Review of Proposed City Sunshine Ordinance and Code of Ethics

November 10, 2015

Via E-Mail
Members of the Law & Legislation Committee,
Sacramento City Council
New City Hall
915 I Street
Sacramento, CA 95814

Re: Review of Proposed City Sunshine Ordinance and Code of Ethics

Dear Members of the Committee:

Eye on Sacramento (“EOS”) submits the following comments to the proposed sunshine ordinance and the proposed ethics code that were prepared by city staff and publicly released Thursday afternoon.  The proposals come before your committee today, November 10, 2015, at 3:00 p.m. at City Hall.   Our comments include four attachments:

Sunshine Ordinance-Related

Attachment #1 – Draft Sunshine Ordinance, with sections labeled as either “New” or “Existing” (i.e.  meaning sections that would merely codify existing law or practice, rather than establish new rule), or are “Vague” or “Ineffectual.”

Included is aFramework of Recommendations on Open Government, with those Framework items that have been omitted from the draft ordinance identified as “Not Adopted.”

Attachment #2 – EOS’s Table of Proposed Sunshine Ordinance Reforms (69 reforms), with those reforms not included in the draft ordinance identified as “Not Adopted” (59 of 69).  The Table lists the sunshine reform proposals that EOS and the Open Government Subgroup of the Sacramento Integrity Project crafted in response to a broad community conversation initiated and co-sponsored by EOS and involving 10 well-attended forums throughout the city.

Attachment #3 –  Milpitas’ Sunshine Ordinance –  Milpitas, a modest-sized South Bay city, is one of ten Bay Area cities that have adopted thoughtful, comprehensive and effective sunshine ordinances that are serving to significantly open up local governments to their citizenry.

Ethics Code-Related

Attachment #4 – Draft Ethics Code, with notations of those sections that are “New,” “Existing,” “Vague” or “Ineffectual.”

Included is aFramework of Recommendations on Ethics Reform, with those Framework items that have been omitted from the draft ordinance identified as “Not Adopted.”

Attachment #5 – EOS’s Summary of Proposed Ethics Code, with those items not included in the draft ordinance identified as “Not Adopted.” The summary identifies the critical elements that an ethics code must include to restore diminished public trust in the administration of Sacramento city government.

The Frameworks in Attachments #1 and #4 set forth the terms of an agreement reached by Ad Hoc representatives and representatives of the League of Women Voters, California Common Cause and private attorney Gary Winuck following a series of closed-door meetings in early September.  The terms of the Framework were approved by the City Council at its meeting on September 15, 2015.

Overall Comment

The substantive provisions of each proposed ordinance comprise just a few pages of text that are in many instances vague, largely repetitious of existing law and city practice, ineffectual, minimalist, as well as unenforceable promises of future reviews and improvements, backed up by an enforcement clause that assures zero consequences for violations.  The staff proposals are not a serious effort to enact real transparency or ethics reform in Sacramento.  They are, in general, a restatement of existing practices, designed to offer the public the window dressing of reform but not the substance of it.  Such a minimalist approach fails to address the aspirations of the public for serious open government and ethics reform at City Hall.

Codification of Existing Law or Practice

Consistent with the posture that the city has adopted towards transparency and ethics reform since the public conversation on these issues began earlier this year, we are not surprised to find that fully eight of the 26 provisions of the draft sunshine ordinance, and 13 of the 17 provisions of the draft ethics code are, in whole or in part, duplicative of existing state law, city code or existing city practice. The codification of existing practice would have some minimal value if the ordinance served to impose actual consequences for their violation.  But neither ordinance lays out any consequence for their violation and even includes declarations that violations will not constitute either a misdemeanor or an infraction.

No Consequences, No Reform

An ordinance is a law.  Adopting laws which explicitly state that there will be no legal consequences if they are violated – as is the case with these ordinances – renders such laws a dead letter and would only serve to undermine respect for the law.  The fact that the draft ordinances expressly disavow any penalty for their violation is clear evidence that the intent of these ordinances is to mislead the public into believing that meaningful transparency and ethics reforms are being enacted when, in fact, such ordinances amount to little more than glorified press releases.  If proponents were serious about reform, the ordinances would provide that willful violations be punishable as misdemeanors.

Ad Hoc Committees

 If proponents were serious about opening up city government to the public, they would require that all meetings of council ad hoc committees be conducted in full accordance with the Ralph M. Brown Act (“Brown Act”), which would require advance public postings of agendas, public access to meetings, the public’s opportunity to be heard and publication of meeting minutes, excepting only for matters that can properly be considered in executive session under provisions of the  Brown Act (such as litigation and personnel matters).

Requiring ad hocs to just give an oral report on the substance of their closed-door meetings at the next council meeting is ineffectual.  There is no way to determine if such reports are accurate or honest.  The requirement is so vague that an oral report that merely states that “we had a robust discussion of X” would suffice to comply with the mandate.  The council needs to give up its proclivity to use secretive ad hoc proceedings and bring all of their committees fully into the light by subjecting them to the Brown Act.

Policy on Public Records Management Policy and Retention Schedule

City policy on the availability to the public of city records is a major policy matter that should be set by the city’s highest policy-making body, the City Council.  Instead, the proposed sunshine ordinance (in section 4.04.080) delegates the power to establish the city’s “records management policy, which …include[s] the city’s records retention schedule” to the city clerk.  That must change.  The city clerk performs ministerial duties and is not authorized by the city charter to set city policy.

Failure to Address Retention of City E-Mails, Use of Private E-mail Accounts

The proposed sunshine ordinance does nothing to assure that specific city records will be available to the public.  It fails to set retention schedules for critical records, including city e-mails that have become the primary communication method for city government.  Due to the falling costs of electronic storage, city e-mails can be kept almost indefinitely for minimal costs.  The city no longer faces old concerns over bulging file cabinets and pricey office space needed to store an ever expanding volume of physical documents.   City e-mails should be stored for a minimum of 10 years, not the two years provided under the city’s obsolete policy.  With modern search tools and storage devices, the volume of retained city e-mails has little impact on the city’s ability to identify e-mails sought by the public.

Similarly, the proposed sunshine ordinance utterly falls to address the growing problem of city officials using private e-mail accounts and servers to shroud and prevent public disclosure of e-mails involving city business, undermining the spirit California Public Records Act.   We are mindful that California courts are currently split on the status of such e-mails, but there is no legal or policy reason why the city council cannot or should not adopt a provision in the sunshine ordinance that requires that all city business e-mails be received and transmitted using only city-issued e-mail accounts and mandate that all e-mails passing through such city-issued accounts be deemed city records.

Proposed Ethics Code Lacks Critical Elements

The proposed ethics code is almost entirely a rehash of existing state law, city law and city practices.  It includes neither a general requirement that city employees act ethically, nor any specific standards of behavior or prohibitions of wrongful behavior.  It is a mere gloss of duplications, slightly expanded training requirements, and another unenforceable obligation to provide future recommendations for improvements.

The major provisions that are missing from the proposed ethics codes are:

  • It fails to give the ethics commission the authority to initiate removal proceedings in Superior Court against senior city officials in cases of corruption or egregious misconduct in office.
  • It fails to require council members to abstain from voting on matters that will financially benefit their major campaign contributors.
  • It fails to limit the out-sized behested payments that create the public appearance that donors are buying influence, particularly donors who give large sums to nonprofits controlled by the soliciting officeholder.
  • It fails to prohibit city officials from accepting post-city employment with firms that have financially benefitted from the decisions of such city officials.
  • It contains no requirement that city officials promise to testify truthfully before the council, with potential career consequences for failure to keep their promise.

Extensive Failure to Include Provisions Called for in the Framework

The proposed sunshine ordinance fails to include eight of the 12 provisions called for in the Framework, while the proposed ethics ordinance fails to include seven of the 12 provisions of the Framework.  It is inexplicable how city staff, after Council approval of the Framework, could fail to include over one-half of its terms.  The duty of city staff is to carry out to the will of the City Council, not to decide which Council edicts to follow and which they can ignore.

Conclusion

The proposed ordinances demonstrate a lack of commitment to the values of open government and accountability for the ethical conduct of city business.  The ordinances may hoodwink the public into believing that real reforms have been adopted – for a while.  But if these ordinances are adopted as proposed, it shouldn’t take long for the public to discover just how ineffectual they are in responding to the problems of opaque city government and unethical conduct by city officials.

We urge you to reject the proposed drafts and implement real reform.  If you have any questions, please do not hesitate to call me at (916) 718-3030.

Very truly yours,
Craig Powell, President

 

Enclosures
cc: City Council
John Shirey, City Manager
James Sanchez, City Attorney
Shirley Concolino, City Clerk
Media Distribution List
EOS Board of Directors
Open Government Subgroup