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Home My WebLink About28- City Attorney ...... . . .. ........ ORIGINAL CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: James F. Penman Subject: Discussion and Possible Action on City Attorney Motion that Regular Agenda Briefing Meetings be open to the Public and that Notices of Said Dept: City Attorney Meetings Be Posted in Accordance with the Brown Act. Date: February 22, 2011 Synopsis of Previous Council Action: N/A Recommended motion: That all regular agenda briefing meetings be open to the public and that notices of said meetings be posted pursuant to Government Code § 54950 et seq. 4nature Contact person: James F. Penman Phone: (909) 384-5255 Supporting data attached: Three pages Ward: All FUNDING REQUIREMENTS: Amount: N/A Source: Finance: Council Notes: Z-Z_ Agenda Item No._ � STAFF REPORT Council Meeting Date: February 22, 2011 To: Mayor and Common Council From: James F. Penman, City Attorney Date: February 17, 2011 AGENDA ITEM: 27 At the regular Agenda Briefing meeting held on Wednesday,February 16, 2011 in the MIC room, Council Member Fred Shorett opined that if more than three Council Members could attend a meeting of a Council standing committee (as long as any member in attendance in addition to the three regular members only attended as an observer,) discussion of what occurred at a standing Council committee meeting should be permitted at the regular Agenda Briefings,even ifthe Council Members present at the Agenda Briefing are different members than those who attended the standing committee meeting. Mr. Shorett even offered to call the Attorney General to obtain an opinion as to whether or not that would be permissible pursuant to the Ralph M. Brown Act. It is the opinion of this Office that because the Ralph M. Brown Act, Government Code § 54950 et seq. does permit four or more Council Members to attend a meeting of a standing committee that is public and for which notices are posted pursuant to Government Code § 54952.2 (c) (6), (provided only three attend as participants and any others as observers,) it might be permissible under the Brown Act for four or more Council Members to attend the twice-monthly Agenda Briefing meetings held in the MIC room(we would want to confirm with the Attorney General since the Act only provides for such attendance at"standing committee"meetings,)provided said meetings were open and noticed as required by the Act (authority quoted above.) Only three of the Council members could participate in the discussions however,unless the Agenda Briefings were also called as an additional,regular or special meeting of the Mayor and Common Council. Therefore, if the Agenda Briefings were noticed and open meetings, discussion of what occurred at any standing committee might indeed be permissible. Again,we should confer first with the Attorney General. For a number of years this Office has recommended that all of the Agenda Briefing meetings be opened to the public and that formal notices of such meetings be posted pursuant to the Act. (Please see, attached, a copy of a memorandum from this Office to the Mayor and Common Council dated November 13, 1997.) Because the Brown Act expressly states that"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 be FAagendabriefmtgsstffrpt.02171 l.wpd Staff Report for 2/22/11 Council Meeting Agenda item#27 Page two taken openly and that their deliberations be conducted openly." The Act goes on to state, "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." (California Government Code § 54950, Declaration of public policy.) The language of the Declaration of public policy,both literally and in spirit,appears to refer closely to what occurs at the Agenda Briefing meetings. Many important decisions are made at these meetings which are routinely attended by up to three Council Members,by the Mayor,the City Attorney,the City Clerk,the City Manager,the Mayor's Chief of Staff(who often sits next to the City Manager in the Mayor's absence and speaks for the Mayor)and the various City department heads and often the heads of divisions of City departments. The Agenda Briefings constitute one of the few times that so many of the City's elected representatives and key management officials gather and interact on a twice-monthly basis to discuss and take action on issues impacting policy and the public as well as impacting the various internal domains of City government. Many decisions are regularly made at such meetings, including whether to remove items from the agenda or have the item proceed based on critical information presented during the meeting. Often decisions to proceed or delay are critical in addressing public issues and problems. Additionally, detailed information is brought forward at these Agenda Briefings that is not always heard at the regularly scheduled City Council meetings. This additional information often leads to directions being issued by some of the City officials present to other City officials,those present or later to those absent. Many of these decisions are important and more than a few have direct policy impacts and consequences. In summary, the Agenda Briefing meetings are where many of the decisions on the "people's business" are made. While two other, current Council Members have voiced support for opening these meetings to the public, the Office of the City Attorney is pleased that another Council Member has joined them in taking this position,particularly since all previous efforts by this Office to have the Agenda Briefings opened to the public have previously been rebuffed by other Council Members/Mayors/City Administrators/Managers. Attachments: one FA agendabriefmtgsstfftpt.021711.wpd 0ti8 Alt �A�p 0 o C I T Y O F �oG bernardino '�'bED lPi t O F F I C E O F T H E C I T Y A T T O R N E Y J A M E S F P E N M A N C I T Y A T T O R N E Y To: Mayor and Common Council From: James F. Penman City Attorney Date: November 13,1997 Subject: Regular Agenda Briefing Meetings With the Ralph M. Brown Act amendment permitting the majority of the members of a legislative body to attend open and noticed meetings of a standing committee of that body(provided that those members of the legislative body who attend, but are not members of the committee, attend only as observers - Government Code Section 54952.2 (2) (c) (6) ) we again recommend that the regular "Agenda Briefing" meetings in the MIC room become open to the public and that an agenda be posted in conformance with the Brown Act requirements. (This amendment to the Brown Act supersedes Attorney General Opinion#79 Ops.Cal.Atty.Gen.69,which prohibits a fourth member of a seven member legislative body from attending standing committees of the legislative body composed of less than a quorum of the body if the committee has certain responsibilities provided that said meetings are open and noticed.) Opening and noticing these meetings would permit more than three City Council members to attend such meetings, provided that only three could be participants, the others would have to be present as observers only. An argument was recently made by a Council Member that because the purpose of the "Agenda Briefing"is to advise members of the Council, in advance of the actual Council meeting, of agenda items and issues on the agenda, and because the meetings are regularly scheduled and held, and because decisions are made at these meetings,including but not limited to whether or not to remove items from any given agenda, that these meetings constitute a "standing committee." However, because we have not been able to ascertain whether or not the Mayor and Council ever acted formally to establish the "Agenda Briefing" meetings (which have been held since time immemorial,) and because the Council has not recently taken any action to create the "Agenda Briefing" meetings, we are of the opinion that the "Agenda Briefing" meetings are not a standing committee of the legislative body. PRIDE �+ 3 0 0 N O R T H D ' S T R E E T , S A N 8 E R N A R D I N 0 INPROWSS C A L I F O R N I A 9 2 4 1 8 . 0 0 0 1 (9 0 9 ) 3 8 4 - 5 3. 5 5 A