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Resident-Based Open Government Commission Diminished

Adjudication of Sunshine Ordinance disputes to be handled by City-contracted hearing officers

On February 20, City Council voted to transfer adjudication of Sunshine Ordinance disputes from the Open Government Commission (OGC) to hearing officers selected by the City Attorney’s Office. The Sunshine Ordinance codifies Alameda’s policy for public participation in City legislative deliberations. Sunshine Ordinance disputes have become increasingly complex, and the hearings lengthy. The new format is expected to expedite dispute resolution. However, critics expressed concern that hearing officer decisions are advisory and not binding.

Alameda Post - Alameda City Hall
The steps and front entrance of Alameda City Hall. Photo Adam Gillitt.

Council also received an update on the fiscal year budget, and the City Manager announced upcoming free events, including film screenings and an opportunity to connect with local emergency resource providers at the main library.

Recently, ordinance disputes have been complex, causing lengthy and confusing hearings.

Background

The City’s Open Government Commission (OGC) currently hears and settles Sunshine Ordinance complaints, acting as a quasi-judicial body akin to an administrative law judge. This role is complex in applying legal doctrines, and no other City commission performs a similar role. Recently, ordinance disputes have been complex, causing lengthy and confusing hearings.



Although the City Attorney’s Office (CAO) staffs and advises the OGC, their support has not alleviated difficulties in resolving issues. Moreover, OGC members expressed concern that the CAO has a conflict due to the City Council often being the subject of the complaints.

The OGC consists of five residents, each appointed by a Councilmember. Coordinating the calendars of five commissioners, the complainant, and City staff has been challenging within the deadlines of the hearing process.

Consequently, on January 16, Mayor Marilyn Ezzy Ashcraft and Councilmember Tracy Jensen directed staff to draft an amendment to the Alameda Municipal Code, transferring the adjudicatory function to City Hearing Officers, similar to the dispute resolution process for the Rent Control Ordinance.

Special Counsel Michael Roush explained that the CAO has a contractor pool of qualified hearing officers who would serve on a rotating basis as cases arise. City Attorney Yibin Shen added that, similar to a court proceeding, Sunshine Ordinance hearings, while open to the public, would not allow direct public comment. However, parties could submit witnesses, and the hearing officer could admit relevant testimony and evidence.

Notably, if the hearing officer finds public access or public information violations, they recommend corrective steps. However, for public access violations, the originating body would consider the recommendation and decide whether to accept or reject the decision. For public information violations, the City Clerk, City Manager, or City Attorney, as appropriate, would consider the recommendation and inform the Council of their decision.

Commission and public comment

At its January 29 meeting (starting at the 2:34 mark on the video), Open Government Commission members expressed general support for hearing officers but also a strong wish that hearing officer rulings be binding rather than advisory. Commissioner Klinton Miyao captured OGC’s frustration: “This is the thing that … would make the whole thing work. 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 effectively our work has gone.”

Paul Foreman of Alameda Citizens Taskforce (ACT) concurred, saying ACT was withdrawing its initial support for the hearing officer format because they see a conflict of interest in the City Attorney or any City officials choosing the hearing officers, the hearings don’t provide direct public participation, and violating bodies are not bound to implement hearing officer decisions.

Correspondent Paula also asked that hearing officer rulings be binding and further asked for their findings to be agendized, so it is clear that Council is considering the advisement.

Board discussion

Councilmember Malia Vella supported switching to the hearing officer format as proposed, saying she wants to see issues dealt with fairly and expediently. She added that she trusts the City Attorney’s Office and feels the goal is to get public input without Council being overruled by a non-elected entity.

Mayor Ashcraft agreed, saying she was motivated by the length of time for past hearings and a “painful to watch” process. She expects hearing officers’ responsibilities to include being faithful to the law “regardless of partisan interests, public clamor, or fear of criticism.” She sees this as a difference between hearing officers and commissioners who are political appointees.

Vice Mayor Tony Daysog disagreed, saying he sees strength in the commissioners coming from all walks of life and being community members. He saw the process as imperfect but not fatally flawed and said there’s value in having the public participate “in the sausage-making of government.”

Councilmember Tracy Jensen said she felt having the City Attorney choose a pool of hearing officers at least reduced conflict of interest versus having the City Attorney directly advise the Open Government Commission, which she likened to a defendant’s attorney advising the judge.

Councilmember Trish Herrera Spencer objected to there not being a process for the public to comment directly and to the hearings not being at pre-set times. (Hearings would be scheduled as complaints arise.) She supported a hearing officer approach for rent issues because those relate to private disputes but felt Sunshine Ordinance dispute resolution should be open for public comment.

Motion and vote

Councilmember Malia Vella motioned to amend the Alameda Municipal Code (link downloads document) to establish a hearing officer form of adjudication of Sunshine Ordinance complaints with the following clarifications:

  • The OGC reviews the hearing officer selection policy if it changes and at least annually.
  • Complaints are heard within 30 working days of filing the complaint.
  • At least 10 days are allowed for public notice on the City website, in the City Manager’s report, and through the City’s OGC email list.
  • The hearings will be open to the public and available to watch online.
  • Petitioners can participate remotely.
  • The process shall be reviewed after six months.

The motion passed 3-2, with Vice Mayor Daysog and Councilmember Herrera Spencer opposed.

Overall, General Fund revenue adjustments exceed expense adjustments by $540,000.

Mid-year budget update

Council also received a mid-year budget update [link downloads report]. Overall, General Fund revenue adjustments exceed expense adjustments by $540,000. For non-General Fund programs, staff project an increase in revenues of $3,891,026 but propose additional expenses of $7,330,667, including pension stabilization, golf legal expenses, and pavement rehabilitation.

Councilmember Herrera Spencer wanted the public to note that the City will begin charging for electric vehicle charging at the Civic Center garage consistent with the $0.40/kWh rate at the Seaplane Lagoon Ferry Terminal.

Alameda Post - posters for the Alameda International Film Festival, the It's Basic documentary screening, and the Supper and Support event at the library

Upcoming free events

City Manager Jennifer Ott announced several upcoming free events, including:

Contributing writer Karin K. Jensen covers boards and commissions for the Alameda Post. Contact her via [email protected]. Her writing is collected at https://linktr.ee/karinkjensen and https://alamedapost.com/Karin-K-Jensen.

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