Lengthy debate about whether council members can meet with
themselves or developers gives way to laughter and compromise with
much more to come.
Laughter and rancor characterized the city council’s detailed discussion tonight about bringing more transparency to City Hall.
The body spent more than three hours combing through a third of Councilman Perry Woodward’s 32-page proposed open government ordinance, debating semantics and its larger philosophical points. The next study session will occur 6 p.m. July 14.
Tensions came to a head early on Wednesday evening when Mayor Al Pinheiro suggested his failed bid to “be as transparent as possible” by prohibiting even three council members from convening outside public meetings. 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.
“If this council really wants to be transparent, then why not take that leap,” Pinheiro said. “This is an opportunity” to go beyond the Brown Act.
But that comment struck Councilman Bob Dillon, who told the mayor he was cloaking personal criticism with a call for greater transparency. Meeting with Councilmen Woodward and Craig Gartman to discuss city matters boils down to a Constitutional right to free association, and Dillon told the mayor in strong terms that he does not plan on giving up that right.
“I don’t give a damn how you feel about it. It’s not against the law, and I’m going to do it if I feel like it,” Dillon told the mayor with a raised tone and pointed index finger. “You’re referring in a veiled manner to the three of us meeting about the sidewalk ordinance at Sunrise Cafe, (and) you’re angry about it and want to use the opportunity of transparency (to stop us from meeting). I have to tell you, I’m getting tired of it … It’s an old issue. It’s wrong. You’re wrong, and you need to get over it.”
Dillon referenced to the three men’s plan to fully fund city sidewalk repairs instead of splitting costs with residents, which the other four council members have supported to varying degrees. He turned to Gartman and Woodward to “fess up” to their meeting, and the two acknowledged such with nods.
“In fact, I think it was (Woodward’s) turn to pay,” Dillon said amid his tit-for-tat with the mayor.
The body voted 4-3 shortly thereafter 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 conversation quickly rebounded into more jovial territory, however, as the council members discussed visiting one another at their respective homes. Gartman said he enjoys sipping coffee on Dillon’s back porch to prattle about city happenings.
“Hey, I’ve never been invited,” Woodward said.
“That’s because you’re a lawyer,” Dillon shot back.
“No, it’s because you wouldn’t have to pay,” Pinheiro said with a chuckle, nudging Woodward.
“It’s OK,” Bracco said over them all. “His coffee isn’t even that good!”
After the laughter faded, the council also voted to clarify that City Administrator Tom 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. The body greed to incorporate into Woodward’s ordinance the language of SB-1732, which spells out the same requirements. The state Senate passed the bill July 3.
Another point of contention that dovetailed with this discussion centered around developers and their informal lobbying practices.
While the council agreed it can get uncomfortable when developers court individual members to “count heads” and gauge the success of a potential housing project, the body agreed that they are still constituents and cannot be denied their rights to petition the government.
“Developer are constituents, too,” Dillon said. Assistant City Attorney Jolie Houston added that there could be First Amendment implications if the council voted to curtail developers’ speech rights while still affording other residents their vocal rights.
“This isn’t a mountain I’m going to die on,” Bracco said. “It would have to be unanimous decision (to block developers) because we’d have to hold ourselves to it individually.”
The body agreed, and opted to continue relying on state law, which compels members to avoid conversations with developers outside the public eye that convey other members’ opinions. That could result in an informal council agreement among four members on a particular project after a developer takes enough of them out to lunch and on site visits.
Knowing these rules and how developers operate is part of being a responsible public official, Pinheiro said, so “let’s not make things more complicated than they already are” by barring their First Amendment rights. In fact, as long as council members ask sensible questions of developers and keep things kosher, meeting with them is actually a good thing, according to Gartman.
“I look at it from other side. (Developers) can change designs based on input from council members, so the design they submit to the city is essentially what the council is working for, so it saves them time and money, and what comes before (city) is not something we’re going to beat up and tell them to go back with,” Gartman said.
But it is really more about getting votes than actually bettering the project, Pinheiro said. Tucker added that any discussions at all are still outside public scrutiny, and Arellano preferred all discussions about city business occur on the dais: “There’s nothing I have to say in private that I can’t say in public,” he said.
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, so is this a problem, too, Gartman asked.
No, the council decided, 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.
Avoiding legal trouble also made for further dialogue.
The city council decided to strike the ordinance’s requirement that closed sessions be video taped despite Arellano saying it would keep everybody honest. Woodward offered to change the language and keep the tapes sealed for five years, instead of two, so that the statute of limitations related to a legal matter would have likely expired and a new council would also be on board with new tactics to deal with unions. Along with legal matters, salary negotiations with unions and property-related discussions warrant closed sessions under the Brown Act and Woodward’s proposal.
But “these are things we must keep secret,” lest the city expose its negotiation tactics, Gartman warned. He also shuddered at the idea of money-hungry plaintiffs viewing tapes to discover what dollar amount the city won’t go to court over due to costs and fees. “We’ll have people suing us for one dollar less than that amount,” Gartman said.
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 – 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.
This topic and a host of others, however, await the council in the 21 pages it has left to consider July 14.
“Let’s sleep on the draft issue,” Pinheiro said before adjourning the meeting.
