HomeMy WebLinkAbout02-21-2012 ac canoc 8•acenaa coPiesponOence
RECEIVE D
FEB 21 201 2
1111111~~~~illulllllllll
February 21, 201 2
TO :Mayor Marx & Members of the City Counci lAGEND A
FROM :Elaina Cano, City Clerk CORRESPONDENC E
VIA :Katie Lichtig, City Managerp ate 2/21 /I'Item#3
SUBJECT :Item C8 – Council Protocol For Roll Call Vote s
Attached for your reference is Council Policies and Procedures Section 1 .3 .6 - Voting
Procedures and a correspondence between City Attorney Christine Dietrick and Kevin Rice .
hard copy:email :
q COUNCIL O CDD DIR
q CITY MGR O FT!' DIR
q ASST CM O FIRE CHIE F
q ATTORNEY a PW DIR
q CLERIUORIG 0 POLICE CHIEF
q PIE O PARKS & REC DI R
q TRIBUNE O MIL DIR
q NEWTIMES O HR DIR
q SLO CITY NEWS O COUNCI L
O CMTY MG R
O CLERK
1 .3.6 VOTING PROCEDURE S
1 .3 .6 .1 When present, all Council Members shall vote, except in the case of a
recusal due to a conflict of interest . Failure of a seated Council Membe r
to vote will be construed as an affirmative vote . (Charter § 505 )
1 .3 .6 .2 No ordinance, resolution or motion shall be passed or become effectiv e
without receiving the affirmative vote of at least three members of th e
Council . (Charter § 506 )
1 .3 .6 .3 A conflict of interest shall be declared whenever appropriate and i n
compliance with State law and the Council Member will step down an d
not participate in the discussion or vote on the item .
1 .3 .6 .4 A vote may be changed by a Council Member only immediately after th e
vote has been announced and prior to the introduction of the next agend a
item .
1 .3 .6 .5 The City Clerk shall restate the motion prior to the vote or request th e
motion maker to restate the motion if required for Council or publi c
clarification .
1 .3 .6 .6
A roll call (voice) vote may be taken at the discretion of the Presidin g
Officer.
1 .3 .6 .7
A general consent vote may be taken at the discretion of the Presidin g
Officer, if there are no negative votes or objections by Council Members .
1 .3 .6 .8 Upon the request of any member, the ayes and noes shall be taken and
recorded on any vote . (Charter § 505 )
1 .3 .6 .9 The ayes and noes shall be taken upon the passage of all ordinances and
resolutions and entered upon the journal of the proceedings of the Council .
(Charter § 505 )
1 .3 .6 .10 Following the vote, the Mayor shall announce whether the questions have
been carried or defeated .
1 .3 .6 .11 Should a tie vote occur, the Council is required to continue the item b y
majority vote or make motions until an action receives three affirmativ e
votes .
1 .3 .6 .12 The Presiding Officer may publicly explain the effect of the vote for th e
audience or may direct a member of the staff to do so .
Cano, Elain a
From :Dietrick, Christin e
Sent:Friday, February 10, 2012 5 :42 P M
To:'Kevin P. Rice'; Marx, Ja n
Cc:Ashbaugh, John ; Carter, Andrew; Smith, Kathy; Carpenter, Dan ; Cano, Elaina; Lichtig,
Katie; Codron, Michae l
Subject:RE : Brown Act "correct and cure" demand (February 7, 2012 council meeting )
Dear Mr . Rice :
Thank you, as always, for giving me the opportunity to address this issue and for remaining engaged in the City . I believe
this is another instance, where we may differ in our legal conclusions, but agree as to an end result . Specifically,I
believe the discussion the Council had is defensible under the Brown Act because the subject matter is expressly no t
within the discretion of the Council . Rather, it is within the sole discretion of the Mayor and relates not to substance ,
but only to a matter of procedure regarding the handling of voting . (See Council Policies and Procedures, Sectio n
1 .3 .6 .6 . , 1 .3 .6 .6 "A roll call (voice) vote may be taken at the discretion of the Presiding Officer).The discussion th e
Council had was akin to a Council member making a request for a roll call vote during the consideration of an agendize d
item and some discussion ensuing about whether such a vote is necessary . The Brown Act would not preclude Counci l
from having such a procedural discussion, nor would the Brown Act require them to have separately agendized tha t
procedural discussion before reaching a conclusion on how to proceed with the substantive vote .
However, it was clear that at least one member of the public, and now seemingly two, had an interest in expressing a n
opinion to the Mayor on the matter . Thus, while I do not agree with your conclusion that a Brown Act violation ha s
occurred, I know the Council wishes to fulfill its commitment to transparency and public engagement beyond th e
minimum requirements of the law . Accordingly, the matter will be placed on the consent agenda at the next meetin g
and any member of the public wishing to speak on the wisdom of roll call votes may do so at that time . In keeping wit h
your suggestion, I would not propose to prepare a staff report on the issue . I trust this will address your concerns . Hav e
a great weekend .
Best ,
Christin e
J . Christine Dietric k
City Attorne y
City of San Luis Obisp o
805-781-714 0
From :Kevin P . Rice fmailto :kriceslo(agmail .com l
Sent :Thursday, February 09,2012 3 :36 AM
To :Dietrick, Christine ; Marx, Ja n
Cc :Ashbaugh, John ; Carter, Andrew ; Smith, Kathy; Carpenter, Dan ; Cano, Elain a
Subject:Brown Act "correct and cure" demand (February 7, 2012 council meeting )
Dear Counselor Dietrick,
Please see the attached Brown Act "correct and cure" demand letter regarding the February 7, 2012 counci l
i
meeting .
I'd especially like to highlight the last section of this letter for all :
I urge the City Council to give more liberal consideration of items suggested for the public busines s
agenda . It is an easy and frequent pitfall to attempt to save staff and Council time by discussin g
why a proposed item should not be placed on a future agenda . Such a "pre-meeting" inevitably
wanders into some level of debate on the item itself . Therefore, I suggest the following :
1)If any member cannot simply "support" or "oppose" a proposal, they should support it s
placement on the public business agenda . It is tempting to "nip off' an unwanted proposal early ,
but if members feel need to voice an opinion beyond "oppose" the item should be placed on a
future agenda.
2)Staff and Council should strongly consider that every item need not require a rigorous an d
extensive staff report . Often the reasons for rejecting business items includes staff burden .
Meritable proposals should not be rejected where staff could be allowed or directed to provide les s
intensive reports .
3)Council Members should support each other by default . Council "COMMUNICATIONS "
should not be a time to shoot-down members' desires to place items on the agenda . If a member
wants an item discussed, it is very likely that members of the public will share an equal interest .
(This is also a "what comes around, goes around" situation).
I believe these suggestions would greatly reduce flirtations with the Brown Act during Counci l
"COMMUNCATIONS". I truly hope this exercise will prove beneficial to all parties .
Respectfully submitted ,
Kevin P . Rice
(805) 602-2616
2
KEVIN P. RIC E
PO BOX 1410 7
SAN LUIS OBISPO CA 93406-410 7
(805) 602-261 6
kriceslo@gmail .com
Thursday, 2012 February 0 9
J . Christine Dietric k
City Attorne y
City of San Luis Obisp o
990 Palm Street
San Luis Obispo CA 93401-323 6
(805) 781-714 0
cdietrick@slocity .org
Mayor Jan Howell Mar x
San Luis Obispo City Counci l
990 Palm Street
San Luis Obispo CA 93401-323 6
(805) 783-775 2
imarx@slocity .org
VIA EMAIL 2012 FEBRUARY 0 9
NOTICE OF PENDING LITIGATION PURSUANT TO GOV . CODE & 54956 .9(b)(3)(C)
SUBJECT : RALPH M. BROWN ACT CURE &CORRECT DEMAND (GOV. CODE §54960.1 )
NOTICE OF POTENTIAL ACTION PURSUANT TO GOV . CODE §§ 54960 AND 54960.1
Dear Counselor Dietrick :
This letter shall serve to call your attention to, and demand you "cure or correct", substantial violations of centra l
provisions of California's open meeting laws (California Government Code §54950 et seq .)', to wit, the Ralph M .
Brown Act (hereinafter, "Brown Act"). These violations infringe upon the people's right to remain informed an d
retain control over the people's business and directly address their public servants . Furthermore, these violation s
may jeopardize the ongoing business and finality of actions taken by the San Luis Obispo City Council .
I
Factual and Procedural Backgroun d
On February 7, 2012, the San Luis Obispo City Council met in regular session at 7 p.m. to conduct the people's
business as publicly noticed in the agenda set forth for that meeting (see attachment). During the time set for
"COMMUNICATIONS", Council Member Carpenter brought forth a proposal to place an item on a future counci l
agenda . The proposed item sought consideration of the City Council's practice of conducting formal votes vi a
"voice vote" and proffered that "roll call" voting should replace the current practice .
During the time set for "COMMUNICATIONS", actions may be taken to direct staff to place a matter of busines s
on a future agenda . (Council Policies & Procedures Manual, § 1 .2.2, Gov. Code § 54954.2, subd. (a)(2).) Th e
Council may not take action on items of business not appearing on the posted agenda without determination that a n
' All further statutory references are to the California Government Code, unless otherwise indicated .
1
RALPH M. BROWN ACT CURE & CORRECT DEMAN D
SAN LUIS OBISPO CITY COUNCIL MEETING : FEBRUARY 7, 201 2
"emergency situation" exists, or by two-thirds vote that there is a need to take immediate action . (Council Policies &
Procedures Manual, § 1 .3 .9.3, Gov . Code § 54954 .2, subd. (b).) Formal action or approval on non-agendized item s
is not allowed, and such an item should be placed on the agenda of the next regular meeting.(Id )
At its February 7 meeting, the City Council undertook substantial discussion and deliberation of Council Membe r
Carpenter's proposal with each Council Member expressing their reasons for support or opposition to the proposal .
Discussion was not limited to mere support for, or opposition to, placing the proposed item on a future agenda ;
rather, substantive deliberation as to the merits of the item took place that crystallized into a collective commitment
and promise as to future City Council voting practice. Council Members debated time that might be consumed b y
"roll call" voting, the value of "roll call" voting with respect to mundane business items and, indeed, even the orde r
that votes would be cast under a "roll call" voting system . Further debate construed whether current policy preclude s
"roll call" votes at the discretion of the Mayor, which then crystallized into collective commitment and promise t o
conduct a "roll call" vote when requested of the Mayor by any Council Member .
The Brown Act defines "action taken" expansively as, "a collective decision made by a majority of the members o f
a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a
positive or negative decision,or an actual vote by a majority of the members of a legislative body when sitting as a
body or entity, upon a motion, proposal, resolution, order or ordinance ." (§ 54952 .6.) (Emphasis added .)
H
Violations of the Ralph M . Brown Act
The natures of the violations of the Brown Act with respect to the February 7 meeting of the San Luis Obispo Cit y
Council are as follows :
1) The San Luis Obispo City Council has taken action on items not appearing on a posted agenda . (§ 54954.2,
subd . (a)(2).)
On February 7, the City Council did not merely reject the placement of Council Member Carpenter's proposal on a
future agenda . In undertaking a full and lengthy discussion of the proposal, the City Council actually considered ,
deliberated, and made a collective promise as to future voting practices, thus constituting "action taken" under th e
Brown Act . Such "action taken" deprived the public of notice and the opportunity to comment on the proposal an d
provide input which may have affected the outcome . Furthermore, consideration of this item in a fully notice d
meeting—the transparent forum intended by the Brown Act that is subject to public input, scrutiny and criticism —
might have created political pressures resulting in a different outcome .
It is not ameliorative to say that the City Council did not take action because the discussion did not result in a
specific change in policy or practice . The Brown Act explicitly calls out a "negative decision" as equal to a positiv e
2
RALPH M . BROWN ACT CURE & CORRECT DEMAN D
SAN LUIS OBISPO CITY COUNCIL MEETING : FEBRUARY 7, 201 2
decision . Thus, the deliberation resulting in a decision that no explicit change is necessary still constitutes a
"decision" and "action taken". Yet, at the same time, an affirmative decision and collective promise to conduct "rol l
call" votes upon request was simultaneously arrived at which equally constitutes "action taken".
The San Luis Obispo City Council often flirts with the Brown Act during "COMMUNICATIONS". Acceptance or
rejection of proposals to place items on a future agenda should, and must, occur outright . The slightest deliberatio n
of the merits of any proposal constitutes an inherent necessity for such debate to occur in a noticed meeting .
Ancillary debate as to staff and City Council workload or other timing issues is most often acceptable, but direc t
discussion of a proposed item is not acceptable under the Brown Act .
The San Luis Obispo City Council must not simply take note of the Brown Act during its meetings ; it must comply
with the Brown Act rigorously.
III
Criminal culpability
Please take notice (as cited in the Council Policies & Procedures Manual, § 4 .1):
Gov.Code §54959. Each member of a legislative body who attends a meeting of that legislative
body where action is taken in violation of any provision of this chapter, and where the member
intends to deprive the public ofinformation to which the member knows or has reason to kno w
the public is entitled under this chapter, is guilty of a misdemeanor .
IV
Notice and Demand for Cure or Correctio n
The Brown Act provides a legal remedy for actions illegally taken, namely the judicial invalidation of actions upo n
proper findings of fact and conclusions of law . (§ 54960 .1 .) Pursuant to such provision, I hereby demand the Sa n
Luis Obispo City Council take all necessary actions to cure and correct the illegally taken actions (supra,at p . 2) as
follows :
1) Place the item proposed by Council Member Carpenter on a future City Council agenda . Since it is not
possible to rewind and "undo" the deliberation that occurred on February 7, the City Council cannot at thi s
point simply declare its rejection as to placing the proposal on a future agenda . The February 7 deliberatio n
of the matter now taints any such mere rejection . It is now imperative that the proposed item be placed on a
future agenda to allow for full public notice, input and reconsideration by the City Council subsequent to a
formal public airing in order to correct and cure the surreptitious February 7 deliberation .
3
RALPH M . BROWN ACT CURE & CORRECT DEMAN D
SAN LUIS OBISPO CITY COUNCIL MEETING : FEBRUARY 7, 201 2
You have 30 days from the receipt of this demand to cure and correct the challenged actions or inform me of you r
decision not to do so (§ 54960 .1 .) If you fail to cure and correct as demanded, such inaction will serve as evidenc e
that an "actual controversy" exists between us pursuant to Code of Civil Procedure section 1060, leaving me n o
recourse but to seek a judicial invalidation of the challenged action . In this case, award of court costs and reasonabl e
attorney fees is available (§ 54960 .5, Code of Civ . Proc. § 1021 .5 .)
Furthermore, section 54960 affords redress by mandamus, injunction, or declaratory relief for the purpose o f
stopping or preventing violations or threatened violations of the Brown Act, or to determine the applicability of th e
Brown Act to actions or threatened future actions of the San Luis Obispo City Council . Again, award of costs an d
fees is available as a remedy .
V
Postscrip t
I urge the City Council to give more liberal consideration of items suggested for the public business agenda . It is an
easy and frequent pitfall to attempt to save staff and Council time by discussing why a proposed item should not b e
placed on a future agenda . Such a "pre-meeting" inevitably wanders into some level of debate on the item itself .
Therefore, I suggest the following :
1)If any member cannot simply "support" or "oppose" a proposal, they should support its placement o n
the public business agenda . It is tempting to "nip off' an unwanted proposal early, but if members fee l
need to voice an opinion beyond "oppose" the item should be placed on a future agenda .
2)Staff and Council should strongly consider that every item need not require a rigorous and extensiv e
staff report. Often the reasons for rejecting business items includes staff burden . Meritable proposal s
should not be rejected where staff could be allowed or directed to provide less intensive reports .
3)Council Members should support each other by default . Council "COMMUNICATIONS" should not
be a time to shoot-down members' desires to place items on the agenda . If a member wants an item
discussed, it is very likely that members of the public will share an equal interest .
Sincerely ,
Kevin P . Rice
Attachment : Council agenda, February 7, 2012 .
cc :
Council member John Ashbaugh
Council member Andrew Carter
Council member Kathy Smit h
Council member Dan Carpente r
City Clerk Elaina Cano
4