March 2, 2004
SUBJECT: RECORDKEEPING PROCEDURES FOR CLOSED SESSION MEETINGS AND STUDY SESSIONS
REPORT IN BRIEF
This Study Issue item was reviewed and ranked by the City Council at its workshop on December 18, 2003 and subsequently approved on the Study Issue Calendar (currently called Tentative Council Agenda Calendar) on January 13, 2004. The issue is to look at recordkeeping procedures for Council Closed Session meetings and Study Sessions.
Staff conducted a research on this topic, which is outlined in the report. Staff has also provided Council with alternatives for its consideration. Based on its findings, staff recommends that the City continues its current practice for Study Sessions with no changes, as described in Alternative 1.A, and that the City modifies its practice for closed sessions as described in Alternative 2C.
BACKGROUND
At the December 2003 Study Issue Workshop, Council ranked this item as an OCM Study Issue priority #3.
This study issue was sponsored by Mayor Howe and Council Member Miller on October 7, 2003. The purpose of the request is to find ways to establish a clear understanding and agreement on matters discussed at Council Study Sessions and Closed Sessions.
Current City practice does not require any kind of process for taking or logging minutes at Closed Sessions. If Council gives direction to staff or takes an action, it is orally reported at the following regular Council meeting during open session and reflected in the minutes of that regular meeting. Current city practice also does not require any formal process of taking minutes at Study Sessions. Currently, staff from the lead department attends the study session to present the item and take informal notes. These notes are used as a point of reference and for their guidance. These notes are not currently reflected in the minutes of that regular meeting.
EXISTING POLICY
Policy 7.3B.2 – Maintain official records of City action and policy in a retrievable manner, according to legal convection.
DISCUSSION
For this study, staff took the following approaches and have outlined the results below:
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A survey (attached) was conducted with all cities in California through the City Clerk’s list serve
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The City’s current practice for Study Sessions was reviewed and comments were solicited from various departments for feedback
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The Brown Act (excerpt attached), City Chapter, Municipal Code, Legislative and Administrative Policies books were researched and reviewed
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A cost estimate for an audio recording device for taping closed sessions and/or study sessions was obtained
SURVEY
An electronic survey was sent out to all California cities asking about their recordkeeping practices for closed sessions and study sessions. Following are the results:
Closed Session
The City received 24 responses total (14 are in Santa Clara County). Of the 24 cities, three designate the City Clerk to attend the Closed Session and record minutes or maintain a minute log, three designate the City Attorney and one City Attorney records by audiotape. 18 cities do not record minutes for closed sessions. The information reflected in the minutes that are taken include the date, time, place of the meeting, attendance, items discussed, direction/action, if any and sometimes the voting.
Study Session
Out of 24 responses received, 14 cities take minutes or informal notes to use for reference, follow up and documentation. Some record the study session minutes on their regular meeting minutes (if the study session took place before the regular meeting). Or, they prepare a set of study session minutes separate from the regular meeting minutes (if the study session took place separate from the regular meeting). Other cities take notes for staff use only and are not documented.
CURRENT CITY PRACTICE/COMMENTS FROM DEPARTMENTS
Closed Session
Currently, the City does not maintain a minute book nor record Closed Session minutes. Closed sessions are attended by the Council and other appropriate staff directly involved with the subject matter of the closed session. If a direction is given, or an action is taken, a Council Member gives an oral report of the direction or action at the following regular Council meeting.
Study Session
Currently, lead staff for the study session item attends and takes notes at the study session. These notes are not transcribed into the regular Council minutes. Only the item, time, date and place are reflected in the beginning of the regular minutes. The City has taken a stance that since there is no official action taken during a study session, there is no need to document the study session other than what is currently reflected in the regular minutes, as stated earlier. This is because the City’s study sessions are designed to inform, clarify, and discuss study issues. The City’s study sessions are public meetings and noticed accordingly. There is no Council action taken or direction given during study sessions. The information that is received by staff during these sessions is included in staff’s Report to Council (RTC).
Comments were received from various departments regarding current recordkeeping practices for study sessions. In general, the departments feel that the City’s current practice is effective because it provides guidance to staff and helps staff stay on track. It also assists staff in researching, analyzing and preparing its reports to Council. Currently, the notes taken by staff at these sessions are not for the purpose of creating a public record and not for making it available to the public. However, the RTCs that are developed from these study sessions that reflect Council’s discussion, would serve as the public record.
RESEARCH OF CODES AND REGULATIONS
Closed Sessions
With the exception of the Brown Act, the City Charter, Municipal Code, Administrative and Legislative Policies are silent on this matter. The Brown Act (GC 54957.2) states that minutes are not required for Closed Sessions. The decision to do so is at the discretion of the Council. It also states that the legislative body may, by ordinance or resolution, designate a clerk or other office or employee of the agency who shall then attend each closed session of the legislative body and keep and enter in a minute book of record of topics discussed and decisions made at the meeting. Any such recording is not a public record and will not be accessible to any person except the legislative body and the person designated to attend the session and maintain the record.
The following is a statement from the User’s Guide to the Brown Act: which states: “Individuals who do not have an official role in advising the legislative body on closed session subject matters should be excluded from closed session discussions. In general, the most common purpose of a closed session is to avoid revealing confidential information that may, in specified circumstances, prejudice the legal or negotiating position of the agency or compromise the privacy interests of employees. Closed Sessions should be conducted keeping those narrow purposes in mind”.
Given this statement, the Council may want to consider the potential risk of exposing confidential information from closed sessions if it designates a staff member other than the lead staff for the closed session item, to attend closed sessions for minute-taking purposes.
Study Sessions
The Brown Act (GC 54952.2(a) defines “meeting” as including any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains. Given this, it is staff’s opinion that the Brown Act views study sessions as Council meetings and thus subject to its provisions. The City’s study sessions are public meetings and noticed accordingly, but there is no Council action taken or Council direction given during study sessions, hence there is no need for minutes.
EFFECTS OF PROCEDURAL CHANGE
If the City were to modify its current practice and begin to implement recordkeeping procedures for Study and Closed Sessions, it would exceed legal requirements and formalize the recordkeeping process. It would also increase staffing costs, increase the level of potential exposure of confidential information/material, and increase other costs such as an audio recording device, if Council so chooses. Note that study sessions and closed sessions are held in conference rooms outside the Chambers, which are not wired for audio recording. The estimated cost for a portable audio recording device with microphones is $2,000, plus annual operating costs of approximately $600.
Staff has provided Council with some alternatives for its consideration. Please note that if Council opts to modify current practice and require recordkeeping procedures, it can, at its discretion, direct staff to formulate a policy establishing recordkeeping procedures for either a closed session or a study session.
FISCAL IMPACT
Public contact was made through posting of the Council agenda on the City’s official notice bulletin board, posting of the agenda and report on the City’s web page, publication of the Council agenda in the San Jose Mercury News, and the availability of the report in the Library and the City Clerk’s Office.
ALTERNATIVES
1. Continue the City’s current practice with no changes.
a. Continue current practice for Closed Sessions with no changes
b. Continue current practice for Study Sessions with no changes
2. Modify the City’s current practice as follows:
a. Direct staff to add to the Legislative Policy Manual a policy establishing recordkeeping procedures for Closed Sessions by designating a person to attend closed sessions for the purpose of taking minutes or maintaining a minute log and act as custodian of such record/log.
b. Direct staff to add to the Legislative Policy Manual a policy establishing recordkeeping procedures for Closed Sessions by designating a person to record closed sessions by audiotape and act as custodian of the tapes.
c. Direct staff to add to the Legislative Policy Manual a policy establishing recordkeeping procedures for Closed Sessions by designating the lead staff for the subject item of the Closed Session to take action minutes and forward the minutes to the City Attorney for accuracy within a week after the meeting, to be retained in the City Attorney’s office along with all other confidential records for safekeeping.
d. Direct staff to prepare a resolution designating the City Clerk to attend Closed Sessions for the purpose of taking minutes or maintaining a minute log and act as custodian of such record/log.
e. Direct staff to add to the Legislative Policy Manual a policy establishing recordkeeping procedures for Study Sessions by designating the City Clerk or his/her designee to attend study sessions for the purpose of recording minutes and including it on the next available regular meeting minutes.
f. Direct staff to add to the Legislative Policy Manual a policy establishing recordkeeping procedures for Study Sessions by instructing the lead department staff who attends the study session to take minutes and forward the information to the City Clerk for inclusion in the next available regular meeting minutes.
RECOMMENDATION
Approve Alternatives 1b and 2c.
Prepared by:
Susan A. Ramos
City Clerk
Approved by:
Amy Chan
Acting City Manager
Attachments
A. Survey results