Alameda Sun: Unchecked Executive Privilege at City Hall

Alameda Sun: Unchecked Executive Privilege at City Hall

“Unchecked Executive Privilege at City Hall”
Alameda Sun, January 30, 2020

By Irene Dieter

So authoritarian.  An effort is underway to amend the enforcement provision of Alameda’s Sunshine Ordinance, its open-government law.  The change would grant the city council the sole right to police itself when a violation occurs, unless the matter is taken to court.

Alameda’s Open Government Commission was set up as a quasi-judicial body to review cases of government overreach.  It is charged with overseeing and enforcing the Sunshine Ordinance, a local version of the state’s Brown Act governing public meetings, public records, and the public’s right to know what’s going on inside government.  The commission is tasked with making sure the city is adhering to the Sunshine Ordinance.

In November 2018, the Open Government Commission ruled that a city council agenda item had not been properly noticed because the council had made a decision that went beyond the scope of its public notice, noting too that the council had hastily moved forward with a second final reading of a new ordinance even though a Sunshine Ordinance complaint had been filed.  The commission instructed the city to correct the original agenda notice and hear the issue again at its next city council meeting.  It was the first time the Open Government Commission had exercised its authority.

A couple members of the city council said they felt slighted that another body had the authority to make any council action “null and void” until an asserted problem was rectified—a problem they did not believe existed here.  The issue dragged on needlessly for months but eventually was corrected.

The city now asserts that the Sunshine Ordinance needs to be amended because a non-legislative body cannot take legislative action, even when the city council has granted the body the authority to do so.  The city attorney suggests that the Open Government Commission should merely make recommendations to the city council to cure and correct alleged wrongdoing.

The proposed change would essentially give the city council executive privilege to decide itself whether it had violated the Sunshine Ordinance.

Bryan Schwartz, a civil rights attorney and chair of the Open Government Commission, strongly opposed the change at its December hearing.  The Sunshine Ordinance is “a positive thing, a strong showing of democracy,” stated Schwartz.  This substantive change is “an attempt to take away the teeth of the commission.”  Referring to their ruling two years ago Schwartz said, “We didn’t weigh in on the merits of the underlying resolution of the council, it was strictly about process.”  The commission unanimously rejected the proposed change.

At the very least, in the future, the council should suspend actions when a Sunshine Ordinance complaint is pending.  A postponement, particularly of the second final reading of an ordinance, would avoid the need to declare actions null and void.

The Open Government commission meets twice a year and whenever a Sunshine Ordinance complaint has been filed.  Each city councilmember appoints a volunteer commissioner, and the city council can remove commissioners at any time for any reason.  Without the enforcement provision, “there is no reason for the commission,” said Schwartz.

The local enforcement provision saves people from having to take recourse in the courts, which can be costly and can drag on for months.  It is a way of holding the city accountable for open government violations other than through the courts or elections.

The Open Government Commission should retain its authority to compel adherence to the Sunshine Ordinance.

On February 4, at 7:00 p.m., the city council will decide the issue at city hall.