Comments for tonight’s Alameda Sunshine Ordinance

Mayor Gilmore and Councilmembers,

At tonight’s meeting of the City Council you will hear the first reading of the draft sunshine ordinance. I want to thank staff for their hard work on this important ordinance. For the most part, their revisions make the ordinance clearer and stronger.

I would like to respectfully disagree with staff’s recommendation that the council add language to the ordinance to allow the council to vote to begin new action items after 10:30pm. This was the number one concern voiced by the community at the Sunshine Task Force workshop and seen as a significant impediment to participation in local governance. As is often pointed out, ordinances can be changed. I’d like to ask that the Council approve the language without this escape clause, and commit to revisiting the issue if problems arise.

I would also like to ask that you reject three specific revisions proposed in the staff rewrite. I am attaching an edit of all three that I have worked with Acting City Attorney Mooney on, we are in agreement that they answer the concerns of staff and meet the intentions of the Task Force. These issues are:

  1. Don’t limit the documents that require immediate disclosure
  2. Don’t remove the accessible formats requirement
  3. Make sure the City has time to cure violations before lawsuits must be filed

Issue 1: Don’t limit the documents that require immediate disclosure

Staff have recommended striking language in 2-92.10 (a) (page 27). In doing so, the change removes the broad categories that the paragraph had meant to cover and creates a very limited list of items (items that were intended to be illustrative, not exhaustive). Staff also had concerns that the language was not concise enough to allow non-legal staff to determine when a document is considered an “immediate disclosure” document.

To address staff’s concerns but maintain the intent of the Task Force, I propose amending the STF’s recommended text as such;

Proposed revision from original text:

(a) An immediate disclosure request is a request for (1) public records which have been previously distributed to the public, such as past meeting agendas and agenda-related materials, and including public records requests, within the past calendar year, or (2) public records such as statements of economic interests that have, by other law, a requirement to be disclosed within a specific shortened time frame. All immediate disclosure requests shall describe the records sought in as focused and specific language as possible so they can be readily identified and shall state the words “Immediate Disclosure Request” across the top of the first page of the request and on any envelope in which the request is transmitted.

Issue 2: Don’t remove the accessible formats requirement

Staff was concerned that the original language of 2-90.17 (a) (2) (page 30) was simply guidance, not required, and therefore not appropriate for an ordinance. The use of file formats is extremely important in openness and the STF felt it was important that the city affirmatively state its commitment to using formats that are widely accessible. In order to provide clearer direction to staff on the need for accessible data platforms and formats, and provide some wiggle room for situations for which there is no available option but a proprietary system, I propose:

Proposed revision from original text:

 (2) Except in the case where the City can cite a significant overriding consideration, Electronic electronic formats should shall be chosen such that they can be viewed on a variety of mainstream computing platforms using freely available software. Electronic formats susceptible to obsoletion and patent licensing restrictions should be avoided. Formatsand formats dependent on a single operating system or proprietary software program should shall also be avoidednot be used.

Issue 3: Make sure the City has time to cure violations before lawsuits must be filed

Staff added a sentence in section 2-93.3 (a) (page 31) in order to provide the City with more certainty about the filing of lawsuits regarding violations of the Sunshine Ordinance. The addition of this language highlights a missing issue in the ordinance itself (clear deadlines for complaint filings) and compounds the issue by not allowing the city’s process to complete before a lawsuit against the city must be filed.

I would like to ask the council to consider adding a junior statute of limitations to the ordinance that clarifies when actions must be taken and which gives the city and residents some expectation about the timing of the complaint process. This proposed process would extend the deadline for the filing of legal complaints about violations of open/public meetings by two weeks in order to allow the Open Government Commission to take action before legal action must occur. It would not change the timeline for closed session related complaints.

Proposed addition for filing a complaint:

Action Deadlines
File Complaint 15 days
Body to act to cure 30 days
Appeal to be filed 7 days
Appeal to be heard 30 days
Lawsuit to file 7 days
Total Time

89 days

As mentioned above, I have spoken with the Acting City Attorney who was responsible for these staff recommendations, and she has agreed that these recommendations would meet her concerns and be acceptable.