HomeMy WebLinkAboutItem 8.3 RalphMBrownActGC54950 (2)
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CITY OF DUBLIN
AGENDA STATBKENT
CITY COUNCIL KEBTING DATE: Karoh 14, 1994
SUBJECT:
Changes in the Ralph M. Brown Act, Government Code
Section 54950 et seq.
Report Prepared by Elizabeth silver, city Attorney
and Kay Keck, city Clerk~
ATTACHED:/~ Memorandum from City Attorney dated March 7,
1994
Form for reporting Closed session Actions
Draft Resolution Amending Resolution No. 145-86,
Establishing Rules for the Conduct of the
Meetings of the city Council of the city of
Dublin
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EXHIBITS
RECOKKENDATIONV' Discuss amendments; Determine which groups should
continue to exist as "Legislative Bodies"; Adopt
Resolution
FINANCIAL STATEMENT:
The city Clerk's Office will be significantly
impacted due to the time requirements related
to preparation and posting of agendas for all
the various groups which will now come under
the definition of "Legislative Body".
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DESCRIPTION: The Ralph M. Brown Act, known as the Open Meeting
Law, has been significantly amended by three bills (Assembly Bill
1426, Senate Bill 36 and Senate Bill 1140), which were signed into law
on October 10, 1993. The amendments go into effect on April 1, 1994.
The amendments add a definition of "Member of Legislative Body" and
defines the term "Meeting". Meetings may be recorded and/or broadcast
by the pUblic and the audio tapes made by the City Clerk must be
retained ~or 30 days before being erased. Meetings must be held
within the City of Dublin except in limited situations. The
amendments provide clarification regarding the agenda and discussion
of items not on the agenda, and also clarify the notice and hearing
requirements for imposing or increasing taxes or assessments. The
amendments clarify the circumstances justifying a Closed Session and
require the Council to report actions taken in closed Sessions. Staff
Reports and other documents distributed to the co~n6il at a public
meeting must be available for inspection at the meeting. While the
penalty for violation is still a misdemeanor,' language has been added
related to wrongful intent to deprive the public of information to
which it is entitled. The District Attorney may bring an action to
determine an action is null and void because of violation of the Act.
The attached Memorandum has been prepared by the city Attorney and
lists the practical impacts on the city of Dublin.
With regard to agenda preparation, the city Clerk recommends that the
deadline for notification ot agenda items (by Staff, Councilmembers,
the public, etc.) be changed from 11:00 a.m., of the Wednesday
immediately preceding a regular Council meeting to 11:00 a.m., of the
Tuesday immediately preceding a regular Council meeting. The rules
call for the agenda packets to be made available as far in advance of
the meeting as time for preparation will permit. In addition,
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ITEM NO. 8. j
COPIES TO:
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AGENDA STATEMENT: Brown Act Changes
Page 2
sufficien~ time must be allowed for the mailing of agendas to those
who subscribe in order to ensure that receipt occurs prior to, rather
than after, the date of the meeting.
The City Attorney has determined that the Council and/or Staff may
present informational only items under the Other Business section of
the agenda. Any report requiring Council action would have to be
listed separately on the agenda.
Staff recommends that the City Council receive the City Attorney's
presentation, discuss the amendments, determine which groups should
continue to exist, and adopt the attached Resolution incorporating the
required changes into the rules of conduct.
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Michael R.. Nave
Steven R Meyers
Elizabeth H. Silver
Michael S. Riback
Kenneth A. Wilson
MEYERS, NAVE, RIBACK, SILVER & WILSON
A Professional Law Corporation
Gateway Plaza
m Davis Street, Suite 300
San Leandro, CA 94577
Telephone: (SI0) 351...4300
Facsimile: (SI0) 351-4481
PeniDSllla Office
1220 Howard Avenue, Suite 2SO
Burlingame, CA 940104211
Telephone: (415) 348-7130
Facsimile: (415) 342.0886
Qifford F. Campbell
Michael F. Rodriquez
Kathleen Faubion
Wendy A. RobertS
David W. Skinner
Steven T. Mattas
Rick W. Jarvis
Veronica A. Nebb
MBKORANJ)UX
Santa Rosa Office
SS5 Fifth Street, Suite 230
Santa Rosa, CA 95401
(7f17) 545-8009
(701) .545-6617 (Fax)
Reply to:
San Lcaadro
Of counsel:
Andrea J. Saltzman
TO:
city council
DATE: March 7, 1994
FROM:
Elizabeth H. silver
city Attorney
RE:
Amendments to Brown Act
March 14, 1994, Council Meeting Report
The Brown Act (Government Code S 54950 et.seq.) was amended
in 1993 by four bills (AB 1426 (Burton), SB 36 (Kopp), SB 376
(Bergeson) and SB 1140 (Calderon). Except for SB 376, the
amendments become effective April 1, 1994.
The purpose of this memorandum is to summarize the more
significant changes applicable to the city and to indicate the
practical effect of the amendments on the city. A more detailed
summary of the Brown Act amendments is attached. (Attachment 1.)
Minor amendments to the Council's Rules for Conduct of
Meetings (Resolution No. 145-86) are required by the Brown Act
amendments. A proposed resolution is attached. (Attachment 2.)
L The Definition of "Leaislative Bodv" has been EXDanded
The Brown Act is applicable to a "legislative body."
The definition
(Gov.Code S 54952.)
of "legiSlative body" has been
A "legislative body" now includes:
amended.
a. The city Council;
b. All commissions, committees, boards or other bodies,
whether permanent or temporary, decisionmaking or
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TO:
FROM:
RE:
DA'l'E:
PAGE:
city council
Elizabeth H. silver
Amendments to Brown Act
March 7, 1994
2
advisory, created by ordinance, resolution or formal
action of the Council.
There is one exception: If a committee is an
advisory committee only and composed of less than
a quorum of the council (i.e., two councilmembers),
it is not a "legislative body."
There is an exception to the exception: Any
committee which is a "standing committee," that
is, having "continuing subject matter
jurisdiction" m;: "a fixed meeting schedule,"
is a " legislative body" even if composed of
only two councilmembers.
c. A board, commission, committee or other body that governs
a private corporation that is either created by the Council to
exercise delegated authority or receives funds from the city and
a member of the Council sits on the board.
Practical Impact
The following city commissions, committees, task forces, etc.
appear to be "legislative bodies" under the Brown Act. The staff
will have to prepare notices and agendas for all meetings and
otherwise follow the Brown Act provisions for meetings of these
groups:
Planning commission
Parks and Recreation commission
Senior center Advisory committee
Heritage Center Task Force
East Bay Regional Parks District Liaison committee
Youth sports Liaison Committee
Audit Review committee*
city council Nominating committee*
*Although these committees are composed of less than a quorum
of the Council and ordinarily would not be legislative bodies they
have continuing subject matter jurisdiction and, therefore, are
legislative bodies under the exception to the exception.
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TO:
FROM:
RE:
DATE:
PAGE:
city council
Elizabeth H. Silver
Amendments to Brown Act
March 7, 1994
3
Business Task Force
community Television Corporation
Library planning Task Force
DSRSD Liaison committee**
city of San Ramon Liaison committee**
Dublin Unified School District Liaison committee**
Livermore Valley Leadership Group
2. Newly-elected councilmembers are Covered bv Brown Act
A newly-elected Councilmember is now covered by the Brown Act
as soon as he or she is elected and before being sworn in to
office. (Gov.Code S 54952.1.)
Practical Impact
Newly-elected Councilmembers must be careful not to meet with
two or more of the current Councilmembers unless the meeting is
noticed and otherwise in compliance with the Brown Act.
3. A Definition of "Meetina" has been Added
The Brown Act did not previously define "meeting." The
amendments add a definition which follows the law developed by the
courts and the Attorney General. (Gov.Code S 54952.2.)
A "meeting" includes:
a. Any congregation of a majority of the members in the same
place and at the same time to "hear, discuss, or
deliberate upon any item that is within the subject
matter jurisdiction" of the council;
**Although these committees consist of less than a quorum of
councilmembers, they also include other persons and, thus, do not
come within the exception.
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TO:
FROM:
RE:
DATE:
PAGE:
city Council
Elizabeth H. silver
Amendments to Brown Act
March 7, 1994
4
b.
Any use of direct communication, personal intermediar ies,
or technological devices employed by a majority to
develop a "collective concurrence as to action to be
taken" by members of the council.
A "meeting" does not include:
a. Individual conversations with any other person;
b. Attendance of a majority of the councilmembers at a
conference or similar public gathering that involves
discussion of issues of general interest to the public
or to public agencies like the city [e. g., League of
California cities conferences], provided there is no
discussion among councilmembers of business of a specific
nature within their subject matter jurisdiction;
c. Attendance of a majority of the councilmembers at an
open, publicized meeting organized to address a topic of
local community concern by a group other than the city
[e.g., a debate sponsored by the League of Women voters
or Chamber of commerce], with the same proviso as above;
and
d. Attendance of a majority of the Councilmembers at a
social or ceremonial occasion, with the same proviso as
above.
Practical Imoact
This section codifies what has generally been considered to
be a "meeting." In particular, this section makes it clear that
a "seriatim" meeting is a violation of the Brown Act.
4. No Action Mav be Taken bv Secret Ballot
The Brown Act did not previously specifically prohibit secret
ballots. section 54953 has been amended to specifically prohibit
action by secret ballot, whether preliminary or final.
5. Meetinas Mav be Recorded and Broadcast
The public may record and/or broadcast council meetings unless
the council finds that the recording or broadcasting will disrupt
the meeting. (Gov.Code SS 54953.5, 54953.6.)
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TO:
FROK:
RE:
DATE:
PAGE:
city Council
Elizabeth H. Silver
Amendments to Brown Act
March 7, 1994
5
The audio tapes of meetings made by the city Clerk must be
retained for 30 days before being erased. (Gov.Code S 54953.5.)
6. Meetinas Must be Held Wi thin the ci tv Except in Limi ted
situations
The Brown Act now specifies that meetings must be held within
the territory of the city.
Meetings may be held outside the territory of the city in
certain situations which may be applicable to the City:
a. To inspect real or personal property;
b. To participate in meetings of multiagency significance;
c. To meet with Federal or state official to discuss
legislative or regulatory issues affecting the city; and
d. To meet in a safe location due to fire, flood, earthquake
or other emergency, provided notice is given to the local
media as rapidly as possible.
7. The Amendments provide Clarification Reaardina the Aaenda and
Discussion of Items Not on the Aqenda
The amendments clarify that the "brief general description"
of items on the agenda need not exceed 20 words. Items to be
discussed in closed session must be described and the amendments
provide the format which may be used. (Gov.Code SS 54954.2,
54954.5.)
The amendments clarify that, before voting to place a non-
agenda item on the agenda, the council must identify the item. As
before, in order to place a new item on the agenda, the Council
must vote that an emergency exists (e.g., a strike, fire,
earthquake) or that there is an immediate need to take action and
the need came to the council's attention after the agenda was
posted.
The amendments also clarify that when a non-agenda item is
raised by a member of the public, Council members may briefly
respond, may ask questions for clarification and may refer the
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TO:
FROM:
RE:
DATE:
PAGE:
City Council
Elizabeth H. silver
Amendments to Brown Act
March 7, 1994
6
matter to staff. councilmembers can also direct staff to place a
matter on a future agenda. (Gov.Code S 54954.2.)
Finally, the amendments require the notice of a special
meeting to include a time for the public to address the council
concerning the items on the agenda prior to the Council taking
action. (Gov.Code S 54954.3.)
Practical Impact
The description of closed session items on the agenda should
follow the format in S 54954.5. This will require slight
modification to the existing agenda format.
The agenda should include an item for councilmember and staff
informational reports. Any reports of an informational nature can
be given at that time. Any report requiring council action would
have to be listed separately on the agenda.
The notice and agenda for special meetings must include a time
for the public to address the council regarding the items to be
considered.
8. The Amendments Clarifv the Notice and Hearinq Requirements for
Imposing or Increasina Taxes or Assessments
The Brown Act was amended in 1992 to require notice by
publication or mail and a public meeting and public hearing before
imposing or increasing a general tax or special assessment. The
Act has been amended (SB 376 (Bergeson), stats. 1993, ch. 1194) to
clarify these requirements. In particular, the notice provisions
are not applicable to an ongoing annual assessment if it is imposed
at the same or lower amount as the previous year or the assessment
does not exceed an assessment formula previously approved by the
voters.
9. The Amendments ClarifY the circumstances Justifvina a Closed
Session to Discuss potential Litiaation Aaainst the City
As before, the council may meet in closed session with its
legal counsel in three situations: (1) to discuss pending
litigation, (2) where there is a significant exposure to litigation
against the city due to "existing facts and circumstances", and (3)
to discuss whether to initiate litigation. (Gov.Code S 54956.9.)
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TO:
FROM:
RE:
DATE:
PAGE:
city council
Elizabeth H. silver
Amendments to Brown Act
March 7, 1994
7
The amendments specify what constitutes "existing facts and
circumstances" which must be present in order to hold a closed
session to discuss potential litigation against the city. The
ci ty' s legal counsel must determine that there are "existing facts
and circumstances," as specified in the statute. These include
statements threatening litigation made in a public meeting or
elsewhere; claims filed under the Tort Claims Act; "facts and
circumstances" which might result in litigation against the city
which are not know to a potential plaintiff, in which case the
"facts and circumstances" need not be disclosed; and "facts and
circumstances," such as an accident, disaster, or transaction which
might result in litigation against the city which are known, in
which case the agenda must include the "facts and circumstances".
Practical Imoact
The format for listing closed sessions for litigation or
potential litigation will be adjusted to conform to the amendments.
10. Closed Sessions for Personnel Matters and Labor Neaotiations
Mav be Held But Discussion of the Availabilitv of Funds is
Prohibited
The Council may still meet in closed session to consider the
appointment, employment, evaluation or performance or dismissal of
an employee or to hear complaints or charges brought against an
employee. The definition of "employee" has been revised to include
an officer or an independent contractor who functions as an officer
or employee. It does not include elected officials. The
amendments appear to authorize discussion of an individual's
compensation. (Gov. Code 55 54957.1.)
Likewise, the council may still meet in closed session with
its representatives to discuss employees' compensation.
The amendments specify, however, that closed sessions for
personnel or labor negotiations "shall not include discussions of
a local agency's available funds, funding priorities, or budget."
(Gov. Code 55 54957, 54957.6.)
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TO:
FROK:
RE:
DATE:
PAGE:
city council
Elizabeth H. silver
Amendments to Brown Act
March 7, 1994
8
11.
The council Must ReDort Actions Taken in Closed Sessions
Under prior law, the council was only required to report
actions taken in closed session to appoint, employ or dismiss a
public employee.
The amendments now require that virtually all actions taken
in closed session be reported and the vote thereon. When the
council meets in closed session to discuss initiating litigation,
for example, the Council must report that approval was given and
the particulars must be disclosed once the action is filed. If the
council approves a settlement of a pending action, it must report
the substance of the agreement or, if final approval rests with
the other party, the fact of approval and the substance must be
disclosed to any person making inquiry.
Copies of documents finally approved in
be provided at the end of the closed session
made a request therefor and are present
amendments to the documents were made.
closed session must
to persons who have
unless substantive
The report must be made orally or in writing following the
closed session. (Gov.code S 54957.7.)
Practical ImDact
The Council will need to reconvene in open session following
all closed sessions and report any actions taken and the vote
taken. My suggestion is that this be done orally and in written
form. Attachment 3 is a form which may be used to record closed
session actions.
The agenda should include a new category following any closed
sessions for "report on closed session actions taken."
12. staff ReDorts and other Documents Distributed to the council
Must be Available for InsDection at the Meetinq
The amendments clarify that the agenda and any other writings
distributed to the council by any person at a public meeting are
public records, unless otherwise exempt from disclosure pursuant
to the public Records Act, and must be available for public
inspection at the meeting (or after the meeting if the documents
was not prepared by staff). (Gov.code S 54957.5.)
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TO: City council
FROK: Elizabeth H. Silver
RE: Amendments to Brown Act
DATE: March 7, 1994
PAGE: 9
13. Violation of the Brown Act Requires Wronaful Intent
The amendments specify that it is a misdemeanor to attend a
meeting where action is taken in violation of the Act wi th
"wrongful intent to deprive the public of information to which it
is entitled" under the Act. (Gov.Code ~ 54959.) Prior law
required knowledge of the fact that the meeting was in violation
of the Act.
14. The District Attornev May Brina an Action to Determine an
Action is Null and Void Because of violation of the Act
The amendments clarify that the District Attorney may bring
an action to determine that an action taken by a legislative body
is null and void because of violation of the Brown Act. Demand
must first be made to correct the alleged violation.
If a violation of the closed meeting requirements is found,
the Court may order the legislative body to tape record its closed
sessions. (Gov. Code ~ ~ 54960, 54960.1.)
Very truly yours,
MEYERS, NAVE, RIBACK, SILVER & WILSON
~~ AI. >;~
Elizabeth H. silver
EHS: jde
114\memo\mar94\city
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MEYERS, NAVE, RIBACK, SILVER & WILSON
PENINSULA OFFICE
MICHAEL R. NAVE
STEVEN R. MEYERS
ELIZABETH H. SILVER
MICHAEL S. RIBACK
KENNETH A. WILSON
A PROFESSIONAL LAW CORPORATION
1220 HOWARD AVE.. SUITE 250
BURLINGAME. CA 94010-4211
TELEPHONE: (415) 348-7130
FACSIMilE; (415) 342-0886
CLIFFORD F. CAMPBELL
MICHAEL F. RODRIQUEZ
KATHLEEN FAUBION. AICP
WENDY A. ROBERTS
DAVID W. SKINNER
STEVEN T. MATIAS
RICK W. JARVIS
VERONICA A. F. NESS
GATEWAY PLAZA
777 DAVIS STREET. SUITE 300
SAN LEANDRO. CALIFORNIA 94577
TELEPHONE: (510)351.4300
FACSIMILE; (510)351-4481
SANTA ROSA OFFICE
555 FIFTH STREET. SUITE 230
SANTA ROSA. CA 95401
TELEPHONE: (707) 5<15-8009
FACSIMilE; (707) 545-6611
OF COUNSEL
ANDREA J. SALTZMAN
REPLY TO;
BROWN ACT
1993 AMENDMENTS
INTRODUCTION
In the 1993 LegiSlative Session, three bills were passed
containing amendments to the Brown Act, AB 1426 (Burton), SB 36
(~) and SB 1140 (Calderon). The bills have been signed by the
Governor and will become effective April 1, 1994.
This legislation consists of a watered down version of
Senator KOPP's SE 1538 which was passed by the Legislature and
vetoed by the Governor last year, an identical bill by Assembly
Member Burton, and a bill by Senator Calderon that was sponsored
by local government.
BROWN ACT AMENDMENTS
1. Chanaed Definition of "Leaislati va BodY". SB 1140 provides
a new definition of "legislative body", deleting provisions
that were confusing and contradictory, as to who is covered
by the Brown Act. Under the new definition "legislative
body" means:
(a) The governing body of a local agency or any other local
body created by state or federal statute.
(b) A commission, committee, board, or other body of a
local agency, whether permanent or temporary,
decisionmaking or advisory, created by charter,
ordinance, resolution, or formal action of a
legislative body. However, advisory committees,
composed solely of the members of the legislative body
which are less than a quorum of the legislative body
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are not legislative bodies, except that standing
committees of a legislative body, irrespective of their
composition, which have a continuing subject matter
jurisdiction, or a meeting schedule fixed by charter,
ordinance, resolution, or formal action of a
legislative body are legislative bodies for purposes of
this chapter.
(c) A board, commission, committee, or other multimember
body that governs a private corporation or entity that
either:
(1) Is created by the elected legislative body in
order to exercise authority .that may lawfully be
delegated by the elected governing body to a
private corporation or entity.
(2) Receives funds from a local agency and the
membership of whose governing body includes a
member of the legislative body of the local agency
appointed to that governing body by the
legislative body of the local agency. (S 54952.)
2. Definition of Member of Leqislative BodY. The definition of
"member of a legislative body of a local agency" is expanded
to include persons who have been elected but not yet assumed
the duties of office. These persons are individually liable
for violation of the Brown Act prior to assuming office.
(S 54952.)
3. Definition of "Meetinq" Includes All of the Followinq:
(a) Any congregation of a majority of the members of a
legislative body in the same time and place to hear,
discuss, or deliberate upon any item that is within the
subject matter jurisdiction of the legislative body of
the local agency to which it pertains.
(b) Any use of direct communication, personal
intermediaries, or technological devices that is
employed by a majority of the members of the
legislative body to develop a collective concurrence as
to action to be taken on an item by the members of the
legislative body.
Meetings do not include:
(1) Individual contacts or conversations between a
member of a legislative body and any other person;
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(2) Individual attendance of a board majority at
conferences that are open to the public, involving
a discussion of general interest to the public or
public agencies of that agency's type, provided
that the majority does not discuss local agency
business among themselves;
(3) Attendance of a majority at a publicized meeting
organized to address a topic of local community
concern by a person or organization other than the
local agency, provided that the majority does not
discuss business by themselves; or
(4) Attendance of a majority at a purely social or
ceremonial occasion, providing that no business is
discussed. (5 54952.2.)
4. video Teleconferencinq. The provisions of the Brown Act
permitting video teleconferencing for receipt of public
comment or testimony and legislative body deliberations are
now in effect indefinitely. (5 54953 (b) . )
5. secret Ballot. No legislative body shall take action by
secret ballot, preliminary or final. (5 54953(c).)
6. Recordinq and Broadcastinq of Meetinqs. The Act noW allows
recording of meetings by still or motion picture camera in
addition to audio or video recording, in the absence of a
reasonable finding that the recording constitutes a
persistent disruption of the proceedings. Any recording
made at the discretion of the local public agency becomes a
public record and may not be destroyed for 30 days after the
recording, and is subject to public inspection.
The new law also provides that a legislative body may not
prohibit or otherwise restrict broadcast of its proceedings
unless it reasonably finds that the broadcast cannot be
accomplished without noise, illumination, or obstruction of
view that would constitute a continuous disruption of the
proceedings. (55 54953.5, 54953.6.)
7. Location for Meetinqs. To properly provide for regular
meetings, legislative bodies must noW provide the time AND
PLACE by resolution, by-laws or other rule.
The new law adds a provision requiring that meetings of the
"legislative body" be held within the territory of the local
agency except that meetings may be outside the local agency:
(a) To meet requirements of state or federal law;
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(b) To inspect real or personal property which cannot be
conveniently brought to the local agency;
(c) To participate in meetings or discussions of multi-
agency significance held within the jurisdiction of one
of the participating local agencies and open and
noticed by all participating local agencies as required
by the Brown Act;
(d) To meet in the closest meeting facility if none is
available inside the local agency boundaries or at the
principal office of the local agency if located outside
its boundaries;
(e) To meet with elected or appointed officials of the
united states or the state of California where a local
meeting would be impractical, solely to discuss
legislative or regulatory issues affecting the local
agency. A report of the substance and outcome of the
meeting must be given at the next regular or special
meeting held in the local agency;
(f) Meetings at a facility owned by the local agency where
the topic of the meeting is limited to items directly
related to the facility; and,
(g) To hold a closed session at the office of legal counsel
on pending litigation, if the meeting reduces legal
costs, and if the meeting is noticed as a special
meeting.
A joint powers authority ordinarily must meet within the
territory of one member agency, but if members are from
throughout the state, it can meet anywhere in the state.
If an emergency makes it unsafe for a legislative body to
meet at the regular place, the presiding officer may
designate a place and notify local media by the most rapid
means available. (5 54954.)
8. Accessi~ilitv of Meetina Facilities: pu~lic Disclosure of
victim of Abuse. The legislative body may not meet in a
facility that prohibits. admittance of any person on the
basis of race, religious creed, color, national origin,
ancestry, or sex, or which is inaccessible to disabled
persons, or when members of the public may not be present
without making a purchase. No notice, agenda, announcement
or report required under the Act need identify a victim or
alleged victim of sexual or child abuse unless the identity
of the person has been publicly disclosed. (5 54961.)
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9. New ReQuirements for Notices of Meetinqs. The degree of
specificity in the description required of items listed on
agendas is now codified and requires a brief general
description of each item of business to be transacted or
discussed, which need not exceed 20 words. (~54954.2.)
10. opportunity For public Input. Agendas of special meetings,
at which action is proposed to be taken are required by
statute to provide an opportunity for members of the public
to directly address that item prior to action being taken.
This section further clarifies that the public has a
constitutionally protected right to address the legislative
body through criticism of the IIpolicies, procedures,
programs or services of the agencyll, regardless whether it
implicates the performance of one or more of its employees.
(~ 54954.3.)
11. Reasons for Closed sessions. Under existing law, prior to
or after holding a closed session, the legislative body must
state the general reason or reasons for the closed session.
The new law requires that the statement be made prior to
holding the closed session and may refer to that agenda.
The new legislation further provides for convening of an
open session after a closed session solely for the purpose
of making the announcement required by law. If the closed
session is held at a different place, the announcements may
be made if the location is announced on the agenda and the
public is allowed to be present to hear the announcements.
(~ 54957.7.)
12. Closed session Aqenda ReQuirements. Closed session meetings
must be included on a posted agenda. The new law recommends
but does not require the information that should be
described on a posted agenda. If the recommended
information is included there is not a violation of the
IIbrief general descriptionll requirements of ~ 54954.2.
(~ 54954.5.)
13. Closed sessions For Litiqation. The new law also defines
the lIexisting facts and circumstances II that justify a closed
session based on significant exposure to litigation. A
closed session may be held when:
(a) Facts and circumstances exist that might result in
litigation against the local agency but are not yet
known to a potential plaintiff or plaintiffs which are
not required to be disclosed;
(b) Facts and circumstances exist, including but not
limited to an accident, incident, or transaction that
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might result in litigation against the local agency and
that are known to a potential plaintiff or plaintiffs,
provided that the facts and circumstances are specified
publicly prior to the closed session;
(c) A claim or other written communication has been
received threatening litigation, provided the claim or
communication must be available for public inspection;
(d) A statement is made in open and public meeting
threatening litigation; or
(e) The statement is made outside an open and public
meeting, but the official or employee receiving the
threat has made an extemporaneous record of the
communication that is available for public inspection.
Prior to a closed session for litigation, the legislative
body must state on the agenda, or announce the subdivision
of Section 54956.9 that authorizes the closed session.
(S 54956.9.)
14. Closed Sessions For personnel. The new law provides that a
closed session may not be held on complaints or charges to
consider disciplinary action or dismissal of an employee
unless the employee is given written notice of the right to
have a public hearing rather than a closed session. The
notice must be delivered to the employee personally or by
mail at least 24 hours before the time of holding the
session. If the notice is not given, disciplinary action
taken against the employee in the closed session is null and
void.
The term "employee" is now defined to include an officer or
an independent contractor who functions as an officer, but
does not include an elected official, member of a
legislative body or other independent contractors.
Discussions of available funds, funding priorities or budget
is prohibited in personnel closed sessions under the new
law. (S 54957.)
15. Reports of Closed Sessions. The amendments require reports
after virtually every kind of closed session. A public
report must be made of any action taken in closed session
and the vote or abstention of every member present,
specifically, with the following information:
. Real Property Neqotiations. If the agreement becomes
final by approval of the legislative body, that
approval and the substance of the agreement must be
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reported in open session at the meeting at which the
closed session is held. If final approval rests with
the other party, the fact of that approval and the
substance of the agreement shall be disclosed upon
inquiry by any person, as soon as the other party or
its agent informs the local agency of its approval.
. pendina Litiqation.
(a) Approval given to the legislative body's legal
counsel in closed session, to defend, or seek or
refrain from seeking appellate review or relief or
to enter as an amicus curiae in any litigation
must be reported in open session, identifying the
adverse parties and the substance of the
litigation.
(b) If approval is given in closed session to initiate
or intervene in an action, the report need only
specify that the direction to initiate or
intervene has been given and that the action, the
defendants and the other particulars shall be
disclosed to any person upon inquiry, once
formallv commenced, unless to do so would
jeopardize the agency's ability to effect service
of process on one or more of the parties, or
jeopardize its ability to conclude existing
settlement negotiations to its advantage.
(c) Approval given in closed session to legal counsel,
of a settlement of pending litigation, at any
stage prior to or during a proceeding, shall be
reported after the settlement is final, as
specified below:
(1) If the acceptance of an offer finalizing a
settlement is given by the legislative body,
it shall report its acceptance and identify
the substance of the agreement in open
session at the public meeting during which
the closed session is held.
(2) If final approval rests with another party,
or with the court, then as soon as the
settlement becomes final, the local agency
shall disclose the fact of that approval and
identify the substance of the agreement to
any person inquiring about the matter.
. Disposition of Claims Bv Joint powers Insurance
Aqencies Or Members Thereof. Disposition of claims
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reached in closed session shall be reported immediately
in a manner that identifies the name of claimant, name
of the local agency claimed against, the substance of
the claim and any monetary amount approved for payment
and agreed to by the claimant.
. Personnel Meetinq. Action taken in closed session to
appoint, employ, dismiss, accept the resignation of or
otherwise affect the employment status of a public
employee, shall be reported at the public meeting
during which the closed session is held. The report
shall identify the title of the position, and specify
any change in compensation. The report of a dismissal
or non-renewal of an employment contract shall be
deferred until the first meeting following the
employee's exhaustion of administrative remedies, if
any.
. Labor Neqotiations. Approval of an agreement
concluding labor negotiations shall be reported after
the agreement is final and has been accepted or
ratified by the other party. The report shall identify
the item approved and the other party or parties to the
negotiation.
Required reports may be oral or written.
copies of any contract, settlement agreement or other
documents finally approved in closed session must be
provided at the end of the closed session to (1) a person
who has made a written request within 24 hours of the
posting of the agenda, or (2) who has made a standing
request for notice of meeting under section 54954.1 or
54956. Such person must be present at the time the closed
session ends. The legislative body must provide such
documents on the next business day to any other person.
However, if the documents require retyping they need not be
released until retyping is completed, provided the presiding
officer of the legislative body, or designee, summarizes the
substance of the amendments for the benefit of the document
requestor or any other person present at the end of the
closed session who requests that information.
This amendment prohibits employees from commencing any
action against the local agency b~cause of a disclosure made
by a legislative body in an effort to comply with this
section. (5 54957.1.)
16. Distributed Materials as publio Reoords. Under the existing
law, writings distributed to all or a majority of the
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members of a legislative body, by a member, officer or
employee of such body for consideration at a public meeting,
are public records. The new law makes such writings
distributed by any person public records, and must be made
available for inspection and copying "without delay".
Writings distributed for closed session are exempt from
public disclosure if otherwise exempt under the public
Records Act.
If writings are distributed during a meeting, they must be
available for public inspection immediately if prepared by
the local agency, or after the meeting if prepared by some
other person.
Ordinary copying fees may be charged for these public
records. (554957.5.)
17. Violations of the Brown Act. The new law provides that a
member who attends a meeting where action is taken in
violation of the Brown Act with wrongful intent to deprive
the public of information to which it is entitled, is guilty
of a misdemeanor. The old language of this section required
knowledge of the fact that the meeting was in violation.
(5 54959.)
18. Enforcement of Brown Act. Under existing law, the district
attorney is not expressly permitted to commence an action to
determine that an action is null and void because of
violation of the Brown Act. The new law allows the district
attorney to bring such an action. It provides that demand
must be made to correct the alleged violation within thirty
days from the date the action was taken, except that if the
alleged violation occurred in a closed session, demand must
be made within ninety days (increased from thirty days) .
If violations of the closed meeting requirements of the
Brown Act are found a court can order the local agency to
tape record its closed sessions. (5 54960, 5 54960.1.)
. . . .
For further information concerning these amendments to the
Brown Act, contact Michael S. Riback at (510) 351-4300.
atty\msr\Brown.Act
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City Council of City of Dublin Closed Session Report
Date of Closed Session
, 199
Matter Discussed and Summary Discussion:
Case and Court Number
Approval of Real Estate Agreement
Personnel Action
Other
Council Members Present and Their Votes:
Name
Aye
No
Abstain
Not prasent
Snyder
Burton
. .
.........11'........"......11."...........111......".....11......1I.......111..................
. .
. . .
11.11 I"" ill iII..'....I~...'..... 1111" .:... I...... ill"'" ~..I'''' '.1...... III..... .1"'" ,Ii. I"'" II II
. .
Houston
. . .
t....,.... ill I........ II ,......... 1"1" ifill. I. ..... II to.,... ~.I"" III 1111..,.. 1111... 11'1'"'' ill III.... Ii I'"
Howard
. .
. 01.1........ II I.'....... III........ It...... 01'1"" 'III'..... t.1 I.... II tit... ill III"..... '.1.".... 111....111.
. .
Moffatt
. . .
.................... (............... .:................ ~..........................................
. . .
Voting Tally
Non.Disclosure Recommended (check if yee) 0
Legal Justification (if yes)
Disclosure would intereferll with service of process 0
Explanation:
Disclosurll would impair ability to settle 0
Approved:
Elizabeth H. Silver
City Attorney
Dated:
A+{-co:J, 2-
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RESOLUTION NO. - 94
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
**...**...***...
AKENDING RESOLUTION NO. 145-86
ESTABLISHING RULES FOR THE CONDUCT OF THE KEETINGS
OF THE CITY COUNCIL OF THE CITY OF DUBLIN
WHEREAS, during the 1993 Legislative session, three bills were
passed oontaining various amendments to the Brown Aot; and
WHEREAS, these ohanges will beoome effeotive on April 1, 1994.
NOW, THEREFORE, BE IT RESOLVED that all previous rules related to
the oonduot of meetings of the city counoil shall be superseded by the
following rules:
1. REGULAR MEETINGS
a. Time Regular meetings of the city council shall be
held on the second and fourth Monday of each month at
the hour of 7:30 p.m. Whenever the day fixed for any
regular meeting of the Council falls upon a day
designated as a holiday, such meeting will be held at
the same hour on the next succeeding day not a holiday.
b. Place All regular meetings of the Council shall be
held at the Civic center, as designated by Ordinance.
c. Public All meetings of the council shall be open to
the public; provided, however, the city council may
hold closed sessions as provided by the laws of the
state of California.
2. SPECIAL KEETINGS
A special meeting may be ordered at any time by the Mayor
whenever in his/her opinion the public business may require it or upon
the written request of any three members of the Council. Whenever a
special meeting shall be called, written notice of such meeting shall
be delivered personally or by mail by the City Clerk to each member of
the Council and to each local newspaper of general circulation and
radio/television station requesting notice in writing. such notice
must be delivered at least twenty-four (24) hours before the time of
such meeting as specified in the notice. The notice shall specify the
time and place of the special meeting and the business to be
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transacted. No other business shall be considered at such meetings by
the council.
The agenda for special meeting shall contain the information
set forth in section 3.a.-d. below. At least twenty-four (24) hours
before each special meeting, the city Clerk shall post a copy of the
agenda, including the call and notice of the special meeting at the
same location identified in section 3 below.
3 . AGENDA
In order to facilitate the orderly conduct of the business
of the council, the city Clerk shall be notified no later than 11:00
a.m., of the Tuesday immediately preoeding a regular Council meeting
of all reports, communications, ordinances, resolutions, contract
documents or other matters to be submitted to the council at such
meeting. Immediately thereafter, the city Clerk shall arrange an
agenda of such matters according to the order of business and furnish
each member of the Council, the City Manager, city Attorney, City
Department Heads and Staff with a copy of the agenda packet prior to
the Council meeting and as far in advance of the meeting as time for
preparation will permit.
The agenda prepared by the City Clerk shall, at a minimum,
include:
a. The date of the meeting;
b. The time of the meeting;
c. The location of the meeting;
d. A ~rief general description of each item of business to
be transacted or discussed at the meeting;
e. A specified period of time for members of the public to
address the council on items of interest to the public
that are within the jurisdiction of the Council,
including a provision that no person may speak longer
than five (5) minutes, and including language that the
counoil oan only briefly respond with questions, refer
to staff, or place on future agenda.
f. A speoified seotion under whioh counoilmembers and
staff may present informational reports.
At least seventy-two (72) hours before eaoh regular meeting,
the city Clerk shall post a copy of the agenda in the Kiosk in front
of the Civic center located at 100 Civio Plaza, Dublin, california.
The City Clerk shall execute a declaration of posting which
shall be filed in the Office of the city Clerk.
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The city Clerk shall so mark or denote "Consent Calendar"
items on the agenda to identify those items on the agenda which can
reasonably be expected to generate no discussion by members of the
city Council, city staff or interested persons in the audience. The
Council shall consider all of the items on the Consent Calendar
portion of the agenda at one time by a vote after a motion has been
duly made and seconded. If any member of the city Council, city staff
or interested person in the audience requests that a consent item be
removed from the list, such item shall be taken up for consideration
and disposition in the order listed on the agenda.
4. THE PRESIDING OFFICER
The Mayor shall preside at all city council meetings and
perform such other duties consistent with his/her office as may be
imposed by the Council. The Mayor shall be entitled to vote, but
shall possess no veto power. The Mayor shall be recognized as the
official head of the city for all ceremonial purposes, by the courts
for the purpose of serving civil process and by the Governor for
military purposes. In the time of public danger or emergency, the
Mayor, with the consent of the Council, shall cause order to be
maintained and enforce laws.
The Mayor shall preserve strict order and decorum at all
regular and special meetings of the council. The Mayor shall state
every question coming before the Council, call for the vote, announce
the decision of the council on all subjects and decide all questions
of order, subject however, to an appeal of the Council, in which event
a majority vote of the council shall govern and conclusively determine
such question of order. The Mayor shall sign all ordinances adopted
by the Council during his/her.presence. In the event of the absence
of the Mayor, the Mayor Pro Tempore shall sign ordinances as then
adopted.
5. CALL TO ORDER
The Mayor, or in his/her absence, the Mayor Pro Tempore,
shall take the chair precisely at the hour appointed for the meeting,
and shall immediately call the council to order. In the absence of
the Mayor or Mayor Pro Tempore, the city Clerk shall call the Council
to order whereupon a temporary chair shall be elected by the members
of the council present. Upon the arrival of the Mayor or Mayor Pro
Tempore, the temporary chair shall immediately relinquish the chair
upon the conclusion of the business immediately before the Council.
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6. ATTENDANCE
Before proceeding with the business of the Council, the city
Clerk shall enter into the minutes the names of the members present or
absent. No formal roll call need be taken.
7. QUORUM
A majority of the members of the council shall constitute a
quorum for the transaction of business, but a lesser number than a
quorum may adjourn from time to time. The Council may adjourn any
regular, adjourned regular, special or adjourned special meeting to a
time and place specified in the order of adjournment. If all members
are absent from any regular or adjourned regular meeting, the city
Clerk may declare the meeting adjourned to a stated time and place.
If he/she does, he/she shall cause written notice of the adjournment
to be given in the same manner as provided for special meetings. A
copy of the order or notice of adjournment shall be posted in the
civic Center Kiosk and other places designated by the Council within
twenty-four (24) hours after the time of adjournment. Whenever a
regular or adjourned regular meeting is adjourned as provided in this
section, the resulting adjourned regular meeting is a regular meeting
for all purposes. When an order of adjournment of any meeting fails
to state the hour at which the adjournment meeting shall be held, it
shall be held at the hour specified for regular meetings.
8. ORDER OF BUSINESS
Promptly at the hour set on the day of each regular meeting,
the members of the council, City Clerk and city Manager shall take
their regular stations in the council Chambers and the business of the
council shall be taken up for consideration and disposition in the
following order except that with the unanimous consent of the Council,
matters may be taken up out of order:
1. Call to Order
2. Pledge of Allegiance to the Flag
3. Oral Communications
4. consent Calendar
5. Written Communications
6. Public Hearings
7. Unfinished Business
8. New Business
9. Other Business (counoil/staff Informational only
Reports)/Matters too Late for the Agenda
10. Closed Session
11. Report o~ Closed session Items
12. Adjournment
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9. HATTERS TOO LATE FOR THE AGENDA
a. No action or discussion shall take place on any item
not appearing on the agenda for a regular meeting as
posted, unless
(1) The city council determines by majority vote that
an emergency situation exists, as defined in
Government Code section 54956.5;
(2) The city council determines by vote of four (4)
out of five (5) members (or by a unanimous vote of
the members of the council if only 4 or only 3
members are present) that there is a need to take
immediate action and that the need for action came
to the council's attention after the agenda was
posted;
(3) The item was included in a posted agenda for a
prior meeting held not more than five (5) calendar
days prior to the meeting at which the item is
acted upon.
b. When an item not on an aqenda is raised by a member of
the publio, the city counoil may briefly respond, may
ask questions for clarifioation, provide a referenoe to
staff or other resouroes, or request staff to report
back at a subsequent meetinq. Furthermore, a member of
the city Counoil may take aotion to plaoe a matter of
business on a future aqenda.
10. READING OF KINUTES
Unless the reading of the minutes of a council meeting is
requested by a member of the council, such minutes may be approved
without reading if the City Clerk has previously furnished each member
with a copy thereof.
11. RULES OF DEBATE
a. presidinq Officer mav debate The Mayor or such other
member of the council as may be presiding may move,
second and debate from the chair, subject only to such
limitations of debate as are by these rules imposed
upon all members. He/she shall not be deprived of any
of the rights and privileges of a councilmember by
reason of his/her acting as the Presiding Officer.
b. Getting the floor Every member desiring to speak shall
address the chair, and upon recognition by the Mayor,
shall confine himself/herself to the question under
debate.
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c. Interruotions A member once recognized, shall not be
interrupted when speaking unless it be to call him/her
to order, or as herein otherwise provided. If a
member, while speaking, be called to order, he/she
shall cease speaking until the question of order be
determined, and if in order, he/she shall be permitted
to proceed.
d. privileoe of closino debate The Councilmember moving
the adoption of an ordinance or resolution shall have
the privilege of closing the debate.
e. Motion to reconsider A motion to reconsider any action
taken by the Council may be made at any time.
Such a motion must be made by one of the prevailing
side, but may be seconded by any member, and may be
made at any time and have precedence over all other
motions or while a member has the floor; it shall be
debatable. Nothing herein shall be construed to
prevent any member of the Council from making or
remaking the same or other motion at a subsequent
meeting of the council.
f. Remarks of Councilmember A councilmember may request
through the Mayor, the privilege of having an abstract
of his/her statement on any subject under consideration
by the council entered in the minutes. If the Council
consents thereto, such statement shall be entered in
the minutes.
g. Synoosis of Debate The City Clerk may be directed by
the Mayor with the consent of the council, to enter in
the minutes a synopsis of the discussion of any
question coming regularly before the council.
h. Rules of Order Except as otherwise provided in this
resolution, the current edition of "Roberts Rules of
Order" shall govern the conduct of the meetings of the
city Council.
12. ADDRESSING THE COUNCIL
Any person desiring to address the council at a meeting
shall first secure the permission of the Mayor to do so; provided,
however, that under the following headings of business, any qualified
and interested person shall have the right to address the council upon
obtaining recognition by the Mayor.
a. Written communications Interested persons or their
authorized representative may address the council by
written communication on any matters concerning the
I
city's business, or any matters over which the council
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has control. Such written communication shall be
delivered to the city Clerk no later than 11:00 a.m.,
of the Tuesday immediately preoeding the regular
Council meeting for which such written communication is
intended.
b. Oral Communications Interested persons in the
audience or their authorized representatives may
address the council by oral communications on any
matters over which the Council has control; provided,
however, that preference shall be given to those
persons who have notified the City Clerk in advance of
their desire to speak in order that the same may appear
on the agenda of the council.
13. ADDRESSING THE COUNCIL AFTER NOTION HADE
After a motion is made by the Council, no person shall
address the council without first securing the permission of the Mayor
to do so.
14. KANNER OF ADDRESSING COUNCIL
Eaoh person addressing the counoil shall stand at the
podium, and give his/ber name and address in an audi~le tone of voioe
for tbe reoord. All remarks shall be addressed to the Council as a
body and not to any member thereof. No person, other than the Council
and the person having the floor shall be permitted to enter into any
discussion, either directly or through a member of the council,
without the permission of the Mayor. No question shall be asked a
Councilmember except through the Mayor.
15. VOTING
a. Members of the Council shall vote by "voice vote" on
all ordinances, resolutions and other matters unless a
roll call vote is required by law or is requested by a
councilmember. silence shall be recorded as an
affirmative vote. The Mayor shall announce the result
of the vote. The city Clerk shall shown on ordinances
and resolutions the names of Councilmembers voting
"Aye" and "No".
b. The vote on any matter being considered by the Council
may be delayed by the Mayor until all members of the
council present for a meeting, and not excused as
herein provided, are present at the council table.
c. A member of the council who has a conflict of interest
regarding any matter being considered by the Council
I
shall declare the conflict and excuse himself/herself
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from participating in the Council's deliberations and
decisions regarding that matter.
16. ORDER AND DECORUK
a. Bv Councilmembers While the council is in session,
the members must preserve order and decorum, and a
member shall neither by conversation or otherwise,
delay or interrupt the proceedings or the peace of the
council nor disturb any member while speaking or refuse
to obey the orders of the councilor Mayor, except as
otherwise herein provided.
b. By Persons Any person making personal, impertinent, or
slanderous remarks or who shall become boisterous while
addressing the councilor who shall be conversation or
otherwise, delay or interrupt the proceedings or the
peace of the councilor disturb any member while
speaking or refuse to obey the orders of the councilor
the Mayor shall be forthwith, by the Mayor, barred from
further audience before the council, unless permission
to continue is granted by a majority vote of the
council.
c. Enforcement of order and Decorum A law enforcement
officer shall be designated as Sergeant-at-Arms of the
Council meetings when requested by the Mayor. He/she
shall carry out all orders and instructions given at
the council meeting. Upon instruction of the Mayor, it
shall be the duty of the sergeant-at-Arms, as to any
person who violates the order and decorum of the
meeting to remove and bar such person from the council
meeting. violations of the order and decorum of a
Council meeting is a misdemeanor.
d. Smokina smoking is prohibi~ed at all ~imes in all
city-owned facilities.
17. SPECIAL COKMITTEES/TASK FORCES
All special committees/task forces shall be appointed by the
Mayor, subjeot to approval of the city Counoil.
18. PROTESTS
Any Councilmember shall have the right to have the reasons
for his/her dissent from or protest against, any action of the Council
entered in the minutes.
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19. ADJOURNMENT
A motion to adjourn shall always be in order and decided
without debate.
20. RULES AVAILABLE FOR PUBLIC REVIEW
A copy of this Resolution shall be available at all meetings
of the Council for review by the pUblic.
PASSED, APPROVED AND ADOPTED this 14th day of March, 1994.
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
city Clerk
K2:C:RESORULE
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