Loading...
05/29/2014 Open Government Commission Regular Meeting Adopted 09/04/2014 Open Government Commission Meeting Minutes 5/29/2014 -1- GILROY OPEN GOVERNMENT COMMISSION MINUTES THURSDAY, MAY 29, 2014 I. OPENING A. Call to Order and Roll Call Chair Glines called the meeting to order at 6:0 1 p.m. ROLL CALL: Present: Commissioners: Robert Esposito, Jack Foley, Walter Glines Absent: Luann Manseau Excused: Janet Espersen II. PRESENTATIONS TO THE OPEN GOVERNMENT COMMISSION A. PUBLIC COMMENT BY MEMBERS OF THE PUBLIC ON ITEMS NOT ON THE AGENDA, BUT WITHIN THE SUBJECT MATTER JURISDICTION OF THE COMMISSION There were no public comments. B. Mayor Gage’s Annual Greeting to the Commission Mayor Gage greeted the Commission discussing the variety of changes to the Commission including the transition to a fully public body makeup. There was a discussion of hiring of a City Attorney specifically for the Commission to assist with public records request appeal processes. A discussion continued with regards to conflicts of interest and the financial condition o f the city, and the Mayor concluded with a short discussion of a potential ballot measure on the November ballot. Commission Manseau joined the meeting at 6:1 7 p.m. III. CONSENT CALENDAR Open Government Commission Meeting Minutes 5/29/2014 -2- A. Approval of the Minutes of March 13, 2014 Motion on Item III.A. Motion was made by Commissioner Foley, seconded by Commissioner Esposito and carried with a 4-0-1 vote to approve the consent calendar, Commissioner Espersen absent. IV. PUBLIC HEARING A. Appeal of the Denial of a Request for City Records Filed with the City on October 11, 2013 and April 3, 2014 Respectively, for the Names of the Six (6) Public Safety Retirees Who Claimed an Industrial Disability Within the Last Five Years The item was introduced by City Administrator Haglund. The public hearing was opened. Chris Foy, Reporter for the Gilroy Dispatch stated that he had filed the appeals explaining that state law did not prohibit the release of the particular public employee disability information he had requested, further explaining that the same information had been provided to him by the City of Bell, California. He explained that he was not interested in the particular medical condition of the public employees which was prohibited by HIPPA, but instead was merely interested in the names of the employees who had retired ou t on work related medical disabilities, as exposed by the Santa Clara County Grand Jury. He concluded by stating that the Open Government Commission was formed to be dedicated to expose information in support of the public’s right to know. Commissioner Foley asked if the Dispatch had hired an attorney, or if there was any position taken by the California Newspapers Publishers Association with regards to the appeal. Mr. Foy explained that the California Newspapers Association had taken the position that the information requested was not confidential and had stated that the City of Gilroy was turning the Public Records Act on its head with the presumption that there needed to be a legal reason to release information. Commissioner Foley asked why the paper needed to know the information and further inquired if the paper would expose the names in any other way if it chose not to publish them. Mr. Foy explained that following the Santa Clara County Grand Jury’s exposure of the possible abuse of the retirement system of 4 of the city’s work related disabilities being claimed after retirement, the paper had asked for the names of the individuals as a potential safeguard against further abuse. He explained that the abuse of the system was a national issue with several industrial disabilities being claimed long after retirement. He Open Government Commission Meeting Minutes 5/29/2014 -3- then explained that he personally would not release the names if the newspaper didn’t publish them, but would need to consult with the Editor of the paper to determine the newspaper’s position. Commissioner Foley spoke on the need for a work related disability occurring at work and went onto explain that the city’s position was that there was state law that prohibited the city from disclosing the names. Mr. Foy read Government Code citations provided to him by the City relating to the confidential nature of records related to a disability, explaining that the newspaper was interested in only the names of the individuals, not their medical records . Chairperson Glines clarified that the request was only for the names of the individuals, not for any of their medical information. Mr. Foy agreed that it was. Commissioner Foley spoke on the reason for the formation of the Open Government Commission and stated that the City was not ob jecting to disclosing the information, but was prohibited from doing so, asking Mr. Foy if he thought it was reasonable to ask the city to go against the regulations which prohibited disclosure of the information. Mr. Foy explained that there was no individual record requested, as described in the city’s response on protections from disclosure, explaining that the newspaper was not requesting the HIPPA protected confidential information. He then explained that the newspaper was curious why one California City had provided the same set of information confirming it was public, but the City of Gilroy would not. He then stated that the newspaper did not believe disclosure of the names was a violation of HIPPA. Commissioner Esposito asked if the City of Bell had released the information only because the information was already public under the unique circumstance and scandal that had erupted in Bell. Mr. Foy stated that he was interested in hearing more of the conversation Gilroy had with the City Attorney of Bell as commented on by the City Administrator. Assistant City Attorney Houston stated that the conversation with the city of Bell was not privileged, explaining that several City staff members had attempted to make contact with various members of the Bell staff and she had eventually made contact with the Bell City Attorney and Assistant City Attorney who had explained that the information they had provided the Dispatch had been published in an LA Times article, and they had released the list of names to the Dispatch because it had already been made public in the LA Times. Commissioner Foley asked if it was incumbent of the City of Gilroy to take the same actions of another City. Open Government Commission Meeting Minutes 5/29/2014 -4- Assistant City Attorney Houston explained that it was not. She went on to discuss the confirmation from the Bell Assistant City Attorney tha t the list of names had earlier been compiled for other reasons and had been made publically available, stating there were 13 people investigated and 7 or 8 of the people listed had been fo und to be fraudulent. City Administrator Haglund spoke on the public disability status gained by the individuals as disclosed by the LA Times article in the City of Bell, explaining that CalPERS had investigated the disability retirement that had been encased within separation and severance agreements, which were public information. He further explained that the City of Bell was using disability retirement as an inducement within separation severance agreements to get rid of employees, as a disability ret irement annuity would be taxed at only 50%. He concluded by explaining that the LA times had received 7 or 8 names which had been released by the City of Bell because they were included within the separation and severance agreements, which were public documents in of themselves. Chairperson Glines asked if a request was made by the newspaper for the release of separation severance agreements of public safety employees, would the names of the employees be produced. City Administrator Haglund explained that only if there were disability retirements within a separation severance agreement, but he wasn’t following the same practice as Bell so no such records would exist. Commissioner Foley asked if there were any separation severance agreements on record with the city which included disability retirement benefits. City Administrator Haglund stated that he was aware of one from the 1990’s. Chairperson Glines asked if the story attributed the separation severance agreements as where the names had come from. City Administrator Haglund stated that the LA Times article had referenced the separation and severance agreements. Commissioner Foley asked Mr. Foy if the newspaper’s new ownership had a continued interest in pursuing the requested records. Mr. Foy stated that there was less local support with the new ownership, but he believed that he could continue to seek the information. Chairperson Glines then closed the public hearing. City Administrator Haglund presented the staff report sharing the background of the request for records and subsequent denials. Open Government Commission Meeting Minutes 5/29/2014 -5- Commissioner Esposito asked if the City of Bell had indicated in any way that the list that they had provided was complete. City Administrator Haglund stated that they had no t, adding that CalPERS had actually provided 13 names to Bell. Mr. Foy spoke on the process of his request for records from the City of Bell explaining that the request had been filled in 11 days. He stated that the unique circumstances in Bell had not been outlined in the staff report. He then asked for a copy of the LA Times article. Assistant City Attorney Houston stated that the circumstances had been provided to Mr. Foy in the last letter from the City Administrator, and further explained that the article had described where the names had come from. She explained that Michael Houston from the City of Bell City Attorney’s office had provided her with the background of the circumstance which led to disclosing the names to the Dispatch. Commissioner Foley asked if CalPERS made the decisions on industrial disability benefits for public safety retirement benefits and further asked if the decision was challengeable. Human Resources Director McPhillips explained that CalPERS issued a letter to the City requiring the City to make a determination based on criteria to decide if the person qualified for industrial disability retirement or not. She explained that the Human Resources Director was tasked with making the determination based on the findings in the report from CalPERS. She further explained that the determination could be appealed to an administrative law judge who would then hear the appeal and make a finding which the City Council could then decide to agree with or not. She explained that the report detailed out the particular medical determinations made by a physician on the ability of the individual to perform the functions of their job. City Administrator Haglund stated that there was criteria in the law that was followed. Human Resources Director McPhillips explained that a qualified medical examiner reviewed the essential functions of the person’s job and then made a medical determination if they were permanently unable to perform the functions of their job. Commissioner Foley spoke on the information that was available through CalPERS, explaining that it just did not identify the particular individuals with disability retirements. Assistant City Attorney Houston shared the Federal and State law related to disclosure of the information. Commissioner Foley asked if the newspaper had other remedies. Mr. Foy stated that the challenge was to the determinations made by medical Open Government Commission Meeting Minutes 5/29/2014 -6- professionals and the possibility that they could be fraudulent, explaining that it was more of a check-and-balance. Commissioner Foley spoke on the ability for a newspaper reporter to receive a medical prescription for medical marijuana without true medical reasons, explaining that he applauded Mr. Foy for his diligence in his research. Chairperson Glines asked if the City Council had heard any appeals of the particular disability retirement determinations. City Administrator Haglund stated that the procedure was followed with determinations made by the Human Resources Director, and no appeals had been filed. Mr. Foy explained that if he had been aware of the appeal procedure he would have been a bit more prepared, but he felt the newspaper had made the attempt over the last 8 months to have the names released as it was unknown if there was fraud involved in the disability as expressed by the Santa Clara County Grand Jury. He concluded by stating that there was no way to know if there was abuse unless the information was disclosed. Chairperson Glines stated that the remedy seemed to be amending State or Federal law to change the prohibition. Commissioner Manseau asked if the physician’s names could potentially be released as a part of the investigation. Mr. Foy stated that the names of the physicians didn’t look to be disclosable records from what the city had explained, but he agreed it wou ld help his investigation. He then asked the City Attorney if it was a possibility. City Administrator Haglund stated that the labor code , case law and the California confidentiality act would not allow the city to disclose anything that was accessed from the medical record. Assistant City Attorney Houston stated that she would be concerned about releasing the names of the physicians for privacy and defamation of ch aracter reasons as well as the doctor-patient privilege. Chairperson Glines asked if the names on the disability list included the rank upon retirement. City Administrator Haglund stated that the CalPERS list had names , annuity check amount and the classification of public safety. Assistant City Attorney Houston stated that the Grand Jury l ist only had the total number. Commissioner Foley asked if the ranks could be release d. Open Government Commission Meeting Minutes 5/29/2014 -7- City Administrator Haglund stated that his concern was that in a small agency the release could lead to providing the names. Commissioner Foley stated that what may happen to the information shouldn’t be assumed, explaining that if the ranks of all of the public safety retirees were requested by the newspaper, they could work backwards. Mr. Foy stated that it was simple enough to determine who was receiving the reti rement benefits by rank, simply by the amount of money issued by month. City Administrator Haglund concluded by stating that the city was following the law in protecting the records from disclosure, explaining that he believed the newspaper could get the information by interviewing all of the public safety retirees from the city and asking them directly if they were on disability retirement. He explained that determinations had been made over the years and the same consistent determination was made to protect the records from disclosure and there was no provision statutorily to release the name . He stated that though he agreed with stemming abuse of the workers compensation system, there was no statutory provision to provide the requested names. Commissioner Esposito stated that he was in support of finding any potential abuse, explaining that he saw that interviewing the individual retirees to find those who were on disability was the best course, explaining that he believed it was a noble cause and he appreciated it. Commissioner Foley stated that a lot of the decisions were made based on ancient law, explaining that the statute presented was extremely old and it concerned him that it was being used as the basis for the determination. He explained that in current times, communication and privacy was quite different as the courts waffled on the great of the public good versus privacy. He explained that he was very sympathetic to what the paper was trying to do and he believed that the Open Government Commission was tasked with assisting the public in their right to know as situations such as that in the City of Bell could not be exposed if the information was kept behind closed doors. Robin Eport stated that he was disabled, and had gone through 3 ye ars of a personal injury law suit and had been very publically exposed and had no problem with it. He shared his injury explaining that he was unable to go back to the same profession. He explained that the public perception that something was being kept f rom them and people on both sides were attempting to do the right thing. Chairperson Glines stated that in his opinion if it was public money it was public information, but there was a narrow exception with the particular legal prohibitions asking if there was an appellate court ruling on the similar issue, as he couldn’t say yes to make the information public without a convincing legal opinion. He then asked if separate legal counsel could be hired by the City to assist the Open Government Commission. Open Government Commission Meeting Minutes 5/29/2014 -8- Commissioner Foley asked if there was any way for the city to send a letter to the beneficiary asking for permission to provide the information. Assistant City Attorney Houston explained that the City had to sign a non-disclosure confidentiality agreement with CalPERS before receiving the information and could not disclose it to another party. Commissioner Foley then asked if the City could reach out to the beneficiaries asking them to provide their permission to release. City Attorney Callon explained that as there was a non-disclosure agreement with CalPERS, the letter to the beneficiary could possibly become public information in of itself, thus it would lead to releasing the names. Commissioner Esposito explained that the City was almost a custodian of the record, and not the owner. Commissioner Manseau asked if the Dispatch could place an announcement in the paper publically asking for the information. There was a discussion of who would be the party sued for the information with a suggestion that the city or CalPERS could potentially be. Mr. Foy stated that he had made a public records request of CalPERS, but they had not provided the records or a reason for the denial of the request. The public hearing was then closed. Chairperson Glines asked if the commission was in support of hiring separate legal counsel to assist the Open Government Commission, and there was discussion regarding the hiring of special counsel. Motion on Item IV.A. Motion was made by Commissioner Manseau, seconded by Commissioner Esposito and carried 3-0-1-1 that the records requested and any part thereof are not public. (Commissioner Espersen absent, Commissioner Foley abstaining) Commissioner Foley explained that city staff had made a convincing argument under the law, but he did not agree with the law, so he was abstaining. V. UNFINISHED BUSINESS A. Comparative Analysis of Costa Mesa Civic Openness in Negotiations “COIN” Ordinance and Results of League of California Listserve Inquiry (report attached) The staff report was presented by Human Resources Director McPhillips. Open Government Commission Meeting Minutes 5/29/2014 -9- There was a discussion of the survey responses provided and the variety of options that could be undertaken such as uploading the various MOU proposals onto the city website for full disclosure. Human Resources Director McPhillips spoke on the back and forth that took place prior to proposals being crafted to assist in moving the negotiations forward in an informa l process, prior to reverting to a formal process with a hired negotiator. Commissioner Esposito spoke on the success of the city with the informal process. Commissioner Foley asked if the public was provided with as much information as possible explaining that the public was informed and involved in each step of the way with the COIN ordinance. He further spoke on the balance of transparent negotiations in the non-formal process. City Administrator Haglund explained that a very narrow listing of negotiations were attempted in the informal process to be completed in 30-60 days at a much reduced cost to the city, prior to formal bargaining which could take several months. He then spoke on posting information on the city website to highlight the items being discussed in the informal negotiations. Chairperson Glines stated that the d etails of the negotiation process got the community talking about the “silly” stuff or got them to participate in the more important negotiation items. Human Resources Director McPhillips spoke on the opportunity for public comment prior to any labor negotiations discussed in closed session. She then spoke on the possible chilling affect if the exchange of informal negotiations were publically available. Commissioner Foley explained that chilling shouldn’t be a concern, explaining that transparency outweighed the expedient process as the negotiating parties were benefited by the process, but the public was not involved in any way. He then spoke on the public receiving information from the media if the media were able to report on the negotiations. City Administrator Haglund stated that the COIN ordinance didn’t provide the Council’s opinions or support of any portion of the negotiation, and explained that the Council position wasn’t necessarily available for any other approval until the final vote was ta ken. Commissioner Foley explained that the back-and-forth discussion of all other proposals was open to the media and the public, prior to the vote, but with the union negotiation process, the media and public were not afforded the same involvement, asking how it could be opened up to the public if the city was committed to transparency. Human Resources Director McPhillips suggested portions of the COIN ordinance that did afford the public opportunity within the informal process. Open Government Commission Meeting Minutes 5/29/2014 -10- Commissioner Foley explained that he wanted to see more scrutiny applied to the short process as expediency shouldn’t’ trump transparency, asking to see something in writing that further described what could be changed within the city’s existing process asking for more suggestions on ways for transparency in the informa l negotiation process such as a public report out or some other public opportunity. There was a discussion of providing a recommendation to the City Council to model much of the COIN ordinance for more public tran sparency, and to provide public input on the amount of money being negotiated throughout the process. There were no public comments. B. Recommended Amendments to Section 17A.35 (b) of the City Code Related to Extending Commissioner Terms The staff report was presented by City Clerk Freels. There was a discussion of the variety of extension options to the existing term s to allow for staggered terms with a variety of recommendations on achieving a the eventual four year terms. There were no public comments. Motion on Item V.B. Motion was made by Commissioner Esposito, seconded by Commissioner Manseau and carried with a 4-0-1 Vote to Recommend the City Council Approve Amendments to Section 17A.35 (b) of the Gilroy City Code as presented (Commissioner Espersen absent) C. Consideration of Adopting Open Government Commission The Commission did not consider the item for approval, but suggested that a Vice Chairperson and a section on appeal timing be added, asking that the item return at the next meeting. There were no public comments. D. Update on the Establishment of Email Accounts for all City Board, Commission and Committee Members for City Related Email City Administrator Haglund shared previous discussions on the issue at the Council level and explained that the City would be able to add for additional users in the next fiscal year. There was a discussion of the use of private email accounts. Open Government Commission Meeting Minutes 5/29/2014 -11- There were no public comments. The Commission received the report. E. Letter to the City Council and City Staff from the Open Government Commission The staff report was presented by City Clerk Freels. There were no public comments. Motion on Item V.E. Motion was made by Commissioner Esposito, seconded by Commissioner Manseau and carried with a 4-0-1 vote to approve and submit the letter (Commissioner Espersen absent) 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. Chairperson Glines spoke on the omission of the name of the business for the property listed in a request. He then spoke on including the name of the person requesting a record. City Clerk Freels explained that it was listed by address as that was the way the request had been submitted to the city. She then explained that the request for public records itself was a public record and could be provided. There were no public comments. Motion on Item VI.A. Motion was made by Commissioner Foley, seconded by Commissioner Manseau and carried with a 4-0-1 vote to receive the report (Commissioner Espersen absent) VII. CITY ADMINISTRATOR'S REPORTS City Administrator Haglund spoke on the time and effort put into the earlier appeal process and work staff had put into a rather large public records request. VIII. CITY ATTORNEY'S REPORTS There were none. IX. CITY CLERK’S REPORTS Open Government Commission Meeting Minutes 5/29/2014 -12- City Clerk Freels shared the amended public records request form, with the additional language as suggested by the Commission. X. REPORTS OF COMMISSION MEMBERS There were none. XI. FUTURE COMMISSION INITIATED AGENDA ITEMS – SCHEDULE NEXT QUARTERLY MEETING Commissioner Manseau asked if the meeting could begin at 6:15 p.m. The Commission selected September 4, 2014 as the next meeting date. XII. ADJOURNMENT The meeting adjourned at 9:10 p.m. ______________________________ Shawna Freels, MMC City Clerk