December 7, 2004

SUBJECT:    2004-0163 - City of Sunnyvale – Study to consider the creation of a board on accessibility for people with disabilities that would advise the City on accessibility issues.

REPORT IN BRIEF

The purpose for this report is to examine the creation of a new board or commission that would review and comment on accessibility related issues in Sunnyvale.  The study examines existing policies relating to accessibility requirements and provides alternatives for the creation of a new board or commission.

Staff is recommending the formation of an advisory committee that would meet four times per year to advise the City staff on accessibility related issues.  Staff is also recommending better publicity of the single answer point for public contact the City with regard to accessibility issues.

BACKGROUND

In 2003 there was a citizen suggestion to the City Council that a new advisory board coordinated by the Office of the City Manager be created to advise the City on accessibility issues.  The suggestion was for the board to be comprised of people with disabilities who would comment on both public and private projects.  This new board would be proactive in reviewing, making recommendations, and hearing appeals about ADA and accessibility standards throughout the City.  At the December 2003 Study Issue workshop, the City Council ranked this item as the number one study issue for the Community Development Department (CDD) in 2004. 

In response to a different request from City Council, a study session was held on March 2, 2004 regarding the Americans with Disabilities Act (ADA) and the California State Building Code (Title 24) accessibility requirements.  The purpose of the presentation was to provide the Council with background information on the City’s current practices for implementing Federal ADA requirements in both private developments and City construction projects.  At that study session, it became evident to staff that the Council’s concerns are much broader than ensuring that private and public developments are ADA compliant.  This study issue, therefore, does not focus on an advisory board to review or comment on development applications, but instead examines a board which will review, evaluate, and make recommendations to the City Council relative to all matters affecting persons with disabilities in the City.

EXISTING POLICY

1.  Disability Rights Laws

People with disabilities are protected by a tapestry of state and federal laws designed to ensure equal access to employment, education, housing, public accommodations, transportation, telecommunications, and public services.  The Americans with Disabilities Act (ADA) is probably the best known of these laws, but there are several other statutes affecting different aspects of disability rights, such as California's Fair Employment & Housing Act (FEHA), the Unruh Civil Rights Act, the federal Rehabilitation Act, and the federal Fair Housing Act.

Disability rights laws are enforced by a variety of state and federal agencies, including the California Department of Fair Employment and Housing (DFEH), the Equal Employment Opportunity Commission (EEOC), the Department of Housing and Urban Development (HUD), the federal Department of Education, and the Civil Rights Division of the U.S. Department of Justice.  Most disability rights laws, including the ADA, can also be enforced through private legal action.

Confusion often arises over the scope of the City's authority to enforce disability rights laws like the ADA.  Cities and other local government entities have three primary obligations with regard to disability rights:

(1)      Public Employment: as employers, cities must comply with all applicable laws prohibiting employment discrimination.

(2)      Public Services: as a provider of public services, cities must ensure that public buildings, facilities, programs and services are accessible to, and useable by, persons with disabilities.

(3)      Building Code Enforcement: cities enforce the provisions of the state Building Code ("Title 24") related to disability access.

A clear distinction needs to be drawn between the City's own duty to comply with the ADA, such as making public buildings, facilities, sidewalks, and so on fully accessible, and the City's power to require that private businesses, landlords, employers and others comply with the ADA.  The City's legal authority is limited to enforcing Title 24 of the Building Code. 

Title 24 of the Building Code has been certified by the U.S. Department of Justice as meeting all federal standards for accessible design.  Where differences exist, Title 24 is more stringent.  The Building Code, however, does not require that property owners "retrofit" existing structures to meet current accessibility standards unless the property is altered or remodeled.  In some cases, failing to retrofit – even if not technically required by the Building Code – may violate the ADA, but if so, this is outside the City's jurisdiction to enforce. In such case, the City must refer the aggrieved individual to the appropriate state or federal agency. 

2.  State Codes, City Charter & Municipal Code

The City’s Charter and Municipal Code do not currently provide for a board or commission to review accessibility issues. Similarly, the City has not established a board to review other  human relations issues, such as, cultural, economic, political, or social issues facing the community.  The City does participate in the Santa Clara County Advisory Council on Aging, which makes policy recommendations to the County’s Council on Aging on such issues as housing, medical care, crime, and abuse.

The Municipal includes the adoption, by reference, of the California Building Code. This code, found in Title 24 of the State codes, contains regulations and standards for building safety, energy efficiency and accessibility for privately owned sites and buildings. The City ensures compliance with the provisions of Title 24 through the building permit process.

3.  Relationship to General Plan

The current Socio-Economic and Community Participation Sub-Elements provide a policy basis for Sunnyvale’s actions related to this study issue.  The Sub-Elements include a description of the community conditions, goals, policies, and programs, which are intended to address the health and social welfare needs of the community.  The following is a list of goals, policies, and action statements from these Sub-Elements:

Socio-Economic Sub-Element

Policy 5.1A.2: Strive to assure that all residents have equal access to City services.

Policy 5.1H.9: Encourage programs and services that address the special needs of the disabled population and assure that disabled individuals have access to services.

Action Statement 5.1H.9a: Maintain an active City policy that assures that disabled individuals have access to City programs and services.

Action Statement 5.1H.9c: Maintain an assisted recreation program to address the special recreational needs of the disabled.

Action Statement 5.1H.9d: Encourage and support efforts to allow disabled individuals to live independently.

Action Statement 5.1H.9f: Support efforts to inform disabled individuals about services that are available.

Community Participation Sub-Element

GOAL 7.2A: To have a community in which citizens are informed about local issues and have access to City services and personnel.

Policy 7.2A.3:  Ensure that all citizens have access to City personnel, policy makers and services.

Action Statement 7.2A.3a: Continue to provide a central information center to assist citizens in locating and using City services.

Action Statement 7.2A.3b: Ensure that all public Board/Commission and Council meetings provide an opportunity for public input and involvement.

Policy 7.2B.1: Plan for and encourage citizen involvement in City programs and services.

Action Statement 7.2B.1a: Seek a diversity of representation in all citizen participation projects and activities sponsored by the City.

DISCUSSION

Four main topics are covered in the following discussion section:

1)   Legal Parameters

2)      Survey of Surrounding Cities

3)      Current Procedures

4)      New Board, Commission, or Committee Composition

1.  Legal Parameters

The California Building Code allows cities to create specialized citizen review boards to hear appeals related to the administration of Title 24.  Such a board must consist of two individuals who are physically handicapped, two individuals who are experienced in construction, and one member of the public (Health & Safety Code §19957.5.). This provision in the Building Code likely preempts the City from creating a board with the power to review permit applications and impose conditions on development.  Cities cannot deviate from the Building Code unless necessitated by local climatic, geological, or topographical conditions.

The Building Code does not limit the City's ability to create an advisory board or commission that will provide overall input and direction to the City regarding disability rights and accessibility issues.  Such a board or commission could specifically review the City’s policies, programs, delivery of services, municipal projects, facilities, and all other matters significant to persons with disabilities in Sunnyvale. 

2.  Comparison of Surrounding Cities

Following are the results from a survey of 14 surrounding cities and agencies.  The table shows similar types of boards that currently exist in these municipalities:

City/Agency	Types of Boards
Campbell	None
Cupertino	None
Los Altos	None
Los Altos Hills	None
Los Gatos	None
Milpitas	Community Advisory Commission
Mountain View	Human Relations Commission
Palo Alto	Human Relations Commission
Redwood City	Housing and Human Concerns Committee
San Jose*	Disability Advisory Commission
	Human Rights Commission
Santa Clara	None
Santa Clara County	Human Rights Commission
Saratoga	None
VTA*	Committee for Transit Accessibility

* -       Indicates agencies with accessibility boards

From the pool of 14 agencies surveyed, six have boards addressing human rights or relations.  Generally, these boards have been established to address the various economic, political, educational, and social issues facing communities.  They review and make recommendations to the Councils on issues such as human rights, culture, race, religion, ethics, citywide events, etc.  Only two of the 14 agencies have a board or committee whose charge it is to review issues of accessibility (San Jose/Valley Transit Authority (VTA)). 

San Jose:  In San Jose, the Disability Advisory Commission studies, reviews, and makes recommendations to the City Council relative to any and all matters affecting persons with disabilities in the City including: education; employment; housing; transportation; recreation; and access to programs and services City-wide.  The Commission focuses primarily on the delivery of services citywide and the promotion of human rights for members of the community who are disabled.  The Commission is advisory to the City Council only, and it is not a final decision making body.

The 11 members are representative of different disability groups, including physical, sensory, and mental disabilities, with a majority of the Commissioners required to be disabled.  Those Commission members without a disability are typically experts from an industry relating to accessibility.  The City Council makes the appointments to the Disability Advisory Commission based on recommendations from other committees.  The Commission meets each month and Commissioners serve without compensation from the City.  This Commission is coordinated through a staff liaison who is under the Office of the City Manager.

VTA:  The VTA’s Committee for Transit Accessibility is responsible for advising the Board of Directors, the Metropolitan Transportation Commission, and staff, on all matters pertaining to accessibility of VTA transit services including vehicles, equipment, facilities, ADA laws, program policies, and paratransit services in Santa Clara County.  The Committee serves in an advisory capacity to the Board of Directors and has no independent duties or authority to take final actions. 

The Committee is composed of 21 members who are all appointed by the VTA Board of Directors.  Members are required to be either persons with disabilities or professionals from private industry.  Twelve of these members are individual citizens nominated directly by the Board of Directors and nine members are professional employees appointed from eligible agencies or businesses.  The Committee meets each month and Committee members serve two-year terms without compensation.

3.  Current Procedures

State Title 24 Compliance: The City of Sunnyvale must adopt the State building codes contained in Title 24. In addition to construction safety and energy efficiency requirements, Title 24 includes a number of accessibility regulations. These regulations are similar to but not 100% the same as the Federal ADA requirements. The building division ensures compliance with Title 24 when a building permit is required.

California's Title 24 has been certified by the Civil Rights Division of the U.S. Department of Justice as meeting all federal accessibility requirements.  Therefore, Title 24, and not the comparable federal guidelines, are followed in California.

ADA Compliance: The ADA makes a property owner or employer responsible for compliance with its provisions. The City does not enforce compliance with ADA Title III (private property) unless there is the same requirement through Title 24. The City currently addresses its own requirements to comply with the ADA through the policies and programs of the different departments throughout the City.  The individual departments are responsible for ensuring compliance only with the specific titles of the ADA that apply to their programs.  For example, the Department of Public Works addresses Title II requirements through programs aimed at upgrading City facilities, roads, sidewalks, physical barriers, etc.

The City has no authority under state or federal law to enforce compliance with ADA Title III (private property).  Rather, the City is charged with the duty to enforce Title 24 of the Building Code.

Communication with Public:  When members of the public contact the City regarding accessibility issues, the appropriate department is contacted in order to provide assistance.  The individual departments work directly with the public to resolve the issue, whether it is a violation of codes, increased need for accessibility, or a change to a current City policy.  The ADA Coordinator serves as a single point of contact for the public who do not know where to start when there is a complaint or concern. Currently, there is no “marketing” of the single point of contact to the public regarding accessibility issues. 

ADA Coordinator:  The City currently has an ADA Coordinator. The coordinator ensures that the City’s administrative policy related to ADA compliance, the Program and Services Accessibility Policy, reflects current ADA rules and regulations.  The coordinator serves as point of contact and manages the complaint procedure if a member of the public raises a concern or files a complaint. Each City department is responsible for tracking legislation and compliance with ADA standards as appropriate to department services.

Training/Education:  Employees who work directly with the titles of the ADA are trained on the provision of the Act and best ADA implementation practices.  Those employees who work with persons in the community with disabilities, receive special training for working with the public.  For example, Public Safety Officers are required to complete sensitivity training for working with persons with disabilities, which is part of their basic and ongoing training.

Existing Boards, Commissions, and Committees:  Sunnyvale currently has 10 boards and commissions that have members appointed by the City Council.  These commissions are advisory in nature, with limited formal administrative authority and are not responsible for the coordination of City services.  The City also has several staff advisory committees, which work directly with City staff to review department policies and programs.  These committees do not hold public hearings and do not advise the City Council. 

4.  New Board, Commission, or Committee Composition

Members:  The study issue paper specifically states that the board or commission would be comprised of people with disabilities who are Sunnyvale residents.  The Council included this language based on the suggestion of a member of the public at their meeting.  The board could be a voice not only for the disabled but also those who care for the disabled such as health professionals and family members. The board could in include persons with disabilities living or working in Sunnyvale and persons with with knowledge of the needs of the disabled (designers, health professional, family members, advocacy agency representatives, etc.). Each group may offer a different perspective on the accessibility of City services.

Similar to the commissions at VTA and San Jose, the board could also include members who are professionals from private industry.  These members would be experts in their fields who work directly with accessibility related issues.  One advantage to including professionals on the board would be their ability to provide valuable input from the perspective of specialists working in the field.  These experts are involved with accessibility issues on a daily basis and are aware of current trends and issues.  Another advantage to including professionals would be to alleviate the difficulty of finding qualified persons to sit on the new board.  For example, the Heritage Preservation Commission requires that Commissioners must be Sunnyvale residents and does not allow for nonresident professionals.  This Commission has had trouble finding qualified candidates and usually does not have all seven seats filled.  The Child Care Advisory Board conversely, allows Board members to be Sunnyvale residents or industry professionals.  This Board has not had the same difficulty filling any vacant seats. 

The City Council may choose to designate a certain number of seats for Sunnyvale residents, as opposed to professionals, and may choose how they are appointed.  At present, all of Sunnyvale’s board and commission members are appointed by the City Council, and staff appoints the members of the advisory committees.

Configuration:  There are many possible configurations for a new board or commission in the City, only five of which are outlined in the following section.  This list is not exhaustive, but meant to provide the Council with a benchmark from which to work.  The intent of these options is to proactively address the needs of the disabled community by providing an additional, formalized, means of communication between the public and the City. 

Typical Boards and Commissions

First, a new body could be similar in structure to the existing Sunnyvale boards and commissions.  In this case, the board would be comprised of seven members who are appointed by the City Council and advise the Council on matters related to accessibility issues.  This board would meet in City Hall, or another City facility during evening times and would convene once a month.  One variation on this format would be for the commission to meet quarterly or semi-annually, depending on the responsibilities and workload of the board.  If the scope of the board were limited to advising Council on specific City policies or programs, then the board would need to meet less frequently.

Advisory Committee to Staff

A second option would be the formation of a committee, which meets on a quarterly or semi-annual basis, and is advisory only to staff.  Under this option, the committee would review and make advisory recommendations on City policies and programs related to accessibility.  The group would be comprised of members with disabilities and professionals from private industry who are identified by staff.  Recommendations to modify administrative procedures (i.e. specific upgrades to informational materials, etc.) could be implemented by staff, provided they are consistent with current policy and within a program’s operating budget.  The committee would not hold public hearings and would meet with staff from several departments on a quarterly or semi-annual basis.  Similar to the other committees currently in Sunnyvale (e.g. Teen Advisory Committee, Senior Advisory Committee, Columbia Community Center Advisory Committee, etc.) the committee would not recommend study issues to the Council, but would propose ideas to staff who could then recommend the idea as a study issue. 

Annual Focus Group

A third option would be a board that would convene a public hearing once a year.  It would be similar to a focus group or task force where the group’s members would represent Sunnyvale residents, people who work in Sunnyvale, as well as the City staff.  The group would be charged with reviewing current City policies and making advisory recommendations to the hearing, to formulate an advisory recommendation to the City Council on accessibility related issues.  The group would not work on study issues or long-term projects, but would function primarily as an information gathering mechanism for staff and the Council.  This new group would provide a mechanism for encouraging active participation by the public, similar to a commission that meets on a regular basis, but without the large financial implications associated with a full commission.  A board such as this is a viable option if the Council believes a full commission or advisory committee is not necessary at this time, but increased public involvement with City policies and programs is necessary. 

Annual Public Forum

A fourth option would be for the City to hold an annual public outreach meeting.  This would be a regularly scheduled forum for the public to provide feedback to the City.  The public could voice concerns or complaints about current City services and provide ideas about future opportunities.  This meeting would also allow City staff and Council the chance to bring new ideas on accessibility before the public prior to implementation.  A forum such as this is a practical option if the Council believes a new board of any type is not necessary at this time, but the need for increased communication with the public does exists.

Publicize Single Answer Point

A fifth option would be to better publicize (both internally and externally) the city’s ADA coordinator role as the single answer point for the public to contact the City regarding accessibility.  Typically, a member of the public contacts the appropriate department in the City regarding an accessibility issue, if they know who it is. They may need to be transferred to the ADA Coordinator or another department before they receive the service. It can lead to some confusion on the part of the public when attempting to contact the appropriate division or staff person.  Better publicizing of the single answer point could help to streamline this process for the public and ease their communication with the City.  The public is not precluded from contacting individual staff members directly, but the single answer point assists in facilitating responses to public inquiries.

Roles and Responsibilities:  If the City Council chooses to create a new board or commission, it is necessary to outline the responsibilities and authority of the body.  As staff understands it this new board could review City services and connect the staff with the disabled community and their associations, advocates and caregivers. A board or commission cannot be created that would review private development applications or to take actions on private projects.  The board could have the authority to oversee City policies, programs, delivery of services to the public, municipal projects (both capitol improvements and new developments), etc. For example, the board could review the current practices of the City Library’s accessibility services.  The board would make an advisory recommendation to the Council regarding any changes deemed necessary.  Another example of the board’s possible authority would be their ability to review City generated development projects.  In these cases, the board would not review projects to ensure compatibility with ADA guidelines, but would offer recommendations for enhancements, subject to final approval by Council.

The potential responsibilities for this commission span a wide variety of options.  It is important for Council to clearly define the role of this new board so its authority will not supercede the authority of the existing boards and commissions.  The existing commissions do not have the power to coordinate or direct City services, staff, other commissions, etc.  They are advisory to the Council only.  It is also important for the Council to manage the expectations of Sunnyvale residents by clearly defining the purpose or intent of the board. 

Due to the multi-departmental nature of the advice that such a board or committee would provide, the lead staff support for this group would come from the Office of the City Manager. Staff from other departments would be invited to participate in review and discussion of ideas and may be requested to attend meetings.

FISCAL IMPACT

City Council Appointed Board or Commission:  The costs associated with approving a new Council appointed commission will depend on the many alternatives discussed in the previous section.  It is possible to provide some general costs based on other boards and commissions currently active in Sunnyvale. The following table is a summary of similar Boards and Commissions in the City: 

Board, Commission, Committee	Members	Meetings (FY 03-04)	Staff Hours (FY 03-04)	Costs (FY 03-04)
Heritage Preservation Commission	7	8	180	$13,000*
Bicycle Pedestrian Advisory Committee	7	12	1,150	$78,000
Library Board of Trustees	5	12	230	$22,000
Housing and Human Services Commission	9	12	578	$38,000
Child Care Advisory Board	7	6	250	$14,000

* Excludes review of Landmark Alteration Permits and other development applications

The costs associated with supporting the Planning Commission and Parks and Recreation Commission are not presented above. Both of these commissions are supported by numerous services in more than one program; therefore, costs are not easily isolated. The commissions in the above table have an average annual cost to the City of approximately $33,000 per year. These expenditures are primarily the cost of the staff time required to support the board (advertising meetings, preparing agendas and packets, attending meetings, preparing minutes, etc.). This cost does not include other expenditures such as facility rental, Facilities Management Division support, time from the Officer of the City Manger and Office of the City Attorney, recruitment, etc.  The commissions that meet less frequently (bi-monthly or quarterly) have a lower cost to the City, averaging approximately $13,500 per year. Typically, these groups have limited roles and responsibilities and therefore require less staff support.  These boards also have fewer study issues and long-term projects for staff to complete.

The cost for a new board on accessibility is not fully known at this time, since the responsibilities of the board could be very broad or very limited.  Based on the costs to support the City’s current boards and commissions, there is a reasonable expectation that the new board could have a significant financial impact to the City’s budget.  For example, if the commission is a regular advisory commission (meets once a month, completes study issues, etc.), the cost would be a recurring yearly expenditure to the City’s General Fund averaging $33,000 (based on the average cost of the existing boards).  If the commission has a greater advisory role, such as the Bicycle and Pedestrian Advisory Committee, the financial implication could be much greater to the City, far in excess of the average cost of a City commission. Due to the complex nature of accessibility issues staff anticipates that a high level of staff support would be needed.

Additionally, a new commission would have associated costs for recruitment of commission members.  There will be a large initial cost to fill the board’s seats, but this will not be a large reoccurring cost since the Office of the City Manager conducts annual recruitments for the existing boards and commissions.  A board on accessibility may have additional costs to support any special needs of the board members.

Committee Advisory to Staff:  The costs associated with a new advisory committee, where Council does not appoint the members, are typically much less than a full commission.  The following table is a summary of the three current staff advisory committees in Sunnyvale:

Advisory Committee	Members	Meetings per Year	Staff Hours (FY 03-04)	Costs (FY 03-04)