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HomeMy WebLinkAbout01-05-1987 Verbatim . TRANSLATION OF TAPE OF COUNCIL MEETING OF JANUARY 5, 1987 CONCERNING DISCUSSION OF THE BROWN ACT Mayor: Moving to "Brief Comments by Council Members". Councilman Strick- ler has asked to have a few words. Hernandez: Mayor, under the new law, I don't know whether we're going tc be allowed - maybe Mr. Prince can clarify this - we might have to strike that portion of the Agenda after today, or when, Mr. Prince? Mayor: "Brief Comments"? Hernandez: Yes. Prince: ? (Microphone not turned on) Hernandez: Well, under the new law, as I read it, we can't discpss any- thing unless it's printed on there or a brief description of it is indicated in writing. Clark: You can discuss it, you just can't act on it. Hernandez: Now, wait a minute, please. The law is very clear to me. It says: "Discussion". Maybe Mr. Prince can... Prince: Let me read you... I think most of you have the League of Cali- fornia Cities... Hernandez: It's not that I don't want to, Jack. It's just that... Prince: ...memorandum dated October 6th... Strickler: Yes, Mr. Prince. Why did we just get that today? That's what troubles me. That Bill was passed and signed by the Governor on the 29th of August. It was filed with the Secretary of State on September the 2nd. This was sent to you on October the 6th, and why did we just get it today, three months later? Prince: We sent it out last Wednesday. Strickler: you had to that? Well, even then - big deal. do was copy it and send it to That's still three months. All us. What takes three months to do Prince: You had it prior to today's meeting, sir. Strickler: What? Prince: You had it prior to today's meeting. Mayor: I think what we're looking for is an opinion, so that we can move on with this Agenda, from our City Attorney. So would you please give us an opinion on this? Prince: Let me read you, on Page 4, Item '5, which is a recommendation by a group of City Attorneys working under the auspices of the League of Cali- fornia Cities: "May the Council simply discuss an item which was not in- cluded in the posted Agenda if no formal action is taken? The language of the statute is inconsistent on this point. New Section 54954.2(a) provides that the Agenda must include a description of each item of business to be transacted or discussed. This section then states that no action shall be taken on any item not appearing on the Agenda, but does not explicitly extend this prohibition to the discussion of such items. Clearly, if the Councilor staff intends to bring up an item for discussion at a meeting, the item should be included in the Agenda, unless it falls within one of the exceptions under Section 54952.2(b), which is special circumstances in I . which you can take action after making a motion. If Council Members give reports, the nature of the report should be described in the Agenda. How- ever, it is unclear whether the Council may discuss an item which is brought up by a member of the publ ic and ne i ther was descr ibed in the Agenda nor falls within one of the exceptions under Section 54952.2(b). Under strict interpretation of the statute, such an item should not be discussed; however, as a practical matter, it will be difficult to restrain Council Members from responding to the pUblic and such discussion is not explicitly prohibited." I point out, though, that that cOmment relates to when the public appears and wants to be heard on an item, whether it's on the Agenda or not, you must afford them that opportunity, then can the Council proceed to discuss the item - that's the issue. And under str ict interpretation, the answer would be no because the section says, as I read to you, that each item of business must be briefly described and posted 72 hours prior to the meet- ing. It's relating to an item that is to be transacted or discussed. It's not clear, but I think that certainly the spirit of the law would prohibit bringing up new items for discussion, unless it's done by members of the public appearing before you. Mayor: Well, then I guess I'd have to ask Councilman Strickler if this is a new item. Strickler: Well, it's an item that we discussed before - that you were to send a letter to the Attorney General, that I mentioned that I'd sent a letter to the Attorney General... Mayor: And I just got the response. Strickler: Did you get your response? Mayor: No, I got a copy of the response. Strickler: Of my response? Mayor: Yes. Strickler: Okay, then that's all I want to discuss. It's an item that's been on the Agenda, we discussed it and it's back now. It didn't get in in time - like Mr. Prince got his on October the 4th - we got ours December the 24th and so we've got it on today's Agenda. This, to me, should have been on October's Agenda. Mayor: We were to have had a workshop on how this law should be imple- mented and what it means to us and I still think that we must have this in order to fully understand. Strickler: Well, they suggested in here that we do it prior to January the 1st. Mayor: Yes, I agree. Strickler: But unfortunately, we didn't get it until now so we couldn't have the workshop. But I would like to at least apprise my colleagues of the response - I think you all got a copy - from the Attorney General's Office, Jack Winkler, whereby he says that they cannot give us an opinion regarding Mr. prince's new policy regarding the confidential discussions... Hernandez: May I interrupt? Strickler: ...under the canons of ethic that an attorney/client relation- ship should have. Hernandez: Point of order - this Council has got to make a motion right now whether we're going to discuss this or not. 2 . Marks: I make a motion that we discuss the subject that Mr. Strickler brought up. Mayor: I s there a second? Frazier: Second. Mayor: Mr. Pr i nee, it requ ires. . . Hernandez: Discussion. Mayor: ...more than a majority. Hernandez: Under discussion. Marks: I think there are two theories here... Hernandez: Under discussion, please. I want to be recognized. Marks: I would like to speak after Mr. Hernandez, please. Hernandez: First of all, a group of attorneys got together and interpreted the new law that we must apply to the City. It's not a matter of whether I like it or not. The matter that Mr. Strickler is talking about is not a continued item. It was not published in the Agenda and so, therefore, it cannot be heard. Marks: That's a matter of conjecture, Ralph. Hernandez: Here's some legal minds that got together, Mr. Marks, and in- terpreted the law. Marks: Well, we've seen what legal minds have done in here, so... Hernandez: If, in fact, we have our legal office which indicates that we should not discuss new matters - now, if you want to disregard his advice and the advice of others, then do so. I'm not going to do that. Marks: Well, there's two things. Number 1: I think... Hernandez: In fact, I'm not even going to participate. Marks: Well, don't participate in the discussion. here. .. There's two things Mayor: Could you wait until Mr. Hernandez is through, Mr. Marks. Marks: ...One is conjecture and I think it's a matter of opinion whether or not this item was a continued item. I certainly intended it when I cast my vote weeks ago for this item that it would be discussed upon receiving some word from the Attorney General's Office. I think the intent was there and I don't think we ought to be put between the rock and the hard place because there was not an appropriate administrative action taken to put this on the Agenda, which someone in your office, Mr. Prince, should have done, because that was the intent of the Council. Now, that's the way I view it. What's sad about all this is that here we are on January 5, and this law took affect January 1st and we're just discussing it now. This should have been done a month ago. Otherwise, maybe we wouldn't be in the predicament we are today. However, in order to cover all ends, in defer- ence to the City Attorney's opinion, I made the motion that I did. Now, Mr. Prince, my question is to you, is the motion in the proper format or must I amend that motion to put it in certain other format in order to comply with what you think is appropriate so we may discuss this item. Prince: Well, Councilman Marks, I think you should first decide what approach you wish to take to the Brown Act. The item before you is rather irrelevant, but what's important is what decision you make on the Brown Act. Certainly the spirit of the Brown Act is that any item that's to be 3 discussed or acted upon should be on a posted Agenda. It should be on an Agenda posted 72 hours prior to the meeting. Now, the language of the statute is unclear, because it says, "no action shall be taken on any item not posted". It doesn't say no action or no discussion shall be taken. So, it's unclear. But if you read the prior sentence, it's very clear that any Council Member, and this statute is addressed to the Legislative body, who wishes to discuss a matter has a duty to place it upon the Agenda 72 hours prior to the meeting, a regular meeting. Marks: Well, I think two or three weeks ago, or four weeks ago, when we took the action and our intent was very clear, then staff should have followed up and complied with what you are saying on January 5, we should have complied with four or five days ago. I don't think the public ought to be put between the rock and the hard place because of someone not fol- lowing through. I think it's just like in anything else, there's a Find- ings of Fact that can be established that puts you into the intent which complies with the law. Mr. Prince, you've used the Doctrine of Substantial Compliance many times before, and rightfully so, to put something into the perspective that was appropriate. I don't see why we can't do that here. Prince: Well, if you wish, you can make a motion. There are four excep- tions. One is that you make a motion that the need arose after the posting and prior to the meeting today. Let me read you that. Hernandez: There are four options, Mr. Prince. Prince: Yes. Hernandez: They are right there in that... Prince: "That the need to take action arose after the Agenda was posted". Marks: Agenda. Well, the need actually took place prior to the posting of the It was just that someone did not put it on the Agenda. Prince: letter. Well, a lot would depend upon when Mr. Strickler received the Marks: You received the letter what day? Prince: I haven't received the letter. Strickler: It was addressed to me. our office the 29th (December). It was dated the 24th and received in Marks: The intent of the Mayor and Council was to get this letter back to discuss it and take some action. Hernandez: But see, is it an emergency? You know, this is what we have to consider. Now you say it's an emergency, which I don't think it is. If it's urgent, and I don't think it is, it's not published on the Agenda. It was not continued, so a mistake was made. Mayor: Mr. Prince, does this go so far as to preclude appointments to various commissions that we have always had on the table... Prince: Yes. Mayor: And so it means that... Prince: It does. Mayor: ...so we don't do those. Okay, that's your interpretation. Marks: Mr. Prince, I'm going to take exception to that. If it was, then why didn't you tell this Council at the last meeting. I have an appoint- ment to make today that's very significant for my constituents and I have prepared for it in the historical way. The way that Mayor wilcox has and everybody else here, and I've got someone coming down here. I have used the position here where we have on the Agenda "Appointments - Commission/ 4 . Committees" to be able to do that. have the person's name printed on appointment? Now, you're telling me that unless we 72 hours, that we can't make that Prince: That's correct. Mayor: Because I have one in front of me, too, that's not on the Agenda... Marks: Why didn't you tell us this last time? Mayor: ...and I haven't seen yours. Prince: 72 hours. I think everyone was aware that you had to have it on the Agenda We've known that for months. Marks: That is not true. Quiel: That is not true. Marks: I see everybody shaking their heads here. Quiel: That is absolutely not true. Prince: I can't believe it. It's been discussed. Strickler: If you would have done what you should have done on October the 4th when you got this letter and it says in here that the committee recom- mends that prior to January the 1st that the City adopt written internal procedures - if you would have told us when you got it three months ago, we could have not had this problem. Prince: Councilman Strickler, you had over the weekend... Strickler: I did not receive this until this morning. Pr i nee: . . . in adequate time, the resolution that sets forth all of the conditions. Strickler: I did not receive this until this morning. Marks: When did we have it? Prince: It had to have gone out... Hernandez: Madam Mayor? Prince: Wednesday. Strickler: Phil, when did I receive this? Prince: It went out Wednesday, I think. Hernandez: Mayor, we cannot take action on this. According to the law as I read it, we cannot take action. Mr. Strickler... Mayor: If I'm interpreting Mr. Prince, we can't discuss this and we're on on whether we should discuss the item that Mr. Strickler brought up, and I think we need to move on. Strickler: Then I would make a motion that we get this the first item on the Agenda for the next meeting. Quiel: I'll second that. Marks: Well, wait a minute. You can do it today, you make a... Strickler: court. I'd like to do it today, but Mr. Prince will have us all in 5 Marks: I'd like to be able to vote on this, Jack. able to vote on this. I think it's very critical. Jack, I'd like to b Mayor: You don't... You don't solve the 72 hours posting. Marks: Mr. Prince, first of alL.. Prince: You could adopt that motion if... Marks: We can adopt the motion that I made as amended in order to comply. Prince: ...the need arose after the posting. Mayor: If the need arose after the posting? Marks: Well, I'll withdraw my motion and make a new one. second? Who was th Frazier: I was the second. Marks: Mr. Frazier. I'll make a motion to discuss this item, the ite brought up by Mr. Strickler... Hernandez: Based on what? Marks: ...which had need to be discussed today, prior to the 72 hours, bu for some unforeseen circumstance, was not placed on the Agenda; therefore. we will comply with the direction of the City Attorney and say that the need arose within the 72 hours. Strickler: I'll second it. Mayor: That applies to this one item. Marks: Yes. Hernandez: Discussion? Mayor: Mr. Hernandez? Hernandez: Now, you will not be able to take action on this. If I'm not mistaken, Mr. Strickler, you sent me a memo to my office. You were re- questing action, supporting a hiring or something. As I read through the law, you cannot act on this. There is no urgency nor emergency, and be- cause it does not have to do with the issue as far as I'm concerned. We can't take action on it, unless I'm wrong. Marks: We can take action on this, can't we Mr. Prince? Prince: Yes, if you have a 5/7ths vote, you can take action. Mayor: Is there any further discussion? Hernandez: Based on what, Mr. Prince. Prince: Well, based on two reasons as stated. One was that the letter ha! just been received and, therefore, there wasn't an opportunity to put it or the Agenda because it was posted ear ly. I th i nk the Agenda was ever posted before the 72 hours, wasn't it, Shauna. Clark: Yes. Hernandez: But by the same token... Prince: And, secondly, that the need arose because there was an intention, apparently, to have it on the Agenda, but due to administrative oversight, it was not placed on the Agenda. 6 Hernandez: But by the same token, Mr. Prince, I received Mr. Strickler's memo, I think it was on Wednesday of last week. Prince: But the Agenda had already been posted. Clark: Yes, see we had a very short week, and the Agenda was done on Mon- day, the 29th and the letter wasn't received until the 29th. Hernandez: Ms. Clark, you can put an addendum and post it on the board, or any place else, and cover the 72 hour posting. You know, that will cover it. I'm saying, we can twist this law, and we can manipulate it, and we can do everything that we want in order not to comply with it. Mayor: That's why we have attorneys. Hernandez: All I'm saying is, do we or do we not follow it to the letter. Marks: He just answered yes, Ralph, that we can take action. Mayor: Any further discussion? motion. If not, I call for the question on the Hernandez: I don't want to participate in this. Mayor: Are you abstaining? Hernandez: (Leaving Council Table) I'm not participating. Prince: He's abstaining. Marks: Well, he's not here or abstaining or anything. Clark: He doesn't abstain unless he pushes his button. He's not present. Marks: He's not present. There's the five votes. Clark: Do you want his vote registered... Strickler: Do you want to take it off? Quiel: That's his decision. Strickler: Okay, now for the discussion. You all received copies of the response from the Attorney General's Office. In the back of that, he sent along some government code sections. Also, I've included, and I asked staff to highlight, but apparently they didn't get a chance to do it, por- tions of the Charter that gives the responsibilities of the City Attorney clearly. And again, I'm sorry that it's not highlighted because I had it in there. Reilly: Page 14, Jack. Strickler: On Page 14, it gives the responsibilities and I interpret it, and you can read under "D", the whole paragraph, and I think it gives you the City Attorney's responsibility is to the City Council and that is con- trary to the two recent memos that Mr. Prince has put out as an intended policy statement. So, I would like to suggest that we hire an outside attorney, and I don't know where we're going to get an unbiased, outside attorney, to give us an opinion regarding those two memos. But I think that we should seek one - have the City Administrator find an outside attorney to give us an opinion regarding Mr. prince's two recent opinions or statements of intended policy, and I think that the funds for that should come from the City Attorney's fund that hires outside attorneys. So, that's the discussion. Anybody have any comment on it? Mayor: Mr. Prince, under the new law, is this a matter of urgency and we can take action at this time? 7 Prince: Yes, based upon the motion that was passed. Quiel: Well, I support what Mr. Strickler is saying, based upon the fact that we cannot get the assistance from the Attorney General's Office to review this. I think it's quite clear your position and your feeling after the situations that have arisen over the last 12 months over what your function and job is and what your response to Council people should be, as well as the Mayor, as well as hired department heads. I think we ought to get it ironed out. Get it resolved once and for all. Therefore, I support what Mr. Strickler is saying and let the City Administrator go out - find outside legal counsel to give us an opinion. Prince: What I suggest we do is to have an attorney in my office write a legal opinion... Mayor: That's like you writing one. Strickler: That's silly. Prince: ...which would not be approved by me or reviewed by me. be an independent legal opinion. It would Quiel: The problem with that, Ralph, is we the Council, or some the Council do not agree with what your opinion has been thus far. that you are obligated to perform that service, and should perform of us on We feel it. . . Prince: And I'm willing to perform it. Quiel: With confidentiality. Prince: Yes. I think that's a point that's misunderstood. Mr. Strickler has stated that I'm shirking my duties. That's a blatant misrepresentation of my position. My position arises from a decision of the Superior Court and the American Bar Association. There is a problem. My only request is that the opinion be made public. I fail to see why there is such stiff resistance to a request that the City's business be made pUblic. Strickler: There's no resistance against that. Marks: That's not the issue, Mr. Prince. Quiel: That's not the issue. Strickler: You're trying to cloud this. Marks: That's not the issue, come on. Now, I can understand why you would want to say that, but that's not the issue. The motion we made last time in which we sought assistance from the Attorney General, was for the Attor- ney General to examine the appropriate roles in terms of representation of the Council and individual members of the Council should cases like this arise - to get an opinion from an independent source as to what that inde- pendent source, and the Attorney General is the highest level in the State, would think in terms of what the appropriate relationship should be. That was the issue, Mr. Prince, and please don't put it into pOlitical terms. That's where I was coming from and I think everybody up here was coming from the same point of view. Prince: Mr. Marks, there's no question about the relationship. The re- lationship is what causes the problem under this ruling by the American Bar Association. Strickler: That was a completely different case, Mr. Prince, absolutely completely different. Prince: problem public. Now, I don't see the situation arising, frankly. I don't see a arising. The only request I have made is that the opinions be made 8 Marks: Okay, but that's not the issue I'm addressing, Ralph. I think it's a very important issue here and quite frankly I believe you would want to see that resolved, too. What is the appropriate relationship? Who do you represent? Do you represent the individual Councilmen where there is a possible conflict of interest situation or do you represent the City or do you represent both? In my own mind, I have a hard time understanding how you can represent both when you're giving legal advice to individuals and also giving legal advice on the same issue to a body, and then looking out for the best interests of both. I think it's a ticklish situation. It puts you and the Council and the individual members between the rock and the hard place. I don't know if there are any answers. I haven't seen in the literature in local government in this state where there are any straightforward answers. I think it's something we should address straightforwardly. We know what your opinion is. We know what the individual members here opinion is. Let's find out from a reliable, independent, legal source what they feel the stage of the law is here in California. Prince: I'm willing to provide it to you from an independent source. There are hundreds of City Attorneys that can address the issue for you. I'd be happy to seek their cooperation. This should not be a confrontation between your attorney and the City Council. It's to resolve a problem. Ouiel: We're trying to eliminate the confrontation, and I should think you would support the action we are proposing this morning. Prince: No.. . Quiel: Let the City Administrator hire one. Prince: obtained dino. I do not approve of hiring special counsel when the answer can be from independent sources without cost to the City of San Bernar- Strickler: It's a biased opinion, Ralph, and you know it. Prince: Why should other City Attorneys provide a biased opinion. Mayor: are not right? Some of the City Attorney are independent attorneys. appointed. They simply are outside attorneys to I mean, they some cities, Prince: That's right. Mayor: They are not elected, as you are, or appointed? Prince: That's correct. Mayor: I mean they're appointed, but they're.... Mr. Strickler, I didn't hear that put in the form of a motion. Did you intend it to be? Strickler: My motion was that we get an opinion from an outside attorney to give us an opinion regarding Mr. prince's two most recent memos regard- ing his intended policy. Quiel: And you directed the City Administrator's Office to find outside legal counsel. Mayor: Was that your motion? Strickler: That's my motion. Mayor: Is there a second? Quiel: I'll second it. Marks: Would you include in your motion, Jack, what we included last time and that is the examination of the appropriate roles of the City Attorney with respect to representing individual members and the Council as a whole? 9 Strickler: Right. Prince: Is this on conflict of interest only? Quiel: All matters as they relate to the City Attorney. Strickler: Including conflict of interest. Prince: I fail to understand why that's at issue. This is brought about by a conflict of interest statue, and by ruling of the American Bar Association regarding a former City Attorney of Los Angeles, and by a Superior Court decision. It has nothing to do with the role of the City I Attorney and representing the Council. Strickler: Let's hire an outside attorney to tell us that. Prince: Now, I'm going to advise you that I do not feel that this legis- lative body has the power to hire outside counsel when the City Attorney is ready, able and willing to perform that service without expense to the taxpayers. Strickler: You're trying to make this political, aren't you? Prince: If you hire special counsel from the private sector, he will not have the expertise that other Ci ty Attorneys who work daily in the field will have. There's not going to be any prejudice of any kind to your get- ting the legal advice - it just simply will not cost the City taxpayers any money. Estrada: Isn't there somebody in the State Attorney General's Office that might be able to do this? Mayor: That's why we're talking this, because they declined to. Quiel: They said they can't do it. Mayor: Mr. Marks? Marks: Jack, can we include in the motion - let's zero in here. I get concerned about two things in that motion here. First of all, we're look- ing for an attorney with expertise, recognized expertise in municipal law. Can we include that in the motion? Strickler: Sure. Marks: Secondly, I don't think the City Administrator is the person to be doing that for a number of reasons. One of which, I think that kind of puts the conflict on the Sixth Floor between two officials that are sup- posed to be working close together. What if we make that request to maybe either the President of the local Bar Association or the Presiding Officer of the Superior Court. Strickler: Yeah, make it... Quiel: That's fine with me. Marks: Presiding Officer of the Superior Court? Quiel: That would be the best. Marks: Okay, make it the Presiding Officer of the Superior Court. Estrada: Have we checked with the League of California Cities to see what kind of services they could provide along those lines? I would assume that they have a battery of lawyers they deal with in terms of getting opinions on legislation. u Marks: They have members like, Mr. Prince, who are members Attorney's department who provide that service there. But, I that if the Presiding Judge would do the jOb appropriately, consulting the League of California Cities to find that expert law. of the Ci ty would think he would be in municipal Mayor: Mr. Prince, why did you say that this body does not have that authority? Prince: Because there is a case law that says when a pUblic official is ready, able and willing to perform the duties of his office, the Council cannot supplant that responsibility by hiring private, outside firms. Marks: Well, Ralph, you've indicated to us in the past that we had the right to hire outside firms. Prince: Yes, when the City Attorney is not able, willing or due to shortage of staff, or due to lack of expertise in the field, cannot perform the responsibility. Marks: But in this case here, this is not something that came out of the blue. This is something in which there is a disagreement between you and your office and the City Council on the issue of how to proceed to inter- pret this thing. Given the fact that the Council, or maybe a majority of the Council, feels we need an independent voice, how do you get an inde- pendent voice if you just stay wi thin your office. You really can't do that. It's not fair to you and I don't think fair to the Council. Prince: What I'm suggesting is that we use the staff of the Fair Political Practices Commission. After all, they is their law that they administer and enforce. They could provide the appropriate legal advice. The legal advice could be provided by other City Attorneys who would do it as a favor to the City of San Bernardino. Marks: What's wrong with the Presiding Judge of the Superior Court in- suring that a qualified expert in municipal law be selected - what's wrong with that? Quiel: I fail to see what's wrong with that, Ralph. Marks: I mean, that's getting it up where it's visible and recognized expertise in law. Prince: Why is this in the political arena? This is a simple problem that we have every day before the City Council that's referred to committees, that's worked out. Estrada: When there is a disagreement between the City Attorney's Office and the Mayor and Council, what provisions exist, legal options, that we can take? Does not the Mayor and Council supersede anything else? I mean, legally isn't there something in the Code that says when the Mayor and Council and City Attorney do not agree, these are the options? Prince: There has should be First of all, I'm not certain that there's been no vote by this Council that conflict of confidential. In the past they have not been. any disagreement. interest opinions Marks: That's not the issue, Mr. Prince. Estrada: That's not what we're talking about at this point. Marks: ship on Council That's not the issue here. representation, individual and the City as a whole. We're talking about the whole relation- members vs. the collective good of the Quiel: That's right. 11 Marks: How do you represent both? What is the appropriate way of attempt- ing to represent both? As I understand it, you are my attorney as a matter of law until 12:01 or 0001 tomorrow morning, and you're also the attorney for the City. I don't know how, in certain instances, you can represent both of us according to the canons of judicial representation. It's a difficult situation for you. Prince: respond years. If you request a legal opinion, you to you. You receive a legal opinion. That relationship has not changed. are my cl ient - I have to That's been the case for Strickler: Except you want to make that legal opinion public. Prince: I've asked that when it is a conflict of interest, that that opinion, just like all opinions unless it involves a lawsuit or there is some other reason why it should be kept confidential, that it not be kept confidential. We don't have to send it to the newspaper, but we should give a copy to the City Administrator, City Clerk, and the Council Office and the Mayor, which has been the practice ongoing for years. Now, Jack Strickler changed the policy... Strickler: the memos. I didn't change any policy at all. I didn't write them. You're the one that wrote Pr ince: You refuse to permi t a legal opinion regard ing your conf 1 ict of interest to be given to Councilman Hernandez, who had requested it. Strickler: When did that happen? Prince: You consulted with your attorney. opinion was kept confidential. I consulted with him and that Strickler: I don't even have the opinion. keeping it confidential? What are you talking about Marks: Well, Mr. Prince, if you feel that it shouldn't be kept, why did you keep it confidential? Prince: Because I honored his request. wise, there would have been a conflict. I had a duty to do that; other- Marks: But, obviously, you feel differently that your duty to the City is different and that's the kind of situation we have got here that only can be answered outside of us. Pr ince: I have opinions, be given Council Office. asked that conflict of interest opinions, like other to the Mayor, City Administrator, City Clerk and the Quiel: That is not the whole problem. The problem is you see yourself, and you said this to the committee, serving two masters. One is the Coun- cil and one is the Ci ty. We're all one, but you get caught up in the situation, such as happened in Los Angeles, where the City Attorney con- sulted with and was requested by Council people to give them legal opinions, which he did. Then he caught himself on the other side of the fence, in a prosecuting position. How can you do that? And I think for your benefit, this Council's benefit, the Mayor's benefit, the department head's benefit and the City's benefit, primarily the City's benefit as a whole, that we get this matter cleared up. Prince: I have advised Councilman Strickler that I do not intend to be a criminal or civil prosecutor, that that function can be performed by the District Attorney and that in the case of contractual conflict of interest, that conflict of interest can be performed by the Attorney General. The Fair Political Practice Commission's legal staff can handle other conflicts of interest also. Quiel: Absolutely. 12 Mayor: Could we not...there must be another avenue to pursue this if, in fact, Mr. Prince is saying that we should not spend City dollars since he's ready, willing and able - there has to be another service that's available to this Mayor and Council to get an opinion on this. I can't believe we're locked in to... Prince: No, you're not. Marks: I don't think we are. I think we can go ahead... Quiel: I don't think we are. Prince: If you don't wish to accept an opinion from a member of my staff, which would be an independent legal opinion - I would probably refer it to Allen Briggs or Bill Sabourin, whichever one you preferred - then I would obtain a legal opinion from another City Attorney or I would write to the Fair Political Practices Commission to obtain a legal opinion. Mayor: Maybe they can give us some direction. Quiel: It is not just the F.P.P.C. that's involved. It is representation by legal counsel of the City as it relates to the Council and the Mayor and department heads, as well as representing the City. That's what it comes down to and that's where the concern is... Marks: And it's a much broader issue. Quiel: ...and I appreciate that concern, and I would think that you'd be happy and delighted to given an opinion on it. Prince: Why has it escalated into that kind of a situation? This relates solely to conflict of interest. There's no other issue involved. Mayor: Mr. Hernandez? Hernandez (speaking from podium): Yes, I want to speak as a member of the public. What you're doing here is totally wrong. First of all, you have an ordinance that's in place now that prohibits you from hiring a consult- ing attorney. You have an ordinance that states, in the City Attorney's Off ice right now, and Mr. Marks, you of all people were the one wi th our assistance, directed unanimously by the Council that no legal counsel would be hired - only through that office. So, if you want to change that today, you have to amend that ordinance in order to do what you want to do. So, you can't do that. That's an ordinance we've already adopted. Secondly, the Mayor was directed by motion unanimously by the Council to seek an opinion for the City. We have not received an opinion by the Attorney General to this City officially. Now, she can say that she received an answer, but that's not an official answer to the City - we have not re- ceived an official answer. Mr. Strickler has, but the City has not. And if the issue on the Agenda was for the motion, then this is out of line completely because you're reacting to his opinion and not to a City opinion. What you're doing is totally wrong. Besides, again, you're violating the Brown Act as far as I am concerned. Marks: Through the chair, Mayor? Mayor: Mr. Marks? Marks: I don't think we're violating the Brown Act, and the City Attorney would agree with my statement. He has already. He's indicated that we could proceed. The issue here now is one of preference of the City Attor- ney on how to handle it and possibly what Mr. Hernandez brings up and I respect Ralph for bringing that up because we do have to look at that. I remember, I authored that law. Ralph, can you read us the excerpts from that, please? Prince: Yes. "Any City officer desiring legal services concerning City business from legal counsel, other than the City Attorney, shall first inform the City Attorney of such intended request for outside legal ser- vices to determine whether the City Attorney is willing and able to provide 13 such serv ices. for payment of the Council." No City officer shall be authorized to obligate the City services of outside counsel without the express approval of Mayor: That's what we're doing. Marks: Wait, read that again. You zipped through that real quick like. Prince: "No City officer shall utilize outside legal services concerning City business without the approval of the City Attorney or Council, pro- vided, however, that nothing herein shall preclude any City officer from obtaining outside legal services at his or her own expense concerning the personal or public rights, duties, privileges or benefits of such officer." Marks: Okay. Now, back in the first sentence where it says "willing and able", will you read that, please? Prince: "Any City officer desiring legal services concerning City business from legal counsel other than the City Attorney shall first inform the City Attorney of such intended request for outside legal services to determine whether the Ci ty Attorney is wi 11 i ng and able to provide such outside services. Marks: Okay. Two things come to mind, as I remember working with you on that, Mr. Prince, and the debates we had with former Mayor Holcomb in put- ting that in place, that the purpose and intent there was to make sure that departments did not circumvent the Attorney and the City Council. Okay? The intent was to make sure that all departments of the City did not go out and hire outside counsel, that they would seek your... Prince: I think I have a more appropriate section here. "Special counsel shall be retained by Council pursuant to Charter Section 241 subject to the recommendations of the Ci ty Attorney that such counsel is necessary in instances when legal specialization not possessed by the City Attorney is required or when the City Attorney is unable or disqualified from perform- ing such legal services." Marks: Okay. Remember, the intent was the departments. The intent was not to hamper and stranglehold the City Council from enacting proper public policy. Now, you're raising a question of whether it's proper or appro- priate, but not the mechanics itself. The mechanics are there for the City Council to take this action if it so chooses. It would have to be based upon some rational judgement that there are circumstances that prevent you from performing thi s task. Now, the si tuation as I see it is one of an impossibility in terms of being able to resolve this issue because you have already taken an opinion. You have made an opinion. Your opinion is being challenged by a number of members of the City Council and if, in fact, in order to resolve this, the Council feels it needs some independent opinion also, the issue is how do you get an independent opinion from an office in which that office has already established an opinion, which on the face value is contrary to what a number of members of the Council believes is correct - in terms of public policy, Ralph. That's what we're talking about. so, the question I raise to you is how can you perform that ser- vice? How are you able? It doesn't have anything to do with competency. How are you able to perform that service if, in fact, you've already estab- lished an opinion? How can we get an independent opinion from your office? Prince: The opinion that I have established, Councilman Marks, is to present the problem to the City Council. I've raised the issue. I haven't stated a conclusion. I have asked that the opinions be made public in the sense that they are given to City officials that may need that information on the conduct of City business, and I am not under this ordinance, which you recommended. I am not disqualifying myself and I'm ready, able and willing to perform it, the rendering of the legal advice that you request. But I am suggesting because you feel that I may be biased, or prejudiced, that we have other counsel provide the opinion, but not at the expense of the taxpayers. I don't feel that that is necessary to arrive at what should be a relatively simple legal opinion. 14 Marks: First of all, the issue is beyond what you have just stated. I think it is exactly as we've stated. If in fact you're talking about con- flict of interest opinions and whether they ought to be made public or not, doesn't that really beg the question? The question really is, what is the' role of the City Attorney in representing individual Council people vs the Council and the City as a whole. That's the real issue. Quiel: That's the issue. Marks: Everything comes from that. So, it's more significant than just the publication that you're speaking of. And, also, how realistic really, is it, Ralph, to expect a member of your staff who reports to you to in- dependently analyze and come up with something that's contrary. I mean if, in fact, it's in the cards to do so. Prince: I accept that. Then I suggest we go to other City Attorneys in the field; particularly those who may have the same prOblem. Marks: Alright, well... Quiel: Ralph, explain to me your concern about going in the direction of the motion, which says we will go to the Presiding Judge of the Superior Court to request that officer of the court to identify attorneys that are familiar with municipal law... Marks: Recognized expertise. Quiel: ...and we will hire one of those and get an outside legal opinion. What is your problem with that? Prince: My objection is that under the law of this city, I have not dis- qualified myself and I am able to perform the service. I am willing to compromise to obtain free legal advice from a source that you will concur will be competent legal advice in a very specialized, narrow field of law. Quiel: Yes, but there are attorneys out there that practice i~, that are familiar with it. Prince: How many attorneys practice municipal law? Quiel: Well, maybe they can't find one then. Maybe the response from the Presiding Judge of the Superior Court will be, "No, we can't". Prince: I can find one because I am in the field everyday. Quiel: Let's do it this way... Marks: The Presiding Judge can contact the League of California Cities. Remember, we put a stipulation there that it must be recognized, expertise in municipal law. If I were the Presiding Judge, I would be contacting the League and get a list of available people for this task. And by the way, Mr. Prince, let me just say something. You keep harping on money here. First of all, even if we were to hire someone who wasn't a City Attorney but who had this expertise, we're not talking about a huge sum of money and the issue itself is that important because unless it's resolved, we're going to have these problems in terms of City Attorney, legislative body relationShips and it's more important, if it does cost a few dollars, to get this issue resolved as soon as possible with expert legal advice in order to come to the table for the discussion. It's that important and I don't mind spending a few dollars to get the thing resolved in an appro- pr iate way and I don't think it should be put into the terms of wasting taxpayer's money because I firmly believe that that is not the case and I don't think that you do either. Prince: Is your purpose to obtain legal advice? Marks: Yes. Prince: Or is your purpose to throw this out into some kind of political arena? 15 Marks: No. Prince: years. Charter Then I will obtain the legal advice for you, Permit me, sir, to do the duties that I'm entitled of this city and under the laws that you've enacted like I have for to do under the yourselves. Marks: But how can you get that independent advice? Prince: Well, why don't you wait until I obtain it before you prejudge. I want to be certain that the appropriate legal advice is concerned and that some attorney who may be very competent, but who doesn't have the speciali- zation might render the legal advice. The important reason is the princi- pal that legal advice should only be obtained from outside sources when the City Attorney is unable because of disqualification or lack of specialty, staff or other appropriate reasons than just to get a different opinion. Mayor: Are you saying that this body is precluded from going out for out- side counsel? Prince: I read the ordinance to you, Mayor. What do you think? Mayor: Well, I didn't hear that they were precluded... Marks: You have to make the finding of fact that you believe that the City Attorney is not able to perform the service. Estrada: Well, my question still hasn't been answered, and that's what happens when you do have a conflict between the City Attorney's Office and the Mayor and Council? Then who do we turn to? Mayor: How do you resolve it? Marks: To yourselves - obviously, the buck stops here. Someone has t take the bull by the horn and make a decision to resolve the problem; otherwise, you're in a constant state of confu~ion. Quiel: Right. Marks: And I don't think... Mayor: I think that we should give our attorney this opportunity to go ou to an independent source. I think we should give him that opportunity an see what happens. Quiel: Well, I number one can't support using your staff attorneys t provide that opinion. Mayor: No. Quie1: Ralph, you've already reviewed it. You've given us an opinion a you see it and your staff attorneys work for you. Strickler: They have to come up with the same opinion. Quiel: And I think there's a conflict there. Mayor: I'm not suggesting that his attorneys do it. Quiel: I think we have to go on the outside. Prince: I'll get it from another source. Marks: Mayor? Mayor: Yes. Marks: Ralph, I'm hearing you and your concern that the person be a expert in municipal law. We've included that in the motion - a recognize expert in municipal law. What if we say a recognized expert in municipa law, established... 16 Prince: Councilman Marks... Marks: Excuse me, can I finish, please? Prince: Sure, but I'm going to fall back upon your law. Marks: And you and I see it differently. Would you let me finish, please? Prince: Okay, but I'd like to read it to you before you make your final decision. Marks: Through the City Attorneys Department of the League of California Cities - then what would your problem be? Prince: Nothing, and I'd be happy to arrange that. Marks: Well, then... Prince: I don't involve myself in your legislative matters. This is legal advice - let me handle it. Marks: them to pendent Then you'd be willing provide the name of an opinion on this issue? to go to the League on our behalf and ask expert in municipal law to render an inde- Prince: Sure. Quiel: Okay, I can support that. Mayor: I think that's okay. Prince: But he will not be salaried, he will not be paid a fee, he will do it as a service. Marks: Why? Prince: Because I don't think a fee should be paid for something of this nature. Quiel: Ralph, you're making a mountain out of a mole hill. You're using a fee as a crutch and I don't like that. Marks: Yeah. Quiel: If, in fact, the League of California Cities comes back with a recommended attorney to do exactly what we're asking to be done and there is a fee involved, I think that fee should be paid and I think we ought to get that opinion and that's the feeling of the total Council, as I'm' reading it. Marks: We're interested in the quality of the process and the opinion, not whether there is a fee or not and that' 6 the way it should be. You've argued in front of us many times that that's what we ought to be con- sidering - an outside counsel. Quie1: The last time I got something for nothing, it was nothing. Strickler: You get what you pay for. Mayor: Did I hear an amended motion - a substitute motion? Prince: I'm going to read again the section of law that I feel that you're viOlating. Strickler: I will accept the amendment. Marks: Uh huh. Quiel: And that says that we will direct the City Attorney... 17 Mayor: Okay, there is a motion and a second. Now would you read what you want to read to us, based on the direction to send you to the League of California Cities to obtain independent legal advice. Marks: The motion is to direct you on behalf of the Mayor and Council to contact the League of California Cities, City Attorneys Department, to request a name by them of a recognized expert in municipal law to provide the service to the City of San Bernardino in terms of... Prince: To the City Attorney's Office. Marks: To the City of San Bernardino with respect to analyzing the appro- priate role of the City Attorney with respect to representing individual Council Members and the Council and the City as a whole and the department heads. Prince: Does the motion, in effect, say that the Council is going to re- tain outside Council? Is that, in effect, what the motion is, regardless of how you select the attorney? Marks: Yes, this person is to be retained. Prince: May I read you the section again, respectfully? Marks: Can I get a second on that? Mayor: He did. Prince: This is your law. "Special Counsel shall be retained by the Council pursuant to Charter Section 241 subject to the recommendation of the City Attorney", which I've not given, "that such counsel is necessary in instances when legal specialization, not possessed by the City Attorney, is required or when the City Attorney is unable or disqualified from per- forming such legal services." None of those three situations exist. Marks: Well, Mr. Prince, I don't know if you talk out of both sides of your mouth or what. You just say here in the last ten minutes and sug- gested we go to the League of California Cities... Mayor: Go to the League for free. Marks: ...We agree to change the motion to comply with your request. Prince: But not to employ outside counsel. I would be happy to go to the League of California Cities. I would obtain a City Attorney. He would provide the services that you request and you'd get... Marks: Through the chair, Mayor. What I'd like to do is continue this to this afternoon's session... Quiel: That's fine. Marks: ...and I want to make a few phone calls, because I just don't like the way this thing is going. I move to continue to this afternoon. Mayor: There's a motion to continue. Is there a section? Strickler: Second. Mayor: Call for the question. I really think that before this body con- tinues that we had ought to move to Item S-2 and adopt the resolution, the City of San Bernardino and how we are dealing with complying with the new provision of the Ralph M. Brown Open Meetings Act. This should have been done, I believe, at our last meeting. We should have had the orientation. Quiel: We should have had it a month ago. Mayor: So, I would ask that the resolution be read. 18 Clark: (Read title) Mayor: Is there a motion to waive? Marks: Waive only. Hernandez: Second. Mayor: Is there a motion to adopt? Estrada: So move. Mayor: Is there a second. Reilly: Second. Mayor: Discussion? Marks: Yes, through the chair, Mayor. Marks: You know, Ralph, this is something - this is major, major. affects the entire City and here we are on January 5th when we should been dealing with this for at least a month. You have built in here constraints that need some analysis and some explanation. I don't kno where you came up wi th them. I don't know if those time constraints in terms of minutes per speaker and who can control what is contained in th law. I doubt very much if it is and so consequently it is a policy issu that affects every member of this Council and every department head and every citizen of this City, and before I vote on something, I've got to know where you came up with these time constraints and why. Why do you think it's appropriate to have, what was it, three minutes and then fifteen minutes under another scenario and... Pr ince: The language is suggested pol icy. It's the same language con- tained in the resolution for the Board of the Redevelopment Agency, th Commission of the Redevelopment Agency of the City of San Bernardino. They are identical resolutions. There was no objections to that one. That is on the Agenda. This follows it. Marks: Where did you get this from? Prince: The Redevelopment Agency resolution. Marks: Do we follow the Redevelopment Agency resolution. Mayor: We haven't acted on it yet either. Prince: You haven't acted on it yet. All I'm saying is that it follows the same time limits. These are merely suggestions. Change them at your will, but we felt that you had to have a document before you because th law is in effect at this meeting. Marks: Okay, so what is this three minute aspect? will you explain that? Hernandez: I agree with you, Mr. Marks. Prince: It's on Page 4. Hernandez: Yeah, I agree with you, Mr. Marks, we shouldn't limit people. Marks: Here you say, Line 3, "The Mayor may limit the time of any person addressing the Mayor and Common Council to three minutes per person, unless additional time is granted by action of the Council duly entered upon its minutes." Why did you select three minutes? Prince: Well, it seemed like normally a person could present his matter i three minutes and if more time is needed, you extend the time. Marks: You've been here 30 years. Have you ever seen anything of signifi- cance where someone is making a presentation last three minutes. 19 '\ Prince: cuss ions meeting. Well, I've seen very little time taken up during the public dis- taken up during the public discussions at the beginning of the Hernandez: Mayor? Mayor: Mr. Hernandez. Hernandez: But if we follow this to the word, Ralph, we're going to have to make a motion every time somebody goes beyond three minutes. Prince: Well, change it, please. It was just a suggestion. Hernandez: Yes, I would strike that. Marks: Alright. Well, what does this say here then, Ralph. There are two things here, there's three minutes and fifteen minutes. Is one for public comments at the start of the meeting and is the only for any item on the Agenda? What do you have here? Prince: Well, on any particular topic, it's fifteen minutes - any parti- cular person, three minutes, unless extended. Marks: First of all, why do you have to have that? Prince: that. Well, the law provides that this may be done. Let me read you Marks: May be done. Does it say you have to pass a resolution and ordi- nance saying you can only speak for three minutes or fifteen? Quiel: I would control I don't see the need to put it in here as part of this ordinance. think that the Council, through their actions, would establish and time limits with which items can be heard and be spoken upon. Marks: Right now it's all done very informally. The Mayor conducts the speaking through the gavel and if the Council wants to allow more time or less, it indicates so. Any disagreement between the Mayor and the Council is always decided by a vote. Why do we have to have any specified minutes in there? Prince: You can allow as much time as you want. Marks: Well, we can remove it all, can't we? It's not required to be in there? Quiel: You can be silent on it - just be silent on it. Marks: Just be silent on it. Mayor: Why are we putting it in? It's never been in anything, so is it important to the spirit of the Brown Act to put it in here now? Prince: No, it was just a recommended suggestion as to what might ordi- narily be the length of time required for a particular subject. Otherwise, you're going to have to cut people off. Quiel: Let the Council do that on a rules matter. Mayor: So we can take out most of the... Marks: Can we continue this to the afternoon and ask you, Ralph, to pre pare amendments to this and remove the reference to time, specific time. Hernandez: Can't we just strike and adopt it? Marks: Well, if you've gone through it, I don't care. Hernandez: Yeah, just strike the limit. 20 , ' \ Mayor: Otherwise, it's pretty general. Marks: Air ight, take out Lines 3 - 6 on Page 4 where it says, "the Mayor may..." on Line 3 right to the end of Line 6 and take out paragraph "E". Are those the only two references to specific time. Prince: Yes. Marks: Okay, then you've got it. Mayor: Those are things that are already accepted anyway. happens. I mean, it Marks: I move then to adopt... Mayor: No, it's already been... Marks: .. .as amended. Taking out Lines 3 - 6 on Page 4 and Lines 11 - 19 as indicated. Mayor: Is there any further discussion? If not, I call for the question. Marks: We're having a rough start here, Ralph. We'll get through. Hernandez: I also recommend that in future Agendas, we strike out "Brief Comments By Council Members" unless we have a brief discussion... Prince: I think I should have stayed in bed this morning. Quiel: Just general items, not action items. striking that out. I don't see the purpose of Marks: It doesn't make any sense. Quiel: You can make comments, as long as they're not action items. Hernandez: Put them on the Agenda. Quiel: Wait. There may be comments that come up after the Agenda is pre- pared that are of interest to the City as a whole, that the individual Council person may wish to address and make those comments. There is not c thing in the world against the Brown Act when you do that as long as you'rE not putting something on the table for an action. It's strictly a mattel of notification. Prince: What you struck related to the public discussion, part of it, which generally would be early on the Agenda. Any item unrelated to thl Agenda at all, the public is entitled to appear and address the Council, But the issue you're addressing is staff and council discussing items whicl are not listed on the Agenda and posted 72 hours before the Agenda. That'i the matter we discussed earlier. Quie1: I'm discussing exactly what it said, "Brief Comments By Counci: Members on General Matters of City Business". Not action items, just brief comments. Mayor: What's a general matter then, Mr. Prince? Quiel: Are you telling me we can no longer do that? We're not asking fo action. Prince: Were you here when I read five of the League of California Cities Quiel: I heard that, that says if you're going to take an action. Genera matters of City business, if some Council person wants to bring it up be fore the start of the Agenda or at the start of the Agenda, are we pro hibited from doing that. 21 . , Prince: You are required, if you wish to discuss any item, to put it on the Agenda, a brief description, and then post it and it has to be posted 72 hours prior to the meeting. Quie1: Those items which are going to require an action. Mayor: Well, it says to be transacted or discussed. P~ince: It says, "transacted or discussed". Mayor: What it says is inconsistent. Prince: It is inconsistent. Mayor: How do we get the inconsistency out of it so that there's some understanding that we can abide by? Prince: You would have to amend the State Law to make it clear, but I think it's clear, and the League staff of attorneys or committee of attor- neys feels it's clear that Council and staff should place the items on the Agenda to be discussed or transacted with a brief description. Mayor: We could have a lot of discussion items, one liners. Pr ince: They say that it is unclear as to whether or not items submi tted by the public can be discussed. Clark: Since our department prepares the Agenda, I would like to ask a questions for clarification. For example, this morning, the Mayor an- nounced that there was going to be a meeting in Grand Terrace on the tire burning plant. She didn't ask for discussion and she didn't ask for any action. She wouldn't be prohibited from doing that, would she? Prince: I don't think so. That's just an informational statement. Quiel: Is that not the same as Council people. Prince: Well, discussion is different. Clark: How would that conflict with the line on the Agenda that says, "Announcements by Mayor regarding special meetings and events and special agenda problems." Hernandez: What about discussion? Marks: Before you do any striking, let's have a little bit more discus- sion. Ralph, there is no way the legislature of the State of California intended to stranglehold government's ability to get a job done. The intent was to have more openness to require publication of Agenda. That's the intent - openness. Not to stranglehold government's ability to conduct it's own business. Prince: It's to stranglehold any action taken on items not posted. Mayor: But it says here, there's inconsistency on even discussion. Prince: But they were referring there, Mayor, to the public discussion part of it. Mayor: May the Council simply discuss, it didn't say the public, an item which was not included in the posted Agenda if no formal action is taken? And that's 15 and that's what you were... Hernandez: '5, Ralph. It also says.... Prince: It says clearly that if Councilor staff intends to bring up an item for discussion at a meeting, the item should be included in the Agen- da, unless it falls within one of the exceptions. 22 I" , Marks: First of all, the Council can act on what it feels is an emergency in the best interest of the City, isn't that correct? Prince: Yes, you then make a motion. Marks: That can happen, so we know we have the ability to do that. But what I get concerned about, if I'm reading you right, your interpretation that on the Agenda, if we put down "Appointments - Commissions/Committees" that you're saying we can't do it unless we put the name of the person 72 hours in advance. Now, if that's what you're saying, I think you're going a little bit too far. We have on this Agenda, "Appointments", and we always have "Appointments" on there, we have intended appointments and why would we have to do something differently? Prince: What number is that item on the Agenda. Marks: The very first thing, "Appointments". We've always had that. Prince: Councilman Marks, I think what you're discussing now is the description of the items. There has to be a brief description of the items. Do you feel it's adequate brief description when the name of the person to be appointed is not mentioned? How can anyone appear and object if the name was not mentioned? That was my thought on it. The purpose of the law is to inform the publ ic so that they can appear and be heard. If you just read on the Agenda, "Appointments of Commission Members", who would know if whether or not they objected and would want to appear. Marks: Well, see, I can't argue against that, Ralph, because that's very rational. But what I'm upset about is the situation you put in. If this is the way you felt, we should have known about this before. Prince: If you feel that the need arose after the posting because you were not aware of the full implications of the law, then you could adopt that motion that the need arose subsequent to the posting. In other words, that you either decided to appoint after or that you thought that you had a right to appoint because it was an item on the Agenda and you were not aware of the implications of the law. Hernandez: For clarification for the pUblic, it is true that Mr. Prince provided for us today, or I think it was your office, an interpretation by the League of California Cities. He did provide for us the law as it re- lates to the Brown Act with the Agenda on Thursday. We had that. Marks: Yeah, on what day - December 30th. The Council was in a positior on New Year's Eve to deal with this issue? Hernandez: questions. Steve, I understand, but the thing is, we could have askec Marks: Come on, Ralph, let's talk about practical matters. The first WE know about this is this weekend when we're looking at our back-up. Hernandez: We knew back three months ago when this law came about. II fact, Mr. Strickler was the one who brought it up about three months ago, indicating that we wouldn't be able to do certain things after the first oj the year. But that was about three months ago. Marks: Well, if you think that this has been handled appropriately, thel you're entitled to your opinion. Hernandez: Oh yeah, thank you for that. Marks: I don't agree with you. Prince: If we had known there were additional items to be presented, i' could have been posted Friday morning at 9:90. 23 ~ . Mayor: It's clear that we need to have some coordination on these items to get 72 hours, we need coordination through a single source to assure that they're posted. That is supposed to be the City Clerk's Office, that's her job, right? Prince: That's right. Reilly: I think the fact that we have on our Agenda "Appointments Com- mission/Committee" in itself gives us some latitude to act on these. Ralph, I understand what you're saying now. It never hit me that we should spell out the names, but at least it was on the Agenda in a form that any- body could comment. Marks: I can't find fault with his analogy. It's a very rational thought. It probably should have the names on there, but who knew that. Quiel: Why didn't you give us a memo a month ago that says, on the appointments, you better have them prepared so they're on the Agenda, at least the names. Mayor: Well, again, we were to have had a workshop. Quiel: I realize that you're also. Hernandez: Ralph, tell him you were busy preparing these other directives. Mayor: We're still on the discussion of the resolution. further discussion, call for the question. If there's no 24