On February 18, the city council stripped the Open Government Commission of its authority to enforce the Sunshine Ordinance, Alameda’s open-government law. The commission no longer has the power to nullify an action passed in violation of the Sunshine Ordinance and order corrective action through a rehearing.
The commission can now only “recommend” not “order” corrective action if a violation occurs. While all the councilmembers agreed with this change, Vice-Mayor John Knox White and Councilmember Malia Vella wanted to wait until the commission had a chance to come up with new language that would give some teeth to its potential “recommendations.”
The Open Government Commission was created to oversee and enforce the Sunshine Ordinance. But the one and only time the commission sided with a complainant, the council refused to honor the commission’s decision that ordered the Council to re-agendize the matter.
By removing the commission’s ability to hold the city accountable, the commission is rendered toothless and complainants are left with only two options—asking the city council to rule on an alleged wrongdoing or suing the city. The entire Open Government Commission has already rejected the amendment three times.
The city attorney had opined that a non-legislative body, such as the commission, could not be granted enforcement authority—a justification initiated by some councilmembers. He did not address why “enforcing” a law enacted by the council regarding the conduct of its meetings is “legislative power.”
Many residents, including several attorneys who said the city had misstated the law, argued for preserving the cure-and-correct remedy.
The Alameda League of Women Voters said the commission “is more likely to be viewed by the public as a neutral arbiter of council adherence to proper procedures than the council itself.” Former Vice Mayor Lena Tam added, “Eliminating the current enforcement provisions would undermine trust in our city government by allowing the council to be its own watchdog.”
Mayor Marilyn Ezzy Ashcraft and Councilmember Jim Oddie countered, expressing concern that people might use the Open Government Commission to overturn laws they do not like. Conversely, the commission has made it clear on numerous occasions that they have no interest in the merits of any legislation, only that it has been properly noticed.
No distinction was made between overturning or nullifying a decision versus “staying” it. Nor was the call for requiring the city council to suspend enacting legislation when a Sunshine Ordinance complaint is pending entertained.
The only person who sided with the council majority was former Mayor Trish Spencer, who said if voters didn’t trust the council they could always carry their grievances to the ballot box. Mayor Ashcraft concurred, saying they could also run for public office.
Originally published in Alameda Sun
See related post “Unchecked Executive Privilege at City Hall”
I on Alameda 
Current and past City Attorneys said this enforcement provision was illegal, that the Open Government Commission (OPG), like all City Commissions, can make recommendations or suggestions to Council, but cannot void Council decisions, which violates the City Charter. Speakers opposing the City Attorney expressed that they don’t trust Council. My complete comments, which are misrepresented in this article, were that if people don’t trust Council, you vote in different people or recall, but you don’t support illegal laws/ordinances that contradict/violate the City Charter. The public elects Councilmembers and thus there is accountability; commissioners are appointed by Council, thus not accountable to the people. The Charter has Council making decisions, this provision delegated that to the OGC by allowing the OGC to void Council decisions. The OGC complaint filed by Serena Chen opposed the cannabis ordinance (which she consistently opposed) and was the first OGC complaint since inception of the Sunshine Ordinance. Thus, the City never had the OGC act to void a Council decision before and the City Attorney had to weigh in to honor our City Charter. The 3 councilmembers that took action per the City Attorney did so to honor our Charter. As we’ve recently already experienced, it is critical that the City Charter be followed. It’s inappropriate to knowingly keep an ordinance that violates the Charter.
I filed the Sunshine Ordinance complaint after the city council voted to double the number of permits issued for walk-in cannabis dispensaries from 2 to 4 with adequately posting that in the agenda. My participation in the cannabis hearings was not to stop any dispensaries but to ask that the city include evidence-based public health provisions to reduce youth exposure — like including buffer zones around schools and youth-focused services and limiting the number of dispensaries to be allowed.. In December 2017, after multiple hours-long hearings, the city council agreed to issue two permits for walk-in dispensaries, as well as buffer zones. Before the first approved dispensary even opened, the council voted on Oct. 16, 2018 to double the number of full customer service dispensaries allowed without, I believe, adequately posting this proposal. The agenda only mentioned some minor zoning changes and the addition of two “delivery-only” dispensaries. The staff report further described these proposed dispensaries as having “no public access.” Based on my knowledge and experience in spending over 2+ decades working to establish secondhand smoke protections and regulations around the sales of tobacco in cities throughout Bay Area, I volunteered my time in my hometown of Alameda to make sure that we “get it right from the start” as we introduce legal cannabis sales. I have attended and participated in over 400 city/county hearings and each and every time a key ordinance provision was changed during council discussion, either the city attorney or a council member interrupted the proceedings to opine that such a change without proper notice could be considered a violation of the Brown Act.
At that point council could decide to go with what was written or return the new wording at a subsequent hearing to allow the public proper notice. This did not happen at the Oct. 16, 2018 meeting which shocked me after I viewed the video of the meeting. I contacted council members to express my surprise and I suggested that they just re-post the ordinance with the changes to allow the public to comment. I was told, no, that I could always testify at the 2nd reading. This “solution,” I thought, was not in compliance with Alameda’s Sunshine Ordinance, and I spoke with several elected officials (non-council) who concurred with me and urged me to file a complaint. I filed the complaint because I believed the Council had failed to follow the intent of the Brown Act and the Sunshine Ordinance by not posting the item accurately — i.e., to add two FULL SERVICE cannabis dispensaries allowed, thereby doubling the number allowed in the city — in order to give residents an opportunity to comment. If they had simply done so, it was very likely that the three-person majority would have passed it — just two weeks later than planned.
The Sunshine Ordinance does not allow the Open Government Commission to overturn anything. It does allow it to say to council that it failed to follow the process of adequate notification and the correction is to re-do the vote. The council has the power to legislate, the Commission is only called upon to decide if a council action was done so improperly.