REVISING COUNCIL POLICY MANUAL - Vision Internetcms6ftp.visioninternet.com/Novato/Agendas/Pdfstaffreports/Cc100416_I-3.pdfcan take to discuss whether to place an item on a future agenda.

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STAFF REPORT

MEETING

DATE: October 4, 2016

TO: City Council

FROM: Jeffrey A. Walter, City Attorney

SUBJECT: REVISING COUNCIL POLICY MANUAL

REQUEST

Consider revising Section 3.02(f) of the City Council’s Policy Manual to substitute the three-step

process with a two-step process for placing items on a future agenda and requiring

Councilmembers who wish to have the Council consider placing an item on a future agenda to

provide advance, written notice of that intention to the City Manager so that the request can be

placed on the agenda of the meeting at which the request will be considered by the full Council.

RECOMMENDATION

Revise Section 3.02(f) of the City Council’s Policy Manual.

BACKGROUND

Under the Ralph M. Brown Act (“Brown Act”),

“. . . a member of a legislative body, or the body itself, subject to rules or

procedures of the legislative body, may… take action to direct staff to place a matter of

business on a future agenda.”

Government Code Section 54954.2(a)(2).

Without the action being agendized, the Brown Act allows a Council to take action to place an

item on a future agenda, provided that in doing so, the Council follows its own rules or

procedures. The Brown Act does not impose any limitation on the amount of time the Council

can take to discuss whether to place an item on a future agenda. Nor does the Brown Act

expressly prohibit the discussion of substantive issues that may be implicated by the item itself

or by placing the item on a future agenda.

The City Council’s current rules and procedures applicable to placing an item on a future agenda

provide two opportunities for Councilmembers who may wish to agendize a matter on a future

agenda. First, at the Council’s quarterly meeting, each Councilmember has the right to propose

that two items be agendized for a future meeting. If a majority of the Council agrees to agendize

one or both of the suggested items, the item(s) will appear on a future agenda, but only for the

purpose of deciding whether to advance the item(s) to a third meeting for which staff will

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prepare a full analysis of the matter. At the second meeting for which the item is agendized, staff

is not required to prepare substantial information or provide analysis or recommendations for the

Council.

The second opportunity a Councilmember has to agendize an item for a future agenda is during

the first business meeting of each month. The same procedures for adding an item to a future

agenda that apply during the Council’s quarterly meetings also apply to adding an item to a

future agenda during the Council’s first business meeting of each month, except that the

Council’s rules currently provide that (a) the discussion during the first business meeting of each

month pertaining to adding an item to a future agenda should not take more than 3 minutes and

(b) a Councilmember cannot propose to place more than one item on a future agenda.

The City has now received two cease and desist letters from lawyer Edward E. Yates. In each of

those letters he contends that on December 15, 2015, in discussing adding items to a future

agenda, the Council violated its own rules when those discussions exceeded three minutes in

length. He also claims that in making substantive comments about those items, the Council

violated the Brown Act.

The recent case of Cruz v. City of Culver City (“Cruz”) answers Mr. Yates’ Brown Act claims.

In that case, arguments similar to those raised by Mr. Yates were rejected by the court. In Cruz,

the city had imposed parking restrictions in 1982 on Farragut Drive when residents complained

that parishioners of a nearby church “jammed” their street with parking during church services.

In 2004, the city established preferential parking zones (or districts) throughout the city, and

included Farragut Drive as one of those zones. Later, the city adopted regulations governing

parking in those zones. In 2014, the church’s attorney sent a letter to the city requesting

information about the procedures to be followed in seeking a change to those regulations as they

applied to Farragut Drive. The city staff responded that the city was unable to react to such a

request because there was no avenue available for non-residents to appeal the parking

restrictions. The church then sent a letter to councilmember Weissman complaining about the

staff’s response and asking to address the council about the “onerous parking restrictions.”

At a subsequent Culver City council meeting at which the council was acting to receive and file

correspondence, the church’s letter was brought up by councilmember Weissman. Following a

six-minute discussion between Weissman, the mayor, two other councilmembers and the city’s

engineer, the council agreed to agendize the matter for a subsequent council meeting. The city

was sued by plaintiffs who claimed that this discussion included “something substantive and

substantial,” all in violation of the Brown Act because the discussion had not been previously

agendized. The court disagreed.

The Culver City Council’s discussion morphed from a proposal to agendize either a general

discussion about the appeal process or the church’s appeal in particular, to agendizing the

reconsideration of the very existence and nature of the district itself. And during this colloquy,

council members and staff offered their opinions as to the merits of whether the church had a

right to appeal, inquired as to whether agendizing the issue would be academic or adversely

affect appeal rights due to the passage of time, expressed their opinions as to whether parking

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districts should be subject to change and then agendized a discussion about changing the district,

implicitly rejecting agendizing a discussion about the church’s appeal.

This is the type of discussions councils must be allowed to have in order to make informed

decisions, even as to whether an issue should be agendized for further and deeper discussions in

the future. This is, in essence, what the Cruz court held. It stated that these discussions,

statements of opinions, and statements of positions were not “substantive or substantial” and

were permissible under the Brown Act.

With respect to Mr. Yates’ claims regarding the three-minute limitation, it is proposed that the

Council’s policies be revised to eliminate that limitation (even though as currently written it is

only advisory in nature).

Attached, please find Section 3.02(f) of the Council’s Policy Manual. Proposed changes to that

section are shown in red-line format. The major changes which are being proposed are as

follows:

1. The current three-step procedure to agendize an item on a future agenda is replaced with

a two-step procedure.

2. At the first Council meeting (“first” meeting) (be it the Council’s quarterly meeting or the

first business meeting of each month), a Councilmember has the right to request that any

number of items be placed on a future agenda.

3. The limitation of the number of agenda items a Councilmember may request be placed on

future agendas is eliminated.

4. Seven calendar days before the first meeting, a Councilmember who wishes the Council

to consider placing items on the agenda for a future meeting (“second” meeting) must

submit to the City Manager a written request identifying those items.

5. That request shall be added to the agenda for the first meeting, and the written request

will be made part of that meeting’s agenda packet.

6. The three-minute recommendation applicable to the first business meeting of each month

is eliminated.

7. If at the first meeting a majority of the Council agrees to place an item on a future

agenda, in doing so the Council must also specify (a) the nature of the matter to be

agendized, (b) the amount of time and resources the staff is to spend in preparing the item

for the second meeting, (c) the nature of the notice to be given in advance of the second

meeting, and (d) whether the matter is to be agendized for discussion only or for action or

for both.

Additional matters which the Council may wish to address in discussing this rule revision are:

A. Whether to place a numerical limit on the number of items a Councilmember may

propose be added to a future agenda.

B. Whether to place a limit on the number of pages or other materials a Councilmember may

wish to accompany his/her request to agendize an item for a future agenda. This

limitation would apply to the information/materials submitted for the Council’s

consideration at the first meeting.

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On a going forward basis, by revising the Council’s Policy Manual in the manner recommended

herein, the issues raised by Mr. Yates will be rendered moot. This is so because the item sought

to be placed on a future agenda will actually appear on the agenda for the first meeting, thus

giving the Council – at that first meeting - full reign to discuss the issue as long as the Council is

interested in discussing it.

PURPOSE OF THIS REPORT

The purpose of this report is to explain the rationale for revising the Council’s Policy Manual in

the fashion indicated.

RECOMMENDATION

It is recommended that the Council approve the revisions to its Policy Manual as set forth in the

attached exhibit.

FISCAL IMPACT

There should be no fiscal impacts resulting from the adoption of the revisions.

ATTACHMENTS

1. Section 3.02(f) of the City Council’s Policy Manual (redline changes shown)

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(f) Scheduling Agenda Items.

The following items shall be routinely scheduled by the City Clerk on a future agenda: 1) items which are

the result of an application submitted to the City for a permit, license or discretionary approval; 2) items

which relate to the approval of budget appropriations, amendments to the budget, and other routine

expenditure requests; 3) items which are directly related to one or more of the City Council’s current

Strategic Plan Goals and Objectives; 4) items which require immediate action by the City Council due to

an emergency, the request of another governmental agency, or other matter which in the judgment of

the City Manager or City Attorney would disadvantage the City if a delay were to occur; and 5) such

other routine, generally non-substantive matters determined by the City Clerk, City Manager or City

Attorney to be appropriate for immediate consideration by the Council.

All other requests for items which do not meet these criteria shall be considered by the City Council in

either of the following two ways:

1. Quarterly Meetings: At a meeting held quarterly to consider significant agenda items, the City Council

will forecast three months ahead to determine if and when an item not meeting the above criteria will

be considered by the City Council.

a. At this meeting, a Councilmember has the right to request up to two items for consideration;

provided, however, that at least seven calendar days before the date of the quarterly meeting at which

the Councilmember intends to make such a request, that Councilmember has identified - in writing

timely delivered to the City Manager - the item(s) which s/he desires to place on a future agenda and

when s/he wishes the item to be agendized. That written request shall be made part of the quarterly

meeting’s agenda packet and the agenda for that meeting shall reflect the name(s) of each

Councilmember requesting consideration of placing an item on a future agenda and the description of

the proposed item(s). Failure to timely request, in writing, consideration of an item for placement on a

future agenda pursuant to this Policy shall waive a Councilmember’s right to request, during the

quarterly meeting in question, that that item be placed on a future agenda.

b. Three votes are needed to advance the item, which will be added to a future agenda at a time

determined by a majority of the Council. At the same time that a majority of the Council places an item

on a future agenda, the Council shall also specify (a) the nature of the matter to be considered at the

meeting held to address the item, (b) the amount of time and resources the staff is authorized to spend

in preparing the item for Council consideration, (c) the nature of the notice staff should provide in

advance of the meeting at which the item will be considered and to whom that notice should be

provided, and (d) whether the item should be agendized for discussion and/or possible Council

action.for discussion of whether the Council desires to allocate staff resources toward providing a full

staff analysis/report on the matter at a subsequent meeting.

2. Regular Meetings:

a. At the first business meeting of the month, a Councilmember has the right to request that can bring

forward no more than one agenda item be placed on the agenda for consideration at a future Council

meeting; . provided, however, that at least seven calendar days before the date of the meeting at which

the Councilmember intends to make such a request, that Councilmember has identified - in writing

timely delivered to the City Manager - the item which s/he desires to place on a future agenda and

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when s/he wishes the item to be agendized. That written request shall be made part of the first

business meeting’s agenda packet and the agenda for that meeting shall reflect the name(s) of each

Councilmember requesting consideration of placing an item on a future agenda and the description of

the proposed item. Failure to timely request, in writing, consideration of an item for placement on a

future agenda pursuant to this Policy shall waive a Councilmember’s right to request, during the first

business meeting in question, that that item be placed on a future agenda.

b. The request to place a proposed agenda item on a future agenda shall be addressed during raised at

the “Councilmember/City Manager Reports” section of the meeting. and should not take more than

three minutes.

c. Three votes are needed to advance the item, which will be added to a future agenda at a time

determined by a majority of the Council. At the same time that a majority of the Council places an item

on a future agenda, the Council shall also specify (a) the nature of the matter to be considered at the

meeting held to address the item, (b) the amount of time and resources the staff is authorized to spend

in preparing the item for Council consideration, (c) the nature of the notice staff should provide in

advance of the meeting at which the item will be considered and to whom that notice should be

provided, and (d) whether the item should be agendized for discussion and/or possible Council actionfor

discussion of whether the Council desires to allocate staff resources toward providing a full staff

analysis/report on the matter at a subsequent meeting.

Councilmembers will not encourage members of the public, in lieu of this procedure, to pressure the

City Council to place items on the agenda through email campaigns or mass demonstrations at Council

meetings.

(g) Intentionally left blank. Expedited Agenda Process.

If a Councilmember has made a request to add an item to a future agenda in one of the methods shown

in F1 or F2, above, and, if the item is deemed to be straightforward and manageable, will not require

any new work or independent analysis to be performed by staff and, in the aggregate, does not require

more than one hour of staff time, it may be agendized for Council deliberation and decision without

undergoing the second step of the process. The determination of whether an item meets these criteria

will be made by the City Manager, taking into consideration his knowledge of the relative complexity of

various issues. Examples of this type of item may be presentations from outside groups and letters of

support or opposition.

(h) Request to Move an Agenda Item.

Councilmembers may request that one item be moved to a different agenda if they will be absent from

a particular meeting, and only in the case where there is no time sensitivity for the item and with no

pressure being put on staff in making the request. The request to move an item may be made once in a

fiscal year. If staff does not honor the request, the Councilmember may submit a brief written

communication to be read into the official record or use teleconferencing to participate remotely. If the

request is not honored, the Councilmember may make an additional request during that fiscal year.

(i) Requests for Agenda Items from Members of the Public. If a member of the public requests that an

item be put on the agenda during Public Comment time, the Council will not respond to this request

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immediately at the Council meeting, but may choose to bring it up during Councilmember Reports as an

item for consideration using one of the two opportunities described above.

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