Chapter 12.21

OPEN GOVERNMENT

Parts:

• 1 Name and Purpose

• 2 Definitions

• 3 Ethical Standards

• 4 Administration and Accountability

Part 1

NAME AND PURPOSE

Sections:

• A. This chapter will be referred to as the "open government ordinance." The city is committed to open and honest government and strives to meet the community's expectations consis-

tently by providing excellent service, in a positive and timely manner, and in the full view of the public.

• B. The city council appointed the sunshine reform task force to provide recommendations on a number of matters related to open government. The recommendations of the sunshine reform task force included tools to increase public access to information, enhance neighborhood and community participation, and ensure government accountability.

• C. The specific recommendations of the sunshine reform task force, as adopted by the city council, are contained in that certain consolidated open government and ethics resolution adopted simultaneously with this chapter and referred to as "the consolidated open government and ethics resolution." These policies and procedures are an integral part of a citywide initiative to assist all segments of city government to understand and adopt the reforms and model the behavior of an ethical organization. These policies and procedures are intended to complement the city employee values of integrity, respect, innovation, excellence, collaboration and celebration.

• D. The provisions of this chapter and the consolidated open government and ethics resolution implementing this chapter, are in addition to all applicable state laws.

• (Ord. 29460.)

Part 2

DEFINITIONS

Sections:

12.21.200 Definitions.

12.21.210 Brown Act.

• 12.21.220 City boards, commissions and committees.

• 12.21.230 Consolidated open government and ethics resolution.

12.21.240 Council appointees.

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§ 12.21.200

"Council appointees" means the city manager, city attorney, city clerk, city auditor, and independent police auditor.

(Ord. 29460.)

The definitions set forth in this part shall govern the application and interpretation of this chapter.

(Ord. 29460.)

"Brown Act" means the Ralph M. Brown Act (Government Code Sections 54950 et seq.), as amended. Except as otherwise provided here, the terms and provisions of this chapter shall be interpreted in accordance with the applicable definitions and provisions of the Brown Act and any administrative or judicial interpretations of the Brown Act. (Ord. 29460.)

"Decision-making bodies" means those bodies created by either the city charter or the city council that, among other functions, powers and duties, receive evidence and make final decisions about matters that cannot be appealed to another city body.

(Ord. 29460.)

A "Non-governmental body" means a nonprofit entity that:

• A. Operates or maintains a city facility with a value of over five million dollars for city purposes; or

• B. Receives annually at least the amount of the city manager's contracting authority in financial assistance from the city.

• (Ord. 29460.)

"City boards, commissions and committees" means those bodies created by either the city charter or the city council. The terms city boards, commissions and committees excludes decision-making bodies.

(Ord. 29460.)

"Consolidated open government and ethics resolution" means the resolution adopted simultaneously with this chapter, as may be amended, that includes the specific recommendations of the sunshine reform task force, and amends and consolidates the city's open government and ethics policies and procedures, as adopted by the city council. (Ord. 29460.)

"Open government manager" means the person designated by the city manager to be responsible to coordinate interdepartmental responses to Public Records Act requests, and assist on complex requests.

(Ord. 29460.)

"Political Reform Act" means the California Political Reform Act (Government Code Sections 81000 et seq.), as amended. Except as otherwise provided here, the terms and provisions of this chapter shall be interpreted in accordance with the applicable definitions and provisions of the Political Reform Act and any administrative or judicial interpretations of the Political Reform Act. (Ord. 29460.)

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ETHICS AND OPEN GOVERNMENT PROVISIONS

§ 12.21.310

"Public Records Act" means the California Public Records Act (Government Code Sections 6250 et seq.), as amended. Except as otherwise provided in this chapter, the terms and provisions of this chapter shall be interpreted in accordance with the applicable definitions and provisions of the Public Records Act and any administrative or judicial interpretations of the Public Records Act. (Ord. 29460.)

"Rules and open government committee" (alternatively, the "rules committee") means the council committee established pursuant to the council rules of conduct resolution, or its successor, that, among other things, considers and makes recommendations to the council on disputes over Public Record Act requests. (Ord. 29460.)

• D. City contracts shall require vendors and contractors to comply with Chapter 12.08 of the San José Municipal Code. Additionally, all consultant agreements shall require the avoidance of conflicts of interest or appearance of conflicts of interest in the performance of services. Bidders and proposers shall comply with the provisions in the consolidated open government and ethics resolution applicable to bidders and proposers.

• E. A statement regarding the city's ethical standards shall appear in a prominent place on appropriate city materials, whether printed, electronic or posted on the city's web site. In addition, the appropriate link to the city's web site address for the city's code of ethics shall appear in a prominent place on appropriate city materials, whether printed, electronic or posted on the city's web site.

• (Ord. 29460.)

Part 3

ETHICAL STANDARDS

Sections:

• A. The city council has also adopted the city's code of ethics, which applies to the conduct of members of the city council, council committees, city boards, commissions and committees, decision-making bodies, and city employees.

• B. All elected and appointed officials, and employees of the city, shall each sign a certification that he or she will abide by the city's code of ethics.

• C. Volunteers who participate in city programs shall adhere to the code of ethics for volunteers and sign a certification agreeing to do so.

• A. Consistent with state law and the consolidated open government and ethics resolution, councilmembers shall recuse themselves from the decision-making process when an actual conflict arises.

• B. In order to ensure equal, full and fair access to all substantive information, any members of a decision-making body when considering a matter before the decision-making body shall disclose any relevant substantive information he or she has received from any source outside the public decision-making process when that matter is under consideration of the body.

• (Ord. 29460.)

Part 4

ADMINISTRATION AND ACCOUNTABILITY

Sections:

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§ 12.21.400

• A. It shall be the policy of the city to provide regular education and training about the open government ordinance, the consolidated open government and ethics resolution, Brown Act, Public Records Act and Political Reform Act, which is essential to achieve compliance.

• B. In conjunction with the mayor's review of the city's code of ethics, as required by San José City Charter Section 607, the city manager's office shall provide to the council regular reports about the city's compliance with the open government ordinance and the consolidated open government and ethics resolution.

• (Ord. 29460.)

The city council shall review this chapter on open government and the consolidated open government and ethics resolution biennially, during the mayor's review of the city's code of ethics, which includes review of any ordinances related to ethics standards, as required by San José City Charter Section 607.

(Ord. 29460.)

• A. Any person may submit a complaint alleging that a meeting or closed session meeting has been held or is threatened to be held by members of any legislative body of the city in violation of the requirements of the Brown Act, this chapter, or the consolidated open government and ethics resolution, to the rules

and open government committee. Complaints alleging violation of the Brown Act may be submitted to the Santa Clara County office of the district attorney or filed with the superior court as set forth in the Brown Act.

• B. If the complaint is filed with the superior court, consistent with the Brown Act, the superior court may award court costs and reasonable attorney fees to the complainant should the complainant prevail in litigation filed pursuant to this section. If the superior court finds that the complainant's case is clearly frivolous, it may award court costs and reasonable attorney fees to the city.

• C. If the complaint is filed with the rules and open government committee:

  1. The rules and open government committee will consider the complaint as part of its regular meeting agenda. If the committee determines that additional consideration is warranted, it will set a schedule for additional hearing(s), which will be conducted in accordance with the brown act and the additional rules of procedure as described in the consolidated open government and ethics resolution.

  2. If the rules and open government committee determines that a member or members of a legislative body of the city held or are threatening to hold a public or closed session meeting in violation of the Brown Act, this chapter, or the consolidated open government and ethics resolution, it shall issue a demand that the member or members of the body cure or correct the action challenged.

  3. Within thirty days of receipt of the demand from the rules and open government committee, the subject of the demand shall cure or correct the challenged action and inform the committee in writing of either: (1) its actions to cure or correct; or (2) its decision not to cure or correct the challenged action.

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ETHICS AND OPEN GOVERNMENT PROVISIONS

§ 12.21.440

• D. If the legislative body of the city takes no action within the thirty-day period, the inaction shall be deemed a decision not to cure or correct the challenged action, and the rules and open government committee may refer the matter to the city attorney or the city council for further action.

• E. The city's failure to follow these administrative procedures will not result in the invalidation of any action taken by the city.

• (Ord. 29460.)

• A. Complaints alleging that records or some part of records are being withheld improperly under the Public Records Act, this chapter or the Consolidated Open Government and Ethics Resolution, may be appealed to the City's Open Government Manager, or the Rules and Open Government Committee.

• B. If the requestor is dissatisfied with the response from the City's Open Government Manager, they may appeal to the Rules and Open Government Committee.

• C. If the requestor is dissatisfied with the response from the Rules and Open Government Committee, they may appeal to the City Council.

• D. Appeals to the Rules and Open Government Committee, or the City Council must be submitted to the Office of the City Clerk.

• E. Records being withheld on the basis of attorney client privilege can only be appealed to the City Council.

• G. At any time, the requestor may file a complaint with the Santa Clara County Superior Court as set forth in the Public Records Act.

• H. Consistent with the Public Records Act, the superior court may award court costs and reasonable attorney fees to the complainant should the complainant prevail in litigation filed pursuant to this section. The costs and fees shall be paid by the city and shall not become a personal liability of any employee of the city

  • responsible for making the decision to refuse disclosure. If the superior court finds that the complainant's case is clearly frivolous, it may award court costs and reasonable attorney fees to the city.

• I. The city's failure to follow these administrative procedures will not result in the invalidation of any action taken by the city.

• (Ord. 30912.)

Editor’s note— Ord. 30912, adopted June 6, 2023, amended § 12.21.430 in its entirety, in effect repealing and reenacting said § 12.21.430 to read as set out herein. The former § 12.21.430, pertained to complaints regarding requests for public records and derived from Ords. 29460, 29772.

Penalties for violating the open government ordinance shall be progressive.

• A. If the complaint arose out of a minor violation based on a misinterpretation of this chapter or the consolidated open government and ethics resolution, the person or persons who misinterpreted the open government provisions shall participate in education and training about the open government ordinance and the consolidated open government and ethics resolution.

• B. If the rules and open government committee determines that intentional or repeated violation of this chapter or the consolidated open government and ethics resolution involved city employees, it may make a recommendation for corrective action to the city council or the appropriate council appointee of those city employees. If the rules and open government committee determines that intentional or repeated violation of this chapter or the consolidated open government and ethics resolution involved persons other than city employees, it may recommend corrective action to the city council for the city council's consideration.

• (Ord. 29460.)

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