The city council plans to vote on a slightly watered down
version of Councilman Perry Woodward’s signature sunshine ordinance
in the near future, almost a year after he rode into office with
the promise of making City Hall more transparent.
The city council plans to vote on a slightly watered down version of Councilman Perry Woodward’s signature sunshine ordinance in the near future, almost a year after he rode into office with the promise of making City Hall more transparent.
After holding three study sessions in July, the body spent Monday night discussing the last third of Woodward’s 30-page ordinance. Aside from minor language tweaks here and there, council members spent a good part of their two-hour meeting discussing the so-called “deliberative process” and “public interest” privileges before agreeing that city officials should no longer be able to use them. They essentially allow officials to deny requests under the Public Records Act if releasing the material sought would impair the city’s candid decision-making process or if the public’s interest in not seeing the material outweighs its interest in seeing it. Cities have taken advantage of such privileges, Woodward said, and Gilroy should do without them.
“It’s very easy for a city to say, when something is a political hot potato, ‘Well, you know we thought about it, gave it due consideration, and we think the public’s interest in nondisclosure outweighs its interest in disclosure, and if you don’t like it, then sue us,’ ” Woodward said. In the past, he has referenced the Matrix police report, a document prepared by a private consulting company last year concerning the efficiency of the police department.
The council ultimately voted to release drafts of these reports after requests to do so from the Dispatch, but before that, Assistant City Attorney Jolie Houston cited a government code that exempts from disclosure preliminary drafts “that are not retained by the public agency in the ordinary course of business.” She also cited the city’s “deliberative process privilege.”
Monday night, Houston and City Attorney Linda Callon reiterated that they are all on the city’s side and that preserving the deliberative process would help protect the city.
“We’re on the same side as you all are. We’re trying to protect the public interest,” Callon said. “The deliberative process protects cities so we can all express ideas … 99 percent of the time, people get what they ask for.”
Not so, Woodward said.
“I have an entire book of case law here showing how the deliberative process has been abused,” Woodward said, holding up a thick book of past cases. “When you say we’re all on the same side, that may be, but there’s a mindset, I perceived, to protect decisions made within this city.”
Some draft reports, sensitive materials such as police investigations and material related to, say, closed session negotiations shall remain off limits. The body also voted to strike out the word “information” from the public interest clause because it seemed too nebulous and could create a situation where a record requester wanted something such as an unwritten conversation.
Woodward’s ordinance also makes it easier to obtain a list of gross earnings sorted by name and job title, including base salaries and other compensation. The body agreed, though, to strike out language requiring City Administrator Tom Haglund to prepare a weekly report on city affairs and extended from one year to two years the amount of time city staff and appointed officials will have to prepare an index of all information and documents maintained by their respective departments – a sort of go-to list for someone looking for that one document they just can’t put their finger on, Woodward said.
If an official rejects a document-seekers requests within 10 days, the thwarted party has the option of turning to the city administrator and then the Open Government Commission consisting of three council members appointed by the council for terms of two years. The city’s regularly contracted law firm, Berliner Cohen, will advise the commission, but the council agreed Monday that hiring any further legal expertise for the appeals body would be going too far. Councilman Peter Arellano also raised the question of politics affecting the commission’s decision making, but the council agreed that if a records request or something of the like were that contentious of an issue, it would come before the full council for consideration.
At earlier study sessions last July, tensions came to a head when Mayor Al Pinheiro suggested his failed bid to “be as transparent as possible” by prohibiting even three council members from meeting. State law under the Brown Act already forbids a majority of the seven council members from agreeing on official city business outside the public forum, whether they discuss a topic via telephone or the Web or in person all at once or one by one until four rally together – basically a majority cannot decide on an issue before the public has a chance to hear it. Woodward’s sunshine ordinance takes this notion one step further by defining a meeting as a quorum regardless if four of the seven council members emerge with a consensus or not.
The mayor wanted to go even further in the name of open government, but the body voted 4-3 to keep the evolving ordinance’s original language and to continue allowing three members to meet. Councilmen Dion Bracco, Peter Arellano and the mayor voted for the stricter meeting standard.
The council also voted to clarify that Haglund can meet with council members one on one to discuss city business as long as he does not share the opinions of other council members. Under the proposed ordinance, Haglund must also archive documents and correspondences sent among a majority of the council; the ordinance used to require individual council members to retain all e-mails and letters, as well, but Monday evening Woodward said that would be impractical and insignificant.
“That was before I got on the council,” Woodward said. “Anything of significance always passes through (Haglund) anyway.”
When it comes to e-mails, though, the easy-to-hit “Reply All” button means a council member’s opinionated reply to a constituent could all of a sudden incorporate the full body, but the council decided it was a non-issue because under Woodward’s ordinance, the majority of the body becoming aware of one another’s opinions in such a scenario only matters if there is an attempt to negotiate a consensus afterward. The council discussed the fine line between opining and politicking and simply opining, and the body agreed that a constituent asking a council member how he or she feels about fireworks, for example, and then broadcasting that response is not illegal: If this were the case, Gartman noted, then reading his colleagues’ opinions in the newspaper would be illegal.
In July, the city council also decided to strike the ordinance’s requirement that closed sessions be video taped despite Arellano saying it would keep everybody honest. Along with legal matters, salary negotiations with unions and property-related discussions warrant closed sessions under the Brown Act and Woodward’s proposal.
To convene a closed session under Woodward’s ordinance will require a majority vote by the council instead of the mayor and city administrator simply scheduling a closed session to discuss personnel, legal or property matters. The ordinance also requires a vote after a closed session for the body to decide whether it will reveal any information before it has resolved the closed-door issue with a final vote, which the mayor must report under current law. The council has yet to decide whether those votes will take place within an open or closed session, and Woodward plans to speak with Haglund about it.
The ordinance also mandates that the salaries and benefits of council members and high-ranking city employees be discussed in open session – unlike those of union employees – and requires that draft memos and other initial documents be made available to the public if they are kept along with any final reports or letters, a departure from the city’s current practice.
