Rancho Palos Verdes City Council
   

JUNE 1, 2004 WRITTEN COMMUNICATIONS AMONG COUNCILMEMBERS AND MEMBERS OF CITY COMMISSIONS AND COMMITTEES ABOUT AGENDA ITEMS

TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL

FROM: CAROL LYNCH, CITY ATTORNEY

DATE: JUNE 1, 2004

SUBJECT: WRITTEN COMMUNICATIONS AMONG COUNCILMEMBERS AND MEMBERS OF CITY COMMISSIONS AND COMMITTEES ABOUT AGENDA ITEMS

RECOMMENDATION:

Adopt the attached policy establishing a procedure for the distribution among members of City legislative bodies of written communications by members about items that will be considered at their meetings.

BACKGROUND:

On occasion, members of City legislative bodies have prepared written communications asking questions of staff or asserting positions about an item that is to be discussed as part of the agenda of a duly noticed meeting of the legislative body of which that person is a member. The members have directed that the written communications be distributed to the other members of that legislative body so that the other members will be aware of those questions, concerns or comments.

The purpose of the attached policy is to establish the process for distributing these written communications so that the members’ concerns, comments and questions can be conveyed to, and considered by, the other members of the legislative body in compliance with the provisions of the Ralph M. Brown Act.

DISCUSSION:

The Ralph M. Brown Act, Government Code Section 54950, et seq., ("the Act") establishes the requirements that members of local governmental legislative bodies must follow so that city business is conducted in public at duly noticed meetings. (Government Code Section 54953(a).) Legislative bodies include the City Council and any committee or commission that is appointed or created by the City Council. (Government Code Section 54952.)

Government Code Section 54952.2 (b) of the Act prohibits the use of direct communication, personal intermediaries or technical devices that are employed by the members of a legislative body to develop a collective concurrence on an action to be taken. The Attorney General has opined that these provisions apply to email communications, since email is a technological device that enables the members of a legislative body to convey information or develop a collective concurrence about a matter of city business that is within the jurisdiction of the legislative body. 84 Ops. Cal. Att’y Gen. 30 (2001).

California courts have interpreted this Section as also prohibiting the use of such devices to ascertain facts or exchange information leading up to a proposed action. (See, Rowen v. Santa Clara Unified School District, 121 Cal.App.3d 231, 234 (1981). In addition, Government Code Section 54957.5(a) requires all agendas and other writings, which are not exempt from disclosure, that are distributed to the members of a legislative body to be made available to the public for review when the documents are distributed to a quorum of the members of the legislative body.

The attached policy provides a process by which written communications from a member of a legislative body can be shared with other members of that legislative body in compliance with the provisions of the Act. The policy governs any written communications, including, but not limited to, communications by email, statements of policy or position, and questions posed to City staff if the written communication: (1) is prepared or presented by a member of the City Council or a member of a City commission or committee; (2) is to be distributed or disseminated among a quorum of the members of the legislative body of which that person is a member; and (3) concerns an item that is to be discussed at a duly noticed meeting of that legislative body. The policy states that it is intended to be a limitation on the method by which written communications can be distributed among a quorum of members of City legislative bodies. The policy also states that the policy shall not be construed to permit or authorize any communication, written or otherwise, that does not comply with the provisions of the Ralph M. Brown Act, or other applicable provision of law.

The procedure that is established by the policy is as follows:

Any written communication that is to be distributed among a quorum of the membership of a City legislative body regarding an item that is listed on an agenda of a meeting of that legislative body shall be submitted to City staff, by 9:00 a.m., on the date when the agenda is to be distributed. Any written communication that is received by City staff after that deadline is to be held and shall not be distributed to the other members of the legislative body or made available to the public until the commencement of the meeting when the item is to be considered.

CONCLUSION:

Staff recommends that the City Council review the policy and provide any concerns or comments to Staff. Staff recommends that a policy addressing this issue be adopted so that a uniform procedure will be established for the distribution of materials prepared by members of the City Council and City commissions and committees about items that will be considered at their meetings. Once adopted, Staff then will distribute the policy to the members of all City commissions and committees.

Respectfully submitted,

Carol Lynch

City Attorney

 

Reviewed by:

Les Evans

City Manager

Attachment:

Draft City Council Policy No. 39

 

CITY COUNCIL POLICY

 

No. _____

Date Adopted: _______________

Subject: Written Communications Among Councilmembers and Members of City Commissions and Committees About Agenda Items

 

Policy: This policy governs any written communications, including, but not limited to, communications by email, statements of policy or position, and questions posed to City staff ("Written Communication") if it: (1) is prepared or presented by a member of the City Council or a member of a City commission or committee ("legislative body"); (2) is to be distributed or disseminated among a quorum of the members of the legislative body of which that person is a member; and (3) concerns an item that is to be discussed at a duly noticed meeting of that legislative body. This policy is a limitation on the method by which Written Communications can be distributed among a quorum of members of City legislative bodies. Nothing in this policy shall be construed to permit or authorize any communication, written or otherwise, that does not comply with the provisions of the Ralph M. Brown Act, or other applicable provision of law.

It shall be the policy of the City Council that any Written Communication shall be submitted to the City staff person who is responsible for the preparation of the meeting agenda, by 9:00 a.m., on the date when the agenda of the meeting when the item is to be discussed is to be distributed to the members of the legislative body and made available to the public. Any Written Communication that is received by City staff after that deadline is to be held by the staff and shall not be distributed to the other members of the legislative body or made available to the public until the commencement of the meeting when the item is to be considered.

Background: The Ralph M. Brown Act, Government Code Section 54950, et seq., establishes the requirements that members of local governmental legislative bodies must follow so that city business is conducted in public at duly noticed meetings. (See, Government Code Section 54953(a).) Government Code Section 54952.2 (b) prohibits the use of direct communication, personal intermediaries or technical devices that are employed by the members of a legislative body to develop a collective concurrence on an action to be taken. California courts have interpreted this Section as also prohibiting the use of such devices to ascertain facts or exchange information regarding a proposed action. In addition, Government Code Section 54957.5(a) requires all agendas and other writings, which are not exempt from disclosure, that are distributed to the members of a legislative body to be made available to the public for review when the documents are distributed to a quorum of the members of the legislative body.

On occasion, members of City legislative bodies have prepared Written Communications asking questions of staff or asserting positions about an item that is to be discussed as part of the agenda of a duly noticed meeting of the legislative body of which that person is a member and have directed that the Written Communications be distributed to the other members of the legislative body. The purpose of this policy is to establish the process for distributing these Written Communications so that the members’ concerns, comments and questions can be conveyed to, and considered by, the other members of the legislative body in compliance with the provisions of the Brown Act.