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

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

A bitter divorce on ethics reform

FOON RHEE

SEPTEMBER 30, 2015

Eye on Sacramento and League of Women Voters joined forces to push City Hall

But after holding 10 public forums, the two groups disagreed on policy and tactics

Now, league is backing city plan, while watchdog group is mulling ballot measure

BY FOON RHEE

Lawsuit to Enforce the California Public Records Act (CPRA)

MEDIA RELEASE

July 6, 2015

Contact:

Erik Smitt, Policy Director, 916-215-2275, Erik@ eyeonsacramento.org

Paul Nicholas Boylan, Attorney, 530-297-7184, PNBoylan@gmail.com

In a press release today Eye On Sacramento, a member of the community coalition advocating for robust ethics, transparency and redistricting reform of City government, notifies the press that a lawsuit has been filed with the Sacramento County Superior Court seeking to enforce the California Public Records Act (CPRA), and an application has been made for a Temporary Restraining Order (TRO) to prevent the City of Sacramento from deleting emails that form a critical, irreplaceable part of the public record.

If the application for a TRO is denied, the City will destroy these emails on Wednesday, July 8.

The hearing for the TRO will take place at the Gordon D. Schaber Sacramento County Courthouse, 720 9th Street, Sacramento, on July 7, 2:30 pm, Department 24, the Honorable Judge Shelleyanne W. L. Chang presiding.

Plaintiffs in the lawsuit are Richard Stevenson, member of Eye On Sacramento and Katy Grimes, Journalist.  Both Plaintiffs have made formal requests to access to emails the City intends on destroying on July 8 and are suing the City under the CPRA to enforce their rights to gain access to these records.

Plaintiffs are asking Judge Chang to issue a TRO preventing the City from destroying the emails Plaintiffs want to access because, if the City destroys these emails, the lawsuit will be rendered moot and Plaintiffs’ – and the public’s – constitutional right to access these emails will be irrevocably injured.

“My clients understand the City’s desire to manage the City’s email archive,” said Paul Nicholas Boylan, the attorney representing the plaintiffs in the CPRA enforcement lawsuit. “But the City’s interest can’t violate the public’s fundamental right to access public records. The City’s plan to destroy these emails after my clients have asked to see them is like a librarian burning down an entire library because a member of the public has asked to check out  and read one book,” Boylan said. “It is unthinkable that this might actually happen.”

As noted in news reports of an ongoing trial in Sacramento Superior Court, public officials have deleted records even after legal notifications to preserve those same records.  Eye On Sacramento supports Richard Stevenson and Katy Grimes in their lawsuit to enforce the California Public Records Act and their application for a restraining order to prevent the City of Sacramento from destroying public records.

“Eye On Sacramento is focused on transparency and citizen access to all mechanisms of government.  Deletion of public records is contrary to the principles of Open Government and the public’s right to know.” Erik Smitt, Policy Director.

Open Government … transparent, responsive, accountable!

 

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The Public’s right to know

It should be a given: Local governments have to tell the public what’s on the agenda for meetings and provide public records.

Yet like so many things in California, it can get very convoluted. While the core of the state’s open government laws is beyond dispute, there’s a fight over, what else, money – specifically, reimbursements from the state to local governments for the costs of some procedural mandates to make the laws work better.

The public’s right to know is getting caught in the crossfire.  Read more here …

Editorial: Public’s right to know is too basic to risk – Sacramento Bee

Eye on Sacramento Asks City Council to Restore 3-Minute Time Limit on Citizen Comments

MEDIA RELEASE

For Immediate Release
Contacts:
Craig Powell, President, Eye on Sacramento (EOS)
Phone: (916) 718-3030; E-mail: craig@eyeonsacramento.org
Dennis Neufeld, EOS Board Member
Phone: (916) 539-1054; E-mail: d-neufeld@comcast.net
Website: www.eyeonsacramento.org
Date: March 5, 2013; 10:45 a.m.

Eye on Sacramento Asks City Council to Restore 3-Minute Time Limit on Citizen Comments;
Research Shows Change Would Lengthen Council Meetings By Just 21 Minutes

Eye on Sacramento (EOS) is asking the Sacramento city council to increase from two minutes to three minutes the time it allows citizens to speak at city council meetings, returning the council to a time limit that was in place for several decades before Mayor Kevin Johnson took office in 2009.

In a letter delivered to the mayor and city council yesterday, EOS president Craig Powell said, “We have observed that the quality of the public comments that you receive has demonstrably eroded since the adoption of the two-minute rule as it does not provide enough time for concerned speakers to coherently articulate their thoughts on matters of importance to them and the City.”

EOS is only seeking an increase in the time limit for citizens who are addressing the council on matters on the council’s meeting agendas. It is not seeking an increase in speaking time for speakers commenting on matters not on the council’s agendas.

EOS also released a report on its latest research on the subject. Findings include:

– Restoring the 3-minute time limit would likely increase the average length of city council meetings by 13% or just 21 minutes.

– The average length of city council meetings over the past four years has been 2 hrs., 41 min., down from 5 hrs., 24 min. during the final four years of Heather Fargo’s tenure as mayor, a remarkable 50% reduction.

– In the last six months of 2012, city council meetings averaged just 1 hr., 50 minutes, a 32% drop from the average meeting time over the past four years.

– Sacramento is the only government in the greater Sacramento region that has a speaker limit below 3 minutes.

– Of eight California cities of comparable size, only Sacramento and Oakland have speakers limits below 3 minutes.

The city council is expected to take up changes to its council rules in the next week or two. EOS’s letter to the mayor and city council is attached, as well as its research reports on the topic.

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March 4, 2013

HAND-DELIVERED & VIA E-MAIL

Honorable Mayor Kevin Johnson and Honorable

Members of the Sacramento City Council

New City Hall, Fifth Floor

915 I Street

Sacramento, CA 95814

Re: Change of Time Limits on Comments at Council Meetings

At your February 12th meeting, you discussed possible changes to  your “Council Rules of Procedure” (Item #1; Report #2013-00098”).  As you may recall, Eye on Sacramento representatives provided you with testimony and research findings that found the Sacramento is the only city, county or governmental jurisdiction within the greater Sacramento region with a public comment time limit of less than three (3) minutes.   Sacramento is also the only one of eight cities of comparable size in California with a two-minute time limit other than Oakland.  All other comparative-sized California cities provide their citizens with a three-minute time limit on public comments.  A copy of our initial research findings (“Public Comment Time Limits by City”) is enclosed.

We have since completed additional research on the subject.  In particular, we’ve studied the impact a return of the three-minute time limit would likely have on the length of your Council meetings.  Our additional research is detailed on the enclosed “Analysis of Impact of Rule Change on Duration of Council Meetings.”

Our latest research has found that the 202 Council meetings held during the past four years  had an average length of 2-hrs 41-minutes.   For a one-year sample period (July 2011 thru June 2012; 49 meetings), we found that, on average, only 21 speakers commented on Consent Calendar and Public Discussion items at each meeting (1058 total comments).  If those speakers had been allowed three minutes to speak instead of two, your average meeting length would have increased by only 21 minutes, to an average length of 3-hours 2-minutes, a modest lengthening (13%) of your meetings’ duration.

We respectfully request that speaker comment time limits be returned to their long- established duration of three (3) minutes for comments on both the consent calendar and the discussion calendar.

We have observed that the quality of the public comments that you receive has demonstrably eroded since the adoption of the two-minute rule as it does not provide enough time for concerned speakers to coherently articulate their thoughts on matters of importance to them and the City.  When the Council again takes up the matter of your Council Rules, we ask that you include the following specific changes to your Rules:

Section B.2.b – “Consent Calendar speakers are . . . subject to the three (3) minute time limit for the entire Consent Calendar.”

Section B.2.c – “Discussion Calendar Items.  Three (3) minutes per speaker.”

Please note that we are not requesting an increase in speaker time for public comments on matters not on the council’s agenda.

Citizen comments to the City Council are a vital portal to citizen democracy, possibly the only route that still retains people’s confidence.  We feel it would be in the best interest of the City, its citizens and the City Council itself to champion and protect meaningful democratic accessibility for your constituents.  We believe Sacramentans would cheer your efforts.

If you would like to discuss this matter, please do not hesitate to contact me on my direct line at (916) 718-3030 or via e-mail (craig@eyeonsacramento.org).  Thank you.

 

Very truly yours,

____________________________________

Craig Powell,  President

Enclosures

cc: City Manager John Shirey (w/encl.)

City Clerk Shirley Concolino (w/encl.)

City Attorney James C. Sanchez (w/encl.)

CKP/lm

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Analysis of Impact of Rule Change on Duration of Council Meetings

Sacramento City Council History on Public Comment Policy

  • For decades, policy at council meetings allowed 3-minutes per speaker for public comments on both agenda, non-agenda, and discussion items.
  • On May 15, 2007 Council Rules, Chapter 8-Conduct of Meeting, (D.2. a.) read as follows: “Each speaker shall limit his/her remarks to three (3) minutes.”  (D.2.b.): “A three minute countdown display will be activated at the start of a speaker’s comments.”
  • On 1-13-09, Mayor Kevin Johnson, soon after assuming office, asked for a reduction of the speaker time limit to two minutes.
  • 1-13-09 draft amended Council Rules included the change to two minutes.  Final approved language modified from two minutes to: “specified time allotment.”  From this date forward, Mayor Johnson enforced a two-minute speaker time limit.
  • On 1-10-12, council significantly changed the Rules.  Speaker time limits were moved from Chapter 8 to Chapter 5, with more detailed speaker time limits.  A new Section B, “Addressing the City Council”, was added:
    • Section (B.2.a.), speaker time limits, reads: “Matters not on the Agenda. Two (2) minutes per speaker.”
    • Section (B.2.b.) reads: “Consent Calendar . . . speakers are . . . subject to the two (2) minute time limit for the entire Consent Calendar. . .”
    • Section (B.2.c.) reads: “Discussion Calendar Items. Two (2) minutes per speaker.”
    • Section (B.2.d.) was added: “In addition to the above time limits per item, the total amount of time any one individual may address the Council at any meeting is eight (8) minutes.

 

Comparing Sacramento’s Public Comment Time Limits to Other Cities

  • Sacramento is the only county city with 2-minute limits.  (See attached matrix)
  • Several cities in region have 5-minute time limits.
  • Of eight (8) other similar-sized cities in California, only one has less than three-minute time limits for public comment. (Oakland)
  • Comparing capital cities, Oregon’s city of Salem allows 3-minutes.

Comparisons of Council Meeting Durations, Mayors Fargo & Johnson

Eye on Sacramento (EOS) researched average city council meeting durations for Mayors Heather Fargo and Kevin Johnson.  Those findings:

  • With equal samples of 4-years, Ms. Fargo’s meetings averaged 5-hours, 24-minutes (January 2005 through December 2008; 195 Mtgs.)
  • Mr. Johnson’s meetings averaged 2-hours, 41-minutes (January 2009–December 2012; 202 Mtgs.)
  • Mr. Johnson’s meetings averaged 2-hours, 43-minutes shorter than Ms. Fargo’s. For last six-months of 2012, meetings averaged 1-hr, 50-minutes.

Public Speakers at Mr. Johnson’s Council Meetings, July 2011 through June 2012

  • For Matters Not on the Agenda, 645 people spoke, for an average of 13 speakers per meeting. (Total of 49 meetings)
  • For Consent Calendar and Public Hearings, 1,058 speakers addressed the council, averaging 21 per meeting.
  • One speaker addressed the council 135 times during this one-year period.
  • Adding 645 plus 1,058, total speakers = 1,703 for the most recent fiscal year.
  • If each speaker spoke 3-minutes rather than 2-minutes, 1,703 additional minutes would have been added to the 49 meetings, or 35-minutes per meeting.
  • However, if a 3-minute time limit were applied only to speakers commenting on agenda items, the average meeting length would be 3 hours, 2 minutes, an increase of only 21 minutes.
  • Mr. Johnson’s meetings would, even with a return to a 3-minute speaker time limit, increase, on average, to 3 hours, 2 minutes, still more than 2-hours shorter than the average length of Ms. Fargo’s meetings.

The Brown Act:

  • This Act provides no specific time limits for public comment.  Its applicable language: “Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item. . .” (Govt. Code, § 54954.3 (a))
  • The other important Brown Act paragraph: “The Legislative body of a local agency may adopt reasonable regulations to ensure that the intent of [this legislation] is carried out, including . . . regulations limiting the total amount of time.”
  • Research from the First Amendment Coalition states: “The Attorney General has concluded that five minutes per speaker may be reasonable, but many if not most agencies appear to keep the speaker limit to three minutes per agenda item.”

 

Sources: Sacramento city clerk’s council archives.  Various city websites and EOS phone calls to city clerks of some identified cities.  Personal visits to some city halls.

 

 

A Message to Sacramento City Council: Democracy Dies in the Darkness

Will the Sacramento City Council make a real commitment to open and transparent government this spring or will it fudge on the issue?  The City Council is facing such a choice because of new and proposed state laws that are systematically gutting the two key laws that keep local government open and transparent to their citizens: the Brown Act, California’s open-meeting law, and the Public Records Act.

Here’s what’s happened: Last year, the Legislature and Governor Brown, in a cost-cutting move, decided to cut off all reimbursements of the costs local government incurs in complying with the Brown Act.   But the state constitution requires the state to reimburse local governments for their costs of complying with state mandates like the Brown Act.  So our state leaders simply passed a law relieving local governments of the burden of complying with key provisions of the Brown Act.  Most local governments, including the City of Sacramento,  responded by pledging to “voluntarily” comply with the suspended law.

Now, the Governor wants to take the suspension further.  In his proposed state budget, he’s asking the Legislature to now invalidate large portions of the California Public Records Act, the law which enables the public and the media to compel local government to cough up records on request.  If the Legislature goes along, local governments in California will be pretty much free to operate in darkness and thumb their noses at pesky citizens and inquisitive reporters who file requests for public records that require a lick of effort on the part of local government to compile.

City of Bell redux anyone?

I imagine that most local governments will respond to the suspension of the Public Record Act’s mandates as they did to suspension of the Brown Act: they will issue pious pledges to “voluntarily” comply with the Records Act notwithstanding its suspension.

That’s simply not good enough.  Not nearly good enough.

It is too easy for local government officials to abandon their public pledges of compliance when things get uncomfortable for them.  After suspension of the Brown Act mandates, San Diego County was challenged for replacing its top administrator without prior public notice.  A county attorney responded to the challenge by pointing out that there was no legal basis for challenging the county’s action because the Brown Act’s provisions were “no longer operative.” Any local government attorney worth his salt would take the same posture.  If a local government, including one that has pledged compliance, balks at coughing up a public record that is requested, the requestor will no longer have recourse to the courts to compel compliance: they’ll simply have no legal case to plead.  The doors of the courthouse will be slammed in their face.

There is a very easy way for local governments to fix this problem – if local elected officials are honestly committed to democratic governance.  They can simply adopt by local ordinance the suspended portions of the Brown Act and the Public Records Act and provide their citizens the legal standing to enforce the rules by court action.

March 10th marks the beginning of “Sunshine Week,” a national initiative to promote a dialogue about the importance of open government and freedom of information.  Participants include news media, civic groups, libraries, nonprofits, schools and others interested in the public’s right to know.  Sunshine Week is the ideal time for local government leaders to step up and introduce legislation to preserve California’s open government laws in their own jurisdictions.  Members of the Sacramento City Council: Are you listening?

 

Craig Powell is an attorney, businessman and community activist.  He serves as President of Eye on Sacramento.