HomeMy WebLinkAbout4.02 AlamedaCtyGndJury
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CITY CLERK
File # D~lm[QJ-[8][Q]
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AGENDA STATEMENT
CITY COUNCIL MEETING DATE: August 18,1998
SUBJECT:
Comments to 1997-98 County of Alameda Grand Jury
Recommendations 98-35 & 98-36
Report Prepared by Elizabeth H. Silver, City Attorney
EXHIBITS ATTACHED:
A)
B)
Letters from Neil B. Goodhue, Grand Jury Foreman dated
June 25, and July 1, 1998
Response letter to Honorable Philip V. Sarkisian, Presiding
Judge of the Superior Court
RECOMMENDATION:
aY Authorize Mayor to execute letter and direct Staff to send letter to
, Judge SarkiSIan WIth copy to Mr. Goodhue
FINANCIAL STATEMENT: None
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DESCRIPTION: The Grand Jury is made up of 19 members of the community who
serve as volunteers and who review governmental operations. The 1997-98 Alameda County Grand Jury
recently issued its Final Report.
The Government Committee of the Grand Jury made recommendations related to The Brown Act and
Code of Ethics _ Conflict ofInterest Policy. In accordance with the California Penal Code, any public
agency subject to its reviewing authority must respond and comment no later than 90 days after the Grand
Jury submits its Final Report.
Staff recommends that the Council authorize the Mayor to execute the attached letter and direct Staff to
send it to Presiding Judge Sarkisian, with a copy to Neil Goodhue, Grand Jury Foreman.
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COPIES TO:
ITEM NO. A2
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County of Alameda
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GRAND JURY
June 25, 1998
Dublin City Council
6500 Dublin Blvd.
Dublin, CA 94566
Dear Counci I Members:
Enclosed please find the 1997-1998 Alameda County Grand Jury Final Report relating
to investigations regarding the Brown Act and the Alameda County Code of Ethics/Conflict
of Interest Policy. Section 933.05(f) of the California Penal Code states as follows:
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A grand jury shall provide to the affected agency a copy of the portion of the
grand jury report relating to that person or entity two working days prior to
its public release and after the approval of the presiding judge. No officer,
agency, department, or governing body of a public agency shall disclose any
contents of the report prior to the pub/~c release of the final report.
Leg.H. 1996 ch. 1170, 1997 ch. 443.
In accordance with the above Penal Code section, we are providing you with
a copy of this report. This report is expected to be released to the public on or about
July 1, 1998.
Sincerely,
NEIL B. GOODHUE, Foreman
1997-1998 Alameda County Grand Jury
by:
~-&tmK.
Cassie Barher, Staff Assistant
Alameda County Grand Jury
NBG:cab
enclosure
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1401 Lakeside Drive, Suite 1104, Oakland, CA 94612 (510) 272-6259
E_XlIIBIT A
GOVERNMENT COMMITTEE
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During the 1997-1998 fiscal year the Government Committee of the Grand Jury
received over thirty-five complaints from citizens. Most of these came in the form
of letters complai'ning about governmental agencies that have not performed at an
optimum level. These complaints were addressed by making phone calls to or
interviewing employees of various governmental agencies, referring complainants to
other providers of relevant services, or by providing the names and phone numbers
of other agencies that offer free legal services. Some grievances were not within the
jurisdiction of the Grand Jury.
IHE BROWN ACT
HISTORY:
As with previous Grand Juries; this Grand Jury received several complaints
that local public bodies have not always complied with either the letter and/or spirit .
of the Ralph M. Brown Act -- the State public open meeting law.
The Brown Act requires the governing bodies of local agencies to hold their
meetings in public, except under specific limited circumstances where closed sessions
are authorized.
Our investigation revealed that since the Act's adoption, no public official in'
Alameda County has ever been prosecuted criminally for a violation of the Brown Act.
This fact may have led governing, boards (elected or appointed) within Alameda County
to de-emphasize the importance of the Brown Act.
Because members of the affected governing boards change frequently, and
because there are periodic revisions to the Brown Act, this year's Grand Jury
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recommends that the legal staffs of the governing agencies within Alameda County
. . ' periodically review the mandates of the Brown Act. Accordingly, we restate the
recommendations of past Grand Juries: that all local elected or appointed governing
bodies and political subdivisions of the State, operating in whole or in part within
Alameda County, hold a~nual workshops to familiarize members and staff with the
contents of the Act.
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We encourage all such governing bodies and commissions and political
subdivisions of the State to communicate fully with the public, to allow open comment
as prescribed by law, and to anSwer the questions and concerns of the public in a
timely fashion. Such adherence to the law will avoid the perception of secrecy and/or
concealment which too often permeates the public's mind about how its government
goes about conducting the people's business.
In addition to alleged violations of the Brown Act, another concern was brought
to the attention of this year's Grand Jury regarding the opportunity of governing
boards to discuss non-agenda items during closed or executive sessions.
Only a few topics specifically authorized by the Act are appropriate for
discussion behind closed doors, and such closed sessions should strictly adhere to the
'agendized subjects. The ~rown Act requires that before the governing body adjourns
to closed session~ it must announce in public session the item or items to be
considered. The Grand Jury acknowledges that frank an,d open discussion is necessary
regarding litigation (pending or irt:tpending), liability claims, threat to public facilities,
and certain personnel and collective bargaining matters. Our concer'n has to do with
the absence of any available record, should the occasion arise, to establish that ~
legally sanctioned matters were in fact discussed.
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RECOMMENDATION 98-35:
That all executive or closed session meetings of all elected or appointed
commissions, boards, councils, advisory bodies and political subdivisions of the
State be audio tape recorded Such audio tape records shall remain confidential
and privileged pending finding by the presiding judge of the Superior Court who,
after listening to tapes, in camera, determines that non-agendized items were
discussed in the closed session. Such findings could subsequently be found to
be Brown Act violations.
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During the year, several cases of apparent conflict of interest were brought
to the attention of the Grand Jury. One complaint involved the hiring of a city official
by a firm who had been negotiating with the same city official when he worked for the
city. A second case arose when a local politician, who now has been elected as a State .
representative, repeatedly repr.esented local clients before a local governing entity.
In doing research to determine if any local jurisdictions had any laws forbidding
this type of action, the Grand Jury discovered that most local governmental agencies
had no such laws but that the federal government did. The federal laws prohibit most
federal employees from working for or representing a private company's interest that
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did business with the governmental agency while the federal employee worked for
that agency.
The Grand Jury views all of these situations as at least giving the appearance
of a conflict of interest, and it therefore recommends that all local governmental
agencies adopt legislation that would put a stop to those types of situations discussed
in this report.
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RECOMMENDATION 98-36:
That all governmental agencies operating within Alameda County adopt a conflict
of interest code. This code would forbid any employee who leaves the agency
lor any reason from representing any client during any negotiations or hearing
with his/her former governmental agency within one year, and also forbid any
person from returning to the agency as an" employee or consultant within one
year. Such prohibition as to returning to the agency's employment within one
year shall be stipulated within the agency's conditions of employment.
RESPONSES REQUIRED:
Board of Supervisors Recommendations 98-35 and 98-36
County Administrator Recommendations 98-35 and 98-36
All Governmental Agencies Within Alameda County:
All City CouncIls Recommendations 98-35 and 98-36
All Mayors Recommendations 98-35 and 98-36
All School Boards Recommendations 98-35 and 98-36
BAR T Recommendations 98-35 and 98-36
AC TRANSIT Recommendations 98-35 and 98-36
EBM UD Recommendations 98-35 and 98-36
Board of Education Recommendations 98-35 and 98-36
EB Regional Park Recommendations 98-35 and 98-36
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County of Alameda
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GRAND JURY
July I, 1998
Dublin City Council
6500 Dublin Bv
Dublin, CA 94566
Dear Council Members:
Enclosed please find the 1997-1998 Alameda County Grand Jury Final Report.
Under California Penal Code sections 933 and 933.05 (enclosed), no later than
90 days after the Grand Jury submits a final report on the operations of any public
agency subject to its reviewing authority, the aovernina body" of the public agency
~ to the jl['p.~iciing jud~ of the superior court on the findings and .
recommendations pertaining to matters under the control of the governing body.
Additionally, one copy shall be placed on file with the applicable grand jury final report
by, and in control of the currently impaneled grand jury.
Please respond to Recommendations 98-35 and 98-36.
We look forward to your response before October I, 1998 and appreciate your
time and consideration.
NEIL B. GOODHUE, Foreman
1997-1998 Alameda County Grand Jury
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enclosures
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1401 Lakeside Drive, Suite 1104, Oakland, CA 94612 (510) 272-6259
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~933. Comments and Reports on Grand Jury
Recommendations.
(a) [1] Each grand jury [2] shall submit to the presiding
judge of the superior court a final report of its findings
and recommendations that pertain to.county government
matters [3] during the fiscal or calendar year. Final reports
on any appropriate subject may be submitted to the
_ presiding judge of the superior court at any time during ,
the term of service of a grand jury. A final report may
be submitted for comment to responsible officers, agen-
cies, or departments. including the county board of super-
visors, when applicable, upon finding of the presiding judge
that the report is in compliance with this title. One copy
of each report found to be in compliance with this title
shaH be.. placed on file with the county clerk and remain
on file in the office of the county clerk. For 45 days after
the end of the term, the foreperson and his or her
designees shall, upon reasonable notice, be available
to clarify the recommendations of the report.
(b) [4] No later than 90 days after the grand jury
submits a final report on the operations of any public
agency subject to its reviewing authority, the governing
body of the public agency shall comment to the presiding
judge of the superior court on the findings and recommen-
dations pertaining to matters under the control of the
governing body, and every [5] elected county officer or
agency head for which the grand jury has responsibility
pursuant to Section 914.1 shall comment within 60 days
. to the presiding judge of the superior court, with an
information copy sent to the board of supervisors, on the
findings and recommendations pertaining to matters under
the control of that county officer or agency head and any
agency or agencies which that officer or agency head su-
pervises or 'controls, In any city and county. the mayor
shall also comment on the findings and recommendations.
All [6] of these comments and reports shall forthwith be
submitted to the presiding judge of the superior court who
impaneled the grand jury. A copy of all responses to grand
jury reports shall be placed on file with the clerk of the
public agency and the office of the county clerk, or the
mayor when applicable, and shall remain on file in those
offices. One copy shall be placed on file with the applica-
ble grand jury final report by, and in the control of the
currently impaneled grand jury, where it shall be main-
tained for a minimum of five years.
(c) As used in this section "agency" includes a
department. Leg.H. 1961 ch. 1284, 1963 ch. 674, 1974
chs. 393, 1396, 1977 chs. 107, 187, 1980 ch. 543, 1981
ch. 203,1982 ch. 1408 ~5. 1985 ch. 221 ~1. effective July
12, 1985, 1987 ch. 690 ~1, 1988 ch. 1297, 1997 ch. 443,
~933. 1997 Deletes. [I] No later than the end of each fiscal
or calendar year of a county, [2] impaneled during thlLl fiscal or
calendar year [3] other than fiscal matters [4] No later than the
end of each fiscal or calendar year. each grand jury impaneled
during that fiscal or calendar yeM shall submit to the presiding
judge of the superior court a final report of its findings and recom-
mendations that pertain to fisc:li matters of county govcrnment
during the fiscal or calendar yeM of the county. (c) [5] elective
[6] such
Cross-References
Admissible evidence. pen:li Code ~939.6.
"Grand jury" defined. Penal Code ~888.
Grand jury report to be based only on own investigation. Penal
Code ~939.9.
S933.05. Response to Grand Jury
Recommendations-Content Requirements;
Personal Appearance by Responding Party;
Grand Jury Report to Affected Agency.
(a) For purposes of subdivision [1] (b) of Section 933.
as to each grand jury finding, the responding person or
entity shall indicate one of the following:
(1) The respondent agrees with the finding.
(2) The respondent disagrees wholly or panially with
the finding, in which case the response shall specify the
portion of the finding that is disputed and shall include
an explanation of the reasons therefor.
(b) For purposes of subdivision [2] (b) of Section 933,
as to each grand jury recommendation, the responding
person or entity shall repon one of the following actions:
(1) The recommendation has been implemented. with
a summary regarding the implemented action.
(2) The recommendation has not yet been imple-
mented. but will be implemented in the future, with a
timeframe for implementation.
(3) The recommendation requires funher analysis. with
an explanation and the scope and parameters of an analysis
or study,' and a timeframe for the matter to be prepared
for discussion by the officer or [3] head of the agency
or depanment being investigated or reviewed, including
the governing body of the public agency when applicable.
This timeframe shall not exceed six months from the date
of publication of the grand jury report.
(4) The recommendation will not be implemented
because it is not warranted or is not reasonable, with an
explanation therefor.
(c) However, if a finding or recommendation of the
grand jury addresses budgetary or personnel matters of
a county agency or depanment headed by an elected
officer, both the agency or depanment head and the board
of supervisors shall respond if requested by the grand jury,
but the response of the board of supervisors shall address
only those budgetary or personnel matters over which it
has some decisionmaking authority. The response of the
elected agency or department head shall address all
aspects of the findings or recommendations affecting his
or her agency or depanment.
(d) A grand jury may request a subject person or entity
to come before the grand jury for the purpose of reading
and discussing the findings of the grand jury repon that
relates to that person or entity in order to verify the
accuracy of the findings prior to their release.
(e) During an investigation, the grand jury shall meet
with the subject of that investigation regarding the
investigation, unless the court, either on its own deter-
mination or upon request of the fore person of the
grand jury, determines that such a meeting would be
detrimental.
(0 A grand jury shall provide to the affected agency
a copy of the portion of the grand jury report relating to
that person or entity two working days prior to its public
release and after the approval ofthe [4] presiding judge.
No officer, agency, department, or governing body of a
public agency shall disclose any contents of the report
prior to the public release of the final report. Leg.H. 1996
ch. 1170, 1997 ch. 443.
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tf'@I~'~~) CITY OF DUBLIN
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City Offices, 100 Civic Plaza, Dublin, California 9456.
August 19, 1998.
Honorable Philip V. Sarkisian
Presiding Judge of the Superior Court
County of Alameda
1225 Fallon Street, Department One
Oakland, CA 94612
RE: Comments of 1997-98 County Grand Jury Recommendations 98-35 & 98-36
Dear Judge Sarkisian:
Thank you for the opportunity to respond to the Grand Jury Recommendations
regarding the Brown Act and Conflicts of Interest issues. The City of Dublin
welcomes the Grand Jury's work. The Report will assist Dublin in considering
ways to make City government more responsive and effective. The City is
conscious, however, about creating additional burdens on cities in Alameda County
that do not apply to cities in other counties. As discussed below, the issues raised
by the Grand Jury are serious public issues that should be addressed on a statewide
level, not just locally.
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Recommendation 98-35 - Brown Act
No official of the City of Dublin has ever been prosecuted criminally for a violation
of the Brown Act. I believe this is because the City has always followed both the
letter and the spirit of the law.
All closed sessions are agendized and properly noticed as required by the Act. Only
those issues properly noticed are discussed at closed sessions. Actions taken by the
Council are reported in open session in conformity with the Brown Acf s reporting
requirements.
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Administration (510) 833-6650 . City Council (510) 833-6605 . Finance (510) 833-6640 . Building Inspection (510) 833-6620
Code Enforcement (510) 833.6620 . Engineering (510) 833.6630 . Parks & Community Services (510) 833-6645
Economic Development (510) 833-6650 . Police (510) 833-6670 . Public Works (510) 833-6631 -
Community Development (510) 833-6610 · Fire Prevention Bureau (510) 833-6606
EXHIBIT B
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Honorable Philip V. Sarkisian
August 19, 1998
Page 2
The Grand Jury Recommendation 98-35 calls for routine taping of closed sessions.
Closed sessions frequently involve attorney-client privileged communications. The
Legislature and the courts have carefully weighed the competing public interests in
ensuring that public agencies have adequate legal representation and that the
public's business is conducted in public. There have been numerous court decisions
and legislative amendments balancing the Brown Act requirements and the attorney-
client privilege. The Grand Jury's recommendation has the potential to upset this
balance by requiring communications between attorney and client to be recorded,
thus discouraging frank communication.
While it may be advisable to revisit the delicate balance struck by the courts and the
Legislature, that discussion should take place in the Legislature. All local agencies
are subject to the Brown Act and they should all participate, along with the
Legislature, in considering this serious issue. The recommendation should be
considered as an amendment to the Brown Act, not as an ad hoc policy in one
county and not in others.
Recommendation 98-36 - Code of Ethics
Both perceived and real conflicts of interest are serious issues in both local and state
government. There are numerous effective statutes which prohibit public officials
from making governmental decisions that further their own personal interests, rather
than the interests of their constituents. The Political Reform Act, Government Code
Section 1090, the prohibition on holding incompatible offices and the prohibition on
incompatible activities are all effective in preventing local officials from placing
their interests before their constituents' interests. These laws operate as restraints
on the conduct of officials while they hold office.
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The Grand Jury has suggested that governmental agencies operating within Alameda
County adopt a conflict of interest code forbidding former employees of the local
agency from representing clients before his or her former agency. This code, which
would be in addition to the conflict of interest code already required by the Political
Reform Act, would restrict individuals' conduct after they are no longer public
officials.
Honorable Philip V. Sarkisian
August 19, 1998
Page 3
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This additional restriction could place a serious burden on the ability of the City of
Dublin to attract the most qualified personnel. The proposed code includes a
provision preventing a person from returning to an agency as an employee or
consultant within one year after leaving the City's employ. Tllis would prevent a
City from trying to bring back valuable employees who have left the City, but might
be interested in returning to offer their services.
The proposed code wiIl impact Dublin's ability to attract new employees, as well.
Potential employees who are weighing job offers may be reluctant to take a job in
Dublin, knowing that it might impact their ability to take employment with a
company that regularly does business with the City. Applicants might be reluctant
to take ajob that might restrict their opportunity to eventually work in the private
sector. Unless all cities and public agencies statewide had similar conflict codes, it
would make recruitment difficult for the City of Dublin.
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Dublin appreciates the opportunity to comment on the Grand Jury's
recommendations. Please contact me if you have any questions.
Sincerely,
CITY OF DUBLIN
Guy S. Houston
Mayor
cc: City Council
Neil B. Goodhue, Foreman
Alameda County Grand Jury
1401 Lakeside Drive, Suite 1104
Oakland, CA 94613
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