions Are Befare
The Goveming Body
Up [ o [ hree motions may he on the floor
simultancously. Thc c6air may rcjcc[ a
fuurth motion until chc threc [ ha[ arc on
t6e floor have becn nsolvcd.
Whcn nvo or chrcc morions arc on [ hc
floor (af[cr motions and seeonds) a[
chc same [ ime, the frrrt votc should be
on thc lrut motion made. So, for example, assume the first motion is a basic motion ro havc a five- mcmbcr commictec to plan and pu on our annual fundraiser." During dic discussion of chis motion, a mcmbcr migh[ makc a second
mocion co " amcnd chc main mocion ro
havc a 10- member mmmittce, not a
fivrmembcr eort mitmc, ro plan and
put on our annual fundraisce" And perhaps, during that discussion, a mcmbcr makes yct a t6ird motion as a" substiture
motion tha[ wc no[ have an annual
fundraiser ehis ycar." The proper procedure would be as follaws.
Rorc iberg'r Rnla ofOnler: Simple Pnrlrnmenrary Prondnrefar the 21 t Cnunry First, [ he chair would deal with the
thrrA( the last) motion on thc floor, the
substimtc motion. Akcr discussion and
debate, a vote would be taken firs[ on
he third motion. If thc substimtc
motion pmtet, ic would bc a substimtc
for the huie morion and would eliminare it. The firs[ mo[ ion would be moot, as would chc semnd mocion ( whieh
sought m amcnd the firsc motion), and
the action on the agenda irem would bc
complete. No vote would be taken on
the first or seeond motions. On thc
o[ her hand, if the substitute motion ([ hc
third motion) fniled, thc chair would
proceed to consideration of [he second
now thc last) motion on [ he floor, thc
motion to amend.
f the substim[ e motion failed, the
ehair would then deal with the second
now thc last) motion on thc floor,
the mo[ ion to amend. The discussion
and debate would focus stricdy on the
amendmcnt ( should thc commic[ cc bc
fivc or 10 mcmbcrs). If thc mocion co
amend pnrxd, thc chair would now
muvc to considcr thc main mo[ ion ( the
firsc motion) as amrndrd. If the motion
ro amend faileJ, the chair would nuw
move co consiJer [ he main mution
hc first mo[ ion) in its original format,
not amcnded.
To Debate or Not to Debate
The basie rule of motions is that they
are subjcct ro discussion and dcba[ r.
Accordingly, basic mo[ ions, motions m
amend, and substimcc motions arc all
eligible, each in thcir mrn, for full discussion bcforc and by the body. Thc deba c e n eontinue as long as memhers
ofthc body wish m discuss an itcm, subjcct m[ hc dccision of the chair that it is timc m move on and takc action.
Therc are ezceptions ro the genenl rule
of free and open debare on mo[ ions. Thc
ezcepcions all apply whcn thcrc is a
desire of the body m movc on. Thc following motions aze not deba[ able ( that is, when thc following mo[ ions arc madr
and scronded, the chair must immediaccly call for a vote of the body without dcbate on the motion):
A motion to adjourn. This motion, if
passed, reyuires the body m immcdiatcly
adjoum ro its next rcgulady schcdulcd
mec[ ing.' Cliis motion requires a simplc
majority votc.
A motion to recus. This motion, if
passcJ, rcquires [ he bady m immediarely
takc a reass. Normally, [he chair dcter
mincs che Iengch of thc rccess, which
may range fmm a few minutcs m an
houe It requircs a simplc majoriry vo¢.
The challenge for anyone chairing a public meeting is to accommodate puUlic input in a timely and time-sensitive way, while maintaining steady
progress through the agenda items.
Third, hc chair would now deal with
chc firs[ mocion chaz was placed on thc
flooc The original mation would e¢ her
be in its original format (five- membcr
tommittee) or, if amended, would be in
its amended format ( 10• member committee). Md the qucstion on [ he floor for discussion and decision would 6e
whether a commi[[ ee should plan and
pu[ on the annual Fundreiser.
A motion ro fix the time to adjourn.
This mo[ ion, iFpassed, rcyuires the body
co adjourn the meeting at the speeifie
cime set in che mation. For example, thc
motion might be: " 1 move we adjourn
this meeting at midnighc." It requires a
simple majoriry vo e.
A motion [ o table. This motion, if
passed, requires discussion of the agenda
irem ro be halred and the agenda i[ em ro
www.cacities.org j
Agenda Item #5.1.
Romiberg'r Rnler nfOrder: Simple Pndimm unry Prored nfor the 2l.ct Cnunry be plaud on " hold " Thc motion may
mntain a specific [ imc in which thc
itcm c n comc back m thc bady: " 1 movc wc tablc [ his itcm imcil our regular meeting in Ocmber." Or the mo[ ion may con[ ain no specifie time for the
rcmm of [hc irem, in which casc a
ma[ ion [ o t:Jce the item off tlie tablc
and bring it back ro the body will havc
to be taken at a fumre mecting. A
motion ro table an ircm ( or m bring it
back ro thc body) requircs a simplc
majoriry vo[ c.
A modon ro limit debate. The mosc
mmmon Form oFchis mocion is m say:
movc chc prcvious qucsciod' or " I
move the quescion" or " 1 call for che
quation." When a member of the body
makes such a motion, the member is
rcally saying: " Pve had enough debate.
Let's get on with t6e vote." When such
a motion is made, che chair should ask
for a semnd to chc motion, smp dcbatc,
and vom on [ he mocion m limi[ deba[ c.
The mocion to limic debace requircs a
nvo-thircls vute of the hody. Note that a
motion to limit debare wuld incluJe a
timc limit. For examplc: " I move we
limit de6ate on t6is agenda imm ro
15 minutcs." Even in this format, thc
he mocion fails. If one member is absenc and chc vocc is 3- 3, chc mocion still fails.
All motions rcquire a simplc majoriry,
but there are a few exceptions. The
exceptions occur when the body is
taking an action [ hat efFeaively cuts
off thc ability of a minority of thc body
to takc an action or diseuss an item.
Thesc eztraordinary motions nquire a
nvo- thirds majority (a super- majority)
m pass:
Motion to limit debate. Whether a
memher says, " 1 move the prcvious
qucstion," " 1 move thc yuestion," " I
call For che yuescion" or " 1 mave ro limi[
debatt; it all amouna to an attempt tu
cut off the abiliry of thc minoriry m discuss an itrm, and it nquins a two-thinls VO[ L'[ U P855.
Motion to close nominations. Whcn
choosing ofiiccrs of chc body, such as chc
chaie nominacions are in order eicher
fmm a nominacing eommittce or from
the floor of [hc body. A motion ro closc
nominations effeetively euts off t6e right
of t6e minoriry tu nominatc officcrs,
and it requires a nvo- thireic vore
m pass.
If you are running the British Parliament,
Robert' s Rules of Order is a dandy and quite
usefizl handbook.
motion ro limit debate reyuims a twot6inis votc of t6c body. A similar motion is a raotiar ro objtrt m rauidrrntiau of?m rtnn. This motion is not dcbatablc,
and if passcd, prccludu [ hc hody from
even considrring an irem on the agenda.
It also requires a nvo-thinls vo[ e.
Majority and Super-Majority Votes
In a dcmocrecy, decisions arc madr with
a simple majoriry vote. A cie va[ e means
thc motion fails. So in a seven- member
body, a vom of 43 passes the motion. A
votc of 3- 3 vith onc absttntion means
4 LeagueofCaliforniaCities
Motion to objett to the considention
oE a quution. Normally, such a motion
is unneeessary, heeause the objeetionahle
item ean be tabled or defcated straight
up. Howevcr, whcn mcmbcrs of a body
do not cvcn want an i[ cm on thc agcnda
m bc eonsidend, thcn such a mo[ ion
is in orJee It is not debatablq and it
rcyuires a nvo- thinls vote ro pass.
Motion to suspend the rul s. This
mation is debatable, but requires a nvohirds vom ro pacs. If che body has its own rules ofordcr, conduct or proccdurc, [ his motion allows thc body ta suspend the rules for a particular purpose.
For example, the body (a private dub)
miglit have a rule prohibiting the attendance at meetings by nomelub members. A motion ro suspend thc rules would 6e in ordcr to allow a non- club
member o attend a mceting of [he elub
on a par[ icular dacc or on a par[ icular
agcnda i[ cm.
The Mofion to Reconsider
T6ere is a speeial and unique motion
that rcquins a bit oFexplanation all by
itself the motion to reconsidcr. A tenet
of parliamencary proudurc is finaliry.
Afccr vigorous discussion, debare and
a votc, chcrc musc be somc dosure m
chc issuc. Md so, aFcer a voce is caken,
the matter is deemed closed, subject
only ro reopening if a proper motiun
to rewnsidcr is maJc.
A motion m reconsiJer requires a
majority vure to pass, but therc arc
nvo spccial rulcs tliaz apply only m
che mocion m rceonsidrr.
Firsc is chc maacr of ciming. A mocion
m rcconsider mus[ be made at che meecing wherc the item was first voted upon or at t6c very next mceting of the body.
A motion ro rcconsider madc at a larer
time is untimcly. (Thc body, howcvcr,
can always votc ro suspcnd thc rul s
and, by a nvo- chirds majoriry, allaw a
mo[ ion m reconsider ro be made ac
anothcrtimeJ
Second, a motion ro rcconsider may he
made only by eertain members of thc
body. Acconlingly, a motion m rrconsidcr may bc madc only by a membcr who vorcd in the sinjorrty on [ hc original motion. If such a mcmbcr has a change of hcart, he or she may make thc
motiom m mnsider (any other member oFthe body may second the motion).
If a member who voted in the minority
sceks m make thc mocion ro rceonsider,
i[ must bc rtded auc of onlee Thc purposc of [his rulc is finaliry. If a mcmber of thc minoriry could makc a macion m
reconsider, then the item could be
brought back to the body again and
again, which wouW defeat the purpose
of finaliry.
Agenda Item #5.1.
If che mocion m reeonsidcr passes, chen
the original matter is back beFom the
body, and a new original motion is in
mdee The matmr may be discussed and
Jcbamd as if it were on the floor for thc
fiat timc.
Courtesy and Decorum
The rules ofordrr arc meant ro creatc
an atmuspherc w6ere the members of
the body and the members of the public
can aarnd ro business eFficiendy, fairly
and with Full participation. And at thc
samc timc, it is up m thc chair and die
mcmbcrs of dic body m main[ ain common courresy and dccorum. Unless chc sening is very inFormal, ir is ahvays besc
for only one person at a time to have
thc floor, and it is always hest for vcry
Raiufbrrg't Rnla ofOrder: Simple Parlrnmentnry Prorrdenrfnr the 21tt Crnrnry It is usually best to have a motion before the governing body prior to discussing an agenda item, to help eveiyone focus.
lege rclate ro anything that would intcrfcrc with the normal comfort of thc meeting. For example, the room may
bc mo hot or roa cold, or a b owing
fan might intcrfcrc vit6 a perso is
ability to hear.
Ordee The proper incermpcion wauld
be: " Point ofortler." A ain, thc chair
would ask the interrupmr ro" stare your
point " Appropriate points of mder
Motions to amend and substitute motions are
often confused. But they are quite different, and
so is their effect, ifpassed.
speaker ro be first mcognized by the
chair beforc proceeding m speak.
Thc chair should always ensure [ hat
debace and discussion oFan agenda itcm
focus on [ he i[ em and the policy in quescion, no[ on [ he personalities of the members of the 6ody. Debate on poliry
is healthy; debate on personalitics is not.
rhe ehair has the right ro cut off discussion that is too personal, too loud or too erude.
Debam and discussion should be focused, buc fine and open. In the inrerest of time, the chair may, however, limit
he time allot[ ed to speakers, including
members of the body. Can a membcr of
the body interrupt the spcaked Thc
general rule is no. Therc are, howcvcr,
exceptions. A speaker may be in[ errupoed For the following rcasons:
Privilege. The proper inmrruption
would be: " Point af privilege." The chair
would then ask the intermpmr to " stam
your poinc." Appropriate points of privirclare ro anyching cha[ would not be considered appropria[ e conduct of the
mee[ ing; for example, if [he chair moved
on m a vore on a mo[ ion tha[ permits
debam without allowing that discussion
or debate.
Appeal. If the chair makcs a ruling cha[
a member of the body disagrees wi[ h,
that member may appeal che ruling of
che chaic ff[ he motion is seconded and
aFter debate, if ic passes by a simple
majoriry vom, then the ruling of the
chair is deemed reversed.
Call for orders oF t6e day. This is simply anocher way of saying, " Let's mmrn to the agcnda." Ifa member believes tha[
the body has drif[ed From the agrcedupon agenda, such a call may be made. k does no[ requirc a vote, and when the
ehair discovea that the agcnda has not
been followed, the chair simply remincls
the body ro rcmm ro the agenda irem
properly befom chem. If che chair fails
ro do so, [ he chair's decermination may
bc appcalcd.
thdraw a motion. During dcbacc
and discussion of a motion, the makcr
of the motion on thc floor, at any timc,
may interrupt a spcakcr to withdraw
his on c r motion from [ he floor. Thc
motion is immedia[ cly deemed withdrawn, although thc thair may ask [ he person who umnded [he mo[ ian if
he or she wishes m make the motion,
and any o[ her member may make the
mocian if propedy reeogniud.
Special Notes About Public Input
Thc rulcs oudincd hcrc hclp makc m coings very publio-fricndly. But in addiion, and par[ icularly For thc chair, it is wise ro rcmember threc special rules [ hat
apply to each agenda item:
Rule Onr. Till thc public wha[ thc body
will bc doing.
Rule Two: Kcep the public informed
whilc [hc body is doing it.
Rule Thrce: When the baly has actcd,
tcll the public what the body did.
Puhlie input is essential m a hcalthy
dcmocracy; and community participation in publie meccings is an impartant cicmcn[ of thaz inpuc. The challenge For
anyane chairing a publie meeting is to
aecommodate publie input in a timcly
and timo-sensitivc way, whilc maintaining stcady prognss t6rough [ hc agcnda items. The rules pnsen[ ed herc For eondueting a mecting arc affircd u[ ools for cffcetivc leadcrship and as a mcans of
devcluping sound publie poliey. - ,
www.caciNes.org 5
Agenda Item #5.1.
SKU 1533
55. 00
To order addiHonal copias of thk
publicatlon, call (916) 658 8257 or
VISh WWW.GC{I @S. OIBISWlB.
2003 League of Calikmia Citles
PJI rights reserved
LEAGUE "°°"g`"°`
SaerameMo, CA 95814
OF CALIFORNIA ( 918) 858A200
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Agenda Item #5.1.
Understanding Your City’s Departments
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide Understanding Your City’s Departments
Introduction
Elected officials interact with all city departments and are responsible for making decisions that affect each of these departments. While it may not be necessary to have a detailed understanding of the functions and roles of your city’s departments, a basic understanding of these functions in order to make more informed decisions is helpful.
The purpose of this section is to provide information about each city department by describing their basic responsibilities, primary functions and relationship with the council. Each article in this section will provide an introduction to the department. For a more comprehensive guide, please consult the reference pages at the end of this section for further reading.
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide The City Manager
Most California cities maintain the council-manager form of government, with a city council elected by the people and charged with the basic responsibility of governing the community. Generally, a city manager is appointed by the council to manage the city’s administrative responsibilities and day-to-day operations. In becoming an elected official in a city, it should be helpful to review the roles of city officials and examine the nature of their relationship to the city manager.
Primary Functions of the City Manager
The city manager has two distinct, if overlapping, roles:
1) To provide direct staff assistance to the council as a whole and to its individual members.
2) To manage the city organization in the delivery of public services.
The elected official normally works on two kinds of matters -- daily constituent needs or specific complaints, and the longer-range issues of public policy, such as what services should be provided by the city government, at what level those services should be provided, and what direction the community should take in its future development. In order to deal effectively with either type of problem, the elected official requires staff assistance.
In a real sense, the entire city organization serves as staff to the elected officials, and the city manager, together with other members of the management team, see to it that the necessary assistance is provided. Perhaps the most common problem experienced is the constituent service problem, i.e., when a citizen contacts a council member with a complaint about city service. The council member then asks the manager (or an assigned staff assistant in a larger city) to investigate, or resolve the matter, with or without a report back to the council member.
On another level, the council relies on the manager and its staff for assistance in policy formulation. City staff can provide information the council needs to make a decision, staff can provide a recommendation of the best approach to take on a policy matter, or staff can provide assistance to the council in sorting out specific issues and aid in developing policy alternatives.
Individual members of the council should not expect the city manager to implement their ideas unless a majority of the council gives such direction. The city manager’s role is to carry out council policy as established on a given issue by a majority of its members. A council member who is in the minority on some issue should endeavor to change his/her colleague’s position rather than expecting the city manager to martial the organization’s resources in support of a policy decision that differs from the direction set by the council majority.
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide Regardless of the issue area, the city manager as a generalist assists the council in working with staff to facilitate the council's decision-making role. If the council is concerned with a land-use planning issue, the manager works with the city's planning staff to provide information and/or alternatives for the council; if the council is concerned about the level of police service, the manager works with the city's police services staff to do the same, and so forth. The city manager is directly responsible for the quality of all staff assistance provided to the council.
In addition to his or her role in providing direct staff assistance to the city council, the city manager is responsible for executing council policies. As the chief executive officer of the city, the manager must see to it that the services and programs the council has decided upon are effectively delivered. In this role, the manager supervises the work of the city's management team to make certain that the systems and procedures employed in the delivery of services are the most effective possible in relation to program objectives, and to make equally sure that the people within the city organization are working together as a team.
It is extremely important that the manager be well-qualified technically; know how to deliver city services in an efficient manner; know when the procedures in use could be strengthened or improved upon; and to suggest techniques or approaches which can work to achieve the objectives set by the council. But it is of at least equal importance that the manager knows how to get the most out of the people in the city organization; how to assist them in working well together; and how to realize the best performance of which each is capable.
A word about the city manager as a professional is useful at this point. The professional city manager has one basic commodity to sell, aside from technical knowledge about city service delivery systems and the management of people in organizations: integrity. The good manager must have the ability and, on occasion, the guts to present what he or she feels is best for the community even when this view may not be popular. His or her ability to always be thorough and forthcoming in providing information and alternatives to the council is the essence of professionalism. In group processes particularly, trust is vital to effectiveness.
Relations Between the City Council and the City’s Management Staff The determining factor in assessing any relationship between people is the quality of communication between them. The perceptions and expectations that each person has of the other and of their relationship form the basis of the relationship. The completeness of communication (the transmission of information) is dependent upon this foundation, which underlies all human relations in any organization. It is equally applicable to relations between members of the management team, members of the city council, and between the city council and appointed staff. Each participant in the city organization, elected or appointed, must work at appreciating the many sets of relationships which exist and which must be accommodated in the process of setting and effecting city policy.
In a well-functioning city government, the city council and the city staff will demonstrate a genuine respect for each other and each other's roles. This does not necessarily mean Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide that everyone will agree. Rather, there is agreement about how to disagree. Public statements expressing lack of trust or personalized attacks reduces everyone's image, and creates a climate of protecting one's self and defensiveness. Council member concerns (individual or as a council) about the performance or integrity of staff appointed by the city manager can be very helpful to the city manager, if offered privately. None of the above is to suggest that public expression about the city manager or staff performance is always out of place, but that the time and place should be subject to the standards the city council sets for itself and done in a manner which minimizes personal attacks and maximizes getting the job done.
The relationship between the mayor and city manager is slightly different because of the unique role of that position. The mayor is the chief elected official of the city, whether directly elected as mayor or elected by a vote of the council. In this role, the mayor is responsible to provide policy leadership to the council, and to represent the council in public meetings. But the mayor should also be able to represent the council to the city manager in the day-to-day carrying out of the city's business. The mayor should facilitate the relationship between the management staff and the council by being a source of advice and counsel to which the manager can rely. To fulfill this role effectively the mayor must be able to fairly represent the view of the whole council, and the council must respect the mayor's role as its representative. A good working relationship between the mayor and the city manager is therefore essential.
Two important factors to consider in council and manager relations are the responsibilities the council has towards the city manager:
• Providing direction to the city staff
• Evaluating the performance of the city manager
Providing Direction to the City Staff
The city council's ability to govern and make progress is very closely related to the council's ability to provide direction to the city manager and staff. Only when individual council member desires are "elevated" to a policy or program supported by all or at least a majority of the city council can one's own agenda be realized.
Unfortunately, there are many forces at work making unity and a team approach difficult for a city council to achieve. This can be especially true in district cities in which individual council members view their district as a first priority. Consequently, many city councils have found it invaluable to occasionally come together in a facilitated teambuilding or goal setting workshop or to attend, as a group, similar sessions offered through Cal Cities. In any event, a city council-directed goals process resulting in a council-adopted goals statement can be very helpful in clarifying its priorities to the staff and community as a whole.
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide Evaluating the Performance of the City Manager
Performance evaluations are communication devices. Without performance appraisals, something is lost in the communication process, and a loss in this area can ill be afforded by any of the participants in local government. Since the city manager has the greatest influence in carrying out council policies, one of the most important jobs a mayor or council member has is to provide clear direction and carefully monitor the manager’s progress, giving praise or corrective measures as needed.
Performance appraisals are always a two-step process. First, the participants must discuss the expectations that exist against which performance will be measured. What are the standards, what are the principal values, and what are the objectives to be pursued? It is only after the council has determined with the city manager (or attorney, or clerk) the factors which will be assessed that the appointed official is in a position to really know what is most important to the council; and it is only then that the council is in a position to effectively evaluate performance, the second step in the process. An increasing number of city manager employment agreements make specific reference to a periodic evaluation of the city manager.
A good working relationship at the top of the city organization is clearly important. To realize this, the participants must begin with a good understanding of the roles and responsibilities of each other, and then must work at the job of communicating in order to keep it. Some cities have found it very helpful to hold or participate in workshops designed to develop more effective working relations among council members and between the council and staff.
When a functional understanding of each person's interests exists, and there is an atmosphere of trust and support, although not necessarily agreement, then conflict can be addressed in a mature way and reason can be the order of the day. Then locally elected leaders can more effectively serve the public interest and win the public's respect; this will make your difficult job a little easier and probably more fun.
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide The City Attorney
The city attorney is a valuable resource to a mayor and city council. In order to facilitate effective communication between the city council and the city attorney, it is helpful to understand a city's options in obtaining legal services and what the city attorney's job entails.
This paper is designed to provide mayors and city council members with information to help facilitate a solid working relationship with their city attorney. The paper covers the primary functions of a city attorney, how a city may select a city attorney, the importance of communication, and a short discussion on the attorney-client relationship.
Effective communication between city officials and the city attorney is critical to the smooth operation of the city. Early and frequent communication about proposed city actions can save cities headaches and money in the long run.
Primary Functions of the City Attorney
The city attorney has several functions, which can be categorized as follows and will be explained in further detail below:
• Serving as chief counsel to the city for both elected officials and staff • Reviewing and drafting ordinances, resolutions, contracts, deeds, leases and other legal documents
• Representing the city in litigation as a defendant or a prosecutor.
Chief Counsel to the City/ Elected Officials and Staff
As chief counsel, the city attorney typically attends all city council meetings to provide on-the-spot counsel and to have firsthand information on immediate and contemplated city actions. An important aspect of this job is to render opinions on specific legal issues.
These opinions can either be formal (in writing) or informal (oral advice). The city attorney also may serve as the council's parliamentarian.
One of the primary functions of the city attorney is to provide legal advice on whether the city has the authority to engage in a given activity. Cities, of course, share sovereign power with the state and federal governments. There are policy areas in which the state and federal government have reserved authority exclusively to themselves, thereby "preempting" local action on an issue. There are other instances in which the state or federal law has imposed specific obligations on a city if it wants to take action. In either event, the city attorney's advice can prevent costly legal missteps.
In order to render an informed opinion on important legal questions, the city attorney must sometimes analyze several sets of statutes and hundreds of reported cases. The sheer volume of law affecting cities has increased greatly during the last decade.
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide Further complicating the city attorney's job is the fact that the law is not always clear in a given area. When this occurs, the city attorney must give his or her best judgment on the probable and possible legal consequences of a proposed course of action. The city attorney cannot, however, make the law clear when it is not and would disservice the city by creating a false sense of security in the face of real risk.
Reviewing and Drafting Legal Documents
In addition to providing counsel to the city, the city attorney is also responsible for the drafting and/or review of important legal documents, such as ordinances or contracts.
Representing the City in Litigation
In addition to advising the city on the legal implications of its actions, the city attorney in 10 cities prosecutes state law violations. Almost all city attorneys prosecute violations of city ordinances.
Even when a city has in-house legal staff, it may find it necessary to contract out some work. There will be times when the city's legal needs require the services of a specialist.
Also, the city's legal requirements will have peaks and valleys; it may not make sense to hire full-time, long term staff to cover the "peaks." Finally litigation can be very consuming of both attorney and support staff time and may therefore be contracted out in all or part.
Hiring a City Attorney
The voters elect a small number (eleven) of city attorneys in California. The remaining cities with appointed city attorneys obtain legal services in two basic ways. The city can hire one or more attorneys as full-time city staff (the "in-house" city attorney), or, the city may choose to hire a "contract" city attorney to provide legal services.
According to the League's records, about a fourth of California's cities have chosen to have full-time, in-house legal counsel. Numerous cities contract with attorneys in private practice who either represent several cities or represent other, non-municipal clients.
Many smaller cities have chosen to receive legal services this way.
Communication Is a Two-Way Street
Effective communication requires a joint effort on the part of the city attorney and city officials to make sure the city attorney is kept informed of the city's activities. This means that council members must sometimes take the initiative in communicating concerns to the city attorney; similarly, the city attorney must communicate concerns to the council as well. It is particularly helpful for a city attorney to receive a “heads up” if the council member knows in advance that a legal question may arise at a public meeting.
By alerting the city attorney to the issue beforehand, the city attorney will be prepared to answer any questions that may arise during the meeting.
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide The city attorney is paid to give good and timely advice. If the city attorney is unable to give good and timely advice because of poor communications either to or from the attorney, neither the city nor the taxpayers are getting their money's worth. Worse yet, the city may have to spend more money on litigation and adverse judgments -- money which could be better spent on other public programs.
A Note About the Attorney-Client Relationship
A client's communications with his or her attorney are protected by the attorney-client privilege, which protects the confidentiality of those communications. Allowances are made for this fact in the Brown Act, which authorizes the council to meet in closed (nonpublic) session to discuss pending litigation against the city.
One frequently asked question is precisely "who" is the city attorney’s client. The answer determines to whom the attorney-client privilege applies. Although there is some debate on the issue, the basic answer is the city attorney's client is the city as a whole, acting through the city manager and city council. The city council therefore holds the attorneyclient privilege, which means the city attorney's communications with staff members and individual members of the council cannot be kept confidential from the full city council.
From time to time a city official may wonder about the advice being given by the city attorney. It is tempting, of course, to seek a second or even third opinion. While such opinions have their place, it is best to include the city attorney in evaluating any such option.
The city attorney is the individual the city has hired (or the voters have hired) to advise the city on legal matters. The city attorney is most familiar with the laws bearing on the city's action, particularly local ordinances, internal procedures and any charter provisions.
If the city is sued over a given action, it is the city attorney who will be responsible, in all likelihood, for defending the city in court.
In recognition of the perils associated with usurping the city attorney's role in advising a city on its legal matters, and on the limitations on an outsider’s ability to give competent advise without access to the ‘whole story’, it has been long-standing Cal Cities policy to forbid its staff from giving city officials legal advice on city matters.
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide City Clerks
Government Code Section 36501 sets forth the governing officers of the city, one of which is the City Clerk. The City Clerk is the local official for elections, local legislation, the Public Records Act, the Political Reform Act, the Maddy Act (public noticing of commission appointments), and the Brown Act. Before the City Council takes any action (and after they take action), the City Clerk, in conjunction with the City Attorney, ensures that actions are in compliance with all federal, state and local statutes and regulations. The City Clerk serves as a liaison between the public and the City Council, and the City Clerk's office is generally the first place residents call when seeking help from City Hall.
Considered one of the oldest government professions, the City Clerk is an officer in a municipal corporation performing a variety of complex professional and managerial duties including the execution of tasks prescribed by the Government and Election Codes. In both General Law and Charter Cities, the City Clerk may be directly elected by the voters or appointed by the City Council or City Manager. Depending on the organizational structure, the City Clerk’s position may range from a division or department director, or may carry the title of Assistant City Manager.
Responsible for the overall policy development, planning, fiscal management, administration and operations of the City Clerk Department, the City Clerk’s duties may include management of programs and services including elections, citywide records management, Fair Political Practices Commission mandated filings, preparation of City Council agendas, minutes, resolutions, and ordinances, recording actions of City Council meetings, the administrative aspects of contract execution (such as ensuring that bonds and insurance documents are submitted and valid), and handling public records research requests.
The scope of a City Clerk’s responsibilities can vary significantly among municipalities.
However, certain core responsibilities remain and can be categorized into legislative, elections, records management, or administrative functions.
Legislative responsibilities –
Each time the City Council takes action it is a legislative act whether it be by ordinance, resolution or minute action, the City Clerk must ensure that the action taken complies with federal, state, and local laws.
These legislative responsibilities include:
• Ensure compliance with the Brown Act (open meeting law) • Ensure compliance with parliamentary procedures
• Coordinate, prepare, and distribute council agendas, minutes, actions, and records of the proceedings
• Coordinate, prepare, and direct posting, mailing, and publication of legally-required public hearing notices/publications (including City Council, committee, special Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide agency, and authority meetings)
• Certify and attest to actions taken – (i.e. confirming that the document is the true and correct copy approved and that those executing the document on behalf of the city have the proper authority to do so)
• Codify and maintain municipal code; manage regular updates • Provide technical and administrative assistance to City Council, special agency and authority meetings
Election responsibilities
• Coordinate and conduct municipal elections including special elections, ballot measures, initiatives, referendums and recalls
• Serve as liaison to the County Recorder and Registrar of Voters. • Serve as City’s official filing officer for local campaigns; ensure compliance with Political Reform Act
• Manage receipt and processing of petitions relating to initiatives, recalls, and referendums, associated measures, analyses, arguments, and rebuttals • Coordinate voter outreach campaigns and conduct voter registration Records Management responsibilities
• Maintain records in compliance with Public Records Act • Responds to requests for public records in compliance with the Public Records Act, in consultation with the City Attorney
• Administer comprehensive citywide records management program which may include document imaging
• Manage processing, indexing, and maintenance of official City documents and records (ordinances, resolutions, and legislative actions) • Protect vital records
• Coordinate and facilitate research (internal and external) • Records disaster management
Administrative responsibilities
• Oversee official bid openings, contract and insurance administration • Process liability claims, summonses, and subpoenas
• Coordinate recruitment and selection processes for city committee, commission, and board members; ensure compliance with Maddy Act
• Administer and maintain oaths of office (public officials and employees) • Plan, direct, organize, and coordinate activities of a municipal department, division, or major program
• Develop and implement goals and objectives, policies and procedures both citywide and departmentally, especially for City Clerks who are also department heads • Provide leadership and direction with new program (and program changes) development and implementation
• Prepare and administer department budget
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide • Manage and supervise administrative, professional, technical, and support staff In summary, the City Clerk is a vital link in the successful operation of the municipal corporation. The legislative responsibility charged to the City Clerk is critical to the decision-making process of the local legislative body. As the local Elections Official, the City Clerk remains neutral to ensure the integrity of the democratic process. The City Clerk’s statutory responsibilities ensure the City’s business is conducted in the best interest of the citizenry it serves. While the core responsibilities endure, the City Clerk’s role continues to evolve while remaining responsive to the changing needs of the citizenry, elected officials, and technology.
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide The Finance Department
A city’s finance department represents a unified, integrated financial center with responsibility for financial matters affecting all departments and activities of the city.
Historically, this was not the case: rather the finance function was fragmented in several independent city directors, with responsibility for some activities retained by individual operating departments. The idea of centralizing the finance functions of auditor, treasurer, controller, purchasing agent, tax collector, etc., has won increasing favor and has allowed for more professionalism and accountability. You can, however, still find organizations that have various financial functions assigned to different departments.
Cities in California have broad authority to establish a finance department and assign appropriate functions. The financial duties assigned by the state statutes to the city clerk may be transferred to the director of finance at the discretion of the city council, and the duties of the city treasurer may be transferred from an elected treasurer to an appointed officer if approved by the electorate.
In recent years, many cities have expanded the role of the finance department to an administrative services function encompassing other general administrative functions. In those instances, often the position of accounting officer or controller exists for purposes of carrying out the duties found elsewhere under the direction of a finance director.
Primary Functions of the Finance Department
The basic duties of the finance department can be summarized as follows:
• Preparation of the city budget and other financial planning documents • Maintenance of all financial records in conformity with generally accepted accounting principles and in compliance with state and federal laws and preparation of the Comprehensive Annual Financial Report (CAFR)
• Providing financial information to the city council, city manager and other city officials on a timely and meaningful basis
• Revenue collection, tax collection and purchasing
Preparation of the City Budget and Other Documents
The budget should be viewed as one of the principal documents by which city policies are carried out. In order for the budget to accurately reflect the desires and the priorities of the council and the community, there must be agreement -- prior to the development and adoption of a budget --on what service, and on what levels the city wants to and/or should provide. Then, based on those adopted policies and priorities, the council can give staff the basic guidance necessary to prepare the budget for council consideration.
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide In most cities, the finance department prepares the city budget under the direction of the city manager. The budget document ties together financial information and financial decisions. Together, they're a financial expression of the services your local government provides based on established priorities. Preparing the budget in the same department that maintains the accounting records increases accountability and accuracy.
An historical document, the budget reflects services your government has provided for many years. As a planning document, it sets spending and service priorities for the coming year and in some cases two years. The budget is usually considered to be the city's single most important policy execution document. After it is adopted, it becomes law; however it is subject to amendment if conditions or priorities change. Changes in the budget may be executed by either the governing body or as designated by the governing body. Revenue and expenditure estimates in the budget are a yardstick against which actual revenues and expenditures are measured. Estimated beginning and ending fund balances, reflecting the results of the revenue and expenditure estimates are also an important element of the budget. The budget becomes the city's strategic plan for the future, both for operation and maintenance and capital improvements.
The finance director must be an integral participant in budget preparation and control.
The depth of involvement and responsibilities will vary from city to city. At the very least, the finance director will be responsible for furnishing previous expenditure records, revenue projections, and fund balance estimates. It should further be the director's responsibility to constantly review budget procedures and make any needed improvements. The finance department should issue regular financial statements during the course of the budget year so city officials can monitor budget implementation and compliance. The finance director typically prepares a midyear report to the council regarding the status of city finances. The midyear report takes on increasing importance if the entity is operating on a multiyear budget program. It is also especially critical when the economy is not as strong as normal.
The finance director must constantly review and study current revenue policies and trends. The director must be alert to recognize the need for new revenue or the necessity to adjust revenue estimates to meet changing conditions and to report the findings and recommendations to the appropriate authorities for their action. The finance director is responsible for the preparation and interpretation of financial data for short and long term plans and programs. The director should be prepared, when necessary, to accept the responsibility for determining the most appropriate method of borrowing funds and must insure that debt schedules are met, that surplus funds are properly invested, that reserves are maintained at appropriate levels, and that the fiscal credit of the municipality is maintained at the highest possible level.
There is an emerging trend to link the budget to performance and to organizational goals and objectives. Accountability is becoming understandably more important as competition and demands for resources increase.
The Government Finance Officers Association (GFOA) of the United States and Canada grants a certificate of achievement for excellence in budgeting to those cities that prepare Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide a budget in accordance with certain standards. The California Society of Municipal Finance Officers also offers a certificate program for budget documents that meet a certain standard. These certificates are generally included in the front of the budget document.
Maintenance of all Financial Records
The finance department is required to maintain certain financial records and to prepare financial reports. Although the statutory duties may vary in individual cases, there must be a complete set of accounting records for all functions and activities performed by the governmental unit, with responsibility for such records and accountability lodged with the finance director. These records must reflect compliance with legal requirements.
Providing Financial Information to the City Council, City Manager, and City Staff
The city's comprehensive annual financial report (CAFR) is the best resource for making sure the revenues, expenditures, bonds, and grants you've authorized during the budget process were collected and spent the way they were intended. It can also provide a basis for future decisions. The CAFR serves as a public document that tracks the performance of individual funds. Seek the assistance of the finance director when reading the report to insure that you are getting the clearest picture of the financial condition for your city.
Although financial reports can vary from city to city, there is a standard format and most city financial reports should contain the following:
• Asset, Liability and Fund Balance Information.
• Information on the basic expenditure and revenue categories you've authorized by law; financial reports comparing actual revenues and expenditures against estimates adopted in the budget.
• Information on revenues and expenditures organized into several different funds.
This is because government dollars are often earmarked for one specific use and cannot be used for another. Most of the "bulk" in the CAFR occurs because statements are included for every fund. But the type of information included for each fund is essentially the same.
Financial statements cannot tell you everything about your city's financial condition.
Much of the information can only suggest additional questions. For example, you probably won't be able to tell from your annual report whether local pension funds are adequately funded. In addition, your financial report is not the best source for determining the real cost of city programs and services (i.e., some previous year's expenses which have been promised but not paid yet may be included in current year totals).
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide Financial reports can also be misleading. Depending on whether revenues and expenses are recorded when they are anticipated and owed or when they are actually received and paid, the financial position of your municipality or of particular funds may look better or worse than is actually the case. Transfers between funds can also be complicated. So be careful about jumping to conclusions too quickly.
The Governmental Accounting Standards Board sets standards for financial reporting.
GASB’s Pronouncement 34 will significantly change the reporting model over the next few years with goal of making the report clearer and more useful. The Government Finance Officers Association (GFOA) of the United States and Canada grants a certificate of achievement for excellence in financial reporting to those cities that prepare a CAFR in accordance with these standards. The California Society of Municipal Finance Officer (CSMFO) also offers a certificate program for excellence in financial reporting. These certificates for the preceding year are generally included in the front of the CAFR.
If you find anything in your local government's financial report that causes concern, ASK. You may have spotted a problem. And if the report only LOOKS like you have a problem, you will be that much surer that your municipality is in good financial condition.
The traditional financial audit is an examination of the governmental unit's accounting records and underlying financial systems and internal control. The objective is to verify that all financial transactions have been properly handled and recorded in compliance with legal restrictions and generally accepted accounting principles so that the statements produced from the records accurately represent the public finances with which you have been entrusted.
Revenue Collection and Purchasing
The handling and accounting of cash and the investment of surplus funds is occasionally the responsibility of some officials other than the finance director. In many cities, however, the treasury function is included within the finance department. In other cities the city treasurer and city finance department are independent from each other.
Regardless of whether the collection, custody and disbursement of municipal funds are the direct responsibility of the finance director or some other director, there should be no compromise in the centralization of responsibility and control.
The finance director should see that all city revenues are collected in a timely and orderly way. This function includes supervision of local tax collections, such as business license taxes; coordination with county, state and federal officers through whom local revenues flow; and the collection of fees for services and regulatory functions.
If enterprise activities such as water, wastewater, electricity, transit, etc., are the responsibility of the city, then the finance director must act as the chief financial officer for these activities as well. In addition to the responsibilities outlined above, billing, collections and rate setting may also be performed by the finance department.
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide Council and Finance Department Relations
The shock of current reality and the forecasts of "hard times ahead" have pushed financial issues, and finance personnel, from the wings to the center of the stage along side the city council and the city manager. With finances, rather than programs and services, now a principal worry of municipal policy makers, there is renewed interest in the concept of finance departments, an interest which had diminished during the long years of economic expansion and relatively constantly growing revenues.
With restrictions on the supply of financial resources, cities are coming to grips with the need to assess and control the demand for services. In the past, "free" or under-priced governmental services have induced over consumption and hampered an assessment of real need or demand. The proper price incentives and disincentives can help reduce the need for government services or regulations.
To support proper pricing decisions and to move toward financial sustainability, city councils will need to know the actual costs of city programs and activities. This will require the introduction of more sophisticated accounting systems that can identify all the costs of a given program, including direct and indirect costs.
The heightened need for precision in financial decisions will create a demand for more accurate forecasts of revenues and expenditures. It is expected that finance departments will be required to have a significantly increased commitment to these activities.
Since Proposition 13 has limited the use of general obligation bonds to finance capital improvements, and since redevelopment financing and other capital financing tools have been jeopardized, considerable creative energy will be required of city councils and their finance staffs to provide for the construction of needed capital projects.
City councils and other public policy officials are becoming more aware of the unintended effects of their financial decisions. In the future, you and your colleagues on the council will work with the finance department and city manager to identify the inadvertent incentives and disincentives which your finance policies have on private decisions such as whether to rent or buy a home, where to live, where to work, where to locate a commercial or industrial plant, how to commute, how to invest, etc. You will ask the finance department to provide information that will help answer the question: Do our fiscal policies support community goals?
The demand for more timely financial information, additional information resources and improved financial management systems will necessitate the use of the latest available technology in data processing. Even most small cities now have computerized financial systems.
The recent focus through Statewide initiatives (Proposition 1A on the November 2004 ballot) on local government finance has heightened the awareness and knowledge of the public about local finance issues. City officials should expect citizens, investors and Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide other governments to demand more and better information concerning the city's financial condition in the future.
Due to the need to address the important issues above, the staffs of city finance departments can be expected to grow, probably in absolute numbers and certainly in professionalism. This is likely to be in contrast to other city departments that probably will not grow in an era of controlled demand and limited resources.
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide The Fire Department1
In decades past, fire departments occupied themselves with attempting to save lives and protect property by utilizing their resources to suppress fires. During recent decades, the fire service began to understand the value of utilizing strategies to prevent fires before they occur.
Today, participants in the progressive and modern fire service have expanded their roles, mission, and resources to three additional areas:
• “All risk” hazard protection and mitigation
• Provision of emergency medical services
• Establishing community based fire protection strategies The “all risk” strategy is particularly significant in California where our citizens live with the constant threat of earthquakes, floods, terrorist attacks, tornadoes, major hazardous materials releases, environmental disasters and nuclear accidents. Implementation of this strategy has necessitated that the fire service concentrate its efforts to institute readiness strategies for disaster preparedness.
Providing emergency medical services (EMS) is now the most significant way that today’s fire departments expend their time, energy, and resources. Two thirds of all responses in cities involve providing service for those in need of medical attention.
Firefighters devote extensive training hours in the areas of advanced first-aid, emergency medical technician (EMT), use of automatic defibrillators (EMT-D), and paramedic training (EMT-P). Firefighters save more lives by providing prompt, thorough, and efficient medical service than they do by rescuing residents from building fires.
Providing community based fire protection will occupy the fire service in the coming decade. Studies indicate that when citizens were asked whom they trust in the government, more than 75 percent responded that they trust the fire department. This concept attempts to utilize the community’s high level of trust in the fire fighting profession, and attempts to make firefighters community ambassadors as a launch point for substantive community outreach programs. Some examples are using the fire department and fire stations to:
• To hold community events and community meetings
• To conduct health fairs and blood pressure screening
• To hold CPR, first aid, baby sitter safety classes
• As a safe haven for children who are victims of abuse and violent crimes • To educate the community on topics such as smoke detectors, fire extinguishers, and home safety
• To hold neighborhood disaster preparedness programs to teach self-sufficiency to citizens in preparation for catastrophic events
• To assist elderly citizens with vision and hearing programs * Written by Gerald A. Simon, Fire Chief, City of Santa Clara.
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide • To instruct the community on the dangers associated with security bars in their homes • Collection sites for toys, food and supplies for community need programs • For counseling, mentoring, and functioning as role models for the youth in the community
These are the strategies that fire departments will employ to enhance the service delivery into the next millennium and beyond.
Law and Authority
State law is silent concerning the authority of charter cities to provide fire protection.
However, Section 38600 of the Government Code provides that the legislative body of a city may provide for fire protection and prevention, and Section 38611 of the Government Code makes it mandatory that a city organized under general law shall establish a fire department. The specific local authorization under which a fire department functions is established by the charter of the city council itself. In addition to local laws and ordinances, fire department operations also are affected by numerous types of federal and state intergovernmental regulations and mandates. It is common for fire departments to enter into agreements, such as mutual and automatic aid, and joint powers agreements. These agreements assist individual fire departments to provide the highest possible level of service to the citizens. Fire departments are strengthened tremendously by knowing that these agreements with their neighboring jurisdictions enhance service levels on a routine basis, and allow for a significant influx of needed resources during abnormal or catastrophic events. Mutual aid training is a great way to strengthen a disaster preparedness program and to develop “good neighbor” habits across jurisdictional boundaries.
Diverse Roles and Functions of the Fire Department
Many fire departments are organized into a structure which has practical application from an administrative and operational perspective. The modern fire service is highly structured with a well-defined chain of command. The use of the incident command system (ICS) and the advent of the standardized emergency management system (SEMS) have allowed fire departments to become proficient in structuring complicated tasks and managing incidents effectively.
Effective structuring has helped produce fire department organizations that are able to provide a number of diverse functions and roles. These include:
Fire Suppression
Reducing the hostile spread of fire
Inspections of local businesses
Emergency medical response
Disaster preparedness (All-risk)
Calls for general service to citizens
Response to wildland/urban interface
emergencies
Fire Prevention
Public education
Code enforcement
Building plan review
Fire cause determination
Building safety inspections
Home inspections
Weed abatement
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide Fire Training
Training to enhance emergency skills
Safety training and awareness
Injury prevention strategies
Physical fitness training
Technology implementation – computers and
Computer-Aided-Dispatch systems
Regional training activities
Joint Fire Academies to train recruits
Volunteer Firefighters
Fire suppression services
Emergency medical training
Community service events
Administrative Support Services
Human resources
Budget analysis/preparation
City Attorney liaison
Clerical support services
Governmental relations
Duplicating and document preparation
Facilities maintenance
Apparatus maintenance
Emergency Medical Services
Training emergency medical responders
EMT, EMT-D, EMT-P training
Community CPR training
Baby sitter safety programs
Continuing education training
Mass casualty planning and training
Ambulance transportation
Hazardous Materials
Training hazardous materials responders
Public education and consultation
Emergency Response Team (ERT) industrial training
Environmental crimes and disasters
Use, handling, storage and disposal of
hazardous materials
Air, water and underground protection.
Public Relations Unit
Media relations
School, church, community programs
Public broadcasting on our channels
Community training/public education
Disaster preparedness
Rescue Specialties
Confined space rescue
Urban search and rescue (USAR)
High angle rescue
Swift water rescue
Communication –911
Public Safety Answering Point (PSAP) calls to
911
Emergency medical dispatch
Priority dispatching and call triage
These activities represent some of the roles, functions and activities for today’s fire service. Of course the degree to which they exist depend upon the size of the agency and resources available to fund these services and activities.
Fire Department Policy Development Items and Programs
The essence of the work that fire departments perform tends to be largely operational in nature and function. Since the operational nature is predominant, it is important that policy development occur at some level of the municipal structure. Policy development, in its most productive form, is a collaborative effort between the mayor and council members, the city manager and the fire chief. In that regard, there are a number of documents prepared by the fire chief and the city manager with which mayors and members of council may be involved. They include:
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide • Fire Department Mission Statement
• Operational Goals and Objectives Statements
• Standard Operating Procedures and Directives
• Department Budget
• Local Fire Prevention Codes Ordinances
• Mutual Aid Agreements
• Automatic Aid Agreements
• Fire Master Plan for Establishing or Maintaining Levels of Service • Permit Streamlining Process
• Building Plan Applications
• Site Plan Applications
• Fire Sprinkler Applications
• Permits for Community Events
• Hazardous Materials Business Plans
• Hazardous Materials Law and Ordinances
• Weed Abatement Procedure
• Specifications for Fire Stations
• Bid Specifications for Apparatus and Equipment
• Memoranda of Understanding with Labor Groups
• Contracts processed through the agency attorney
As examples:
• The permit streamlining process is a collaborative effort between many different departments. In order to expedite the plan review and permits to serve our customers in private industry, the fire department must also interact with the planning, building, and electric departments and with the engineering division. • To administer a non-point source program, the fire department may need to interact with the street department, the water department, a regional environmental agency, and the office of the city attorney.
• To implement efficient and effective disaster planning activities and administration of the Emergency Operations Center (EOC), fire departments must cooperate with the police department, public works, public information specialists, and all city department personnel involved in emergency operations strategies.
To optimize service delivery, it is crucial that an effective line of communication be developed between the mayor, city council, the city manager, and the fire chief.
Council and Fire Department Relations
Like all other municipal departments, the fire department is not an isolated organization within a city structure. What other departments do within a community dramatically affects the capability of the fire department to accomplish its purposes. Accordingly, the Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide fire department should have input into the policy making process to assure that other municipal operations don’t adversely affect the fire service, and conversely, that the fire service does not adversely affect other municipal operations.
While the broad policies guiding the department are established by the council, specific operating policies are established by city management and fire department administration for the day-to-day functioning of the department. In this regard, care must be taken to be sure of the compatibility of all these policies.
The fire department budget, which is the principal operating plan developed under general council policies, can provide elected officials with considerable information regarding the services provided.
There are a variety of factors that elected officials can consider in monitoring the efficiency and effectiveness of the fire department. Some indicators of performance might include:
• Fire loss statistics, which affect insurance rates paid by the community. • Response time statistics, which create the floor (base level) of service as compared to the ceiling (maximum level) of service to be provided.
• Fire prevention inspection, which assist in monitoring the success of hazard reduction in the community.
• Disaster plans, also known as multi-hazard functional risk plans which demonstrates the community’s ability to meet the challenge of catastrophic risk. • Training statistics, which illustrate how much skill training is given, and in what areas this training is focused.
• Educational assessments can illustrate the importance of advanced education and college training in upgrading the professionalism of the department. • Hazardous materials inventories, which can assist in determining threat and/or risk of a significant hazardous materials release or environmental incident. • Injury statistics, which can indicate the effectiveness of physical fitness as an established cultural value in the department.
• Citizen complaint reports, which can be an indicator of customer service as a cultural organizational value and citizen satisfaction with service delivery. • Community service activity report, which can assist in identifying how involved the department is in providing “community based fire protection”.
Other Factors
In order for elected officials to better understand the operations of their fire department, they must consider some of the factors and peculiarities that affect the ability of the department to deliver its service. Among these items are the various federal and state laws and agreements governing operations, the geographical area served by the department and its numerous characteristics, both natural and made by humans, the water distribution system serving the department, staffing levels, the degree of fire Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide prevention effort, the relationship between the fire department and other municipal departments, the relationship between the fire department and the community, the type and condition of equipment utilized by the department, and various safety and personnel factors bearing on the day-to-day operations of the department and the training and education of fire personnel.
In this age when all public services are coming under increasing scrutiny, elected officials must be alert to changes in public attitude, technology, new legal requirements, community needs and social trends in order to assure that municipal services are delivered effectively and efficiently. This is certainly true in the area of fire services.
Although the public may seem to favor funding public safety services (fire, police, and 911) while cutting back in other areas, fire departments will likely be faced with increasing fiscal pressures. This may come about because of demands for expanded services in the face of both decreasing and devaluing dollars; mandates by the federal or state government affecting fire services; pressures from labor groups; and new building or business presenting new or expanded hazards or service areas for fire departments.
Some items with which elected officials will be dealing in the future:
• Enactment of stricter fire prevention codes requiring the installation of automatic fire suppression equipment and fire detection devices
• Hazardous materials remediation plans to assure that there is less environmental impact caused by those who use, handle, store and dispose of hazardous materials • Increased pressure from industry to respond to their need to perform services better, faster, cheaper
• Community demands to “re-invent” government to provide more and varied services but pay less taxes to cover the cost of the service
There are numerous arrangements fire department administration and elected officials may wish to consider in order to improve department service and efficiency. Among these items are:
• Review of joint power agreements, mutual aid agreements, and automatic aid agreements to assure that they are of maximum benefit to all concerned • Review of emergency medical services to be sure they are being effectively provided by qualified personnel and that their costs are being adequately covered • Ways to provide value added service to the community, such as “community based fire protection”
• Implementation of a streamlining process to review all building plans to improve the efficiency of the process for our industrial customers
• Review of the “all-risk” multi-hazard functional plan to assure disaster readiness • Drill community-wide to practice and exercise disaster readiness • Public education programs; with an emphasis on youth and the elderly • Customer service programs for internal and external customers Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide • Review of response times to all areas served
• Review of department mission, goals, operational plans • Adoption of a fire master plan to provide optimum prevention, suppression capabilities
• Review of state and federal legislation in the field of hazardous materials to assure local compliance and minimization of environmental risk • Use of civilians in place of sworn personnel
• Consolidation of related services being provided
A review of the these elements with the city manager or the city administrator, and the fire chief or fire administrator on a regular basis will be of considerable assistance to you in assessing the value they hold in the community. This knowledge can be particularly important during periods of uncertain revenue streams, competition for shrinking federal and state dollars, recession, inflation, or unexpected downturns in local economies.
Many cities fund fire, police, and 911 services at high levels. During a period of financial hardship and economic downturn what would you, as a council, do to the budgets of each department throughout the city? Would fire, police, and 911 services take their fair share of budget cuts? The answer may lie in whether or not the fire department provides “value added services” to the community such as all risk mitigation, and emergency and community based fire protection—services that extend far beyond the traditional paradigm of saving life and property.
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide The Planning and Community Development Department2
A City’s Planning or Community Development Department is typically responsible for the planning and building inspection functions. Many cities have reorganized to combine several functions under the title of Community Development. In most Cities this combination is simply Planning and Building, while in other cities it can encompass Planning, Building, Code Enforcement, Economic Development (Redevelopment) and even Public Works and/or Engineering are sometimes placed under the mantra of Community Development. The level or complexity of the combination depends largely on the size of the City and its staff work load. Again, the most common combination of functions is Planning and Building. These two city services are very interrelated.
The principal authority to carry out planning and building functions is based in an assortment of federal, state and local laws. Police power is the legal basis for all land use regulation. Various sections of the state Government Code contain most of the enabling authority to review and condition development including subdivisions of land.
The principal function of the Planning Department or Division is the administration of the General Plan review development or use applications. • General Plan preparation and update
• Zoning Map and Ordinance preparation and update
• Enforce and implement the California Environmental Quality Act (CEQA) • Conduct Planning related code enforcement
• Process development applications
• Provide public information
• Act as the staff liaison to both the Planning Commission and City Council The primary functions of the Building Department or Division are issuance of building permits and conducting construction inspections.
• Issuance of Building permits and plan checks
• Performing building inspections and occupancy permits • Conduct building related code enforcement
• Abating dangerous buildings
• Providing public information
• Act as staff liaison to the Board of Appeals and City Council A variety of public agencies, as well as, homeowners and developers, regularly request information about land use, zoning, construction requirements, building permits, demographics and design and development standards. Dissemination of information is a central aspect of the department and a substantial percentage of time is devoted to responding to public information requests.
2 Revised by Thomas Sullivan, AICP, Community Development Director, Saratoga Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide The General Plan
The General Plan is the most important planning document of the City. All other planning documents must be consistent with the General Plan. It is the document that provides the information about existing conditions and future desires. The General Plan consists of seven mandated elements: Land Use, Transportation, Housing, Open Space, Conservation Safety and Noise. There can also be any number of optional elements, for example: Community Design, Parks and Recreation, growth Management or Agriculture.
The individual elements that make up the General Plan must be consistent with each other. Some Cities write the General Plan as a single document with chapters and other cities write their General Plans one element at a time. The Governor’s Office of Planning and Research (OPR) provides guidelines for the preparation of all mandated elements except Housing. The State Department of Housing and Community Development (HCD) publishes those guidelines and reviews and certify the draft Housing Elements.
Zoning
Zoning is the most common implementation ordinance of the General Plan. The Zoning Ordinance is a set of rules that carry out the intent of the General Plan. It basically is the division of the city into different land use classifications and the application of different regulations in each. Each of the zoning classifications must be consistent with the General Plan. The Zoning Ordinance deals with issues from density, floor area ratios (FAR), lot size, length and width to the length of RV’s you can or cannot park at your home. The regulations cannot be ambiguous. The public often thinks that zoning is land use planning, when it is only a small portion of what makes up land use planning.
Specific Plans
After a City has a General Plan adopted, the City Council can direct that a series of Specific Plans be prepared to provide for the systematic implementation of the General Plan. The Government Code provides some very detailed guidance about Specific Plans.
While Cities can and do prepare these plans, often Cities require developers to prepare them. As the name infers, these plans are very specific. They provide design guidance for infrastructure and ultimate land use. They can even provide detailed architectural treatments.
Design Guidelines
Not all Cities have design guidelines. Some Cities have several designated areas where differing design requirements are set forth. Design guidelines are used to protect areas that have historical architectural themes. They are used to ensure developments follow a desired architectural design theme. Occasionally, Cities offer incentives to obtain the desired architectural look. Design guidelines are used to either protect existing quality design or to help create the quality desired.
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide Subdivisions
The primary purpose of the Subdivision Map Act is to encourage orderly community development, to ensure that areas within the development that are dedicated to the public will be properly improved by the subdivider, and to protect the public from fraud and exploitation. The Subdivision Map Act, working in conjunction with the City’s Zoning Ordinance, guides and controls to a large part the development of the City. A minor subdivision or parcel map is a map that divides a single parcel into four or fewer lots. A major subdivision is a map that divides a parcel into five or more lots.
California Environmental Quality Act (CEQA)
The California Environmental Quality Act (CEQA) requires that both private and public projects be analyzed for their potential impacts to the environment. An Environmental Impact Report is an informational document intended to assist City officials in making decisions regarding a proposed project. Following the precise process laid out in the CEQA Guidelines is very important. While the EIR may be the heart of CEQA, most reviews end in the adoption of a Negative Declaration of Environmental Impact. In other words, the proposed project does not have any environmental impacts that are not known and cannot be mitigated through project redesign.
Code Enforcement
This is a necessary function for the Planning and Building Departments. Cities are authorized to prosecute violations in order to enforce building and/or zoning codes. Most cities prefer compliance to code requirements to the prosecution of property owners. In most cases, a discussion of the issues usually leads to compliance.
The Public Hearing Process
The Government Code sets out particular requirements to be followed in order to conduct a public hearing. It also provides guidance on what types of activities or applications require formal public hearing. Typically, if a public hearing is to be conducted, proper notice must be given. The public hearing notice must be given in at least two forms; advertised in a newspaper of general circulation and posting of the project site and/or a mailing of the public hearing notice to all property owners of record within 300 feet of the project site. Some cities also have three regular locations where postings are made.
Public hearings must be conducted to consider adopting or amending general plans, zoning ordinances, to consider granting use permits and for tentative tract map review.
The role of the Community Development Department
The Community Development Staff guides and advises the City Council, Planning Commission and other City Departments with regard to the physical development of the City. The Planning Staff provides the labor and expertise to maintain the City’s General Plan, Zoning Map and Ordinance. The staff also provides for the day-to-day Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide implementation of the City’s land use policies.
The Community Development Staff provides the liaison with the business community, simplifying permitting, working to streamline the development process and providing communications between the real estate profession, developers, merchants, property owners and residents.
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide The Police Department3
The police department has the primary responsibility of providing for the maintenance of social order within carefully prescribed ethical, legal, and constitutional restrictions. Its objective is the prevention of crime, detection and investigation of criminal conduct, and the apprehension of violators.
As a general matter, in the city council-city manager form of government, the chief of police is appointed and supervised by the city manager. This is used to establish a single executive officer to implement and administer the city council’s policies. This varies, however, and some city councils appoint all department heads, including the chief of police. Under this form of government, the chief of police reports directly to the city council, however, many of the routine day-to-day police department issues are coordinated by the city administrator. In this way, more routine matters are handled by an administrator and the city council has a more direct relationship with the chief of police.
In a charter city the relationship of the police department to the council is determined by the charter.
Primary Functions of the Police Department
The police department’s responsibilities can be grouped under the following general categories:
• The prevention of crime
• Apprehension of offenders and recovery of property
• Performing miscellaneous services
The Prevention of Crime
Crime prevention is a top priority for all city officials, and this task makes up a good portion of what city police departments do. In most instances, crime prevention comes in the form of patrol cars, but increasingly, police departments are utilizing prevention and outreach programs to target specific groups, such as youth.
For example, a recently emerging trend has been the establishment of counseling units within municipal police agencies designed to handle juvenile offenders. The rationale behind funding such units is to reduce recidivism at an early age, and thus reduce the future need for expensive police and criminal justice services. Other programs are aimed at educating youth about gang and drug activity to deter such behavior.
Emerging as a philosophy of policing are the concepts of Community Oriented Policing (COP) and Problem Oriented Policing (POP). Community Oriented Policing is a 3 Revised by Richard M. Tefank, Chief of Police, Buena Park.
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide philosophy of a police department being accessible to the public and working together in a partnership to identify and implement crime prevention strategies. Problem Oriented Policing is the philosophy of utilizing the community to identify problems and then working in conjunction with the police department to develop strategies to eliminate or solve the issue confronting the community and quality of life.
Crime prevention is one of the more visible aspects of what police departments do.
However, the success of such programs should not be the only indicator of department performance. Public perception and citizen satisfaction with other police services should also be considered.
Apprehension of Offenders and Recovery of Property
An essential component of the duties of a police department is the apprehension of offenders and recovery of property. Included in these functions are responses to calls, the investigation of crimes, and assistance to victims and witnesses and filing criminal cases to a prosecutorial agency. These tasks can be an indicator of the police department’s performance, response time to calls, number of cases cleared by arrests, and number of criminal cases filed. These components can also be used to evaluate performance.
Performing Miscellaneous Services
Some additional, but typical police responsibilities include parking control, animal control, applicant fingerprinting, commercial and residential security inspections, delivery of city mail to council and commissions, public speaking programs, and school crossing guard responsibilities. In some cities public safety departments have been formed combining police and fire services in an effort to increase personnel utilization.
Police departments are often called upon, in conjunction with other departments, to enforce such things as code violations. In addition, police departments prepare various reports and other materials which describe their functions and inform elected officials of their actions.
The police department has the responsibility of preparing a variety of documents. The most significant document, and by far the most important respect to a city council, that a police agency prepares is its own local budget. The budget contains the department’s priorities for the coming year, and the division and allocation of resources to accomplish those objectives. Through council action the budget becomes the primary policy statement from the council to the agency.
California requires the submission of monthly reports tallying the reported significant crimes and successful clearances, amount of loss and recovered property by category, and a register of all arrestees by name, offense, and ultimate disposition of each individual by the reporting agency. There are other reports called for throughout the year relating to narcotics seized, length of duration of juvenile arrestees in local jails, and other miscellaneous reports for the California Department of Justice.
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide A police activity report to the council should be considered another significant document.
Since there is no mandate for such a report, local variations occur as to form, content and frequency of issuance. Some departments may never issue such reports, or issue them only in response to a specific council request.
Most departments, however, issue reports on a monthly, quarterly or yearly basis. They may vary in form from informal written briefings to complex statistical analysis replete with minute charts and graphs pertaining to every function of the agency. The point that should be emphasized, however, is that this report should be understandable by, and a benefit to, the council, the community, and the administration of the department. If it is too complex or too detailed, they become nice fillers on bookshelves, but are of little benefit to the council for prioritizing the expenditure of department time and resources.
Council and Police Department Relations
A municipal police agency is only part of the overall service program of a city and should complement, support, and assist in the service delivery of the other city departments. It is not an independent, isolated, essential service with no interplay with the other city departments.
In the planning process, it has expertise in social impacts, environmental security, and traffic patterns and circulation. In its relationship to public works and engineering, it will have input on traffic engineering, signing and marking, and can assist in the causative factors of local traffic accidents. Officers on patrol will be able to report road deterioration, traffic obstructions, and general hazards with resultant liability exposure to the municipality. In the development of parks, the police department can assist in plan development with an eye towards eliminating vandalism, areas prone for criminal behavior, and instilling a sense of security in the park. In short, a police agency is an integral part of city government -- not apart from it. Representatives from the police department should be involved in all aspects of the planning process.
The internal policies and procedures of the department are determined by the police chief and need to be consistent with the law and policies of the city manager or city administrator and the council. Since the police function is primarily concerned with a broad range of order maintenance activities and with the provision of services to the community, these matters are clearly local concerns requiring responsiveness to the public and accountability to community priorities. Coordination of services, development of priorities, and maintenance of a balance between the services offered and the financial resources of the community require that the agencies delivering the services be responsible to the public. The determination of what services a police agency will provide, what priorities will exist, and what police responses will be sanctioned are proper decisions for the city council. A police department exists within a political arena, and a city council can be asked to answer to the electorate based on the actions of the police department. It is therefore, important that a police department understand its connection and relationship within this political arena.
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide Budget Issues
The police budget will contain the proposed goals and objectives of the agency for the coming fiscal year. Depending on the local budget format, each police budget will generally show the allocation of resources distributed among three major divisions:
administration, patrol, and investigative services. The budget accounts will reflect requested expenditures necessary to accomplish the goals and objectives of the department.
With the tremendous amount of discretion entrusted to police, oftentimes the most costeffective expenditure of public funds is allocated within the training account.
Expenditure in technical courses, firearms, self-defense, and crisis intervention, not to mention supervision and management, contribute to greater public acceptance of the police and lessen the exposure of the municipality to civil liability. The police budget will also show the percentage of general funds allocated to public safety in comparison to the total city budget. Local jurisdictions will vary based on community need and public demand as to the percentage given to police services through the allocation of general fund revenues.
When allocating resources, evaluation of police productivity is too often measured in terms of arrests, case closure, and property recovery. These measurements are as suspect as the criteria on which they are based, namely uniform crime reports. Although these numbers should not be overlooked, more important criteria for evaluation can very well be community satisfaction which is the community perception as to the quality of delivered police services. Questionnaires and surveys can be designed and input solicited on a random basis if desired by a city council.
The elected official may be best able to evaluate the effectiveness of the police department by soliciting input from his/her respective constituency. The perception of the police by minority communities, by the business community, by the residents, and by other individuals involved in the criminal justice system is subjective at best, but in the long run might form the better basis for evaluation. For instance, just the presence of the “patrol” division on the streets may be perceived differently by different segments of the community; for some it may suggest security, and others may view it as hostile. In contrast, different statistical measurements may suggest varying degrees of “productivity” but these can be counter to the community’s perception.
The department’s ability to achieve its goals and objectives as stated in the budget, stability of its personnel, time lag in responding to calls for service, and effective written disseminated policies and procedures are additional objective criteria which can be used in forming an accurate evaluation of the agency. No evaluation should be based on one or two selective areas, but an accurate analysis of several critical areas will lend to an accurate overall evaluation of the agency.
One peculiarity typical of all police agencies which a city council must keep in mind is the need for higher total staffing -- in contrast to the number of persons on duty at any given time -- caused by operating on a seven-day week, twenty-four hour basis.
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide Typically, police departments must staff twenty-one shifts each week. Each officer works five shifts, and therefore it requires 4.2 officers to field one patrol car on a weekly basis. When vacation time, compensatory time off, sick leave, mandatory training, and court time are computed, the 4.2 figure approaches 5.2 officers to maintain one patrol vehicle in the field on a weekly basis. This formula applies to the five-day work week.
Alternative work schedules include the “four-ten” plan, a work week consisting of four ten hour work days, and the “three-twelve” plan, a work week consisting of three twelvehour shifts.
Overtime costs are often of great concern to a city council. Overtime on a day-to-day basis is unscheduled and although management exercises what controls it can, an officer cannot be relieved in the middle of a major criminal investigation or a serious traffic accident. Two-thirds of the patrol force generally work swing and midnight shifts, and are also required for court appearances during the day, which leads to increase overtime costs.
Limited resources along with rising insurance premiums, retirement, and employee benefits are creating fiscal dilemmas which the elected official must deal with while preserving the community’s perception of proper security. Increased civil litigation arising out of police action is broadening the municipality’s exposure to civil liability.
Tax reducing initiatives are lowering the general fund revenues and it is primarily the general fund from which every department derives its funding source.
Budget constraints, however, provide an opportunity to improve service and efficiency in the future. Consolidation or centralization of records, warrants, and dispatching, together with the formation of multi-jurisdictional investigative units will become more commonplace. The actual consolidation of municipal police departments while still preserving local control should be considered and experimented with. The “civilianization” of support personnel and the increased use of civilians in performing routine calls for service will free up more sworn officers for criminal apprehensions.
The function and purpose of investigative units should be re-evaluated and critical decisions made in regard to their caseload, accountability, and solvability of cases assigned with the view that patrol can share more responsibility for criminal investigation. A reserve force can also be utilized, however, recent training requirements, and other state laws have discouraged the use of reserve officers.
Labor Issues
An issue facing local municipalities today is the actions of the rank and file police associations or unions. During difficult labor negotiations there may be a “job action,” which may include work slow-downs, the “Blue Flu,” or an inordinate decrease in traffic enforcement. Votes of no confidence in the police chief are common, and coupled with the police “job action,” may cause community unrest and consume local officials’ time to the detriment of all municipal services.
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide Public Awareness
An active public education program soliciting community support in crime prevention, instilling public awareness of the limitations of police authority, and re-evaluating or redirecting the public’s expectation of having a police officer responding to every call for service should be attempted and supported.
Some cities are involving their residents more closely with the police department, either through a community police academy or a volunteer program. Besides helping to stretch the resources of a police department, these programs provide the public with a greater awareness of the role and responsibility of the police department.
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide The Public Works Department
The purpose of the public works function is to be the stewards of a city’s infrastructure.
Municipal infrastructure traditionally includes streets and highways, median island landscaping, flood control and storm water quality, public buildings, water supply, sewage treatment, street lights, transportation and traffic control, solid waste management and recycling, parks, open space, municipal utilities, street trees, airports and cemeteries.
For all of these municipal services, the public works function is responsible for design, construction, operation and maintenance of municipal facilities.
Every city in the United States organizes their public works functions in different ways.
The traditional approach is to have a Public Works Department that is responsible for all these services. Many cities have developed with special districts that handle some of the public works functions and thus these functions would not be under the purview of the City Council. Also, many cities assign various public works functions to other City departments.
A new council member is encouraged to review the City’s table of organization to see what functions each of the City departments is responsible for. It can be embarrassing for a council member to ask a department head about a municipal service when that function is handled by another department, especially during a City Council meeting.
In many ways one can look at public works as providing the basic foundation on which cities and their subsequent functions are built. Public works is rarely noticed until something goes wrong or until major construction is underway. Excellent public works in a community can have a significant impact on property values and the quality of life that citizens enjoy.
The Development of a Capital Improvements Plan (CIP)
One of the most vital documents to implement a cities general plan is the capital improvement program (CIP). Most cities develop long-range (generally five years) capital improvement programs, which are updated annually. This document reflects the plans to construct certain public facilities in accordance with the goals and objectives of the city. The CIP should describe proposed facilities adequately so citizens understand what facilities are planned, what they will cost, and where the money will come from to finance them. .
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide Funding Sources
The most reliable sources of funds for public works come from gas tax revenues and local sales tax initiatives for transportation. These sources generally distribute funds based on formulas such as number of lane miles, number of licensed vehicles, or population. Other reliable sources are local enterprises, (such as water, sewer or refuse, etc.) or the local agency’s general fund.
Policies guiding the construction, operation and maintenance of many public works facilities are frequently developed at the state and federal level and as such, weigh heavily on the policy direction of local agencies. Federal grant funds administered by the Federal Highway Administration or the Environmental Protection Agency for example are generally loaded with regulations governing their use. As a result, use of such funds can require a great deal of sophistication and time to administer. This, of course, results in increased administrative costs and delays, and as a consequence many smaller organizations with limited staff resources are unable to utilize these types of funds.
To a large extent, public works budgeting is controlled by the availability of state and federal funds. Categories and levels of funding, particularly for federal grants, fluctuate widely from year to year. For example, the decision to cut federal taxes could likely cause significant public works fund reductions necessitating changes in levels of service or increased use of local general funds.
State and local bond measures also fund public works budgets and are a frequent revenue source for major projects. When a public works facility benefits only a small portion of the community it is often financed by the developers of the property by “benefit assessments” levied against the owners of property in the neighborhood or by service charges and fees. These devices do not involve the use of general tax funds. These funding sources complicate public works budgeting and reduce the city’s flexibility to prioritize its expenditures and to plan for the future. These factors must be considered in selecting and evaluating public works programs.
Performance Feedback and Measurement
One means of measuring any service is by evaluating citizen feedback. If the feedback is favorable, it is a good indication that the level of service is commensurate with the expectations of the community. However, a seemingly popular service may also be an extremely expensive service. If the public is aware of the expense involved and is willing to keep the level of service, this confidence is then reflected in the annual budget allocations.
It is extremely helpful if performance levels can be measured in terms of efficiency and quality. Departments must establish means to measure how well they are performing and meeting the mission, goals and objectives of the city council.
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide Continuous improvement evaluations of all operations are a common expectation within local communities. Comparisons with how services are provided elsewhere and in the public sector are useful tools. Sometimes contracting out to the private sector is the most successful way to provide a particular service, and sometimes we may simply need to get out of certain businesses or services that stray too far from our core mission or are simply unaffordable.
The most common measurement used by most public works departments is asset management, an assessment of the condition of the cities infrastructure. This assessment inventories the condition of cities capitol assets. The public works department can then determines what deferred maintenance may exist, calculates how much should be spent annually to eliminate it within specified periods of time as well as what should be spent on preventative maintenance to maximize the life expectancy of these assets. Eliminating deferred maintenance is the major public works issue at all levels of government. It is terribly important that policy makers understand what they should be spending to maintain and preserve what they have before they decide to spend available funds on new projects or services.
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide The Recreation, Parks and Community Services Department Community Services is not a new municipal function. Community services refer to parks, recreation, libraries, arts and culture, museums and theaters, senior’s leisure and human services. Village greens were found in most every New England town from early in our country's history. Central Park in New York City provided the first large scale city park in the United States when it was acquired in 1856 at a cost of $5,069,693 -- and not without some large scale political disagreement! Neighborhood park development began to become commonplace in American cities during the first decade of the twentieth century, and the birth of the American recreation movement occurred with the dumping of large heaps of sand in the yards of a chapel and a nursery in Boston in 1885.
In California, community services activities are authorized in state statutes differently for charter and general law cities. Charter cities are permitted to act subject to limitations in their charters unless overruled by state law on matters of statewide concern; general law cities are given permission by a wide variety of code statements to conduct activities such as parks, arts, recreation, etc.
Primary Functions of the Community Services Department
Municipal or local community services are offered in several forms in California.
Although most cities provide community services through regular city departments, some communities are served by counties, some by special park and/or recreation districts, some by community service districts (CSDs) and some by combinations of the above.
In recent years, many difference organizational patterns have been developed to meet local conditions and local needs. The organizational title "parks and recreation" generally implies single department responsibility for both park maintenance and recreation programming. Some cities have chosen to separate the two functions, typically placing park maintenance responsibility with the public works department.
Cities vary widely in the arrangement of departments. Often, these activities are placed under the administration umbrella "community services," though each area generally retains its own identity. The common administrative denominator can assist in creating an atmosphere conducive to cooperation and shared resources, or they may be separate departments.
Community services departments have traditionally been asked to provide services which do not seem to fit neatly into other departments or disciplines. Often these changes in roles have been difficult to assimilate within the departments as well as within the city, but the departments have learned to become tremendously adaptive. It would seem logical to assume that changes in local government funding as well as in grant and other assistance programs will continue to mandate changes in organizational structure within the cities. However, the city government's commitment to community services department will continue to be recognized as a barometer of the "quality of life" in that community.
Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide Several significant city documents are prepared by the community services departments, including department budgets, the recreation and arts elements to the general plan, park standards and plans, and community services program information material. Community services department staff members and commissions are also regularly called upon for input into general plans, zoning and redevelopment matters.
Often elected officials and city managers overlook the positive importance of the many public relations materials published by community services departments. This multitude of regular and special publications annually provides most of the written contact between many citizens and their city government that is not of the utility bill or statistical report variety. As shrinking financial resources demand better utilization of resources the community services publications to residents can also provide information of other important city activities and programs.
Council and Community Services Department Relations
Since community services departments have such varied responsibilities, each elected official must consider carefully the interrelation of department activities with other services provided by the city. Any discussion of police programs must necessarily consider youth recreation and arts activities. Considerations of community appearance and real estate property values must note the impact of street tree programs, public building maintenance and park design and maintenance.
Reviews of sales, amusement, or hotel/motel tax revenues naturally relate to community theaters, zoos, special community events, athletic contests, etc. No analysis of local employment should exclude the millions of dollars earned annually (much of it by young people) from work in local California community services departments -- additionally, much of the earnings are probably spent within the community. The economic impact of a downtown theater, for example, may have a multiplier effect of three times and sometimes much more. That intangible called "community spirit" is often highly influenced by community services departments’ support of the multitude of community volunteer organizations and community special events found in every city.
Department Policies
City councils should insure that department policies are being set and implemented in a manner consistent with the desires of their community. Many cities use advisory commissions (parks and recreation, libraries, senior citizens, arts, human services, street trees, youth, etc.) to review and comment on important policy decisions prior to city council action.
• Does the city council wish to get involved in all fee setting or special interest group subsidy requests?
• Should the city follow the "co-sponsorship" plan which suggests not starting a city program if a local group can be stimulated to fill the need? Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide • Policy issue determination involving citizen participation invariably provides more satisfactory and comprehensive solutions to everyone involved.
City council members should insure that a clear understanding exists by all parties regarding which type of policy decisions should be made by the city council, the advisory commissions, the city manager's office, or the department.
Unfortunately, community services are not always easily quantified as are fires, burglaries, investments earned, building permits issued or miles of streets repaired. Some communities do invest time and money into community services planning, user surveys, and performance standard strategy. However, most community services departments do not have the resources to be thorough in evaluating their services nor in making elected officials and the public aware of their contributions.
Elected officials should set priorities for park maintenance and then provide the resources to ensure modern managerial and performance standards are used to measure results.
Elected officials should demand that advisory commissions not be "rubber-stamped" and devote time and energy to reviewing programs, program quality and citizen concerns.
Elected officials should ask whether or not demonstration and innovation are the exception or the rule in the community services department; and whether or not their city's parks and programs serve the needs of the users of the services offered.
There are numerous traits of successful community services departments which bear upon its ability to serve the public. Some include:
• Innovation. Are the community services departments flexible and open to change? Ten years ago, who envisioned roller blading or midnight basketball, senior day care, a technologically advanced library or public arts throughout the city? More important, who is thinking about the possible impacts of these items on the community services experience: an aging society, the homeless, child day care, surplus schools, the drug culture, gangs, strategic planning, growth management, an international recession, a sustained energy crisis, drastically reduced federal spending and year-round schooling?
• Part-Time Help. Community services departments are probably unique in the large number of part-time employees they hire. As mentioned above, most cities are probably a major employer of youth in their community. While this may give the personnel and finance department problems, it also gives the city a live and direct connection to its citizenry, in addition to being a tremendous augmentation to community services permanent staff. For many city residents the park maintenance helper, librarian or lifeguard may be the only living and breathing city representative they speak to throughout the year. Evaluation and training of these employees is the key to an effective service delivery of community services. • Volunteers. Community services departments must utilize volunteers and special interest groups in ways that distress risk managers and other city officials but tap a great community resource. In 1987, volunteerism was determined to have grown in Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide cities by almost 50 percent over the previous five years, while full-time staff had grown only 10.3 percent during the same period. Such an approach gives city government another direct method of ensuring community involvement. • Sponsorships and Fundraising. As general fund budgets become less available to community services departments, these agencies have become more dependent on funding through corporate and private sponsorships, grants and fundraising efforts.
Increased staff time is being devoted to maximizing these resources, and it is not uncommon that special events, regular programs, brochures and publications, etc., include references to a sponsor.
The time for traditional responses to public service demands in this time of untraditional funding has ended. Elected officials are asking questions about some of the following concepts and practices:
• “Contracting-out” for services
• New capital outlays for equipment facility or redesign that will increase productivity and service levels while reducing energy consumption
• Voter-approved park maintenance fees
• Nonprofit foundations to augment programs (For example, Friends of the Libraries, Arts, Parks); paid advertisements in local publications • More effective use of volunteers and community groups • Partnerships and collaborations
• Higher fees and charges
• Scholarship programs for the poor and the handicapped who may be hurt the most by the higher fees and charges
• Use of parks and recreation departments to generate ancillary revenues that benefit department revenues while providing useful services to the community • Enterprise funds in recreation to parallel water and sewer enterprise fund operations • Conversion of parks and grounds areas to low-maintenance landscaping • Department, division and program reorganization to reduce middle management • Design of new parks that can be easily maintained
• Systems that facilitate professional management
• Involvement of community or neighborhood groups or the private sector in maintenance operations
Community services has proven itself to be one of life's necessities in a highly urban society with rapidly growing cities, quality of life issues becoming an important way to reach the public and create a sense of community. The public will continue to expect public officials to provide for quality services in the cultural arts, human services, leisure Agenda Item #5.1.
Understanding Your City’s Departments
League of California Cities Mayors and Council Members Resource Guide services, library services and in park development and maintenance in spite of reduced resources to do so.
Agenda Item #5.1.