HomeMy WebLinkAboutStaff Report 4.A 02/06/2012 A:g wider' Itevw#4-.A
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DATE: February 6, 2012
TO: Honorable Mayor and Members of the City Council through City Manager
FROM: Tim Williamsen, IT Manager
SUBJECT: Resolution Establishing City Policy Governing the Use of Electronic.Devices by
City Legislative Bodies Subject to the Brown Act During,Public.Meetings
RECOMMENDATION -
It is recommended that the City Council adopt the attached Resolution Establishing City Policy
Governing-the Use of Electronic Devices by City Legislative Bodies Subject to the Brown Act
During Public Meetings.
BACKGROUND
The use of electronic devices such as laptops, smart phones (such as.Blackberries, iPhones,
Droids, etc.) and tabletcomputers ( iPad,and others) has become prevalent for personal use and
in business and government. Such devices provide;for the user portable personal and business
communications capability, and include contact, calendar, web, and other useful information, as
well as,portable means for gathering, receiving, transmitting and processing a vast amount of
information. Effective use of such devices can contribute;substantially to the user's productivity .
and portability. Use of portable,electronic communications and data processing devices may
also,reduce the need for printed documents, saving supply and equipment costs, and reduce
environmental impacts.
The California Constitution, art. I, §3(b)(1) provides that because the,public;has the right of
access to information about the:conduct of public business, "...the meetings of_public bodies_,a nd
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the writings,of public+officials and agencies shall be open to public scrutiny:°" do enacting the
California Public:Records,Act(Gov't. Code §6250-6276.48), the legislature declared, mindful of
the right of individuals to,privacy,.that access to information concerning the conduct of the
people's business is a fundamental and necessary right;of every person in the state. (Gov't. Code
§6250). The Ralph M. Brown Act (Gov't. Code §§54950-54963) also requires meetings of
"legislative bodies" of local agencies to be open and public, and that, except for certain
documents that are exempt from disclosure, writings distributed to a majority of the members of
a local agency legislative body in connection with a,matter subject to consideration at an open
meeting of the body are disclosable public records. (Gov't. Code §§54953, 54957.5) These
provisions suggest that local agency legislative body members' use during a public meeting of
Agenda Review:
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undisclosed,.non-exempt communications and information-relating to public business to be
conducted during the meeting, including communications;and-inforinationisuch as email, text
messages and the like accessed using electronic communications and data devices,
would be contrary to the public's right of access to information relating to the conduct of the
public's business.
The City Council does not merely perform legislative and administrative functions. The
Council, and certain subordinate bodies, such as the Planning.Commission and Site Plan and
Architectural Review Committee, also act in a quasi-adjudicatory capacity, such as in ruling or
giving recommendations on development applications. Due process rights attach to action by
decision making bodies on such applications. The courts have recognized that due process
requires that adjudicatory bodies must be attentive to the record and proceedings before them as
a basis for rendering a decision. (See, e.g., Vollstedt v. City of Stockton (1990) 220 Cal.App.3d
265). In one depublished appellate case, the court held that inattentiveness of the Los Angeles
City Council to the proceedings and record before them on appeal of a zoning administrator
decision violated the applicant's due process rights. Accordingly, the court reversed and
remanded the City Council's decision. (Lacy Street Hospitality Service, Inc. v. City of Los
Angeles (2004) 125 Cal.App.4°i 526). The inattentiveness noted by the court included use of
council member personal cell phones during the hearing. Therefore, although use of electronic
devices to assist legislative body members in reviewing record materials may enhance decision
maker efficiency at public meetings and hearings, reduce the cost of producing and copying
meeting materials, and reduce environmental impacts, electronic device use may also become a
distraction and undermine the fairness of administrative hearings, possibly rendenng hearing
results subject to legal challenge.
DISCUSSION
The Technology Committee has reviewed the issue of use of electronic devices by legislative
body members at public meetings and recommends prohibiting:the use of devices for messaging
by City Council, Committee, and Commission members during public meetings. The
Technology Committee did, however, recognize the impracticality of asking officials to "check
the device at the door." The Committee also recognized that devices might be critical for
notification to members of a family emergency. The Committee considered that in such rare
instances, the member may receive and read such messagesafter the meeting, during a break or
by the member leaving the meeting to receive the messages. While not yet the standard, use of
electronic devices by city officials for reviewing agenda materials has become prevalent in many
cities in California. In addition, Cities have begun to adopt rules and procedures governing use
of electronic devices at public meetings. For example, the City of Santa Rosa implemented a
rule in its city council procedures that states, "Council members shall not send, receive, or read
electronic messages of any kind during a Council meeting."
Staff recommend that the Council consider adoption of the attached City policy by resolution.
The draft policy has been prepared so as to be consistent with Technology Committee
recommendations, and to provide for more flexibility than the Santa Rosa electronic message
policy so as to recognize both the potential benefits and drawbacks,of the use of electronic
devices at public meetings, including permitted use of electronic devices at public meetings for
emergency communications, and as.is otherwise consistent with principles of open government
and due process.
FINANCIAL IMPACTS
No direct financial impact. Devices currently being used by City officials are personal property
of the officials, and provision of devices by the City is not proposed.
ATTACHMENTS
1. Resolution Establishing City Policy Governing the Use of Electronic Devices by City
Legislative Bodies Subject to the Brown Act During Public Meetings.
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ATTACHMENT 1
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PETALUMA
ESTABLISHING A POLICY GOVERNING THE USE OF ELECTRONIC DEVICES BY
CITY LEGISLATIVE BODIES SUBJECT TO THE BROWN ACT DURING PUBLIC
MEETINGS.
WHEREAS, advances in technology allow use of electronic messaging, data processing
and other functions on portable electronic devices which are generally intended for viewing
primarily or solely by the individual using the device; and
WHEREAS, portable electronic devices allow electronicmessaging, data processing and
other functions to be carried out during public meetings by individual legislative body members
without necessarily making messages and other information available to other members of
legislative body and/or the public; and
WHEREAS, the City Council desires to permit and promote utilization of technology to
ensure efficient and effective conduct of the people's business, in accordance with applicable
law, and to reduce cost, waste and environmental impacts from printed copies'of legislative body
agenda materials; and
WHEREAS, the City Council desires to ensure full compliance with the mandates of the
California Constitution, art. I, §3(b)(1)and the Public Records Act and Ralph M. Brown Act
regarding public access to government information and the open and public nature of public
meetings; and
WHEREAS, the City Council desires to ensure that adjudicatory hearings conducted by
City legislative bodies proceed in the manner required by law, including consistent with due
process rights of interested parties;
NOW, THEREFORE, BE IT RESOLVED by the City Council of th e'City of Petaluma
as follows:
1. The City Council permits and promotes the utilization of technology to ensure
efficient and effective conduct of the people's business, in accordance with
applicable open meetings and records laws, and due process rights of interested
parties, and other applicable law and city policy, and in the interest of reducing
waste, supply costs and environmental impacts.
2. The use of portable electronic devices by members of City legislative bodies
subject to the Brown Act.during the public meetings ofthe'bodyshall generally be
limited to viewing publicly+available agenda materials and materials contained in
the record before the entire body.
3. Use of portable electronic devices by members of City legislative bodies subject
to the Brown Act during public meetings of the body shall comply with the
requirements of all applicable laws and City policies, including the requirements
of Article I, section 3, subdivision (b) paragraph,1 of the California Constitution,
the California Public Records Act (Gov't. Code §6250-6276.48), the Ralph M.
Brown Act (Gov't. Code §§54950-54963), due process'rights of interested parties
in City legislative body proceedings, and the following City policies and
procedures: .
4. Members of City legislative bodies subject to the.Brown Act may not use portable
electronic devices at public meetings of the body in any manner or for any
purpose prohibited by law or City policy. In particular, but without limitation,
electronic devices may not be used at public meetings by City legislative body
members in any of the following ways:
a. in violation of the requirements of the Ralph M. Brown Act, such as by
sharing communications among a majority of the legislative body
privately and separate from the public discussion at the meeting.
b. in violation of the requirements of the California Public Records
Act, such as by transmitting to a majority of the legislative body
information connected with a matter subject to consideration at the
meeting, which information is not available to the public.
c. in violation of due process rights of interested parties at
adjudicatory hearings, such as by consideration of information not a part
of the hearing record, or by use.of an electronic device so as to result in
inattention to the record and/or proceedings before the body.
5. Members of City legislative bodies subject to the Brown Act may use portable
electronic devices at public meetings of the body to receive and send
communications regarding emergencies, such as family emergencies. Members
receiving/sending such communications should coordinate with the member
presiding over the meeting as needed under the circumstances so as to respond to
the emergency as needed and to ensure compliance with open meeting, open
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records, due process and other applicable laws, rules and policies.
6. City staff are authorized and directed to_ensure that the requirements of this policy
are incorporated into the procedural rules and enabling legislation of City
legislative bodies subject to the Brown Act when such rules and legislation are
next reviewed and updated. Until such time as the procedural rules and enabling
legislation of City legislative bodies subject to the Brown Act are next reviewed
and update, this policy shall be deemed incorporated in and applicable to the
procedural rules and enabling legislation of all City legislative bodies subject to
the Brown Act. Such bodies will conduct their business consistent with the
requirements of this policy, and may adopt or enact no rule, policy, procedure or
practice that conflicts with any of the.requirements of this policy. Any such vile,
policy, procedure or practice that conflicts with any of the requirements of this
policy shall be void and of no effect.
7. This resolution shall become effective on its adoption.
8. All portions of this resolution are severable. Should any individual provision or
portion of a provision of this resolution be adjudged to be invalid and
unenforceable, the remaining provisions and portions of provisions shall be and
continue to be fully effective, except as to the provision(s) and/or portion(s) of
provisions that have been judged to be invalid.
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