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Assistant City Manager Robert Walker presented the staff report with policy options for Council’s consideration in response to three questions pertaining to the City’s boards and commissions program. Assistant City Manager Walker explained that the staff report does not address the issues of First Amendment rights raised by a member of the public earlier this evening.
Public hearing opened at 7:40 p.m.
Miki Falk, member of Housing and Human Services Commission, speaking on her own behalf, stated she was shocked to see this item on the agenda. Falk stated she spoke to senior citizens at the senior center and learned that these citizens are very upset because they feel that Councilmembers do not listen to them or recognize how they feel. Falk stated the ethics flyer she received during the election was disgusting because part of it was made up by the very liberal Santa Clara University Ethics Department, and it seemed like an effort to keep citizens quiet. Falk stated if a staff report names citizens, it should not be put on the Internet for the general public. Falk stated it is embarrassing to the person identified and there is a question of propriety. Falk stated the report should have been dealt with in a closed session.
Kevin Jackson, Bicycle and Pedestrian Advisory Commission, speaking on his own behalf, urged Council to approve Alternative 2 and include board and commission members in revision of the policy. Jackson stated Alternative 5 and 9 include powers that should remain with Council. Jackson stated that if Alternative 15 is approved, then Council should include board and commission members in the discussion. Jackson stated, in summary, he is requesting that Council remove items 1, 5 and 9 from the staff report, add in Alternative 2, and include board and commission members’ assistance with the policy revision process contained within Alternative 2 and 15.
Patrick Meyering stated he prepared a written response and handed copies of his response to the city clerk for distribution to Council. Meyering reviewed comments contained in his response.
Councilmember Moylan inquired if Meyering had any recommendations regarding the alternatives included in the report. Meyering stated the recommendation to publish RTC 07-217 should be denied. Meyering stated that report should be reviewed page by page, and the names of the minority members of the Housing and Human Services Commission should be deleted. Meyering identified that no names of the majority of the commission appear in that report.
Councilmember Moylan inquired if Meyering is advocating Alternative 17 or 18, both of which are different than Alternative 16, which was originally agreed upon along with posting Meyering’s rebuttal letter. Meyering stated the document is not a true report because it did not talk to the individuals who showed up to the meeting. Meyering stated he does not think the report should be posted on the City’s Web site, and when it is given out in hard copy, the names of the minority members should be deleted. Meyering stated his recommendation is not part of the alternatives listed. Meyering stated that the staff recommendations are not logical.
In regard to the other recommendations listed, Meyering stated he is against granting authority for the reprimanding of a commissioner to the city manager and commission chairs.
Councilmember Moylan asked Meyering to imagine a hypothetical circumstance in which a board or commission member has done something inappropriate. Councilmember Moylan asked Meyering what he would recommend to be the remedy for Council in this situation. Meyering stated if someone does something, the first assumption should be that it was done out of ignorance or oversight. Meyering suggested meeting with the person in a magnanimous manner. Councilmember Moylan asked who the person should be that would get together with the board or commission member. Meyering stated for the purpose of discussion, it would be appropriate for the chair of the commission to speak with the member, but not for the chair to have the power to reprimand, which is totally inappropriate. Meyering stated Council should maintain their authority over the boards and commissions. Meyering stated that Council interviews and appoints board and commission members; therefore, Council should retain the power to reprimand when appropriate.
Meyering stated that none of the people of the majority on the Housing and Human Services Commission were issued any type of statement from the City identifying that they did not follow the Brown Act.
Larry Alba stated he is in favor of Council handling any reprimands for a board and commission member, rather than the city manager. Alba stated RTC 07-217 seems like a waste of time on the City’s part to prepare such a document.
Rose Kausek, Chair of the Heritage Preservation Commission, recommended Alternative 1 (maintain the existing policy), because not sticking to the steps would allow members to skip or not follow the prescribed steps and could lead to chaos.
Councilmember Howe explained that a previous speaker suggested any board and commission disciplinary action should occur in a closed session. Councilmember Howe asked City Attorney Kahn if Council is allowed to have a closed session regarding a board or commission member. City Attorney Kahn stated a closed session would not be appropriate in this instance.
Councilmember Howe asked Kausek if in her opinion all actions dealing with commissioners should be done in an open session and whether board and commission names should be redacted from any report. Kausek stated she would be in favor of an open session as she believes in open government. Kausek stated she does not have a strong opinion on whether a name should be redacted from a report.
Councilmember Moylan explained the current sequence of six steps that a board or commission member would need to follow prior to reaching Council, of which two steps entail dealing with different departments. Councilmember Moylan asked Kausek if she agreed with the current sequence of steps for a board or commission member to use prior to reaching Council. Councilmember Moylan reminded Kausek that it is Council who actually appoints the board and commission members and stated that the question is not if people should jump steps, rather if there are too many steps. Kausek stated she is not sure but it might be a good idea to have more than one department review someones’ issues or concerns.
Dave Whittum stated he is opposed to posting RTC 07-217 to the City’s website as it would harm innocent people. Whittum stated he objects to ostracizing anyone for expressing their views or for any other reason. Whittum stated free speech is paramount, and posting this memo would have a chilling effect. Whittum stated this is really not about policy, rather it is about a bad memo. Whittum stated the City of Sunnyvale needs people who volunteer time for community affairs.
Whittum stated he personally knows the two commissioners who were called out in this report, and they are hard-working and enthusiastic members who diligently perform their work as commissioners. Whittum stated that RTC 07-217 admits that one commissioner had a valid concern and that the City violated the Open Meeting Act.
Whittum stated that Council needs to ask themselves how publishing RTC 07-217 on the Internet will affect the City’s ability to recruit additional board and commission members. Whittum urged Council to deny Alternative 16 and adopt Alternative 18 or 19, both of which would be acceptable. Whittum stated this is an embarrassment to the City and the City needs to stop escalating policy disagreements and turning them into personal smears. Whittum stated this is a bad report and the City is responsible for the report, should it appear on the Web.
Councilmember Moylan asked Whittum to imagine that a board or commission member goes through all six levels, and then they come to Council who in turn asks the city manager to investigate this item. The city manager investigates this item and the result is that everyone thinks this person is wrong and the information is made public. Considering this example, and based on Whittum’s previous comments, Councilmember Moylan stated it sounds as if Whittum would contend this situation would create an unfair smear against that person. Councilmember Moylan stated, once the board or commission member has escalated to the level of the City Council, it would appear that the City is obliged to make public the results of that investigation. Whittum explained that the City’s RTC 07-217 is a bad memo and Council is responsible for what happens with it. Councilmember Moylan stated he is more interested in the policy issue. Whittum stated he is speaking about the memo and has suggested that Alternative 19 would be an adequate way to pursue a policy. Councilmember Moylan stated Council should be able to deal with this item and inquired if Whittum is suggesting a study issue. Whittum stated he is not speaking about changing policy, he is before Council to speak about a memo that will harm people and the reputation of the City, and he is requesting that the memo be kept off the City’s Web site.
Whittum stated on June 19, 2007, Council voted to reconsider this memo at a later date. Whittum acknowledged that staff has included policy options, but whatever Council decides to do among those options, Whittum is requesting that Council adopt Alternative 18 which directs staff not to post RTC 07-217 to the Web site. Councilmember Moylan stated the goal is to ensure this situation does not happen again.
Bill Donnelly stated the reference to specific individuals in RTC 07-217 is inappropriate. Donnelly stated he would like to see the personal attacks stopped. Donnelly stated it is his opinion that the recommendations listed in the staff report increase the likelihood of small matters becoming large public matters. Donnelly also stated concerns over freedom of speech issues.
Jim Griffith, Chair of the Board of Library Trustees, speaking on his own behalf, stated he opposes Alternatives 9 and 11 because most chairs do not have enough experience to play a role in disciplinary action. Griffith stated he strongly supports Alternative 4 because commissioners should be held to the same level of responsibility and public exposure as Councilmembers. Griffith stated he is concerned over the removal of the RTC 07-217 from the Web site and also the actions that the Housing and Human Services Commission took on October 24, 2007, to redact from year-old minutes two speakers’ names along with the commission’s adoption of the policy of using first initials in the minutes.
Griffith stated when someone speaks at a public forum regarding public policy; who they are and what they said should not be anonymous, and in addition, when action is taken, results should not be hidden. Griffith stated commissioners are responsible for advising Council on policy and as such their actions – good or bad – should be made public.
Public hearing closed at 8:09 p.m.
Vice Mayor Spitaleri confirmed with City Attorney Kahn that when someone speaks on any issue at a Council meeting, it is a public forum and therefore, everything they say will be documented and is public information. Vice Mayor Spitaleri asked if within this forum, would individuals have the right to request that names are not added to a report, or does everything attached to their issue have to be made public. City Attorney Kahn stated, generally, when a request is made of the Council in a public forum, then that request and all information to that request is public. City Attorney Kahn stated in the course of an investigation, there may be information that may be considered confidential; however, that would be an unlikely and unusual occasion. In most cases, when a request is made for an investigation, the report comes back in the same forum and the names and report of what was done is public information.
Councilmember Hamilton asked City Attorney Kahn if the Housing and Human Services Commission is allowed to redact names from their own minutes. City Attorney Kahn stated the names were incorrectly redacted as that action was done without the authority of the city manager or city attorney, and the full names should be included in the minutes.
MOTION: Councilmember Hamilton moved, and Councilmember Howe seconded, to approve Alternatives 1, 4, 5, 6, 7, 9 (as modified), 10, 13, 13a, 14, 15
with
add Alternative 16
Alternative 1: Council approves maintaining existing policy governing the manner in which board and commission members are expected to communicate concerns regarding City operations or policy (as depicted by Attachment A). Reserve the City’s right to respond on a case-by-case basis to such concerns, but in general respond to verbal concerns verbally and to written concerns in writing.
Alternative 4: Apply existing policy regarding the investigation of Councilmembers (as outlined in the City’s Code of Conduct—see Attachment B) to board and commission members as well.
Alternative 5: Expand the list of those authorized to call for an investigation (currently limited to the mayor or full Council) to include the city manager and city attorney.
Alternative 6: Provide the results of investigations into alleged misconduct by board or commission members to the full Council (rather than just the mayor).
Alternative 7: Provide the results of investigations into alleged misconduct by board or commission members in the form of a RTC and agendize as “Information Only”. Include copies in staff’s normal distribution to the public of agendized information (i.e., make hard copies available to several public locations and post online. Route any RTC addressing investigation of board and commission members through the Office of the City Attorney for review of whether any information is exempt from disclosure (subject to redaction) based on privacy interests authorized under the Public Records Act. This is how RTC 07-217 was originally processed by staff).
Alternative 9: Allow lesser forms of discipline (counseling, verbal reprimands and written warnings) to be administered by board and commission chairs and/or the City Clerk
change to:
or their designee.
Allow written reprimands to be administered by the city manager and/or mayor. Provide copies of all written reprimands to the chair of the respective board or commission, the city clerk, the city manager, and the full Council in memo format.
Alternative 10: Eliminate current discretion as to whether to make public the administration of lower levels of discipline. Instead require that they by kept private to the degree allowed by law. Do not include written reprimands in packets for public meetings and do not publicize except as required under the Public Records Act.
Alternative 13: Require that any form of discipline involving formal censure, or affecting board or commission member standing or status (i.e., removal from office or removal of chairperson status), be imposed by a majority vote of at least a quorum of the Council at a noticed public meeting, and that such action be preceded by a RTC with supporting documentation.
Alternative 13a: Distribute hard copies in accordance with normal distribution of all other Reports to Council, including hard copies to numerous public facilities and posting online.
Alternative 14: Route any RTC addressing alleged misconduct by a board or commission member through the Office of the City Attorney for review of whether any information is exempt from disclosure (subject to redaction) based on privacy interests authorized under the Public Records Act.
Alternative 15: Revise the City’s Code of Conduct and Code of Ethics to be consistent in terms of policy dealing with board and commission counseling, discipline and investigative findings and recommendations.
Alternative 16: Post RTC to the City’s Web site. Do not redact name of individuals.
Councilmember Hamilton stated the board and commission members are advisors to Council and they should be held accountable for what they do and say. Councilmember Hamilton stated although she would have preferred that this issue was dealt with prior to coming to Council, it was brought to Council in a public setting and should be dealt with in the same manner. Councilmember Hamilton noted that the allegations made by the commissioner turned out to be true through the investigation, and that information is reflected in the staff report RTC 07-217. Councilmember Hamilton stated the policy regarding various levels of contact is an appropriate way to deal with concerns; however, she does not see a problem with a board or commission member quietly approaching the mayor or a Councilmember with a concern.
Councilmember Swegles made a friendly amendment to list all the names of those interviewed in the RTC 07-217 prior to posting. Councilmember Hamilton asked Assistant City Manager Walker if the report listed everyone that was interviewed. Assistant City Manager Walker stated to the best of his recollection, the report did list everyone interviewed by name.
Councilmember Hamilton and Howe accepted the friendly amendment.
Councilmember Moylan offered a friendly amendment to remove from Alternative 9 the section that would allow the city manager ability to submit written reprimands to board and commission members.
Councilmember Hamilton and Howe accepted the friendly amendment.
Councilmember Moylan stated that when something escalates to the level that a board or commission member needs to be reprimanded and/or disciplined, that should be handled by those who the board and commission members report to, which is Council, not staff.
Councilmember Moylan offered a friendly amendment to replace Alternative 1 with Alternative 2. Councilmember Moylan stated when a board or commission member has a concern about the chair, they should be able to go to Council or the vice chair. Councilmember Moylan stated he is persuaded by the argument that six steps are too cumbersome and a bit unreasonable, especially since four out of the six are staff members. Councilmember Moylan stated if this was unacceptable to the maker of the motion, he would also entertain the idea of a subcommittee made up of a couple of Councilmembers and board and commission chairs who would work out a new process.
Councilmember Hamilton stated she would prefer to leave Alternative 1 because within the investigation (RTC 07-217), there were some problems with staff and if a board or commission member has an issue they should talk with the chair (assuming there is not an issue with the chair) and then go up through the chain of command. Councilmember Hamilton stated if the board or commission member has an issue with the chain, they can contact the mayor who can send the issue back through the chain of command or decide to directly address the issue.
Councilmember Moylan stated the heart of this issue is that City staff members are not in the chain of command of board and commission members. Councilmember Moylan stated that his concern with Alternative 1 is that two different City departments (Office of the City Manager and the particular department of concern) are part of the chain of command of every board and commission member.
Councilmember Hamilton stated she does not agree that two departments are in the chain of command for boards and commissions. Councilmember Hamilton stated the way she proposed her motion, City departments would not be in the chain of command because they are not able to perform a reprimand. Councilmember Moylan stated that Alternative 1 speaks to raising a grievance and suggests going through the six-step process. Councilmember Hamilton stated board and commission members work with City staff a lot more than Council does, and having staff in the chain seems appropriate. Councilmember Moylan stated he will move on because it appears his amendment is not being accepted.
Assistant City Manager Walker clarified that the polic |