Part 4 — ADMINISTRATION AND ACCOUNTABILITY

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:

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.

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.

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.

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.)