Ordinance 2008-11ORDINANCE NO. 2008-11
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
GILROY ESTABLISHING REGULATIONS GOVERNING
ACCESS TO PUBLIC MEETINGS AND PUBLIC RECORDS, AND
ESTABLISHING AN OPEN GOVERNMENT COMMISSION
("GILROY OPEN GOVERNMENT ORDINANCE")
THE CITY COUNCIL OF THE CITY OF GILROY DOES HEREBY
ORDAIN AS FOLLOWS:
A new Chapter 17A to be titled "Public Meetings and Public Records" is hereby
added to the Gilroy City Code, to read as follows:
ARTICLE I
Sec. 17A.1 Purpose and Intent
On behalf of the people of the City of Gilroy, the City Council declares:
(a) Whereas, transparency in decision making is a cornerstone of democracy.
(b) Whereas, elected officials, commissions, boards, task forces, and other
agencies of the City undertake the people's business and in so doing commit themselves
to the highest principles of transparency so that every citizen can know and participate in
democracy at the local level.
(c) Whereas, California has a long tradition of laws designed to protect the
public's access to the workings of government, and each generation of elected officials
and municipal employees should commit themselves to the principles of transparency and
seek to implement new approaches that keep the public informed about policy decisions.
Experience teaches that as government evolves, so must the laws designed to ensure that
the workings of local government remain visible to all.
(d) Whereas, transparency in governmental policy decisions is paramount and
only in rare and unusual circumstances should decisions made on behalf of the people
take place out of public view. Those circumstances should be carefully and narrowly
defined.
(e) Whereas, public accountability for all decisions made on behalf of the
people will protect the public's interest in open government.
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(f) The City Council enacts this Chapter to assure that the people of the City
remain in control of the government they have created.
(g) Private entities, individuals, employees and officials of Gilroy have rights
to privacy that must be respected. However, when a person or entity is before a policy
body, that person, and the public, has the right to an open and public process.
Sec. 17A.2 Citation
This Chapter may be cited as "the Gilroy Open Government Ordinance."
Article II
Sec. 17A.3 Definitions
Whenever in this Chapter the following words or phrases are used, they shall have
the following meanings:
(a) "City" shall mean the City of Gilroy.
(b) "Meeting" shall mean any of the following:
(1) A congregation of a majority of the members of a policy body at
the same time and place to discuss or deliberate City business
(whether a "collective concurrence" is reached or not, as that term
is used in Wolfe v City of Fremont (2006) 144 Cal. App.4th 533).
(2) A series of gatherings, each of which involves less than a majority
of a policy body, to hear, discuss or deliberate upon any item that
is within the subject matter jurisdiction of the City, if the
cumulative result is that a majority of members has become
involved in such gatherings (whether a "collective concurrence" is
reached or not, as that term is used in Wolfe v City of Fremont
(2006) 144 Cal. App.4th 533); or,
(3)
Any other use of personal intermediaries or communications media
that could permit a majority of the members of a policy body to
become aware of an item of business and of the views or positions
of other members with respect thereto, and to negotiate consensus
thereupon (whether a "collective concurrence" is reached or not, as
that term is used in Wolfe v City of Fremont (2006) 144 Cal.
App.4th 533).
(4) "Meeting" shall not include any of the following:
(A) Individual contacts or conversations between a member of
a policy body and another person that do not convey to the
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member the views or positions of other members upon the
subject matter of the contact or conversation and in which
the member does not solicit or encourage the restatement of
the views of the other members;
(B) The attendance of a majority of the members of a policy
body at a regional, statewide or national conference, or at a
meeting organized to address a topic of local community
concern and open to the public, provided that a majority of
the members refrains from using the occasion to
collectively discuss the topic of the gathering or any other
business within the subject matter jurisdiction of the City;
or
(C) The attendance of a majority of the members of a policy
body at a purely social, recreational or ceremonial occasion
other than one sponsored or organized by or for the policy
body itself, provided that a majority of the members
refrains from using the occasion to discuss any business
within the subject matter jurisdiction of the policy body.
(D) The attendance of a majority of the members of a policy
body at an open and noticed meeting of a standing
committee of that body, provided that the members of the
policy body who are not members of the standing
committee attend only as observers.
(E) "Policy bodies" shall mean the City Council, appointed
subcommittees of the City Council except for ad hoc
subcommittees appointed for a single purpose on a
temporary basis, Commissions, Boards, and City created
task forces. Policy bodies shall not include a committee that
consists solely of employees of the City of Gilroy.
(F) Electronic mail exchanged between members of a policy
body and/or city staff, exclusively through the use of those
members' city email addresses, so long as such electronic
mail is subject to inspection under subsection 17A.20(k) of
this act. Notwithstanding the foregoing sentence, such
email exchanges shall not violate the Ralph M. Brown Act.
Sec. 17A.4 Meetings to be Open and Public; Application of Brown Act
All meetings of any policy body shall be open and public, and governed by the
provisions of the Ralph M. Brown Act (Government Code Sections 54950 et. seq.) and of
this Chapter. In case of inconsistent requirements under the Brown Act and this Chapter,
the requirement, which would result in greater or more expedited public access, shall
apply.
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Sec. 17A.5 Agenda Requirements; Regular Meetings
(a) At least seventy-two (72) hours before a regular meeting, a policy body
shall post an agenda containing a meaningful description of each item of
business to be transacted or discussed at the meeting. Agendas shall
specify for each item of business the proposed action or a statement the
item is for discussion only. In addition, a policy body shall post a current
agenda on the City's Internet website at least seventy-two (72) hours
before a regular meeting.
(b) At least seven (7) calendar days before a regular City Council meeting, a
preliminary agenda shall be posted containing a meaningful description of
each item of business anticipated at the time of posting the preliminary
agenda to be transacted or discussed at the meeting. These agendas shall
specify for each item of business the proposed action or a statement the
item is for discussion only. In addition, the preliminary agenda shall be
posted on the City's Internet website at least seven (7) calendar days
before the regular City Council meeting. Staff reports prepared and ready
at the time of posting of the preliminary agenda may also be posted to the
website.
(c) A description should be brief, concise and written in plain, easily
understood English. It shall refer to any explanatory documents that have
been provided to the policy body in connection with an agenda item, such
as correspondence or reports. Such documents shall be made available for
public inspection and copying at a location indicated on the agenda during
normal office hours.
The agenda shall specify the time and location of the regular meeting and
shall be posted at locations that are freely accessible to members of the
public.
No action or discussion shall be undertaken on any item not appearing on
the posted agenda, except that members of a policy body may respond to
statements made or questions posed by persons exercising their public
testimony rights, to the extent of asking a question for clarification,
providing a reference to staff or other resources for factual information, or
requesting staff to report back to the body at a subsequent meeting
concerning the matter raised by such testimony.
(f) Notwithstanding subdivision (e), the policy body may take action on items
of business not appearing on the posted agenda under any of the following
conditions:
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(g)
(1) Upon a determination by a majority vote of the body that an
accident, natural disaster or work force disruption poses a threat to public
health and safety.
(2) Upon a good faith, reasonable determination by a two-thirds vote
of the body, or, if less than two-thirds of the members are present, a
unanimous vote of those members present, that (A) the need to take
immediate action on the item is so imperative as to threaten serious injury
to the public interest if action were deferred to a subsequent special or
regular meeting, or relates to a purely commendatory action, and (B) that
the need for such action came to the attention of the body subsequent to
the agenda being posted as specified in subdivision (a).
(3) The item was on an agenda posted pursuant to subdivision (a) for a
prior meeting of the body occurring not more than five calendar days prior
to the date action is taken on the item, and at the prior meeting the item
was continued to the meeting at which action is being taken.
(4) Upon a determination by a majority vote that staff has
demonstrated good cause to present documentation at a meeting that was
not made available 72 hours in advance on the City website in accordance
with subsection 17A.10(c) of this Chapter
Each policy body shall ensure that notices and agendas for regular and
special meetings shall include the following notice:
KNOW YOUR RIGHTS UNDER THE OPEN GOVERNMENT
ORDINANCE. Government's duty is to serve the public, reaching its
decisions in full view of the public. Commissions, task forces, councils
and other agencies of the City exist to conduct the people's business.
This ordinance assures that deliberations are conducted before the
people and that City operations are open to the people's review.
FOR MORE INFORMATION ON YOUR RIGHTS UNDER THE
OPEN GOVERNMENT ORDINANCE OR TO REPORT A
VIOLATION OF THE ORDINANCE, CONTACT THE OPEN
GOVERNMENT COMMISSION
(h) Each agenda of a policy body covered by this Open Government
Ordinance shall include the address, area code and phone number, fax
number, e-mail address, and contact person for the Open Government
Commission. Information on how to obtain a free copy of the Open
Government Ordinance shall be included on each agenda.
Sec. 17A.6 Public Notice Requirements
(a) Any public notice that is mailed, posted or published by a City
department, task force, agency or commission to residents residing within
a specific area to inform those residents of a matter that may impact their
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property or that neighborhood area, shall be brief, concise and written in
plain, easily understood English.
(b) The notice should inform the residents of the proposal or planned activity,
the length of time planned for the activity, the effect of the proposal or
activity, and a telephone contact for residents who have questions.
(c) If the notice informs the public of a public meeting or hearing, then the
notice shall state that persons who are unable to attend the public meeting
or hearing may submit to the City, by the time the proceeding begins,
written comments regarding the subject of the meeting or hearing, that
these comments will be made a part of the official public record, and that
the comments will be brought to the attention of the person or persons
conducting the public meeting or hearing. The notice should also state the
name and address of the person or persons to whom those written
comments should be submitted.
Sec. 17A.7 Additional Public Statements and Comments
When notice is given, as provided in this Chapter, by public policy or advisory
bodies, members of the public may submit statements and/or comments regarding any
item on those bodies' meeting agendas; those statements or comments shall become
public record, regardless of whether their authors are present when the item at issue is
discussed. Statements or comments shall be subject to review and consideration by those
bodies if submitted before or during the hearing on the item.
Sec. 17A.8 Agenda Disclosures: Closed Sessions
(a) In addition to the brief general description of items to be discussed or
acted upon in open and public session, the agenda posted pursuant to
Government Code Section 54954.2, any mailed notice given pursuant to
Government Code Section 54954.1, and any call and notice delivered to
the local media and posted pursuant to Government Code Section 54956
shall specify and disclose the nature of any closed sessions by providing
all of the following information:
(1) With respect to a closed session held pursuant to Government
Code Section 54956.7:
LICENSE/PERMIT DETERMINATION
applicant(s)
The space shall be used to specify the number of persons whose
applications are to be reviewed.
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(2) With respect to every item of business to be discussed in closed
session pursuant to Government Code Section 54956.8:
CONFERENCE WITH REAL PROPERTY NEGOTIATOR
Property:
Person(s) negotiating:
Under negotiation:
Price: Terms of payment: Both:
The space under "Property" shall be used to list an address,
including cross streets where applicable, or other description or
name which permits a reasonably ready identification of each
parcel or structure subject to negotiation. The space under
"Person(s) negotiating" shall be used to identify the person or
persons with whom negotiations concerning that property are in
progress. The spaces under "Under negotiation" shall be checked
off as applicable to indicate which issues are to be discussed.
(3) With respect to every item of business to be discussed in closed
session pursuant to Government Code Section 54956.9, either:
CONFERENCE WITH LEGAL COUNSEL
Existing Litigation:
Case Name
Court
Case Number
or:
Unspecified to protect service of process
Unspecified to protect settlement posture
Anticipated Litigation:
As defendant
As plaintiff
The space under "Existing Litigation" shall be used to specifically
identify a case under discussion pursuant to subdivision (a) of
Government Code Section 54956.9, including the case name,
court, and case number, unless the identification would jeopardize
the City's ability to effectuate service of process upon one or more
unserved parties, in which instance the space in the next
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succeeding line shall be checked, or unless the identification would
jeopardize the City's ability to conclude existing settlement
negotiations to its advantage, in which instance the space in the
next succeeding line shall be checked. If the closed session is
called pursuant to subdivision (b) or (c) of Section 54956.9, the
appropriate space shall be checked under "Anticipated litigation"
to indicate the City's anticipated position as defendant or plaintiff
respectively. If more than one instance of anticipated litigation is
to be reviewed, space may be saved by entering the number of
separate instances in the "As defendant" or "As plaintiff' spaces or
both as appropriate.
(4) With respect to every item of business to be discussed in closed
session pursuant to Government Code Section 54957, either:
(5)
THREAT TO PUBLIC SERVICES OR FACILITIES
Name, title and agency of law enforcement officer(s) to be
conferred with:
PUBLIC EMPLOYEE APPOINTMENT/HIRING
Title/description of position(s) to be filled:
PUBLIC EMPLOYEE PERFORMANCE EVALUATION
Position and, in the case of a routine evaluation, name of
employee(s) being evaluated:
or:
PUBLIC EMPLOYEE DISMISSAL/DISCIPLINE/RELEASE
Number of employees affected:
With respect to every item of business to be discussed in closed
session pursuant to Government Code Section 54957.6, either:
CONFERENCE WITH NEGOTIATOR COLLECTIVE
BARGAINING
Name and title of City's negotiator:
Organization(s) representing:
Anticipated issue(s) under negotiation
Wages
Hours
Benefits
Working Conditions
Other (specify if known)
All
Where renegotiating a memorandum of understanding or
negotiating a successor memorandum of understanding, the name
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of the memorandum of understanding. In case of multiple items of
business under the same category, lines may be added and the
location of information may be reformatted to eliminate
unnecessary duplication and space, so long as the relationship of
information concerning the same item is reasonably clear to the
reader. As an alternative to the inclusion of lengthy lists of names
or other information in the agenda, or as a means of adding items
to an earlier completed agenda, the agenda may incorporate by
reference separately prepared documents containing the required
information, so long as copies of those documents are posted
adjacent to the agenda within the time periods required by
Government Code Sections 54954.2 and 54956 and provided with
any mailed or delivered notices required by Sections 54954.1 or
54956.
Sec. 17A.9 Additional Requirements for Closed Sessions
Each agenda item for a policy body covered by this Chapter that involves existing
litigation shall identify the court, case number, and date the case was filed on the written
agenda. For each agenda item for a group covered by this Chapter that involves
anticipated litigation, the City Attorney's Office or the policy body shall disclose at any
time requested and to any member of the public whether such anticipated litigation
developed into litigation and shall identify the court, case number, and date the case was
filed.
Sec. 17A.10 Agendas and Related Materials: Public Record
(a) Agendas of meetings, meeting packets, and any other documents on file
with the clerk of the policy body in connection with a matter anticipated for discussion or
consideration at a public meeting shall be made available to the public for inspection and
copying at the office of the policy body before the hearing and be available to the public
in sufficient quantities at the hearing commensurate with the anticipated needed number
of copies that will be requested by people attending the hearing. However, this disclosure
need not include any material exempt from public disclosure under this Chapter.
(b) Records which are subject to disclosure under subdivision (a) and which
are intended for distribution to a policy body prior to commencement of a public meeting
shall be made available for public inspection and copying upon request prior to
commencement of such meeting, whether or not actually distributed to or received by the
body at the time of the request.
(c) At the same time any regular meeting agenda is posted, City staff shall
also post on its Internet website a complete set of all documents provided to the policy
body in anticipation of such regular meeting. However, this disclosure need not include
any material exempt from public disclosure under this Chapter. City staff shall not
provide any non-exempt documents to a policy body at a regular meeting unless those
documents were posted to the City's website at least 72 hours earlier, unless a majority of
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the members of the policy body specifically approves the submission of such belatedly
provided documents following a showing by staff of good cause at the regular meeting
that justifies waiving of this Internet posting requirement. Records which are subject to
disclosure under subdivision (a) and which are distributed during a public meeting but
prior to commencement of their discussion shall be made available for public inspection
prior to commencement of, and during, their discussion. Records which are subject to
disclosure under subdivision (a) and which are distributed during or following their
discussion at a public meeting shall be made available for public inspection immediately
or as soon thereafter as is practicable.
(d) A policy body may charge a duplication fee as may be set from time to
time by the City Council for a copy of a public record prepared for consideration at a
public meeting. Neither this section nor the California Public Records Act (Government
Code sections 6250 et seq.) shall be construed to limit or delay the public's right to
inspect any record required to be disclosed by that act, whether or not distributed to a
policy body.
Sec. 17A.11 Closed Sessions
A policy body may, but is not required to, hold closed sessions on items within
the subject matter jurisdiction of the policy body:
(a) With the chief of police, or their designated law enforcement
representatives, on matters posing a threat to the security of public buildings or a threat to
the public's right of access to public services or public facilities.
(b) To consider the appointment, employment, evaluation of performance,
dismissal or discipline of a City employee, if the policy body has the authority to appoint,
employ, or dismiss the employee, or to hear complaints or charges brought against the
employee by another person or employee unless the employee complained of requests a
public hearing. The body may exclude from any such public meeting, and shall exclude
from any such closed meeting, during the comments of a complainant, any or all other
complainants in the matter.
(c) Based on advice of its legal counsel, and on a motion and vote in open
session to assert the attorney -client privilege, to confer with, or receive advice from, its
legal counsel regarding pending litigation when discussion in open session concerning
those matters would likely and unavoidably prejudice the position of the City in that
litigation. Litigation shall be considered pending when any of the following
circumstances exist:
(1) An adjudicatory proceeding before a court, administrative body
exercising its adjudicatory authority, hearing officer, or arbitrator,
to which the City is a party, has been initiated formally; or,
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(2) A point has been reached where, in the opinion of the policy body
on the advice of its legal counsel, based on existing facts and
circumstances, there is a significant exposure to litigation against
the City, or the body is meeting only to decide whether a closed
session is authorized pursuant to that advice or, based on those
facts and circumstances, the body has decided to initiate or is
deciding whether to initiate litigation.
(d) With the City's designated representatives regarding matters within the
scope of collective bargaining or meeting and conferring with public employee
organizations when a policy body has authority over such matters. The salary and
benefits of members of the City Council, the City Administrator, and the unrepresented
employees will be discussed and acted upon separately by the City Council in open
session.
(1) Such closed sessions shall be for the purpose of reviewing the
City's position and instructing its designated representatives and
may take place solely prior to and during active consultations and
discussions between the City's designated representatives and the
representatives of employee organizations or the unrepresented
employees. Except for consultations with designated
representatives, a policy body shall not discuss compensation or
other contractual matters in closed session with one or more
employees directly interested in the outcome of the negotiations.
(2) In addition to the closed sessions authorized by subsection
17A.11(d)(1), a policy body subject to Government Code Section
3501 may hold closed sessions with its designated representatives
on mandatory subjects within the scope of representation of its
represented employees, as determined pursuant to Section 3504.
(e) Immediately upon entering into any closed session, the City Council and
any other persons properly present shall discuss only whether the matter
on the agenda for discussion in closed session should proceed in open
session instead of closed session. A roll call vote on this question shall
then be held. If a majority of the Council vote to hear and decide the
matter in open session, the Council shall return to open session
immediately without further discussion and report the vote in open
session. If a majority of the Council vote to hear and decide the matter in
closed session, the Council shall do so and later report the vote on this
question at the first opportunity after returning to open session.
Sec. 17A.12 Statements of Reasons for Closed Sessions
Prior to any closed session, a policy body shall state the general reason or reasons
for the closed session, and shall cite the statutory authority, including the specific section
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and subdivision, or other legal authority under which the session is being held. In the
closed session, the policy body may consider only those matters covered in its statement.
In the case of regular and special meetings, the statement shall be made in the form of the
agenda disclosures and specifications required by Section 17A.8 of this Chapter. In the
case of adjourned and continued meetings, the statement shall be made with the same
disclosures and specifications required by Section 17A.8 of this Chapter, as part of the
notice provided for the meeting. In the case of an item added to the agenda as a matter of
urgent necessity, the statement shall be made prior to the determination of urgency and
with the same disclosures and specifications as if the item had been included in the
agenda pursuant to Section 17A.8 of this Chapter. Nothing in this section shall require or
authorize a disclosure of information prohibited by state or federal law.
Sec. 17A.13 Disclosure of Closed Session Discussions and Actions
(a) After every closed session, a policy body may in its discretion and in the
public interest, disclose to the public any portion of its discussion that is not confidential
under federal or state law, any other law, or non-waiveable privilege. The body shall, by
motion and vote in closed session, elect either to disclose no information or to disclose
the information that a majority deems to be in the public interest. The disclosure shall be
made in open session through the presiding officer of the body or such other person,
present in the closed session, which the presiding officer designates to convey the
information. Such vote shall be reported as soon as possible in open session.
(b) A policy body shall publicly report any action taken in closed session and
the vote or abstention of every member present thereon, as follows:
(1) Real Property Negotiations: Approval given to a policy body's
negotiator concerning real estate negotiations pursuant to
Government Code Section 54956.8 shall be reported as soon as the
agreement is final. If its own approval renders the agreement final,
the policy body shall report that approval, the substance of the
agreement and the vote thereon in open session immediately. If
final approval rests with another party to the negotiations, the body
shall disclose the fact of that approval, the substance of the
agreement and the body's vote or votes thereon upon inquiry by
any person, as soon as the other party or its agent has informed the
body of its approval. If, notwithstanding the final approval, there
are conditions precedent to the final consummation of the
transaction, or there are multiple contiguous or closely located
properties that are being considered for acquisition, the document
referred to in subdivision (b) of this section need not be disclosed
until the condition has been satisfied or the agreement has been
reached with respect to all the properties, or both.
(2) Litigation: Direction or approval given to the body's legal counsel
to prosecute, defend, or seek, or refrain from seeking appellate
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(3)
review or relief or to otherwise enter as a party, intervener or
amicus curiae in any form of litigation as the result of a
consultation pursuant to Government Code Section 54956.9 shall
be reported in open session as soon as given, or at the first meeting
after an adverse party has been served in the matter if immediate
disclosure of the City's intentions would be contrary to the public
interest. The report shall identify the adverse party or parties, any
co -parties with the City, any existing claim or order to be defended
against or any factual circumstances or contractual dispute giving
rise to the City's complaint, petition or other litigation initiative.
Settlement: A policy body shall neither solicit nor agree to any
term in a settlement which would preclude the release of the text of
the settlement itself and any related documentation communicated
to or received from the adverse party or parties. Any written
settlement agreement and any documents attached to or referenced
in the settlement agreement shall be made publicly available at
least ten (10) calendar days before the meeting of the policy body
at which the settlement is to be approved to the extent that the
settlement would commit the City or a department thereof to
adopting, modifying, or discontinuing an existing policy, practice
or program, or otherwise acting other than to pay an amount of
money less than $50,000. The agenda for any meeting in which a
settlement subject to this section is discussed shall identify the
names of the parties, the case number, the court, and the material
terms of the settlement. Where the disclosure of documents in a
litigation matter that has been settled could be detrimental to the
City's interests in pending litigation arising from the same facts or
incident and involving a party not a party to or otherwise aware of
the settlement, the documents required to be disclosed by
subsection (b) of this section need not be disclosed until the other
case is settled or otherwise finally concluded.
(4) Employee Actions: Action taken by the City Council to appoint,
employ, dismiss, transfer or accept the resignation of a public
employee in closed session pursuant to Government Code Section
54957 shall be reported immediately in a manner that identifies the
action taken and position affected and, in the case of dismissal for
a violation of law or of the policy of the City, the reason for
dismissal. Such report shall be consistent with Government Code
sections 3300 and 54957, as well as applicable federal and state
law. "Dismissal" within the meaning of this Chapter includes any
termination of employment at the will of the employer rather than
of the employee, however characterized. The proposed terms of
any separation agreement shall be immediately disclosed as soon
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(5)
as presented to the body, and its final terms shall be immediately
disclosed upon approval by the body.
Collective Bargaining: Any collectively bargained agreement shall
be made publicly available at least ten (10) calendar days before
the meeting of the policy body to which the agreement is to be
reported.
(c) Reports required to be made immediately may be made orally or in
writing, but shall be supported by copies of any contracts, settlement agreements, or other
documents related to the transaction that were finally approved or adopted in the closed
session and that embody the information required to be disclosed immediately shall be
provided to any person who has made a written request regarding that item following the
posting of the agenda, or who has made a standing request for all such documentation as
part of a request for notice of meetings pursuant to Government Code Sections 54954.1
or 54956.
(d) A written summary of the information required to be immediately reported
pursuant to this section, or documents embodying that information, shall be posted by the
close of business on the next business day following the meeting, in the place where the
meeting agendas of the body are posted.
Sec. 17A.14 Barriers to Attendance Prohibited
No policy body shall conduct any meeting, conference or other function in any
facility that excludes persons on the basis of actual or presumed class identity or
characteristics, or which is inaccessible to persons with physical disabilities, or where
members of the public may not be present without making a payment or purchase.
Whenever the City Council, a task force, board or commission, or any committee thereof
anticipates that the number of persons attending the meeting will exceed the legal
capacity of the meeting room, any public address system used to amplify sound in the
meeting room shall be extended by supplementary speakers to permit the overflow
audience to listen to the proceedings in an adjacent room or passageway, unless such
supplementary speakers would disrupt the operation of a City office.
Sec. 17A.15 Tape Recording, Filming and Still Photography
(a) Any person attending an open and public meeting of a policy body shall
have the right to record the proceedings with an audio or video recorder or a still or
motion picture camera, or to broadcast the proceedings, in the absence of a reasonable
finding of the policy body that the recording or broadcast cannot continue without such
noise, illumination or obstruction of view as to constitute a persistent disruption of the
proceedings.
(b) The City Council and Planning Commission shall video record each
meeting. All other commissions, boards and task forces shall audio record each meeting.
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Each such video recording, and any audio or video recording of a meeting of any other
policy body made at the direction of the policy body shall be a public record subject to
inspection pursuant to the California Public Records Act (Government Code Section
6250 et seq.), and shall not be erased or destroyed. The video recording of all regular
meetings of the City Council and Planning Commission shall within one week of the
meeting be made available by webcast on the City's website and shall remain on the
City's website for a period of at least ten (10) years from the meeting. The audio and/or
video record of all meetings under this subdivision shall be kept for at least twenty (20)
years. Audio records of audio taped meetings shall be provided upon request and
payment for the actual cost of the recording. Requests shall be made through the City
Clerk.
Sec. 17A.16 Public Testimony and Council Announcements
(a) Every agenda for regular meetings shall provide an opportunity for
members of the public to directly address a policy body on any item, provided that no
action shall be taken on any item not appearing on the agenda unless the action is
otherwise authorized by subsection 17A.5(f) of this Chapter.
(b) Every agenda for meetings at which action is proposed to be taken on an
item shall provide an opportunity for each member of the public to directly address the
body concerning that item prior to action thereupon.
(c) Each policy body shall adopt a rule providing that each person wishing to
speak on an item before the body at a regular or special meeting shall be permitted to be
heard. However, the Chair of the meeting has discretion to adjust the speaking time.
Time limits shall be applied uniformly to members of the public wishing to testify. The
Chair of the policy body shall accept public testimony in a fair and evenhanded way,
without manipulation in the order of speakers.
(d) A policy body shall not abridge or prohibit public criticism of the policy,
procedures, programs or services of the City, or of any other aspect of its proposals or
activities, or of the acts or omissions of the body, on the basis that the performance of one
or more public employees is implicated, or on any basis other than reasonable time
constraints adopted in regulations pursuant to subsection (c) of this section.
(e) To facilitate public input, any agenda changes or continuances shall be
announced by the presiding officer of a policy body at the beginning of a meeting, or as
soon thereafter as the change or continuance becomes known to such presiding officer.
Sec. 17A.17 Minutes
(a) The Clerk or Secretary of each policy body shall record the written
minutes of all regular meetings of the policy body.
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(b) The draft minutes of each meeting shall be posted on the City's website
and be available for inspection and copying upon request no later than ten (10) working
days after the meeting. The officially adopted minutes shall be available for inspection
and copying upon request no later than ten working days after the meeting at which the
minutes are adopted. All votes, including voice votes, shall be properly recorded.
Sec. 17A.18 Public Comment By Members of Policy Bodies
Every member of a policy body retains the full constitutional rights of a citizen to
comment publicly on the wisdom or propriety of government actions, including those of
the policy body of which he or she is a member. Policy bodies shall not sanction, reprove
or deprive members of their rights as elected or appointed officials for expressing their
judgments or opinions, including those which deal with the perceived inconsistency of
non-public discussions, communications or actions with the requirements of state or
federal law or of this Chapter. The release of specific factual information made
confidential by state or federal law including, but not limited to, the privilege for
confidential attorney -client communications, may be the basis for a request for injunctive
or declaratory relief, seeking an accusation of misconduct, or both.
ARTICLE III.
Sec. 17A.19 Definitions
Whenever in this Chapter the following words or phrases are used, they shall
mean:
(a) "Public Information" shall mean the content of "public records" as defined
in the California Public Records Act (Government Code Section 6252), whether provided
in documentary form or in an oral communication.
(b) "Public Information" shall not include "computer software" developed by
the City of Gilroy as defined in the California Public Records Act (Government Code
Section 6254.9).
Sec. 17A.20 Process for Gaining Access to Public Records; Administrative
Appeals
(a) Every department head whose has custody of any public record or public
information as defined herein or who manages, directly or indirectly, subordinate
employees within that department that have custody of any public record or public
information as defined herein, or that department head's designated representative under
subsection 17A.22(a) below (hereinafter referred to as "a Department Head") shall, at
normal times and during normal and reasonable hours of operation, without unreasonable
delay, and without requiring an appointment, permit the public record, or any segregable
portion of a record, to be inspected and examined by any person and shall furnish one
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copy thereof upon payment of a reasonable copying charge as may be set from time to
time by the City Council.
(b) A Department Head shall, as soon as possible and within ten (10) calendar
days following receipt of a request for inspection or copy of a public record, comply with
such request. Such request may be delivered to the office of the Department Head by the
requester orally or in writing by fax, postal delivery, or email. If the Department Head
believes the record or information requested is not a public record or is exempt, the
Department Head shall justify withholding any record by demonstrating, in writing as
soon as possible and within ten (10) calendar days following receipt of a request, that the
record in question is exempt under express provisions of this Chapter.
(c) A Department Head shall assist a requester in identifying the existence,
form, and nature of any records or information maintained by, available to, or in the
custody of the Department Head, whether or not the contents of those records are exempt
from disclosure and shall, when requested to do so, provide in writing within seven (7)
calendar days following receipt of a request, a statement as to the existence, quantity,
form and nature of records relating to a particular subject or questions with enough
specificity to enable a requester to identify records in order to make a request under (b).
A Department Head, when not in possession of the record requested, shall assist a
requester in directing a request to the proper office or staff person.
(d) If the Department Head refuses, fails to comply, or incompletely complies
with a request described in (b), the person making the request may petition the City
Administrator in writing, and in the form required by the Open Government Commission,
for a determination whether the record requested is public. The City Administrator shall
inform the petitioner, as soon as possible and within ten (10) calendar days, of its
determination whether the record requested, or any part of the record requested, is public.
Where requested by the petition, and where otherwise desirable, this determination shall
be in writing. Upon the determination by the City Administrator that the record is public,
the City Administrator shall immediately order the Department Head to comply with the
person's request. If the Department Head refuses or fails to comply with any such order
within five (5) days, the City Administrator shall notify the City Attorney who shall take
whatever measures deemed necessary and appropriate to insure compliance with the
provisions of this Chapter.
(e) If the Department Head refuses, fails to comply, or incompletely complies
with a request described in (b) above or if a petition is denied or not acted upon by the
City Administrator, the person making the request may petition the Open Government
Commission for a determination whether the record requested is public. The Open
Government Commission shall inform the petitioner, as soon as possible and within two
(2) days after its next meeting but in no case later than forty-five (45) days from when a
petition in writing is received, of its determination whether the record requested, or any
part of the record requested, is public. Where requested by the petition, and where
otherwise desirable, this determination shall be in writing. Upon the determination that
the record is public, the Open Government Commission shall advise the City Council as
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to whether the record should be public. The City Council and the City Attorney's office
shall provide sufficient resources to allow the Open Government Commission to fulfill its
duties under this provision. Where requested by the petition, the Open Government
Commission may conduct a public hearing concerning the records request denial. An
authorized representative of the Department Head shall attend any hearing and explain
the basis for its decision to withhold the record requested. Petitions for City
Councilmember records shall be made directly to the Open Government Commission for
its determination according to this paragraph.
(f) The administrative remedy provided under this Chapter shall in no way
limit the availability of other administrative remedies provided to any person with respect
to any officer or employee of any agency, executive office, department or task force; nor
shall the administrative remedy provided by this section in any way limit the availability
of judicial remedies otherwise available to any person requesting a public record. If a
Department Head refuses or fails to comply with the request of any person for inspection
or copy of a public record or with an administrative order under this section, the Superior
Court of California shall retain jurisdiction to order compliance.
(g) In any court proceeding pursuant to this Chapter there shall be a
presumption that the record sought is public, and the burden shall be upon the
Department Head to prove with specificity the exemption which applies.
(h) At least once a year, and as otherwise requested by the Open Government
Commission, the City Administrator shall prepare a tally and report of every petition
brought before it for access to records since the time of its last tally and report. The report
shall at least identify for each petition the record or records sought, the Department Head
of those records, the ruling of the City Administrator, whether any ruling was overturned
by a court and whether orders given to Department Heads of public records were
followed. The report shall also summarize any court actions related to any petitions
during that period. At the request of the Open Government Commission, the report shall
also include copies of all rulings made by the City Administrator and all opinions issued.
(i) The Gilroy City Attorney's office shall act to protect and secure the rights
of the people of Gilroy to access public information and public meetings. The City
Attorney or its designee will monitor the handling of public records when any elected
public official or the City Administrator leaves office and moves materials from the
office. All elected officials and the City Administrator shall surrender all public records
in their possession to the City Attorney or its designee at the time of leaving office.
(j) Release of documentary public information, whether for inspection of the
original or by providing a copy, shall be governed by the California Public Records Act
(Government Code Section 6250 et seq.) to the extent not addressed by this Chapter and
in accordance with the enhanced disclosure requirements provided in this Chapter.
(k) Inspection and copying of documentary public information stored in
electronic form shall be made available to the person requesting the information in any
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form requested which is available to or easily generated by the department, its officers or
employees, including disk, tape, printout or monitor at a charge no greater than the cost
of the media on which it is duplicated. Inspection of documentary public information on a
computer monitor need not be allowed where the information sought is necessarily and
inseparably intertwined with information not subject to disclosure under this Chapter.
Nothing in this section shall require a department to program or reprogram a computer to
respond to a request for information or to release information where the release of that
information would violate a licensing agreement or copyright law.
(1) Nothing in this section shall prohibit the requestor and Department Head
or his/her designee from agreeing to a longer time than provided for herein for the
provision of requested records. Any such mutual agreement shall be in writing and
signed by the requestor.
Sec. 17A.21 Policy Regarding Use of Computer Systems
It is the policy of the City of Gilroy to utilize computer technology in order to
reduce the cost of public records management, including the costs of collecting,
maintaining, and disclosing records subject to disclosure to members of the public under
this section. To the extent that it is technologically and economically feasible,
departments that use computer systems to collect and store public records shall program
and design such systems to ensure convenient, efficient, and economical public access to
records and shall make public records easily accessible over public networks, including
but not limited to the Internet.
Sec. 17A.22 Release of Oral Public Information
Release of oral public information shall be accomplished as follows:
(a) Every department head shall designate a person or persons knowledgeable
about the affairs of the department, to provide information, including oral information, to
the public about the department's operations, plans, policies and positions (referred to
herein as "a Department Head"). The department head may designate himself or herself
for this assignment, but in any event shall arrange that an alternate or alternates be
available for this function during the absence or unavailability of the person assigned
primary responsibility. A list of every city department and every designated and alternate
Department Head for public record inspection purposes, along with those employees'
business addresses, telephone numbers and email addresses, shall be available for
inspection and copying at the Office of the City Clerk and shall be kept and regularly
maintained on the City's website.
(b) The role of the person or persons so designated shall be to provide
information on as timely and responsive a basis as possible to those members of the
public who are not requesting information from a specific person. This section shall not
be interpreted to curtail existing informal contacts between employees and members of
the public when these contacts are occasional, acceptable to the employee and the
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department, not disruptive of the employee's operational duties and confined to accurate
information not confidential by law.
(c) If it would take an employee more than fifteen minutes to obtain the
information responsive to an inquiry or inquiries from a member of the public, the
employee shall notify the requestor of the procedures for obtaining records under this
Chapter.
(d) Public employees shall not be discouraged from or disciplined for the
expression of their personal opinions on any matter of public concern while on duty, so
long as the opinion (1) is not represented as that of the department and does not
misrepresent the department position; and (2) does not disrupt coworker relations, impair
discipline or control by superiors, erode a close working relationship premised on
personal loyalty and confidentiality, interfere with the employee's performance of that
employee's duties or obstruct the routine operation of the office in a manner that
outweighs the employee's interests in expressing that opinion. In adopting this
subdivision, the City Council intends merely to restate and affirm court decisions
recognizing the First Amendment rights enjoyed by public employees. Nothing in this
section shall be construed to provide rights to City employees beyond those recognized
by courts, now or in the future, under the First Amendment, or to create any new private
cause of action or defense to disciplinary action.
(e) Notwithstanding any other provisions of this Chapter, public employees
shall not be discouraged from or disciplined for disclosing any information that is public
information or a public record to any journalist or any member of the public.
Sec. 17A.23 Public Review File — Policy Body Communications
The City Clerk or the designated secretary of a particular policy body shall
maintain a file, accessible to any person during normal office hours, containing a copy of
any letter, memorandum or other communication which the clerk has distributed to or
received from a quorum of the policy body concerning a matter calendared by the body
within the previous thirty (30) days or likely to be calendared within the next thirty (30)
days, irrespective of subject matter, origin or recipient, except commercial solicitations,
periodical publications or communications exempt from disclosure under the California
Public Records Act (Government Code Section 6250 et seq.) and not deemed disclosable
under Section 17A.24 of this Chapter.
Sec. 17A.24 Public Information That Must Be Disclosed
Notwithstanding a department's legal discretion to withhold certain information
under the California Public Records Act, the following policies shall govern specific
types of documents and information and shall provide enhanced rights of public access to
information and records:
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(a) Drafts and Memoranda. No preliminary draft or memorandum shall be
exempt from disclosure under Government Code section 6254, subdivision (a) if it is kept
in the normal course of business. For purpose of this Chapter, "normal course of
business" means in the inherent nature of the city's business in question, and in the
method systematically employed for the conduct of the task in question. Preliminary
drafts and memoranda concerning contracts, memoranda of understanding, or other
matters subject to negotiation or pending Council approval shall not be subject to
disclosure pursuant to this provision until final action has been taken.
(b) Litigation Material. Notwithstanding any exemptions otherwise provided
by law, the following are public records subject to disclosure under this Chapter:
(1) A pre -litigation claim against the City (excluding any investigative
reports);
(2) A record previously received or created by a department in the
ordinary course of business that was not attorney/client privileged
or attorney -work product when it was previously received or
created;
(c) Contracts, Bids and Proposals
(1) All initial City Requests for Proposals ("RFP's") shall be kept in a
central repository and shall be made available for public
inspection. In addition, RFP's shall be placed on the City's website
for a period from the date the RFP was issued to the date that the
RFP is due.
(2) Contracts, contractors' bids, responses to requests for proposals
and all other records of communications between the department
and persons or firms seeking contracts shall be open to inspection
immediately after a contract has been awarded. Nothing in this
provision requires the disclosure of a private person's or
organization's net worth or other proprietary financial data
submitted for qualification for a contract or other benefit. All
bidders and contractors shall be advised that information provided
which is covered by this subdivision will be made available to the
public upon request. Immediately after any review or evaluation or
rating of responses to a RFP has been completed, evaluation forms
and score sheets and any other documents used by persons in the
RFP evaluation or contractor selection process shall be available
for public inspection. The names of scorers, graders or evaluators,
along with their individual ratings, comments, and score sheets or
comments on related documents, shall be made immediately
available after the review or evaluation of a RFP has been
completed.
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(d) Budgets and Other Financial Information. Budgets, whether tentative,
proposed or adopted, for the City or any of its departments, programs, projects or other
categories, and all bills, claims, invoices, vouchers or other records of payment
obligations as well as records of actual disbursements showing the amount paid, the
payee and the purpose for which payment is made, other than payments for social or
other services whose records are confidential by law, shall not be exempt from
disclosure.
(e) Appraisals, offers and counteroffers relating to the City's purchase of real
property are exempt until an agreement is executed.
(f) Neither the City nor any officer, employee, or agent thereof may assert
California Public Records Act Section 6255 or any similar provision as the basis for
withholding any documents or information requested under this Chapter.
(g) Neither the City nor any officer, employee, or agent thereof may assert an
exemption for withholding for any document or information based on a "deliberative
process" exemption, either as provided by California Public Records Act Section 6255 or
any other provision of law that does not prohibit disclosure.
(h) Neither the City, nor any officer, employee, nor agent thereof, may assert
an exemption for withholding for any document or information based on a finding or
showing that the public interest in withholding the information outweighs the public
interest in disclosure. All withholding of documents or information must be based on an
express provision of this Chapter providing for withholding of the specific type of
information in question or on an express and specific exemption provided by the
California Public Records Act that is not forbidden by this Chapter.
Sec. 17A.25 Immediacy of Response
Notwithstanding the ten (10) calendar day period for response to a request
permitted in Government Code section 6253 a request for a public record described in
any nonexempt category which is received by a Department Head shall be satisfied no
later than the close of business on the day following the request unless the Department
Head advises the requestor in writing that the request will be answered by a specific
future date. The statutory deadlines are appropriate for more extensive or demanding
requests, but shall not be used to delay fulfilling a simple, routine or otherwise readily
answerable request. If the voluminous nature of the information requested, its location in
a remote storage facility or the need to consult with legal counsel warrants an extension
of ten (10) calendar days as provided in Government Code section 6256.1, the requestor
shall be noticed as required within three (3) business days of the request. Nothing in this
section shall prohibit the requestor and Department Head or his/her designee from
agreeing to a longer time than provided for herein for the provision of requested records.
Any such mutual agreement shall be in writing and signed by the requestor.
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Sec. 17A.26 Withholding Kept to a Minimum
Information that is exempt from disclosure shall be masked, deleted or otherwise
segregated so that the nonexempt portion of a requested record may be released and
keyed by footnote or other clear reference to the appropriate justification for withholding
required by this Chapter in Section 17A.27.
Sec. 17A.27 Justification of Withholding
Any withholding of information shall be justified, in writing, as follows:
(a) A withholding under a specific permissive exemption in the California
Public Records Act, or elsewhere, which permissive exemption is not forbidden to be
asserted by this Chapter, shall cite that authority.
(b) A withholding on the basis that disclosure is prohibited by law shall cite
the specific statutory authority in the Public Records Act or elsewhere.
(c) A withholding on the basis that disclosure would incur civil or criminal
liability shall cite any specific statutory or case law, or any other public agency's
litigation experience, supporting that position.
(d) When a record being requested contains information, most of which is
exempt from disclosure under the California Public Records Act and this Section, the
Department Head shall inform the requester of the nature and extent of the nonexempt
information and suggest alternative sources for the information requested, if available.
Sec. 17A.28 Public Records That Must Be Disclosed
The following policies shall govern specific types of documents and information
and shall provide enhanced rights of public access to information and access:
(a) Notwithstanding Government Code Section 6254, subdivision (c), the
following information shall be considered a public record and shall be made available for
review upon request by any person, business or association: A listing of gross earnings
by name and job title, including base salaries and other compensation. Other
compensation shall include allowances, overtime, and deferred compensation, leave cash -
out payments and the percentage of base salaries that the City pays as the employer's
Ca1PERS contribution.
Sect. 17A.29 Fees for Duplication
(a) No fee shall be charged for making public records available for review.
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(b) For documents routinely produced in multiple copies for distribution, e.g.
meeting agendas and related materials, a fee as may be set from time to time by the City
Council may be charged, plus any postage costs.
(c) For documents assembled and copied to the order of the requester, a fee as
may be set from time to time by the City Council may be charged, plus any postage.
(d) Copies of video recorded meetings shall be provided to the public upon
request for the actual cost of materials (i.e. videotape) per meeting. Audio tapes of audio
taped meetings shall be provided upon public request for the actual cost of the tape by the
policy body whose meeting was recorded. The City Council shall from time to time
approve a fee schedule determining these costs.
Sec. 17A.30 Index to Records
The City shall prepare, within twenty-four (24) months of the passage of this
Chapter, a public records index that identifies the types of information and documents
maintained by the City and its departments, agencies, task forces, commissions, and
elected officers. The index shall be for the use of City officials, staff and the general
public, and shall be organized to permit a general understanding of the types of
information maintained, by which officials and departments, for which purposes and for
what periods of retention, and under what manner of organization for accessing, e.g. by
reference to a name, a date, a proceeding or project, or some other referencing system.
The index need not be in such detail as to identify files or records concerning a specific
person, transaction or other event, but shall clearly indicate where and how records of
that type are kept. Any such master index shall be reviewed by appropriate staff for
accuracy and presented for formal adoption to the administrative official or policy body
responsible for the indexed records. The City Clerk shall be responsible for the
preparation of this records index. The City Clerk shall report on the progress of the index
to the Open Government Commission on at least a semi-annual basis until the index is
completed. Each department, agency, commission and public official shall cooperate with
the City Clerk to identify the types of records it maintains, including those documents
created by the entity and those documents received in the ordinary course of business and
the types of requests that are regularly received. Each department, agency, commission
and public official is encouraged to solicit and encourage public participation to develop
a meaningful records index. The index shall clearly and meaningfully describe, with as
much specificity as practicable, the individual types of records that are prepared or
maintained by each department, agency, commission or public official of the City. The
index shall be sufficient to aid the public in making an inquiry or a request to inspect.
Any changes in the department, agency, commission or public official's practices or
procedures affecting the accuracy of the information provided to the City Clerk shall be
recorded by the City Clerk on a periodic basis so as to maintain the integrity and accuracy
of the index. The index shall be continuously maintained on the City's website and made
available at the Gilroy Library.
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Sec. 17A.31 Records Survive Transition of Officials
All documents prepared, received, or maintained by the head of any Department
are the property of the City of Gilroy. The originals of these documents shall be
maintained consistent with the records retention policies of the City of Gilroy. The City
Administrator shall monitor the transition of the above public officials to ensure that
public documents are not unlawfully removed or destroyed during the transition.
Sec. 17A.32 Internet Access/World Wide Web Minimum Standards
The City of Gilroy shall maintain on a World Wide Web site, or on a comparable,
readily accessible location on the Internet, information that it is required to make publicly
available. Each department is encouraged to make publicly available through the City's
web site as much information and as many documents as possible concerning its
activities. These include but are not limited to campaign report forms, statements of
economic interest, operating and capital budgets, meeting agenda, meeting minutes,
public notices and, when feasible, staff meeting reports. Within twelve (12) months after
enactment of this provision, each department shall post on the City's web site all meeting
notices required under this Chapter, all agendas and the minutes of all previous meetings
of its policy bodies from that point in time forward. Notices and agendas shall be posted
no later than the time that the department otherwise distributes this information to the
public, allowing reasonable time for posting.
Minutes of meetings shall be posted as soon as possible, but in any event within
one week after they have been approved. The City shall make reasonable efforts to ensure
that its web site is regularly reviewed for timeliness and updated on at least a weekly
basis. The City shall also make available on its web site, or on a comparable, readily
accessible location on the Internet, a current copy of the City Code.
The City shall also webcast all City Council and Planning Commission meetings
and archive the webcasts of such meetings for at least ten (10) years.
Sec. 17A.33 Correspondence and Records Shall be Maintained
(a) The City Administrator shall for a reasonable period maintain, preserve,
and archive documents and correspondence, including but not limited to letters, e-mails,
drafts, memoranda, invoices, reports and proposals that pertain to or are within the
subject matter jurisdiction of the official's duties (as defined by the Open Government
Commission) and shall disclose all such records in accordance with this Chapter.
(b) Any e-mail that is created or received in connection with the transaction of
public business and which (1) the department or office retains as evidence of its
activities, or (2) relates to the legal or financial rights of the City or of persons directly
affected by the activities of the City is a public record. The standard for determining if e-
mail is a public record that must be retained is identical to the standard that applies to any
document. See California Government Code § 6252(e). If an e-mail must be retained, it
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should be printed out and the hard copy retained in the appropriate file unless the
department or office can reliably retain and retrieve all e-mail in electronic format.
Sec. 17A.34 Review of Form 700, Statement of Economic Interests
(a) Once annually, in the first two weeks of April, the City Clerk shall
conduct a prima facie review of all completed Form 700s (the statement of economic
interests required by Government Code 85700 of certain enumerated local officials)
submitted by the City Administrator, the Mayor, members of staff required to file Form
700 and all members of the City Council and Planning Commission. The City
Administrator shall review the Form 700 submitted by the City Clerk. The City Clerk
shall review Form 700s of boardmembers and commissioners.
(b) Not later than April l5th of each year the City Clerk shall scan the Form
700s and copy them into the City's official website. The City Clerk shall also scan all
prior Form 700s of sitting City Councilmembers, the Mayor, the City Administrator, and
the City Attorney and members of the Planning Commission retroactive to the beginning
of their continuous term so that these required disclosures are readily available to the
public for inspection.
ARTICLE IV.
Sec. 17A.35 The Open Government Commission
(a) There is hereby established a task force to be known as the "Open
Government Commission" consisting of three City Council members appointed by the
City Council. The City Attorney shall serve as legal advisor to the Commission.
(b) The term of each appointed Council Member sitting on the Open
Government Commission shall be two years, from and after the first regular City Council
meeting following the biennial certification of the City Council election, unless earlier
removed by the City Council. In the event of such removal or in the event a vacancy
otherwise occurs during the term of office of any appointive member, a successor shall be
appointed for the unexpired term of the office vacated in a manner similar to that
described herein for the initial members. The Commission shall elect a chair from among
its appointive members. The term of office as chair shall be one year. Members of the
Commission shall serve without compensation.
(c) The Commission shall advise the City Council and provide information to
other City departments on appropriate ways in which to implement this Chapter. The
Commission shall develop appropriate goals to ensure practical and timely
implementation of this Chapter. The Commission shall propose to the City Council
amendments to this Chapter. The Commission shall report to the City Council at least
once annually on any practical or policy problems encountered in the administration of
this Chapter. The Commission shall receive and review regular quarterly reports on
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requests for public information. Such reports shall not identify the requestor or any
information confidential by law.
(d) The Open Government Commission shall recommend to the City Council
an administrative process for the review and enforcement of this Chapter. No such
administrative process shall preclude, delay or in any way limit a person's remedies under
the Brown Act or the California Public Records Act.
(e) In addition to the powers specified above, the Commission shall possess
such powers as the City Council may confer upon it by ordinance or as the people of
Gilroy shall confer upon it by initiative.
Sec. 17A.36 Responsibility for Administration
The City Administrator shall administer and coordinate the implementation of the
provisions of this Chapter. The City Clerk shall provide and perform administrative
duties for the Commission and assist any person in gaining access to public meetings or
public information. The City Administrator shall provide the Commission's staff person
with whatever facilities and equipment are necessary to perform said duties as budgeted
by the City Council.
Sec. 17A.37 Department Head Declaration and Training
All City department heads and all City management employees and all employees
or officials who are required to sign a Form 700 (the statement of economic interests
required by Government Code 85700) shall sign an annual affidavit or declaration stating
under penalty of perjury that they have read the Open Government Ordinance and have
attended or will attend when next offered, a training session on the Open Government
Ordinance, to be held at least once annually. The affidavit or declarations shall be
maintained by the City Clerk and shall be available as a public record. Annual training
shall be provided by the City Attorney's Office. Attendance at the Open Government
Ordinance Training Sessions is required of all City Council Members and Commissioners
serving the City.
Sec. 17A.38 Willful Refusal Shall Be Official Misconduct
The willful refusal of any elected official, department head, or other managerial
City employee to discharge any duties imposed by the Open Government Ordinance, the
Brown Act or the Public Records Act shall be deemed official misconduct.
Sec. 17A.39 Enforcement Provisions
(a) Any person may institute proceedings for injunctive relief, declaratory
relief, or writ of mandate in any court of competent jurisdiction to enforce that person's
right to inspect or to receive a copy of any public record or class of public records under
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this Chapter or to enforce that person's right to attend any meeting required under this
Chapter to be open, or to compel such meeting to be open.
(b) A court shall award costs and reasonable attorneys' fees to the plaintiff
who is the prevailing party in an action brought to enforce this Chapter.
(c) If a court finds that an action filed pursuant to this section is frivolous, the
City may assert its rights to be paid its reasonable attorneys' fees and costs.
(d) Any person may institute proceedings for enforcement and penalties under
this Chapter in any court of competent jurisdiction if enforcement action is not taken by a
City or state official 50 days after a complaint is filed.
Sec. 17A.40 Open Government Ordinance Supersedes Other Local Laws; Applies
to All Ordinances with Open Government Application
The provisions of this Open Government Ordinance supersede other local laws.
Whenever a conflict in local law is identified, the requirement which would result in
greater or more expedited public access to public information shall apply. The provisions
of this Open Government Ordinance shall apply to all applicable and relevant provisions
of the Gilroy City Code.
Sec. 17A.41 Severability
The provisions of this Chapter are declared to be separate and severable. The
invalidity of any clause, sentence, paragraph, subdivision, section or portion of this
Chapter, or the invalidity of the application thereof to any person or circumstances, shall
not affect the validity of the remainder of this Chapter, or the validity of its application to
other persons or circumstances.
This Ordinance shall be in full force and effect thirty (30) days after the date of its
passage and adoption.
PASSED AND ADOPTED this l7th day of November, 2008, by the following
vote:
AYES: COUNCILMEMBERS: ARELLANO, BRACCO, DILLON,
GARTMAN, TUCKER, WOODWARD,
and PINHEIRO
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE
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Ordinance No. 2008-11
ATTEST:
was reels, City C rk
APPROVED:
Albert "nheiro, Mayor
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Ordinance No. 2008-11
I, SHAWNA FREELS, City Clerk of the City of Gilroy, do hereby certify that the
attached Ordinance No. 2008-11 is an original ordinance, or true and correct copy of a city
ordinance, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council
held on the 17th day of November, 2008, at which meeting a quorum was present.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of
the City of Gilroy this 17th day of November, 2008.
Freels, CMO
City Clerk of the City of Gilroy
(Seal)