Councilman Perry Woodward’s greater goal of transparency still
shines through his proposed open government ordinance after months
of administrative and legal review, he said. The council will
decide how to proceed Wednesday.
Councilman Perry Woodward’s greater goal of transparency still shines through his proposed open government ordinance after months of administrative and legal review, he said. The council will decide how to proceed Wednesday.
“I am pleased to report that in large part that I agree with staff’s suggested revisions,” Woodward wrote to his colleagues July 3. “It is my hope that without further delay we will join those other forward thinking California cities that have resolved to make their local governments as open and accessible to their residents as possible” by going beyond the Brown Act, the state’s principal open government law.
But it is unclear whether Gilroy’s own ordinance will pass during Wednesday night’s council meeting – which Woodward along with Councilmen Bob Dillon and Craig Gartman called for last month by invoking a seldom-used section of the city charter. The mayor and two other councilmen still have plenty of questions, they said.
“I’ve been reading it, and there’s a lot of doubling with the Brown Act. We need to weed that stuff out and get down to nuts and bolts of it, and then we might be able to come up with something good,” Bracco said, referring to agenda-posting requirements and response times to records requests already on the books.
“I’ve found that creating more rules for government doesn’t really help anyone, and the way it is written now, it’s a bunch of lawyer mumbo jumbo. I would rather see something an eighth grader could read and understand,” Bracco said.
Councilman Peter Arellano still thinks the city is already transparent enough, he said.
“I haven’t figured out where it makes Gilroy more transparent, but whatever, I’ll see what everyone else says,” Arellano said.
One way the ordinance expands beyond the Brown Act is in its definition of a meeting: The sunshine ordinance defines such as a quorum regardless if four of the seven council members emerge with a consensus of how to proceed on a particular issue. This also applies to e-mail correspondence among council members.
“I think that if a quorum of a policy body is making or receiving communications – in particular, via e-mail – there should be a public file so that those can be viewed by the public,” wrote Woodward.
Councilman Bob Dillon, who supports the ordinance and said he anticipated its passage Wednesday, agreed with Woodward on the e-mail issue: “What’s the difference with talking to someone in person and coming to an agreement in an e-mail?”
While Bracco agreed with this narrow definition of a meeting, he and Councilman Craig Gartman disagreed with video taping closed sessions because, Bracco said, “then anyone could look at the tape years later and look at how we operate, and they’d know how to beat us” in a legal battle or during future salary negotiations with unions, which warrant closed sessions under the Brown Act and Woodward’s proposal, along with property-related discussions.
To convene a closed session under Woodward’s ordinance requires a majority vote by the council during an open session instead of the mayor and city administrator simply scheduling a closed session to discuss personnel, legal or property matters. The ordinance also requires an open session 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 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.
To help further set Woodward’s ordinance apart from the Brown Act, Bracco also recommended that council candidates report all the sources of their donations, ending the current practice of accepting anonymous donations less than $99.
While the costs of archiving more records initially concerned staff, Woodward loosened such requirements to just apply to quorum conversations instead of all correspondence among department heads and staff members. Responses to records requests, however, should be resolved within a couple of days despite workload concerns staff expressed, Woodward wrote.
Under the proposed ordinance, if a department head rejects a records request, it goes to either the city administrator for second review or the Open Government Commission. Woodward cut that body down from five council-appointed people to simply a sub-committee of three council members with legal counsel provided by the city’s attorney, Berliner Cohen, or another expert attorney depending on any conflicts of interest in, say, a request for the firm’s bills to the city.
Touching on this topic, Woodward described Berliner Cohen as “self serving” for insisting that it should always decide conflicts of interest on the Open Government Commission. He added, “I think many sitting and former council members have observed the city attorney take a more aggressive position on keeping city business secret than any of us would have done ourselves.”
The commission would have 45 days at most to consider an appealed records request, which was one of City Administrator Tom Haglund’ suggestions. “(Haglund) has also diplomatically suggested that council members refrain from expressing opinions on matters before the council prior to the speaker portion of public hearings. This is sound advice, of course, but I decline to make it part of this proposed ordinance,” Woodward said.
That’s the route Pinheiro took Monday: “I’m still reading the ordinance, and I’ll hold off on comment until Wednesday.”
Among some of the other requirements in the 32-page ordinance are that draft memos and reports qualify as public records once final versions are complete. Haglund would also have to provide weekly updates on staff projects to the council and post them to the Web. Department heads would also have to acknowledge the presence of records even if they are off limits, something the city attorney, Berliner Cohen, disagreed with, Woodward wrote.
“The city attorney apparently believes that simply identifying what records the city maintains – without revealing the content of those records – may ‘violate laws relating to privilege or other statutory exemptions.’ I disagree,” Woodward wrote.
Up in San Jose, the Santa Clara County district attorney has told the city’s Sunshine Reform Task Force, which aims to do much of what Woodward’s ordinance calls for, that the city cannot require police to divulge case files and investigative material. California does not require police to release records, unlike some other states, so San Jose’s potential pro-transparency policies could be the state’s first if the DA yields to the task force.
Woodward, who comes from a law enforcement family, has admitted that police records are city records, but he has also cautioned that his proposal respects the necessary autonomy of the Gilroy Police Department and does not encroach on its discretionary authority to withhold department records from public inspection.
Department heads, who must receive open government training under the ordinance, would also become part-time liaisons, updating their particular Web sites regularly with documents and happenings and answering residents’ questions on where they could find a certain department materials.
