Milpitas Municipal Code Ch. 310 Open Government Ordinance

The People of the City of Milpitas find and declare:

(a) Government's duty is to serve the public, reaching its decisions in full view of the public.

(b) Elected officials, commissions, boards, councils and other agencies of the City exist to conduct the people's business. The people do not cede to these entities the right to decide what the people should know about the operations of local government.

(c) Although California has a long tradition of laws designed to protect the public's access to the workings of government, every generation of governmental leaders includes officials who feel more comfortable conducting public business away from the scrutiny of those who elect and employ them. New approaches to government constantly offer public officials additional ways to hide the making of public policy from the public. As government evolves, so must the laws designed to ensure that the process remains visible.

(d) The right of the people to know what their government and those acting on behalf of their government are doing is fundamental to democracy, and with very few exceptions, that right supersedes any other policy interest government officials may use to prevent public access to information. Only in rare and unusual circumstances does the public benefit from allowing the business of government to be conducted in secret, and those circumstances should be carefully and narrowly defined to prevent public officials from abusing their authority.

(e) Public officials who attempt to conduct the public's business in secret should be held accountable for their actions. Only a strong open government and open government ordinance, enforced by a strong City Council Rules Subcommittee can protect the public's interest in open government.

(f) The people of Milpitas enact these amendments to assure that the people of the City remain in control of the government they have created.

(g) Private entities, individuals, employees and officials of Milpitas have rights to privacy that must be respected. However, when a person or entity is before a policy body, that person, and the public, has the right to an open and public process. (Ord. 262.4 (2)(part), 1/16/07; Ord. 262.1 § 3 (part), 4/5/05)

(Ord. No. 262.6, § 2, 5/5/09)

This Chapter may be cited as the Milpitas Open Government Ordinance. (Ord. 262.1 § 3 (part), 4/5/05)

(Ord. No. 262.6, § 2, 5/5/09)

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

(a) "City" shall mean the City of Milpitas.

(b) "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;

(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; 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.

(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; or

(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. A meal gathering of a policy body before, during or after a business meeting of the body is part of that meeting and shall be conducted only under circumstances that permit public access to hear and observe the discussion of members. Such meetings shall not be conducted in restaurants or other accommodations where public access is possible only in consideration of making a purchase or some other payment of value.

(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, all City commissions, boards, committees, panels, and task forces of the City, standing subcommittees of the City Council and all other Policy Bodies, and City Council ad hoc subcommittees. Policy bodies shall not include a committee that consists solely of employees of the City of Milpitas.

(Ord. No. 262.8, § 2, 12/7/21; Ord. No. 262.6, § 2, 5/5/09; Ord. 262.1 § 3 (part), 4/5/05)

All meetings of any policy body shall be open and public, and governed by the provisions of the Ralph M. Brown Act (Government Code Sections 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. 262.6, § 2, 5/5/09; Ord. 262.1 § 3 (part), 4/5/05)

(a) All Policy Bodies. At least 72 hours before a regular meeting, a policy body shall post an agenda containing a brief but 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 its Internet website at least 72 hours before a regular meeting.

(b) City Council. At least six (6) calendar days before a regular City Council meeting, a preliminary agenda shall be posted in the same manner as agendas in subsection (a), except that the purpose of the preliminary agenda is to provide only a list of items tentatively scheduled for consideration at the next regular meeting. Preliminary agendas are "pre-agendas" subject to change that are posted the Wednesday the week preceding the regular City Council meeting and are not the agenda posted in compliance with subsection (a) at least 72 hours before a regular meeting. A preliminary agenda may be amended to include additional items, delete items or may be amended in any other manner prior to the final posting of the agenda pursuant to subsection (a) at least 72 hours before a regular meeting.

(c) A description is meaningful if it is sufficiently clear and specific to alert members of the public whose interests are affected by the item that he or she may have reason to attend the meeting or seek more information on the item. The description should be brief, concise and written in plain, easily understood English. The agenda 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. If the explanatory documents are to be made available, such documents shall be posted with the agenda or be made available for public inspection and copying upon request 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 briefly 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, or may do the same on their own initiative and not in response to public 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, provided that prior to discussing any item pursuant to this subsection (f) the policy body publicly identifies the item:

(1) Upon a determination by a majority vote of the policy body that an emergency situation exists, as that term is defined in Section 54956.5 of the Government Code. "Emergency" includes, but is not limited to, a work stoppage, and "dire emergency" includes, but is not limited to, crippling disaster, mass destruction, terrorist act or threatened terrorist act.

(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) there is a need to take immediate action on the item , 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 (5) 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.

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

KNOW YOUR RIGHTS UNDER THE OPEN GOVERNMENT ORDINANCE

Government's duty is to serve the public, reaching its decisions in full view of the public. Commissions, boards, councils and other agencies of the City exist to conduct the people's business. This ordinance assures that deliberations are conducted before the people and that City operations are open to the people's review.

FOR MORE INFORMATION ON YOUR RIGHTS UNDER THE OPEN GOVERNMENT ORDINANCE OR TO REPORT A VIOLATION OF THE ORDINANCE, CONTACT THE CITY ATTORNEY'S OFFICE

(h) Each agenda of a policy body covered by this Open Government Ordinance shall include the contact name, address, phone number, and e-mail address for the City Attorney's Office. Information on how to obtain a free copy of the Open Government Ordinance shall be included on each agenda.

(Ord. No. 262.8, § 3, 12/7/21; Ord. No. 262.6, § 2, 5/5/09; Ord. 262.4, (2)(part), 1/16/07; Ord. 262.1, § 3 (part), 4/5/05)

(a) Any public notice that is mailed, posted or published by a City department, board, 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) In the case of a public hearing, the notice must include the date, time, and place of public hearing as well as the identity of the hearing officer or body and provide a general explanation of the matter and location. In other cases, the public notice may 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. 262.8, § 4, 12/7/21; Ord. No. 262.6, § 2, 5/5/09; Ord. 262.1, § 3 (part), 4/5/05)

When notice is given, as provided in this chapter, by public policy or advisory bodies, members of the public may submit written statements and/or comments regarding any item on those bodies' meeting agendas to the City Clerk, who shall transmit those writings to the body; those statements or comments, while not read aloud at the public meeting, shall become public record, regardless of whether their authors are present when the item at issue is discussed. Written statements and/or comments shall be subject to review and consideration by those bodies if submitted before or during the hearing on the item.

(Ord. No. 262.8, § 5, 12/7/21; Ord. No. 262.6, § 2, 5/5/09; Ord. 262.1 § 3 (part), 4/5/05)

(a) In addition to the brief general description of items to be discussed or acted upon in open and public session, for purposes of describing closed session items 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, the agenda 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:

LICENSE/PERMIT DETERMINATION:

_______ applicant(s)

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:

CONFERENCE WITH REAL PROPERTY NEGOTIATOR

Property: _______ (Specify street address, or if no street address, the parcel number or other unique reference, of the real property under negotiation)

Person(s) negotiating: _______ (Specify names of negotiators attending the closed session) (If circumstances necessitate the absence of a specified negotiator, an agent or designee may participate in place of the absent representative as long as the name of the agent or designee is announced at an open session held prior to the closed session)

Negotiating Parties _______ (Specify name of the party, not agent)

Under negotiation:

Price:_______ Terms of payment:_______ Both: _______

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:

CONFERENCE WITH LEGAL COUNSEL

Existing Litigation:

Name of case:_______ (Specified by reference to claimant's name, names of parties, case or claim number)

or

Case Name: Unspecified (Unspecified to protect service of process or settlement posture)

or:

Anticipated Litigation/Significant Exposure to Litigation:

_______ As defendant

_______ As plaintiff

The space under "Existing Litigation" for specified cases shall be used to specifically identify a case under discussion pursuant to subdivision (a) of Government Code Section 54956.9, including the case name, court, and case number, unless the identification would jeopardize the City's ability to effectuate service of process upon one 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. If the closed session is called pursuant to subdivision (b) or (c) of Section 54956.9, 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 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. Additional information may be required to be on the agenda or in an oral statement prior to the closed session.

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

THREAT TO PUBLIC SERVICES OR FACILITIES

Name, title and agency of law enforcement officer(s) or name of applicable agency representative and title to be consulted with:

or:

PUBLIC EMPLOYEE APPOINTMENT/HIRING

Title: Description of position(s) to be filled

PUBLIC EMPLOYEE PERFORMANCE EVALUATION

Title: Specify position title of employee being reviewed

or:

PUBLIC EMPLOYEE DISMISSAL

No additional information is required in connection with a closed session to consider discipline, dismissal or release of a public employee but the City may specify the number of employees affected.

Number of employees affected:

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

CONFERENCE WITH LABOR NEGOTIATOR

Name and title of City's negotiator: (If circumstances necessitate the absence of a specified designated representative, an agent or designee may participate in place of the absent representative so long as the name of the agent or designee is announced at an open public session help prior to the closed session)

Organization(s) representing:

___ Milpitas Police Officer Association

___ International Association of Fire Firefighters

___ Professional and Technical Employees

___ Mid-Management and Confidential Employees

___ Milpitas Employees Association

___ Unrepresented

___ Other (specify)

(b) In case of multiple items of business under the same category, lines may be added and the location 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 Sections 54954.1 or 54956.

(Ord. No. 262.8, § 6, 12/7/21; Ord. No. 262.6, § 2, 5/5/09; Ord. 262.1 § 3 (part), 4/5/05)

(a) All closed sessions of any policy body covered by this chapter shall be either audio or video recorded in their entirety and all such recordings shall be retained in accordance with the City's Records Retention Policy.

(b) Each agenda item for a policy body covered by this chapter that involves existing litigation shall identify the court and case name and number on the written agenda. For each agenda item 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 and case number.

(Ord. No. 262.8, § 7, 12/7/21; Ord. No. 262.6, § 2, 5/5/09; Ord. 262.1 § 3 (part), 4/5/05)

(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 are available to the public for inspection during the public meeting . To the extent possible, other than the agenda, meeting packets and any other documents related to the public meeting agenda, may also be made available through the policy body's internet website in a position and manner that makes it clear that the writing is related to an agenda item for an upcoming meeting. However, this disclosure need not include any material exempt from public disclosure under this chapter or other law.

(b) Records which are subject to disclosure under subsection (a) of this section and which are distributed to a policy body prior to commencement of a public meeting, but after posting of the agenda, shall be made available for public inspection and copying upon request.

(c) Records which are subject to disclosure under subsection (a) of this section and which are prepared and distributed by the City or member of the policy body during their discussion at a public meeting shall be made available for public inspection immediately; if prepared by others, they shall be distributed as soon thereafter as is practicable.

(d) A policy body may charge a publication fee of ten cents (10¢) per page 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 sections 6250 et seq.) shall be construed to limit or delay the public's right to inspect any record required to be disclosed by the Act, whether or not distributed to a policy body.

(Ord. No. 262.8, § 8, 12/7/21; Ord. No. 262.6, § 2, 5/5/09; Ord. 262.1 § 3 (part), 4/5/05)

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

(a) With the chief of police, or their respective deputies, 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.

(b) To consider the appointment, employment, evaluation of performance, or dismissal 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.

(c) Based on advice of its legal counsel 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:

(1) 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

(2) 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.

(3) A closed session may not be held under this section to consider the qualifications or engagement of an independent contract attorney or law firm, for litigation services or otherwise.

(d) 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 Manager, and the unrepresented employees will be discussed and acted upon separately by the City Council in open session.

(1) 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. 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.

(2) In addition to the closed sessions authorized by Section I-310-2.90(d)(l), 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 Section 3504.

(Ord. No. 262.6, § 2, 5/5/09; Ord. 262.1 § 3 (part), 4/5/05)

Prior to any closed session, a policy body shall disclose, in an open meeting, the item or items to be discussed. The disclosure 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. Disclosure may take the form of a reference to the item or items as they are listed on the agenda. 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 I-310-2.60 of this chapter. In the case of adjourned and continued meetings, the statement shall be made with the same disclosures and specifications required by Section I-310-2.60 of this chapter, 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 I-310-2.60 of this chapter. Nothing in this section shall require or authorize a disclosure of information prohibited by state or federal law.

(Ord. No. 262.8, § 9, 12/7/21; Ord. No. 262.6, § 2, 5/5/09; Ord. 262.1 § 3 (part), 4/5/05)

(a) After every closed session, the policy body only and not individual members 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 non-waivable privilege, by motion and in open session, with disclosure to be made by and through the presiding officer of the policy body attending the closed session or other person(s) designated.

(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.

(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. 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, and the court. If the policy body accepts a settlement offer signed by the opposing party, the policy body shall report its acceptance and identify the substance of the agreement in open session at the public meeting during which the closed session is held. If final approval rests with some other party to the litigation or with the court, then as soon as the settlement becomes final, and upon inquiry by any person, the local agency shall disclose the fact of that approval, and identify the substance of the agreement. If there is a disposition of claims discussed in closed session, the fact of disposition shall be reported as soon as reached in a manner that identifies the name of the claimant, the names of the local agency claimed against, the substance of the claim, and any monetary amount approved for payment and agreed upon by the claimant.

(4) Employee Actions. Action taken to appoint, employ, dismiss, transfer or accept the resignation of a public employee or otherwise affect the employment status of a public employee in closed session pursuant to Government Code Section 54957 shall be reported immediately at the meeting which the closed session is held in a manner that identifies the title of the employee, 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. "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. A report of a dismissal or nonrenewal of an employment contract shall be deferred until the first public meeting following the exhaustion of administrative remedies, if any.

(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. Approval of an agreement concluding labor negotiations with represented employees pursuant to Government Code Section 54957.6 shall be reported after the agreement is final and has been accepted or ratified by the other party, The report shall identify the item approved and the other party or parties to the negotiation.

(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 Sections 54954.1 or 54956.

(Ord. No. 262.8, § 10, 12/7/21; Ord. No. 262.6, § 2, 5/5/09; Ord. 262.1 § 3 (part), 4/5/05)

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 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. 262.6, § 2, 5/5/09)

(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, and/or to broadcast the proceedings, in the absence of a reasonable finding of the policy body that the recording or broadcast cannot continue without such noise, illumination or obstruction of view that constitutes or would constitute a persistent disruption of the proceedings.

(b) All policy bodies shall audio or video record each regular and special meeting. Each such audio or 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.), and shall be retained consistent with the City's Records Retention Policy. Inspection of any such recording shall be provided without charge on an appropriate play back device made available by the City, or by other means. Audio records of audio taped meetings shall be provided upon request after any required payment is made for the actual cost of the recording pursuant to the Public Records Act. Requests shall be made through the City Clerk.

(Ord. No. 262.8, § 11, 12/7/21; Ord. No. 262.6, § 2, 5/5/09; Ord. 262.1 (3) (part), 4/5/05)

(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 I-310-2.30(e) of this chapter.

(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 provide that each person wishing to speak on an item before the body at a regular or special meeting shall be permitted to be heard once for a maximum of three minutes. However, the Chair of the meeting has discretion to reduce the speaking time in situations where there are a large number of persons who wish to speak on a particular agenda item. 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 policy body.

(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.

(f) The Mayor and Councilmembers during the Councilmember announcement session of the agenda shall be limited to the same amount of speaking time as the policy body has limited individual members of the public during open forum. The presiding officer shall be responsible for enforcing this provision.

(Ord. No. 262.8, § 12, 12/7/21; Ord. No. 262.6, § 2, 5/5/09; Ord. 262.1 (3) (part), 4/5/05)

(a) The clerk or secretary of policy bodies shall record the minutes for each regular and special meeting of those bodies.

(b) To the extent feasible, the draft minutes of each meeting are to be made available and approved at the next regularly scheduled meeting of the policy body and be available for inspection and copying upon request after the minutes have been approved.

(Ord. No. 262.8, § 13, 12/7/21; Ord. No. 262.6, § 2, 5/5/09; Ord. 262.1 (3) (part), 4/5/05)

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 non-public 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. 262.6, § 2, 5/5/09; Ord. 262.1 (3) (part), 4/5/05)

The Milpitas Municipal Code and state law do not explicitly bar the City Attorney from offering unsolicited legal advice either verbally or in writing on matters before the Council. This chapter should be interpreted such that the City Attorney, in addition to regular duties, should be outspoken in giving advice on the validity of legal compliance on all matters.

(Ord. No. 262.6, § 2, 5/5/09; Ord. 262.1 (3) (part), 4/5/05)

At the beginning of each City Council meeting or upon the arrival of the Mayor or Councilmember, the City Attorney shall ask the Mayor and each member of the City Council to disclose any financial or personal conflict with any item on the City Council's agenda. In addition, pursuant to Government Code section 87105, if the Mayor or a Councilmember discloses that a financial interest is present, immediately prior to consideration of that matter, he or she shall publicly identify the conflict or potential conflict in detail sufficient to be understood by the public, and shall then recuse him or herself from taking action on the item and leave the meeting room, unless allowed by law to remain on the dais. The member may return to the meeting room after disposition of the matter.

(Ord. No. 262.8, § 14, 12/7/21; Ord. No. 262.6, § 2, 5/5/09; Ord. 262.1 (3) (part), 4/5/05)

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

(a) "Public Information" shall mean the content of "public records" as defined in the California Public Records Act (Government Code Section 6252), whether provided in documentary form or in an oral communication. "Public Information" shall not include "computer software" developed by the City of Milpitas as defined in the California Public Records Act (Government Code Section 6254.9).

(b) "Lobbyist" means a person or business entity that receives $250 or more in a calendar year for communicating, using any means, with City officials or employees to influence current or future City legislation, administrative decisions, or City Council elections or local initiative measures. Officials or employees of other government agencies shall not be deemed lobbyists for purposes of this ordinance when communicating with City officials or employees on behalf of such other government agency. (Ord. 262.3, 9/5/06; Ord. 262.1 (3) (part), 4/5/05)

(Ord. No. 262.6, § 2, 5/5/09)

(a) Every person having custody of any public record or public information, as defined in this chapter, (hereinafter referred to as a custodian of a public record) shall, at normal times and during normal and reasonable hours of operation, without unreasonable delay, and without requiring an appointment, permit the public record, or any segregable portion of a record, to be inspected and examined by any person and shall furnish one copy thereof upon payment of a reasonable copying charge, not to exceed the lesser of the actual cost or ten cents per page.

(b) A custodian of a public record shall, as soon as possible and within ten (10) days following receipt of a request for inspection or copy of a public record, comply with such request. Such request may be delivered to the office of the custodian by the requester orally or in writing by fax, postal delivery, or email. If the custodian believes the record or information requested is not a public record or is exempt, the custodian shall justify withholding any record by demonstrating, in writing as soon as possible and within ten (10) days following receipt of a request, that the record in question is exempt under express provisions of this ordinance.

(c) A custodian of a public record shall assist a requester in identifying the existence, form, and nature of any records or information maintained by, available to, or in the custody of the custodian, whether or not the contents of those records are exempt from disclosure and shall provide a response within ten (10) days consistent with the requirements of the California Public Records Act. A custodian of any public record, when not in possession of the record requested, shall assist a requester in directing a request to the proper office or staff person.

(d) If the custodian refuses, fails to comply, or incompletely complies with a request described in subsection (b) of this section, the person making the request may petition the supervisor of records for a determination whether the record requested is public. The supervisor of records shall inform the petitioner, as soon as possible and within ten (10) days, of its determination whether the record requested, or any part of the record requested, is public. Where requested by the petition, and where otherwise desirable, this determination shall be in writing. Upon the determination by the supervisor of records that the record is public, the supervisor of records shall immediately order the custodian of the public record to comply with the person's request. If the custodian refuses or fails to comply with any such order within five (5) days, the supervisor of records shall notify the City Attorney who shall take whatever measures she or he deems necessary and appropriate to insure compliance with the provisions of this ordinance.

(e) If the custodian refuses, fails to comply, or incompletely complies with a request described in subsection (b) of this section or if a petition is denied or not acted upon by the supervisor of public records, the person making the request may petition the City Council Rules Subcommittee for a determination whether the record requested is public. The City Council Rules Subcommittee shall inform the petitioner, as soon as possible and within two (2) days after its next meeting but in no case later than ten (10) days or as soon thereafter as possible from when a petition in writing is received, of its determination whether the record requested, or any part of the record requested, is public. Where requested by the petition, and where otherwise desirable, this determination shall be in writing. Upon the determination that the record is public, the City Council Rules Subcommittee shall advise the City Council as to whether the record should be public. The City Council and the City Attorney's office shall provide sufficient resources to allow the City Council Rules Subcommittee to fulfill its duties under this provision. Where requested by the petition, the City Council Rules Subcommittee may conduct a public hearing concerning the records request denial. An authorized representative of the custodian of the public records requested shall attend any hearing and explain the basis for its decision to withhold the records requested. Petitions for City Councilmember records shall be made directly to the City Council Rules Subcommittee for its determination according to this paragraph.

(f) The administrative remedy provided under this chapter shall in no way limit the availability of other administrative remedies provided to any person with respect to any officer or employee of any agency, executive office, department or board; nor shall the administrative remedy provided by this section in any way limit the availability of judicial remedies otherwise available to any person requesting a public record. If a custodian of a public record refuses or fails to comply with the request of any person for inspection or copy of a public record or with an administrative order under this section, any California Superior Court shall have jurisdiction to order compliance.

(g) In any court proceeding pursuant to this chapter there shall be a presumption that the record sought is public, and the burden shall be upon the custodian to prove with specificity the exemption, which applies.

(h) At least once a year, and as otherwise requested by the City Council Open Government Subcommittee, the City Clerk's Office shall prepare a tally and report of every petition brought before it for access to records since the time of its last tally and report. The report shall at least identify for each petition the record or records sought, the custodian of those records, the ruling of the supervisor of public records, whether any ruling was overturned by a court and whether orders given to custodians of public records were followed. The report shall also summarize any court actions related to any petitions during that period. At the request of the City Council Rules Subcommittee, the report shall also include copies of all rulings made by the supervisor of public records and all opinions issued.

(i) The Milpitas City Attorney's office shall act to protect and secure the rights of the people of Milpitas to access public information and public meetings and shall not act as legal counsel for any city employee or any person having custody of any public record for purposes of denying access to the public. The City Attorney or his designee will monitor the handling of public records when any elected public official or any department head leaves office and moves materials from the office. The City Attorney may publish legal opinions in response to a request from any person as to whether a record or other information is or is not a public record. All communications with the City Attorney's Office with regard to this ordinance, including petitions, requests for opinions, and opinions shall be public records.

(j) Notwithstanding the provisions of this section, the City Attorney may defend the City or a City Employee in litigation under this chapter that is actually filed in court to any extent required by California Law.

(k) Release of documentary public information, whether for inspection of the original or by providing a copy, shall be governed by the California Public Records Act (Government Code Section 6250 et seq.) to the extent not addressed by this chapter and in accordance with the enhanced disclosure requirements provided in this chapter.

(l) Inspection and copying of documentary public information stored in electronic form shall be made available to the person requesting the information in any form requested which is available to or easily generated by the department, its officers or employees, including disk, tape, printout or monitor at a charge no greater than the cost of the media on which it is duplicated. Inspection of documentary public information on a computer monitor need not be allowed where the information sought is necessarily and inseparably intertwined with information not subject to disclosure under this ordinance. Nothing in this section shall require a department to program or reprogram a computer to respond to a request for information or to release information where the release of that information would violate a licensing agreement or copyright law. (Ord. 262.5 (4), 11/6/07; Ord. 262.4 (2) (part), 1/16/07; Ord. 262.1 (3) (part), 4/5/05)

(Ord. No. 262.6, § 2, 5/5/09)

It is the policy of the City of Milpitas to utilize computer technology in order to reduce the cost of public records management, including the costs of collecting, maintaining, and disclosing records subject to disclosure to members of the public under this section. To the extent that it is technologically and economically feasible, departments that use computer systems to collect and store public records shall program and design such systems to ensure convenient, efficient, and economical public access to records and shall make public records easily accessible over public networks, including but not limited to the Internet. (Ord. 262.1 § 3 (part), 4/5/05)

(Ord. No. 262.6, § 2, 5/5/09)

Release of oral public information shall be accomplished as follows:

(a) Every department head shall designate a person or persons knowledgeable about the affairs of the department, to provide information, including oral information, to the public about the department's operations, plans, policies and positions. The department head may designate himself or herself for this assignment, but in any event shall arrange that an alternate be available for this function during the absence of the person assigned primary responsibility.

(b) The role of the person or persons so designated shall be to provide information on as timely and responsive a basis as possible to those members of the public who are not requesting information from a specific person. This section shall not be interpreted to curtail existing informal contacts between employees and members of the public when these contacts are occasional, acceptable to the employee and the department, not disruptive of his or her operational duties and confined to accurate information not confidential by law.

(c) If it would take an employee more than fifteen minutes to obtain the information responsive to an inquiry or inquiries from a member of the public, the employee shall notify the requestor of the procedures for obtaining records under sections I-310-3.70 and I-310-3.80 of this chapter.

(d) Public employees shall not be discouraged from or disciplined for the expression of their personal opinions on any matter of public concern while not on duty, so long as the opinion (1) is not represented as that of the department and does not misrepresent the department position; and (2) does not disrupt coworker relations, impair discipline or control by superiors, erode a close working relationship premised on personal loyalty and confidentiality, interfere with the employee's performance of his or her duties or obstruct the routine operation of the office in a manner that outweighs the employee's interests in expressing that opinion. In adopting this subsection, the City Council intends merely to restate and affirm court decisions recognizing the First Amendment rights enjoyed by public employees. Nothing in this section shall be construed to provide rights to City employees beyond those recognized by courts, now or in the future, under the First Amendment, or to create any new private cause of action or defense to disciplinary action.

(e) Notwithstanding any other provisions of this chapter, public employees shall not be discouraged from or disciplined for disclosing any information that is public information or a public record to any journalist or any member of the public. Any public employee who is disciplined for disclosing public information or a public record shall have a cause of action against the City and the supervisor imposing the discipline. (Ord. 262.1 § 3 (part), 4/5/05)

(Ord. No. 262.6, § 2, 5/5/09)

(a) The City Clerk shall maintain a file, accessible to any person during normal office hours, containing a copy of any letter, memorandum or other communication which the clerk has distributed to or received from a quorum of the policy body concerning a matter calendared by the body within the previous thirty (30) days or likely to be calendared within the next thirty (30) days, irrespective of subject matter, origin or recipient, except commercial solicitations, periodical publications or communications exempt from disclosure under the California Public Records Act (Government Code Section 6250 et seq.) and not deemed disclosable under Section I-310-3.70 of this chapter.

(b) Communications, as described in subsection (a) of this section, sent or received in the last three (3) business days shall be maintained in chronological order in the office of the department head or at a place nearby, clearly designated to the public. After documents have been on file for two (2) full days, they may be removed, and, in the discretion of the Council, board or commission, placed in a monthly chronological file.

(c) Multiple-page reports, studies or analyses, which are accompanied by a letter or memorandum of transmittal, need not be included in the file so long as the letter or memorandum of transmittal is included.

(Ord. No. 262.6, § 2, 5/5/09; Ord. 262.1 § 3 (part), 4/5/05)

Notwithstanding a department's legal discretion to withhold certain information under the California Public Records Act, the following policies shall govern specific types of documents and information and shall provide enhanced rights of public access to information and records:

(a) Drafts and Memoranda. No preliminary draft or memorandum shall be exempt from disclosure under Government Code section 6254, subdivision (a) if it is normally kept on file. Preliminary drafts and memoranda concerning contracts, memoranda of understanding, or other matters subject to negotiation or pending Council approval shall not be subject to disclosure to this provision until final action has been taken.

(b) Litigation Material.

(1) Notwithstanding any exemptions otherwise provided by law, the following are public records subject to disclosure under this chapter:

(i) A pre-litigation claim against the City;

(ii) A record previously received or created by a department in the ordinary course of business that was not attorney/client privileged when it was previously received or created;

(iii) Advice on compliance with, analysis of, an opinion concerning liability under, or any communication otherwise concerning the California Public Records Act, the Ralph M. Brown Act, the Political Reform Act, any Milpitas governmental ethics code, or this Chapter.

(2) Unless otherwise privileged under California law, when litigation is adjudicated or otherwise settled, records of all communications between the department and the adverse party shall be subject to disclosure, including the text and terms of any settlement.

(c) Contracts, Bids and Proposals.

(1) All initial City Requests for Proposals ("RFP's") shall be kept in a central repository and shall be made available for public inspection. In addition, RFP's shall be placed on the City's website for a period from the date the RFP was issued to the date that the RFP is due.

(2) Contracts, contractors' bids, responses to requests for proposals and all other records of communication between the department and persons or firms seeking contracts shall be open to inspection immediately after a contract has been awarded. Nothing in this provision requires the disclosure of a private person's or organization's net worth or other proprietary financial data submitted for qualification for a contract or other benefit. All bidders and contractors shall be advised that information provided which is covered by this subdivision will be made available to the public upon request. Immediately after any review or evaluation or rating of responses to an RFP has been completed, evaluation forms and score sheets and any other documents used by persons in the RFP evaluation or contractor selection process shall be available for public inspection. The names of scorers, graders or evaluators, along with their individual ratings, comments, and score sheets or comments on related documents, shall be made immediately available after the review or evaluation of an RFP has been completed.

(3) During the course of negotiations for:

(i) Personal, professional, or other contractual services not subject to a competitive process or where such a process has arrived at a stage where there is only one qualified or responsive bidder;

(ii) Leases or permits having total anticipated revenue or expense to the City;

(iii) Any franchise agreements, all documents exchanged and related to the position of the parties, including draft contracts, shall be made available for public inspection and copying upon request. In the event that no records are prepared or exchanged during negotiations in the above-mentioned categories, or the records exchanged do not provide a meaningful representation of the respective positions, the City Attorney or city representative familiar with the negotiations shall, upon a written request by a member of the public, prepare written summaries of the respective positions within five (5) working days following the final day of negotiation of any given week. The summaries will be available for public inspection and copying. Upon completion of negotiations, the executed contract, including the dollar amount of said contract, shall be made available for inspection and copying.

(d) Budgets and Other Financial Information. Budgets, whether tentative, proposed or adopted, for the City or any of its departments, programs, projects or other categories, and all bills, claims, invoices, vouchers or other records of payment obligations as well as records of actual disbursements showing the amount paid, the payee and the purpose for which payment is made, other than payments for social or other services whose records are confidential by law, shall not be exempt from disclosure under any circumstances.

(e) Appraisals, offers and counteroffers relating to the City's purchase of real property are exempt until an agreement is executed. If an agreement for purchase is not submitted to the Council for approval then this exemption expires 1 year after negotiations are terminated.

(f) Neither the City nor any officer, employee, or agent thereof may assert an exemption for withholding for any document or information based on a "deliberative process" exemption, either as provided by California Public Records Act Section 6255 or any other provision of law that does not prohibit disclosure.

(Ord. No. 23.15, § 2, 1/5/21; Ord. No. 262.7, § 2, 3/6/12; Ord. No. 262.6, § 2, 5/5/09; Ord. 262.1 § 3 (part), 4/5/05)

Editor's note— Ord. No. 262.7 carried an adoption date of either March 6 or March 7, because the meeting lasted two days.

Notwithstanding the ten (10) day period for response to a request permitted in Government Code section 6256, a request for a public record described in any nonexempt category which is received by a department head shall be satisfied no later than the close of business on the day following the request unless the department head advises the requestor in writing that the request will be answered by a specific future date. The statutory deadlines are appropriate for more extensive or demanding requests, but shall not be used to delay fulfilling a simple, routine or otherwise readily answerable request. If the voluminous nature of the information requested, its location in a remote storage facility or the need to consult with legal counsel warrants an extension of ten (10) days as provided in Government Code section 6256.1, the requestor shall be noticed as required within three (3) business days of the request.

(Ord. No. 262.6, § 2, 5/5/09; Ord. 262.1 § 3 (part), 4/5/05)

Information that is exempt from disclosure shall be masked, deleted or otherwise segregated so that the nonexempt portion of a requested record may be released and keyed by footnote or other clear reference to the appropriate justification for withholding required by this chapter in section I-310-3.100.

(Ord. No. 262.6, § 2, 5/5/09; Ord. 262.1 § 3 (part), 4/5/05)

Any withholding of information shall be justified, in writing, as follows:

(a) A withholding under a specific permissive exemption in the California Public Records Act, or elsewhere, which permissive exemption is not forbidden to be asserted by this ordinance, shall cite that authority.

(b) A withholding on the basis that disclosure is prohibited by law shall cite the specific statutory authority in the Public Records Act or elsewhere.

(c) A withholding on the basis that disclosure would incur civil or criminal liability shall cite any specific statutory or case law, or any other public agency's litigation experience, supporting that position.

(d) When a record being requested contains information, most of which is exempt from disclosure under the California Public Records Act and this Section, the custodian shall inform the requester of the nature and extent of the nonexempt information and suggest alternative sources for the information requested, if available. (Ord. 262.1 § 3 (part), 4/5/05)

(Ord. No. 262.6, § 2, 5/5/09)

The following policies shall govern specific types of documents and information and shall provide enhanced rights of public access to information and access:

(a) Notwithstanding California Government Code Section 6254, subdivision (c), the following information shall be considered a public record and shall be made available for review upon request by any person, business or association:

(1) A listing of employee names, job titles and gross salaries, including base salaries and other compensation. Other compensation shall include allowances, overtime, deferred compensation, leave cash-out payments and the percentage of base salaries that the City pays as the employer's CalPERS contribution, except where certain employees' safety and effectiveness may require non-disclosure, such as undercover peace officer employees.

(2) The City Manager shall prepare and distribute a weekly report of City affairs for distribution to the City Council. This report shall be a public record subject to inspection at the Office of the City Clerk during normal business hours. (Ord. 262.5 (2), 11/6/07; Ord. 262.1 (3) (part), 4/5/05)

(Ord. No. 262.6, § 2, 5/5/09)

(a) No fee shall be charged for making public records available for review.

(b) For documents routinely produced in multiple copies for distribution, e.g., meeting agendas and related materials, unless a special fee has been established pursuant to subsection (d) of this section, a fee not to exceed ten cents (10¢) per page may be charged, plus any postage costs with the approval of the City Council Rules Subcommittee.

(c) For documents assembled and copied to the order of the requester, unless a special fee has been established pursuant to subsection (d) of this section, a fee of ten cents (10¢) per page shall be charged, plus any postage.

(d) A department may establish and charge a higher fee than the ten-cent (10¢) presumptive fee in subsection (b) of this section and the ten-cent presumptive fee in subsection (c) of this section if it prepares and posts an itemized cost analysis establishing that its cost per page impression exceeds the amounts listed above, as the case may be. The cost per page impression shall include the following costs: one sheet of paper; one duplication cycle of the copying machine in terms of toner and other specifically identified operation or maintenance factors, excluding electrical power. Any such cost analysis shall identify the manufacturer, model, vendor and maintenance contractor, if any, of the copying machine or machines referred to. The above fee increases must have approval from both the City Council Rules Subcommittee and the City Council prior to taking effect.

(e) Video copies of video recorded meetings shall be provided to the public upon request for the actual cost of materials (i.e., videotape) per meeting. Audio tapes of audio taped meetings shall be provided upon public request for the actual cost of the tape by the policy body whose meeting was recorded. The City Council Rules Subcommittee shall determine these costs. (Ord. 262.4 (2) (part), 1/16/07; Ord. 262.1 § 3 (part), 4/5/05)

(Ord. No. 262.6, § 2, 5/5/09)

The City shall display in a convenient location on its Website, a compilation of on-line document resources. To the extent it is reasonable, records not available on-line, but otherwise available from the City from other sources, shall be identified on the Website together with the location where they may be accessed.

(Ord. No. 262.6, § 2, 5/5/09)

All documents prepared, received, or maintained by any elected City official, and by the head of any Department are the property of the City of Milpitas. The originals of these documents shall be maintained consistent with the records retention policies of the City of Milpitas. The City Attorney or his designee shall monitor the transition of the above public officials to ensure that public documents are not unlawfully removed or destroyed during the transition. (Ord. 262.1 § 3 (part), 4/5/05)

(Ord. No. 262.6, § 2, 5/5/09)

Each department of the City of Milpitas shall maintain on a World Wide Web site, or on a comparable, readily accessible location on the Internet, information that it is required to make publicly available, to the extent it is practical to do so and considering whether such information is otherwise available in a different form from the City. To the extent it is reasonable, records not available on-line, but otherwise available from the City from other sources, shall be identified on the Website together with the location where they may be accessed.

Each department is encouraged to make publicly available through its World Wide Web site as much information and as many documents as possible concerning its activities. These include, but are not limited to, campaign report forms, statements of economic interest, operating and capital budgets, meeting agenda, meeting minutes, public notices and, when feasible, staff meeting reports. Within 12 months after enactment of this provision, each department shall post on its World Wide Web site all meeting notices required under this ordinance, all agendas and the minutes of all previous meetings of its policy bodies for the last three years. Notices and agendas shall be posted no later than the time that the department otherwise distributes this information to the public, allowing reasonable time for posting. Minutes of meetings shall be posted as soon as possible, but in any event within 48 hours after they have been approved. The City shall make reasonable efforts to ensure that its World Wide Web site is regularly reviewed for timeliness and updated on at least a weekly basis. The City shall also make available on its World Wide Web site, or on a comparable, readily accessible location on the Internet, a current copy of the Municipal Code.

The City shall also webcast all City Council and Planning Commission meetings and archive the webcasts of such meetings for at least three years. (Ord. 262.1 § 3 (part), 4/5/05)

(Ord. No. 262.6, § 2, 5/5/09)

Editor's note— Ord. No. 312, § 3, adopted June 21, 2022, amended the Code by repealing former § I-310-3.160 in its entirety. Former § I-310-3.160 pertained to lobbyists, and derived from Ord. 262.1, adopted April 5, 2005; Ord. 262.4, adopted January 16, 2007; and Ord. No. 262.6, adopted May 5, 2009.

Members of the City Council (including the Mayor), Planning Commission and the City Manager shall maintain a monthly City Calendar form which includes all City-related appointments, meetings, including regular and special City Council and Planning Commission meetings, public events or speaking engagements, meetings with developers, meetings with consultants, meetings with lobbyists, regional meetings, and meetings of subcommittees or task forces, but not to include social and personal events. The description shall include the meeting's duration, and shall include a listing of all principal individuals present at meetings with developers, meetings with consultants, and meetings with lobbyists. The Mayor, City Council, City Manager and Planning Commission members shall submit the updated calendar forms for the prior month onto their individual on-line calendars which shall be maintained and available to the public on the City website. Councilmembers and Commissioners shall be trained in the operation and procedures for entering or re-entering data into an automated calendaring system maintained on the City's website. (Ord. 262.1 § 3 (part), 4/5/05)

(Ord. No. 262.6, § 2, 5/5/09)

(a) The Mayor, City Council and City Manager shall for a reasonable period maintain, preserve, and archive documents and correspondence, including but not limited to letters, e-mails, drafts, memoranda, invoices, reports and proposals that pertain to or are within the subject matter jurisdiction of the official's duties (as defined by the City Council Rules Subcommittee) and shall disclose all such records in accordance with this chapter.

(b) Any e-mail that is created or received in connection with the transaction of public business and which (1) the department or office retains as evidence of its activities, or (2) relates to the legal or financial rights of the City or of persons directly affected by the activities of the City is a public record. The standard for determining if e-mail is a public record that must be retained is identical to the standard that applies to any document. See California Government Code § 6252(e). If an e-mail must be retained, it should be printed out and the hard copy retained in the appropriate file unless the department or office can reliably retain and retrieve all e-mail in electronic format. (Ord. 262.4 (2) (part), 1/16/07; Ord. 262.1 (3) (part), 4/5/05)

(Ord. No. 262.6, § 2, 5/5/09)

Solicitation of donations by elected officials for charitable purposes and third party political campaigns is permitted. Contributions over $100 made at the behest of an elected official must be reported to the City Clerk quarterly by the elected official making such requests. Such report is a public record. Reports must contain the following information:

1. Name of payer.

2. Address of payer.

3. Amount of payment.

4. Date or dates the payment or payments were made.

5. Name and address of the payee.

6. A brief description of the goods or services provided or purchased, if any.

7. A description of the specific purposes or event for which the payment or payments were made. (Ord. 262.1 (3) (part), 4/5/05)

(Ord. No. 262.6, § 2, 5/5/09)

For a period of two years following the expiration of their term, the Mayor and all members of the City Council and Planning Commission shall be prohibited from using the experience or contacts arising from their former office to assist any applicant through the permitting process. This provision is intended to supplement additional restrictions contained in Chapter 300, "Regulations of Certain Activities of Former City Officials." (Ord. 262.1 (3) (part), 4/5/05)

(Ord. No. 262.6, § 2, 5/5/09)

(a) Once annually, in the first two weeks of April, the City Attorney shall review all completed Form 700s (the statement of economic interests required by Government Code 85700 of certain enumerated local officials) submitted by the City Manager, the Mayor, members of staff required to file Form 700 and all members of the City Council and Planning Commission. The City Manager shall review the Form 700 submitted by the City Attorney. Staff liaisons shall review Form 700s for their respective commissions and commissioners.

(b) Not later than April 15th of each year the City Clerk shall scan the Form 700s of the City Council and Planning Commission and copy them into the City's official website. The City Clerk shall also scan all prior Form 700s of sitting City Councilmembers, the Mayor, the City Manager, the City Attorney, and members of the Planning Commission retroactive to the beginning of their continuous term so that these required disclosures are readily available to the public for inspection. (Ord. 262.1 (3) (part), 4/5/05)

(Ord. No. 262.6, § 2, 5/5/09)

The purpose of this chapter is to impose registration and disclosure requirements on those engaged in efforts to influence the decisions of City policy makers for compensation. Disclosure of lobbyists' identities and activities fosters public confidence in government officials by making government decision-making more transparent to the public. Additionally, the disclosure and registration requirements ensure that City officials are made aware of the interests that lobbyists represent when the officials are lobbied.

(Ord. No. 312, § 2, 6/21/22)

Unless the term is specifically defined in this chapter or the contrary is stated or clearly appears from the context, the definitions set forth in Government Code section 81000 et seq., shall govern the interpretation of this chapter.

(Ord. No. 312, § 2, 6/21/22)

For the purposes of this chapter, the following definitions shall be applicable:

(a) "Activity expense" means any payment made by a lobbyist to or directly benefiting any City official, City official-elect or member of his or her immediate family. Activity expenses include gifts, honoraria, consulting fees, salaries and any other form of compensation, but do not include campaign contributions.

(b) "Administrative action" means the proposal, drafting, development, consideration, advocacy or recommendation of any rule, regulation, agreement or contract, permit, license or hiring action.

(c) "At the behest" means at the specific direction of, or at the personal request or suggestion of, or with the express prior consent of, any elective City official, City official-elect or candidate for elective City office.

(d) "City official" means any public official, or City employee who participates in the consideration of any legislative action or administrative action other than in a purely clerical, secretarial or ministerial capacity. It shall also include any City board or commission member, or City representative to any joint powers authority to which the City is a party, and any consultant to the City.

(e) "Client" means a person who is represented by a lobbyist.

(f) "Compensation" includes, but is not limited to, money of any denomination or origin; goods or services or anything of value, delivered or rendered; commissions related to the purchase or sale of real property, or a contract or promise therefor; or promises to perform or provide services or contractual arrangements or awards.

(g) "Contact" means attendance at a meeting with a City official or City official-elect, or any direct communication with a City official or City official-elect, whether oral, electronic or in writing, including, but not limited to communication through an agent, associate or employee, for the purpose of engaging in lobbying activity.

(h) "Fundraising activity" means soliciting a contribution; hosting or sponsoring a fundraising event; or hiring a fundraiser or contractor to conduct any event designed for political fundraising at which contributions for any City official, candidate for elective City office or any controlled committee of an elected City official or candidate for City office or for any political action committee, political party or candidate for elective office of a governmental organization are solicited, delivered or made.

(i) "Gift" means gift as defined in the California Political Reform Act, Government Code Section 81000 et seq., as amended from time to time.

(j) "Independent expenditure" means an expenditure made by any person, including a payment of public moneys by a state or local governmental agency, in connection with a communication which expressly advocates the election or defeat of a clearly identified candidate or the qualification, passage or defeat of a clearly identified measure, or taken as a whole and in context, unambiguously urges a particular result in an election but which is not made to or at the behest of the affected candidate or committee.

(k) "Influencing" means the purposeful communication, either directly or through agents, promoting, supporting, modifying, opposing, causing the delay or abandonment of conduct, or otherwise intentionally affecting the behavior of a City official or official-elect, by any means, including, but not limited to, providing or using persuasion, information, incentives, statistics, studies or analyses.

(l) "Intermediary" means a person who makes a campaign or officeholder contribution on behalf of another person. A person is an intermediary for a contribution if the recipient of the contribution would consider that person to be the contributor without the disclosure of the identity of the true source of the contribution. A lobbyist acts as an intermediary if the lobbyist makes a contribution on behalf of another person, and that other person is acknowledged as the contributor, and the lobbyist is reimbursed for the contribution.

(m) "Legislative action" means the drafting, introduction, consideration, modification, enactment or defeat of any resolution, ordinance, amendment thereto, report, nomination, or other action of the Mayor, City Council, any City board, committee, or commission or any joint powers authority of which the City is a party, acting in its official capacity, or the granting, approval, or amendment of contracts or agreements to which the City is a party by any of the foregoing.

(n) "Lobbying" is the influencing or attempting to influence a legislative action or administrative action of the City.

(o) "Lobbyist," unless exempt under subsection (p) of this section, means:

(1) Contract lobbyist: A person who engages in lobbying on behalf of one or more clients (acting individually or through agents, associates, employees or contractors) and who has received or has entered into an agreement for compensation of $1,000.00 or more, or equivalent nonmonetary compensation ("threshold Compensation") for engaging in lobbying during any consecutive three-month period;

(2) Business or organization lobbyist: Any business or organization, whose owner(s), officer(s) or employee(s) carry out lobbying on its behalf, in an aggregate amount of ten hours or more within any consecutive 12-month period, whether or not such officers or employees are specifically compensated to engage in lobbying; provided, that the activities of officers shall be considered lobbying only if those officers receive compensation by the business or organization beyond reimbursement for their reasonable travel, meals or incidental expenses; or

(3) Expenditure lobbyist: A person who makes payments or incurs expenditures of $5,000.00 or more during any calendar year in connection with carrying out public relations, advertising or similar activities with the intent of soliciting or urging, directly or indirectly, other persons to communicate directly with any City official in order to attempt to influence legislative action or administrative action. The $5,000.00 threshold shall not include: (A) Compensation paid to contract lobbyists or employees for lobbying; or (B) dues payments, donations, or other economic consideration paid to an organization, regardless of whether the dues payments, donations or other economic consideration are used in whole or in part to lobby.

(p) Exemptions to "lobbyist" include:

(1) Any public official acting in his or her official capacity or acting within the scope of his or her employment or appointment;

(2) The media, when limiting its action to the ordinary course of news gathering or editorial activity, as carried out by members of the press. "Media" shall mean newspapers or any other regularly published periodical, radio or television station or network or information published on the Internet. This exemption does not apply to individuals conducting media activities when that individual would otherwise qualify as a contract lobbyist under this chapter;

(3) Persons reimbursed for only their reasonable travel, meals or incidental expenses, including, but not limited to, uncompensated members or directors of nonprofit organizations, such as chambers of commerce;

(4) Persons whose communications regarding any legislative action or administrative action are solely limited to appearing at or submitting testimony for any public meeting held by the City or any of its agencies, offices, or departments, as long as the communications thereto are public records available for public review. Persons who appear or testify at public meetings and who otherwise qualify as lobbyists due to other activities must register and disclose their lobbying activities directed toward City officials, and must identify themselves and their clients at public meetings, in the same manner and to the same extent such registration, disclosure, and identification is required of all other lobbyists;

(5) Persons submitting bids or responding to requests for proposals, provided the provision of such information is limited to direct conversation or correspondence with the official or department specifically designated to receive such information;

(6) Persons providing oral or written information pursuant to a subpoena or otherwise compelled by law or regulation, or in response to an official request; provided, that the request and response thereto are public records available for public review;

(7) Designated representatives of a recognized employee organization whose activities are limited to communicating with City officials or their representatives regarding (A) wages, hours and other terms or conditions of employment, or (B) the administration, implementation or interpretation of an existing employment agreement;

(8) Persons who are professionally licensed by a State licensing organization pursuant to the California Business and Professions Code, including, but not limited to, attorneys, architects and engineers; provided however, the exemption for attorneys shall only be applicable if the attorney is engaged in the practice of law with respect to the subject of the employment;

(9) Board members or employees of nonprofit 501(c)(3) corporations, unless the nonprofit organization is lobbying for a specific project, issue or person for which the organization has received compensation or a contribution to lobby for or against a specific project, issue or person;

(10) Members of neighborhood associations;

(11) A person hired by the City for work performed on behalf of the City, or a person who prepares documents for consideration by the City under the California Environmental Quality Act;

(12) The owner of a business whose attempts to influence governmental action are on behalf of the business and:

(i) The owner or business has not retained a person to engage in lobbying activity on behalf of the owner or business; or

(ii) Officers or employees of the business (not including the owner) have not engaged in lobbying activity on behalf of the owner or business.

(iii) This exemption applies only to the threshold for becoming a business or organization lobbyist as defined under section I-310-3.5.30(o), subsection (2). An owner of a business who meets this exemption is subject to the requirements of this chapter if he or she meets the definition of contract lobbyist or expenditure lobbyist as defined under subsections (1) and (3) of section I-310-3.5.30(o), respectively;

(13) Persons who meet with City officials solely to lodge "whistleblower" complaints relating to alleged improper governmental activity such as mismanagement, waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;

(14) Persons whose communications with City officials are solely in connection with the administration of an existing contract or agreement between the person and the City; or

(15) Persons who meet with the City Attorney, or City staff regarding any claim or litigation matter, negotiation of any agreements or contracts where the City is a party, or the requirements or interpretation of this chapter.

(q) "Organization" means any person that is not an individual.

(r) "Person" means any individual, domestic or foreign corporation, for-profit or nonprofit entity, firm, association, syndicate, union, chamber of commerce, joint-stock company, partnership of any kind, limited liability company, common-law trust, society, or any other group of persons acting in concert.

(Ord. No. 312, § 2, 6/21/22)

Lobbyists shall register with the City Clerk within 15 days after qualifying as a lobbyist under Milpitas Municipal Code section I-310-3.5.30. Should a lobbyist have a change to its registration information, including, but not limited to, the city legislative action or administrative action as to which the lobbyist has been engaged, after the annual registration period, such lobbyist shall file an amended registration with the City Clerk within 15 days of such change with the changed information.

(Ord. No. 312, § 2, 6/21/22)

A lobbyist shall renew his or her registration by January 15 of each year unless he or she has terminated their status as a lobbyist pursuant to Milpitas Municipal Code section I-310-3.5.60 by such date.

(Ord. No. 312, § 2, 6/21/22)

After initial registration, annual registration renewal will not be required if a declaration attesting to the termination of lobbying services within the City has been filed with the City Clerk no later than January 15.

(Ord. No. 312, § 2, 6/21/22)

All registrations, renewals and terminations will be deemed filed on the date received by the City Clerk. A lobbyist shall be deemed active for the duration of the year of registration ending December 31, unless a declaration attesting to termination of lobbying services within the City is filed.

(Ord. No. 312, § 2, 6/21/22)

Persons subject to the registration requirements of this ordinance shall pay an annual fee set by resolution of the City Council.

(a) The applicable registration fee is due at the time of registration or registration renewal. Payment will be deemed delinquent thereafter. Delinquency fees may be assessed as specified in subsection (c) below, if payment occurs after the due date.

(b) In addition to the annual fee, each registrant shall pay a fee set by resolution of the City Council per client for whom lobbying is undertaken for compensation in excess of $500.00. The fees for clients as of the date of initial registration shall be submitted with the registration. The fees for subsequent clients shall be due and submitted within 15 days of such change with the changed information pursuant to section I-310-3.5.30.

(c) A fine of $25.00 per day for delinquent fees, up to a maximum of $500.00, will be assessed until in compliance with the registration provisions herein.

(Ord. No. 312, § 2, 6/21/22)

The initial registration shall contain the name, business address, telephone, email addresses and if applicable, business license of all persons required to register pursuant to this Chapter, including the names of all owners of sole proprietorships and partnerships of fewer than ten persons. If the registrant is a corporation, limited liability company, or limited liability partnership, it shall also include the names of the president, secretary, chief financial officer, managing members, and agent for service of process, if any. Any business or organization registering under this act shall also briefly describe the nature of its business or organization and contact individual. In addition to this information, the report shall contain the following:

(a) Contract lobbyists: The name, business address, telephone number of each client, the nature of each client's business and the item(s) of legislative action or administrative action the lobbyist is seeking to influence on behalf of the client; and the name of each person employed or retained by the lobbyist to lobby on behalf of each client.

(b) Business or organization lobbyists: The names of owners, officers or employees conducting lobbying activities and the item(s) of legislative action or administrative action the lobbyist is seeking to influence.

(c) Expenditure lobbyists: The item(s) of municipal legislative action or administrative action the lobbyist is seeking to influence.

(d) Payment received by the reporting lobbyist for services as a consultant or in any other capacity for services rendered to a City agency, any City official or any City official-elect or their controlled committees, or ballot measure committee within the previous calendar year. The dates of payment and name of each payer shall be included.

(e) Campaign and officeholder contributions that a lobbyist made, delivered or acted as an intermediary for, to an elected City official or candidate for City office made during the preceding calendar year. A person is an intermediary for a contribution if the recipient of the contribution would consider that person to be the contributor without the disclosure of the identity of the true source of the contribution. Also, a lobbyist acts as an intermediary if the lobbyist makes a contribution on behalf of another person, and that other person is acknowledged as the contributor, and the lobbyist is reimbursed for the contribution.

(f) Campaign and officeholder contributions made at the behest of an elected City official or candidate to any other elected public official or candidate for public office during the preceding calendar year.

(g) All independent expenditures made for or on behalf of a City official or candidate for City office made during the preceding calendar year.

(h) Fundraising activity for any City official, candidate for elective City office or any controlled committee of the elected City official or candidate for City office or for any political action committee, political party or candidate for elective office of a governmental organization made at the behest of a City official during the preceding calendar year. Required information and disclosures must include the name of the City official, candidate, committee or party on whose behalf the lobbyist engaged in fundraising activities, or delivered or acted as intermediary for one or more contributions. The information and disclosures must also include the name of the City official requesting the fundraising activity, the date of the fundraising activity, the name of the contributors and the amount of contributions raised, delivered and/or made in connection with which the lobbyist acted as an intermediary.

(i) Donations to for profit or nonprofit organizations made at the behest of a City official or candidate for elective City office of any contribution or payment of more than $1,000.00 in the aggregate made during the preceding calendar year.

(j) Contacts made with City officials or City officials-elect during the preceding calendar year for the purpose of influencing or attempting to influence legislative action or administrative action. Contact information must include a brief description of the item(s) of legislative action or administrative action the lobbyist is seeking to influence, the date(s) of contact, the method(s) of contact, and the number of contacts in the following ranges: (one), (two to five), (six to ten) or (11 or more).

(k) Activity expenses such as payments that directly benefit any City official, City official-elect or member of his or her immediate family or domestic partner made during the preceding calendar year. Activity expenses include gifts, honoraria, consulting fees, salaries and other forms of compensation, but do not include campaign contributions.

(l) The name, address, title and telephone number of the person responsible for preparing the report, together with that individual's signature attesting to the authority of the signatory and the accuracy and truthfulness of the information submitted.

(Ord. No. 312, § 2, 6/21/22)

Quarterly reports for the prior three-month period are to be filed with the City Clerk on or before July 15, October 15, January 15, and April 15 of each year, whether or not any lobbying activities have occurred during such period. Electronic reporting may also be permitted by the City Clerk. Each quarterly report shall contain the same information as required to be disclosed in the initial registration, for those activities occurring in that period. If a lobbyist has terminated all lobbying activities during such period, the lobbyist may file a declaration of termination with the quarterly report. The final quarterly report shall include disclosure of any lobbying activities during the period of termination.

(Ord. No. 312, § 2, 6/21/22)

All information, reports and statements required to be filed under the provisions of this chapter shall be compiled and preserved by the City pursuant to the City's records retention schedule and shall be open to public inspection. Copies of the records pertaining to the above-required reports shall be preserved by the lobbyist for inspection and audit for a period of four years from date of production.

(Ord. No. 312, § 2, 6/21/22)

When appearing in a lobbying capacity at any meeting with a City official or at a public meeting of the City Council or any other City board, commission or hearing, a contract lobbyist shall identify himself/herself and the client(s) on whose behalf he/she is appearing, and a business or organization lobbyist shall identify himself/herself and the business or organization he/she represents.

(Ord. No. 312, § 2, 6/21/22)

It shall be unlawful for any lobbyist to commit any of the following acts:

(a) Unregistered lobbying: Acting as a lobbyist in the City without having registered in compliance with this chapter, or knowingly to employ a person or entity to serve as a lobbyist when such person is not registered pursuant to this chapter.

(b) Unauthorized communications: Sending or causing any communication to be sent to any City official in the name of any nonexistent person or in the name of an existing person without the express or implied consent of such person.

(c) Indirect violations: Attempting to evade the requirements of this chapter through indirect efforts or through the use of agents, associates, intermediaries or employees.

(d) Creation of obligations: Performing or sponsoring any act with the purpose and intent of placing any City official under personal obligation to the lobbyist.

(Ord. No. 312, § 2, 6/21/22)

It shall be unlawful for any lobbyist to deliver or cause to be delivered any gift to any City official, and for any City official to accept any gift from a lobbyist.

(Ord. No. 312, § 2, 6/21/22)

Persons or entities that violate this chapter may be subject to penalties as set forth in Milpitas Municipal Code sections I-1-4.09-1 to I-1-4.09-11.

(Ord. No. 312, § 2, 6/21/22)

The City Attorney or his designee may seek injunctive relief in the courts to enjoin violations of or to compel compliance with the provisions of this chapter.

(Ord. No. 312, § 2, 6/21/22)

No person who the City finds to have violated this chapter may act as a lobbyist or otherwise attempt to influence municipal legislative actions or administrative actions for compensation for one year after such finding of violation.

(Ord. No. 312, § 2, 6/21/22)

Any person who in good faith and on reasonable grounds believes that he or she is not required to comply with the provisions of Milpitas Municipal Code section I-310-3.5.40 by reason of his or her being exempt under Milpitas Municipal Code section I-310-3.5.30(p) shall not be deemed to have violated the provisions of Milpitas Municipal Code section I-310-3.5.40 if, within 15 days after notice from the City, he or she either complies or furnishes satisfactory evidence to the City that he or she is exempt from registration.

(Ord. No. 312, § 2, 6/21/22)

(a) Any lobbyist who contracts for economic consideration with the City of Milpitas to represent the City in matters before any local, regional, state, or federal administrative or legislative body shall file a public records report of their activities on a quarterly basis with the City Clerk's office. This report shall be maintained by the City Clerk's office and not be exempt from disclosure. Each quarterly report shall identify all financial expenditures by the lobbyist, the individual or entity to which each expenditure was made, the date the expenditure was made, and specifically identify the local, state, regional or national legislative or administrative action the lobbyist supported or opposed in making the expenditure. The failure to file a quarterly report with the required disclosures shall be a violation of this chapter.

(b) No person shall be deemed a lobbyist on behalf of the City under subsection (a) of this section, unless that person receives or becomes entitled to receive at least $250.00 total compensation in any month for influencing legislative or administrative action on behalf of the City of Milpitas. No business or organization shall be deemed as a lobbyist under subsection (a) of this section unless it compensates its employees or members for their lobbying activities on behalf of the City of Milpitas, and the compensated employees or members have at least 25 separate contacts with local, state, regional or national officials for the purpose of influencing legislative or administrative action within any two consecutive months. "Total compensation" shall be calculated by combining all compensation received from the City of Milpitas during a month of lobbying activities on matters at the local, state, regional or national level. "Total number of contacts" shall be calculated by combining all contacts made during a two-month period on behalf of the City of Milpitas for all lobbying activities on matters at the local, state, regional or national level.

(c) Funds of the City of Milpitas shall not be used to support any lobbying efforts to restrict public access to records, information, or meetings, except where such effort is solely for the purpose of protecting the identity and privacy rights of private citizens.

(Ord. No. 312, § 2, 6/21/22)

(a) Previously established was a subcommittee of the City Council of the City of Milpitas known as the "City Council Open Government Subcommittee." The City Council Open Government Subcommittee is hereby replaced by the Rules Subcommittee and shall consist of two members of the City Council. The City Attorney's Office shall serve as legal advisor to the Subcommittee. The Subcommittee shall, at its request, have assigned an attorney from within the City Attorney's Office, who is experienced in the laws relating to public access and open government. This attorney shall serve as the legal advisor to the Subcommittee and shall be appointed by the City Attorney.

(b) The Subcommittee shall advise the City Council on appropriate ways in which to implement this Chapter. The Subcommittee shall develop appropriate goals to ensure practical and timely implementation of the Open Government Ordinance. The Subcommittee shall make recommendations to the City Council on amendments to this Chapter. The Subcommittee shall report to the City Council at least once annually on any practical or policy problems encountered in the administration of the Open Government Ordinance. To the extent available, the Subcommittee shall receive and review regular quarterly reports on requests for public information. Such reports shall not identify the requestor or any information confidential by law.

(c) The Subcommittee shall recommend to the City Council an administrative process for the review and enforcement of the Open Government Ordinance. No such administrative process shall preclude, delay or in any way limit a person's remedies under the Brown Act or the California Public Records Act.

(d) In addition to the powers specified above, the Subcommittee shall possess such powers as the City Council may confer upon it by ordinance or as the people of Milpitas shall confer upon it by initiative.

(Ord. No. 262.6, § 2, 5/5/09; Ord. 262.4 (1), 1/16/07)

The City Manager shall administer and coordinate the implementation of the provisions of this chapter. The City Clerk shall provide and perform administrative duties for the Subcommittee and assist any person in gaining access to public meetings or public information. The City Manager shall provide the Subcommittee's staff person with whatever facilities and equipment are necessary to perform said duties.

(Ord. No. 262.6, § 2, 5/5/09; Ord. 262.1 (3) (part), 4/5/05)

(a) It is the policy of the City of Milpitas to ensure opportunities for informed civic participation embodied in this chapter to all local, state, regional and federal agencies and institutions with which it maintains continuing legal and political relationships or partnerships. The City Council Rules Subcommittee shall continually, consistently and assertively work to seek commitments to enact open meetings, public information and citizen comment policies by these agencies and institutions.

(b) To the extent not expressly prohibited by law, any meeting of the governing body of any such agency and institution at which City officers, agents or representatives are present in their official capacities shall be open to the public, and this provision cannot be waived by any City officer, agent or representative.

(c) Private entities, which receive a grant of financial support or property pursuant to action by the City Council and are governed by a multi-member body, which includes one or more members of the City Council, shall be governed by the provisions of the Ralph M. Brown Act and the California Public Records Act.

(Ord. No. 262.6, § 2, 5/5/09; Ord. 262.4 (2) (part), 1/16/07; Ord. 262.1 (3) (part), 4/5/05)

(a) All City department heads, management employees, board members, commissioners, and all employees or public officials who are required to sign an affidavit of financial interest with the City Clerk shall attend a training session on the Open Government Ordinance upon the commencement, or as soon thereafter, of their term or employment. The affidavit or declaration shall be maintained by the City Clerk and shall be available as a public record. Training shall be provided by the City Attorney's Office.

(b) All new employees shall receive Open Government Ordinance training upon the commencement, or as soon thereafter, of their employment.

(c) After an employee or public official's initial training, Open Government Ordinance training is required every three years. (Ord. 262.5 (3), 11/6/07: Ord. 262.1 (3) (part), 4/5/05)

(Ord. No. 262.6, § 2, 5/5/09)

The willful failure of any elected official, department head, or other managerial City employee to discharge any duties imposed by the Open Government Ordinance, the Brown Act or the Public Records Act shall be deemed official misconduct. (Ord. 262.1 § 3 (part), 4/5/05)

(Ord. No. 262.6, § 2, 5/5/09)

(a) Any person may institute proceedings for injunctive relief, declaratory relief, or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this ordinance or to enforce his or her right to attend any meeting required under this ordinance to be open, or to compel such meeting to be open.

(b) A court shall award costs and reasonable attorneys' fees to the plaintiff who is the prevailing party in an action brought to enforce this chapter.

(c) If a court finds that an action filed pursuant to this section is frivolous, the City may assert its rights to be paid its reasonable attorneys' fees and costs.

(d) Any person may institute proceedings for enforcement and penalties under this ordinance in any court of competent jurisdiction if enforcement action is not taken by a City or state official forty (40) days after a complaint is filed. (Ord. 262.1 § 3 (part), 4/5/05)

(Ord. No. 262.6, § 2, 5/5/09)

The provisions of this Open Government Ordinance supersede other local laws. Whenever a conflict in local law is identified, the requirement, which would result in greater or more expedited public access to public information, shall apply. The provisions of this Open Government Ordinance shall apply to all applicable and relevant provisions of the Milpitas Municipal Code. (Ord. 262.1 § 3 (part), 4/5/05)

(Ord. No. 262.6, § 2, 5/5/09)

The provisions of this chapter are declared to be separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section or portion of this chapter, or the invalidity of the application thereof to any person or circumstances, shall not affect the validity of the remainder of this chapter, or the validity of its application to other persons or circumstances. (Ord. 262.1 § 3 (part), 4/5/05)

(Ord. No. 262.6, § 2, 5/5/09)