Berkeley Sunshine Ordinance (Draft)

BERKELEY SUNSHINE ORDINANCE ESTABLISHING ADDITIONAL LOCAL STANDARDS TO INCREASE PUBLIC ACCESS TO PUBLIC MEETINGS AND PUBLIC RECORDS
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1.   Chapter 1.30 is added to the Berkeley Municipal Code to read as follows:

Sections

1.30.010          Title of Chapter - Berkeley Sunshine Ordinance
1.30.020          Findings

1.30.030          Purpose

1.30.040          Applicability

1.30.050          Council, Boards and Commissions - Meeting Within The City
1.30.060    Scheduling of Meetings to Encourage Public Participation
1.30.070    Posting of Agendas on City Bulletin Board and City Website
1.30.080 Broadcast, Closed Captioning of Council and Zoning Adjustments Board Meetings - Exceptions
1.30.090          Posting of Draft Council Agendas and Final Agenda Packets
1.30.100    Council Agendas and Reports - Recommendations-Simplicity, Clarity
1.30.110    Agendas and Reports and Communications for Boards Commissions and Subcommittees - Simplicity, Clarity
1.30.120          Public Input on Significant Policies
1.30.130    Action on Oral Report Only in Exceptional Circumstances; Public File of Written Reports, Comments
1.30.140    Special Meeting Notices Must Be Posted on The City’s Bulletin Board

1.30.150    All Subcommittees To Provide Public Notice and Access – Exceptions for Obtaining Legal Advice

1.30.160    No Disclosure of Address Required to Comment at Meeting

1.30.170    Closed Sessions - Agendas, Approval of Litigation Settlement
1.30.180    Self-Correction of Brown Act Violations
1.30.190    Liberal Construction of Public Requests for Information
1.30.200          Written Request Not Required - Exceptions
1.30.210          Training of Staff
1.30.220    Availability at Meetings of Documents Distributed to City Council, Boards and Commissions etc.

1.30.230    Police Records

1.30.240          Compensation of City Employees Public Record

1.30.250          Posting of City Laws and Policies on Web

1.30.260.         Violations – How Addressed

1.30.270    Compliance Report to City Council – Additional Information and Reports As Requested

1.30.280          No Private Right of Action-Exceptions
1.30.290 Posting of Sunshine Ordinance on City Web Site
1.30.300          Preparation of Public Guide

1.30.010    Findings.
A.  The City of Berkeley has a longstanding sunshine policy of fostering robust and wide ranging discussion of public issues and access to relevant public information.
B.   This sunshine policy is reflected in the wide array of advisory boards and commissions with appointed community members who provide recommendations to the City Council on a gamut of public policy issues, after seeking and obtaining input from a wide spectrum of the Berkeley community.
C.  City sunshine policies and practices are also reflected in a huge variety and number of City practices designed to inform the public and solicit public involvement in civic life which go far beyond the practices required by otherwise applicable law.
D.  The nature of these supplemental polices and practices are often not publicly known or readily ascertainable and many are not required by any City Council resolution but are simply long standing practices.
E.   The City regularly implements additional procedures to facilitate public access to matters of public interest and concern.
F.   It is advisable to ensure that existing and new policies are codified by the City Council so that they continue to be followed.
G.  The adoption of this ordinance will also have the salutary effect of  providing  the public with the contents of the City’s public access procedures, which significantly expand upon and supplement state law.

1.30.020    Title of chapter-Berkeley Sunshine Ordinance.

This chapter shall be known as the Berkeley Sunshine Ordinance

1.30.030    Purpose.

The purpose of this chapter is to increase access to City of Berkeley decision making procedures beyond that required by the Ralph M. Brown Act, Government Code section 54950 et. sequitur (“Brown Act’) and the California Public Records Act, Government Code section 6254 et. sequitur. (“Public Records Act”)

1.30.040    Applicability.

The provisions of this chapter shall apply to the City Manager and City departments and all City of Berkeley boards, commissions, task forces and subcommittees thereof.  Its provisions shall apply to the Berkeley Redevelopment Agency and Berkeley Housing Authority upon passage of resolutions, by the governing bodies of those agencies, which adopt the provisions of this chapter by reference.

Public Access to Meetings

1.30.050    Council, boards and commissions – Meeting within the City.

Even when otherwise permitted by law, the City Council and all City of Berkeley boards commissions, task forces and subcommittees thereof shall, conduct their meetings within the City of Berkeley unless the Council finds in advance of such meeting that there are very significant articulated prejudice to the City’s interests for conducting the meeting outside the City which cannot be substantially achieved by holding such meeting within City limits.
1.30.060    Scheduling of meetings to encourage public participation
A.  The City Council, City board commission, task forces and subcommittees shall schedule meetings in the evenings, and at times when members of the public are likely to attend.  Meetings should not be scheduled on holidays or other days when a significant portion of the public is unlikely to attend.
B.  The Council’s Agenda Committee should set public hearings which are likely to be attended by a large number of members of the public for a time certain, where possible, in order to increase the predictability of the time of commencement of public hearings

1.30.070    Posting of agendas on City bulletin board and City website.
Agendas for all City Council, board and commission  meetings and subcommittees thereof shall be posted on the City’s website and in the bulletin board provided for this purpose, except where the City’s technological resources impose limitations on web postings.  Failure to comply with this section for notices of meetings of the City Council, Redevelopment Agency and Berkeley Housing Authority shall render any action taken at such meeting voidable upon the filing of a written complaint with the body within 30 days of such action.

1.30.080    Broadcast, closed captioning of Council and Zoning Adjustments Board
meetings - Exceptions.
A.  To the extent fiscally and technologically feasible, all regular and special open meetings of the City Council, and Zoning Adjustments Board held in the Council chambers shall be broadcast live and for replay on the local government cable channel, videostreamed live and for replay over the internet, and captioned, with the captioned text displayed on the cable broadcast and as part of the videostream.
B.  These requirements shall not apply if necessary equipment breaks down and it is impracticable to make repairs in time for a scheduled meeting or regular or particular meetings have to be changed is at a location that does not have the technological capacity to accommodate the cable or web broadcast and captioning.

1.30.090    Posting of draft Council agendas and final agenda packets.
The draft agenda of the regular meetings of the City Council, received by the City Clerk, shall be posted on the web at the same time as the draft agenda and any accompanying items are delivered to the City Council Agenda Committee (under 2006 practices, eleven days before the Council meeting, except when adjustments are necessary to account for holidays), and the City Council final agenda packet for a regular Tuesday night meeting shall be posted on the City’s website the Thursday prior to the meeting.  Any report delivered to the Council after the packet is distributed, as authorized by Council Rules of Procedure, shall be posted on the City of Berkeley’s website at the earliest time practicable.
1.30.100    Council agendas and reports - recommendations- simplicity, clarity.
A.  Council agendas shall contain the recommendations made in the related agenda reports, unless the report is to be delivered after the agenda has been prepared and the precise recommendation is not known at the time the agenda is published and posted.
B.   Council reports, agendas and recommendations shall be written in easily understandable language, and shall list the names and phone numbers of City representatives who can answer questions and provide information to the public about the subject of the report.
C.  Where a report or description of an item on an agenda was written in a manner that the City Manager, Council or Council Agenda Committee concludes would not lead a reasonble person to have adequate notice of the subject under discussion  and the matter involves a matter of significant public interest, the item shall be set for a subsequent meeting for which the report and/or agenda item description shall be rewritten to provide better public notice.  This section shall apply require renoticing of such meeting even if the agenda notice is sufficient to meet the requirements of otherwise applicable law.

1. 30.110   Agendas and reports and communications for boards, commissions
and subcommittees - simplicity-clarity.
A.  The description of agenda items and reports for other City bodies, including boards, commissions, taskforces and subcommittees of such bodies , shall be written in easily understandable language and provide adequate notice of the matter to be discussed at the meeting, where such agenda notice is required by otherwise applicable law.
B.  Where a report or description of an item on an agenda for a Board Commission, task force or subcommittee thereof subject to advance public notice was written in a manner that the City Manager concludes would not lead a reasonble person to have adequate notice of the subject under discussion  and the matter involves a matter of significant public interest, the item shall be set for a subsequent meeting for which the report and/or agenda item description shall be rewritten to provide better public notice.  This section shall require renoticing of such meeting even if the agenda notice is sufficient to meet the requirements of otherwise applicable law.

1.30.120    Public input on significant policies.
The City Council and all City commissions, boards, task forces and subcommittees of such bodies shall ensure that they provide notice to and seek input of stake holders affected by any significant policy or matter before formulating recommendations or action on that policy or matter.
1.30.130    Action on oral report only in exceptional circumstances, public file of written reports, comments.
Except in exceptional circumstances, as determined by the body taking action, no final action shall be taken or policy direction given by the Council, or any City board, commission, task force or subcommittee thereof, concerning a subject that has no written report.  Any action taken by such body is voidable upon the filing of a written complaint with the body within 30 days of the action date the action was taken. All bodies shall maintain a file for public inspection which shall contain copies of all documents submitted by the body or the staff to the body for that meeting. To the extent practicable, copies of items submitted by the public to the body shall be made available for public inspection at the meeting on the item.

1.30.140    Special meeting notices must be posted on the City’s bulletin board.
The agendas of special meetings of the City Council, or any City board, commission, task force or subcommittee of such bodies subject to the Brown Act shall be posted on the City’s bulletin board, notwithstanding any provision of state law providing that such notice need only be delivered to members of the legislative body holding the meeting and members of the media who have requested notice.  Action taken in violation of such requirement shall be voidable upon the filing of a written complaint with that body within 30 days of the day the action was taken.

1.30.150    All subcommittees to provide public notice and access – exceptions for

obtaining legal advice.

All subcommittees of the City Council and City boards and commissions and task forces, whether or not such subcommittees would otherwise be subject to the noticing and public access provisions of the Brown Act, shall be held in a publicly accessible location and open to the public, except where such body is receiving legal advice and the providing of such legal advice in private is consistent with applicable law.

1.30.160    No disclosure of address required to comment at meeting.

Persons speaking at a public meetings of the City Council, City boards, commission, task force or subcommittees of such bodies shall not be required to disclose their address but may be asked to state whether or not they are Berkeley residents.

1.30.170    Closed sessions-agendas, approval of litigation settlements

A.  Closed session agenda descriptions of threatened litigation or litigation which may be initiated  by the City should describe the nature of the threatened or soon to be initiated litigation, unless the City Attorney concludes that such disclosure would compromise the legal interests of the City in such litigation and withholding the information is otherwise authorized by law.
B.  As is the City’s longstanding practice as of 2006, the substance of existing litigation or liability claim settlements to be approved by the City Council should generally be placed on the Council open agenda for approval, (even where accompanied by a confidential attorney-client memorandum or previously discussed in closed session), unless the settlement will only be finalized when the opposing side agrees and the disclosure of the range of settlement authority would compromise the City’s strategic legal interests in the litigation or litigation deadlines or the opposing party’s offer require swifter council action. In such circumstances the settlement shall be made public at the earliest practicable time after it has been finalized and a copy shall be filed with the City Clerk and available for public inspection.
C. Where a threatened or existing litigation matter to be settled entails the adoption, modification, repeal or rescission in whole or in part of a City ordinance, policy, practice or procedure, the proposed settlement will be placed on the Council’s regular open agenda for approval at the time required for other reports from the City Manager for such meeting.  Failure to comply with this section will render the action taken to approve such settlement voidable upon the filing of a written complaint with the City Council within 30 days of the taking of such
D.  Closed session agendas involving existing litigation shall list the name of each case to be discussed, its case number and the court in which such case is pending.
E. The City Attorney’s quarterly summary of claims paid and lawsuits settled shall be filed with the City Clerk and be available for public inspection .
F.  The City Council, City boards, task forces or commissions or subcommittees thereof shall not meet in closed session, unless the City Attorney has confirmed that the closed session is legally permissible and the agenda description is legally adequate.   Even where any closed session is authorized by law, only legally impermissible subjects germane to the legal rationale for the closed session may be discussed in such session.

1.30.180    Self-correction of Brown Act violations.
If it becomes apparent that the City Council or any City board, commission, task force or subcommittee of such bodies has taken action at a meeting in violation of the Ralph M. Brown Act, the action shall be rescinded and the matter rescheduled for discussion and action by that body in compliance with applicable law, irrespective of whether or not any complaint concerning such violation has been lodged with the body by a member of the public.

Public Records
1.30.190.   Liberal construction of public requests for information.
A.  The City shall liberally construe requests for public records whether or not the person seeking a City record has framed the request as a request under the California Public Records Act.  All City departments shall help members of the public to identify and locate public records and provide them promptly.
B.  State law exemptions from public disclosure shall be narrowly construed and records disclosed when appropriate.

1.30.200    Written request not required – exceptions.
Requests for a specific readily identifiable City record, (such as a copy of a particular City Manager report to the City Council on a specific subject at a specific meeting), need not be made in writing.  Where such public records are clearly identified and readily available, the records shall be provided as soon as practicable.  Where the nature of the record sought is unclear or a detailed list of records is sought, the person requesting the records may be asked to submit the request in writing in order to ensure that the City understands the exact nature and list of the records which are to be located and produced.
1.30.210    Training of staff.
City staff shall be trained to timely respond to public requests for information.

1.30.220    Availability at meetings of documents distributed to City Council, boards and
commissions, etc.
Documents distributed by the City to the City Council, boards, commissions, taskforces and subcommittees of such bodies, concerning items on the agenda of the body shall be made available for inspection by the public as soon as practicable, but no later than the meeting at which the subject is to be discussed. To the extent practicable, documents disseminated by other persons to the City body holding the meeting should also be available for public inspection at that meeting.

1.30.230    Police records

Police Department records shall be made available for public inspection if the records are not required by state or federal law to be kept confidential and are subject to disclosure under a Police Department policy which  should balance individual rights of privacy,  rights of confidentiality, effective criminal prosecutions and officer and public safety with the interest in public disclosure.  Any change in the  policy in effect on March 1, 2006 which would reduce public disclosure shall be subject to advance public notice and review by the Police Review Commission .

1.30.240    Compensation of City employees public record.

The compensation paid to City employees and officials, including the exact amount of salary, benefits and overtime shall be a public record.

1.30.250    Posting of City laws and policies on web.

The City shall post copies of the following laws and procedures on its web site:

• City Charter
• Berkeley Municipal Code
• Council Rules of Procedure,
• Commissioner’s Manual
• Council resolution establishing procedures in land use matters
• Records Retention Schedule
• Agendas  and minutes for the meetings of all legislative bodies subject to the Brown Act,
• The Conflict of Interest Code
• A Citizen’s Guide to Public Information
• such other documents as may be useful to the public to the extent that the City’s information technology resources allow.

Complaint Procedure

1.30.260.   Violations – how addressed.

A.  Any person who asserts that the provisions of the City’s Sunshine Ordinance or  applicable state laws regarding open meetings or public records have been violated may file a complaint with the City Manager, as the exclusive remedy for raising the City’s compliance with the City’s operating policies embodied in this ordinance.
B.  The City Manager shall respond to such complaint in writing within 30 days thereof and shall have the power to order any reasonable remedial action to ensure compliance with this chapter on the part of any City employee, board, commission, task force, or subcommittee thereof.   The City Manager shall maintain a file with the complaint and the City’s response and disposition for public inspection.  Where the proposed complaint requires action by the City Council, the City Manager shall place the recommended Council action on the Council agenda for action.
C.  Any City Councilmember may place any such complaint and the City Manager or response on the Council agenda for further action and the Council may, by a majority vote of the Council, decide to take the matter up for such further action on such complaint as may be permissible under the Charter and applicable law and that the Council deems appropriate.

1.30.270          Compliance report to City Council – additional information and reports as requested.

A.  The City Manager shall provide the City Council with an annual report on the number of complaints filed, their disposition and the City’s compliance with this resolution and recommend any other Council actions to augment public access to meetings or records or otherwise modify this chapter.  The first such report shall be due one year from the date of adoption of this ordinance.
B.   Any member of the City Council may seek information from the City Manager concerning one or more such complaints at any time.   The Council may also request additional reports or actions and take action to augment or modify this chapter.

1.30.280    No private right of action-exceptions.
The purpose of this ordinance is to create internal operating procedures that facilitate public access to City decision making and records beyond that required by applicable federal or state law and to create an internal monitoring mechanism to evaluate the City’s implementation of these internal operating policies.  The exclusive means of raising compliance with these internal procedures of the City is the complaint procedure set forth in section 1.30.260 and 1.30.270.  No person shall have a right to file suit to enforce this chapter except where the City Council has failed to set aside actions taken in violation of sections 1.30.130, 1.30.140 and 1.30.170 C which provide that the Council’s action is voidable upon the filing of a written complaint within 30 days of such Council action.  Any such action must be commenced no earlier than 30 days and no later that 60 days after the filing of such written complaint.

Public Information Regarding City’s Sunshine Ordinance and Related Policies

1.30.290    Posting of Sunshine Ordinance on City web site.
The Berkeley Sunshine Ordinance shall be posted on the City’s website.

1.30.300    Preparation of public guide.
The City shall prepare an information guide for the public, which describes in lay, easily understandable language, the main federal state and local rules that facilitate public notice of and public access to City meetings and records. Copies of important written city policies concerning meetings or records shall be appended to such a guide. The first such guide shall be prepared within six months from adoption of this ordinance.  It shall be forwarded to the City Council as an Information Report on the Council agenda and shall be posted on the City’s web site.  It shall be updated from time to time to reflect current City practices and changes in state law
Section 2. Copies of this Ordinance shall be posted for two days prior to adoption in the glass case located near the walkway in front of Old City Hall, 2134 Martin Luther King Jr. Way.  Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.