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03/13/2014 Open Government Commission Regular Meeting Adopted 05/29/2014 Open Government Commission Meeting Agenda 3/13/2014 -1- 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 Open Government Commission Meeting Agenda 3/13/2014 -2- 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 Open Government Commission Meeting Agenda 3/13/2014 -3- 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. Open Government Commission Meeting Agenda 3/13/2014 -4- 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. Open Government Commission Meeting Agenda 3/13/2014 -5- 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 Open Government Commission Meeting Agenda 3/13/2014 -6- 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. Open Government Commission Meeting Agenda 3/13/2014 -7- 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 Open Government Commission Meeting Agenda 3/13/2014 -8- 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. Open Government Commission Meeting Agenda 3/13/2014 -9- 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 Open Government Commission Meeting Agenda 3/13/2014 -10- 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