23 Aug 2014
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Measure N: Full Text of the Dixon Open Governance Act

Here's the full text of Measure N, form dixonsunshine.com

Measure N: Full Text of the Dixon Open Governance Act

NOTE: This was copied from dixonsunshine.com on Nov. 4. 

s/Ourania Riddle      s/David J. Scholl

INITIATIVE MEASURE TO BE SUBMITTED DIRECTLY TO THE VOTERS

The City Attorney has prepared the following title and summary of the chief purpose and points of the proposed measure 

TITLE: “Additional City Government Meeting and Records Regulations” 

SUMMARY: “The initiative regulates City Council, committee and commission (“legislative bodies”) meetings, providing notice, agenda and public participation requirements greater than State law. It extends these requirements to broader categories of advisory bodies of the City than State law. It extends these requirements to independent joint powers agencies as a condition of any City agreement forming or extending such agencies.

“The initiative prohibits meetings except in locations from which live video streaming is available and at times other than weekday evenings. It obligates the City to provide presentation tools to the public upon request. It prohibits use of electronic devices by legislative body members during meetings unless the devices are provided by the City and the device screens are concurrently displayed to the public. It prohibits time limits on public comments on agenda items. It regulates City staff briefings of legislative body members on matters that will appear on agendas. It prohibits reproval of legislative body members who publicly express their opinions on the propriety or wisdom of closed session items.“

“The initiative requires public status updates of closed session items relating to litigation, real property negotiations or collective bargaining prior to holding closed sessions for these purposes. It requires that all agreements be approved in open session occurring at least one week after release of the text of agreements, and that the public be provided the text of any collective bargaining agreement at the same time as any affected labor union. It requires public disclosure of direction given to staff in closed session by either vote or consensus with an opportunity for public comment and  re-vote in public after the comments.

“The initiative provides public access to City documents greater than provided by State law. It limits copying charges to 5 cents per page, provides that draft documents be public, and that all  applications for City employment be public. It prohibits nondisclosure of records based upon either the “deliberate process” privilege or a showing that the public interest in nondisclosure outweighs the public interest in disclosure as currently permitted by State law. It limits the attorney-client privilege applicable to the City.

“The initiative requires creation and maintenance of a research index of all City documents. It requires creation and maintenance of a Public Review File in which copies of all documents subject to discussion in a public meeting received by legislative body members are available for review, and for that file to also be maintained on the City’s website. It requires the City’s website to be updated at least weekly and to contain all active contracts and various other documents. It requires an annual report regarding all records requests made. It makes it a misdemeanor to hinder the offering of public records.

“It creates an Open Governance Commission to oversee compliance with its requirements. It provides for independent counsel for the Commission at City expense, and requires the Commission to review all public notices. It provides that it may not be amended except by the voters.”

The Text of the proposed Initiative is as follows:

TITLE: “Dixon Open Governance Act”

The people of the city of Dixon do ordain as follows:

 This initiative shall add Section 12 to Chapter 2 of the Dixon Municipal Code.

Chapter 2.12 Open Governance

Section 12.01.01    Title and Purpose

This Chapter shall be known as the “Dixon Open Governance Act,” and is intended to supplement the Ralph M. Brown Act and the California Public Records Act with rules providing the public with greater access to meetings of City legislative bodies and to records of City departments and officials

Section 12.01.02    Relationship to Other Laws

The provisions of this Chapter supersede other City ordinances inconsistent therewith. In case of requirements inconsistent with the Brown Act, the California Public Records Act or other statutes the requirement which would result in greater transparency or accommodation of timely and convenient public access shall apply.

Section 12.01.03    Definitions

As used in this Chapter:

A. “City” means the City of Dixon.

B. “Legislative body” includes the City Council, all permanent City boards or commissions, and all advisory bodies created by the Mayor or the City Council, whether permanent or temporary.

Section 12.01.04    Application to Other Agencies

To the extent not inconsistent with state or federal law, a legislative body shall require, as a condition of any agreement, amendment thereto or renewal thereof, with any other public agency, including a joint powers authority, that any meeting of a legislative body of that agency at which an item involving the common interests of the City and the agency is discussed or considered, shall be conducted pursuant to the Brown Act and this Chapter.

Section 12.01.05    Meeting Schedules

Each legislative body shall schedule regular and special meetings in a public building accessible and with video streaming on weekday evenings, to begin no earlier than 6:30 p.m. and to end no later than 10:00 p.m. Time can be extended by a unanimous vote of the City council.

Section 12.01.06   Meeting Agendas

A. Any member of the public may request a member of a legislative body to place an item subject to the body’s jurisdiction on its agenda for a future meeting. Any request signed by 20 or more Dixon registered voters must be considered as a demand for placing an item on the agenda without the support of any member of the legislative body.

B. When items are withdrawn from the agenda of a regular or special meeting after posting of the agenda but before the meeting, all paper and electronically posted copies of the agenda shall be amended to state the reason for withdrawal.

Section 12.01.07   Special Meeting Limitations

A. Special meetings of any legislative body may be called at any time by the presiding officer or by a majority of the members, for only the purposes of taking action on an urgent matter that must be addressed sooner than the next regular meeting; addressing a matter of sufficient complexity, controversy or both to warrant extended discussion; or meeting at a location outside the City for purposes permitted by the Brown Act, or at a location within the City of sufficient capabilities to accommodate a foreseeably heavy public attendance.

B. A paper copy of the notice and agenda of a special meeting shall be posted in a location freely accessible to the public at least 72 hours (excluding Saturdays, Sundays and holidays) before the time of the meeting set forth in the agenda in the same manner as required for regular meeting agendas. Agenda packets shall be placed in the Dixon Public Library and posted on the City’s website.

Section 12.01.08   Access to Meeting-Related Documents

A. All agendas and documents in agenda packets related to open session discussion or action shall be made available, as soon as completed, on the City’s website and for public inspection and copying, whether or not disseminated to members of the body.

B. Any document relating to matters subject to discussion in an open and public session of a legislative body, whether or not docketed on a current agenda, that is sent or received by a member of a legislative body shall be entered in the legislative body’s Public Review File, which shall be organized in a manner that facilitates public access to the material. The Public Review File shall be maintained by a designated person for each legislative body and be accessible to any person during normal office hours. The City Clerk shall maintain a central registry of locations where Public Review Files can be accessed. Electronic versions of such documents, including email communications to or from members, shall be filed and maintained under the member’s name in a public review file on the City’s website, irrespective of the hardware or software used to create or receive them.

Section 12.01.09   Digital Communication Devices

As used in this section, “digital communication device” includes smartphones, laptop and tablet computers and other similar hardware capable of sending and receiving electronic messages or accessing the Internet. A member of a legislative body may, during a meeting governed by the Brown Act or this Chapter, use a digital communication device only if it has been provided by the City to assist members in their official work and linked to a display screen mounted behind the member in the meeting room, allowing citizens present to observe how the member is using his or her device and to read whatever messages are being sent or received by that member during the meeting. Information sent, received or stored on such devices is subject to the applicable records retention statute in the Government Code and to the disclosure requirements of the California Public Records Act and this Chapter.

Section 12.01.10      Citizens’ Speech Rights

A. On each agenda item members of the public shall be permitted to address the body, with no time constraints and without identifying themselves, when the item is taken up for discussion. Legislative bodies shall not prohibit public criticism of the body or staff expressed either orally or by holding signs that do not block the view of others attending.

B. Speakers have the right to use presentation tools, which shall be provided by the City, if available and requested five business days in advance of the meeting date, or if supplied by the speaker and brought to the meeting room before the meeting and installed and loaded by staff.

Section 12.01.11    Members’ Speech Rights

Every member of a legislative body retains the rights of any citizen to comment publicly on the wisdom or propriety of government actions, including those of the legislative body of which he or she is a member. Bodies shall not sanction, reprove or deprive members of their rights as elected or appointed officials to express their judgments or opinions, including those judgments or opinions pertaining to the wisdom, propriety or lawfulness of discussions or actions taken in closed session.

Section 12.01.12  Internal Lobbying

No City employee, member of a legislative body, or agent of either shall privately lobby or brief a majority of the members of that or another legislative body, either at one place and time or serially, to propose, oppose, or otherwise discuss any recommendation or agenda item pending or to be submitted to such legislative body.

Section 12.01.13    Closed Session Procedures in General

A. A legislative body shall not meet in closed session until the presiding officer and members of the body have had the opportunity to discuss the basis for convening into closed session, to ask questions, and to respond to questions from the public.

B. In open session, before public comment or discussion by the body of any closed session item, the City Attorney or appropriate staff shall provide an oral update or progress report on matters concerning litigation settlement negotiations, real property negotiations, or employee unit bargaining. This report shall confine itself to facts already known to the party with whom negotiations are taking place. The public shall have the opportunity to directly address the legislative body after the oral report by the City Attorney or appropriate staff.  All authorizations for the purchase, sale, lease or exchange of any real property interest, for contracts with unrepresented employees, or for agreements of any other kind whatsoever discussed in closed session shall be given only by vote taken in an open meeting at least one week after release of the text of the proposed agreement accompanied by an announcement thereof sent to the newspapers and other media having requested notice of special meetings.

C. Immediately following the end of any closed session where no agreements were made or  final actions were taken the legislative body shall make a report in open session describing all other matters decided or any direction given either by unanimous consensus or vote, and if by vote, the vote or abstention of each member. This disclosure shall be followed by an opportunity for public comment and a re-vote in full view of the public

D. All closed sessions of any legislative body shall be audio recorded in their entirety and made a part of the record of the meeting. The recordings shall be archived in the custody of the City Clerk. These recordings and any other records of the closed session shall be made available to the public whenever all rationales for keeping the records confidential are no longer applicable. The City shall provide equipment on site allowing for immediate review of the audio tape.

Section 12.01.14  Closed Sessions: Real Property Transactions

Before any final decision in closed session to act on a sale, lease, gift, purchase, or exchange of any property to which the City has or will have an ownership or possessory interest, a legislative body shall notice for open session a discussion of the advisability of taking the proposed action.

Section 12.01.15     Closed Sessions: Anticipated Litigation

Where the justification for holding a closed session on “anticipated litigation” is that the “existing facts and circumstances” suggest there is some “significant exposure to litigation,” the City Attorney shall publicly state, prior to the closed session, those facts and circumstances and release copies of any supporting documentation.

Section 12.01.16    Closed Sessions: Employee Compensation

A. With respect to any closed session discussion pertaining to employee salaries and benefits, the City Council shall not use as its designated representative any employee having a direct financial interest in the outcome of the negotiations.

B. No closed sessions shall be held for discussions of any proposed City Manager goals and performance objectives. Nor shall any related documents be withheld from the public.

C. No closed sessions shall be held for discussions of any proposed City Manager salary increase, any incentives, bonuses or monetary awards, or other non-salary compensation. Nor shall any related documents be withheld from the public.

D. After closed session labor negotiation consultations resulting in a proposed agreement supported by a majority of council members, the agreement shall be made public at the same time as it is presented to the members of the employee organization. The agreement shall be open for public discussion and comment prior to the final City Council vote.

Section 12.01.17    Public Notices in General

A. Public notices shall be written in easily understood language without undefined abbreviations or acronyms and give a full description of the subject, applicable regulations, significant consequences of taking action or non-action, when and where the subject will be considered, opportunities for public comment, and where to obtain further information.

B. The Open Governance Commission shall review public notices to ensure that they conform to the requirements of this Chapter and work to improve publicly accessible information databases to ensure consistency, equity, timing, and extent of noticing for meetings and other matters of public interest.

C. Each legislative body shall designate one or more locations to post paper notices concerning matters pertaining to its jurisdiction, including the Dixon Public Library.

Section 12.01.18    Neighborhood Notices

A. Any notice that is mailed, posted or published by a City department, board, agency or commission to inform those residing within a 2,500 foot radius of  a proposed or planned activity that might impact their property or neighborhood shall be brief, concise and written in plain, easily understood English. The notice shall also state the name and address of the person or persons to whom written comments concerning the notice should be submitted.

B. If mailed notices are returned undelivered, the person designated to receive written comments shall investigate the reason the notice was not delivered and make additional attempts via telephone or email to contact any resident not notified.

Section 12.01.19   Public Records: Access Requests and Responses

A. The City shall keep a log of all submitted public records access requests and the responses thereto showing, as a minimum, the date of the request, a brief summary of the request, the date the response was completed and the records were available, an indicator to denote if no records were available, the name of the requester (when furnished), their email address (when furnished) and the staff member(s) responsible for processing the request.

B. All requests received via any format where an email address was provided shall be sent a return email acknowledgement of the receipt within one (1) business day after the request is received. Reasonable effort shall be exerted to promptly complete requests or make documents available within two (2) business days.

C. The City Clerk shall publish in the annual budget document the number of public records requests received during that fiscal year, the number of requests where documents were made available, the number of requests where no documents were made available, and the number of requests completed (or records made available) within: 24 hours, 2 days, and over 10 days.

D. The City Clerk shall promptly report to the City council any improper hindrance in the offering of public records. Such hindrances include managerial direction to falsely indicate that electronic records are unavailable or instructions to falsely respond to a request indicating no documents are responsive when the Clerk has knowledge of responsive documents. Anyone who improperly hinders the offering of public records shall be guilty of a misdemeanor.

E. Any withholding of information shall be justified, in writing, within two (2) business days of the day of the request. All withholdings shall cite the justifying legal authority and, where that authority is an exemption from disclosure under the California Public Records Act, the public interest in favor of not disclosing. A withholding on the basis that disclosure would incur civil or criminal liability shall cite any statutory or case law supporting that position.

Section 12.01.20    Public Records: Copying Fees                   

A. No fee shall be charged for copies of documents routinely produced in multiple copies. e.g. Meeting Agendas and packets.

B. Reproduction charges for documents copied to the order of the requester shall not exceed five (5) cents per page copy charges. If the direct cost of duplication, as defined by case law interpretation of the California Public Records Act, is more than five cents per page the City shall provide documentation of that.

Section 12.01.21    Public Records: Drafts

Draft documents and memoranda or other written communications between staff, members of legislative bodies, and/or third parties concerning a proposed policy, action or agreement subject to approval or review by a legislative body shall be preserved and made available for public review beginning fifteen (15) days prior to the presentation for approval by a legislative body.

Section 12.01.22           Public Records: Litigation

Litigation-related records other than attorney-client communications subject to unwaived privilege under the Evidence Code shall be subject to disclosure when the litigation to which they relate has been settled, finally adjudicated or precluded by a statute of limitations. In addition, other communications to some degree relevant to litigation are public records subject to disclosure at any time, including without limitation:  (i) pre-litigation claims against the City, (ii) records received or created by a department in the ordinary course of business that were not subject to the attorney-client privilege at the time of their creation, and           (iii) amounts billed by or paid to outside counsel or other independent contractors, identifying the case or other matter to which they relate and the general types of service rendered.

B. No attorney representing the City shall solicit or agree to any settlement provision that would restrict disclosure of terms or communications between each party after settlement and any such provision shall be void.

C. No communication to or from a legal advisor to the City shall be exempt from disclosure as confidential attorney-client communication or otherwise to the extent that it concerns an actual or potential conflict of interest, analyzes a proposed legislative provision or administrative action of the City, reports on the status of negotiations relating to a claim by or against the City in conformity with paragraph (B) of Section 12.01.13 of this Chapter, or consists of advice on compliance with, analysis of, liability under, or otherwise concerning the Ralph M. Brown Act, the California Public Records Act, the Political Reform Act, any governmental ethics code, or this Chapter.

Section 12.01.23           Public Records: Personnel

Applications for all governmental positions for hire or appointment shall be made public at the same time the legislative body, City staff or other hiring individual receives them.

Section 12.01.24           Public Records: Police Reports

A. Law enforcement reports prepared by the Police Department are public records. Any redactions shall be accompanied by the legal basis therefor.

B. Records exempt from disclosure under the California Public Records Act pertaining to any investigation, arrest or other law enforcement activity shall be disclosed to the public to the full extent permitted by law after the prosecution to which they relate has been finally adjudicated, the District Attorney or a court determines that a prosecution will not be sought against the subject involved, or the statute of limitations for filing charges has expired, whichever occurs first.

C. The Police Department shall maintain a public record, separate from the personnel records of particular employees, of the number of citizen complaints against the department or its officers, the number and types of cases in which discipline is imposed and the nature of the discipline imposed. This record shall be maintained in a format that to the extent possible assures that the names and other identifying information of individual officers involved is not disclosed directly or indirectly.

Section 12.01.25 Public Records: City Business

A. Contracts, contract bids, responses to requests for proposals and all other records of communications between the City and individuals or business entities seeking contracts shall be open to inspection and copying following the contract award or acceptance of a contract offer.

B. All bills, claims, invoices, vouchers or other records of payment obligations, as well as records of actual disbursements showing the amount paid, the payee and the purpose for which payment is made shall be public records and available to the public.

Section 12.01.26   Public Records: No Disclosure Override

Neither the City nor any officer, employee, agent, or elected or non-elected official may assert California Public Records Act Section 6255 as the authority for withholding any information based on a showing that the public interest in withholding the information outweighs the public interest in disclosure, including but not limited to a claim of “deliberative process” privilege.

Section 12.01.27     Public Records: Website Disclosure

A. At a minimum, the following shall be posted on the City’s website and provided in written form in the City Clerk’s Office and at the reference desk of the Dixon Public Library; Dixon Municipal Code; Building Code; General Plan and Area Plans; Zoning Ordinance; Landmarks Preservation Ordinance; Dixon Open Governance Act; Citizen’s Guide to Public Information; Records Index; Records Retention Schedule; Council Rules of Procedure; Commissioner’s Manual; Conflict of Interest Code; Statements of Economic Interest; Active City agreements/contracts; Appointment Calendars; Agendas and Minutes of the Meetings of all legislative bodies.

B. Large documents, such as drafts and final copies of City budgets and records concerning environmental impacts, including but not limited to, those resulting from compliance with the California Environmental Quality Act (CEQA) shall be posted on the City’s website and made available at designated City offices with copies available for borrowing by the public at the Dixon Public Library.

C. Each legislative body shall make reasonable efforts to ensure that its portion of the City’s website is updated on at least a weekly basis with current information.

Section 12.01.28     Public Records: Research Index     

A. The City shall maintain a public records research index that identifies types of records maintained by departments and offices, including those of elected officials and legislative bodies. The index shall be available to the public and organized under a uniform reference system that permits a general understanding of the types of records maintained, in which offices and departments, and for what periods of retention. The Index shall be sufficient to aid the public in making a focused inquiry regarding public records. The index shall be posted on the City’s website and available in written form in the City Clerk’s office and in the Dixon Public Library.

B. The Index shall classify each type of record as either: (1) “Open,” meaning accessible to the public without exception and subject to immediate disclosure; or (2) “Partially Open,” meaning possibly containing some exempt content, such that review is required; or (3) “Closed,” meaning that disclosure of the document is prohibited by state or federal law. Each classification of a record as “Partially Open” or “Closed” shall identify the specific legal authority relied upon in assigning that classification.

C. The City Clerk shall be responsible for preparing and maintaining the Index. He/she shall report on the progress of developing the Index to the Open Governance Commission on at least a quarterly basis until it is completed, which shall be no later than twelve (12) months from the enactment of this Chapter. In identifying the types of records to be maintained, each department, office, Legislative body, and public official is encouraged to solicit public participation in developing a readily understandable, access-friendly index. The completed index shall be reviewed by the Open Governance Commission and submitted for approval by the City Council. Any change in the index shall be noted on the City’s website and posted in the Dixon City Library.

Section 12.01.29   Mayor’s State of the City Address

If the Mayor delivers a State of the City address, it shall be given in a disabled accessible venue with, audio and video-streaming and transmission capabilities. The event shall be noticed, recorded, free to the public and open to all. The address shall include a report on the previous year’s Open Governance complaints, how they were resolved, and a summary of any actions taken or pending related to provisions of this Chapter.

Section 12.01.30   Open Governance Enforcement

A. A Legislative body shall cure and correct an action challenged as involving a violation of the Brown Act, this Chapter or both by placing the action on a subsequent meeting agenda for separate determinations of whether to cure and correct the challenged action and, if so, whether to affirm or rescind the challenged action after first taking any new public comment.

B. Any person may institute proceedings for injunctive relief, declaratory relief, or writ of mandate in the Superior Court of Solano County to enforce his or her right to inspect or to receive a copy of any public record or class of public records, to enforce his or her right to attend any meeting required to be open, or to compel compliance with any other requirement of this Chapter.

C. The court shall award costs and reasonable attorneys’ fees to the plaintiff who is the prevailing party in an action brought to enforce this Chapter. Payment of the plaintiff’s attorney fees shall be imposed on the City Attorney (or whichever counsel was consulted) if his or her advice supported the violation. If the City officials who caused the violation did so without reliance on the appropriate attorney’s advice because they never sought it, if they withheld or misstated key material facts in asking for it, or if they simply disregarded the attorney’s advice, they shall be jointly and severally liable to pay the plaintiff’s attorney fees.

Section 12.01.31   Coordination by City Clerk

Unless otherwise specified, the City Clerk shall administer and coordinate the implementation of the provisions of this Chapter for all City bodies, agencies and departments.

Section 12.01.32 Open Governance Commission

A. There is hereby created an Open Governance Commission, a permanent three-member volunteer citizen oversight body chosen from applicants who are not employees of the City, do not have immediate family members employed by the City and do not have such a close relationship with elected or appointed officers, or present or former City employees. Former commission members shall be barred from City employment for at least one year after they leave the commission. Applications for each open four-year term must be filed with the City clerk immediately following passage of this Chapter and for each subsequent regularly scheduled election where City Council members are elected and subsequent commission vacancies. At such time three or fewer applicants (depending on the number of applicants) will be randomly selected by the City Council to serve a four-year term to establish overlapping terms. The commission’s contact information shall be published on public records request forms and on the City’s website.

B. The Commission shall serve as an ombudsman board to review citizen complaints concerning compliance with this Chapter to periodically report to the City Council recommended changes in practices to improve public access, or recommended improvements to this Chapter.

C. The City Attorney shall, upon request by the legislative body, provide legal counsel for the Commission. If a majority of the Commission or the City Attorney determines that there is a conflict of interest which the Commission declines to waive, the City shall, at the Commission’s request, provide the reasonable fees and expenses of outside counsel chosen by the Commission, from the City Attorney’s budget.

Section 12.01.33    Severability,  Amendment and Repeal

A. The provisions of this Chapter are declared to be separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section or portion of this Chapter, or the invalidity of the application thereof to any person or circumstances, shall not affect the validity of the remainder of this Chapter, or the validity of its application to other persons or circumstances.

B. This Chapter shall be amended only by a vote of the People.

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