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"The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created."

 

Introduction to The Ralph M. Brown Act

 

 

HOW TO NOTICE A PUBLIC MEETING

 

AND

 

RESPOND TO REQUESTS FOR PUBLIC INFORMATION

(REVISED EDITION)

 

 

A GUIDE FOR OAKLAND CITY STAFF

 

 

 

FOREWARD

 

Oakland is one of several California cities to have adopted a "sunshine" ordinance. These ordinances attempt to provide the public with greater opportunities to access public meetings and information. They also create special obligations on City employees to ensure these opportunities are fulfilled.

 

The Oakland Sunshine Ordinance and the State of California's open meeting law, the Ralph M. Brown Act, contain specific requirements to ensure that the public has an effective right to learn about, attend, and participate in public meetings. With few exceptions, all city boards, commissions, and their respective committees must conduct their business publicly and provide ample notice of the items to be considered.

 

In addition, the Oakland Sunshine Ordinance, together with the California Public Records Act, governs how and under what circumstances the City must respond to requests for public information.

 

 

This guide is intended to assist City staff in meeting the specific requirements of the Brown Act, the Public Records Act and the Oakland Sunshine Ordinance.* * * The contents of this guide are meant to provide general information only; any specific questions regarding your obligations under the law should be directed to the Office of the City Attorney or the Public Ethics Commission.

 

Special "Notes" are provided throughout this guide as helpful hints in complying with the open meeting and public record laws. A copy of the Oakland Sunshine Ordinance can be accessed through the Public Ethics Commission's website at Oaklandnet.com.

 

The Public Ethics Commission is interested in any comments, corrections or suggestions you may wish to offer. Please feel free to contact the Public Ethics Commission staff at 510-238-3593 (telephone) or 510-238-3315 (fax).

 

OAKLAND ORGANIZATIONS SUBJECT TO OPEN MEETING LAWS

 

 

The Brown Act is a state law that applies to all legislative bodies in the State of California. The Oakland Sunshine Ordinance is a local law that was enacted in 1997 to supplement the Brown Act and to provide greater public access to the workings of Oakland government.

 

 

The following is a description of local bodies that are subject to the Sunshine Ordinance:

 

  • The Oakland City Council; the Oakland Redevelopment Agency, and the Board of Port Commissioners.

 

 

  • Any "board, commission, task force or committee" which is established by the City Charter or ordinance, or by motion or resolution of the City Council, Redevelopment Agency or the Port Board of Commissioners.

 

 

  • Any advisory board, commission or task force created and appointed by the Mayor and which exists for longer than a 12-month period.

 

 

  • Any standing committee of the above entities.

 

 

  • NOTE: Neither the Sunshine Ordinance nor Brown Act apply to a committee or task force which consists solely of employees of the City of Oakland or of the Port of Oakland.

 

 

  • NOTE: If you have any question whether your board, commission, task force, or committee is required to comply with the Brown Act or Sunshine Ordinance, please contact the Public Ethics Commission or the Office of the City Attorney.

 

 

WHAT CONSTITUTES A MEETING

 

 

Under the Sunshine Ordinance, a "meeting" for which public notice must first be given is defined as:

 

1) any congregation of a majority of the members of a local body in which

any item within its subject matter jurisdiction is heard, discussed or deliberated; or,

 

2) any use of direct or indirect communication that causes a majority of the members of a local body to become aware of their respective views on an item of business and negotiate a consensus regarding that item.

 

A "meal gathering" conducted immediately before, during or after a public meeting is considered a part of the public meeting and must be properly noticed and made open to the public.

 

 

  • NOTE: Under the above definition, a "meeting" can occur if a staff or member of a local body calls, faxes or e-mails other members to develop a consensus regarding an item of business, even if the members never communicate to each other directly.

 

The Sunshine Ordinance does not include in its definition of a "meeting" individual conversations between members of a local body and a single person (such as a constituent); attending community meetings or conferences; or attending purely social, recreational, or ceremonial occasions (so long as the members do not discuss business items within their jurisdiction).

 

 

  • NOTE: It is not uncommon for members of a local body to meet socially or as friends. Care must be taken whenever a majority of members gather to avoid discussing any specific item or topic that may be within the jurisdiction of the local body. Under the Sunshine Ordinance, gathering together before or after a public meeting could trigger a public notice requirement!

 

 

  • NOTE: The attendance of a majority of the members of a local body at one of its subcommittee meetings could become an improper meeting if those members who are not on the subcommittee attend the meeting and speak, deliberate or vote. A good practice is to notice any subcommittee meeting at which you expect a majority of the local body to appear and participate as a special meeting of the full local body on the subcommittee's agenda.

 

  • NOTE: Also remember that if additional members of a local body appear and participate at one of the local body's subcommittee meetings, causing a quorum of the local body to become present, the full local body is prohibited under the Sunshine Ordinance from taking action at that subcommittee meeting.

 

 

SEE ATTACHMENT 1: Sample Meeting Agenda

 

 

TYPES OF PUBLIC MEETINGS

 

 

There are three types of public meetings recognized under the Brown Act and Sunshine Ordinance: Regular Meetings, Special Meetings, and Emergency Meetings. Each has its own particular notice requirements, which are discussed below.

 

 

Regular Meetings

 

All of Oakland's local bodies must take formal action (by a motion and vote) to establish a regular time and place for holding regular meetings. (For example: "7:00 p.m. on the first Monday of every month at City Hall.") The Sunshine Ordinance states that "whenever reasonably possible" such regular meetings shall be conducted on weekday evenings.

 

 

Special Meetings

 

A special meeting may be called by the presiding officer or by a majority of the local body at a date, time, or place that deviates from the regular meeting schedule.

 

 

  • NOTE: If a local body does not have a regular time or place for meetings, or if the regular meeting is set for a different date, time, or location, the meeting should be designated as a "special meeting" and comply with the special meeting noticing requirements under the Sunshine Ordinance. (See "Providing Notice For A Public Meeting", below).

 

 

Emergency Meetings

 

An "emergency meeting" can be called only in specific situations that are usually quite rare. An "emergency" exists when a majority of the members determine that a "work stoppage or other activity" or a "crippling disaster" has occurred that severely impairs public health or safety. Any further discussion of "emergency meetings" is beyond the scope of this guide.

 

 

PROVIDING NOTICE FOR A PUBLIC MEETING

 

Under the Sunshine Ordinance and Brown Act, boards and commissions must post and distribute a copy of the agenda within certain time limits before a public meeting occurs. The amount of time depends on whether it is a regular meeting or a special meeting. (There are also additional pre-meeting requirements discussed in the next section on "Agendas, Agenda-Related Materials And Agenda Subscribers.")

 

 

Notice For A Regular Meeting

 

The agenda for all regular meetings must be posted at least 72 hours before the meeting in a location that is freely accessible to the public 24 hours a day. The Sunshine Ordinance also requires that copies of the agenda and all agenda-related materials (i.e., the agenda package) be filed with the City Clerk's office 72 hours before the meeting. (The City Council, Board of Port Commissioners and the Public Ethics Commission must meet these same posting requirements ten days in advance of their meetings as well as post notice on-line.)

 

 

  • NOTE: The City Clerk's office will post a copy of your meeting agenda in the kiosk in Frank H. Ogawa Plaza to satisfy the public posting requirement. Care must be taken to ensure the City Clerk has enough time to make the posting in the kiosk before the 72-hour deadline.

 

 

Notice For A Special Meeting

 

Special meetings must be noticed under the Sunshine Ordinance by:

 

1) posting a copy of the agenda in a location freely available to the public at least 48 hours before the stated time of the meeting (excluding Saturdays, Sundays and holidays).

 

2) delivering to each member of the local body, news media, and any person who has previously requested notice in writing (See "Agenda Subscribers", below) a copy of the agenda at least 48 hours before the stated time of the meeting (excluding Saturdays, Sundays and holidays). The agendas may be delivered in person, mailed, faxed or e-mailed.

 

3) filing a copy of the agenda and all agenda-related materials in the Office of the City Clerk at least 48 hours before the stated time of the meeting (excluding Saturdays, Sundays and holidays).

 

If the special meeting is held in a location other than the regular meeting place, then the above special meeting notice requirements must be met at least ten (10) days before the meeting date. This ten-day requirement does not apply if the meeting is held in the same building as the local body's regular meetings.

 

  • NOTE: Special meetings are subject to more extensive noticing requirements than regular meetings because of the short amount of time involved in providing public notice and the fact that the meeting may entail a change in the eeting time or location.

 

  • NOTE: It is not permissible to schedule a special meeting simply to correct a mistake or defect that may have occurred in noticing a regular meeting. For example, if the agenda for a regular meeting was not posted in time to meet the 72-hour posting requirement, the Sunshine Ordinance prohibits the local body from calling a special meeting (with its 48-hour notice requirement) on the same day to consider the same issues.

 

 

Canceling a Meeting

 

To the extent practicable, all special meetings must be cancelled by delivering a "NOTICE OF CANCELLATION" under the same procedure as for noticing a special meeting. However, for meetings cancelled on short notice or due to a lack of members, good meeting practice requires that cancellation be announced at the time and place of the noticed meeting.

 

SEE ATTACHMENT 2: Sample "Notice Of Cancellation."

 

 

Cure And Correction Of An Improperly Noticed Meeting

 

The actions a local body takes at a meeting may be challenged on the basis that the notice provided for that meeting did not meet the requirements of the Brown Act or the Sunshine Ordinance. Any local body whose actions are challenged may "cure and correct" the alleged violation by placing the challenged action on a subsequent meeting agenda to affirm or supersede the action after first taking any new public testimony.

 

If a person files a formal complaint with the Public Ethics Commission alleging that meeting notice requirements were not met, and the Commission determines that a violation occurred, then the local body must agendize for immediate determination whether to cure or correct the violation at the local body's next regular meeting.

 

 

AGENDAS, AGENDA-RELATED MATERIALS AND AGENDA SUBSCRIBERS

 

 

Agenda Requirements

 

Meeting agendas must specify the date, time, and location of the meeting and a brief general description of each item of business to be transacted or discussed. Agenda items should be informative and give the public sufficient information to decide whether or not to attend a meeting. Agendas must avoid the use of abbreviations or acronyms whose meaning would not be known to the general public.

 

  • NOTE: Be sure to identify any agenda item for which the local body may or intends to take action. For example: "Discussion And Action To Be Taken In The Matter Of. . ." This notifies the public that the body may be taking action on an item in which they have an interest.

 

If an item is not on the agenda for a regular meeting, there may be no action or discussion about it at the meeting unless:

 

1) two-thirds of the members present at the meeting (or if less than two-thirds of the members are present, then all of the members) vote that there is a need to take immediate action which came to the attention of the local body after the agenda was posted and the need to take immediate action a) is required to avoid a "substantial adverse impact" that would occur if the action were deferred to a subsequent special or regular meeting; b) the item relates to federal or state legislation; or, c) the item relates to a purely ceremonial or commendatory action; and

 

2) the item was continued to a meeting no more than five days after a properly noticed meeting in which the item was on the agenda.

 

Contact the City Attorney if you think any of the above conditions apply!

 

Members of a local body may ask a question for clarification, make a brief report or announcement of their activities, refer a matter to staff, or direct staff to place on a future agenda any item or matter that is not listed on the agenda.

 

If an item is not on the agenda for a special meeting, there may be no action or discussion on the item, period.

 

SEE ATTACHMENT 1: Sample Meeting Agenda

 

SEE ATTACHMENT 3: Sample Pre-meeting Checklist

 

Agenda-Related Materials

 

Agenda-related materials are defined as the agenda, reports, and any other document prepared and forwarded to the local body that provides background information or recommendations concerning the subject matter of any agenda item.

 

  • NOTE: Examples of typical agenda-related material are staff reports, memoranda, correspondence sent to the local body from an outside source, and reports from consultants that the local body will be reviewing or relying upon at the meeting.

 

The agenda and all agenda-related material (except material that is exempt from public disclosure under state or federal law) is a public record subject to public inspection and copying. Every local body is required to make agenda-related materials available to the public without delay.

 

  • NOTE: Every agenda should state where and how agenda-related materials can be reviewed prior to the meeting.

 

 

Agenda Subscribers

 

Under the Brown Act and Sunshine Ordinance, any person may request that a copy of the agenda and agenda-related materials be mailed to that person. To qualify as an agenda subscriber, the person must make a written request to the Office of the City Clerk and renew it annually following January 1 of each year. The agenda subscriber may be charged a fee for "reasonable mailing costs."

 

The local body is required to mail copies of the agenda and agenda-related materials at the time the agenda is posted or at the time the materials are distributed to a majority of the members of the local body, whichever occurs first.

 

  • NOTE: It is good practice to add to your mailing list anyone who makes a written request for the agenda and agenda-related materials. Also be aware that all documents constituting agenda-related material that staff provides to a majority of the members of the local body must also be provided at the same time to all agenda subscribers!

 

 

 

CONDUCT OF A MEETING

 

 

The Brown Act and Sunshine Ordinance do not expressly state how a public meeting must be conducted. There are issues that may arise at a public meeting however, that may affect whether the meeting complies with open meeting laws after the meeting begins. The following is a brief summary of those issues:

 

 

Presence Of A Quorum

 

Unless otherwise provided in the city ordinance or resolution creating the local body, a majority of the members typically constitutes the quorum. A quorum is necessary before the local body can take any formal action; a majority of a quorum is required to take action on behalf of the local body.

 

 

  • NOTE: Any member who recuses himself or herself due to a conflict of interest on an item is not counted in establishing a quorum. For example, on a seven member commission in which two members are absent and two other members recuse themselves on a vote because of a conflict, the item cannot be acted upon due to lack of a quorum.

 

 

 

No Barriers To Attendance

 

No local body shall conduct a meeting, conference, or other function in any facility that is inaccessible to persons with physical disabilities or where members of the public must pay or purchase something to gain entrance.

 

 

Meetings Must Be Recorded

 

With few exceptions, all local bodies in Oakland must make an audio recording of their open, regular and special meetings. All recordings are public records that may be inspected during regular business hours. The recordings must be preserved for at least four years. The local body must provide, without charge, the equipment necessary for the public's inspection of any audio or visual recording. Any person may record or photograph any meeting as long as these activities do not unreasonably disrupt the proceedings.

 

Right To Public Comment At A Meeting

 

Every regular and special meeting at which action is proposed to be taken shall provide an opportunity for members of the public to directly address the local body before action is taken on the item.

 

In addition to permitting speakers to address the local body before action is taken on any item, every regular and special meeting agenda must provide an opportunity for members of the public to comment directly on an item of interest to the public that is within the local body's jurisdiction.

 

 

  • NOTE: This is usually accomplished by providing an "Open Forum" item on every meeting agenda.

 

 

It is City policy that persons addressing a local body be entitled to a minimum of two minutes of speaking time per agenda item, subject to the discretion of the chairperson of the meeting.

 

The chairperson may reduce this minimum amount of speaking time only after publicly announcing the reasons for any reduction. Among the acceptable reasons are: a) constraints on the time allocated or anticipated for the meeting; b) the number and complexity of agenda items; and, c) the number of persons wishing to address the local body.

 

Any time constraints imposed on public testimony must be adopted at the outset and uniformly applied.

 

While the local body may adopt reasonable rules regulating the order and decorum of public testimony, the local body may not prohibit criticism of its policies, procedures, programs, or services, or of its acts or omissions. This generally applies to criticisms offered by a member of the local body as well.

 

 

Cancellation Or Continuation Of An Agenda Item

 

An item on the agenda may be cancelled or continued by a vote of the local body at the meeting, or by issuing formal notice of the cancellation or continuance if known far enough in advance of the meeting. Any continued item must specify the time and place of the meeting at which the item will be heard, and should be placed on the next meeting agenda.

 

 

  • NOTE: If there is any indication prior to the meeting that an item may be cancelled or continued (e.g., withdrawal of the item by the party seeking a hearing, illness of staff, absence of an essential party), good meeting practice suggests that as much prior notice as possible be given to members of the public. This should at least include an announcement and action at the beginning of the meeting on those items that will not be heard.

 

Conditions On The Right To Attend Or To Speak At A Public Meeting

 

The local body may request that members of the public wishing to speak provide their names on a speaker's card to facilitate staff responses or for inclusion in the minutes of the meeting. However, the public cannot be required to give names or sign a register as a condition of attending a public meeting.

 

TAKING AND KEEPING MINUTES

 

 

The Sunshine Ordinance requires that all local bodies (except advisory bodies created and appointed by the Mayor) take and keep minutes of their meetings. At a minimum, minutes should contain at least the following information:

 

    • The time the meeting was called to order

 

    • The names of the members attending the meeting

 

    • A one-sentence summary of the action taken on each item and the roll call vote (Note the names of each member who voted "Aye", "No," or "Abstained" if the vote is not unanimous)

 

    • The names of those people who spoke on each item

 

    • The time the meeting was adjourned

 

 

A draft of the minutes of each meeting must be available for public inspection and copying no later than ten (10) business days after the meeting.

 

The officially adopted minutes must be available for public inspection and copying no later than five (5) business days after the meeting at which the minutes were formally adopted.

 

 

  • NOTE: The above deadlines are maximum time limits. Good meeting practice suggests that minutes be drafted and made available for inspection as soon as possible.

 

 

SEE ATTACHMENT 4: Sample Meeting Minutes

 

 

REQUESTS FOR PUBLIC INFORMATION

 

The Oakland Sunshine Ordinance works in concert with the California Public Records Act to ensure that public, non-confidential information is made available promptly to those who request it.

 

Requests To Inspect A Public Record

 

Public records must be open to inspection at all times during regular business hours. A "public record" includes any writing containing information relating to the conduct of public business "prepared, owned, used, or retained" by a local agency regardless of its physical form or characteristics.

 

As a general rule, the Sunshine Ordinance favors the disclosure of records. Any refusal to disclose a record must be justified in writing. (See "Written Justification For Withholding Documents" below.)

 

  • NOTE: Whether a record is a "public" and disclosable record can sometimes be a difficult determination to make. If you have any question whether it is appropriate to release any document for inspection or copying, contact the Office of the City Attorney at once.

 

Requests To Obtain Copies Of An Identifiable Record

 

A local agency must provide exact copies of any public record upon request. The request for a copy of a public record must be "focused and specific" but need not be in writing.

 

Under state law, City employees must assist persons who request an inspection or copies of public records. First, they must help identify records being sought. They must describe the "information technology and physical location" in which the records exist, and they must provide suggestions for overcoming any practical basis for denying access to the records or information sought.

 

  • NOTE: While persons making a request to inspect or obtain copies of a public record do not have to state why they wish to do so, it is permissible to ask for additional clarifying information to help identify the records being sought.

 

 

Charging For Copies

 

The City of Oakland requires that single copies of any current agenda be provided without charge. Copies of any other public record (except for environmental impact reports) may be charged a fee that is established under the Oakland Master Fee Schedule. This fee may be charged in advance of providing a copy of the record.

  • NOTE: It is not permissible to charge a copy fee that exceeds the "direct costs of duplication." The costs of staff time searching for or duplicating records cannot be "built in" to copy charges.

 

 

When To Respond To Requests For Copies

 

The copying and distribution of public records must be accomplished "promptly." As a practical matter, if the record can be located quickly and there is no doubt about its public nature, simply provide the record at the time of the request. Otherwise, tell the requestor immediately the earliest time when the records can be made available for inspection or copying.

 

  • NOTE: The requirement that public records be produced promptly underscores the need for every local office to establish and maintain efficient record-keeping practices. Records and files should be kept in good order to permit their immediate location and inspection.

 

Sometimes, additional time may be required to respond to a request for public records. Under state law, a local body has up to ten days to determine whether a request for copies seeks a disclosable public record in the possession of the local body.

 

A local body, agency or department must "promptly" notify the person making the request whether the records are disclosable and the reasons why if the record cannot be produced. The reasons justifying any denial must set forth the name and title or position of each person responsible for the denial.

 

In certain unusual circumstances, it may be necessary to request an extension of the ten-day deadline. You should contact the Office of the City Attorney if you think you will require additional time to respond.

 

 

Immediate Disclosure Requests

 

One of the unique features of the Oakland Sunshine Ordinance is its provisions requiring "immediate disclosure" of certain records.

 

Any person may request the immediate disclosure of any record that has been previously distributed to the public, such as past meeting agendas and agenda packages. The request must be in writing and provide the requestor's name and a telephone number, fax or email address.

Once the requestor has provided his or her information, the local body must provide a copy of the document immediately, but in no case longer than three business days. If additional time is necessary to respond, the requestor must be notified within that three business-day period and provided a determination of whether the documents will be disclosed within seven days of the request.

 

 

Requests For "Oral Public Information"

 

Another unique feature of the Oakland Sunshine Ordinance is its policy regarding "oral" public information. Every Oakland agency director must designate a person "knowledgeable about the affairs of the agency" in order to facilitate the inspection and copying of public records and to provide oral information about agency plans, policies and positions. The names of such persons must be submitted to the Office of the City Clerk and posted on-line.

 

 

Written Justification For Withholding Documents

 

No record can be withheld in its entirety unless all information contained in it is exempt from disclosure by law. In some cases, it may be necessary to delete or segregate confidential material from an otherwise public document. Any such deleted or segregated material must be identified by a footnote or other reference indicating the appropriate reason why the information is being withheld.

 

You should consult with the Office of the City Attorney to discuss the appropriate reasons for withholding any document.

 

 

Mediation Of Public Record Disputes

 

Any person whose request for a public record has been denied by the City may demand mediation of his or her denied request through the Oakland Public Ethics Commission. Mediation must generally begin within ten days after the request for mediation is made. The local body or agency must designate a person to participate. The mediator's recommendations are not binding.

 

ATTACHMENT 2

 

"Notice Of Cancellation"

 

 

A "NOTICE OF CANCELLATION" should be sent out on the letterhead of the local body and include the following:

 

 

THE _____(Name of Body)______ (REGULAR/SPECIAL) MEETING SET FOR ___(date, time & location)___ HAS BEEN CANCELLED.

 

 

THE NEXT MEETING IS SCHEDULED FOR __(date, time & location)___.

 

 

 

_________________________________

Signature of Presiding Officer or Designee

 

 

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