HomeMy WebLinkAboutMin 01-16-9756
MINUTES OF THE CITY COUNCIL
OF THE CITY OF UKIAH -January 16, 1997
The City Council convened in a regular adjourned meeting, of which the agenda was legally noticed
and posted, at 8:07 a.m. in the Civic Center Council Chambers, 300 Seminary Avenue, Ukiah,
California. Roll was taken and the following Councilmembers were PRESENT: Councilmembers
Chavez, Ashiku, Kelly, Mastin, and Mayor Malone. ABSENT: None. Staff Present: Public Utilities
Director Barnes, Finance Director Elton, Assistant City Manager Harris, City Manager Horsley, City
Attorney Rapport, and Recording Secretary Giuntoli.
2. AUDIENCE COMMENTS ON NON-AGENDA ITEMS
No one came forward.
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SPECIAL ORDER OF BUSINESS
a. Legal Workshop
City Attorney Rapport reviewed the Brown Act, stating that both the Brown Act and Public Records
Act are reflections of State policy that the public's business should be conducted in public, and that
the public should have access to public information. The main principle of the Brown Act is that all
meetings of a legislative body are open to the public, and all deliberations of the body should be
conducted in public, unless there is a specific exception written into the law. When courts construe
the Brown Act, they narrowly construe the exceptions which allow the body to meet in closed
session, and liberally construe the provisions which require the body to conduct the deliberations in
public.
The Brown Act, which was substantially rewritten two years ago, requires there be an agenda posted
at least 72 hours prior to a meeting in a place which is acceptable to the general public, and it must
adequately describe every item that will be discussed at that meeting. The Council may not discuss
or take action on items not listed on the agenda, and the public present at the meeting must be
allowed to comment on both agenda and non-agenda items. Councilmembers are allowed to briefly
respond to statements made or questions posed, upon their own initiative ask questions for
clarification, make a brief announcement, or offer a report on their own activities. However, any
portion of their report that requires action should be agendized for the next meeting.
The public may also have the oppodunity to comment on or pull an item from the Consent Calendar.
Councilmembers are allowed to register a vote of no on a single item of the Calendar, but approve
the whole if they so desire. Reasonable time limits may be imposed, at the discretion of the
presiding officer, on the audience comments for both agenda and non-agenda items.
The Brown Act provides that the legislative body can enter into a closed session; however, there are
cedain narrowly drawn criteda for such. Closed sessions may be held regarding personnel matters
relative to employer/employee labor negotiations, or the consideration of charges or disciplinary
action against individual employees. In the City of Ukiah there is a Civil Service Board, and a Civil
Service Ordinance and a disciplinary Resolution, that determine action relative to such matters and
in the event of an appeal. Progress in a disciplinary matter should be held in closed session to
protect the employee's privacy rights.
The Public Records Act states that all information is public unless there is a specific exemption
provided in the law. There is a specific exemption for personnel, medical, and similar files, the
disclosure of which would constitute an unwarranted invasion of personal privacy. A document
relating to a specific disciplinary matter, involving a specific employee, would fall within the personnel
exemption and could be kept confidential. Preliminary drafts and memoranda which are not intended
to become a permanent part of the City record may be excluded from the Public Records Act;
however, any memorandum that is retained by the City in the normal course of business could be
subject to disclosure if someone requests it, unless it falls under an exception.
At any time three Councilmembers are gathered, it constitutes a quorum for a meeting, and is
subject to all of the Brown Act requirements of the posting of an agenda, the tape-recording of the
proceedings, and the public's right to attend. No violation of the Brown Act would occur in the
instance of "car-pooling," in which three or more Councilmembers travel together to a cedain
destination. In such an instance, the conversation must remain purely of a social nature. All
discussion in any decision-making process must be public; instances such as staff polling Council's
opinion individually on an item to broker a consensus are considered serial meetings and are
prohibited. The pending litigation exception allows the legal counsel to meet with the Council within
closed session, but only where it is in anticipation of specific litigation, or threat of litigation against
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January 16, 1997
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the public agency, or actually a pending lawsuit. Circumstances justifying the closed session must
be publicly announced at the meeting, and the legislative body must vote by motion to enter into
closed session for that purpose. None of the other exceptions to the Brown Act require a motion,
except for that particular one.
Brown Act requirements apply to the governing body of a local agency and its committees,
commissions, or boards, whether permanent or temporary, advisory or decision-making, which have
been created by charier, ordinance, resolution, or formal action of the legislative body. Committees
or boards which receive funds from the local agency and include a member from the legislative body
sitting on its board, appointed to the position by the legislative body, also fall under the Brown Act
requirements.
Procedures of conduct of City Council meetings are contained in a resolution previously adopted by
the Council, which basically states that Robert's Rules of Order shall apply, except where those rules
are changed by the procedures adopted by the City Council. The Council sits primarily in two
capacities, for which two different sets of rules apply. One capacity is as a legislative body which
makes rules or sets policies that will apply in the future, which is called quasi-legislative action. The
other capacity is referred to as quasi-judicial, which is similar to a court. In a quasi-legislative action,
the Council is acting on a specific permit or application by an individual and resolving an issue
peculiar to that specific situation. The most typical examples of a quasi-judicial action are appeals
from the Planning Commission on use or site development permits. Any individual entitlements that
are being appealed or applied for to the Council necessitate them acting as a court, and due process
considerations apply. The proceeding must be fair and impartial, the Council's decision must be
based on the evidence presented during the hearing, and formal public notice to the affected
property owners is required.
Site visitation by the Councilmembers is required in a quasi-judicial action. The purest way to
conduct the process and make the individual Councilmember's viewing of the site a part of the
record is to convene and conduct a portion of the meeting on the site; the public would be invited
and could offer their comments. However, the practicing rule is that each individual Councilmember
should, on their own, view the site prior to the meeting, but not participate in discussion or receive
any evidence while they are there, and disclose for the record at the regular Council meeting that
they have viewed the site. With quasi-judicial matters, the Council makes their decision based solely
on information presented during the hearing itself, and does not converse outside of the hearing with
the proponents or opponents of a project after the item is listed on the agenda and prior to the
hearing.
Under the City's adopted resolution regarding procedures of conduct, an abstention during voting
is counted as a yes vote. If any of the Councilmembers have a conflict relative to an issue, they are
required to disclose the nature of the conflict for the record, and then are considered to be absent
from the meeting for that issue. In that situation, their vote is not counted. Otherwise, the
Councilmembers have a duty to vote, and must not use an abstention as a method to avoid voting
on an issue.
Conflict of interest is a general term relating solely to financial interests that refers to specific rules
created by statute or by the couds, and prohibits Councilmembers from participating in or attempting
to influence a decision which could have a foreseeable and material financial effect on a
Councilmember that is different from the effect on the public general. The Fair Political Practices
Commission (FPPC) has developed a lengthy set of regulations in an attempt to provide guidance
and understanding of the conflict of interest statement. Legally, simply being interested in a subject
or individual does not constitute a conflict of interest or the necessity for leaving a meeting and
refraining from the discussion or vote.
City Attorney Rapport referred the Council to the written information he had prepared relative to
conflict of interest, suggested they become aware of their reporting obligations, and offered to
answer any questions that may arise relating to the Fair Political Practices Act.
Councilmember Ashiku left the meeting at 9:08 a.m. in order to keep a previous appointment.
Mr. Rapport continued the workshop by advising that Councilmembers are prohibited from acquiring
real property within the Redevelopment Area, with the exception of a principal residence or the
acquisition of properly to replace business property which they have used for three years. If a
Councilmember owns properly within the Redevelopment Area prior to being elected to the Council,
they must disclose said interests not only on the proper FPPC reporting forms but also make specific
disclosure during the public meeting of both the City Council and Redevelopment Agency so that it
is reflected in the Minutes of that meeting.
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January 16, 1997
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Any source of income, which provides an amount of $250 or more, that a Councilmember has
dedved dudng the previous 12 month period prior to considering a decision that affects that source
of income, be it person or business entity, must be disclosed. Individual Councilmembers, and the
Council as a body, are prohibited from approving a contract in which they have a direct or indirect
financial interest. It is not sufficient to "conflict out;" the contract actually cannot be approved. There
is also a court-created conflict of interest standard which is broader than the Fair Political Practices
Act and looks at any financial interest that might compromise a Councilmember's impartiality or duty
of loyalty to the City.
City Manager Horsle¥ suggested that since it had been necessary for Councilmember Ashiku to
leave the meeting, the workshop be continued to a time when all Councilmembers could again be
present.
City Attorney Rapport suggested the Council review on their own the materials on Gifts and Liability
for Public Entities.
Councilmember Mastin applauded City Attorney Rapport's many years of service to the City, and
clarified that Mr. Rapport's position was as attorney directly working for the City Council.
4. ADJOURNMENT
MIS KellylMastin to adjourn to the regular scheduled meeting of February 5, 1997 at 6:30 p.m.,
carried by an all AYE voice vote of the Councilmembers present.
There being no fudher business, the meeting was adjourned at 9:20 a.m.
Mar'g/~Giunte~l'i, Recording Secretary
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January 16,1997
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