Gilroy Municipal Code Art. II Public Access to Meetings

Whenever in this chapter the following words or phrases are used, they shall have the following meanings:

“City”

shall mean the City of Gilroy.

“Meeting”

shall mean any of the following:

(1)

A congregation of a majority of the members of a policy body at the same time and place to discuss or deliberate city business (whether a collective concurrence is reached or not, as that term is used in Wolfe v. City of Fremont (2006) 144 Cal. App.4th 533);

(2)

A series of gatherings, each of which involves less than a majority of a policy body, to hear, discuss or deliberate upon any item that is within the subject matter jurisdiction of the city, if the cumulative result is that a majority of members has become involved in such gatherings (whether a collective concurrence is reached or not, as that term is used in Wolfe v. City of Fremont (2006) 144 Cal. App.4th 533); or

(3)

Any other use of personal intermediaries or communications media that could permit a majority of the members of a policy body to become aware of an item of business and of the views or positions of other members with respect thereto, and to negotiate consensus thereupon (whether a collective concurrence is reached or not, as that term is used in Wolfe v. City of Fremont (2006) 144 Cal. App.4th 533);

(4)

“Meeting”

shall not include any of the following:

a.

Individual contacts or conversations between a member of a policy body and another person that do not convey to the member the views or positions of other members upon the subject matter of the contact or conversation and in which the member does not solicit or encourage the restatement of the views of the other members;

b.

The attendance of a majority of the members of a policy body at a regional, statewide or national conference, or at a meeting organized to address a topic of local community concern and open to the public; provided, that a majority of the members refrains from using the occasion to collectively discuss the topic of the gathering or any other business within the subject matter jurisdiction of the city;

c.

The attendance of a majority of the members of a policy body at a purely social, recreational or ceremonial occasion other than one sponsored or organized by or for the policy body itself; provided, that a majority of the members refrains from using the occasion to discuss any business within the subject matter jurisdiction of the policy body;

d.

The attendance of a majority of the members of a policy body at an open and noticed meeting of a standing committee of that body; provided, that the members of the policy body who are not members of the standing committee attend only as observers.

e.

“Policy bodies”

shall mean the city council, appointed subcommittees of the city council except for ad hoc subcommittees appointed for a single purpose on a temporary basis, commissions, boards, and city-created task forces. Policy bodies shall not include a committee that consists solely of employees of the City of Gilroy; or

f.

Electronic mail exchanged between members of a policy body and/or city staff, exclusively through the use of those members’ city email addresses, so long as such electronic mail is subject to inspection under section 17A.20(k). Notwithstanding the foregoing sentence, such email exchanges shall not violate the Ralph M. Brown Act.

(Ord. No. 2008-11, 11-17-2008)

All meetings of any policy body shall be open and public, and governed by the provisions of the Ralph M. Brown Act (Government Code Section 54950 et seq.) and of this chapter. In case of inconsistent requirements under the Brown Act and this chapter, the requirement which would result in greater or more expedited public access shall apply.

(Ord. No. 2008-11, 11-17-2008)

(a) At least seventy-two (72) hours before a regular meeting, a policy body shall post an agenda containing a meaningful description of each item of business to be transacted or discussed at the meeting. Agendas shall specify for each item of business the proposed action or a statement the item is for discussion only. In addition, a policy body shall post a current agenda on the city’s internet website at least seventy-two (72) hours before a regular meeting.

(b) At least seven (7) calendar days before a regular city council meeting, a preliminary agenda shall be posted containing a meaningful description of each item of business anticipated at the time of posting the preliminary agenda to be transacted or discussed at the meeting. These agendas shall specify for each item of business the proposed action or a statement the item is for discussion only. In addition, the preliminary agenda shall be posted on the city’s internet website at least seven (7) calendar days before the regular city council meeting. Staff reports prepared and ready at the time of posting of the preliminary agenda may also be posted to the website.

(c) A description should be brief, concise and written in plain, easily understood English. It shall refer to any explanatory documents that have been provided to the policy body in connection with an agenda item, such as correspondence or reports. Such documents shall be made available for public inspection and copying at a location indicated on the agenda during normal office hours.

(d) The agenda shall specify the time and location of the regular meeting and shall be posted at locations that are freely accessible to members of the public.

(e) No action or discussion shall be undertaken on any item not appearing on the posted agenda, except that members of a policy body may respond to statements made or questions posed by persons exercising their public testimony rights, to the extent of asking a question for clarification, providing a reference to staff or other resources for factual information, or requesting staff to report back to the body at a subsequent meeting concerning the matter raised by such testimony.

(f) Notwithstanding subsection (e) of this section, the policy body may take action on items of business not appearing on the posted agenda under any of the following conditions:

(1) Upon a determination by a majority vote of the body that an accident, natural disaster or work force disruption poses a threat to public health and safety.

(2) Upon a good faith, reasonable determination by a two-thirds vote of the body, or, if less than two-thirds of the members are present, a unanimous vote of those members present, that (A) the need to take immediate action on the item is so imperative as to threaten serious injury to the public interest if action were deferred to a subsequent special or regular meeting, or relates to a purely commendatory action, and (B) that the need for such action came to the attention of the body subsequent to the agenda being posted as specified in subsection (a) of this section.

(3) The item was on an agenda posted pursuant to subsection (a) of this section for a prior meeting of the body occurring not more than five calendar days prior to the date action is taken on the item, and at the prior meeting the item was continued to the meeting at which action is being taken.

(4) Upon a determination by a majority vote that staff has demonstrated good cause to present documentation at a meeting that was not made available seventy-two (72) hours in advance on the city website in accordance with section 17A.10(c).

(g) Each policy body shall ensure that notices and agendas for regular and special meetings shall include the following notice:

(h) Each agenda of a policy body covered by this chapter shall include the address, area code and phone number, fax number, email address, and contact person for the open government commission. Information on how to obtain a free copy of this chapter shall be included on each agenda.

(Ord. No. 2008-11, 11-17-2008)

(a) Any public notice that is mailed, posted or published by a city department, task force, agency or commission to residents residing within a specific area to inform those residents of a matter that may impact their property or that neighborhood area shall be brief, concise and written in plain, easily understood English.

(b) The notice should inform the residents of the proposal or planned activity, the length of time planned for the activity, the effect of the proposal or activity, and a telephone contact for residents who have questions.

(c) If the notice informs the public of a public meeting or hearing, then the notice shall state that persons who are unable to attend the public meeting or hearing may submit to the city, by the time the proceeding begins, written comments regarding the subject of the meeting or hearing, that these comments will be made a part of the official public record, and that the comments will be brought to the attention of the person or persons conducting the public meeting or hearing. The notice should also state the name and address of the person or persons to whom those written comments should be submitted.

(Ord. No. 2008-11, 11-17-2008)

When notice is given, as provided in this chapter, by public policy or advisory bodies, members of the public may submit statements and/or comments regarding any item on those bodies’ meeting agendas; those statements or comments shall become public record, regardless of whether their authors are present when the item at issue is discussed. Statements or comments shall be subject to review and consideration by those bodies if submitted before or during the hearing on the item.

(Ord. No. 2008-11, 11-17-2008)

In addition to the brief general description of items to be discussed or acted upon in open and public session, the agenda posted pursuant to Government Code Section 54954.2, any mailed notice given pursuant to Government Code Section 54954.1 and any call and notice delivered to the local media and posted pursuant to Government Code Section 54956 shall specify and disclose the nature of any closed sessions by providing all of the following information:

(1) With respect to a closed session held pursuant to Government Code Section 54956.7:

The space shall be used to specify the number of persons whose applications are to be reviewed.

(2) With respect to every item of business to be discussed in closed session pursuant to Government Code Section 54956.8:

The space under “Property” shall be used to list an address, including cross streets where applicable, or other description or name which permits a reasonably ready identification of each parcel or structure subject to negotiation. The space under “Person(s) negotiating” shall be used to identify the person or persons with whom negotiations concerning that property are in progress. The spaces under “Under negotiation” shall be checked off as applicable to indicate which issues are to be discussed.

(3) With respect to every item of business to be discussed in closed session pursuant to Government Code Section 54956.9, either:

or:

The space under “Existing Litigation” shall be used to specifically identify a case under discussion pursuant to Government Code Section 54956.9(d)(1) including the case name, court, and case number, unless the identification would jeopardize the city’s ability to effectuate service of process upon one (1) or more unserved parties, in which instance the space in the next succeeding line shall be checked, or unless the identification would jeopardize the city’s ability to conclude existing settlement negotiations to its advantage, in which instance the space in the next succeeding line shall be checked. If the closed session is called pursuant to Government Code Section 54956.9(d)(2), (3) or (4), the appropriate space shall be checked under “Anticipated Litigation” to indicate the city’s anticipated position as defendant or plaintiff respectively. If more than one (1) instance of anticipated litigation is to be reviewed, space may be saved by entering the number of separate instances in the “As defendant” or “As plaintiff’ spaces or both as appropriate.

(4) With respect to every item of business to be discussed in closed session pursuant to Government Code Section 54957, either:

or:

(5) With respect to every item of business to be discussed in closed session pursuant to Government Code Section 54957.6, either:

Where renegotiating a memorandum of understanding or negotiating a successor memorandum of understanding, the name of the memorandum of understanding. In case of multiple items of business under the same category, lines may be added and the location of information may be reformatted to eliminate unnecessary duplication and space, so long as the relationship of information concerning the same item is reasonably clear to the reader. As an alternative to the inclusion of lengthy lists of names or other information in the agenda, or as a means of adding items to an earlier completed agenda, the agenda may incorporate by reference separately prepared documents containing the required information, so long as copies of those documents are posted adjacent to the agenda within the time periods required by Government Code Sections 54954.2 and 54956 and provided with any mailed or delivered notices required by Government Code Section 54954.1 or 54956.

(Ord. No. 2014-09, § 1, 8-4-2014)

Each agenda item for a policy body covered by this chapter that involves existing litigation shall identify the court, case number, and date the case was filed on the written agenda. For each agenda item for a group covered by this chapter that involves anticipated litigation, the city attorney’s office or the policy body shall disclose at any time requested and to any member of the public whether such anticipated litigation developed into litigation and shall identify the court, case number, and date the case was filed.

(Ord. No. 2008-11, 11-17-2008)

(a) Agendas of meetings, meeting packets, and any other documents on file with the clerk of the policy body in connection with a matter anticipated for discussion or consideration at a public meeting shall be made available to the public for inspection and copying at the office of the policy body before the hearing and be available to the public in sufficient quantities at the hearing commensurate with the anticipated needed number of copies that will be requested by people attending the hearing. However, this disclosure need not include any material exempt from public disclosure under this chapter.

(b) Records which are subject to disclosure under subsection (a) of this section and which are intended for distribution to a policy body prior to commencement of a public meeting shall be made available for public inspection and copying upon request prior to commencement of such meeting, whether or not actually distributed to or received by the body at the time of the request.

(c) At the same time any regular meeting agenda is posted, city staff shall also post on its internet website a complete set of all documents provided to the policy body in anticipation of such regular meeting. However, this disclosure need not include any material exempt from public disclosure under this chapter. City staff shall not provide any nonexempt documents to a policy body at a regular meeting unless those documents were posted to the city’s website at least seventy-two (72) hours earlier, unless a majority of the members of the policy body specifically approves the submission of such belatedly provided documents following a showing by staff of good cause at the regular meeting that justifies waiving of this internet posting requirement. Records which are subject to disclosure under subsection (a) of this section and which are distributed during a public meeting but prior to commencement of their discussion shall be made available for public inspection prior to commencement of, and during, their discussion.

Records which are subject to disclosure under subsection (a) of this section and which are distributed during or following their discussion at a public meeting shall be made available for public inspection immediately or as soon thereafter as is practicable.

(d) A policy body may charge a duplication fee as may be set from time to time by the city council for a copy of a public record prepared for consideration at a public meeting. Neither this section nor the California Public Records Act (Government Code Section 6250 et seq.) shall be construed to limit or delay the public’s right to inspect any record required to be disclosed by that act, whether or not distributed to a policy body.

(Ord. No. 2008-11, 11-17-2008)

A policy body may, but is not required to, hold closed sessions on items within the subject matter jurisdiction of the policy body:

(1) With the chief of police, or their designated law enforcement representatives, on matters posing a threat to the security of public buildings or a threat to the public’s right of access to public services or public facilities.

(2) To consider the appointment, employment, evaluation of performance, dismissal or discipline of a city employee, if the policy body has the authority to appoint, employ, or dismiss the employee, or to hear complaints or charges brought against the employee by another person or employee unless the employee complained of requests a public hearing. The body may exclude from any such public meeting, and shall exclude from any such closed meeting, during the comments of a complainant, any or all other complainants in the matter.

(3) Based on advice of its legal counsel, and on a motion and vote in open session to assert the attorney-client privilege, to confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would likely and unavoidably prejudice the position of the city in that litigation. Litigation shall be considered pending when any of the following circumstances exist:

a. An adjudicatory proceeding before a court, administrative body exercising its adjudicatory authority, hearing officer, or arbitrator, to which the city is a party, has been initiated formally; or

b. A point has been reached where, in the opinion of the policy body on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the city, or the body is meeting only to decide whether a closed session is authorized pursuant to that advice or, based on those facts and circumstances, the body has decided to initiate or is deciding whether to initiate litigation.

(4) With the city’s designated representatives regarding matters within the scope of collective bargaining or meeting and conferring with public employee organizations when a policy body has authority over such matters. The salary and benefits of members of the city council, the city administrator, and the unrepresented employees will be discussed and acted upon separately by the city council in open session.

a. Such closed sessions shall be for the purpose of reviewing the city’s position and instructing its designated representatives and may take place solely prior to and during active consultations and discussions between the city’s designated representatives and the representatives of employee organizations or the unrepresented employees. Except for consultations with designated representatives, a policy body shall not discuss compensation or other contractual matters in closed session with one or more employees directly interested in the outcome of the negotiations.

b. In addition to the closed sessions authorized by subsection (4)(a) of this section, a policy body subject to Government Code Section 3501 may hold closed sessions with its designated representatives on mandatory subjects within the scope of representation of its represented employees, as determined pursuant to Government Code Section 3504.

(5) Immediately upon entering into any closed session, the city council and any other persons properly present shall discuss only whether the matter on the agenda for discussion in closed session should proceed in open session instead of closed session. A roll call vote on this question shall then be held. If a majority of the council vote to hear and decide the matter in open session, the council shall return to open session immediately without further discussion and report the vote in open session. If a majority of the council vote to hear and decide the matter in closed session, the council shall do so and later report the vote on this question at the first opportunity after returning to open session.

(Ord. No. 2008-11, 11-17-2008)

Prior to any closed session, a policy body shall state the general reason or reasons for the closed session, and shall cite the statutory authority, including the specific section and subdivision, or other legal authority under which the session is being held. In the closed session, the policy body may consider only those matters covered in its statement. In the case of regular and special meetings, the statement shall be made in the form of the agenda disclosures and specifications required by section 17A.8. In the case of adjourned and continued meetings, the statement shall be made with the same disclosures and specifications required by section 17A.8, as part of the notice provided for the meeting. In the case of an item added to the agenda as a matter of urgent necessity, the statement shall be made prior to the determination of urgency and with the same disclosures and specifications as if the item had been included in the agenda pursuant to section 17A.8. Nothing in this section shall require or authorize a disclosure of information prohibited by state or federal law.

(Ord. No. 2008-11, 11-17-2008)

(a) After every closed session, a policy body may, in its discretion and in the public interest, disclose to the public any portion of its discussion that is not confidential under federal or state law, any other law, or nonwaiveable privilege. The body shall, by motion and vote in closed session, elect either to disclose no information or to disclose the information that a majority deems to be in the public interest. The disclosure shall be made in open session through the presiding officer of the body or such other person, present in the closed session, which the presiding officer designates to convey the information. Such vote shall be reported as soon as possible in open session.

(b) A policy body shall publicly report any action taken in closed session and the vote or abstention of every member present thereon, as follows:

(1) Real Property Negotiations. Approval given to a policy body’s negotiator concerning real estate negotiations pursuant to Government Code Section 54956.8 shall be reported as soon as the agreement is final. If its own approval renders the agreement final, the policy body shall report that approval, the substance of the agreement and the vote thereon in open session immediately. If final approval rests with another party to the negotiations, the body shall disclose the fact of that approval, the substance of the agreement and the body’s vote or votes thereon upon inquiry by any person, as soon as the other party or its agent has informed the body of its approval. If, notwithstanding the final approval, there are conditions precedent to the final consummation of the transaction, or there are multiple contiguous or closely located properties that are being considered for acquisition, the document referred to in subsection (b) of this section need not be disclosed until the condition has been satisfied or the agreement has been reached with respect to all the properties, or both.

(2) Litigation. Direction or approval given to the body’s legal counsel to prosecute, defend, or seek, or refrain from seeking appellate review or relief or to otherwise enter as a party, intervener or amicus curiae in any form of litigation as the result of a consultation pursuant to Government Code Section 54956.9 shall be reported in open session as soon as given, or at the first meeting after an adverse party has been served in the matter if immediate disclosure of the city’s intentions would be contrary to the public interest. The report shall identify the adverse party or parties, any co-parties with the city, any existing claim or order to be defended against or any factual circumstances or contractual dispute giving rise to the city’s complaint, petition or other litigation initiative.

(3) Settlement. A policy body shall neither solicit nor agree to any term in a settlement which would preclude the release of the text of the settlement itself and any related documentation communicated to or received from the adverse party or parties. Any written settlement agreement and any documents attached to or referenced in the settlement agreement shall be made publicly available at least ten (10) calendar days before the meeting of the policy body at which the settlement is to be approved to the extent that the settlement would commit the city or a department thereof to adopting, modifying, or discontinuing an existing policy, practice or program, or otherwise acting other than to pay an amount of money less than fifty thousand dollars ($50,000). The agenda for any meeting in which a settlement subject to this section is discussed shall identify the names of the parties, the case number, the court, and the material terms of the settlement. Where the disclosure of documents in a litigation matter that has been settled could be detrimental to the city’s interests in pending litigation arising from the same facts or incident and involving a party not a party to or otherwise aware of the settlement, the documents required to be disclosed by subsection (b) of this section need not be disclosed until the other case is settled or otherwise finally concluded.

(4) Employee Actions. Action taken by the city council to appoint, employ, dismiss, transfer or accept the resignation of a public employee in closed session pursuant to Government Code Section 54957 shall be reported immediately in a manner that identifies the action taken and position affected and, in the case of dismissal for a violation of law or of the policy of the city, the reason for dismissal. Such report shall be consistent with Government Code Sections 3300 and 54957, as well as applicable federal and state law. “Dismissal” within the meaning of this chapter includes any termination of employment at the will of the employer rather than of the employee, however characterized. The proposed terms of any separation agreement shall be immediately disclosed as soon as presented to the body, and its final terms shall be immediately disclosed upon approval by the body.

(5) Collective Bargaining. Any collectively bargained agreement shall be made publicly available at least ten (10) calendar days before the meeting of the policy body to which the agreement is to be reported.

(c) Reports required to be made immediately may be made orally or in writing, but shall be supported by copies of any contracts, settlement agreements, or other documents related to the transaction that were finally approved or adopted in the closed session and that embody the information required to be disclosed immediately shall be provided to any person who has made a written request regarding that item following the posting of the agenda, or who has made a standing request for all such documentation as part of a request for notice of meetings pursuant to Government Code Section 54954.1 or 54956.

(d) A written summary of the information required to be immediately reported pursuant to this section, or documents embodying that information, shall be posted by the close of business on the next business day following the meeting, in the place where the meeting agendas of the body are posted.

(Ord. No. 2008-11, 11-17-2008)

No policy body shall conduct any meeting, conference or other function in any facility that excludes persons on the basis of actual or presumed class identity or characteristics, or which is inaccessible to persons with physical disabilities, or where members of the public may not be present without making a payment or purchase. Whenever the city council, a task force, board or commission, or any committee thereof anticipates that the number of persons attending the meeting will exceed the legal capacity of the meeting room, any public address system used to amplify sound in the meeting room shall be extended by supplementary speakers to permit the overflow audience to listen to the proceedings in an adjacent room or passageway, unless such supplementary speakers would disrupt the operation of a city office.

(Ord. No. 2008-11, 11-17-2008)

(a) Any person attending an open and public meeting of a policy body shall have the right to record the proceedings with an audio or video recorder or a still or motion picture camera, or to broadcast the proceedings, in the absence of a reasonable finding of the policy body that the recording or broadcast cannot continue due to its noise, illumination or obstruction of view as to constitute a persistent disruption of the proceedings.

(b) The city council and planning commission shall video record each meeting. All other policy bodies shall audio record each meeting. Each such video and audio recording, and any video recording made at the direction of the policy body, shall be a public record subject to inspection pursuant to the California Public Records Act (Government Code Section 6250 et seq.). The video recording of all regular meetings of the city council and planning commission shall within one (1) week of the meeting be made available by webcast on the city’s website and shall remain on the city’s website for a period of at least ten (10) years from the meeting. The audio and video record of all meetings under this section shall be kept for at least twenty (20) years. Audio records of all policy body meetings shall be provided upon request and payment for the actual cost of the duplicated recording. Requests shall be made through the city clerk.

(Ord. No. 2014-03, § 1, 4-7-2014)

(a) Every agenda for regular meetings shall provide an opportunity for members of the public to directly address a policy body on any item; provided, that no action shall be taken on any item not appearing on the agenda unless the action is otherwise authorized by section 17A.5(f).

(b) Every agenda for meetings at which action is proposed to be taken on an item shall provide an opportunity for each member of the public to directly address the body concerning that item prior to action thereupon.

(c) Each policy body shall adopt a rule providing that each person wishing to speak on an item before the body at a regular or special meeting shall be permitted to be heard. However, the chair of the meeting has discretion to adjust the speaking time. Time limits shall be applied uniformly to members of the public wishing to testify. The chair of the policy body shall accept public testimony in a fair and evenhanded way, without manipulation in the order of speakers.

(d) A policy body shall not abridge or prohibit public criticism of the policy, procedures, programs or services of the city, or of any other aspect of its proposals or activities, or of the acts or omissions of the body, on the basis that the performance of one or more public employees is implicated, or on any basis other than reasonable time constraints adopted in regulations pursuant to subsection (c) of this section.

(e) To facilitate public input, any agenda changes or continuances shall be announced by the presiding officer of a policy body at the beginning of a meeting, or as soon thereafter as the change or continuance becomes known to such presiding officer.

(Ord. No. 2008-11, 11-17-2008)

(a) The clerk or secretary of each policy body shall record the written minutes of all regular meetings of the policy body.

(b) The draft minutes of each meeting shall be posted on the city’s website and be available for inspection and copying upon request no later than ten (10) working days after the meeting. The officially adopted minutes shall be available for inspection and copying upon request no later than ten (10) working days after the meeting at which the minutes are adopted. All votes, including voice votes, shall be properly recorded.

(Ord. No. 2008-11, 11-17-2008)

Every member of a policy body retains the full constitutional rights of a citizen to comment publicly on the wisdom or propriety of government actions, including those of the policy body of which he or she is a member. Policy bodies shall not sanction, reprove or deprive members of their rights as elected or appointed officials for expressing their judgments or opinions, including those which deal with the perceived inconsistency of nonpublic discussions, communications or actions with the requirements of state or federal law or of this chapter. The release of specific factual information made confidential by state or federal law including, but not limited to, the privilege for confidential attorney-client communications, may be the basis for a request for injunctive or declaratory relief, seeking an accusation of misconduct, or both.

(Ord. No. 2008-11, 11-17-2008)