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Ordinance 2019-04ORDINANCE NO.2019-04 AN EMERGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GILROY DELETING GILROY CITY CODE SECTIONS 17A.24 (6) and (8), WHICH CURRENTLY PROHIBIT RELIANCE ON GOVERNMENT CODE SECTION 6255 WHEREAS, Senate Bill 1421 ("SB 1421") was signed by the Governor Brown on September 30, 2019, effective January 1, 2019; and WHEREAS, existing law, Penal Code sections 832.5 and 832.7, provided that requests for information contained in local agency peace officer personal files and records of citizen complaints were confidential and shall not be disclosed except by discovery through a Pitchess motion in compliance with the procedures set forth in Evidence Code sections 1043, 1045 and 1046; and WHEREAS, SB 1421 amended Penal Code section 832.7 regarding local agency peace officer personnel records and now makes some of these records available in response to a Public Records Act request; and WHEREAS, on February 2, 2019, the California Attorney General ("AG") issued a "Position — DOJ's Responsibilities Under SB 1421"; and WHEREAS, the AG acknowledges that local agency peace officers have had a significant privacy right in their personnel records; and WHEREAS, the AG states that there are several cases currently pending in the California superior courts that raise the issue whether SB 1421 requires the disclosure of records relating to conduct occurring before January 1, 2019 (effective date of SB 1421); and WHEREAS, the AG has taken the position that, until the legal question of retroactive application of the statute is resolved by the courts, the public interest in accessing these records is clearly outweighed by the public's interest in protecting privacy rights under Government Code section 6255; and ORDINANCE NO.2019-04 WHEREAS, the AG Position further determined that it will not disclose any records that pre -date January 1, 2019 at this time; and WHEREAS, in November 2008 the City Council adopted the Open Government Ordinance ("OGO") codified in Gilroy City Code Chapter 17A; and WHEREAS, the OGO Sections 17A.24 (6) and (8), as adopted, currently prohibit reliance on Government Code section 6255; and WHEREAS, the City Council wishes to adhere to the AG's position and not disclose the City's peace officer personnel records until the legal question of retroactive application of the statute is resolved by the courts; and WHEREAS, the City Council finds that this Emergency Ordinance is not subject to the California Environmental Quality Act ("CEQA," Public Resources Code sections 21000 et seq.), because it will not result in a direct or reasonably foreseeable indirect physical change in the environment, and it does not have the potential to result in a physical change to the environment, directly or indirectly (Title 14, Chapter 3 of the California Code of Regulations "CEQA Guidelines," sections 15060(c)(2) and (3)). NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF GILROY DOES HEREBY ORDAIN AS FOLLOWS: SECTION I Chapter 17A, of the Gilroy City Code entitled the "Gilroy Open Government Ordinance" is hereby amended by repealing Sections 17A.24 (6) and (8) in their entirety. Except as provided herein, no other amendments, deletions or additions are made to the Chapter 17A." SECTION II This Emergency Ordinance, pursuant to Gilroy City Charter, Article VI, Section 602, is hereby declared by the City Council to be necessary as an emergency measure and shall take effect immediately and be in full force and effect after its approval and adoption based on the following: a. The City Council finds that the uncertainty of the application of SB 1421 presents an imminent threat to the confidentiality of its peace officers personnel records and that until the legal question of retroactive application of the statute is resolved by the courts, the ORDINANCE NO. 2019-04 public interest in accessing these records is clearly outweighed by the public's interest in protecting privacy rights. b. The City Council finds that there are several SB 1421 requests for peace officer personnel records pending with the City that require a response by City in the immediate future, which will be prior to the legal question of retroactive application of the statute is resolved by the courts. c. The City Council finds that the City's exposure to litigation by disclosing peace officers' personnel records that a court may later determine to be unwarranted is also clearly outweighed by the public's interest in protecting privacy rights. d. The City Council finds that this amendment is necessary to provide the City the ability to solely rely on Government Code section 6255 to withhold local agency peace officer personnel records until the legal question of retroactive application of the statute is resolved by the courts. e. The City Council finds that in order to accomplish these goals, the Gilroy City Code Chapter 17A, Section 17A.24 (6) and (8) must be deleted by means of this Emergency Ordinance. SECTION III If any section, subsection, sentence, clause or phrase of this Interim Urgency Ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Gilroy hereby declares that it would have passed and adopted this ordinance, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases may be declared invalid or unconstitutional. SECTION IV This Emergency Ordinance is adopted pursuant to Gilroy City Charter, Section 602. The City Clerk shall certify to the adoption of this Emergency Ordinance and cause the same to be published in the manner prescribed by law, and it shall become effective immediately upon its adoption. PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF GILROY this 11 th day of February 2019, by the following vote: AYES: COUNCILMEMBERS: BLANKLEY, BRACCO, MARQUES, LEROE- MUNOZ, TUCKER and VELASCO NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: TOVAR ORDINANCE NO. 2019-04 APPROVE h_ Roland Velasco, Mayor ATTEST• a a Freels Clerk ORDINANCE NO. 2019-04 I, SHAWNA FREELS, City Clerk of the City of Gilroy, do hereby certify that the attached emergency Ordinance No. 2019-03 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 special meeting of said Council held on the 11`h day of February, 2019, 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 11 day of February, 2019. a Freels MM Clerk of the City of Gilroy (Seal)