On February 20, City Council will decide the fate of the Open Government Commission and whether there will be any meaningful oversight of the Council itself.
According to the City of Alameda website, “The ❲Open Government❳ Commission’s role is to advise the City Council on appropriate ways in which to implement the Sunshine Ordinance.” The Sunshine Ordinance is a piece of legislation designed to protect open and democratic government procedures by ensuring easy access to public records as well as open meetings. The commission is tasked with the implementation and amendments of the ordinance, along with hearing any complaints.
City Council will decide whether to continue having the commission hear complaints about alleged violations of the Sunshine Ordinance or hire a hearing officer/attorney to do so. Whether the paid hearing officer will have any binding authority, such as making Council cure and correct a violation, is yet to be seen.
Four years ago, when the commission sustained a complaint and ordered Council to re-agendize a matter, Council stripped the commission of its enforcement authority, making it an advisory body only.
The impetus for considering the current change is that Mayor Marilyn Ezzy Ashcraft and Councilmember Tracy Jensen, by way of referral, have asserted that a jury of peers—Alameda residents, each appointed by a Councilmember—is not qualified to determine if a violation of the Sunshine Ordinance has occurred. Although three of the currently appointed commissioners are attorneys, the Mayor and Jensen, along with Councilmember Malia Vella, agree that one attorney is better suited to resolve complaints expeditiously, as complaints can sometimes be technically or legally complex.
“Coordinating the calendars of five commissioners, the complainant, and city staff is often challenging,” the City staff report states. The City estimates the change would be cost neutral or cost positive after weighing staff resources.
At an Open Government Commission meeting on January 29, some commissioners opined that the process would be hurt by not having members of the community weigh in on complaints. They voiced concern about whether the public could trust that a hearing officer would be a neutral, unbiased arbiter while on the City’s payroll, and that the selection process of the officer would be a factor. The City Clerk clarified that the City could consider hiring from a pool of independent outside attorneys that would rotate based on their availability at the time a complaint needs to be heard, the way that rent control disputes are handled.
“The only way to make the whole thing work is for the City Council to give the hearing officer actual authority,” said attorney and commissioner Klinton Miyao, who joined the commission at the start of 2023. “Without that, it’s just adding a different layer of a funded employee who gets to recommend a decision that goes to the City Council and into a black hole, which is where our work has gone,” Miyao said, pointing to the commission’s written “recommendations from three years ago that haven’t been addressed at all.” The commissioner continued, “If there is a hearing officer, my hope is that the officer has the authority to enforce the Sunshine Ordinance and the Brown Act incorporated.” Other commissioners ultimately agreed. Editor’s note: an earlier version of this article stated the commissioner was newly-appointed. He was appointed in January of 2023.
The only way to make the whole thing work is for the City Council to give the hearing officer actual authority. – Klinton Miyao
Remarking that moving to a hearing officer puts the commission in a precarious position, Miyao added, “I do wonder about the continued need for the commission if you have a hearing officer. Procedural things and preparing the annual report seems very administrative and maybe could be handled without needing volunteers.” Annual reports for City Council typically compile the nature and outcome of complaints and the recommendations based on those complaints and more.
Commission chair Serena Chen responded that previous annual reports with recommendations for City Council to address “were completely informed by sitting through the complaint hearings and identifying all the gray areas in our municipal code” and some administrative procedures were “cleaned up.” But anticipating the diminishing role of the commission, Chen added, “I am so very proud of the commission’s work, but I am willing to let it go.”
For the upcoming meeting, City staff has drafted two options that amend the Sunshine Ordinance by establishing a hearing officer form of complaint adjudication. Both options make the hearing officer’s role advisory only. One option eliminates the commission entirely.
The staff report does not state whether the hearing officer model will continue the practice of providing notice of complaint hearings and making them open to the public and live streamed, or whether the hearings will be heard behind closed doors.
The February 20 City Council meeting starts at 7 p.m. at City Hall, 2263 Santa Clara Avenue.
Contributing writer Irene Dieter’s articles are collected at alamedapost.com/Irene-Dieter, and she posts stories and photos about Alameda to her site, I on Alameda.
