ABSTRACT: Complaints and allegations against the Mayor of Del Rey Oaks, the City of Pacific Grove and the City Administrator, Mayor and City Council of the City of Carmel-by-the-Sea and Responses to the Complaints and Allegations are contrasted and compared. A direct comparison is made between the complaints by twenty-seven Del Rey Oaks staff members and volunteers in their signed two-page "vote of no confidence" against City of Del Rey Oaks Mayor Joseph P. Russell and complaints by residents and city employees against Carmel-by-the-Sea Mayor Sue McCloud, with COMMENTS. Finally, a QUESTION is asked regarding former Carmel-by-the-Sea employees, City Administrator Rich Guillen and Mayor Sue McCloud.
As reported in The Monterey County Herald (Del Rey Oaks workers slap Mayor Russell with list of complaints, LARRY PARSONS Herald Staff Writer, 07/30/2009), twenty-seven staff members and volunteers in the City of Del Rey Oaks signed a two-page "vote of no confidence" against Mayor Joseph P. Russell and read it at the Tuesday, 28 July 2009 City Council meeting. The reasons cited for the “vote of no confidence” include, as follows: "controlling and manipulating City Council agenda items, manipulating and controlling the budget, and manipulating and controlling the Office of the City Attorney;" "micro-managing and interfering with the daily operations of the City of Del Rey Oaks;" "sending inappropriate e-mail to City Staff, Elected Officials and Consultants retained by the City;" "circumventing the City's City Manager form of government when he feels that it is appropriate to his personal agenda or personal needs;" "does not believe in open and participatory government;" "actions have cost the City thousands of dollars in legal fees;" "authorized the expenditures of thousands of dollars to the City Attorney's Office and City Auditor without the prior consent of the City Council;" "uses harassment and intimidation against Del Rey Oaks Staff as well as Elected and Appointed Officials, creating a hostile and confrontational work environment;" "behavior has placed the City, and as a result the city's taxpayers in a position to face potential civil litigation based on the Mayor's actions;" "placing his personal agenda before that of the residents of the City of Del Rey Oaks;" "does not effectively answer questions posed to him by members of the public;" "refuses to facilitate team-building workshops between City Staff and the City Council which provide staff with clearly understood goals and objectives of their respective governing bodies;" "violates the Code of Conduct Resolution passed by the Del Rey Oaks City Council;" and "created an environment where it is now essential that City Staff create employee associations and collective bargaining groups so that our voices can be heard without the fear of retaliation." Furthermore, it asserts that it is “widely known that Elected Officials, staff members, and others have each been the victim of the Mayor's behavior.”
City of Del Rey Oaks Responses to Complaints:
• Vice Mayor Jerry Edelen stated that “the City Council will have to take some kind of action in response to the employee complaints.”
"We are going to have to solve this issue, once and for all," Edelen stated.
• Mayor Joseph P. Russell stated “he wants to have a public council workshop that would air all the grievances and identify possible solutions.”
"Light is the best disinfectant," Russell stated.
In 2007, in the City of Pacific Grove, a Pacific Grove police officer claimed discrimination, harassment and retaliation.
City of Pacific Grove Responses to Complaints:
• City Manager Jim Colangelo hired an attorney to conduct an investigation into the police officer’s claims.
“I want to get the facts,” “I want to know if these allegations are true. If they are true, there will be consequences for the people involved. We don’t tolerate this type of behavior,” Colangelo stated.
• Mayor Dan Cort stated the City “won’t tolerate discrimination." “I can tell you that the City of Pacific Grove does not condone discrimination or harassment based on one’s race, gender, religion, or sexual orientation.”
In stark contrast, the City of Carmel-by-the-Sea, when notified in writing by Human Resources Manager Jane Miller’s attorney of her complaints regarding employment discrimination, sexual harassment and retaliation in the workplace at City Hall over many years in May 2008, allegedly failed in conduct a thorough and independent investigation and implement appropriate actions.
City of Carmel-by-the-Sea Response to Complaint/Lawsuit:
• Since the filing of Jane Miller’s lawsuit against the City alleging sex-based discrimination, age-based discrimination, sexual harassment and retaliation in the workplace in June 2009, the only public statement from the City has been Mayor Sue McCloud’s statement to Squid Fry, “You’re making a lot out of nothing, and I’m not gonna say anything more to you on this,” and then hung up.
Beyond Mayor Sue McCloud’s unresponsive statement in the face of serious allegations of illegal and unethical conduct, it is worth comparing complaints by staff members and volunteers in their two-page “vote of no confidence” against Del Rey Oaks Mayor Joseph Russell and complaints by residents and City employees against Mayor Sue McCloud, as follows:
• “Mayor Russell has fractured the Del Rey Oaks City Council by controlling and manipulating City Council agenda items, manipulating and controlling the budget, and manipulating and controlling the Office of the City Attorney, who the Mayor has a 30+ year personal and professional relationship with.”
COMMENT: Ditto. Complaints by Carmel-by-the-Sea employees and City Council Members years ago similarly complained of Mayor Sue McCloud controlling and manipulating agenda items, et cetera, especially with regard to not being able to place certain agenda items on a City Council Agenda.
• “Mayor Russell micro-manages and interferes with the daily operations of the City of Del Rey Oaks.”
COMMENT: Ditto. Complaints by City appointees and City employees similarly accused Mayor Sue McCloud of micro-managing city affairs and interfering with the daily operation of the City, including the Community Planning & Building Department.
• "Mayor Russell sends inappropriate e-mail to City Staff, Elected Officials and Consultants retained by the City."
COMMENT: It would not be surprising to learn that Mayor Sue McCloud or an employee acting at her behest contacted the Economic Analysis Consultant regarding the timing and receipt of the Economic Analysis on the Flanders Mansion Property, as one example.
• "Mayor Russell circumvents the City's City Manager form of government when he feels that it is appropriate to his personal agenda or personal needs."
COMMENT: Mayor Sue McCloud “governs” according to her personal agenda; as one example, McCloud’s installation of Sunset Cultural Center, Inc. as the non-profit organization to manage the Sunset Center in 2004 without a community consensus as promised by the Interim Executive Director of the Sunset Center.
• “Mayor Russell does not believe in open and participatory government.”
COMMENT: Complaints by residents and Carmel-by-the-Sea employees about the lack of open and transparent government in Carmel-by-the-Sea formed the basis of a 2005 Grand Jury Report on Open Government. One of the Grand Jury’s Findings was that “Over-control of this process by mayors is not in the public interest.” Yet Mayor Sue McCloud persists in over-controlling city government to the extent there is a dearth of open government in Carmel-by-the-Sea; only what Mayor Sue McCloud wants the public to know is known.
• “Mayor Russell actions have cost the City thousands of dollars in legal fees.”
COMMENT: Ditto. Mayor Sue McCloud’s actions regarding the sale of the Flanders Mansion Property in the City’s largest public park, Mission Trail Nature Preserve, has cost Carmel-by-the-Sea taxpayers nearly $400,000 in consultant attorney fees. Moreover, thousands of taxpayer dollars in consultant attorney fees are anticipated for Miller, Jane Kingsley vs. City of Carmel-by-the-Sea.
• “It is widely known that Mayor Russell uses harassment and intimidation against Del Rey Oaks Staff as well as Elected and Appointed Officials, creating a hostile and confrontational work environment.”
COMMENT: Mayor Sue McCloud’s use of harassment and intimidation is well known to her neighbor Susan Page, City appointees and other members of the public. Furthermore, allegations of creating a hostile work environment are made by former City employee Jane Miller in her current lawsuit against Mayor Sue McCloud and the City of Carmel-by-the-Sea.
• “The Mayor's behavior has placed the City, and as a result the city's taxpayers in a position to face potential civil litigation based on the Mayor's actions.”
COMMENT: Former Human Resources Manager Jane Miller filed a civil lawsuit against the City, City Administrator, Mayor, City Council, et al. alleging sex-based discrimination, age-based discrimination, sexual harassment and retaliation in the workplace on June 17, 2009.
• “Mayor Russell does not effectively answer questions posed to him by members of the public. Instead, he relies on and demands that staff, or the City Attorney's Office provide him with cover, and not report to the public that he is the complaining party or the creator of many issues that the City Council and Staff are required to deal with directly.”
COMMENT: Ditto.
• “None of this should come as a surprise to any member of the Del Rey Oaks City Council. It is widely known by Elected Officials, Appointed Officials, consultants and City Staff that Mayor Russell acts in this manner.”
“It is widely known that Elected Officials, staff members, and others have each been the victim of the Mayor's behavior.”
COMMENT: Ditto. None of Mayor Sue McCloud’s conduct should similarly come as a surprise to any member of the Carmel-by-the-Sea City Council.
QUESTION: If Carmel-by-the-Sea’s then Assistant City Administrator Greg D’Ambrosio, Public Works Director Jim Cullem, Community and Cultural Director Brian Donoghue, Library Director Margaret Pelikan, Principal Planner Brian Roseth and Human Resources Manager Jane Miller had similarly informed the public about Mayor Sue McCloud and City Administrator Rich Guillen regarding employment discrimination, intimidation, harassment and threats of retaliation and/or retaliation in the workplace years ago, would Mayor Sue McCloud and City Administrator Rich Guillen still be in power in City Hall today?
Showing posts with label 2005 Monterey County Civil Grand Jury Report. Show all posts
Showing posts with label 2005 Monterey County Civil Grand Jury Report. Show all posts
Thursday, July 30, 2009
Monday, November 17, 2008
A List of “Poor Governance” Examples (2000-2008)
ABSTRACT: A List of “Poor Governance” examples over the last eight years under the mayorship of Sue McCloud is presented; the List is organized with concrete examples arranged in categories. Categories include “Closed Government,” Centralized Government in Mayor and City Administrator, Lack of Timely Public Hearings on Important Public Issues, Closed and Inaccessible Public Buildings & Underutilized Public Assets, Lack of Investment in Critical Infrastructure and Natural Resources/Unimplemented Consultants’ Studies Recommendations, Failure to Timely Fund and Implement General Plan/Coastal Land Use Plan Policies, Imprudent City Finance Policy Involving Reserve Funds & Deferred Maintenance and Abysmal Stewardship of Natural Resources. The List is intended to empower those Carmelites considering running for elective office in the City of Carmel-by-the-Sea in 2010, especially Carmelites willing to articulate a new vision and direction for Carmel-by-the-Sea; a vision about “open government,” investment in infrastructure and natural resources and making our government accountable to Carmelites.
City of Carmel-by-the-Sea “Poor Governance” List
“Closed Government:”
• Per the 2005 Monterey County Civil Grand Jury Final Report on Open Government, the mayor continues to “over-control” the City; as Finding 7 stated, “Over-control of this process by mayors is not in the public interest.”
• Per the 2005 Monterey County Civil Grand Jury Final Report on Open Government, too often public comment queries are not followed up in a routine, clear and regular manner.
• As the Grand Jury Report stated, “Whether or not the public interest is being subverted through any covert process may be immaterial if the public has the perception their interests are not represented and outcomes are predetermined.” Yet still today, the City has failed to recognize and acknowledge “public perception” and therefore has not done anything to address this significant issue.
• Use of Ad Hoc Committees, which are not subject to the Ralph M. Brown Act (Open Meetings Law), to prevent public input into the decision-making process regarding the installation of Sunset Cultural Center, Inc. (SCC) as the non-profit organization to manage the City-owned Sunset Center.
Centralized Government in Mayor and City Administrator:
• Failure of the City to hire a Community Planning and Building Director and Public Works Director has resulted in ineffective and incompetent micromanagement of these departments by the City Administrator and Mayor.
• Failure to use the City’s Local Coastal Program (LCP) as an effective management tool; instead, the City’s LCP is too often exploited as a campaign prop for reelection purposes.
• Overreliance on consultants with no “institutional memory;” under reliance on city employees with “institutional memory.” For example, a staff of full-time city planners could revise and update the City’s General Plan as required more effectively, efficiently and in a less costly manner than consultants.
• City employees with the requisite experience and knowledge fail to respond directly to queries via email; instead, too often the City Administrator intervenes and is unresponsive.
• Overemphasis and overfunding for “economic revitalization,” including marketing and tourist promotion, and Sunset Cultural Center, Inc. (SCC).
• Pursuit of myopic, personal agendas at the expense of what is in the best interests of Carmelites and the City of Carmel-by-the-Sea, as “primarily, a residential City.”
Lack of Timely Public Hearings on Important Public Issues:
• 2007 Citygate Associates Fire Department Consolidation Feasibility Analysis for the Cities of Monterey and Pacific Grove and Carmel; the City has yet to place this critical public safety issue on a City Agenda for a public hearing.
• 2007 Richard McCann’s Forest Theatre, Forest Theater Foundation Pre-Design Study; after completion of the Study, the City delayed a year prior to scheduling a public hearing on a City Council agenda and has yet to communicate to Carmelites a timetable for public hearings regarding the Schematic Design, even though $65,000 has been budgeted for the Schematic Design in Fiscal Year 2008/09.
• Status of the Flanders Mansion, a National Register of Historic Places resource: the City has yet to place Flanders Mansion on a City Agenda since contracting with Denise Duffy & Associates to revise the Environmental Impact Report, funding an Economic Feasibility Study and expending taxpayer dollars for ongoing attorney fees.
Closed and Inaccessible Public Buildings & Underutilized Public Assets:
• Scout House: Formerly a Community Center, the City closed the Scout House years ago and has failed to fund and implement a plan to re-open the Scout House to new and historic users.
• Public Works Building: The City closed the Public Works Building to the public years ago, but maintains offices for the City Forester, et cetera, and has failed to fund and implement a plan to re-open the building to the public.
• Flanders Mansion: After violating State and Municipal laws, contracting with Denise Duffy & Associates to revise the Environmental Impact Report, funding an Economic Feasibility Study and expending taxpayer dollars for ongoing attorney fees, the City has yet to place the Flanders Mansion on a City Agenda for a public hearing.
• Rio Park: The intentions of the City with regard to Rio Park are unknown; it continues to be an underutilized City park.
• Harrison Memorial Library: The City has yet to restore operating hours on Sundays.
Lack of Investment in Critical Infrastructure & Natural Resources/Unimplemented Consultants’ Studies Recommendations:
• 2007 Pavement Management and Truck Impact Fee Study
NICHOLS CONSULTING ENGINEERS, CHTD.:
Unimplemented recommendation for increasing funding for Carmel-by-the-Sea’s streets to at least $660,000/year.
Failure to use the Study to systematically prioritize streets projects based on PCI (pavement condition index) values.
• Barrie D. Coate and Associates’ 2007 Arboricultural Analysis and Advisory Services for the City of Carmel’s Forest:
Failure to establish, fund and implement a long-term program for Carmel’s forest, including an inventory and evaluation of the current forest and, most importantly, an “ongoing, long-term commitment by the city to fund each part of the program.”
Failure to Timely Fund and Implement General Plan/Coastal Land Use Plan Policies:
• Even though the City’s Local Coastal Program (LCP) was certified in 2004 and states that the City must “provide restroom facilities consistent with the volume of people who use the beach and Beach Bluff Pathway,” the City Council only recently approved “design plans only” for a second permanent restroom facility at Scenic Road and Santa Lucia Avenue at the September 9, 2008 City Council meeting.
Imprudent City Finance Policy Involving Reserve Funds & Deferred Maintenance:
•With each successive year, the City has added taxpayer dollars to Reserve Funds while deferred maintenance continues to grow with each successive year. For informational purposes, the City’s estimated 7/1/08 Total Reserve Balance is $10,344,540, of which $5,703,694 (or 55% of the total Reserve Balance) represent reserves NOT based on the Municipal Code, City policy, or trust agreement provisions. Furthermore, while the convention is reserve funds to annual budget of about 15%, the City of Carmel-by-the-Sea has a total reserve balance to total budget of 74% (Fiscal Year 2007/08).
Abysmal Stewardship of Natural Resources:
• Failure to adequately fund the Forest, Parks and Beach Department; including failure to fully fund and implement the Goals, Objectives and Policies of the City’s General Plan/Coastal Land Use Plan, ex. Del Mar and North Dunes Master Plan, Mission Trail Nature Preserve Master Plan, Shoreline Management Plan, et cetera.
City of Carmel-by-the-Sea “Poor Governance” List
“Closed Government:”
• Per the 2005 Monterey County Civil Grand Jury Final Report on Open Government, the mayor continues to “over-control” the City; as Finding 7 stated, “Over-control of this process by mayors is not in the public interest.”
• Per the 2005 Monterey County Civil Grand Jury Final Report on Open Government, too often public comment queries are not followed up in a routine, clear and regular manner.
• As the Grand Jury Report stated, “Whether or not the public interest is being subverted through any covert process may be immaterial if the public has the perception their interests are not represented and outcomes are predetermined.” Yet still today, the City has failed to recognize and acknowledge “public perception” and therefore has not done anything to address this significant issue.
• Use of Ad Hoc Committees, which are not subject to the Ralph M. Brown Act (Open Meetings Law), to prevent public input into the decision-making process regarding the installation of Sunset Cultural Center, Inc. (SCC) as the non-profit organization to manage the City-owned Sunset Center.
Centralized Government in Mayor and City Administrator:
• Failure of the City to hire a Community Planning and Building Director and Public Works Director has resulted in ineffective and incompetent micromanagement of these departments by the City Administrator and Mayor.
• Failure to use the City’s Local Coastal Program (LCP) as an effective management tool; instead, the City’s LCP is too often exploited as a campaign prop for reelection purposes.
• Overreliance on consultants with no “institutional memory;” under reliance on city employees with “institutional memory.” For example, a staff of full-time city planners could revise and update the City’s General Plan as required more effectively, efficiently and in a less costly manner than consultants.
• City employees with the requisite experience and knowledge fail to respond directly to queries via email; instead, too often the City Administrator intervenes and is unresponsive.
• Overemphasis and overfunding for “economic revitalization,” including marketing and tourist promotion, and Sunset Cultural Center, Inc. (SCC).
• Pursuit of myopic, personal agendas at the expense of what is in the best interests of Carmelites and the City of Carmel-by-the-Sea, as “primarily, a residential City.”
Lack of Timely Public Hearings on Important Public Issues:
• 2007 Citygate Associates Fire Department Consolidation Feasibility Analysis for the Cities of Monterey and Pacific Grove and Carmel; the City has yet to place this critical public safety issue on a City Agenda for a public hearing.
• 2007 Richard McCann’s Forest Theatre, Forest Theater Foundation Pre-Design Study; after completion of the Study, the City delayed a year prior to scheduling a public hearing on a City Council agenda and has yet to communicate to Carmelites a timetable for public hearings regarding the Schematic Design, even though $65,000 has been budgeted for the Schematic Design in Fiscal Year 2008/09.
• Status of the Flanders Mansion, a National Register of Historic Places resource: the City has yet to place Flanders Mansion on a City Agenda since contracting with Denise Duffy & Associates to revise the Environmental Impact Report, funding an Economic Feasibility Study and expending taxpayer dollars for ongoing attorney fees.
Closed and Inaccessible Public Buildings & Underutilized Public Assets:
• Scout House: Formerly a Community Center, the City closed the Scout House years ago and has failed to fund and implement a plan to re-open the Scout House to new and historic users.
• Public Works Building: The City closed the Public Works Building to the public years ago, but maintains offices for the City Forester, et cetera, and has failed to fund and implement a plan to re-open the building to the public.
• Flanders Mansion: After violating State and Municipal laws, contracting with Denise Duffy & Associates to revise the Environmental Impact Report, funding an Economic Feasibility Study and expending taxpayer dollars for ongoing attorney fees, the City has yet to place the Flanders Mansion on a City Agenda for a public hearing.
• Rio Park: The intentions of the City with regard to Rio Park are unknown; it continues to be an underutilized City park.
• Harrison Memorial Library: The City has yet to restore operating hours on Sundays.
Lack of Investment in Critical Infrastructure & Natural Resources/Unimplemented Consultants’ Studies Recommendations:
• 2007 Pavement Management and Truck Impact Fee Study
NICHOLS CONSULTING ENGINEERS, CHTD.:
Unimplemented recommendation for increasing funding for Carmel-by-the-Sea’s streets to at least $660,000/year.
Failure to use the Study to systematically prioritize streets projects based on PCI (pavement condition index) values.
• Barrie D. Coate and Associates’ 2007 Arboricultural Analysis and Advisory Services for the City of Carmel’s Forest:
Failure to establish, fund and implement a long-term program for Carmel’s forest, including an inventory and evaluation of the current forest and, most importantly, an “ongoing, long-term commitment by the city to fund each part of the program.”
Failure to Timely Fund and Implement General Plan/Coastal Land Use Plan Policies:
• Even though the City’s Local Coastal Program (LCP) was certified in 2004 and states that the City must “provide restroom facilities consistent with the volume of people who use the beach and Beach Bluff Pathway,” the City Council only recently approved “design plans only” for a second permanent restroom facility at Scenic Road and Santa Lucia Avenue at the September 9, 2008 City Council meeting.
Imprudent City Finance Policy Involving Reserve Funds & Deferred Maintenance:
•With each successive year, the City has added taxpayer dollars to Reserve Funds while deferred maintenance continues to grow with each successive year. For informational purposes, the City’s estimated 7/1/08 Total Reserve Balance is $10,344,540, of which $5,703,694 (or 55% of the total Reserve Balance) represent reserves NOT based on the Municipal Code, City policy, or trust agreement provisions. Furthermore, while the convention is reserve funds to annual budget of about 15%, the City of Carmel-by-the-Sea has a total reserve balance to total budget of 74% (Fiscal Year 2007/08).
Abysmal Stewardship of Natural Resources:
• Failure to adequately fund the Forest, Parks and Beach Department; including failure to fully fund and implement the Goals, Objectives and Policies of the City’s General Plan/Coastal Land Use Plan, ex. Del Mar and North Dunes Master Plan, Mission Trail Nature Preserve Master Plan, Shoreline Management Plan, et cetera.
Wednesday, April 30, 2008
Dennis Wolfe: "if you want to play political games with the security of your citizens then you...must be held severably and individually accountable"
ABSTRACT: At the Special City Council Meeting on April 3, 2008, during Appearances, Dennis Wolfe of “Citizens for Ethical Leadership in Government” commented on behalf of “local citizens” regarding Carmel-by-the-Sea's fire protection services. “Citizens for Ethical Leadership in Government” finds and exposes "situations where local governments violate the spirit of the Brown Act and our State’s Open Meeting Laws.” His comments are transcribed. REFERENCES, including summaries of Wolfe v. City of Fremont (144 C.A.4th 533), are presented.
At the Special City Council Meeting on April 3, 2008, during Appearances, Dennis Wolfe of “Citizens for Ethical Leadership in Government” made the following remarks:
“My name is Dennis Wolfe. I live in Fremont...and I have a state-wide Political Action Committee “Citizens for Ethical Leadership in Government.” We find and expose situations where local governments violate the spirit of the Brown Act and our State’s Open Meeting Laws. The clerk has material for you regarding my monumental recent state-wide precedent-setting decision regarding the Brown Act upheld in the State Supreme Court last year.”
“Right now, I would like to focus on the matter at hand regarding the fire safety. At the request of local citizens, I have been reviewing your actions, or should I say lack of action, regarding the delivery of adequate fire protection services for Carmel. It’s an apparent sleight-of-hand that seriously impacts the safety of all who live or do business here. And unfortunately, for you, as you are hearing from at least two people here, and probably hear from more voters are becoming very aware, that something is not right with respect to what you are doing. Carmel does not have adequate fire protection services and the responsibility for that rests squarely on your shoulders. Are you afraid to tell the citizens right before reelection that the cost of protecting the city has gone up and that could mean higher taxes? Well, no worries, I just did it for you. No one minds paying more if they’re receiving value for their dollars. Hidden agendas have unintended consequences, by continuing to run away from the reason you were elected and that is, one of those reasons is to ensure Carmel has adequate fire services. I guarantee that casualty insurance carriers are going to find out about it. I know. I’m a licensed casualty broker and have been in this business 32 years. They are going to seize upon your stall tactics and instantly recognize the real increase of the risk created by you. They’re either going to redline Carmel, their going to raise premiums so high that property owners are going to scream bloody murder or they’re simply going to cancel coverage. Three options. And that’s going to cost citizens a lot more than a justifiable tax increase if you need one. So one day if Carmel were to go up like a chimney because of inadequate fire protection services, you are going to bare a large part of the blame. How will you respond to the citizens in the days after a fire like the disaster in neighboring Pebble Beach? Did you know how close Carmel came to being wiped out back then? I do. I guarantee the Fire Department here knows. Ignore the risk and any sharp attorney is going to take you to court over the perceived liability that you bare. Suddenly, personal political agendas will not seem worth the prize on that day. Therefore, I urge all Carmel citizens to put you on written notice through their lawyers, if you want to play political games with the security of your citizens, then you should and must be held severably and individually accountable, you cannot operate with impunity, there is a prize to pay for assuming risk.”
REFERENCES:
• City Council Members’ Reaching Consensus In Non-Public Discussions, Prior To Public Meeting, Violates Brown Act
Wolfe v. City of Fremont (2006 WL 3072602, Cal.App. 1 Dist., Oct. 31, 2006)
• Brown Act Forbids Private Consensus-Building by City Councils
A California appellate court ruled in 2006 that under California's local government open meeting law, the Ralph M. Brown Act, a city manager may not build a city council consensus on a matter of city business by meeting privately with each council member.
In Wolfe v. City of Fremont (144 C.A.4th 533), the court held that a city council cannot reach a "collective concurrence" through individual meetings with the city manager. In this case, a citizen contested Fremont's decision to change its policy concerning police responses to home invasion alarms. The citizen, Dennis Wolfe, contended that at a hearing a councilmember said the "council had been fully briefed on the (security alarm) proposal and had expressed their support." In overturning a trial court's dismissal of Wolfe's Brown Act lawsuit against the city, the appellate court said that this statement, if proven true, was evidence of a Brown Act violation. The city manager (or anyone else) may speak to every member of the council. But the court said a city council cannot lawfully reach a consensus about action to be taken through these private meetings because it denies the public meaningful access to the decision-making process, as required by the Brown Act.
• Court of Appeal Denies Rehearing of Its Decision that Resident Stated a Claim against City for Violation of the Brown Act's Requirement that City Council Meetings be Open and Public
On November 30, 2006, the Court of Appeal denied rehearing of its opinion entered in Wolfe v. City of Fremont. In Wolfe, the Court held that a City resident successfully stated a claim for violation of the sections of the Brown Act (California Government Code section 54950 et seq.) that prohibit the legislative body of a local agency from conducting nonpublic meetings.
Specifically, the Court held that the City Council of Fremont violated the Brown Act by privately discussing a new policy promulgated by the city's police department. The Court further held that the resident's allegations led directly to the inference that the council members had reached a consensus through nonpublic discussions that took place among them, thereby violating the Act.
At the Special City Council Meeting on April 3, 2008, during Appearances, Dennis Wolfe of “Citizens for Ethical Leadership in Government” made the following remarks:
“My name is Dennis Wolfe. I live in Fremont...and I have a state-wide Political Action Committee “Citizens for Ethical Leadership in Government.” We find and expose situations where local governments violate the spirit of the Brown Act and our State’s Open Meeting Laws. The clerk has material for you regarding my monumental recent state-wide precedent-setting decision regarding the Brown Act upheld in the State Supreme Court last year.”
“Right now, I would like to focus on the matter at hand regarding the fire safety. At the request of local citizens, I have been reviewing your actions, or should I say lack of action, regarding the delivery of adequate fire protection services for Carmel. It’s an apparent sleight-of-hand that seriously impacts the safety of all who live or do business here. And unfortunately, for you, as you are hearing from at least two people here, and probably hear from more voters are becoming very aware, that something is not right with respect to what you are doing. Carmel does not have adequate fire protection services and the responsibility for that rests squarely on your shoulders. Are you afraid to tell the citizens right before reelection that the cost of protecting the city has gone up and that could mean higher taxes? Well, no worries, I just did it for you. No one minds paying more if they’re receiving value for their dollars. Hidden agendas have unintended consequences, by continuing to run away from the reason you were elected and that is, one of those reasons is to ensure Carmel has adequate fire services. I guarantee that casualty insurance carriers are going to find out about it. I know. I’m a licensed casualty broker and have been in this business 32 years. They are going to seize upon your stall tactics and instantly recognize the real increase of the risk created by you. They’re either going to redline Carmel, their going to raise premiums so high that property owners are going to scream bloody murder or they’re simply going to cancel coverage. Three options. And that’s going to cost citizens a lot more than a justifiable tax increase if you need one. So one day if Carmel were to go up like a chimney because of inadequate fire protection services, you are going to bare a large part of the blame. How will you respond to the citizens in the days after a fire like the disaster in neighboring Pebble Beach? Did you know how close Carmel came to being wiped out back then? I do. I guarantee the Fire Department here knows. Ignore the risk and any sharp attorney is going to take you to court over the perceived liability that you bare. Suddenly, personal political agendas will not seem worth the prize on that day. Therefore, I urge all Carmel citizens to put you on written notice through their lawyers, if you want to play political games with the security of your citizens, then you should and must be held severably and individually accountable, you cannot operate with impunity, there is a prize to pay for assuming risk.”
REFERENCES:
• City Council Members’ Reaching Consensus In Non-Public Discussions, Prior To Public Meeting, Violates Brown Act
Wolfe v. City of Fremont (2006 WL 3072602, Cal.App. 1 Dist., Oct. 31, 2006)
• Brown Act Forbids Private Consensus-Building by City Councils
A California appellate court ruled in 2006 that under California's local government open meeting law, the Ralph M. Brown Act, a city manager may not build a city council consensus on a matter of city business by meeting privately with each council member.
In Wolfe v. City of Fremont (144 C.A.4th 533), the court held that a city council cannot reach a "collective concurrence" through individual meetings with the city manager. In this case, a citizen contested Fremont's decision to change its policy concerning police responses to home invasion alarms. The citizen, Dennis Wolfe, contended that at a hearing a councilmember said the "council had been fully briefed on the (security alarm) proposal and had expressed their support." In overturning a trial court's dismissal of Wolfe's Brown Act lawsuit against the city, the appellate court said that this statement, if proven true, was evidence of a Brown Act violation. The city manager (or anyone else) may speak to every member of the council. But the court said a city council cannot lawfully reach a consensus about action to be taken through these private meetings because it denies the public meaningful access to the decision-making process, as required by the Brown Act.
• Court of Appeal Denies Rehearing of Its Decision that Resident Stated a Claim against City for Violation of the Brown Act's Requirement that City Council Meetings be Open and Public
On November 30, 2006, the Court of Appeal denied rehearing of its opinion entered in Wolfe v. City of Fremont. In Wolfe, the Court held that a City resident successfully stated a claim for violation of the sections of the Brown Act (California Government Code section 54950 et seq.) that prohibit the legislative body of a local agency from conducting nonpublic meetings.
Specifically, the Court held that the City Council of Fremont violated the Brown Act by privately discussing a new policy promulgated by the city's police department. The Court further held that the resident's allegations led directly to the inference that the council members had reached a consensus through nonpublic discussions that took place among them, thereby violating the Act.
Monday, January 21, 2008
Open Government, as defined by the 2005 Monterey County Civil Grand Jury, Remains Elusive in Carmel-by-the-Sea
ABSTRACT: With the recent unanimous vote by the City Council to webcast City Council meetings, in addition to Mayor Sue McCloud’s enumerated “open communication” items, the definition of Open Government, as defined by the 2005 Monterey County Civil Grand Jury, is revisited. COMMENTS are made regarding open government, the Civil Grand Jury’s Report on Open Government and the Ralph M Brown Act.
Definition of Open Government: “Open government, in this context, means the ability of the public to submit items to their elected representatives to be agendized for discussion at future city council meetings and to have confidence these items will be responded to in a timely manner and with accountability as to follow-up and resolution.”
“...we concluded that the procedures where currently published 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….Whether or not the public interest is being subverted through any covert process may be immaterial if the public has the perception their interests are not represented and outcomes are predetermined.”
(Source: 2005 MONTEREY COUNTY CIVIL GRAND JURY FINAL REPORT, OPENGOVERNMENT SUMMARY http://www.monterey.courts.ca.gov/Grand_Jury_Report_2005/Civil_Grand_Jury_2005_Final_Report.pdf)
Therefore, in the context of the 2005 Civil Grand Jury Report on Open Government, where “the focus was on the City of Carmel-by-the-Sea,” open government includes, but is not limited to the following, as enumerated on Mayor Sue McCloud’s web site:
• Televised Council meetings (KMST Ch 26 on the Sunday following the Council meeting from 8 a.m. to noon).
• Added seating in the City Hall lobby with closed circuit TV for overflow audiences.
• Placed boxes at the Post Office for agendas of all Council, Commissions, Boards and Committee meetings.
• Established a City website http://www.ci.carmel.ca.us.
• Published a City Newsletter (two issues to date) for all homeowners as a means to provide facts on more complex issues: e.g. the budget.
• Prepared, delivered and mailed to all residents in 2005 the second annual Report on Achieving Council Objectives.
• Meet annually with some 40 commercial property owners in an effort to open regular communication with them on issues of mutual concern.
• Used first names at Council meetings to make our sessions seem more informal and the Council more approachable.
• Posted all correspondence which I receive and send on a Council read board for Council to review.
And recently, the City Council’s unanimously vote at their January 8, 2008 meeting to webcast City Council meetings.
COMMENTS:
• Apparently, Mayor Sue McCloud thinks all of the above enumerated items represent the sum and substance of open government. They do not, as the Civil Grand Jury’s Report on Open Government stipulates. In fact, none of the enumerated items address the deficiencies of Carmel-by-the-Sea’s government; namely “over-control” by the mayor resulting in the public interest being subverted through covert processes and predetermined outcomes. Numerous examples abound, including the selection of Karen Sharp as City Council Member; failures to inform the public at City Council meetings of the mayor’s role in the hiring of a consultant for advise on Robert Leidig’s Carmel Convalescent Hospital Redevelopment project, the hiring of an appellate attorney to advise on an appeal of the Flanders Foundation v. City of Carmel-by-the-Sea lawsuit and the intention to file for an exception to the Ocean Plan for our storm water discharges into Carmel Bay, an Area of Biological Significance; the contracting and /or paying of consultants prior to items being placed on City Council Agendas; failures to respond and/or satisfactorily respond to residents written correspondences; et cetera.
• Moreover, it appears that Mayor Sue McCloud does not have a grasp of the spirit and intent of the Ralph M Brown Act, as follows:
“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.”
• Lastly, openness in government is essential to ensuring that government is operating on behalf of its citizens. Too often, especially in the City of Carmel-by-the-Sea, elected officials and city employees forget or fail to understand that the information held by the government is owned by the public and only held in trust for them by the government. Moreover, without openness and the perception of openness, there is no trust and efficient government; there are no promotion of rights, fairness and the rule of law.
Definition of Open Government: “Open government, in this context, means the ability of the public to submit items to their elected representatives to be agendized for discussion at future city council meetings and to have confidence these items will be responded to in a timely manner and with accountability as to follow-up and resolution.”
“...we concluded that the procedures where currently published 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….Whether or not the public interest is being subverted through any covert process may be immaterial if the public has the perception their interests are not represented and outcomes are predetermined.”
(Source: 2005 MONTEREY COUNTY CIVIL GRAND JURY FINAL REPORT, OPENGOVERNMENT SUMMARY http://www.monterey.courts.ca.gov/Grand_Jury_Report_2005/Civil_Grand_Jury_2005_Final_Report.pdf)
Therefore, in the context of the 2005 Civil Grand Jury Report on Open Government, where “the focus was on the City of Carmel-by-the-Sea,” open government includes, but is not limited to the following, as enumerated on Mayor Sue McCloud’s web site:
• Televised Council meetings (KMST Ch 26 on the Sunday following the Council meeting from 8 a.m. to noon).
• Added seating in the City Hall lobby with closed circuit TV for overflow audiences.
• Placed boxes at the Post Office for agendas of all Council, Commissions, Boards and Committee meetings.
• Established a City website http://www.ci.carmel.ca.us.
• Published a City Newsletter (two issues to date) for all homeowners as a means to provide facts on more complex issues: e.g. the budget.
• Prepared, delivered and mailed to all residents in 2005 the second annual Report on Achieving Council Objectives.
• Meet annually with some 40 commercial property owners in an effort to open regular communication with them on issues of mutual concern.
• Used first names at Council meetings to make our sessions seem more informal and the Council more approachable.
• Posted all correspondence which I receive and send on a Council read board for Council to review.
And recently, the City Council’s unanimously vote at their January 8, 2008 meeting to webcast City Council meetings.
COMMENTS:
• Apparently, Mayor Sue McCloud thinks all of the above enumerated items represent the sum and substance of open government. They do not, as the Civil Grand Jury’s Report on Open Government stipulates. In fact, none of the enumerated items address the deficiencies of Carmel-by-the-Sea’s government; namely “over-control” by the mayor resulting in the public interest being subverted through covert processes and predetermined outcomes. Numerous examples abound, including the selection of Karen Sharp as City Council Member; failures to inform the public at City Council meetings of the mayor’s role in the hiring of a consultant for advise on Robert Leidig’s Carmel Convalescent Hospital Redevelopment project, the hiring of an appellate attorney to advise on an appeal of the Flanders Foundation v. City of Carmel-by-the-Sea lawsuit and the intention to file for an exception to the Ocean Plan for our storm water discharges into Carmel Bay, an Area of Biological Significance; the contracting and /or paying of consultants prior to items being placed on City Council Agendas; failures to respond and/or satisfactorily respond to residents written correspondences; et cetera.
• Moreover, it appears that Mayor Sue McCloud does not have a grasp of the spirit and intent of the Ralph M Brown Act, as follows:
“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.”
• Lastly, openness in government is essential to ensuring that government is operating on behalf of its citizens. Too often, especially in the City of Carmel-by-the-Sea, elected officials and city employees forget or fail to understand that the information held by the government is owned by the public and only held in trust for them by the government. Moreover, without openness and the perception of openness, there is no trust and efficient government; there are no promotion of rights, fairness and the rule of law.
Sunday, April 09, 2006
4 April 2006 City Council Meeting: Remarks on "OPEN GOVERNMENT"
During the Appearances Section of the 4 April 2006 Carmel-by-the-Sea City Council meeting, David Dilworth, Executive Director of Helping Our Peninsula's Environment (HOPE), stated:
"Good Evening. My name is David Dilworth, Executive Director of Helping Our Peninsula's Environment...We protect our environment and democracy of our Mounterey Peninsula.
We appreciate the discussion you had on the agenda item on Open Government at the last meeting that was prompted by the Grand Jury Report which criticized this Council and this Mayor. However, your draft responses did not reflect reality or the judgment of most people. That's up for debate. But there's one thing that's not up for debate. And first of all I'm going to bring this to your attention. The Education Code allows any member of the public to put an item on a school board agenda. This is the Section:
Ed. Code Sec. 35145.5
It is the intent of the Legislature that members of the public be able to place matters directly related to school district business on the agenda of school district governing board meetings.
That's exactly what the Grand Jury was asking you to do for the City Council, which you declined.
Here's the Finding related to it.
Grand Jury Finding 6:
All cities have a published procedure and a form for the public to place items on city council agendas.
The city's response was, 'The City agrees with this Finding.' That's bewildering because the Grand Jury was mistaken. Carmel has no procedure or form for a citizen to place an item on the agenda. Carmel has no law or ordinance enabling that. So that response to the Superior Court of Monterey County was patently false. I suggest you revise your remarks that were sent to the Grand Jury because we're certainly going to point it out to them in our response.
Now, I'm going to bring a little bit of irony or actually illustrate how uncooperative this City and this Council are to allowing public input. First of all, on this exact item for last month, there was no paper copy available for the public to read what you were discussing. It was available on your web site, but it was 9 megabytes. On a slow dial-up, which I have, it takes about an hour to get that document. That's unacceptable. That's hostility to the public. It may be an oversight, but we think that needs to be straightened out. Then, when we asked to have that item pulled from the consent agenda, it was put at the end of the meeting, hours after we were here. We had two other meetings to go to---Monterey City Council meeting and one of our own monthly meetings. So we couldn't even attend those.
Well, we do have an alternative. HOPE conducted a series of 20 questions for all the candidates. Here are the answers we got from the candidates running for council. We did not get any responses from Paula Hazdovac, Gerard Rose or Mayor McCloud. But we did get responses from Ryan and the gentleman, Bill Winfield.
The last bit of irony we wanted to bring to your attention was we asked this Council to put open government on your agenda. We asked you in February. We await seeing that occur.
Thank you."
Note: Links to HOPE's Open Meetings Violation Letters to Monterey County District Attorney regarding Mayor McCloud
http://www.1hope.org/mccloud.htm (Re: Carmel-by-the-Sea Council Violates Open Meeting Law (Brown Act) FIVE times)
http://www.1hope.org/mccloud2.htm (Re: Carmel Mayor McCloud Violates Open Meeting Law Again)
"Good Evening. My name is David Dilworth, Executive Director of Helping Our Peninsula's Environment...We protect our environment and democracy of our Mounterey Peninsula.
We appreciate the discussion you had on the agenda item on Open Government at the last meeting that was prompted by the Grand Jury Report which criticized this Council and this Mayor. However, your draft responses did not reflect reality or the judgment of most people. That's up for debate. But there's one thing that's not up for debate. And first of all I'm going to bring this to your attention. The Education Code allows any member of the public to put an item on a school board agenda. This is the Section:
Ed. Code Sec. 35145.5
It is the intent of the Legislature that members of the public be able to place matters directly related to school district business on the agenda of school district governing board meetings.
That's exactly what the Grand Jury was asking you to do for the City Council, which you declined.
Here's the Finding related to it.
Grand Jury Finding 6:
All cities have a published procedure and a form for the public to place items on city council agendas.
The city's response was, 'The City agrees with this Finding.' That's bewildering because the Grand Jury was mistaken. Carmel has no procedure or form for a citizen to place an item on the agenda. Carmel has no law or ordinance enabling that. So that response to the Superior Court of Monterey County was patently false. I suggest you revise your remarks that were sent to the Grand Jury because we're certainly going to point it out to them in our response.
Now, I'm going to bring a little bit of irony or actually illustrate how uncooperative this City and this Council are to allowing public input. First of all, on this exact item for last month, there was no paper copy available for the public to read what you were discussing. It was available on your web site, but it was 9 megabytes. On a slow dial-up, which I have, it takes about an hour to get that document. That's unacceptable. That's hostility to the public. It may be an oversight, but we think that needs to be straightened out. Then, when we asked to have that item pulled from the consent agenda, it was put at the end of the meeting, hours after we were here. We had two other meetings to go to---Monterey City Council meeting and one of our own monthly meetings. So we couldn't even attend those.
Well, we do have an alternative. HOPE conducted a series of 20 questions for all the candidates. Here are the answers we got from the candidates running for council. We did not get any responses from Paula Hazdovac, Gerard Rose or Mayor McCloud. But we did get responses from Ryan and the gentleman, Bill Winfield.
The last bit of irony we wanted to bring to your attention was we asked this Council to put open government on your agenda. We asked you in February. We await seeing that occur.
Thank you."
Note: Links to HOPE's Open Meetings Violation Letters to Monterey County District Attorney regarding Mayor McCloud
http://www.1hope.org/mccloud.htm (Re: Carmel-by-the-Sea Council Violates Open Meeting Law (Brown Act) FIVE times)
http://www.1hope.org/mccloud2.htm (Re: Carmel Mayor McCloud Violates Open Meeting Law Again)
Monday, March 27, 2006
A STARTLING JUXTAPOSITION
On Sunday, 26 March 2006, The Monterey County Herald reported that the City of Pacific Grove has scheduled a budget meeting Monday as part of their "desire to create a more open and transparent government." Jim Colangelo, Pacific Grove's City Manager, stated that "the real focus of the meeting will be to get public input;" after his presentation, citizens will "work in groups to develop ideas and present recommendations to city staff..."
The City of Pacific Grove, a city which was not the focus of the 2005 Monterey County Civil Grand Jury, is hosting a "open 'hands-on' residents meeting" with the goal of a more open and transparent government, while Carmel-by-the-Sea, the focus of the Grand Jury, put the City's response to the Grand Jury Report on the Consent Calendar to discourage public comment.
The City of Pacific Grove, a city which was not the focus of the 2005 Monterey County Civil Grand Jury, is hosting a "open 'hands-on' residents meeting" with the goal of a more open and transparent government, while Carmel-by-the-Sea, the focus of the Grand Jury, put the City's response to the Grand Jury Report on the Consent Calendar to discourage public comment.
Tuesday, March 14, 2006
A Grotesque Display of Public Service
Comments after viewing the tape of the City Council's Tuesday, 7 March 2006 City Council meeting on the pulled Consent Calendar item, "Review and approve the response to the 2005 Grand Jury Report and direct staff to submit the response no later than April 3, 2006."
MYTHS PERPETRATED BY THE CITY COUNCIL/CITY ATTORNEY
1. The focus of the 2005 Grand Jury Report on Open Government WAS NOT Carmel-by-the-Sea. (McCloud, Rose).
Rebuttal: In the BACKGROUND section of the Grand Jury Report, the Report states "A number of complaints were received from residents and former employees of the City of Carmel-by-the-Sea...Procedures for all cities were reviewed, but the focus was on the City of Carmel-by-the-Sea." Ergo, all of the complaints were from individuals associated with Carmel-by-the-Sea, NOT Marina, Seaside, Monterey, Pacific Grove, Salinas, Greenfield, King City, etc.
2. Open government is televised meetings and agendas at the Post Office. (McCloud)
Rebuttal: If McCloud, after 30 plus years as a government bureaucrat in the CIA, believes that open government is televised meetings and agendas at the Post Office, then she obviously does not have the intellectual acumen to recognize the ideal of public service, let alone the ability to practice its attendant principles.
3. Individuals who spoke during the public hearing had not read the Grand Jury Report. (Rose)
Rebuttal: If Rose's statement was true, then why is it that the three residents who addressed the City Council during the hearing display vastly more comprehension of the Grand Jury Report than anyone representing the City?
4. The Grand Jury Report should not be considered seriously because it was the product of lay people. (Rose)
Rebuttal: Then why did the City Council Members, City Attorney & City Administrator act so defensively? "The lady (City Council) doth protest too much, methinks."
5. The City already has implemented the Grand Jury's recommendations. (Freeman)
Rebuttal: If this statement was true, one would have to believe that all of the numerous individuals who submitted complaints to the Grand Jury are mentally disturbed.
6. We could always look for ways to improve, but we are already meeting or exceeding all of the legal requirements for open government. (Cunningham)
Rebuttal: And who again are the ones who didn't either read or understand the contents of the Grand Jury Report?
Finally, after the public hearing closed, the City Council Members, City Attorney and City Administrator FAILED to speak directly to the concerns and criticisms of the three residents who spoke. Overall, the City Council's disgraceful performance was an INSULT to the Grand Jury Members and the public!
MYTHS PERPETRATED BY THE CITY COUNCIL/CITY ATTORNEY
1. The focus of the 2005 Grand Jury Report on Open Government WAS NOT Carmel-by-the-Sea. (McCloud, Rose).
Rebuttal: In the BACKGROUND section of the Grand Jury Report, the Report states "A number of complaints were received from residents and former employees of the City of Carmel-by-the-Sea...Procedures for all cities were reviewed, but the focus was on the City of Carmel-by-the-Sea." Ergo, all of the complaints were from individuals associated with Carmel-by-the-Sea, NOT Marina, Seaside, Monterey, Pacific Grove, Salinas, Greenfield, King City, etc.
2. Open government is televised meetings and agendas at the Post Office. (McCloud)
Rebuttal: If McCloud, after 30 plus years as a government bureaucrat in the CIA, believes that open government is televised meetings and agendas at the Post Office, then she obviously does not have the intellectual acumen to recognize the ideal of public service, let alone the ability to practice its attendant principles.
3. Individuals who spoke during the public hearing had not read the Grand Jury Report. (Rose)
Rebuttal: If Rose's statement was true, then why is it that the three residents who addressed the City Council during the hearing display vastly more comprehension of the Grand Jury Report than anyone representing the City?
4. The Grand Jury Report should not be considered seriously because it was the product of lay people. (Rose)
Rebuttal: Then why did the City Council Members, City Attorney & City Administrator act so defensively? "The lady (City Council) doth protest too much, methinks."
5. The City already has implemented the Grand Jury's recommendations. (Freeman)
Rebuttal: If this statement was true, one would have to believe that all of the numerous individuals who submitted complaints to the Grand Jury are mentally disturbed.
6. We could always look for ways to improve, but we are already meeting or exceeding all of the legal requirements for open government. (Cunningham)
Rebuttal: And who again are the ones who didn't either read or understand the contents of the Grand Jury Report?
Finally, after the public hearing closed, the City Council Members, City Attorney and City Administrator FAILED to speak directly to the concerns and criticisms of the three residents who spoke. Overall, the City Council's disgraceful performance was an INSULT to the Grand Jury Members and the public!
Monday, March 13, 2006
CITY'S RESPONSE TO GRAND JURY
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
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
2005 Monterey County Civil Grand Jury Report on Open Government
ABSTRACT: The 2005 Monterey County Civil Grand Jury Report is uploaded. The OPEN GOVERNMENT section is reproduced.
Civil_Grand_Jury_2005_Final_Report
2005 Monterey County Civil Grand Jury Report
OPEN GOVERNMENT
SUMMARY
The Grand Jury investigated the procedures that city governments have in place to support openness in government and have focused on the actual experience the public has as these procedures are administered.
• Open government, in this context, means the ability of the public to submit items to their elected representatives to be agendized for discussion at future city council meetings and to have confidence these items will be responded to in a timely manner and with accountability as to follow-up and resolution.
Through interviews and observations, we concluded that the procedures where currently published 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 recommendations which follow generally go beyond current procedures and focus on changes or modifications that city governments can implement which would create an environment where topics or concerns can be brought forward for open discussion with a higher level of visibility and accountability: in effect, a more open government.
• Whether or not the public interest is being subverted through any covert process may be immaterial if the public has the perception their interests are not represented and outcomes are predetermined.
BACKGROUND
A number of complaints were received from residents and former employees of the City of Carmel-by-the-Sea. These complaints ranged from human resource issues resulting from the organizational downsizing that occurred in 2004 to issues of communications with the residents of Carmel-by-the-Sea and an alleged inaccessibility of elected officials to participate in open debate and timely resolution of issues.
This triggered the impetus for an investigation of how all city governments in Monterey County support an open and participative process. Procedures for all cities were reviewed, but the focus was on the City of Carmel-by-the-Sea.
• The objective was to improve the process as opposed to singling out any city for criticism.
INQUIRY PROCESS
The Grand Jury conducted 11 interviews. Complainants were interviewed to determine if a systemic or wide spread basis existed for such complaints. Additionally, Carmel-by-the-Sea citizens, public officials, city council members and employees were interviewed with the intent to gain a broader understanding of open government and how established procedures were administered.
Procedures for placing items on city council agendas and the process of tracking, responding to and resolving such items once the topic was presented were reviewed for several cities in Monterey County.
City council meetings on the Monterey Peninsula were attended with particular attention paid to how citizens are granted an audience to discuss topics of concern and how those topics were tracked and resolved.
FINDINGS
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.
2. All cities have a three-minute speaking limit at council meetings for individuals to bring issues to the attention of city councils on items not on the agenda. In certain cases, this allotted time might not be adequate for the topic by the public.
3. It is unclear what happens to a public comment topic if follow-up is necessary.
4. It is also unclear who determines if follow-up is justified, or if the topic might be placed on the agenda for future city council consideration.
5. Cities generally do not record three-minute public comment topics in the recording secretary’s minutes. Other than a videotaped record (if recording occurs), there generally is no written public record of the topic or any commitment to follow-up by city administrators.
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 and efficiency, city councils cannot immediately schedule every topic for discussion. The setting of agendas is critical in determining what and when issues are discussed.
7. Over-control of this process by mayors is not in the public interest.
RECOMMENDATIONS
The Brown Act (Government Code Section 54950 et seq.) is the law that requires elected officials to let the public speak. Section 54954 of the Act governs Regular Meetings and includes conditions for scheduling and public notice, but it does not include requirements for scheduling agenda items from the public.
The recommendations which follow generally go beyond current procedures, including the Brown Act, and focus on changes or modifications that city governments can implement which will create an environment where topics or concerns can be brought forward for open discussion with a higher level of visibility and accountability: in effect, a more open government.
1. The public should be allowed to register topics and have them included on council agendas for discussion in the Public Comment period. The presentation of these topics should still be limited to reasonable time limits set by the cities.
2. Discussion topics should be recorded in council minutes so as to provide a written and time-stamped record of such discussion.
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 to represent the citizen’s interest and work with city staff to attain an appropriate resolution.
4. A written public record of unresolved items, the status of the discussion topic, and responsible city council person should be provided.
5. The procedures and forms to be used by the public to place items on city agendas should be made available at council meetings.
REQUESTED RESPONSES
FINDINGS
City Councils of Monterey County
Findings Nos. 1-7
RECOMMENDATIONS
City Councils of Monterey County
Recommendations 1-5
(Source: 2005 MONTEREY COUNTY CIVIL GRAND JURY FINAL REPORT, OPEN GOVERNMENT, pgs. 26 - 28)
Civil_Grand_Jury_2005_Final_Report
2005 Monterey County Civil Grand Jury Report
OPEN GOVERNMENT
SUMMARY
The Grand Jury investigated the procedures that city governments have in place to support openness in government and have focused on the actual experience the public has as these procedures are administered.
• Open government, in this context, means the ability of the public to submit items to their elected representatives to be agendized for discussion at future city council meetings and to have confidence these items will be responded to in a timely manner and with accountability as to follow-up and resolution.
Through interviews and observations, we concluded that the procedures where currently published 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 recommendations which follow generally go beyond current procedures and focus on changes or modifications that city governments can implement which would create an environment where topics or concerns can be brought forward for open discussion with a higher level of visibility and accountability: in effect, a more open government.
• Whether or not the public interest is being subverted through any covert process may be immaterial if the public has the perception their interests are not represented and outcomes are predetermined.
BACKGROUND
A number of complaints were received from residents and former employees of the City of Carmel-by-the-Sea. These complaints ranged from human resource issues resulting from the organizational downsizing that occurred in 2004 to issues of communications with the residents of Carmel-by-the-Sea and an alleged inaccessibility of elected officials to participate in open debate and timely resolution of issues.
This triggered the impetus for an investigation of how all city governments in Monterey County support an open and participative process. Procedures for all cities were reviewed, but the focus was on the City of Carmel-by-the-Sea.
• The objective was to improve the process as opposed to singling out any city for criticism.
INQUIRY PROCESS
The Grand Jury conducted 11 interviews. Complainants were interviewed to determine if a systemic or wide spread basis existed for such complaints. Additionally, Carmel-by-the-Sea citizens, public officials, city council members and employees were interviewed with the intent to gain a broader understanding of open government and how established procedures were administered.
Procedures for placing items on city council agendas and the process of tracking, responding to and resolving such items once the topic was presented were reviewed for several cities in Monterey County.
City council meetings on the Monterey Peninsula were attended with particular attention paid to how citizens are granted an audience to discuss topics of concern and how those topics were tracked and resolved.
FINDINGS
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.
2. All cities have a three-minute speaking limit at council meetings for individuals to bring issues to the attention of city councils on items not on the agenda. In certain cases, this allotted time might not be adequate for the topic by the public.
3. It is unclear what happens to a public comment topic if follow-up is necessary.
4. It is also unclear who determines if follow-up is justified, or if the topic might be placed on the agenda for future city council consideration.
5. Cities generally do not record three-minute public comment topics in the recording secretary’s minutes. Other than a videotaped record (if recording occurs), there generally is no written public record of the topic or any commitment to follow-up by city administrators.
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 and efficiency, city councils cannot immediately schedule every topic for discussion. The setting of agendas is critical in determining what and when issues are discussed.
7. Over-control of this process by mayors is not in the public interest.
RECOMMENDATIONS
The Brown Act (Government Code Section 54950 et seq.) is the law that requires elected officials to let the public speak. Section 54954 of the Act governs Regular Meetings and includes conditions for scheduling and public notice, but it does not include requirements for scheduling agenda items from the public.
The recommendations which follow generally go beyond current procedures, including the Brown Act, and focus on changes or modifications that city governments can implement which will create an environment where topics or concerns can be brought forward for open discussion with a higher level of visibility and accountability: in effect, a more open government.
1. The public should be allowed to register topics and have them included on council agendas for discussion in the Public Comment period. The presentation of these topics should still be limited to reasonable time limits set by the cities.
2. Discussion topics should be recorded in council minutes so as to provide a written and time-stamped record of such discussion.
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 to represent the citizen’s interest and work with city staff to attain an appropriate resolution.
4. A written public record of unresolved items, the status of the discussion topic, and responsible city council person should be provided.
5. The procedures and forms to be used by the public to place items on city agendas should be made available at council meetings.
REQUESTED RESPONSES
FINDINGS
City Councils of Monterey County
Findings Nos. 1-7
RECOMMENDATIONS
City Councils of Monterey County
Recommendations 1-5
(Source: 2005 MONTEREY COUNTY CIVIL GRAND JURY FINAL REPORT, OPEN GOVERNMENT, pgs. 26 - 28)
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