March 8, 2006
Grand Jury
County of Monterey
P.O. Box 414
Salinas, CA 93902
Dear Grand Jury Members:
The City of Carmel-by-the-Sea is in receipt of the 2005 Grand Jury Report. In a section of that report, entitled “Open Government”, the Grand Jury reviewed the “open and participative”procedures for all city governments within Monterey County. The Report concluded that the published procedures for each city “appear to be adequate but may be circumvented or arbitrarily executed in certain instances resulting in lack of open debate, delayed or inadequate follow-up and no resolution.”
The following is submitted by the City of Carmel-by-the-Sea in response to the above-referenced section of the 2005 Grand Jury Report:
Ralph M. Brown Act / Open Meeting Act: City councils, commissions and boards, as well as the elected and appointed bodies of the County of Monterey, all special districts within the County, and the State of California are required to follow the Ralph M. Brown Act, also known as the Open Meeting Act. The California State Legislature adopted the Brown Act in the early 1950s, and it remains the hallmark of open government today.
The Legislative intent, as set forth in California Government Code Section 54950, reads asfollows:
“In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the law that their actions betaken openly and that their deliberations be conducted openly.
The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”In applying the regulations of the Brown Act, the Act defines a “local agency” as a county, city, city and county, town, school district, municipal corporation, district, political subdivision, or any board, commission or agency thereof, or other local public agency.
The Act further defines a “legislative body” as: “the governing body of a local agency or any other local body created by state orfederal statute; a commission, committee, board, or other body of a local agency, whetherpermanent or temporary, decision making or advisory, created by charter, ordinance,resolution, or formal action of a legislative body; a board, commission, committee, or other multimember body that governs aprivate corporation or entity either created by the elected legislative body or that receivesfunds from a local agency and whose governing body membership includes a member ofthe legislative body appointed to that body by the legislative body of the local agency; the lessee of any hospital...where the lessee exercises any material authority of alegislative body of a local agency delegated to it by that legislative body whether the lessee is organized and operated by the local agency or by a delegated authority.”
California Government Code Sections 54950-54962 proceed to set forth guidelines for allmeetings of local agency legislative bodies, which includes the notice and posting of agendas. Section 54954.2 reads in pertinent part as follows:
“(a) At least 72 hours before a regular meeting, the Legislative body...shall postan agenda containing a brief general description of each item of business to be transactedor discussed at the meeting, including items to be discussed in closed session. A briefgeneral description of an item generally need not exceed 20 words. The agenda shallspecify the time and location of the regular meeting and shall be posted in a location thatis freely accessible to members of the public.
No action or discussion shall be undertaken on any item not appearing on theposted agenda, except that members of a legislative body or its staff may briefly respondto statements made or questions posed by persons exercising their public testimony rights... In addition, on their own initiative or in response to questions posed by the public, a member of a legislative body or its staff may ask a question for clarification,make a brief announcement, or make a brief report on his or her own activities. Furthermore, a member of a legislative body, or the body itself, subject to the rules of thelegislative body, may provide a reference to staff or other resources for factualinformation, request staff to report back to the body at a subsequent meeting concerningany matter, or take action to direct staff to place a matter of business on a future agenda..”
All meetings of cities, including the County of Monterey, as well as all other special districtslocated within the County, apply the Ralph M. Brown Act to insure that the public has an opportunity to participate and to observe the public business being conducted.
With respect to a city council, a city council person is elected by the public; however, that individual only has one vote on matters coming before the city. The chief executive officer ofthe city is known as the City Manager or City Administrator. City council members, as a general rule, refer matters presented by the public during their respective agency’s public or oral comment period to the City Manager or City Administrator for response at a later time as the item most often is of a personal nature to the individual as opposed to the general public. The city council or any member of the city council may also request the item be placed on a future agenda consistent with California Government Code Section 54954.2 as set forth above.
California Government Code Sections 54954.3(a) and (b) read in pertinent part as follows:
“(a) Every agenda for regular meetings shall provide an opportunity for membersof 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, that is within the subjectmatter jurisdiction of the legislative body, provided that no action shall be taken on anyitem not appearing on the agenda....”
“(b) The legislative body of a local agency may adopt reasonable regulations toensure that the intent of subdivision (a) is carried out, including but not limited to,regulations limiting the total amount of time allocated for public testimony on particularissues and for each individual speaker.”
As a general rule each public agency has a three-minute rule which can be extended at therequest of a member of the city council and approval by the city council.
City Council meetings are open to the public, and their tapes or film are retained for a minimum period of 30 days consistent with California Government Code Section 54953(b) which reads in pertinent part as follows:
“(b) Any tape or film record of an open and public meeting made for whateverpurpose by or at the direction of the local agency shall be subject to inspectionpursuant to the California Public Records Act..., but... may be erased or destroyed30 days after the taping or recording..”
Subsection (a) of the same code section insures that any person attending the meeting has the right to record the proceedings. Subsection (a) reads in pertinent part as follows:
“(a) Any person attending an open and public meeting of a legislative body of alocal agency shall have the right to record the proceedings with an audio or videotape recorder or a still or motion picture camera...”
The legislative bodies of each city or local agency are required to pay strict attention to the Ralph M. Brown Act. Individual concerns expressed at a city council meeting by members of the public are typically responded to by staff in a timely fashion as appropriate to the particulars of the item. There is no guarantee, however, that the solution can or will necessarily meet with the individual’s approval. Nonetheless, as noted by the Grand Jury, there are written procedures for both individuals and members of a city council or local agency to address items of concern on a city council or public agency agenda.
Mayors have only one vote on matters coming before the City Council, however, it is the duty and responsibility of the Mayor, generally in concert with the vice mayor, city manager or city administrator and the city clerk, to set the city or agency’s agenda. In that regard, itemsrequested for placement on an agenda by council members or members of the public should be considered when setting the agenda, but need not be immediately placed on an agenda and could be deferred. The purpose of doing the public’s business in public is to assure that decisions being made by an elected or appointed body are visible to the public. It is possible that any person may feel that his/her concern is important and should be addressed in a public meeting. The opportunity to express that interest/concern is provided during a public comment period. As previously noted, the item may be referred to staff for follow-up, it may be specifically placed on an agenda, or it may be deferred. At all times, the individual retains the right to continue to address the item during the public comment period of all meetings.
GRAND JURY FINDINGS: The Grand Jury has noted 7 Findings with respect to this study.The City is required to respond to the Findings to indicate agreement or disagreement.
Finding 1: Interviews disclosed that a pattern of obstacles exist that make it difficult to schedule, discuss, document for the record, and gain appropriate resolution of topics or issues presented by the public.
Response 1: The City cannot speak to the content of interviews since it did not participate in the interviews; however, the City does not agree with this finding. Anymember of the public may request an item be placed on a future agenda. City councilmembers, as a general rule, refer matters presented by the public during their respective agency’s public or oral comment period to the City Manager or City Administrator for response at a later time. The item may or may not be of personal interest to the individual as opposed to the general public. The city council or any member of the citycouncil may also request the item be placed on a future agenda consistent with California Government Code Section 54954.2. It is possible that a matter may be resolved prior to placement of an item on an agenda; thus the item would not be placed on an agenda. The possibility also exists that the matter may be deferred to a later date to allow time togather information or produce data, etc., or it may also be that a matter of importance toan individual is not of the same magnitude of importance to the general public and thebusiness of the city on behalf of the public, and the matter may be deferred. At all times,the individual retains the right to continue to address the item during the public commentperiod of all meetings.
Finding 2: All cities have a three-minute speaking limit at council meetings forindividuals to bring issues to the attention of city councils on items not on theagenda. In certain cases, this allotted time might not be adequate for the topic bythe public.
Response 2: The City agrees that there is a Public Comment period at Council meetingswhich is typically a 3-minute speaking period. This limit may be extended with a vote ofthe Council. In general, the time limit is sufficient to note the item and referral for follow-up/action, if any. As noted above, the opportunity always exists for a member ofthe public or council to request that an item be placed on a future agenda. Also aspreviously noted from California Government Code Section 54954.2, ...” No action ordiscussion shall be undertaken on any item not appearing on the posted agenda, except that members of a legislative body or its staff may briefly respond to statements made or questions posed by persons exercising their public testimony rights... In addition, on their own initiative or in response to questions posed by the public, a member of a legislative body or its staff may ask a question for clarification, make a briefannouncement, or make a brief report on his or her own activities. Furthermore, a member of a legislative body, or the body itself, subject to the rules of the legislativebody, may provide a reference to staff or other resources for factual information, requeststaff to report back to the body at a subsequent meeting concerning any matter, or take action to direct staff to place a matter of business on a future agenda..”
Finding 3: It is unclear what happens to a public comment topic if follow-up isnecessary.
Response 3: The City cannot speak to the judgment of the statement; however, aspreviously noted, there is a procedure for items noted during Public Comments.California Government Code Section 54954.2 states, in part, “ .... a member of a legislative body, or the body itself, subject to the rules of the legislative body, mayprovide a reference to staff or other resources for factual information, request staff toreport back to the body at a subsequent meeting concerning any matter, or take action todirect staff to place a matter of business on a future agenda..” As noted elsewhere in thisletter, any member of the public may request an item be placed on a future agenda. Citycouncil members, as a general rule, refer matters presented by the public during the irrespective agency’s public or oral comment period to the City Manager or City Administrator for response at a later time. The item may or may not be of personalinterest to the individual as opposed to the general public. The city council or anymember of the city council may also request the item be placed on a future agendaconsistent with California Government Code Section 54954.2. It is possible that a matter may be resolved prior to placement of an item on an agenda; thus the item would not beplaced on an agenda. The possibility also exists that the matter may be deferred to a later date to allow time to gather information or produce data, etc., or it may also be that amatter of importance to an individual is not of the same magnitude of importance to thegeneral public and the business of the city on behalf of the public, and the matter may bedeferred. At all times, the individual retains the right to continue to address the itemduring the public comment period of all meetings.
Finding 4: It is also unclear what happens to a public comment topic if follow-up is necessary.
Response 4: The City cannot speak to the judgment of the statement; however, as noted throughout this letter, City council members, as a general rule, refer matters presented bythe public during their respective agency’s public or oral comment period to the City Manager or City Administrator for response at a later time. Any member of the public, orthe city council or any member of the city council may request the item be placed on afuture agenda consistent with California Government Code Section 54954.2. The item may or may not be of personal interest to the individual as opposed to the general public.It is possible that a matter may be resolved prior to placement of an item on an agenda;thus the item would not be placed on an agenda. The possibility also exists that thematter may be deferred to a later date to allow time to gather information or produce data,etc., or it may also be that a matter of importance to an individual is not of the samemagnitude of importance to the general public and the business of the city on behalf ofthe public, and the matter may be deferred. At all times, the individual retains the right tocontinue to address the item during the public comment period of all meetings.
Finding 5: Cities do not record three-minute public comment topics in the recording secretary’s minutes. Other than a videotaped record (if taping occurs), theregenerally is no written public record of the topic or any commitment to follow-up bycity administrators.
Response 5: The City of Carmel generally agrees with the finding with respect to recording in the secretary’s minutes in this city. Please note that although an item may beof importance to an individual, it may or may not be of importance to the public within the context of the purpose of government doing the public’s business in public. At alltimes, however, an individual retains the right to address an item in public during thepublic comment period of all meetings. City council members, as a general rule, refermatters presented by the public during their respective agency’s public or oral commentperiod to the City Manager or City Administrator for response at a later time. Anymember of the public, or the city council or any member of the city council may requestthe item be placed on a future agenda consistent with California Government CodeSection 54954.2.
Finding 6: All cities have a published procedure and a form for the public to place items on city council agendas. It is understood that, in the interests of time andefficiency, city councils cannot immediately schedule every topic for discussion. Thesetting of agendas is critical in determining what and when issues are discussed.
Response 6: The City agrees with this Finding.
Finding 7: Over-control of this process by mayors is not in the public interest.
Response 7: The City generally agrees with this Finding; however, it is important to note that the purpose of public meetings is to do the business of the city and the public, in public. As referenced throughout this letter, not all items raised may require or necessitate the same level of importance and urgency when put in the context ofindividual interest and general public interest. Mayors have only one vote on matters coming before the City Council, however, it is the duty and responsibility of the Mayor, generally in concert with the vice mayor, city manager or city administrator and the cityclerk, to set the city or agency’s agenda. In that regard, items requested for placement on an agenda by council members or members of the public should be considered when setting the agenda, but need not be immediately placed on an agenda and could be deferred. The purpose of doing the public’s business in public is to assure that decisions being made by an elected or appointed body are visible to the public. It is possible thatany person may feel that his/her concern is important and should be addressed in a public meeting. The opportunity to express that interest/concern is provided during a publiccomment period. As previously noted, the item may be referred to staff for follow-up, it may be specifically placed on an agenda, or it may be deferred. At all times, the individual retains the right to continue to address the item during the public commentperiod of all meetings.
GRAND JURY RECOMMENDATIONS: The Grand Jury has made 5 Recommendations with respect to its study. The City is required to respond to the Recommendations to indicate whether the Recommendation has been implemented, has not been implemented, requires further analysis, or will not be implemented.
Recommendation 1: The public should be allowed to register topics and have themincluded on council agendas for discussion in the Public Comment period. Thepresentation of these topics should still be limited to reasonable times limits set bythe cities.
Response 1: The Recommendation is generally implemented. The public at all times retains the right to address any item of interest/concern during the Public Comment period of meetings of a legislative body. To the extent that the public wishes to addresstheir item(s) during the Public Comment period, the topic(s) is/are included in the sessionof the legislative body. Separate advance listing of an item of interest on the agendaduring Public Comment is not considered feasible and warranted. As previously noted inthis letter, the purpose of doing the public’s business in public is to assure that decisions being made by an elected or appointed body are visible to the public. It is possible thatany person may feel that his/her concern is important and should be addressed in a publicmeeting. The opportunity to express that interest/concern is provided during a publiccomment period. Also as previously noted, the item may be referred to staff for followup,it may be specifically placed on an agenda, or it may be deferred. At all times, the individual retains the right to continue to address the item during the public commentperiod of all meetings. Advance listing would be required prior to posting a meeting agenda, as required by law. Such advance listing could be considered to have a chilling affect on persons wishing to comment, and could become infeasible, overly cumbersome and time consuming for both the public and staff. California Government Code provides opportunity for any member of the public to present an item under Public Comment.Discussion of the item presented may or may not be needed or appropriate. The law is clear that items not listed on an agenda cannot be discussed or added without specific findings and procedure. Items may be received, referred for additional information orfollow-up from staff, or can at any time be requested to be placed on a future agenda bythe public or a council member.
Recommendation 2: Discussion topics should be recorded in council minutes so as to provide a written and time-stamped record of such discussion.
Response 2: The Recommendation is generally already implemented. Minutes of meetings by public agencies and districts are maintained. Minutes typically take the form of “action minutes” as compared to detailed discussion minutes. Action minutes assure recording of any action taken on an item that is noted on an agenda. Per the city’s existing policy, all audio and video meeting records are retained for a minimum of 10 years. As noted above, the California Public Records Act requires only a minimum 30-day retention period.
Recommendation 3: Within a reasonable time period, the topic should be assigned, if follow-up or resolution is required, to a city council person as a contact point torepresent the citizen’s interest and work with city staff to attain an appropriate resolution.
Response 3: The Recommendation is generally already implemented. Please refer to information provided earlier in this response letter regarding the ability and roles of council and staff members as well as action typically taken in referral of matters noted by the public. Council members set policy. A council member is one member of alegislative body and has no authority except as authorized by the body as a whole. The City Manager is the person charged with implementation of policy and the administration of the city. Follow-up to items raised by the public or council is done by staff on behalfof the Council as a whole. The purpose of doing the public’s business in public is to assure that decisions being made by an elected or appointed body are visible to the public. It is possible that any person may feel that his/her concern is important and shouldbe addressed in a public meeting. That same person or any other person may bedissatisfied or disappointed in an action or feel his/her concerns have not been resolvedon the matter of interest to that individual. This should not mean that the topic must berepeatedly brought to the council on an agenda nor repeatedly addressed in subsequent meetings. The opportunity to express that interest/concern is provided during a publiccomment period. As previously noted, the item may be referred to staff for follow-up, it may be specifically placed on an agenda, or it may be deferred. At all times, the individual retains the right to continue to address the item during the public comment period of all meetings.
Recommendation 4: A written public record of unresolved items, the status of the discussion topic, and responsible city council person should be provided.
Response 4: The Recommendation will not be implemented because it is not warrantedand reasonable. Please refer to information previously provided in this response letterregarding council members and staff members and actions typically taken in referral ofmatters noted by the public. Please also refer to Response 3 above.
Recommendation 5: The procedures and forms to be used by the public to place items on city agendas should be made available at council meetings.
Response 5: This Recommendation is implemented. Please refer to information noted in this letter regarding the process used with respect to items noted by the public. We are confused as to the purpose of the Recommendation given the Grand Jury’s Finding # 6 which states: “All cities have a published procedure and a form for the public to placeitems on city council agendas...”
On behalf of the City Council and community of the City of Carmel-by-the-Sea, thank you for the time taken by the 2005 Grand Jury members to review and comment on procedures used by jurisdictions in Monterey County, including the City of Carmel-by-the-Sea, with respect to open government.
Sincerely,
Sue McCloud, Mayor data/SF/Grand Jury/Grand Jury 2005 report.doc
c: The Honorable Stephen A. Sillman 2005 Presiding Judge of the Superior CourtCounty of Monterey240 Church Street, North Wing, Room 318Salinas, CA 93901
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