Review of Proposed City Sunshine Ordinance; Agenda Item 3, 12 Jul 2016

July 12, 2016

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; Agenda Item 3 Today

Dear Messrs. Schenirer, Harris, Guerra and Jennings:

After a delay of over eight months, staff has brought back to you the draft sunshine ordinance that you last considered on November 9, 2016. It has not improved with age. In fact, it is identical to the draft submitted to you last year. At that time, we offered a detailed critique of the proposal before the Law & Leg meeting was abruptly adjourned. We do so again.

By way of background, the draft ordinance is derived from a “Framework of Recommendation on Open Government” that was approved by the City Council in September of last year.

Overall Comment
The substantive provisions of the proposed sunshine ordinance comprise just a few pages of text that are in numerous respects vague, overwhelmingly repetitious of existing law and city practice, ineffectual, minimalist, include unenforceable promises of future reviews and improvements, backed up by an enforcement clause that assures zero real consequences for violations. The staff proposal is not a serious effort to enact real transparency reform in Sacramento. The proposed ordinance is largely a restatement of existing practices designed to offer the public the window dressing of reform without the substance of it. Such a minimalist approach fails to address the aspirations of the public for serious open government and transparency reform of city government.

Codification of Existing Law or Practice
Fully eight of the 26 provisions of the draft sunshine ordinance 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 the proposed fails to lay out any consequence for their violation and even includes declarations that violations will not constitute either misdemeanors or an infractions.

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 ordinance expressly disavows any penalty for its violation is clear evidence that the intent of the ordinance is to mislead the public into the false belief that meaningful transparency reform is being enacted. If proponents were serious about reform, the ordinances would provide that willful violations be punishable as misdemeanors or, at least, infractions.

Ad Hoc Committees
A serious commitment to opening up city government would include a mandate 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 actual or threatened litigation and personnel matters).

Requiring ad hoc chairs 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, standing and ad hoc, 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.

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 ultra-low-cost 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 or the city’s cost burden of complying with such requests.

Similarly, the proposed sunshine ordinance utterly fails 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 law is currently unsettled 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.

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 of Recommendations of Open Government” that was approved by the City Council in September of last year. It is inexplicable and, frankly, inconceivable how city staff, after Council approval of the Framework, could fail to include two-thirds of its terms. (We have included a copy of the September Framework in Attachment #1, with notations of the eight provisions that aren’t included in the proposed sunshine ordinance.)

Our comments also include two attachments and a hot link:

Attachment #1 – Draft Sunshine Ordinance, with sections labeled by us as either “New” or “Existing.” A provision marked “Existing” would merely codify existing law or city practice, as opposed to establishing a new rule. We also identify those provisions we consider “Vague” or “Ineffectual.”

Attachment #2 – EOS’s Table of 68 Proposed Sunshine Ordinance Reforms. The Table lists the transparency 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 that included 10 well-attended public forums held in every council district in the city. Those EOS-proposed reforms which do not appear in the draft ordinance are identified as “Not Adopted.” Fully 59 of our 69 proposed reforms have been omitted.

Attachment #3 – Milpitis’ 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. We include it so you can see first-hand the stark differences between what real transparency reform looks like as adopted by numerous California cities and the weak tea reforms that staff is proposing.

Conclusion
The proposed sunshine ordinance reflects a clear lack of commitment to the values of open and transparent government. The ordinances may hoodwink the public into believing that real reforms have been adopted – for a while.

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 or EOS Policy Director Erik Smitt at (916) 215-2275. Erik also serves as chair of our Open Government Subgroup.

Very truly yours,

Craig

Craig Powell, President
Eye on Sacramento
Phone: (916) 718-3030
Street Address: 1620 35th Street, Suite K
Sacramento, CA 95822
Mailing Address: P.O. Box 22204
Sacramento, CA 95822
E-mail: craig@eyeonsacramento.org
Website: www.eyeonsacramento.org

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