HomeMy WebLinkAboutStaff Report 3.A 03/05/2012 Ag-entaw Itenvy #3 .71
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DATE: March 5, 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
Communications and Data 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 a policy
governing the use of electronic communications and data devices by City legislative bodies
subject to the.Brown Act during public meetings.
BACKGROUND
This item was introduced to the City Council on February 6th, and in accordance with the
direction provided has been revised and is returned for consideration. Additionally, the item was
reviewed by the Technology Committee, and that discussion is summarized below.
The use of electronic devices such as laptops, smart phones (such as Blackberries, iPhones,
Droids, etc.) and tablet computers ( 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 and
the writings of'public officials and agencies shall be open to public scrutiny." In 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
Agenda Review:
City Attorney I J X Finance.Director City Manager
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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
undisclosed, non-exempt communications and information relating to public business to be
conducted during the meeting, including communications and information such as email, text
messages and the like accessed using electronic communications and data processing 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., Volistedt 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.4th 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 rendering hearing
results subject to legal challenge.
DISCUSSION
The Technology Committee has reviewed the issue of use of electronic communications and data
devices by legislative body members at public meetings and recommends prohibiting the use of
such 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 electronic
communications 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
messages after the meeting, during a break or by the member leaving the meeting to receive the
messages. While not yet the standard, use of electronic communications 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 communications
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."
At the Feb. 22, 2012 meeting, the Technology Committee revisited the subject. Specifically,
the committee's discussion focused on the following topic areas, and a discussion summary is
included for each;
• Airplane Mode; The feature is a manual switch function in iPads and iPhones that disables
all internet connectivity. This will be useful if voluntarily activated, especially during the
quasi-adjudicatory processes. Airplane Mode (or other similar functions in other products)
however, will disable a user's ability to access late documents, sometimes the calendar
function (for checking availability) or for catching up on last minute email just prior to the
start of proceedings.
• Tracking Internet Access; This is technically possible but not practical. Monitoring only
seven devices only during meetings will require IT support to start and stop the limited
monitoring, to collect the data and to upload to a web site for viewing. The data collected by
internet monitoring is generally not considered easy to read by non-technical people.
Additionally, the City is not able to log or monitor internet access from the devices if the
user chooses the carrier services (3G, 4G, later generations, personal "air cards,") or other
nearby wifi services.
• Connection to TV or Computer Monitor; While technically possible, connecting portable
electronic devices to TV or computer monitors, so the audience can observe all activity on
the device, is not practical nor cost-effective. Connecting seven, potentially different device
types to TV monitors would involve a substantial amount of connecting hardware and labor.
• Capturing Video Stream; While technically possible, capturing a video stream of all activity
on electronic communications devices is similarly not practical nor cost-effective. Capturing
video streams from seven, potentially different device types would involve a substantial
amount of connecting hardware, labor and data storage.
• Use of Software Products; Use of products, such as iLegislate or 'Annotate is viable. The
Committee discussed these in some depth, and will review this at a future meeting that will
likely include a demonstration.
• Recommendation; The Technology Committee is not forwarding any additional
recommendations, beyond that which the Council previously considered on February 6`h.
Staff recommends that the Council adopt the attached Resolution creating an electronic
communications device use policy, governing use of such devices by City legislative bodies
during public meetings. The policy has been prepared so as to be consistent with Technology
Committee recommendations, and to provide for some flexibility to recognize both the potential
benefits and drawbacks of the use of electronic communications and data devices at public
meetings. The recommended policy provides for use of electronic devices for emergency
communications, and for uses consistent with principles of open government and due process
The draft policy submitted by Staff to Council on Feb. 6 has been revised to incorporate Council
suggestions given at the Feb. 6, 2012 meeting. That policy is included by way of resolution,
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Attachment I. Briefly, changes have been made to be mote restrictive regarding sending and
receiving messages, and regarding intemet access, while still permitting emergency messages
and online access to agenda materials. Electronic "sidebar"-type communications are prohibited.
A definition of electronic communications and data devices has also been added. The revisions
are primarily in item 5 of the resolution.
FINANCIAL IMPACTS
No direct financial impact. Devices ctmently being used by City officials are personal property
of the officials, and provision of devices by the City is not proposed at this tine. However, if the
City Council chose to provide devices for electronic agenda management, the cost to implement
is approximately 59,000, although there is not a funding source identified in the current budget.
The recommended deployment is with (legislate, which is the included Granicus application.
The deployment is assumed to include the seven members of the City Council, plus the City
Manager and City Attorney for a total ofnine devices. The cost per unit is estimated to be $1000
and includes iPad, basic accessories, software and sales tax. Training and support arc estimated
to be minimal, 2 hours maximum per user. A certain savings in paper production costs to create
and distribute meeting packets is anticipated. Such savings can be more carefully analyzed and
cost estimated should the Council wish to proceed with deployment of City devices.
ATTACHMENTS
1. Resolution Establishing City Policy.
ATTACHMENT 1
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PETALUMA
ESTABLISHING A POLICY GOVERNING THE USE OF ELECTRONIC
COMMUNICATIONS AND DATA 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 communications and data devices which are generally
intended for viewing primarily or solely by the individual using the device; and
WHEREAS, portable electronic communications and data devices allow electronic
messaging, 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 the 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, 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 communications and data devices, including, but
not limited to, laptop computers, cell phones, tablet computers, pagers, and similar devices, by
members of City legislative bodies subject to the Brown Act during the public meetings of the
body shall generally be limited to viewing publicly available agenda materials and materials
contained in the record before the entire body.
3. Use of portable electronic communications and data 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 t,
section 3, subdivision (b) paragraph I 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 communications and data 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
communications and data 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 communications and data device so as to result in inattention to the record and/or
proceedings before the body.
5. In addition to the restrictions on the use of electronic communications and data
devices by City legislative body members under the Ralph M. Brown Act, the California Public
Records Act, and the due process guarantees under the U.S. and California Constitutions,
members of City legislative bodies subject to the Brown Act may not:
a. during a meeting of the body, receive electronic communications from, or
send electronic communications to, any person, (including, but not limited to,members of the
public, city staff, other legislative body members, and parties to city proceedings) except as
permitted in Section 6, below.
b. use an electronic communications or data device to access the internet or
other file-sharing means, except as necessary to access electronic agenda material for that
meeting that is similarly available to all members of the body.
6. Members of City legislative bodies subject to the Brown Act may use electronic
communications and data 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
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ensure compliance with open meeting, Open records, due process and other applicable laws, rules
and policies, including this policy.
7. 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 rule, policy, procedure or practice that conflicts with any
of the requirements of this policy shall be void and of no effect.
8. This resolution shall become effective on its adoption.
9. 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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