03/13/2014 Open Government Commission Regular Meeting Adopted 05/29/2014
Open Government Commission Meeting
Agenda 3/13/2014
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GILROY OPEN GOVERNMENT COMMISSION
MINUTES
THURSDAY, MARCH 13, 2014
I. OPENING
A. Call to Order and Roll Call
City Clerk Shawna Freels called the meeting to order at 6:00 p.m.
ROLL CALL:
Present: Commissioners: Janet Espersen, Jack Foley, Walter Glines, Luann
Manseau
Absent: Robert Esposito
II. Selection of Open Government Commission Chairperson to Serve a (1) One -
year Term per Gilroy City Code Section 17A.35 (b) (report attached)
The staff report was presented by City Clerk Freels.
There were no public comments.
Motion on Item II.
Motion was made by Commissioner Foley and Seconded by Commissioner
Espersen to Appoint Commissioner Glines as Chairperson to Serve for One (1)
Year. The motion carried 3-0-1-1, Commissioner Esposito absent and
Commissioner Glines abstaining.
Commissioner Glines suggested appointing a Vice Chair.
City Clerk Freels suggested including the Vice Chair appointment on a future agenda.
III. PRESENTATIONS TO THE OPEN GOVERNMENT COMMISSION
Commissioner Esposito joined the meeting at 6:05 p.m.
A. PUBLIC COMMENT BY MEMBERS OF THE PUBLIC ON ITEMS NOT ON THE
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AGENDA, BUT WITHIN THE SUBJECT MATTER JURISDICTION OF THE
COMMISSION
Chris Foy of the Gilroy Dispatch spoke on a recent request for public information which
had been denied by the City, asking to appeal the denial.
City Clerk Freels explained that the denial had not been formally appealed to the
Commission and was not on the evening's agenda.
City Administrator Haglund shared the process of appeal to the City Administrator, and
further to the Open Government Commission.
City Attorney Callon explained that there was an appeal form that the appellant would file
to appeal the decision.
Commissioner Foley asked for the background on the item. He then explained that he
was on the editorial board of the Dispatch, but made no fiduciary decisions and was on a
leave of absence from the board, asking if anyone had a concern with a conflict.
City Attorney Callon explained that the possibility of conflict could be further described
once an official appeal was filed.
City Administrator Haglund asked if the request was listed on the quarterly report of
records requested.
City Clerk Freels explained that the quarterly log of requests included the individual public
records request Chris was speaking of, and included the code citations regarding the
denial of the records release.
Mr. Foy further explained that the request had come from a 2013 Grant Jury report
related to public employee industrial disability claims of city of Gilroy public safety
employees, stating that a similar request had been made of the City of Bell, California
and the request had been filled. He explained that the paper was asking the city of Gilroy
to be as transparent, stating that Gilroy had spent a significant amount of legal fees to
research the request and he didn't believe the city should withhold the information.
City Attorney Callon spoke on the inability to discuss the item as it had not been
agendized.
Chair Glines spoke on the ability to limit public comment speaker timing and suggested
that the item be placed on the next commission agenda.
City Administrator Haglund asked that the Dispatch provide any correspond ence with the
City of Bell providing their legal ability to disclose the records.
There was a discussion of the process of appealing to the City Administrator and then on
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to the Open Government Commission as a recommendation to the City Council.
Public comment was then closed.
IV. CONSENT CALENDAR
A. Approval of the Minutes of December 12, 2013
There were no public comments.
Motion on Item IV.A.
Motion was made by Commissioenr Foley, Seconded by Commissioner Esposito to
approve the item. The motion carried 3-0-2 Commissioners Espersen and Manseau
abstaining.
V. UNFINISHED BUSINESS
A. Transparency in Employee Negotiations
The item was introduced by City Administrator Haglund and the staff report was further
presented by Human Resources Director McPhillips.
There was discussion regarding the difference between the City of Costa Mesa and
Gilroy negotiations processes and the process of layoffs due to budgetary issues.
Commissioner Foley asked if a cost comparison between the Costa Mesa and Gilroy
processes had been provided.
Human Resources Director McPhillips stated that it had not.
Chair Glines then asked if staff had asked if staff had spoken to the labor groups in Costa
Mesa to see how they viewed the change in the city. He then asked i f the bargaining
positions had been tempered with the new ordinance.
Human Resources McPhillips stated that she had only spoken with the Human
Resources Manager. She then stated that she had no indication that the bargaining had
been affected with the new ordinance.
Commissioner Foley asked if Costa Mesa's position would have been different if there
wasn't so much transparency. He then asked if the nature of the City Council had
changed prior to the adoption of the ordinance.
Human Resources McPhillips stated that she didn't believe the negotiations would
change as the city was seeking concessions due to the need to balance their budget.
She then explained that layoffs were not bargained, and were a fiscal decision of the
Council and stated that the membership of the Council had changed.
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City Administrator Haglund stated that Bell had a considerable structural deficit and their
position was driven by getting costs under control, similar to what Gilroy had done in
2009 to balance the general fund budget with concessions and layoffs.
City Attorney Callon spoke on the political issues that could have caused the City of
Costa Mesa to amend their processes.
Chair Glines asked that the Gilroy labor groups be brought into the discussions when the
Commission looked further into considering a similar ordinance as the Costa Mesa
ordinance.
Commissioner Foley spoke on the costs of negotiations. He then spoke on the recent
contact Fire protections services in Costa Mesa.
City Administrator Haglund stated that under Government Code each side bares the
costs for negotiations. He further spoke on protracted negotiations verses the general
negotiations of salary and other minor items explaining that a longer negotiation process
could call for the hiring an independent attorney to assist in the process.
Commissioner Foley spoke on the process in Costa Mesa and further asked if Gilroy had
used a formal negotiation attorney.
City Administrator Haglund spoke on the narrower items discussed in a more informa l
negotiation process and described the 2009 and 2010 concession bargaining stating that
the labor units were somewhat respectful of the financial situation the city was in.
Human Resources Director McPhillips stated that the city had used both processes.
Commissioner Espersen stated that the more recent simplified negotiation process in
Gilroy sounded to be somewhat successful.
Commissioner Foley asked staff to summarize the biggest differences between the two
city's processes.
Human Resources Director McPhillips spoke on the less costly more informal
negotiations processes and the cooperative labor units in Gilroy who understood that the
more protracted negotiations processes were difficult for both the city and the bargaining
unit.
Commissioner Foley asked how much more transparency would be created with the
adoption of a similar ordinance in Gilroy.
Human Resources Director stated that the incremental steps of the process would be
produced for the public along the way.
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that future presentation material be included.
Public comment
Perry Woodward spoke on the genesis of the Open Government Ordinance and his
former position on the Commission explaining that there were suspect issues presented
by police staff to the then City Administrator, which had n ot been handled openly and he
had filed a public records request for details of the issue which had been denied, so he
filed a law suit against the city. He went on to explain that he had not won but he then
recognized how important open government was as an issue for him. He explained that
his platform in 2007 was open government and when elected he brought forward the
Gilroy Open Government ordinance and he was very happy to see that his vision to have
a fully citizen commission had finally come to fruition. He went on to explain that he would
like to see the city consider a similar ordinance stating that 80% of the city general fund
was spent on public safety.
Public comment was then closed.
Chair Glines spoke on the earlier public comment explaining that an appeal could
potentially come back to the commission.
Commissioner Foley suggested that a letter of commendation be crafted to recognize Mr.
Woodward and the City Council and staff for the efforts to bring transparency to Gilroy .
Commissioner Esposito stated that Costa Mesa's ordinance was good for a more hostile
negotiations, stating that though there were neutral negotiations in Gilroy, in the future a
similar ordinance could be helpful in the process.
Commissioner Espersen stated that the Cost Mesa ordinance seemed somewhat
innocuous. She then explained that the transparency component of their process was
the more significant item of differnece.
City Administrator Haglund suggesting looking at the two processes side by side for a
clear idea explaining that an ordinance that provided the Council with more of an optional
processes verses mandates that have costs associated with them.
Commissioner Manseu stated that the outside unbiased person in the process was
helpful as the finacial facts were the only issues and no staff or bargaining unit feelings
on the issue were brought into the process.
City Administrator Haglund stated that the city had brought in a negotiator in the past and
the difference was mandating that the negotiator be use d.
Commissioner Manseu stated that the City of Costa Mesa was significantly larger than
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Gilroy and the costs for the process would be quite a bit less.
Chair Glines stated that the attorney fees would be similar.
Commissioner Foley stated that if the Co uncil wanted to explore the item, a threshold
could possibly be considered to set the process in motion if informal negotiations were
not working in 30 days, then more formal negotiations could take place.
City Administrator Haglund stated that the transp arency process as Commissioner
Espersen had suggested could be the better approach and then went on to describe the
need to bring in a chief negotiator to represent the direction of the Council. He further
explained that Costa Mesa was attempting to require the Council to be more
accountable.
Commissioner Foley suggested that the mandate of the Commission was to focus on the
transparency aspects of the ordinance, explaining that the Council was accountable to
the public.
Chair Glines spoke on the Council bargaining in bad faith, suggesting that a trigger that
called the negotiations to be more transparent was important.
Chair Glines then asked that the PowerPoint presentation material be provided to the
Commission as it included additional information n ot previously included in the meeting
material. He then asked that in the future any PowerPoint be provided to the commission
ahead of the meeting along with the packet material.
City Administrator Haglund stated that if staff time allowed the PowerPoint material would
be provided and was typically in support of the written staff report.
Chair Glines explained that the presentation material included more information than
provided in the staff report, sharing his presentation to the City Council which wa s
supported by a thorough staff report supported by a PowerPoint of the same information.
He then asked if there was a similar ordinance in any other city in the State.
Human Resources Director McPhillips stated that she did not know.
Chair Glines suggested that a survey of the League of California Cities be made to see if
other similar ordinances were in place in other cities to provide to the commission
Commissioner Foley suggested that members of the bargaining units be provided the
opportunity to share their thoughts with the commission to see if the transparency would
impact their negotiations in any way.
Commissioner Esposito suggested that a review of the differences between the Costa
Mesa process and Gilroy's process would be the first step for the Commission.
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Motion on Item V.A.
Motion was made by Commissioner Esposito, seconded by Commissioner Foley to
direct staff to provide a comparative analysis of the differences between the two
processes through the eye of transparency. The motion carried 5-0.
VI. NEW BUSINESS
A. Quarterly Review of Public Records Requests per Gilroy Code Section 17A.35 (c)
The staff report was presented by City Administrator Haglund.
Commissioner Foley asked for the interpretation of a government code section use d to
deny a request asking how the use of the word "data" had been made. He then asked for
a generic interpretation of the code section as applied. He further explained that the
threat of a lawsuit was different to the threat of an appeal.
City Attorney Callon explained that it may not be appropriate to discuss the particular
issue explaining that she could not respond to the question at the time, and further
explained that the city did not set out to deny public records, but set out to respond, but
with the particular request the release of the information requested was not in the city's
purview. She further explained that an interpretation of the law could not be made in a
generic way as most statues were applied to a situation and further explained that the
item would be appealed to the City as disclosed under public comment .
City Administrator Haglund stated that there should be an unobstructed view of the
appeal prior to hearing it.
Chair Glines suggested that the commission could agendize the parti cular question at the
next meeting if the appeal was not filed. He then asked that the opinion of the attorney be
provided along with any response to the appeal request.
There were no public comments.
Motion on Item VI.A.
Motion was made by Commissioner Espersen and Seconded by Commissioner
Manseau to Receive Report. The motion carried 5-0.
B. Discussion of Possible Amendments to Section 17A.20 of the City Code "Gilroy
Open Government Ordinance"
City Administrator Haglund stated that City staff had review the concept of setting appeal
deadlines and did not see a need to limit timing.
City Attorney Callon explained that the ordinance did not include any time limitations on
filing appeals, as seen in much of the rest of the city code, but with furthe r review of the
particular section of the code section it did not make sense in the context as a request for
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public records can be filed at any time .
City Administrator Haglund stated that Chair Glines had asked that the names of
members of the public requesting records be included on the quarterly log presented to
the commission stating that the existing ordinance prohibited the names from being
included sharing the history of the Open Government Commission making the same
request. He then spoke on Commissioner Glines request to extend terms.
Chair Glines stated that he believed that the names should be disclosed stating that he
didn't see that adding the names would "chill" members of the public from filing requests.
He then shared his other suggested amendment was to extend Commission members
terms to 4 year terms, similar to the other commissions of the City.
Commissioner Foley asked what actions the prior Open Government Commission had
made.
City Clerk Freels explained that the issue of providing the names within the quarterly had
been addressed by the Open Government Commission at two difference occasions for
formal action twice before, in 2010 and 2012.
Commissioner Foley then explained that a member of the public could come in and
request a record without giving their name stating that in the spirit of requesting
information, the framers of the law had seen that the main issue was making the
information available.
Commissioner Manseau suggested that the person requesting the information should be
accountable for requesting the information.
City Attorney Callon explained that the idea was to prohibit a fear of any retribution.
Commissioner Esposito stated that members of the public should be made aware of their
freedoms stating that he didn't see the need to include names in the report.
Commissioner Foley asked if the public was told they did not need to provide their name
when requesting records. He then asked the commission to make the request that the
form for requesting a record include a statement that their names and contact information
were not required.
City Clerk Freels explained that the public was not told that their name was not required
She then stated that she had had requestors who had not chosen to include their name
when making the request.
Commissioner Espersen stated that she did not see the need for the names to be
disclosed on the quarterly report if the person was not legally required to produce a
name.
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There was a discussion of extending terms to 4 years and staggering terms similar to
how other commissions were formed, and extending the existing terms to 4 years.
There were no public comments.
Motion on Item VI.B.
Motion was made by Commissioner Foley, seconded by Commissioner Manseau to
Receive Direct Staff to recommend the Council modify the ordinance to 4 year
staggered terms. The motion carried 5-0.
Chair Glines suggested that the Commission recommendation for a Vice Chairperson be
included in the modifications to the ordinance.
City Administrator Haglund stated that the ordinance did not need to be amended as the
action was perfunctory, suggesting that the item be placed on the next agenda.
City Clerk Freels suggested that the Commission consider including the speaker limit
timing along with the Vice Chair position in a Commission bylaws document similar to
what other boards and commission of the city had.
The Commission agreed to the recommendation of Bylaws for review at the next
meeting.
VII. CITY ADMINISTRATOR'S REPORTS
There was no report.
VIII. CITY ATTORNEY'S REPORTS
There was no report.
IX. CITY CLERK’S REPORTS
City Clerk Freels spoke on the progress with the new Open Government training video.
X. REPORTS OF COMMISSION MEMBERS
Commissioner Foley spoke on the Editorial opinion article i n the newspaper related to the
Smith case in the City of San Jose regarding disclosure of personal email.
Chair Glines suggested that the article be copied to the full Commission.
There was a discussion of the details of the case and the variety of concerns with
personal email accounts co-mingling with city of business purposes.
City Attorney Callon spoke on her recommendation to the Council and Commission
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members to not use their personal email for city business, suggesting that an acco unt be
established sole for city business in lieu of having a city provided email account.
Chair Glines asked for an update from staff regarding an earlier request for email
accounts for all boards an commissions of the city.
City Administrator Haglund stated that he needed to check on the status of the item as he
recalled that it had gone to the City Council.
Commission Members Manseau and Espersen introduced themselves.
Chair Glines spoke on his annual presentation to the City Council on behalf of the
commission.
XI. FUTURE COMMISSION INITIATED AGENDA ITEMS – SCHEDULE NEXT
QUARTERLY MEETING
The Commission set the next meeting date for May 29, 2014.
Commissioner Foley spoke on the content of the letter to Mayor Pro Tempore Woodward
and the Council.
XII. ADJOURNMENT
The meeting adjourned at 8:04 p.m.
______________________________
Shawna Freels, MMC
City Clerk