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Q) U) 9: s~ to 4 1~ �l 0 O •H �4 4i U ri � 4m) 9� 4m) Q A H Z () lad 4J X: ) 4m)V (d 1�PIP)(H . a) U Q) (d PH a) •ri •ri .e en z E to Q) PQ F: 14 rd 4m) r4 U) 0 I~ 4m)9 (d 4 UP Q) ri 4J �A Om) E E4 H ps (d En 0 Ha) U) a) a) 9 Q) a) a) W >s >4 rd PH•ri 4J � Q) Z 4 lad rya 0 0 ci U H 4 PlJ Q) a) Z Z 0 Q) �4 0 )i 4J Z 4J 0 0 4m)) 4 PH r,] •ri 0 4a Q) W' U fd Z 4 •ri alai rd 4m) •ri rd •rl r 4 •rl ri 4) 4 �4(d U) ri Q4 rd lad J• rl h H O U m ko O •4m) (0 0 1~ •rl 0 Z d O PlJ (d (d U Qr ) PlJ ro rd Q) N i f� U z to � N a) 4� alms)alms)J Qd 4) ' Q) V P4 a) Z rPH•PlJ Q) U) PIP)) (d 0) fl W ri a) t71 W H w rd �r 4 Q) ?+ Q) PH r 4=4 Q) 9� Q) Q) Q)) Q) Q) 4 Q) ,o •ri 0H a) 4 � (0 .O Ix W A� ri o H rd rQ )'-4 w (d 0 )••i (d P 9 F a� 3 rd H r� rrr rd PlJ "ri E 0 4m) H i V e . 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. << ~ e e 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 AI fac?- ( e e 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. e e 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. e e 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.) e e 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 I e e 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.) e e 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.) e e 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.) e e 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 e e 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 l e e 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; -2- e e (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; -3- e e (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.) -4- e e 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 -5- e e 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 -6- e e 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 -7- - e 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 -8- e . 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 -9- e e 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- e e 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 1 4 Ua c {, 3 e e 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. 2 r e e 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. 3 e e 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 4 e e 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. 5 e e 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 6 e e 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 7 ~ e e 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. 8 . e B 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 9