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Agenda PacketCITY OF CUPERTINO TEEN COMMISSION AGENDA 10185 N Stelling Rd, Quinlan Conference Room Wednesday, September 13, 2023 6:00 PM CALL TO ORDER ROLL CALL CEREMONIAL MATTERS AND PRESENTATIONS 1.Subject: Swearing-in Ceremony for Incoming 2023-2025 Teen Commissioners Recommended Action: Swear in the five incoming Teen Commissioners for the 2023-2025 Teen Commissioner term. 2.Subject: Teen Commission Orientation Recommended Action: Receive an overview of the Commissioner's Handbook from City Clerk. A - Commissioner's Handbook B - The Brown Act C - Rosenberg's Rules of Order D - Cupertino Ethics Policy E - Technology Use Policy 3.Subject: Community Outreach Presentation Recommended Action: Receive Community Outreach Presentation. A - City of Cupertino Brand Guidelines B - Cupertino Style Guide C - Social Media Policy APPROVAL OF MINUTES 4.Subject: Approval of Minutes - August 9, 2023 Recommended Action: Review and approve the minutes from the Teen Commission meeting on August 9, 2023. A - Draft Minutes POSTPONEMENTS ORAL COMMUNICATIONS Page 1 1 Teen Commission Agenda September 13, 2023 This portion of the meeting is reserved for persons wishing to address the Commission on any matter within the jurisdiction of the Commission and not on the agenda. Speakers are limited to three (3) minutes. In most cases, State law will prohibit the Commission from making any decisions with respect to a matter not on the agenda. WRITTEN COMMUNICATIONS OLD BUSINESS NEW BUSINESS 5.Subject: 2023-2024 Chair and Vice Chair Selection Recommended Action: Select a Chair and Vice Chair for the 2023-2024 Teen Commission term. STAFF AND COMMISSION REPORTS COMMISSIONER ATTENDANCE AT UPCOMING MEETINGS AND EVENTS FUTURE AGENDA SETTING ADJOURNMENT In compliance with the Americans with Disabilities Act (ADA), anyone who is planning to attend this meeting who is visually or hearing impaired or has any disability that needs special assistance should call the City Clerk's Office at 408-777-3223, at least 48 hours in advance of the meeting to arrange for assistance. In addition, upon request, in advance, by a person with a disability, meeting agendas and writings distributed for the meeting that are public records will be made available in the appropriate alternative format. Any writings or documents provided to a majority of the members after publication of the agenda will be made available for public inspection. Please contact the City Clerk’s Office in City Hall located at 10300 Torre Avenue, Cupertino, California 95014, during normal business hours. IMPORTANT NOTICE: Please be advised that pursuant to Cupertino Municipal Code section 2.08.100 written communications sent to the Cupertino City Council, Commissioners or City staff concerning a matter on the agenda are included as supplemental material to the agendized item. These written communications are accessible to the public through the City’s website and kept in packet archives. Do not include any personal or private information in written communications to the City that you do not wish to make public, as written communications are considered public records and will be made publicly available on the City website. Members of the public are entitled to address the members concerning any item that is described in the notice or agenda for this meeting, before or during consideration of that item. If you wish to address the Page 2 2 Teen Commission Agenda September 13, 2023 members on any other item not on the agenda, you may do so during the public comment . Page 3 3 CITY OF CUPERTINO Agenda Item 23-12541 Agenda Date: 9/13/2023 Agenda #: 1. Subject: Swearing-in Ceremony for Incoming 2023-2025 Teen Commissioners Swear in the five incoming Teen Commissioners for the 2023-2025 Teen Commissioner term. CITY OF CUPERTINO Printed on 9/7/2023Page 1 of 1 powered by Legistar™4 CITY OF CUPERTINO Agenda Item 23-12542 Agenda Date: 9/13/2023 Agenda #: 2. Subject: Teen Commission Orientation Receive an overview of the Commissioner's Handbook from City Clerk. CITY OF CUPERTINO Printed on 9/7/2023Page 1 of 1 powered by Legistar™5 COMMISSIONER’S HANDBOOK 2021 6 ii WELCOME AND ORIENTATION Welcome and thank you for your willingness to serve as a member of a City of  Cupertino Commission. Advisory bodies play an important role in City governance by  assisting the City Council in addressing specific issues in detail and facilitating  community decision‐making.    The City of Cupertino has a number of advisory bodies, each with distinct  responsibilities. As a new advisory body member, you should familiarize yourself with  the documents governing your particular body including City ordinances, City Council  resolutions, relevant element(s) of the General Plan, and other documents, all available  from your staff liaison. Reviewing these documents will help you get a sense of your  responsibilities.    This Handbook is designed to serve as a reference for the basic protocols that apply  generally to all City advisory bodies. Orientation is necessarily an active process. As a new  member you may want to meet with the Chair of your advisory body to get a better sense  of your role and the business of the body, as well as with the staff liaison assigned to the  body. Along with familiarizing yourself with your advisory body’s foundational  documents, you may want to review agendas and minutes from recent meetings to see  what current issues have been under consideration, as well as the City Work Program to  familiarize yourself with current goals.    Learning your role and developing an effective voice takes time and familiarity.  We hope this Handbook will assist you towards a satisfying and productive experience.  Your participation is deeply appreciated by the City Council, by city staff, and by your  community. The vitality and strength of our community results from the willingness of  people like you to serve.             ________  Darcy Paul, Mayor  City of Cupertino   7 iii Table of Contents WELCOME AND ORIENTATION ii STRUCTURE OF GOVERNMENT 4 Form of Government 4 City Council 4 City Manager and Staff 4 Commissions 5 COMMISSION MEMBERSHIP 6 Quorum and Attendance 6 Vacancies 6 Resignations and Removals 6 MEETINGS 6 Regular Meetings 6 Adjourned Meetings 6 Special Meetings 7 Subcommittees 7 Agendas 7 Preparation for Meetings 7 Minutes 8 Procedure 8 Decorum at Meetings 8 Basis for your Decision 8 CITY WORK PROGRAM 9 COMMUNICATIONS 9 Staying Informed 9 Use of City Email 10 Resources 10 8 4 THE STRUCTURE OF GOVERNMENT A. FORM OF GOVERNMENT    The City of Cupertino operates as a general law city with a City Council‐City Manager  form of government where the City Council sets policy and the City Manager manages  the implementation and administration of those policies.     B. CITY COUNCIL    The City Council is the governing legislative body of the City, consisting of five members  elected in odd numbered years to staggered four‐year terms. These councilmembers then  elect the mayor and vice mayor to one‐year terms. It sets goals and priorities and  establishes policies. The Mayor is the presiding officer of the Council, and the official  spokesperson and representative of the City.    C. CITY MANAGER AND STAFF    City Manager  The City Manager has complete responsibility and authority for the administration  of the City’s government. This individual is appointed by and serves at the  pleasure of the Council and is the appointing authority for the City, selecting the  department heads and other employees. The City Manager coordinates and directs  the services of the City staff, and commissioners should not attempt to direct or  prioritize work for departments or individual staff.    City Clerk  The City Clerk plays an important role for advisory bodies. The City Clerk accepts  and maintains applications, processes appointments, updates membership rosters,  bylaws, informational booklets, and yearly attendance records. The City Clerk is  the filing officer for Statements of Economic Interests, and any other required filing  as identified by the City Council and the State.    Staff  When assigned by the City Manager, staff assist and act in a technical advisory  capacity to the commissions. It is not expected that every staff recommendation  will be followed; however, because of the staff’s technical knowledge, full  consideration should be given to their recommendation. Staff are at liberty to make  their recommendation to the City Council through the City Manager, even though  the commission may have taken a different position. However, in these cases, the  commission recommendation will be made clear to the City Council.      Staff Liaison  A staff liaison is assigned to each commission.  Their main duties include  facilitating meetings, preparing agendas, advising commissioners, and writing  9 5 meeting minutes.  Commissioners should reach out to their liaison if they have any  questions regarding matters of the commission or if they would like to contact  other staff regarding official business.     D. COMMISSIONS    The primary purpose of the City’s commissions is to serve as advisory bodies to Council  by weighing public input and rendering recommendations to the City Council. There are  times when the advisory body’s recommendation will not be sustained or will be modified  by the City Council. It is important to recognize this not as a rejection of the integrity of the  recommendation, but as an inevitable part of the process of community decision‐making.  The Council has appointed commissioners as advisors to them. This underlying  philosophy makes it improper for an individual commissioner, acting in their official  capacity, to try to persuade the Council into the acceptance of a recommendation other  than that voted by the majority of the commission. The role of a commission is to assist the  City Council in the formation of policy, having been created for the purpose of advising.  The scope of work, purpose, and other primary functions for each commission can be  found in the City Municipal Code Chapter 2.     Chair and Vice Chair  Each year, every commission will elect from its membership a Chairperson  (Chair) and a vice Chairperson (Vice Chair) who serve at the pleasure of the  commission for a one‐year term. The Vice Chair acts in this capacity when the  Chair is not available.    The Chair should:    Maintain order of the meeting, ensure respect for all opinions, protect  commissioners, staff, and the public from personal attacks.   Keep discussion focused on the issue at hand.   Solicit opinions from commissioners. Encourage evaluation of new, tentative,  or incomplete ideas. Discourage overly dominant commissioners from  having disproportionate control over the discussion.    Attempt to reach decisions expeditiously on action items. At those times  when action would be premature, guide discussion toward a timeline or  framework for responsible action.   Set meeting rules early and make sure everyone abides by them without  exception.   Set an acceptable time limit for public testimony (generally three minutes per  individual and 10 minutes per group) and stick to it. At the Chairʹs discretion,  the public can interact with the members of the commission beyond the  public‐comment time limit in order to facilitate better communication of the  agendized topic.   Provide periodic written updates, approved by the full body, to Council  regarding the status of their activities at least every six months.    10 6 COMMISSION MEMBERSHIP A. QUORUM AND ATTENDANCE     A quorum consists of a majority of the members of the commission. A quorum is required  to conduct business at any meeting whether it is a regular, adjourned, or special meeting.  While it is expected that members be present at all meetings, the Chair should be notified  if a member knows in advance that he/she will be absent. A member shall be considered  removed from an advisory body under the following conditions:     A member misses more than three consecutive meetings   A member misses more than 25% of the advisory body’s meetings in  a calendar year (Resolution 10‐048)    B. VACANCIES    Vacancies are filled by appointment by the Council. Appointments made in the middle of  a term are for the unexpired portion of that term. Council‐appointed Alternates will  automatically fill a vacancy.    C. RESIGNATIONS AND REMOVALS    If a member is unable to continue serving because of health, business requirements or  personal reasons, a letter of resignation should be submitted to the City Council.    The position of any member is automatically vacated when the member ceases to meet the  qualifications for office, when Council accepts the member’s resignation, or when the  Council so declares.  MEETINGS A. REGULAR MEETINGS    Commissions are required to hold regular meetings open to the public as provided by the  enabling ordinance. The agenda for this meeting must be posted at least 72 hours prior to  the meeting.    B. ADJOURNED MEETINGS    If the business to be considered at a regular meeting cannot be completed, the commission  then may designate a time and date for an adjourned meeting.       11 7 C. SPECIAL MEETINGS    A special meeting may be called by the Chair or a majority of the members with  coordination with the staff liaison.    D. SUBCOMMITTEES    The Chair may appoint special subcommittees of less than a quorum of the commission  who then may meet at their convenience to carry out the purpose of the subcommittee. If  the subcommittee has a continuing subject matter or a regularly scheduled meeting time,  it may qualify as a Brown Act committee and public notice provisions will apply.    E. AGENDAS    Each commission has a staff liaison responsible for preparing agendas in consultation  with the Chair. If a commissioner or staff member intends to bring up an item for  discussion or action, the item must be included on the agenda in accordance with the  Brown Act. For each meeting, a date should be scheduled for the Chair and staff liaison to  set the agenda. Commissioners can propose agenda items within the purpose of the  commission to the staff liaison prior to the agenda setting date.     Future Agenda Setting  The staff liaison will maintain a list of future agenda items that the commission  plans to discuss. The Chair, the staff liaison, or any two commissioners can add an  agenda item within their purpose to the future agenda item list and it will be  scheduled at the discretion of the Chair and staff liaison. To provide  commissioners an opportunity to discuss whether to add an item to the future  agenda item list, each regularly‐scheduled agenda will include a “Future Agenda  Setting” item.  Once an item is added to the future agenda item list, it cannot be  removed until it is discussed for removal at a regularly scheduled meeting during  the item for “Future Agenda Setting.” In addition, the item will not be removed if  the Chair or at least two commissioners wish for the item to remain on the future  agenda item list.    Staff Updates and Commissioner Activity Report  Each regularly scheduled agenda will also include a “Staff Updates and  Commissioner Activity Report” item for staff to report on updates and the  members to report any activities they have taken part in related to the commission  since the prior regularly scheduled meeting.    F. PREPARATION FOR MEETINGS     Thoroughly review the agenda packet, including agenda reports, and any other  materials before the meeting. Check if you may have a conflict of interest with any  of the items due to property or monetary interests. If it is unclear, the commissioner  12 8 can explain the situation to the staff liaison who can seek legal counsel from the  City Attorney. For more information on conflicts of interest, please review the Fair  Political Practices Commission (FPPC) Conflicts of Interest Rules.    Understand what action you are being called upon to take for each particular agenda  item.   Contact the Chair or your staff liaison before the meeting to clarify questions about  the agenda or request further information.   Understand the responsibilities of your commission. As a member of an advisory  body you will be asked to provide recommendations to the City Council about  specific issues. Keep in mind that your appointment does not empower you to  supervise or direct City staff.    G. MINUTES    The approved minutes are placed on file by the City Clerk for public access. Commissions  should strive to keep summary minutes as opposed to action minutes. If automatic  transcription is made available to supplement official minutes, action minutes may be  sufficient.    H. PROCEDURE    Commissions follow the guidelines on parliamentary procedure contained in  Rosenberg’s Rules of Order (Rules). These Rules outline how motions are made and the  basic format for an agenda item discussion.     I. DECORUM AT MEETINGS     Discourage outward signs of agreement or disagreement from the audience such  as cheering or clapping. Such demonstrations can intimidate those wishing to  express alternate views and delay the meeting. Also see Conduct of Members in  the Cupertino Ethics Policy.    Limit your own comments to the issues before the commission. Avoid the  appearance of straying from the subject or ʺgrandstandingʺ.    J. BASIS FOR YOUR DECISION    Commission decisions should be based principally on the information presented to you  in the open public meeting process. If you collect pertinent information outside of the  public process through a meeting with stake holders or site visits, you should share  that information with your fellow commissioners in the public meeting. This sharing of  information will ensure that other commissioners and members of the public have a  better understanding of the rationale for your decision.    Commissioners are free to meet or refuse to meet with residents, resident groups,  13 9 developers or prospective contractors or any persons outside of the public meeting  process concerning issues before the commission. If you meet with any individuals  outside of the public meeting you should disclose the content of that meeting in the  public meeting to again ensure that everybody is aware of the facts and have similar  information upon which to base their decision; this disclosure is required for quasi‐ judicial matters1.     All governmental procedures and process must follow due process and allow an  affected party a right to be heard, and to present controverting fact or testimony on the  question of right in the matter involved. Unfair determinations, such as bias,  predetermination, refusal to hear, etc., may invalidate actions.     Keep an open mind. An objective, balanced, and receptive approach will help you  assess the facets of a given issue and evaluate new ideas. When receiving written and  oral public testimony it will be necessary to discern between fact and opinion, as well as  between those concerns which are relevant and those which are secondary to the issue  at hand. Keeping an open mind will make it easier for you to understand all sides of an  issue before you make a judgment or take a position.    CITY WORK PROGRAM   The City Council approves an annual City Work Program to guide the work of the City.  Prior to the first draft of the City Work Program each year, staff will reach out to the  commissions to ask for recommendations of items to add. These recommendations will be  provided to the City Council for consideration, but ultimately the City Council will  determine the final items on the City Work Program. Commissions support City Work  Program items within their scope by reviewing the items and making recommendations to  City Council. Since the City Council sets the City Work Program to guide the priority  efforts in the City, commission agendas should be aligned accordingly. By August 15, each  commission should provide an annual report of all of the topics the commission has  addressed in the prior year.  COMMUNICATIONS A. STAYING INFORMED     Commissioners should sign up for City email notifications to stay informed of various  community events and public meetings. Council encourages commissioners to attend at  least two community meetings or meetings of other commissions each year.    The City uses social media outlets, surveys, email notifications, the Scene, and the City  website to perform outreach for City business. For appropriate conduct on social media,  1 More information on quasi‐judicial proceedings can be found in the Imposed Restraints document  in the Commission Resources folder. 14 10 see the City’s Social Media Policy. For questions about City outreach, speak with your  staff liaison.      B. USE OF CITY EMAIL    All newly appointed City commissioners will be assigned a mandatory City email  address after reviewing and signing the Technology Use Policy.    As noted under the Brown Act, care should be taken with regard to emails. Never select  “Reply All” to an email to all commissioners or forward an email sent to you by one  commissioner to another commissioner since that would constitute a quorum. All  questions and concerns should be directed to the Chair and staff liaison.    All City emails are subject to the Public Records Act and you should use your City email  only to conduct City business as a commissioner. Please do not forward or reply to a City  email from your personal email address. Once your term on the commission is over, your  City email will be terminated.    RESOURCES   Commissioners should familiarize themselves with the following resources:    City policies relating to ethics, social media, commissions, diversity, and technology, as  well as the City organizational chart, a Rosenberg’s Rules of Order cheat sheet, and  guidance on imposed restraints, can be found online in the Commission Resources folder.     League of California Cities   Rosenberg’s Rules of Order, Brown Act, Public Records Act, and other resources    Institute for Local Government  Parliamentary Procedure Simplified  Ethics and Transparency 15 Open & Public V A GUIDE TO THE RALPH M. BROWN ACT REVISED APRIL 2016 16 ii OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT ACKNOWLEDGEMENTS ACKNOWLEDGEMENTS The League thanks the following individuals for their work on this publication: Brown Act Committee Michael Jenkins, Committee Chair City Attorney, Hermosa Beach, Rolling Hills and West Hollywood Michael W. Barrett City Attorney, Napa Damien Brower City Attorney, Brentwood Ariel Pierre Calonne City Attorney, Santa Barbara Veronica Ramirez Assistant City Attorney, Redwood City Malathy Subramanian City Attorney, Clayton and Lafayette Paul Zarefsky Deputy City Attorney, San Francisco Gregory W. Stepanicich 1st Vice President, City Attorneys’ Department City Attorney Fairfield, Mill Valley, Town of Ross League Staff Patrick Whitnell, General Counsel Koreen Kelleher, Assistant General Counsel Corrie Manning, Senior Deputy General Counsel Alison Leary, Deputy General Counsel Janet Leonard, Legal Assistant 17 1OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT Open & Public V A GUIDE TO THE RALPH M. BROWN ACT REVISED APRIL 2016 CHAPTER 1: IT IS THE PEOPLE’S BUSINESS ....................................................5 CHAPTER 2: LEGISLATIVE BODIES .................................................................11 CHAPTER 3: MEETINGS .................................................................................17 CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION ...................29 CHAPTER 5: CLOSED SESSIONS ....................................................................41 CHAPTER 6: REMEDIES .................................................................................55 18 2 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT TABLE OF CONTENTS TABLE OF CONTENTS CHAPTER 1: IT IS THE PEOPLE’S BUSINESS ..........................................5 The right of access ...................................................................................................................6 Broad coverage ........................................................................................................................6 Narrow exemptions .................................................................................................................7 Public participation in meetings ..............................................................................................7 Controversy ..............................................................................................................................8 Beyond the law — good business practices ............................................................................8 Achieving balance ....................................................................................................................9 Historical note ..........................................................................................................................9 CHAPTER 2: LEGISLATIVE BODIES .......................................................11 What is a “legislative body” of a local agency? ......................................................................12 What is not a “legislative body” for purposes of the Brown Act? .........................................14 CHAPTER 3: MEETINGS ........................................................................17 Brown Act meetings ...............................................................................................................18 Six exceptions to the meeting definition ...............................................................................18 Collective briefings .................................................................................................................21 Retreats or workshops of legislative bodies ..........................................................................21 Serial meetings .......................................................................................................................21 Informal gatherings ................................................................................................................24 Technological conferencing ...................................................................................................24 Location of meetings ..............................................................................................................25 CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION ......29 Agendas for regular meetings ................................................................................................30 Mailed agenda upon written request.....................................................................................31 Notice requirements for special meetings ............................................................................32 Notices and agendas for adjourned and continued meetings and hearings ........................32 Notice requirements for emergency meetings .....................................................................32 Notice of compensation for simultaneous or serial meetings ..............................................33 Educational agency meetings ................................................................................................33 Notice requirements for tax or assessment meetings and hearings ....................................33 19 3OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT Non-agenda items ..................................................................................................................34 Responding to the public .......................................................................................................34 The right to attend and observe meetings ............................................................................35 Records and recordings .........................................................................................................36 The public’s place on the agenda ..........................................................................................37 CHAPTER 5: CLOSED SESSIONS ..........................................................41 Agendas and reports ..............................................................................................................42 Litigation .................................................................................................................................43 Real estate negotiations ........................................................................................................45 Public employment ................................................................................................................46 Labor negotiations .................................................................................................................47 Labor negotiations — school and community college districts ............................................48 Other Education Code exceptions .........................................................................................48 Joint Powers Authorities ........................................................................................................48 License applicants with criminal records ..............................................................................49 Public security ........................................................................................................................49 Multijurisdictional law enforcement agency .........................................................................49 Hospital peer review and trade secrets .................................................................................49 Other legislative bases for closed session .............................................................................50 Who may attend closed sessions ..........................................................................................50 The confidentiality of closed session discussions .................................................................50 CHAPTER 6: REMEDIES ........................................................................55 Invalidation .............................................................................................................................56 Applicability to Past Actions ..................................................................................................57 Civil action to prevent future violations .................................................................................57 Costs and attorney’s fees ......................................................................................................58 Criminal complaints ...............................................................................................................58 Voluntary resolution ...............................................................................................................59 20 4 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 21 5OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 5 Chapter 1 IT IS THE PEOPLE’S BUSINESS The right of access ..............................................................................................................6 Broad coverage ...................................................................................................................6 Narrow exemptions ............................................................................................................7 Public participation in meetings .........................................................................................7 Controversy .........................................................................................................................8 Beyond the law — good business practices ......................................................................8 Achieving balance ...............................................................................................................9 Historical note .....................................................................................................................9 OPEN & PUBLiC V: A GUIDE TO THE RALPH M. BROWN ACT 22 6 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CHAPTER 1: IT IS THE PEOPLE’S BUSINESS The right of access Two key parts of the Brown Act have not changed since its adoption in 1953. One is the Brown Act’s initial section, declaring the Legislature’s intent: “In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.” “The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”1 The people reconfirmed that intent 50 years later in the November 2004 election by adopting Proposition 59, amending the California Constitution to include a public right of access to government information: “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”2 The Brown Act’s other unchanged provision is a single sentence: “All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter.”3 That one sentence is by far the most important of the entire Brown Act. If the opening is the soul, that sentence is the heart of the Brown Act. Broad coverage The Brown Act covers members of virtually every type of local government body, elected or appointed, decision-making or advisory. Some types of private organizations are covered, as are newly-elected members of a legislative body, even before they take office. Similarly, meetings subject to the Brown Act are not limited to face-to-face gatherings. They also include any communication medium or device through which a majority of a legislative body Chapter 1 IT IS THE PEOPLE’S BUSINESS PRACTICE TIP: The key to the Brown Act is a single sentence. In summary, all meetings shall be open and public except when the Brown Act authorizes otherwise. 23 7OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT discusses, deliberates or takes action on an item of business outside of a noticed meeting. They include meetings held from remote locations by teleconference. New communication technologies present new Brown Act challenges. For example, common email practices of forwarding or replying to messages can easily lead to a serial meeting prohibited by the Brown Act, as can participation by members of a legislative body in an internet chatroom or blog dialogue. Communicating during meetings using electronic technology (such as laptop computers, tablets, or smart phones) may create the perception that private communications are influencing the outcome of decisions; some state legislatures have banned the practice. On the other hand, widespread cablecasting and web streaming of meetings has greatly expanded public access to the decision-making process. Narrow exemptions The express purpose of the Brown Act is to assure that local government agencies conduct the public’s business openly and publicly. Courts and the California Attorney General usually broadly construe the Brown Act in favor of greater public access and narrowly construe exemptions to its general rules.4 Generally, public officials should think of themselves as living in glass houses, and that they may only draw the curtains when it is in the public interest to preserve confidentiality. Closed sessions may be held only as specifically authorized by the provisions of the Brown Act itself. The Brown Act, however, is limited to meetings among a majority of the members of multi- member government bodies when the subject relates to local agency business. It does not apply to independent conduct of individual decision-makers. It does not apply to social, ceremonial, educational, and other gatherings as long as a majority of the members of a body do not discuss issues related to their local agency’s business. Meetings of temporary advisory committees — as distinguished from standing committees — made up solely of less than a quorum of a legislative body are not subject to the Brown Act. The law does not apply to local agency staff or employees, but they may facilitate a violation by acting as a conduit for discussion, deliberation, or action by the legislative body.5 The law, on the one hand, recognizes the need of individual local officials to meet and discuss matters with their constituents. On the other hand, it requires — with certain specific exceptions to protect the community and preserve individual rights — that the decision-making process be public. Sometimes the boundary between the two is not easy to draw. Public participation in meetings In addition to requiring the public’s business to be conducted in open, noticed meetings, the Brown Act also extends to the public the right to participate in meetings. Individuals, lobbyists, and members of the news media possess the right to attend, record, broadcast, and participate in public meetings. The public’s participation is further enhanced by the Brown Act’s requirement that a meaningful agenda be posted in advance of meetings, by limiting discussion and action to matters listed on the agenda, and by requiring that meeting materials be made available. Legislative bodies may, however, adopt reasonable regulations on public testimony and the conduct of public meetings, including measures to address disruptive conduct and irrelevant speech. PRACTICE TIP: Think of the government’s house as being made of glass. The curtains may be drawn only to further the public’s interest. A local policy on the use of laptop computers, tablets, and smart phones during Brown Act meetings may help avoid problems. 24 8 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CHAPTER 1: IT IS THE PEOPLE’S BUSINESS Controversy Not surprisingly, the Brown Act has been a source of confusion and controversy since its inception. News media and government watchdogs often argue the law is toothless, pointing out that there has never been a single criminal conviction for a violation. They often suspect that closed sessions are being misused. Public officials complain that the Brown Act makes it difficult to respond to constituents and requires public discussions of items better discussed privately — such as why a particular person should not be appointed to a board or commission. Many elected officials find the Brown Act inconsistent with their private business experiences. Closed meetings can be more efficient; they eliminate grandstanding and promote candor. The techniques that serve well in business — the working lunch, the sharing of information through a series of phone calls or emails, the backroom conversations and compromises — are often not possible under the Brown Act. As a matter of public policy, California (along with many other states) has concluded that there is more to be gained than lost by conducting public business in the open. Government behind closed doors may well be efficient and business-like, but it may be perceived as unresponsive and untrustworthy. Beyond the law — good business practices Violations of the Brown Act can lead to invalidation of an agency’s action, payment of a challenger’s attorney fees, public embarrassment, even criminal prosecution. But the Brown Act is a floor, not a ceiling for conduct of public officials. This guide is focused not only on the Brown Act as a minimum standard, but also on meeting practices or activities that, legal or not, are likely to create controversy. Problems may crop up, for example, when agenda descriptions are too brief or vague, when an informal get- together takes on the appearance of a meeting, when an agency conducts too much of its business in closed session or discusses matters in closed session that are beyond the authorized scope, or when controversial issues arise that are not on the agenda. The Brown Act allows a legislative body to adopt practices and requirements for greater access to meetings for itself and its subordinate committees and bodies that are more stringent than the law itself requires.6 Rather than simply restate the basic requirements of the Brown Act, local open meeting policies should strive to anticipate and prevent problems in areas where the Brown Act does not provide full guidance. As with the adoption of any other significant policy, public comment should be solicited. A local policy could build on these basic Brown Act goals: ƒƒA legislative body’s need to get its business done smoothly; ƒƒThe public’s right to participate meaningfully in meetings, and to review documents used in decision-making at a relevant point in time; ƒƒA local agency’s right to confidentially address certain negotiations, personnel matters, claims and litigation; and ƒƒThe right of the press to fully understand and communicate public agency decision-making. PRACTICE TIP: Transparency is a foundational value for ethical government practices. The Brown Act is a floor, not a ceiling, for conduct. 25 9OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT An explicit and comprehensive public meeting and information policy, especially if reviewed periodically, can be an important element in maintaining or improving public relations. Such a policy exceeds the absolute requirements of the law — but if the law were enough, this guide would be unnecessary. A narrow legalistic approach will not avoid or resolve potential controversies. An agency should consider going beyond the law, and look at its unique circumstances and determine if there is a better way to prevent potential problems and promote public trust. At the very least, local agencies need to think about how their agendas are structured in order to make Brown Act compliance easier. They need to plan carefully to make sure public participation fits smoothly into the process. Achieving balance The Brown Act should be neither an excuse for hiding the ball nor a mechanism for hindering efficient and orderly meetings. The Brown Act represents a balance among the interests of constituencies whose interests do not always coincide. It calls for openness in local government, yet should allow government to function responsively and productively. There must be both adequate notice of what discussion and action is to occur during a meeting as well as a normal degree of spontaneity in the dialogue between elected officials and their constituents. The ability of an elected official to confer with constituents or colleagues must be balanced against the important public policy prohibiting decision-making outside of public meetings. In the end, implementation of the Brown Act must ensure full participation of the public and preserve the integrity of the decision-making process, yet not stifle government officials and impede the effective and natural operation of government. Historical note In late 1951, San Francisco Chronicle reporter Mike Harris spent six weeks looking into the way local agencies conducted meetings. State law had long required that business be done in public, but Harris discovered secret meetings or caucuses were common. He wrote a 10-part series on “Your Secret Government” that ran in May and June 1952. Out of the series came a decision to push for a new state open meeting law. Harris and Richard (Bud) Carpenter, legal counsel for the League of California Cities, drafted such a bill and Assembly Member Ralph M. Brown agreed to carry it. The Legislature passed the bill and Governor Earl Warren signed it into law in 1953. The Ralph M. Brown Act, known as the Brown Act, has evolved under a series of amendments and court decisions, and has been the model for other open meeting laws — such as the Bagley-Keene Act, enacted in 1967 to cover state agencies. Assembly Member Brown is best known for the open meeting law that carries his name. He was elected to the Assembly in 1942 and served 19 years, including the last three years as Speaker. He then became an appellate court justice. PRACTICE TIP: The Brown Act should be viewed as a tool to facilitate the business of local government agencies. Local policies that go beyond the minimum requirements of law may help instill public confidence and avoid problems. 26 10 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CHAPTER 1: IT IS THE PEOPLE’S BUSINESS ENDNOTES: 1 California Government Code section 54950 2 California Constitution, Art. 1, section 3(b)(1) 3 California Government Code section 54953(a) 4 This principle of broad construction when it furthers public access and narrow construction if a provision limits public access is also stated in the amendment to the State’s Constitution adopted by Proposition 59 in 2004. California Constitution, Art. 1, section 3(b)(2). 5 California Government Code section 54952.2(b)(2) and (c)(1); Wolfe v. City of Fremont (2006) 144 Cal.App.4th 533 6 California Government Code section 54953.7 Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov. 27 11OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 11OPEN & PUBLiC V: A GUIDE TO THE RALPH M. BROWN ACT Chapter 2 LEGISLATIVE BODIES What is a “legislative body” of a local agency? ................................................................12 What is not a “legislative body” for purposes of the Brown Act? ....................................14 28 12 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CHAPTER 2: LEGISLATIVE BODIES The Brown Act applies to the legislative bodies of local agencies. It defines “legislative body” broadly to include just about every type of decision-making body of a local agency.1 What is a “legislative body” of a local agency? A “legislative body” includes: ƒƒThe “governing body of a local agency” and certain of its subsidiary bodies; “or any other local body created by state or federal statute.”2 This includes city councils, boards of supervisors, school boards and boards of trustees of special districts. A “local agency” is any city, county, city and county, school district, municipal corporation, successor agency to a redevelopment agency, district, political subdivision or other local public agency.3 A housing authority is a local agency under the Brown Act even though it is created by and is an agent of the state.4 The California Attorney General has opined that air pollution control districts and regional open space districts are also covered.5 Entities created pursuant to joint powers agreements are also local agencies within the meaning of the Brown Act.6 ƒƒNewly-elected members of a legislative body who have not yet assumed office must conform to the requirements of the Brown Act as if already in office.7 Thus, meetings between incumbents and newly-elected members of a legislative body, such as a meeting between two outgoing members and a member-elect of a five-member body, could violate the Brown Act. Q. On the morning following the election to a five-member legislative body of a local agency, two successful candidates, neither an incumbent, meet with an incumbent member of the legislative body for a celebratory breakfast. Does this violate the Brown Act? A. It might, and absolutely would if the conversation turns to agency business. Even though the candidates-elect have not officially been sworn in, the Brown Act applies. If purely a social event, there is no violation but it would be preferable if others were invited to attend to avoid the appearance of impropriety. ƒƒAppointed bodies — whether permanent or temporary, decision-making or advisory — including planning commissions, civil service commissions and other subsidiary committees, boards, and bodies. Volunteer groups, executive search committees, task forces, and blue ribbon committees created by formal action of the governing body are legislative bodies. When the members of two or more legislative bodies are appointed to serve on an entirely separate advisory group, the resulting body may be subject to the Chapter 2 LEGISLATIVE BODIES PRACTICE TIP: The prudent presumption is that an advisory committee or task force is subject to the Brown Act. Even if one clearly is not, it may want to comply with the Brown Act. Public meetings may reduce the possibility of misunderstandings and controversy. 29 13OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT Brown Act. In one reported case, a city council created a committee of two members of the city council and two members of the city planning commission to review qualifications of prospective planning commissioners and make recommendations to the council. The court held that their joint mission made them a legislative body subject to the Brown Act. Had the two committees remained separate; and met only to exchange information and report back to their respective boards, they would have been exempt from the Brown Act.8 ƒƒStanding committees of a legislative body, irrespective of their composition, which have either: (1) a continuing subject matter jurisdiction; or (2) a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body.9 Even if it comprises less than a quorum of the governing body, a standing committee is subject to the Brown Act. For example, if a governing body creates long-term committees on budget and finance or on public safety, those are standing committees subject to the Brown Act. Further, according to the California Attorney General, function over form controls. For example, a statement by the legislative body that the advisory committee “shall not exercise continuing subject matter jurisdiction” or the fact that the committee does not have a fixed meeting schedule is not determinative.10 “Formal action” by a legislative body includes authorization given to the agency’s executive officer to appoint an advisory committee pursuant to agency-adopted policy.11 ƒƒThe governing body of any private organization either: (1) created by the legislative body in order to exercise authority that may lawfully be delegated by such body to a private corporation, limited liability company or other entity; or (2) that receives agency funding and whose governing board includes a member of the legislative body of the local agency appointed by the legislative body as a full voting member of the private entity’s governing board.12 These include some nonprofit corporations created by local agencies.13 If a local agency contracts with a private firm for a service (for example, payroll, janitorial, or food services), the private firm is not covered by the Brown Act.14 When a member of a legislative body sits on a board of a private organization as a private person and is not appointed by the legislative body, the board will not be subject to the Brown Act. Similarly, when the legislative body appoints someone other than one of its own members to such boards, the Brown Act does not apply. Nor does it apply when a private organization merely receives agency funding.15 Q: The local chamber of commerce is funded in part by the city. The mayor sits on the chamber’s board of directors. Is the chamber board a legislative body subject to the Brown Act? A: Maybe. If the chamber’s governing documents require the mayor to be on the board and the city council appoints the mayor to that position, the board is a legislative body. If, however, the chamber board independently appoints the mayor to its board, or the mayor attends chamber board meetings in a purely advisory capacity, it is not. Q: If a community college district board creates an auxiliary organization to operate a campus bookstore or cafeteria, is the board of the organization a legislative body? A: Yes. But, if the district instead contracts with a private firm to operate the bookstore or cafeteria, the Brown Act would not apply to the private firm. ƒƒCertain types of hospital operators. A lessee of a hospital (or portion of a hospital) PRACTICE TIP: It can be difficult to determine whether a subcommittee of a body falls into the category of a standing committee or an exempt temporary committee. Suppose a committee is created to explore the renewal of a franchise or a topic of similarly limited scope and duration. Is it an exempt temporary committee or a non- exempt standing committee? The answer may depend on factors such as how meeting schedules are determined, the scope of the committee’s charge, or whether the committee exists long enough to have “continuing jurisdiction.” 30 14 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CHAPTER 2: LEGISLATIVE BODIES first leased under Health and Safety Code subsection 32121(p) after January 1, 1994, which exercises “material authority” delegated to it by a local agency, whether or not such lessee is organized and operated by the agency or by a delegated authority.16 What is not a “legislative body” for purposes of the Brown Act? ƒƒA temporary advisory committee composed solely of less than a quorum of the legislative body that serves a limited or single purpose, that is not perpetual, and that will be dissolved once its specific task is completed is not subject to the Brown Act.17 Temporary committees are sometimes called ad hoc committees, a term not used in the Brown Act. Examples include an advisory committee composed of less than a quorum created to interview candidates for a vacant position or to meet with representatives of other entities to exchange information on a matter of concern to the agency, such as traffic congestion.18 ƒƒGroups advisory to a single decision-maker or appointed by staff are not covered. The Brown Act applies only to committees created by formal action of the legislative body and not to committees created by others. A committee advising a superintendent of schools would not be covered by the Brown Act. However, the same committee, if created by formal action of the school board, would be covered.19 Q. A member of the legislative body of a local agency informally establishes an advisory committee of five residents to advise her on issues as they arise. Does the Brown Act apply to this committee? A. No, because the committee has not been established by formal action of the legislative body. Q. During a meeting of the city council, the council directs the city manager to form an advisory committee of residents to develop recommendations for a new ordinance. The city manager forms the committee and appoints its members; the committee is instructed to direct its recommendations to the city manager. Does the Brown Act apply to this committee? A. Possibly, because the direction from the city council might be regarded as a formal action of the body notwithstanding that the city manager controls the committee. ƒƒIndividual decision makers who are not elected or appointed members of a legislative body are not covered by the Brown Act. For example, a disciplinary hearing presided over by a department head or a meeting of agency department heads are not subject to the Brown Act since such assemblies are not those of a legislative body.20 ƒƒPublic employees, each acting individually and not engaging in collective deliberation on a specific issue, such as the drafting and review of an agreement, do not constitute a legislative body under the Brown Act, even if the drafting and review process was established by a legislative body.21 ƒƒCounty central committees of political parties are also not Brown Act bodies.22 ENDNOTES: 1 Taxpayers for Livable Communities v. City of Malibu (2005) 126 Cal.App.4th 1123, 1127 31 15OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 2 California Government Code section 54952(a) and (b) 3 California Government Code section 54951; Health and Safety Code section 34173(g) (successor agencies to former redevelopment agencies subject to the Brown Act). But see Education Code section 35147, which exempts certain school councils and school site advisory committees from the Brown Act and imposes upon them a separate set of rules. 4 Torres v. Board of Commissioners of Housing Authority of Tulare County (1979) 89 Cal.App.3d 545, 549- 550 5 71 Ops.Cal.Atty.Gen. 96 (1988); 73 Ops.Cal.Atty.Gen. 1 (1990) 6 McKee v. Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force (2005) 134 Cal. App.4th 354, 362 7 California Government Code section 54952.1 8 Joiner v. City of Sebastopol (1981) 125 Cal.App.3d 799, 804-805 9 California Government Code section 54952(b) 10 79 Ops.Cal.Atty.Gen. 69 (1996) 11 Frazer v. Dixon Unified School District (1993) 18 Cal.App.4th 781, 793 12 California Government Code section 54952(c)(1). Regarding private organizations that receive local agency funding, the same rule applies to a full voting member appointed prior to February 9, 1996 who, after that date, is made a non-voting board member by the legislative body. California Government Code section 54952(c)(2) 13 California Government Code section 54952(c)(1)(A); International Longshoremen’s and Warehousemen’s Union v. Los Angeles Export Terminal, Inc. (1999) 69 Cal.App.4th 287, 300; Epstein v. Hollywood Entertainment Dist. II Business Improvement District (2001) 87 Cal.App.4th 862, 876; see also 85 Ops.Cal.Atty.Gen. 55 (2002) 14 International Longshoremen’s and Warehousemen’s Union v. Los Angeles Export Terminal (1999) 69 Cal. App.4th 287, 300 fn. 5 15 “The Brown Act, Open Meetings for Local Legislative Bodies,” California Attorney General’s Office (2003), p. 7 16 California Government Code section 54952(d) 17 California Government Code section 54952(b); see also Freedom Newspapers, Inc. v. Orange County Employees Retirement System Board of Directors (1993) 6 Cal.4th 821, 832. 18 Taxpayers for Livable Communities v. City of Malibu (2005) 126 Cal.App.4th 1123, 1129 19 56 Ops.Cal.Atty.Gen. 14, 16-17 (1973) 20 Wilson v. San Francisco Municipal Railway (1973) 29 Cal.App.3d 870, 878-879 21 Golightly v. Molina (2014) 229 Cal.App.4th 1501, 1513 22 59 Ops.Cal.Atty.Gen. 162, 164 (1976) Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov. 32 16 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 33 17OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 17OPEN & PUBLiC V: A GUIDE TO THE RALPH M. BROWN ACT Chapter 3 MEETINGS Brown Act meetings .........................................................................................................18 Six exceptions to the meeting definition ..........................................................................18 Collective briefings ............................................................................................................21 Retreats or workshops of legislative bodies.....................................................................21 Serial meetings .................................................................................................................21 Informal gatherings ...........................................................................................................24 Technological conferencing ..............................................................................................24 Location of meetings ........................................................................................................25 34 18 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CHAPTER 3: MEETINGS The Brown Act only applies to meetings of local legislative bodies. The Brown Act defines a meeting as: “… and any congregation of a majority of the members of a legislative body at the same time and location, including teleconference location as permitted by Section 54953, to hear, discuss, deliberate, or take any action on any item that is within the subject matter jurisdiction of the legislative body.”1 The term “meeting” is not limited to gatherings at which action is taken but includes deliberative gatherings as well. A hearing before an individual hearing officer is not a meeting under the Brown Act because it is not a hearing before a legislative body.2 Brown Act meetings Brown Act meetings include a legislative body’s regular meetings, special meetings, emergency meetings, and adjourned meetings. ƒƒ“Regular meetings” are meetings occurring at the dates, times, and location set by resolution, ordinance, or other formal action by the legislative body and are subject to 72- hour posting requirements.3 ƒƒ“Special meetings” are meetings called by the presiding officer or majority of the legislative body to discuss only discrete items on the agenda under the Brown Act’s notice requirements for special meetings and are subject to 24-hour posting requirements.4 ƒƒ“Emergency meetings” are a limited class of meetings held when prompt action is needed due to actual or threatened disruption of public facilities and are held on little notice.5 ƒƒ“Adjourned meetings” are regular or special meetings that have been adjourned or re-adjourned to a time and place specified in the order of adjournment, with no agenda required for regular meetings adjourned for less than five calendar days as long as no additional business is transacted.6 Six exceptions to the meeting definition The Brown Act creates six exceptions to the meeting definition:7 Individual Contacts The first exception involves individual contacts between a member of the legislative body and any other person. The Brown Act does not limit a legislative body member acting on his or her own. This exception recognizes the right to confer with constituents, advocates, consultants, news reporters, local agency staff, or a colleague. Individual contacts, however, cannot be used to do in stages what would be prohibited in one step. For example, a series of individual contacts that leads to discussion, deliberation, or action among a majority of the members of a legislative body is prohibited. Such serial meetings are discussed below. Chapter 3 MEETINGS 35 19OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT Conferences The second exception allows a legislative body majority to attend a conference or similar gathering open to the public that addresses issues of general interest to the public or to public agencies of the type represented by the legislative body. Among other things, this exception permits legislative body members to attend annual association conferences of city, county, school, community college, and other local agency officials, so long as those meetings are open to the public. However, a majority of members cannot discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within their local agency’s subject matter jurisdiction. Community Meetings The third exception allows a legislative body majority to attend an open and publicized meeting held by another organization to address a topic of local community concern. A majority cannot discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within the legislative body’s subject matter jurisdiction. Under this exception, a legislative body majority may attend a local service club meeting or a local candidates’ night if the meetings are open to the public. “I see we have four distinguished members of the city council at our meeting tonight,” said the chair of the Environmental Action Coalition.“I wonder if they have anything to say about the controversy over enacting a slow growth ordinance?” The Brown Act permits a majority of a legislative body to attend and speak at an open and publicized meeting conducted by another organization. The Brown Act may nevertheless be violated if a majority discusses, deliberates, or takes action on an item during the meeting of the other organization. There is a fine line between what is permitted and what is not; hence, members should exercise caution when participating in these types of events. Q. The local chamber of commerce sponsors an open and public candidate debate during an election campaign. Three of the five agency members are up for re-election and all three participate. All of the candidates are asked their views of a controversial project scheduled for a meeting to occur just after the election. May the three incumbents answer the question? A. Yes, because the Brown Act does not constrain the incumbents from expressing their views regarding important matters facing the local agency as part of the political process the same as any other candidates. 36 20 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CHAPTER 3: MEETINGS Other Legislative Bodies The fourth exception allows a majority of a legislative body to attend an open and publicized meeting of: (1) another body of the local agency; and (2) a legislative body of another local agency.8 Again, the majority cannot discuss among themselves, other than as part of the scheduled meeting, business of a specific nature that is within their subject matter jurisdiction. This exception allows, for example, a city council or a majority of a board of supervisors to attend a controversial meeting of the planning commission. Nothing in the Brown Act prevents the majority of a legislative body from sitting together at such a meeting. They may choose not to, however, to preclude any possibility of improperly discussing local agency business and to avoid the appearance of a Brown Act violation. Further, aside from the Brown Act, there may be other reasons, such as due process considerations, why the members should avoid giving public testimony or trying to influence the outcome of proceedings before a subordinate body. Q. The entire legislative body intends to testify against a bill before the Senate Local Government Committee in Sacramento. Must this activity be noticed as a meeting of the body? A. No, because the members are attending and participating in an open meeting of another governmental body which the public may attend. Q. The members then proceed upstairs to the office of their local Assembly member to discuss issues of local interest. Must this session be noticed as a meeting and be open to the public? A. Yes, because the entire body may not meet behind closed doors except for proper closed sessions. The same answer applies to a private lunch or dinner with the Assembly member. Standing Committees The fifth exception authorizes the attendance of a majority at an open and noticed meeting of a standing committee of the legislative body, provided that the legislative body members who are not members of the standing committee attend only as observers (meaning that they cannot speak or otherwise participate in the meeting).9 Q. The legislative body establishes a standing committee of two of its five members, which meets monthly. A third member of the legislative body wants to attend these meetings and participate. May she? A. She may attend, but only as an observer; she may not participate. 37 21OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT Social or Ceremonial Events The final exception permits a majority of a legislative body to attend a purely social or ceremonial occasion. Once again, a majority cannot discuss business among themselves of a specific nature that is within the subject matter jurisdiction of the legislative body. Nothing in the Brown Act prevents a majority of members from attending the same football game, party, wedding, funeral, reception, or farewell. The test is not whether a majority of a legislative body attends the function, but whether business of a specific nature within the subject matter jurisdiction of the body is discussed. So long as no such business is discussed, there is no violation of the Brown Act. Grand Jury Testimony In addition, members of a legislative body, either individually or collectively, may give testimony in private before a grand jury.10 This is the equivalent of a seventh exception to the Brown Act’s definition of a “meeting.” Collective briefings None of these exceptions permits a majority of a legislative body to meet together with staff in advance of a meeting for a collective briefing. Any such briefings that involve a majority of the body in the same place and time must be open to the public and satisfy Brown Act meeting notice and agenda requirements. Retreats or workshops of legislative bodies Gatherings by a majority of legislative body members at the legislative body’s retreats, study sessions, or workshops are covered under the Brown Act. This is the case whether the retreat, study session, or workshop focuses on long-range agency planning, discussion of critical local issues, or team building and group dynamics.11 Q. The legislative body wants to hold a team-building session to improve relations among its members. May such a session be conducted behind closed doors? A. No, this is not a proper subject for a closed session, and there is no other basis to exclude the public. Council relations are a matter of public business. Serial meetings One of the most frequently asked questions about the Brown Act involves serial meetings. At any one time, such meetings involve only a portion of a legislative body, but eventually involve a majority. The Brown Act provides that “[a] majority of the members of a legislative body shall not, outside a meeting … use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.”12 The problem with serial meetings is the process, which deprives the public of an opportunity for meaningful observation of and participation in legislative body decision-making. 38 22 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CHAPTER 3: MEETINGS The serial meeting may occur by either a “daisy chain” or a “hub and spoke” sequence. In the daisy chain scenario, Member A contacts Member B, Member B contacts Member C, Member C contacts Member D and so on, until a quorum has discussed, deliberated, or taken action on an item within the legislative body’s subject matter jurisdiction. The hub and spoke process involves at least two scenarios. In the first scenario, Member A (the hub) sequentially contacts Members B, C, and D and so on (the spokes), until a quorum has been contacted. In the second scenario, a staff member (the hub), functioning as an intermediary for the legislative body or one of its members, communicates with a majority of members (the spokes) one-by-one for for discussion, deliberation, or a decision on a proposed action.13 Another example of a serial meeting is when a chief executive officer (the hub) briefs a majority of members (the spokes) prior to a formal meeting and, in the process, information about the members’ respective views is revealed. Each of these scenarios violates the Brown Act. A legislative body member has the right, if not the duty, to meet with constituents to address their concerns. That member also has the right to confer with a colleague (but not with a majority of the body, counting the member) or appropriate staff about local agency business. An employee or official of a local agency may engage in separate conversations or communications outside of an open and noticed meeting “with members of a legislative body in order to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body.”14 The Brown Act has been violated, however, if several one-on-one meetings or conferences leads to a discussion, deliberation, or action by a majority. In one case, a violation occurred when a quorum of a city council, by a letter that had been circulated among members outside of a formal meeting, directed staff to take action in an eminent domain proceeding.15 A unilateral written communication to the legislative body, such as an informational or advisory memorandum, does not violate the Brown Act.16 Such a memo, however, may be a public record.17 The phone call was from a lobbyist. “Say, I need your vote for that project in the south area. How about it?” “Well, I don’t know,” replied Board Member Aletto. “That’s kind of a sticky proposition. You sure you need my vote?” “Well, I’ve got Bradley and Cohen lined up and another vote leaning. With you I’d be over the top.” Moments later, the phone rings again. “Hey, I’ve been hearing some rumbles on that south area project,” said the newspaper reporter. “I’m counting noses. How are you voting on it?” Neither the lobbyist nor the reporter has violated the Brown Act, but they are facilitating 39 23OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT a violation. The board member may have violated the Brown Act by hearing about the positions of other board members and indeed coaxing the lobbyist to reveal the other board members’ positions by asking “You sure you need my vote?” The prudent course is to avoid such leading conversations and to caution lobbyists, staff, and news media against revealing such positions of others. The mayor sat down across from the city manager. “From now on,” he declared, “I want you to provide individual briefings on upcoming agenda items. Some of this material is very technical, and the council members don’t want to sound like idiots asking about it in public. Besides that, briefings will speed up the meeting.” Agency employees or officials may have separate conversations or communications outside of an open and noticed meeting “with members of a legislative body in order to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body.”18 Members should always be vigilant when discussing local agency business with anyone to avoid conversations that could lead to a discussion, deliberation or action taken among the majority of the legislative body. “Thanks for the information,” said Council Member Kim. “These zoning changes can be tricky, and now I think I’m better equipped to make the right decision.” “Glad to be of assistance,” replied the planning director. “I’m sure Council Member Jones is OK with these changes. How are you leaning?” “Well,” said Council Member Kim, “I’m leaning toward approval. I know that two of my colleagues definitely favor approval.” The planning director should not disclose Jones’ prospective vote, and Kim should not disclose the prospective votes of two of her colleagues. Under these facts, there likely has been a serial meeting in violation of the Brown Act. Q. The agency’s website includes a chat room where agency employees and officials participate anonymously and often discuss issues of local agency business. Members of the legislative body participate regularly. Does this scenario present a potential for violation of the Brown Act? A. Yes, because it is a technological device that may serve to allow for a majority of members to discuss, deliberate, or take action on matters of agency business. Q. A member of a legislative body contacts two other members on a five-member body relative to scheduling a special meeting. Is this an illegal serial meeting? A. No, the Brown Act expressly allows a majority of a body to call a special meeting, though the members should avoid discussing the merits of what is to be taken up at the meeting. PRACTICE TIP: When briefing legislative body members, staff must exercise care not to disclose other members’ views and positions. 40 24 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CHAPTER 3: MEETINGS Particular care should be exercised when staff briefings of legislative body members occur by email because of the ease of using the “reply to all” button that may inadvertently result in a Brown Act violation. Informal gatherings Often members are tempted to mix business with pleasure — for example, by holding a post- meeting gathering. Informal gatherings at which local agency business is discussed or transacted violate the law if they are not conducted in conformance with the Brown Act.19 A luncheon gathering in a crowded dining room violates the Brown Act if the public does not have an opportunity to attend, hear, or participate in the deliberations of members. Thursday at 11:30 a.m., as they did every week, the board of directors of the Dry Gulch Irrigation District trooped into Pop’s Donut Shoppe for an hour of talk and fellowship. They sat at the corner window, fronting on Main and Broadway, to show they had nothing to hide. Whenever he could, the managing editor of the weekly newspaper down the street hurried over to join the board. A gathering like this would not violate the Brown Act if board members scrupulously avoided talking about irrigation district issues — which might be difficult. This kind of situation should be avoided. The public is unlikely to believe the board members could meet regularly without discussing public business. A newspaper executive’s presence in no way lessens the potential for a violation of the Brown Act. Q. The agency has won a major victory in the Supreme Court on an issue of importance. The presiding officer decides to hold an impromptu press conference in order to make a statement to the print and broadcast media. All the other members show up in order to make statements of their own and be seen by the media. Is this gathering illegal? A. Technically there is no exception for this sort of gathering, but as long as members do not state their intentions as to future action to be taken and the press conference is open to the public, it seems harmless. Technological conferencing Except for certain nonsubstantive purposes, such as scheduling a special meeting, a conference call including a majority of the members of a legislative body is an unlawful meeting. But, in an effort to keep up with information age technologies, the Brown Act specifically allows a legislative body to use any type of teleconferencing to meet, receive public comment and testimony, deliberate, or conduct a closed session.20 While the Brown Act contains specific requirements for conducting a teleconference, the decision to use teleconferencing is entirely discretionary with the body. No person has a right under the Brown Act to have a meeting by teleconference. “Teleconference” is defined as “a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either 41 25OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT audio or video, or both.”21 In addition to the specific requirements relating to teleconferencing, the meeting must comply with all provisions of the Brown Act otherwise applicable. The Brown Act contains the following teleconferencing requirements:22 ƒƒTeleconferencing may be used for all purposes during any meeting; ƒƒAt least a quorum of the legislative body must participate from locations within the local agency’s jurisdiction; ƒƒAdditional teleconference locations may be made available for the public; ƒƒEach teleconference location must be specifically identified in the notice and agenda of the meeting, including a full address and room number, as may be applicable; ƒƒAgendas must be posted at each teleconference location, even if a hotel room or a residence; ƒƒEach teleconference location, including a hotel room or residence, must be accessible to the public and have technology, such as a speakerphone, to enable the public to participate; ƒƒThe agenda must provide the opportunity for the public to address the legislative body directly at each teleconference location; and ƒƒAll votes must be by roll call. Q. A member on vacation wants to participate in a meeting of the legislative body and vote by cellular phone from her car while driving from Washington, D.C. to New York. May she? A. She may not participate or vote because she is not in a noticed and posted teleconference location. The use of teleconferencing to conduct a legislative body meeting presents a variety of issues beyond the scope of this guide to discuss in detail. Therefore, before teleconferencing a meeting, legal counsel for the local agency should be consulted. Location of meetings The Brown Act generally requires all regular and special meetings of a legislative body, including retreats and workshops, to be held within the boundaries of the territory over which the local agency exercises jurisdiction.23 An open and publicized meeting of a legislative body may be held outside of agency boundaries if the purpose of the meeting is one of the following:24 ƒƒComply with state or federal law or a court order, or attend a judicial conference or administrative proceeding in which the local agency is a party; ƒƒInspect real or personal property that cannot be conveniently brought into the local agency’s territory, provided the meeting is limited to items relating to that real or personal property; Q. The agency is considering approving a major retail mall. The developer has built other similar malls, and invites the entire legislative body to visit a mall outside the jurisdiction. May the entire body go? A. Yes, the Brown Act permits meetings outside the boundaries of the agency for specified reasons and inspection of property is one such reason. The field trip must be treated as a meeting and the public must be allowed to attend. 42 26 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CHAPTER 3: MEETINGS ƒƒParticipate in multiagency meetings or discussions; however, such meetings must be held within the boundaries of one of the participating agencies, and all of those agencies must give proper notice; ƒƒMeet in the closest meeting facility if the local agency has no meeting facility within its boundaries, or meet at its principal office if that office is located outside the territory over which the agency has jurisdiction; ƒƒMeet with elected or appointed federal or California officials when a local meeting would be impractical, solely to discuss a legislative or regulatory issue affecting the local agency and over which the federal or state officials have jurisdiction; ƒƒMeet in or nearby a facility owned by the agency, provided that the topic of the meeting is limited to items directly related to the facility; or ƒƒVisit the office of its legal counsel for a closed session on pending litigation, when to do so would reduce legal fees or costs.25 In addition, the governing board of a school or community college district may hold meetings outside of its boundaries to attend a conference on nonadversarial collective bargaining techniques, interview candidates for school district superintendent, or interview a potential employee from another district.26 A school board may also interview members of the public residing in another district if the board is considering employing that district’s superintendent. Similarly, meetings of a joint powers authority can occur within the territory of at least one of its member agencies, and a joint powers authority with members throughout the state may meet anywhere in the state.27 Finally, if a fire, flood, earthquake, or other emergency makes the usual meeting place unsafe, the presiding officer can designate another meeting place for the duration of the emergency. News media that have requested notice of meetings must be notified of the designation by the most rapid means of communication available.28 43 27OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT Endnotes: 1 California Government Code section 54952.2(a) 2 Wilson v. San Francisco Municipal Railway (1973) 29 Cal.App.3d 870 3 California Government Code section 54954(a) 4 California Government Code section 54956 5 California Government Code section 54956.5 6 California Government Code section 54955 7 California Government Code section 54952.2(c) 8 California Government Code section 54952.2(c)(4) 9 California Government Code section 54952.2(c)(6) 10 California Government Code section 54953.1 11 “The Brown Act,” California Attorney General (2003), p. 10 12 California Government Code section 54952.2(b)(1) 13 Stockton Newspaper Inc. v. Redevelopment Agency (1985) 171 Cal.App.3d 95 14 California Government Code section 54952.2(b)(2) 15 Common Cause v. Stirling (1983) 147 Cal.App.3d 518 16 Roberts v. City of Palmdale (1993) 5 Cal.4th 363 17 California Government Code section 54957.5(a) 18 California Government Code section 54952.2(b)(2) 19 California Government Code section 54952.2; 43 Ops.Cal.Atty.Gen. 36 (1964) 20 California Government Code section 54953(b)(1) 21 California Government Code section 54953(b)(4) 22 California Government Code section 54953 23 California Government Code section 54954(b) 24 California Government Code section 54954(b)(1)-(7) 25 94 Ops.Cal.Atty.Gen. 15 (2011) 26 California Government Code section 54954(c) 27 California Government Code section 54954(d) 28 California Government Code section 54954(e) Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov. 44 28 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 45 29OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 29OPEN & PUBLiC V: A GUIDE TO THE RALPH M. BROWN ACT Chapter 4 AGENDAS, NOTICES, AND PUBLIC PARTICIPATION Agendas for regular meetings ..........................................................................................30 Mailed agenda upon written request ...............................................................................31 Notice requirements for special meetings .......................................................................32 Notices and agendas for adjourned and continued meetings and hearings ...................32 Notice requirements for emergency meetings ................................................................32 Notice of compensation for simultaneous or serial meetings .........................................33 Educational agency meetings ...........................................................................................33 Notice requirements for tax or assessment meetings and hearings ...............................33 Non-agenda items .............................................................................................................34 Responding to the public ..................................................................................................34 The right to attend and observe meetings .......................................................................35 Records and recordings ....................................................................................................36 The public’s place on the agenda .....................................................................................37 46 30 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION Chapter 4 AGENDAS, NOTICES, AND PUBLIC PARTICIPATION Effective notice is essential for an open and public meeting. Whether a meeting is open or how the public may participate in that meeting is academic if nobody knows about the meeting. Agendas for regular meetings Every regular meeting of a legislative body of a local agency — including advisory committees, commissions, or boards, as well as standing committees of legislative bodies — must be preceded by a posted agenda that advises the public of the meeting and the matters to be transacted or discussed. The agenda must be posted at least 72 hours before the regular meeting in a location “freely accessible to members of the public.”1 The courts have not definitively interpreted the “freely accessible” requirement. The California Attorney General has interpreted this provision to require posting in a location accessible to the public 24 hours a day during the 72-hour period, but any of the 72 hours may fall on a weekend.2 This provision may be satisfied by posting on a touch screen electronic kiosk accessible without charge to the public 24 hours a day during the 72-hour period.3 While posting an agenda on an agency’s Internet website will not, by itself, satisfy the “freely accessible” requirement since there is no universal access to the internet, an agency has a supplemental obligation to post the agenda on its website if: (1) the local agency has a website; and (2) the legislative body whose meeting is the subject of the agenda is either (a) a governing body, or (b) has members that are compensated, with one or more members that are also members of a governing body.4 Q. May the meeting of a governing body go forward if its agenda was either inadvertently not posted on the city’s website or if the website was not operational during part or all of the 72-hour period preceding the meeting? A. At a minimum, the Brown Act calls for “substantial compliance” with all agenda posting requirements, including posting to the agency website.5 Should website technical difficulties arise, seek a legal opinion from your agency attorney. The California Attorney General has opined that technical difficulties which cause the website agenda to become inaccessible for a portion of the 72 hours preceding a meeting do not automatically or inevitably lead to a Brown Act violation, provided the agency can demonstrate substantial compliance.6 This inquiry requires a fact-specific examination of whether the agency or its legislative body made “reasonably effective efforts to notify interested persons of a public meeting” through online posting and other available means.7 The Attorney General’s opinion suggests that this examination would include an evaluation of how long a technical problem persisted, the efforts made to correct the problem or otherwise ensure that the public was informed, and the actual effect the problem had on public 47 31OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT awareness, among other factors.8 The City Attorneys’ Department has taken the position that obvious website technical difficulties do not require cancellation of a meeting, provided that the agency meets all other Brown Act posting requirements and the agenda is available on the website once the technical difficulties are resolved. The agenda must state the meeting time and place and must contain “a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session.”9 Special care should be taken to describe on the agenda each distinct action to be taken by the legislative body, and avoid overbroad descriptions of a “project” if the “project” is actually a set of distinct actions that must each be separately listed on the agenda.10 Q. The agenda for a regular meeting contains the following items of business: ƒ• Consideration of a report regarding traffic on Eighth Street; and ƒ• Consideration of contract with ABC Consulting. Are these descriptions adequate? A. If the first is, it is barely adequate. A better description would provide the reader with some idea of what the report is about and what is being recommended. The second is not adequate. A better description might read “consideration of a contract with ABC Consulting in the amount of $50,000 for traffic engineering services regarding traffic on Eighth Street.” Q. The agenda includes an item entitled City Manager’s Report, during which time the city manager provides a brief report on notable topics of interest, none of which are listed on the agenda. Is this permissible? A. Yes, so long as it does not result in extended discussion or action by the body. A brief general description may not be sufficient for closed session agenda items. The Brown Act provides safe harbor language for the various types of permissible closed sessions. Substantial compliance with the safe harbor language is recommended to protect legislative bodies and elected officials from legal challenges. Mailed agenda upon written request The legislative body, or its designee, must mail a copy of the agenda or, if requested, the entire agenda packet, to any person who has filed a written request for such materials. These copies shall be mailed at the time the agenda is posted. If requested, these materials must be made available in appropriate alternative formats to persons with disabilities. A request for notice is valid for one calendar year and renewal requests must be filed following January 1 of each year. The legislative body may establish a fee to recover the cost of providing the service. Failure of the requesting person to receive the agenda does not constitute grounds for invalidation of actions taken at the meeting.11 PRACTICE TIP: Putting together a meeting agenda requires careful thought. 48 32 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION Notice requirements for special meetings There is no express agenda requirement for special meetings, but the notice of the special meeting effectively serves as the agenda and limits the business that may be transacted or discussed. Written notice must be sent to each member of the legislative body (unless waived in writing by that member) and to each local newspaper of general circulation, and radio or television station that has requested such notice in writing. This notice must be delivered by personal delivery or any other means that ensures receipt, at least 24 hours before the time of the meeting. The notice must state the time and place of the meeting, as well as all business to be transacted or discussed. It is recommended that the business to be transacted or discussed be described in the same manner that an item for a regular meeting would be described on the agenda — with a brief general description. As noted above, closed session items should be described in accordance with the Brown Act’s safe harbor provisions to protect legislative bodies and elected officials from challenges of noncompliance with notice requirements. The special meeting notice must also be posted at least 24 hours prior to the special meeting using the same methods as posting an agenda for a regular meeting: (1) at a site that is freely accessible to the public, and (2) on the agency’s website if: (1) the local agency has a website; and (2) the legislative body whose meeting is the subject of the agenda is either (a) a governing body, or (b) has members that are compensated, with one or more members that are also members of a governing body.12 Notices and agendas for adjourned and continued meetings and hearings A regular or special meeting can be adjourned and re-adjourned to a time and place specified in the order of adjournment.13 If no time is stated, the meeting is continued to the hour for regular meetings. Whoever is present (even if they are less than a quorum) may so adjourn a meeting; if no member of the legislative body is present, the clerk or secretary may adjourn the meeting. If a meeting is adjourned for less than five calendar days, no new agenda need be posted so long as a new item of business is not introduced.14 A copy of the order of adjournment must be posted within 24 hours after the adjournment, at or near the door of the place where the meeting was held. A hearing can be continued to a subsequent meeting. The process is the same as for continuing adjourned meetings, except that if the hearing is continued to a time less than 24 hours away, a copy of the order or notice of continuance must be posted immediately following the meeting.15 Notice requirements for emergency meetings The special meeting notice provisions apply to emergency meetings, except for the 24-hour notice.16 News media that have requested written notice of special meetings must be notified by telephone at least one hour in advance of an emergency meeting, and all telephone numbers provided in that written request must be tried. If telephones are not working, the notice requirements are deemed waived. However, the news media must be notified as soon as possible of the meeting and any action taken. 49 33OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT News media may make a practice of having written requests on file for notification of special or emergency meetings. Absent such a request, a local agency has no legal obligation to notify news media of special or emergency meetings — although notification may be advisable in any event to avoid controversy. Notice of compensation for simultaneous or serial meetings A legislative body that has convened a meeting and whose membership constitutes a quorum of another legislative body, may convene a simultaneous or serial meeting of the other legislative body only after a clerk or member of the convened legislative body orally announces: (1) the amount of compensation or stipend, if any, that each member will be entitled to receive as a result of convening the meeting of the other legislative body; and (2) that the compensation or stipend is provided as a result of convening the meeting of that body.17 No oral disclosure of the amount of the compensation is required if the entire amount of such compensation is prescribed by statute and no additional compensation has been authorized by the local agency. Further, no disclosure is required with respect to reimbursements for actual and necessary expenses incurred in the performance of the member’s official duties, such as for travel, meals, and lodging. Educational agency meetings The Education Code contains some special agenda and special meeting provisions.18 However, they are generally consistent with the Brown Act. An item is probably void if not posted.19 A school district board must also adopt regulations to make sure the public can place matters affecting the district’s business on meeting agendas and to address the board on those items.20 Notice requirements for tax or assessment meetings and hearings The Brown Act prescribes specific procedures for adoption by a city, county, special district, or joint powers authority of any new or increased tax or assessment imposed on businesses.21 Though written broadly, these Brown Act provisions do not apply to new or increased real property taxes or assessments as those are governed by the California Constitution, Article XIIIC or XIIID, enacted by Proposition 218. At least one public meeting must be held to allow public testimony on the tax or assessment. In addition, there must also be at least 45 days notice of a public hearing at which the legislative body proposes to enact or increase the tax or assessment. Notice of the public meeting and public hearing must be provided at the same time and in the same document. The public notice relating to general taxes must be provided by newspaper publication. The public notice relating to new or increased business assessments must be provided through a mailing to all business owners proposed to be subject to the new or increased assessment. The agency may recover the reasonable costs of the public meetings, hearings, and notice. The Brown Act exempts certain fees, standby or availability charges, recurring assessments, and new or increased assessments that are subject to the notice and hearing requirements of the Constitution.22 As a practical matter, the Constitution’s notice requirements have preempted this section of the Brown Act. 50 34 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION Non-agenda items The Brown Act generally prohibits any action or discussion of items not on the posted agenda. However, there are three specific situations in which a legislative body can act on an item not on the agenda:23 ƒƒWhen a majority decides there is an “emergency situation” (as defined for emergency meetings); ƒƒWhen two-thirds of the members present (or all members if less than two-thirds are present) determine there is a need for immediate action and the need to take action “came to the attention of the local agency subsequent to the agenda being posted.” This exception requires a degree of urgency. Further, an item cannot be considered under this provision if the legislative body or the staff knew about the need to take immediate action before the agenda was posted. A new need does not arise because staff forgot to put an item on the agenda or because an applicant missed a deadline; or ƒƒWhen an item appeared on the agenda of, and was continued from, a meeting held not more than five days earlier. The exceptions are narrow, as indicated by this list. The first two require a specific determination by the legislative body. That determination can be challenged in court and, if unsubstantiated, can lead to invalidation of an action. “I’d like a two-thirds vote of the board, so we can go ahead and authorize commencement of phase two of the East Area Project,” said Chair Lopez. “It’s not on the agenda. But we learned two days ago that we finished phase one ahead of schedule — believe it or not — and I’d like to keep it that way. Do I hear a motion?” The desire to stay ahead of schedule generally would not satisfy “a need for immediate action.” Too casual an action could invite a court challenge by a disgruntled resident. The prudent course is to place an item on the agenda for the next meeting and not risk invalidation. “We learned this morning of an opportunity for a state grant,” said the chief engineer at the regular board meeting, “but our application has to be submitted in two days. We’d like the board to give us the go ahead tonight, even though it’s not on the agenda.” A legitimate immediate need can be acted upon even though not on the posted agenda by following a two-step process: ƒƒFirst, make two determinations: 1) that there is an immediate need to take action, and 2) that the need arose after the posting of the agenda. The matter is then placed on the agenda. ƒƒSecond, discuss and act on the added agenda item. Responding to the public The public can talk about anything within the jurisdiction of the legislative body, but the legislative body generally cannot act on or discuss an item not on the agenda. What happens when a member of the public raises a subject not on the agenda? PRACTICE TIP: Subject to very limited exceptions, the Brown Act prohibits any action or discussion of an item not on the posted agenda. 51 35OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT While the Brown Act does not allow discussion or action on items not on the agenda, it does allow members of the legislative body, or its staff, to “briefly respond” to comments or questions from members of the public, provide a reference to staff or other resources for factual information, or direct staff to place the issue on a future agenda. In addition, even without a comment from the public, a legislative body member or a staff member may ask for information, request a report back, request to place a matter on the agenda for a subsequent meeting (subject to the body’s rules or procedures), ask a question for clarification, make a brief announcement, or briefly report on his or her own activities.24 However, caution should be used to avoid any discussion or action on such items. Council Member Jefferson: I would like staff to respond to Resident Joe’s complaints during public comment about the repaving project on Elm Street — are there problems with this project? City Manager Frank: The public works director has prepared a 45-minute power point presentation for you on the status of this project and will give it right now. Council Member Brown: Take all the time you need; we need to get to the bottom of this. Our residents are unhappy. It is clear from this dialogue that the Elm Street project was not on the council’s agenda, but was raised during the public comment period for items not on the agenda. Council Member A properly asked staff to respond; the city manager should have given at most a brief response. If a lengthy report from the public works director was warranted, the city manager should have stated that it would be placed on the agenda for the next meeting. Otherwise, both the long report and the likely discussion afterward will improperly embroil the council in a matter that is not listed on the agenda. The right to attend and observe meetings A number of Brown Act provisions protect the public’s right to attend, observe, and participate in meetings. Members of the public cannot be required to register their names, provide other information, complete a questionnaire, or otherwise “fulfill any condition precedent” to attending a meeting. Any attendance list, questionnaire, or similar document posted at or near the entrance to the meeting room or circulated at a meeting must clearly state that its completion is voluntary and that all persons may attend whether or not they fill it out.25 No meeting can be held in a facility that prohibits attendance based on race, religion, color, national origin, ethnic group identification, age, sex, sexual orientation, or disability, or that is inaccessible to the disabled. Nor can a meeting be held where the public must make a payment or purchase in order to be present.26 This does not mean, however, that the public is entitled to free entry to a conference attended by a majority of the legislative body.27 While a legislative body may use teleconferencing in connection with a meeting, the public must be given notice of and access to the teleconference location. Members of the public must be able to address the legislative body from the teleconference location.28 52 36 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION Action by secret ballot, whether preliminary or final, is flatly prohibited.29 All actions taken by the legislative body in open session, and the vote of each member thereon, must be disclosed to the public at the time the action is taken.30 Q: The agenda calls for election of the legislative body’s officers. Members of the legislative body want to cast unsigned written ballots that would be tallied by the clerk, who would announce the results. Is this voting process permissible? A: No. The possibility that a public vote might cause hurt feelings among members of the legislative body or might be awkward — or even counterproductive — does not justify a secret ballot. The legislative body may remove persons from a meeting who willfully interrupt proceedings.31 Ejection is justified only when audience members actually disrupt the proceedings.32 If order cannot be restored after ejecting disruptive persons, the meeting room may be cleared. Members of the news media who have not participated in the disturbance must be allowed to continue to attend the meeting. The legislative body may establish a procedure to re-admit an individual or individuals not responsible for the disturbance.33 Records and recordings The public has the right to review agendas and other writings distributed by any person to a majority of the legislative body in connection with a matter subject to discussion or consideration at a meeting. Except for privileged documents, those materials are public records and must be made available upon request without delay.34 A fee or deposit as permitted by the California Public Records Act may be charged for a copy of a public record.35 Q: In connection with an upcoming hearing on a discretionary use permit, counsel for the legislative body transmits a memorandum to all members of the body outlining the litigation risks in granting or denying the permit. Must this memorandum be included in the packet of agenda materials available to the public? A: No. The memorandum is a privileged attorney-client communication. Q: In connection with an agenda item calling for the legislative body to approve a contract, staff submits to all members of the body a financial analysis explaining why the terms of the contract favor the local agency. Must this memorandum be included in the packet of agenda materials available to the public? A. Yes. The memorandum has been distributed to the majority of the legislative body, relates to the subject matter of a meeting, and is not a privileged communication. 53 37OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT A legislative body may discuss or act on some matters without considering written materials. But if writings are distributed to a majority of a legislative body in connection with an agenda item, they must also be available to the public. A non-exempt or otherwise privileged writing distributed to a majority of the legislative body less than 72 hours before the meeting must be made available for inspection at the time of distribution at a public office or location designated for that purpose; and the agendas for all meetings of the legislative body must include the address of this office or location.36 A writing distributed during a meeting must be made public: ƒƒAt the meeting if prepared by the local agency or a member of its legislative body; or ƒƒAfter the meeting if prepared by some other person.37 Any tape or film record of an open and public meeting made for whatever purpose by or at the direction of the local agency is subject to the California Public Records Act; however, it may be erased or destroyed 30 days after the taping or recording. Any inspection of a video or tape recording is to be provided without charge on a video or tape player made available by the local agency.38 The agency may impose its ordinary charge for copies that is consistent with the California Public Records Act.39 In addition, the public is specifically allowed to use audio or video tape recorders or still or motion picture cameras at a meeting to record the proceedings, absent a reasonable finding by the legislative body that noise, illumination, or obstruction of view caused by recorders or cameras would persistently disrupt the proceedings.40 Similarly, a legislative body cannot prohibit or restrict the public broadcast of its open and public meetings without making a reasonable finding that the noise, illumination, or obstruction of view would persistently disrupt the proceedings.41 The public’s place on the agenda Every agenda for a regular meeting must allow members of the public to speak on any item of interest, so long as the item is within the subject matter jurisdiction of the legislative body. Further, the public must be allowed to speak on a specific item of business before or during the legislative body’s consideration of it.42 Q. Must the legislative body allow members of the public to show videos or make a power point presentation during the public comment part of the agenda, as long as the subject matter is relevant to the agency and is within the established time limit? A. Probably, although the agency is under no obligation to provide equipment. Moreover, the legislative body cannot prohibit public criticism of policies, procedures, programs, or services of the agency or the acts or omissions of the legislative body itself. But the Brown Act provides no immunity for defamatory statements.43 PRACTICE TIP: Public speakers cannot be compelled to give their name or address as a condition of speaking. The clerk or presiding officer may request speakers to complete a speaker card or identify themselves for the record, but must respect a speaker’s desire for anonymity. 54 38 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION Q. May the presiding officer prohibit a member of the audience from publicly criticizing an agency employee by name during public comments? A. No, as long as the criticism pertains to job performance. Q. During the public comment period of a regular meeting of the legislative body, a resident urges the public to support and vote for a candidate vying for election to the body. May the presiding officer gavel the speaker out of order for engaging in political campaign speech? A. There is no case law on this subject. Some would argue that campaign issues are outside the subject matter jurisdiction of the body within the meaning of Section 54954.3(a). Others take the view that the speech must be allowed under paragraph (c) of that section because it is relevant to the governing of the agency and an implicit criticism of the incumbents. The legislative body may adopt reasonable regulations, including time limits, on public comments. Such regulations should be enforced fairly and without regard to speakers’ viewpoints. The legislative body has discretion to modify its regulations regarding time limits on public comment if necessary. For example, the time limit could be shortened to accommodate a lengthy agenda or lengthened to allow additional time for discussion on a complicated matter.44 The public does not need to be given an opportunity to speak on an item that has already been considered by a committee made up exclusively of members of the legislative body at a public meeting, if all interested members of the public had the opportunity to speak on the item before or during its consideration, and if the item has not been substantially changed.45 Notices and agendas for special meetings must also give members of the public the opportunity to speak before or during consideration of an item on the agenda but need not allow members of the public an opportunity to speak on other matters within the jurisdiction of the legislative body.46 Endnotes: 1 California Government Code section 54954.2(a)(1) 2 78 Ops.Cal.Atty.Gen. 327 (1995) 3 88 Ops.Cal.Atty.Gen. 218 (2005) 4 California Government Code sections 54954.2(a)(1) and 54954.2(d) 5 California Government Code section 54960.1(d)(1) 6 ___ Ops.Cal.Atty.Gen.___, No. 14-1204 (January 19, 2016) 16 Cal. Daily Op. Serv. 937 (Cal.A.G.), 2016 WL 375262 7 North Pacifica LLC v. California Coastal Commission (2008) 166 Cal.App.4th 1416, 1432 8 ___ Ops.Cal.Atty.Gen.___, No. 14-1204 (January 19, 2016) 16 Cal. Daily Op. Serv. 937 (Cal.A.G.), 2016 WL 375262, Slip Op. at p. 8 9 California Government Code section 54954.2(a)(1) 10 San Joaquin Raptor Rescue v. County of Merced (2013) 216 Cal.App.4th 1167 (legislative body’s approval of CEQA action (mitigated negative declaration) without specifically listing it on the agenda violates Brown Act, even if the agenda generally describes the development project that is the subject of the CEQA analysis.) 55 39OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 11 California Government Code section 54954.1 12 California Government Code sections 54956(a) and (c) 13 California Government Code section 54955 14 California Government Code section 54954.2(b)(3) 15 California Government Code section 54955.1 16 California Government Code section 54956.5 17 California Government Code section 54952.3 18 Education Code sections 35144, 35145 and 72129 19 Carlson v. Paradise Unified School District (1971) 18 Cal.App.3d 196 20 California Education Code section 35145.5 21 California Government Code section 54954.6 22 See Cal.Const.Art.XIIIC, XIIID and California Government Code section 54954.6(h) 23 California Government Code section 54954.2(b) 24 California Government Code section 54954.2(a)(2) 25 California Government Code section 54953.3 26 California Government Code section 54961(a); California Government Code section 11135(a) 27 California Government Code section 54952.2(c)(2) 28 California Government Code section 54953(b) 29 California Government Code section 54953(c) 30 California Government Code section 54953(c)(2) 31 California Government Code section 54957.9. 32 Norse v. City of Santa Cruz (9th Cir. 2010) 629 F.3d 966 (silent and momentary Nazi salute directed towards mayor is not a disruption); Acosta v. City of Costa Mesa (9th Cir. 2013) 718 F.3d 800 (city council may not prohibit “insolent” remarks by members of the public absent actual disruption). 33 California Government Code section 54957.9 34 California Government Code section 54957.5 35 California Government Code section 54957.5(d) 36 California Government Code section 54957.5(b) 37 California Government Code section 54957.5(c) 38 California Government Code section 54953.5(b) 39 California Government Code section 54957.5(d) 40 California Government Code section 54953.5(a) 41 California Government Code section 54953.6 42 California Government Code section 54954.3(a) 43 California Government Code section 54954.3(c) 44 California Government Code section 54954.3(b); Chaffee v. San Francisco Public Library Com. (2005) 134 Cal.App.4th 109; 75 Ops.Cal.Atty.Gen. 89 (1992) 45 California Government Code section 54954.3(a) 46 California Government Code section 54954.3(a) Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov. 56 40 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 57 41OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 41OPEN & PUBLiC V: A GUIDE TO THE RALPH M. BROWN ACT Chapter 5 CLOSED SESSIONS Agendas and reports .........................................................................................................42 Litigation ............................................................................................................................43 Real estate negotiations ...................................................................................................45 Public employment ...........................................................................................................46 Labor negotiations ............................................................................................................47 Labor negotiations — school and community college districts .......................................48 Other Education Code exceptions ....................................................................................48 Joint Powers Authorities ...................................................................................................48 License applicants with criminal records .........................................................................49 Public security ...................................................................................................................49 Multijurisdictional law enforcement agency ....................................................................49 Hospital peer review and trade secrets ...........................................................................49 Other legislative bases for closed session .......................................................................50 Who may attend closed sessions .....................................................................................50 The confidentiality of closed session discussions ............................................................50 58 42 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CHAPTER 5: CLOSED SESSIONS A closed session is a meeting of a legislative body conducted in private without the attendance of the public or press. A legislative body is authorized to meet in closed session only to the extent expressly authorized by the Brown Act.1 As summarized in Chapter 1 of this Guide, it is clear that the Brown Act must be interpreted liberally in favor of open meetings, and exceptions that limit public access (including the exceptions for closed session meetings) must be narrowly construed.2 The most common purposes of the closed session provisions in the Brown Act are to avoid revealing confidential information (e.g., prejudicing the city’s position in litigation or compromising the privacy interests of employees). Closed sessions should be conducted keeping those narrow purposes in mind. It is not enough that a subject is sensitive, embarrassing, or controversial. Without specific authority in the Brown Act for a closed session, a matter to be considered by a legislative body must be discussed in public. As an example, a board of police commissioners cannot meet in closed session to provide general policy guidance to a police chief, even though some matters are sensitive and the commission considers their disclosure contrary to the public interest.3 In this chapter, the grounds for convening a closed session are called “exceptions” because they are exceptions to the general rule that meetings must be conducted openly. In some circumstances, none of the closed session exceptions apply to an issue or information the legislative body wishes to discuss privately. In these cases, it is not proper to convene a closed session, even to protect confidential information. For example, although the Brown Act does authorize closed sessions related to specified types of contracts (e.g., specified provisions of real property agreements, employee labor agreements, and litigation settlement agreements),4 the Brown Act does not authorize closed sessions for other contract negotiations. Agendas and reports Closed session items must be briefly described on the posted agenda and the description must state the specific statutory exemption.5 An item that appears on the open meeting portion of the agenda may not be taken into closed session until it has been properly agendized as a closed session item or unless it is properly added as a closed session item by a two-thirds vote of the body after making the appropriate urgency findings.6 The Brown Act supplies a series of fill in the blank sample agenda descriptions for various types of authorized closed sessions, which provide a “safe harbor” from legal attacks. These sample Chapter 5 CLOSED SESSIONS PRACTICE TIP: Some problems over closed sessions arise because secrecy itself breeds distrust. The Brown Act does not require closed sessions and legislative bodies may do well to resist the tendency to call a closed session simply because it may be permitted. A better practice is to go into closed session only when necessary. 59 43OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT agenda descriptions cover license and permit determinations, real property negotiations, existing or anticipated litigation, liability claims, threats to security, public employee appointments, evaluations and discipline, labor negotiations, multi-jurisdictional law enforcement cases, hospital boards of directors, medical quality assurance committees, joint powers agencies, and audits by the California State Auditor’s Office.7 If the legislative body intends to convene in closed session, it must include the section of the Brown Act authorizing the closed session in advance on the agenda and it must make a public announcement prior to the closed session discussion. In most cases, the announcement may simply be a reference to the agenda item.8 Following a closed session, the legislative body must provide an oral or written report on certain actions taken and the vote of every elected member present. The timing and content of the report varies according to the reason for the closed session and the action taken.9 The announcements may be made at the site of the closed session, so long as the public is allowed to be present to hear them. If there is a standing or written request for documentation, any copies of contracts, settlement agreements, or other documents finally approved or adopted in closed session must be provided to the requestor(s) after the closed session, if final approval of such documents does not rest with any other party to the contract or settlement. If substantive amendments to a contract or settlement agreement approved by all parties requires retyping, such documents may be held until retyping is completed during normal business hours, but the substance of the changes must be summarized for any person inquiring about them.10 The Brown Act does not require minutes, including minutes of closed sessions. However, a legislative body may adopt an ordinance or resolution to authorize a confidential “minute book” be kept to record actions taken at closed sessions.11 If one is kept, it must be made available to members of the legislative body, provided that the member asking to review minutes of a particular meeting was not disqualified from attending the meeting due to a conflict of interest.12 A court may order the disclosure of minute books for the court’s review if a lawsuit makes sufficient claims of an open meeting violation. Litigation There is an attorney/client relationship, and legal counsel may use it to protect the confidentiality of privileged written and oral communications to members of the legislative body — outside of meetings. But protection of the attorney/client privilege cannot by itself be the reason for a closed session.13 The Brown Act expressly authorizes closed sessions to discuss what is considered pending litigation. The rules that apply to holding a litigation closed session involve complex, technical definitions and procedures. The essential thing to know is that a closed session can be held by the body to confer with, or receive advice from, its legal counsel when open discussion would prejudice the position of the local agency in litigation in which the agency is, or could become, a party.14 The litigation exception under the Brown Act is narrowly construed and does not permit activities beyond a legislative body’s conferring with its own legal counsel and required support staff.15 For example, it is not permissible to hold a closed session in which settlement negotiations take place between a legislative body, a representative of an adverse party, and a mediator.16 PRACTICE TIP: Pay close attention to closed session agenda descriptions. Using the wrong label can lead to invalidation of an action taken in closed session if not substantially compliant. 60 44 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CHAPTER 5: CLOSED SESSIONS The California Attorney General has opined that if the agency’s attorney is not a participant, a litigation closed session cannot be held.17 In any event, local agency officials should always consult the agency’s attorney before placing this type of closed session on the agenda in order to be certain that it is being done properly. Before holding a closed session under the pending litigation exception, the legislative body must publicly state the basis for the closed session by identifying one of the following three types of matters: existing litigation, anticipated exposure to litigation, or anticipated initiation of litigation.18 Existing litigation Q. May the legislative body agree to settle a lawsuit in a properly-noticed closed session, without placing the settlement agreement on an open session agenda for public approval? A. Yes, but the settlement agreement is a public document and must be disclosed on request. Furthermore, a settlement agreement cannot commit the agency to matters that are required to have public hearings. Existing litigation includes any adjudicatory proceedings before a court, administrative body exercising its adjudicatory authority, hearing officer, or arbitrator. The clearest situation in which a closed session is authorized is when the local agency meets with its legal counsel to discuss a pending matter that has been filed in a court or with an administrative agency and names the local agency as a party. The legislative body may meet under these circumstances to receive updates on the case from attorneys, participate in developing strategy as the case develops, or consider alternatives for resolution of the case. Generally, an agreement to settle litigation may be approved in closed session. However, an agreement to settle litigation cannot be approved in closed session if it commits the city to take an action that is required to have a public hearing.19 Anticipated exposure to litigation against the local agency Closed sessions are authorized for legal counsel to inform the legislative body of a significant exposure to litigation against the local agency, but only if based on “existing facts and circumstances” as defined by the Brown Act.20 The legislative body may also meet under this exception to determine whether a closed session is authorized based on information provided by legal counsel or staff. In general, the “existing facts and circumstances” must be publicly disclosed unless they are privileged written communications or not yet known to a potential plaintiff. Anticipated initiation of litigation by the local agency A closed session may be held under the exception for the anticipated initiation of litigation when the legislative body seeks legal advice on whether to protect the agency’s rights and interests by initiating litigation. Certain actions must be reported in open session at the same meeting following the closed 61 45OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT session. Other actions, as where final approval rests with another party or the court, may be announced when they become final and upon inquiry of any person.21 Each agency attorney should be aware of and make the disclosures that are required by the particular circumstances. Real estate negotiations A legislative body may meet in closed session with its negotiator to discuss the purchase, sale, exchange, or lease of real property by or for the local agency. A “lease” includes a lease renewal or renegotiation. The purpose is to grant authority to the legislative body’s negotiator on price and terms of payment.22 Caution should be exercised to limit discussion to price and terms of payment without straying to other related issues such as site design, architecture, or other aspects of the project for which the transaction is contemplated.23 Q. May other terms of a real estate transaction, aside from price and terms of payment, be addressed in closed session? A. No. However, there are differing opinions over the scope of the phrase “price and terms of payment” in connection with real estate closed sessions. Many agency attorneys argue that any term that directly affects the economic value of the transaction falls within the ambit of “price and terms of payment.” Others take a narrower, more literal view of the phrase. The agency’s negotiator may be a member of the legislative body itself. Prior to the closed session, or on the agenda, the legislative body must identify its negotiators, the real property that the negotiations may concern24 and the names of the parties with whom its negotiator may negotiate.25 After real estate negotiations are concluded, the approval and substance of the agreement must be publicly reported. If its own approval makes the agreement final, the body must report in open session at the public meeting during which the closed session is held. If final approval rests with another party, the local agency must report the approval and the substance of the agreement upon inquiry by any person, as soon as the agency is informed of it.26 “Our population is exploding, and we have to think about new school sites,” said Board Member Jefferson. “Not only that,” interjected Board Member Tanaka, “we need to get rid of a couple of our older facilities.” “Well, obviously the place to do that is in a closed session,” said Board Member O’Reilly. “Otherwise we’re going to set off land speculation. And if we even mention closing a school, parents are going to be in an uproar.” A closed session to discuss potential sites is not authorized by the Brown Act. The exception is limited to meeting with its negotiator over specific sites — which must be identified at an open and public meeting. 62 46 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CHAPTER 5: CLOSED SESSIONS Public employment The Brown Act authorizes a closed session “to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee.”27 The purpose of this exception — commonly referred to as the “personnel exception” — is to avoid undue publicity or embarrassment for an employee or applicant for employment and to allow full and candid discussion by the legislative body; thus, it is restricted to discussing individuals, not general personnel policies.28 The body must possess the power to appoint, evaluate, or dismiss the employee to hold a closed session under this exception.29 That authority may be delegated to a subsidiary appointed body.30 An employee must be given at least 24 hours notice of any closed session convened to hear specific complaints or charges against him or her. This occurs when the legislative body is reviewing evidence, which could include live testimony, and adjudicating conflicting testimony offered as evidence. A legislative body may examine (or exclude) witnesses,31 and the California Attorney General has opined that, when an affected employee and advocate have an official or essential role to play, they may be permitted to participate in the closed session.32 The employee has the right to have the specific complaints and charges discussed in a public session rather than closed session.33 If the employee is not given the 24-hour prior notice, any disciplinary action is null and void.34 However, an employee is not entitled to notice and a hearing where the purpose of the closed session is to consider a performance evaluation. The Attorney General and the courts have determined that personnel performance evaluations do not constitute complaints and charges, which are more akin to accusations made against a person.35 Q. Must 24 hours notice be given to an employee whose negative performance evaluation is to be considered by the legislative body in closed session? A. No, the notice is reserved for situations where the body is to hear complaints and charges from witnesses. Correct labeling of the closed session on the agenda is critical. A closed session agenda that identified discussion of an employment contract was not sufficient to allow dismissal of an employee.36 An incorrect agenda description can result in invalidation of an action and much embarrassment. For purposes of the personnel exception, “employee” specifically includes an officer or an independent contractor who functions as an officer or an employee. Examples of the former include a city manager, district general manager or superintendent. Examples of the latter Include a legal counsel or engineer hired on contract to act as local agency attorney or chief engineer. Elected officials, appointees to the governing body or subsidiary bodies, and independent contractors other than those discussed above are not employees for purposes of the personnel exception.37 Action on individuals who are not “employees” must also be public — including discussing and voting on appointees to committees, or debating the merits of independent contractors, or considering a complaint against a member of the legislative body itself. PRACTICE TIP: Discussions of who to appoint to an advisory body and whether or not to censure a fellow member of the legislative body must be held in the open. 63 47OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT The personnel exception specifically prohibits discussion or action on proposed compensation in closed session, except for a disciplinary reduction in pay. Among other things, that means there can be no personnel closed sessions on a salary change (other than a disciplinary reduction) between any unrepresented individual and the legislative body. However, a legislative body may address the compensation of an unrepresented individual, such as a city manager, in a closed session as part of a labor negotiation (discussed later in this chapter), yet another example of the importance of using correct agenda descriptions. Reclassification of a job must be public, but an employee’s ability to fill that job may be considered in closed session. Any closed session action to appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee must be reported at the public meeting during which the closed session is held. That report must identify the title of the position, but not the names of all persons considered for an employment position.38 However, a report on a dismissal or non-renewal of an employment contract must be deferred until administrative remedies, if any, are exhausted.39 “I have some important news to announce,” said Mayor Garcia. “We’ve decided to terminate the contract of the city manager, effective immediately. The council has met in closed session and we’ve negotiated six months severance pay.” “Unfortunately, that has some serious budget consequences, so we’ve had to delay phase two of the East Area Project.” This may be an improper use of the personnel closed session if the council agenda described the item as the city manager’s evaluation. In addition, other than labor negotiations, any action on individual compensation must be taken in open session. Caution should be exercised to not discuss in closed session issues, such as budget impacts in this hypothetical, beyond the scope of the posted closed session notice. Labor negotiations The Brown Act allows closed sessions for some aspects of labor negotiations. Different provisions (discussed below) apply to school and community college districts. A legislative body may meet in closed session to instruct its bargaining representatives, which may be one or more of its members,40 on employee salaries and fringe benefits for both represented (“union”) and non-represented employees. For represented employees, it may also consider working conditions that by law require negotiation. For the purpose of labor negotiation closed sessions, an “employee” includes an officer or an independent contractor who functions as an officer or an employee, but independent contractors who do not serve in the capacity of an officer or employee are not covered by this closed session exception.41 These closed sessions may take place before or during negotiations with employee representatives. Prior to the closed session, the legislative body must hold an open and public session in which it identifies its designated representatives. PRACTICE TIP: The personnel exception specifically prohibits discussion or action on proposed compensation in closed session except for a disciplinary reduction in pay. 64 48 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CHAPTER 5: CLOSED SESSIONS During its discussions with representatives on salaries and fringe benefits, the legislative body may also discuss available funds and funding priorities, but only to instruct its representative. The body may also meet in closed session with a conciliator who has intervened in negotiations.42 The approval of an agreement concluding labor negotiations with represented employees must be reported after the agreement is final and has been accepted or ratified by the other party. The report must identify the item approved and the other party or parties to the negotiation.43 The labor closed sessions specifically cannot include final action on proposed compensation of one or more unrepresented employees. Labor negotiations — school and community college districts Employee relations for school districts and community college districts are governed by the Rodda Act, where different meeting and special notice provisions apply. The entire board, for example, may negotiate in closed sessions. Four types of meetings are exempted from compliance with the Rodda Act: 1. A negotiating session with a recognized or certified employee organization; 2. A meeting of a mediator with either side; 3. A hearing or meeting held by a fact finder or arbitrator; and 4. A session between the board and its bargaining agent, or the board alone, to discuss its position regarding employee working conditions and instruct its agent.44 Public participation under the Rodda Act also takes another form.45 All initial proposals of both sides must be presented at public meetings and are public records. The public must be given reasonable time to inform itself and to express its views before the district may adopt its initial proposal. In addition, new topics of negotiations must be made public within 24 hours. Any votes on such a topic must be followed within 24 hours by public disclosure of the vote of each member.46 The final vote must be in public. Other Education Code exceptions The Education Code governs student disciplinary meetings by boards of school districts and community college districts. District boards may hold a closed session to consider the suspension or discipline of a student, if a public hearing would reveal personal, disciplinary, or academic information about the student contrary to state and federal pupil privacy law. The student’s parent or guardian may request an open meeting.47 Community college districts may also hold closed sessions to discuss some student disciplinary matters, awarding of honorary degrees, or gifts from donors who prefer to remain anonymous.48 Kindergarten through 12th grade districts may also meet in closed session to review the contents of the statewide assessment instrument.49 Joint Powers Authorities The legislative body of a joint powers authority may adopt a policy regarding limitations on disclosure of confidential information obtained in closed session, and may meet in closed session to discuss information that is subject to the policy.50 PRACTICE TIP: Prior to the closed session, the legislative body must hold an open and public session in which it identifies its designated representatives. PRACTICE TIP: Attendance by the entire legislative body before a grand jury would not constitute a closed session meeting under the Brown Act. 65 49OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT License applicants with criminal records A closed session is permitted when an applicant, who has a criminal record, applies for a license or license renewal and the legislative body wishes to discuss whether the applicant is sufficiently rehabilitated to receive the license. The applicant and the applicant’s attorney are authorized to attend the closed session meeting. If the body decides to deny the license, the applicant may withdraw the application. If the applicant does not withdraw, the body must deny the license in public, immediately or at its next meeting. No information from the closed session can be revealed without consent of the applicant, unless the applicant takes action to challenge the denial.51 Public security Legislative bodies may meet in closed session to discuss matters posing a threat to the security of public buildings, essential public services, including water, sewer, gas, or electric service, or to the public’s right of access to public services or facilities over which the legislative body has jurisdiction. Closed session meetings for these purposes must be held with designated security or law enforcement officials including the Governor, Attorney General, district attorney, agency attorney, sheriff or chief of police, or their deputies or agency security consultant or security operations manager.52 Action taken in closed session with respect to such public security issues is not reportable action. Multijurisdictional law enforcement agency A joint powers agency formed to provide law enforcement services (involving drugs; gangs; sex crimes; firearms trafficking; felony possession of a firearm; high technology, computer, or identity theft; human trafficking; or vehicle theft) to multiple jurisdictions may hold closed sessions to discuss case records of an on-going criminal investigation, to hear testimony from persons involved in the investigation, and to discuss courses of action in particular cases.53 The exception applies to the legislative body of the joint powers agency and to any body advisory to it. The purpose is to prevent impairment of investigations, to protect witnesses and informants, and to permit discussion of effective courses of action.54 Hospital peer review and trade secrets Two specific kinds of closed sessions are allowed for district hospitals and municipal hospitals, under other provisions of law.55 1. A meeting to hear reports of hospital medical audit or quality assurance committees, or for related deliberations. However, an applicant or medical staff member whose staff privileges are the direct subject of a hearing may request a public hearing. 2. A meeting to discuss “reports involving trade secrets” — provided no action is taken. A “trade secret” is defined as information which is not generally known to the public or competitors and which: 1) “derives independent economic value, actual or potential” by virtue of its restricted knowledge; 2) is necessary to initiate a new hospital service or program or facility; and 3) would, if prematurely disclosed, create a substantial probability of depriving the hospital of a substantial economic benefit. The provision prohibits use of closed sessions to discuss transitions in ownership or management, or the district’s dissolution.56 66 50 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CHAPTER 5: CLOSED SESSIONS Other legislative bases for closed session Since any closed session meeting of a legislative body must be authorized by the Legislature, it is important to carefully review the Brown Act to determine if there is a provision that authorizes a closed session for a particular subject matter. There are some less frequently encountered topics that are authorized to be discussed by a legislative body in closed session under the Brown Act, including: a response to a confidential final draft audit report from the Bureau of State Audits,57 consideration of the purchase or sale of particular pension fund investments by a legislative body of a local agency that invests pension funds,58 hearing a charge or complaint from a member enrolled in a health plan by a legislative body of a local agency that provides Medi-Cal services,59 discussions by a county board of supervisors that governs a health plan licensed pursuant to the Knox-Keene Health Care Services Plan Act related to trade secrets or contract negotiations concerning rates of payment,60 and discussions by an insurance pooling joint powers agency related to a claim filed against, or liability of, the agency or a member of the agency.61 Who may attend closed sessions Meetings of a legislative body are either fully open or fully closed; there is nothing in between. Therefore, local agency officials and employees must pay particular attention to the authorized attendees for the particular type of closed session. As summarized above, the authorized attendees may differ based on the topic of the closed session. Closed sessions may involve only the members of the legislative body and only agency counsel, management and support staff, and consultants necessary for consideration of the matter that is the subject of closed session, with very limited exceptions for adversaries or witnesses with official roles in particular types of hearings (e.g., personnel disciplinary hearings and license hearings). In any case, individuals who do not have an official role in the closed session subject matters must be excluded from closed sessions.63 Q. May the lawyer for someone suing the agency attend a closed session in order to explain to the legislative body why it should accept a settlement offer? A. No, attendance in closed sessions is reserved exclusively for the agency’s advisors. The confidentiality of closed session discussions The Brown Act explicitly prohibits the unauthorized disclosure of confidential information acquired in a closed session by any person present, and offers various remedies to address breaches of confidentiality.64 It is incumbent upon all those attending lawful closed sessions to protect the confidentiality of those discussions. One court has held that members of a legislative body cannot be compelled to divulge the content of closed session discussions through the discovery process.65 Only the legislative body acting as a body may agree to divulge confidential closed session information; regarding attorney/client privileged communications, the entire body is the holder of the privilege and only the entire body can decide to waive the privilege.66 PRACTICE TIP: Meetings are either open or closed. There is nothing “in between.”62 67 51OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT Before adoption of the Brown Act provision specifically prohibiting disclosure of closed session communications, agency attorneys and the Attorney General long opined that officials have a fiduciary duty to protect the confidentiality of closed session discussions. The Attorney General issued an opinion that it is “improper” for officials to disclose information received during a closed session regarding pending litigation,67 though the Attorney General has also concluded that a local agency is preempted from adopting an ordinance criminalizing public disclosure of closed session discussions.68 In any event, in 2002, the Brown Act was amended to prescribe particular remedies for breaches of confidentiality. These remedies include injunctive relief; and, if the breach is a willful disclosure of confidential information, the remedies include disciplinary action against an employee, and referral of a member of the legislative body to the grand jury.69 The duty of maintaining confidentiality, of course, must give way to the responsibility to disclose improper matters or discussions that may come up in closed sessions. In recognition of this public policy, under the Brown Act, a local agency may not penalize a disclosure of information learned during a closed session if the disclosure: 1) is made in confidence to the district attorney or the grand jury due to a perceived violation of law; 2) is an expression of opinion concerning the propriety or legality of actions taken in closed session, including disclosure of the nature and extent of the illegal action; or 3) is information that is not confidential.70 The interplay between these possible sanctions and an official’s first amendment rights is complex and beyond the scope of this guide. Suffice it to say that this is a matter of great sensitivity and controversy. “I want the press to know that I voted in closed session against filing the eminent domain action,” said Council Member Chang. “Don’t settle too soon,” reveals Council Member Watson to the property owner, over coffee. “The city’s offer coming your way is not our bottom line.” The first comment to the press may be appropriate if it is a part of an action taken by the City Council in closed session that must be reported publicly.71 The second comment to the property owner is not — disclosure of confidential information acquired in closed session is expressly prohibited and harmful to the agency. PRACTICE TIP: There is a strong interest in protecting the confidentiality of proper and lawful closed sessions. 68 52 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CHAPTER 5: CLOSED SESSIONS ENDNOTES: 1 California Government Code section 54962 2 California Constitution, Art. 1, section 3 3 61 Ops.Cal.Atty.Gen. 220 (1978); but see California Government Code section 54957.8 (multijurisdictional law enforcement agencies are authorized to meet in closed session to discuss the case records of ongoing criminal investigations, and other related matters). 4 California Government Code section 54957.1 5 California Government Code section 54954.5 6 California Government Code section 54954.2 7 California Government Code section 54954.5 8 California Government Code sections 54956.9 and 54957.7 9 California Government Code section 54957.1(a) 10 California Government Code section 54957.1(b) 11 California Government Code section 54957.2 12 Hamilton v. Town of Los Gatos (1989) 213 Cal.App.3d 1050; 2 Cal.Code Regs. section 18707 13 Roberts v. City of Palmdale (1993) 5 Cal.4th 363 14 California Government Code section 54956.9; Shapiro v. Board of Directors of Center City Development Corp. (2005) 134 Cal.App.4th 170 (agency must be a party to the litigation). 15 82 Ops.Cal.Atty.Gen. 29 (1999) 16 Page v. Miracosta Community College District (2009) 180 Cal.App.4th 471 17 “The Brown Act,” California Attorney General (2003), p. 40 18 California Government Code section 54956.9(g) 19 Trancas Property Owners Association v. City of Malibu (2006) 138 Cal.App.4th 172 20 Government Code section 54956.9(e) 21 California Government Code section 54957.1 22 California Government Code section 54956.8 23 Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904; see also 93 Ops.Cal.Atty.Gen. 51 (2010) (redevelopment agency may not convene a closed session to discuss rehabilitation loan for a property already subleased to a loan recipient, even if the loan Incorporates some of the sublease terms and includes an operating covenant governing the property); 94 Ops.Cal.Atty.Gen. 82 (2011) (real estate closed session may address form, manner and timing of consideration and other items that cannot be disclosed without revealing price and terms). 24 73 Ops.Cal.Atty.Gen. 1 (1990) 25 California Government Code sections 54956.8 and 54954.5(b) 26 California Government Code section 54957.1(a)(1) 27 California Government Code section 54957(b) 28 63 Ops.Cal.Atty.Gen. 153 (1980); but see Duvall v. Board of Trustees (2000) 93 Cal.App.4th 902 (board may discuss personnel evaluation criteria, process and other preliminary matters in closed session but only if related to the evaluation of a particular employee). 29 Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.App.4th 1165; 85 Ops.Cal.Atty.Gen. 77 (2002) 30 Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.App.4th 1165; 80 Ops.Cal.Atty. Gen. 308 (1997). Interviews of candidates to fill a vacant staff position conducted by a temporary committee appointed by the governing body may be done in closed session. 69 53OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 31 California Government Code section 54957(b)(3) 32 88 Ops.Cal.Atty.Gen. 16 (2005) 33 Morrison v. Housing Authority of the City of Los Angeles (2003) 107 Cal.App.4th 860 34 California Government Code section 54957(b); but see Bollinger v. San Diego Civil Service Commission (1999) 71 Cal.App.4th 568 (notice not required for closed session deliberations regarding complaints or charges, when there was a public evidentiary hearing prior to closed session). 35 78 Ops.Cal.Atty.Gen. 218 (1995); Bell v. Vista Unified School District (2000) 82 Cal.App.4th 672; Furtado v. Sierra Community College (1998) 68 Cal.App.4th 876; Fischer v. Los Angeles Unified School District (1999) 70 Cal.App.4th 87 36 Moreno v. City of King (2005) 127 Cal.App.4th 17 37 California Government Code section 54957 38 Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.App.4th 1165 39 California Government Code section 54957.1(a)(5) 40 California Government Code section 54957.6 41 California Government Code section 54957.6(b); see also 98 Ops.Cal.Atty.Gen. 41 (2015) (a project labor agreement between a community college district and workers hired by contractors or subcontractors is not a proper subject of closed session for labor negotiations because the workers are not “employees” of the district). 42 California Government Code section 54957.6; and 51 Ops.Cal.Atty.Gen. 201 (1968) 43 California Government Code section 54957.1(a)(6) 44 California Government Code section 3549.1 45 California Government Code section 3540 46 California Government Code section 3547 47 California Education Code section 48918; but see Rim of the World Unified School District v. Superior Court (2003) 104 Cal.App.4th 1393 (Section 48918 preempted by the Federal Family Educational Right and Privacy Act in regard to expulsion proceedings). 48 California Education Code section 72122 49 California Education Code section 60617 50 California Government Code section 54956.96 51 California Government Code section 54956.7 52 California Government Code section 54957 53 McKee v. Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force (2005) 134 Cal. App.4th 354 54 California Government Code section 54957.8 55 California Government Code section 54962 56 California Health and Safety Code section 32106 57 California Government Code section 54956.75 58 California Government Code section 54956.81 59 California Government Code section 54956.86 60 California Government Code section 54956.87 61 California Government Code section 54956.95 62 46 Ops.Cal.Atty.Gen. 34 (1965) 63 82 Ops.Cal.Atty.Gen. 29 (1999) 70 54 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CHAPTER 5: CLOSED SESSIONS 64 Government Code section 54963 65 Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 327; see also California Government Code section 54963. 66 Roberts v. City of Palmdale (1993) 5 Cal.4th 363 67 80 Ops.Cal.Atty.Gen. 231 (1997) 68 76 Ops.Cal.Atty.Gen. 289 (1993) 69 California Government Code section 54963 70 California Government Code section 54963 71 California Government Code section 54957.1 Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov. 71 55OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 55OPEN & PUBLiC V: A GUIDE TO THE RALPH M. BROWN ACT Chapter 6 REMEDIES Invalidation ........................................................................................................................56 Applicability to Past Actions .............................................................................................57 Civil action to prevent future violations ...........................................................................57 Costs and attorney’s fees .................................................................................................58 Criminal complaints ..........................................................................................................58 Voluntary resolution ..........................................................................................................59 72 56 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CHAPTER 6: REMEDIES Certain violations of the Brown Act are designated as misdemeanors, although by far the most commonly used enforcement provisions are those that authorize civil actions to invalidate specified actions taken in violation of the Brown Act and to stop or prevent future violations. Still, despite all the safeguards and remedies to enforce them, it is ultimately impossible for the public to monitor every aspect of public officials’ interactions. Compliance ultimately results from regular training and a good measure of self-regulation on the part of public officials. This chapter discusses the remedies available to the public when that self-regulation is ineffective. Invalidation Any interested person, including the district attorney, may seek to invalidate certain actions of a legislative body on the ground that they violate the Brown Act.1 Violations of the Brown Act, however, cannot be invalidated if they involve the following types of actions: ƒƒThose taken in substantial compliance with the law. No Brown Act violation is found when the given notice substantially complies with the Brown Act, even when the notice erroneously cites to the wrong Brown Act section, but adequately advises the public that the Board will meet with legal counsel to discuss potential litigation in closed session;2 ƒƒThose involving the sale or issuance of notes, bonds or other indebtedness, or any related contracts or agreements; ƒƒThose creating a contractual obligation, including a contract awarded by competitive bid for other than compensation for professional services, upon which a party has in good faith relied to its detriment; ƒƒThose connected with the collection of any tax; or ƒƒThose in which the complaining party had actual notice at least 72 hours prior to the regular meeting or 24 hours prior to the special meeting, as the case may be, at which the action is taken. Before filing a court action seeking invalidation, a person who believes that a violation has occurred must send a written “cure or correct” demand to the legislative body. This demand must clearly describe the challenged action and the nature of the claimed violation. This demand must be sent within 90 days of the alleged violation or 30 days if the action was taken in open session but in violation of Section 54954.2, which requires (subject to specific exceptions) that only properly agendized items are acted on by the governing body during a meeting.3 The legislative body then has up to 30 days to cure and correct its action. If it does not act, any lawsuit must be filed within the next 15 days. The purpose of this requirement is to offer the body an opportunity to consider whether a violation has occurred and to weigh its options before litigation is filed. Chapter 6 REMEDIES 73 57OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT Although just about anyone has standing to bring an action for invalidation,4 the challenger must show prejudice as a result of the alleged violation.5 An action to invalidate fails to state a cause of action against the agency if the body deliberated but did not take an action.6 Applicability to Past Actions Any interested person, including the district attorney, may file a civil action to determine whether past actions of a legislative body occurring on or after January 1, 2013 constitute violations of the Brown Act and are subject to a mandamus, injunction, or declaratory relief action.7 Before filing an action, the interested person must, within nine months of the alleged violation of the Brown Act, submit a “cease and desist” letter to the legislative body, clearly describing the past action and the nature of the alleged violation.8 The legislative body has 30 days after receipt of the letter to provide an unconditional commitment to cease and desist from the past action.9 If the body fails to take any action within the 30-day period or takes an action other than an unconditional commitment, a lawsuit may be filed within 60 days.10 The legislative body’s unconditional commitment must be approved at a regular or special meeting as a separate item of business and not on the consent calendar.11 The unconditional commitment must be substantially in the form set forth in the Brown Act.12 No legal action may thereafter be commenced regarding the past action.13 However, an action of the legislative body in violation of its unconditional commitment constitutes an independent violation of the Brown Act and a legal action consequently may be commenced without following the procedural requirements for challenging past actions.14 The legislative body may rescind its prior unconditional commitment by a majority vote of its membership at a regular meeting as a separate item of business not on the consent calendar. At least 30 days written notice of the intended rescission must be given to each person to whom the unconditional commitment was made and to the district attorney. Upon rescission, any interested person may commence a legal action regarding the past actions without following the procedural requirements for challenging past actions.15 Civil action to prevent future violations The district attorney or any interested person can file a civil action asking the court to: ƒƒStop or prevent violations or threatened violations of the Brown Act by members of the legislative body of a local agency; ƒƒDetermine the applicability of the Brown Act to actions or threatened future action of the legislative body; ƒƒDetermine whether any rule or action by the legislative body to penalize or otherwise discourage the expression of one or more of its members is valid under state or federal law; or ƒƒCompel the legislative body to tape record its closed sessions. PRACTICE TIP: A lawsuit to invalidate must be preceded by a demand to cure and correct the challenged action in order to give the legislative body an opportunity to consider its options. The Brown Act does not specify how to cure or correct a violation; the best method is to rescind the action being complained of and start over, or reaffirm the action if the local agency relied on the action and rescinding the action would prejudice the local agency. 74 58 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CHAPTER 6: REMEDIES It is not necessary for a challenger to prove a past pattern or practice of violations by the local agency in order to obtain injunctive relief. A court may presume when issuing an injunction that a single violation will continue in the future where the public agency refuses to admit to the alleged violation or to renounce or curtail the practice.16 Note, however, that a court may not compel elected officials to disclose their recollections of what transpired in a closed session.17 Upon finding a violation of the Brown Act pertaining to closed sessions, a court may compel the legislative body to tape record its future closed sessions. In a subsequent lawsuit to enforce the Brown Act alleging a violation occurring in closed session, a court may upon motion of the plaintiff review the tapes if there is good cause to think the Brown Act has been violated, and make public the relevant portion of the closed session recording. Costs and attorney’s fees Someone who successfully invalidates an action taken in violation of the Brown Act or who successfully enforces one of the Brown Act’s civil remedies may seek court costs and reasonable attorney’s fees. Courts have held that attorney’s fees must be awarded to a successful plaintiff unless special circumstances exist that would make a fee award against the public agency unjust.18 When evaluating how to respond to assertions that the Brown Act has been violated, elected officials and their lawyers should assume that attorney’s fees will be awarded against the agency if a violation of the Act is proven. An attorney’s fee award may only be directed against the local agency and not the individual members of the legislative body. If the local agency prevails, it may be awarded court costs and attorney’s fees if the court finds the lawsuit was clearly frivolous and lacking in merit.19 Criminal complaints A violation of the Brown Act by a member of the legislative body who acts with the improper intent described below is punishable as a misdemeanor.20 A criminal violation has two components. The first is that there must be an overt act — a member of a legislative body must attend a meeting at which action is taken in violation of the Brown Act.21 “Action taken” is not only an actual vote, but also a collective decision, commitment or promise by a majority of the legislative body to make a positive or negative decision.22 If the meeting involves mere deliberation without the taking of action, there can be no misdemeanor penalty. A violation occurs for a tentative as well as final decision.23 In fact, criminal liability is triggered by a member’s participation in a meeting in violation of the Brown Act — not whether that member has voted with the majority or minority, or has voted at all. The second component of a criminal violation is that action is taken with the intent of a member “to deprive the public of information to which the member knows or has reason to know the public is entitled” by the Brown Act.24 PRACTICE TIP: Attorney’s fees will likely be awarded if a violation of the Brown Act is proven. 75 59OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT As with other misdemeanors, the filing of a complaint is up to the district attorney. Although criminal prosecutions of the Brown Act are uncommon, district attorneys in some counties aggressively monitor public agencies’ adherence to the requirements of the law. Some attorneys and district attorneys take the position that a Brown Act violation may be pursued criminally under Government Code section 1222.25 There is no case law to support this view; if anything, the existence of an express criminal remedy within the Brown Act would suggest otherwise.26 Voluntary resolution Arguments over Brown Act issues often become emotional on all sides. Newspapers trumpet relatively minor violations, unhappy residents fume over an action, and legislative bodies clam up about information better discussed in public. Hard lines are drawn and rational discussion breaks down. The district attorney or even the grand jury occasionally becomes involved. Publicity surrounding alleged violations of the Brown Act can result in a loss of confidence by constituents in the legislative body. There are times when it may be preferable to consider re-noticing and rehearing, rather than litigating, an item of significant public interest, particularly when there is any doubt about whether the open meeting requirements were satisfied. At bottom, agencies that regularly train their officials and pay close attention to the requirements of the Brown Act will have little reason to worry about enforcement. ENDNOTES: 1 California Government Code section 54960.1. Invalidation is limited to actions that violate the following sections of the Brown Act: section 54953 (the basic open meeting provision); sections 54954.2 and 54954.5 (notice and agenda requirements for regular meetings and closed sessions); 54954.6 (tax hearings); 54956 (special meetings); and 54596.5 (emergency situations). Violations of sections not listed above cannot give rise to invalidation actions, but are subject to the other remedies listed in section 54960.1. 2 Castaic Lake Water Agency v. Newhall County Water District (2015) 238 Cal.App.4th 1196, 1198 3 California Government Code section 54960.1 (b) and (c)(1) 4 McKee v. Orange Unified School District (2003) 110 Cal. App.4th 1310, 1318-1319 5 Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547, 556, 561 6 Boyle v. City of Redondo Beach (1999) 70 Cal.App.4th 1109, 1116-17, 1118 7 Government Code Section 54960.2(a); Senate Bill No. 1003, Section 4 (2011-2012 Session) 8 Government Code Sections 54960.2(a)(1), (2) 9 Government Code Section 54960.2(b) 76 60 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CHAPTER 6: REMEDIES 10 Government Code Section 54960.2(a)(4) 11 Government Code Section 54960.2(c)(2) 12 Government Code Section 54960.2(c)(1) 13 Government Code Section 54960.2(c)(3) 14 Government Code Section 54960.2(d) 15 Government Code Section 54960.2(e) 16 California Alliance for Utility Safety and Education (CAUSE) v. City of San Diego (1997) 56 Cal.App.4th 1024; Common Cause v. Stirling (1983) 147 Cal.App.3d 518, 524; Accord Shapiro v. San Diego City Council (2002) 96 Cal. App. 4th 904, 916 & fn.6 17 Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 334-36 18 Los Angeles Times Communications, LLC v. Los Angeles County Board of Supervisors (2003) 112 Cal. App.4th 1313, 1327-29 and cases cited therein 19 California Government Code section 54960.5 20 California Government Code section 54959. A misdemeanor is punishable by a fine of up to $1,000 or up to six months in county jail, or both. California Penal Code section 19. Employees of the agency who participate in violations of the Brown Act cannot be punished criminally under section 54959. However, at least one district attorney instituted criminal action against employees based on the theory that they criminally conspired with the members of the legislative body to commit a crime under section 54949. 21 California Government Code section 54959 22 California Government Code section 54952.6 23 61 Ops.Cal.Atty.Gen.283 (1978) 24 California Government Code section 54959 25 California Government Code section 1222 provides that “[e]very wilful omission to perform any duty enjoined by law upon any public officer, or person holding any public trust or employment, where no special provision is made for the punishment of such delinquency, is punishable as a misdemeanor.” 26 The principle of statutory construction known as expressio unius est exclusio alterius supports the view that section 54959 is the exclusive basis for criminal liability under the Brown Act. Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov. 77 78 1400 K Street, Suite 400, Sacramento, CA 95814 Phone: (916) 658-8200 | Fax: (916) 658-8240 www.cacities.org | www.cacities.org/events | www.westerncity.com 79 Rosenberg’s Rules of Order REVISED 2011 Simple Rules of Parliamentary Procedure for the 21st Century By Judge Dave Rosenberg 80 ii MISSION and CORE BELIEFS To expand and protect local control for cities through education and advocacy to enhance the quality of life for all Californians. VISION To be recognized and respected as the leading advocate for the common interests of California’s cities. About the League of California Cities Established in 1898, the League of California Cities is a member organization that represents California’s incorporated cities. The League strives to protect the local authority and automony of city government and help California’s cities effectively serve their residents. In addition to advocating on cities’ behalf at the state capitol, the League provides its members with professional development programs and information resources, conducts education conferences and research, and publishes Western City magazine. © 2011 League of California Cities. All rights reserved. About the Author Dave Rosenberg is a Superior Court Judge in Yolo County. He has served as presiding judge of his court, and as presiding judge of the Superior Court Appellate Division. He also has served as chair of the Trial Court Presiding Judges Advisory Committee (the committee composed of all 58 California presiding judges) and as an advisory member of the California Judicial Council. Prior to his appointment to the bench, Rosenberg was member of the Yolo County Board of Supervisors, where he served two terms as chair. Rosenberg also served on the Davis City Council, including two terms as mayor. He has served on the senior staff of two governors, and worked for 19 years in private law practice. Rosenberg has served as a member and chair of numerous state, regional and local boards. Rosenberg chaired the California State Lottery Commission, the California Victim Compensation and Government Claims Board, the Yolo-Solano Air Quality Management District, the Yolo County Economic Development Commission, and the Yolo County Criminal Justice Cabinet. For many years, he has taught classes on parliamentary procedure and has served as parliamentarian for large and small bodies. 81 1 Table of Contents About the Author ............................................................................................................ii Introduction ....................................................................................................................2 Establishing a Quorum ...................................................................................................2 The Role of the Chair ......................................................................................................2 The Basic Format for an Agenda Item Discussion ........................................................2 Motions in General .........................................................................................................3 The Three Basic Motions ................................................................................................3 Multiple Motions Before the Body .................................................................................4 To Debate or Not to Debate ............................................................................................4 Majority and Super-Majority Votes ...............................................................................5 Counting Votes ................................................................................................................5 The Motion to Reconsider ..............................................................................................6 Courtesy and Decorum ..................................................................................................7 Special Notes About Public Input ..................................................................................7 82 2 Establishing a Quorum The starting point for a meeting is the establishment of a quorum. A quorum is defined as the minimum number of members of the body who must be present at a meeting for business to be legally transacted. The default rule is that a quorum is one more than half the body. For example, in a five-member body a quorum is three. When the body has three members present, it can legally transact business. If the body has less than a quorum of members present, it cannot legally transact business. And even if the body has a quorum to begin the meeting, the body can lose the quorum during the meeting when a member departs (or even when a member leaves the dais). When that occurs the body loses its ability to transact business until and unless a quorum is reestablished. The default rule, identified above, however, gives way to a specific rule of the body that establishes a quorum. For example, the rules of a particular five-member body may indicate that a quorum is four members for that particular body. The body must follow the rules it has established for its quorum. In the absence of such a specific rule, the quorum is one more than half the members of the body. The Role of the Chair While all members of the body should know and understand the rules of parliamentary procedure, it is the chair of the body who is charged with applying the rules of conduct of the meeting. The chair should be well versed in those rules. For all intents and purposes, the chair makes the final ruling on the rules every time the chair states an action. In fact, all decisions by the chair are final unless overruled by the body itself. Since the chair runs the conduct of the meeting, it is usual courtesy for the chair to play a less active role in the debate and discussion than other members of the body. This does not mean that the chair should not participate in the debate or discussion. To the contrary, as a member of the body, the chair has the full right to participate in the debate, discussion and decision-making of the body. What the chair should do, however, is strive to be the last to speak at the discussion and debate stage. The chair should not make or second a motion unless the chair is convinced that no other member of the body will do so at that point in time. The Basic Format for an Agenda Item Discussion Formal meetings normally have a written, often published agenda. Informal meetings may have only an oral or understood agenda. In either case, the meeting is governed by the agenda and the agenda constitutes the body’s agreed-upon roadmap for the meeting. Each agenda item can be handled by the chair in the following basic format: Introduction The rules of procedure at meetings should be simple enough for most people to understand. Unfortunately, that has not always been the case. Virtually all clubs, associations, boards, councils and bodies follow a set of rules — Robert’s Rules of Order — which are embodied in a small, but complex, book. Virtually no one I know has actually read this book cover to cover. Worse yet, the book was written for another time and for another purpose. If one is chairing or running a parliament, then Robert’s Rules of Order is a dandy and quite useful handbook for procedure in that complex setting. On the other hand, if one is running a meeting of say, a five-member body with a few members of the public in attendance, a simplified version of the rules of parliamentary procedure is in order. Hence, the birth of Rosenberg’s Rules of Order. What follows is my version of the rules of parliamentary procedure, based on my decades of experience chairing meetings in state and local government. These rules have been simplified for the smaller bodies we chair or in which we participate, slimmed down for the 21st Century, yet retaining the basic tenets of order to which we have grown accustomed. Interestingly enough, Rosenberg’s Rules has found a welcoming audience. Hundreds of cities, counties, special districts, committees, boards, commissions, neighborhood associations and private corporations and companies have adopted Rosenberg’s Rules in lieu of Robert’s Rules because they have found them practical, logical, simple, easy to learn and user friendly. This treatise on modern parliamentary procedure is built on a foundation supported by the following four pillars: 1. Rules should establish order. The first purpose of rules of parliamentary procedure is to establish a framework for the orderly conduct of meetings. 2. Rules should be clear. Simple rules lead to wider understanding and participation. Complex rules create two classes: those who understand and participate; and those who do not fully understand and do not fully participate. 3. Rules should be user friendly. That is, the rules must be simple enough that the public is invited into the body and feels that it has participated in the process. 4. Rules should enforce the will of the majority while protecting the rights of the minority. The ultimate purpose of rules of procedure is to encourage discussion and to facilitate decision making by the body. In a democracy, majority rules. The rules must enable the majority to express itself and fashion a result, while permitting the minority to also express itself, but not dominate, while fully participating in the process. 83 3 Ninth, the chair takes a vote. Simply asking for the “ayes” and then asking for the “nays” normally does this. If members of the body do not vote, then they “abstain.” Unless the rules of the body provide otherwise (or unless a super majority is required as delineated later in these rules), then a simple majority (as defined in law or the rules of the body as delineated later in these rules) determines whether the motion passes or is defeated. Tenth, the chair should announce the result of the vote and what action (if any) the body has taken. In announcing the result, the chair should indicate the names of the members of the body, if any, who voted in the minority on the motion. This announcement might take the following form: “The motion passes by a vote of 3-2, with Smith and Jones dissenting. We have passed the motion requiring a 10-day notice for all future meetings of this body.” Motions in General Motions are the vehicles for decision making by a body. It is usually best to have a motion before the body prior to commencing discussion of an agenda item. This helps the body focus. Motions are made in a simple two-step process. First, the chair should recognize the member of the body. Second, the member of the body makes a motion by preceding the member’s desired approach with the words “I move … ” A typical motion might be: “I move that we give a 10-day notice in the future for all our meetings.” The chair usually initiates the motion in one of three ways: 1. Inviting the members of the body to make a motion, for example, “A motion at this time would be in order.” 2. Suggesting a motion to the members of the body, “A motion would be in order that we give a 10-day notice in the future for all our meetings.” 3. Making the motion. As noted, the chair has every right as a member of the body to make a motion, but should normally do so only if the chair wishes to make a motion on an item but is convinced that no other member of the body is willing to step forward to do so at a particular time. The Three Basic Motions There are three motions that are the most common and recur often at meetings: The basic motion. The basic motion is the one that puts forward a decision for the body’s consideration. A basic motion might be: “I move that we create a five-member committee to plan and put on our annual fundraiser.” First, the chair should clearly announce the agenda item number and should clearly state what the agenda item subject is. The chair should then announce the format (which follows) that will be followed in considering the agenda item. Second, following that agenda format, the chair should invite the appropriate person or persons to report on the item, including any recommendation that they might have. The appropriate person or persons may be the chair, a member of the body, a staff person, or a committee chair charged with providing input on the agenda item. Third, the chair should ask members of the body if they have any technical questions of clarification. At this point, members of the body may ask clarifying questions to the person or persons who reported on the item, and that person or persons should be given time to respond. Fourth, the chair should invite public comments, or if appropriate at a formal meeting, should open the public meeting for public input. If numerous members of the public indicate a desire to speak to the subject, the chair may limit the time of public speakers. At the conclusion of the public comments, the chair should announce that public input has concluded (or the public hearing, as the case may be, is closed). Fifth, the chair should invite a motion. The chair should announce the name of the member of the body who makes the motion. Sixth, the chair should determine if any member of the body wishes to second the motion. The chair should announce the name of the member of the body who seconds the motion. It is normally good practice for a motion to require a second before proceeding to ensure that it is not just one member of the body who is interested in a particular approach. However, a second is not an absolute requirement, and the chair can proceed with consideration and vote on a motion even when there is no second. This is a matter left to the discretion of the chair. Seventh, if the motion is made and seconded, the chair should make sure everyone understands the motion. This is done in one of three ways: 1. The chair can ask the maker of the motion to repeat it; 2. The chair can repeat the motion; or 3. The chair can ask the secretary or the clerk of the body to repeat the motion. Eighth, the chair should now invite discussion of the motion by the body. If there is no desired discussion, or after the discussion has ended, the chair should announce that the body will vote on the motion. If there has been no discussion or very brief discussion, then the vote on the motion should proceed immediately and there is no need to repeat the motion. If there has been substantial discussion, then it is normally best to make sure everyone understands the motion by repeating it. 84 4 First, the chair would deal with the third (the last) motion on the floor, the substitute motion. After discussion and debate, a vote would be taken first on the third motion. If the substitute motion passed, it would be a substitute for the basic motion and would eliminate it. The first motion would be moot, as would the second motion (which sought to amend the first motion), and the action on the agenda item would be completed on the passage by the body of the third motion (the substitute motion). No vote would be taken on the first or second motions. Second, if the substitute motion failed, the chair would then deal with the second (now the last) motion on the floor, the motion to amend. The discussion and debate would focus strictly on the amendment (should the committee be five or 10 members). If the motion to amend passed, the chair would then move to consider the main motion (the first motion) as amended. If the motion to amend failed, the chair would then move to consider the main motion (the first motion) in its original format, not amended. Third, the chair would now deal with the first motion that was placed on the floor. The original motion would either be in its original format (five-member committee), or if amended, would be in its amended format (10-member committee). The question on the floor for discussion and decision would be whether a committee should plan and put on the annual fundraiser. To Debate or Not to Debate The basic rule of motions is that they are subject to discussion and debate. Accordingly, basic motions, motions to amend, and substitute motions are all eligible, each in their turn, for full discussion before and by the body. The debate can continue as long as members of the body wish to discuss an item, subject to the decision of the chair that it is time to move on and take action. There are exceptions to the general rule of free and open debate on motions. The exceptions all apply when there is a desire of the body to move on. The following motions are not debatable (that is, when the following motions are made and seconded, the chair must immediately call for a vote of the body without debate on the motion): Motion to adjourn. This motion, if passed, requires the body to immediately adjourn to its next regularly scheduled meeting. It requires a simple majority vote. Motion to recess. This motion, if passed, requires the body to immediately take a recess. Normally, the chair determines the length of the recess which may be a few minutes or an hour. It requires a simple majority vote. Motion to fix the time to adjourn. This motion, if passed, requires the body to adjourn the meeting at the specific time set in the motion. For example, the motion might be: “I move we adjourn this meeting at midnight.” It requires a simple majority vote. The motion to amend. If a member wants to change a basic motion that is before the body, they would move to amend it. A motion to amend might be: “I move that we amend the motion to have a 10-member committee.” A motion to amend takes the basic motion that is before the body and seeks to change it in some way. The substitute motion. If a member wants to completely do away with the basic motion that is before the body, and put a new motion before the body, they would move a substitute motion. A substitute motion might be: “I move a substitute motion that we cancel the annual fundraiser this year.” “Motions to amend” and “substitute motions” are often confused, but they are quite different, and their effect (if passed) is quite different. A motion to amend seeks to retain the basic motion on the floor, but modify it in some way. A substitute motion seeks to throw out the basic motion on the floor, and substitute a new and different motion for it. The decision as to whether a motion is really a “motion to amend” or a “substitute motion” is left to the chair. So if a member makes what that member calls a “motion to amend,” but the chair determines that it is really a “substitute motion,” then the chair’s designation governs. A “friendly amendment” is a practical parliamentary tool that is simple, informal, saves time and avoids bogging a meeting down with numerous formal motions. It works in the following way: In the discussion on a pending motion, it may appear that a change to the motion is desirable or may win support for the motion from some members. When that happens, a member who has the floor may simply say, “I want to suggest a friendly amendment to the motion.” The member suggests the friendly amendment, and if the maker and the person who seconded the motion pending on the floor accepts the friendly amendment, that now becomes the pending motion on the floor. If either the maker or the person who seconded rejects the proposed friendly amendment, then the proposer can formally move to amend. Multiple Motions Before the Body There can be up to three motions on the floor at the same time. The chair can reject a fourth motion until the chair has dealt with the three that are on the floor and has resolved them. This rule has practical value. More than three motions on the floor at any given time is confusing and unwieldy for almost everyone, including the chair. When there are two or three motions on the floor (after motions and seconds) at the same time, the vote should proceed first on the last motion that is made. For example, assume the first motion is a basic “motion to have a five-member committee to plan and put on our annual fundraiser.” During the discussion of this motion, a member might make a second motion to “amend the main motion to have a 10-member committee, not a five-member committee to plan and put on our annual fundraiser.” And perhaps, during that discussion, a member makes yet a third motion as a “substitute motion that we not have an annual fundraiser this year.” The proper procedure would be as follows: 85 5 Motion to close nominations. When choosing officers of the body (such as the chair), nominations are in order either from a nominating committee or from the floor of the body. A motion to close nominations effectively cuts off the right of the minority to nominate officers and it requires a two-thirds vote to pass. Motion to object to the consideration of a question. Normally, such a motion is unnecessary since the objectionable item can be tabled or defeated straight up. However, when members of a body do not even want an item on the agenda to be considered, then such a motion is in order. It is not debatable, and it requires a two-thirds vote to pass. Motion to suspend the rules. This motion is debatable, but requires a two-thirds vote to pass. If the body has its own rules of order, conduct or procedure, this motion allows the body to suspend the rules for a particular purpose. For example, the body (a private club) might have a rule prohibiting the attendance at meetings by non-club members. A motion to suspend the rules would be in order to allow a non-club member to attend a meeting of the club on a particular date or on a particular agenda item. Counting Votes The matter of counting votes starts simple, but can become complicated. Usually, it’s pretty easy to determine whether a particular motion passed or whether it was defeated. If a simple majority vote is needed to pass a motion, then one vote more than 50 percent of the body is required. For example, in a five-member body, if the vote is three in favor and two opposed, the motion passes. If it is two in favor and three opposed, the motion is defeated. If a two-thirds majority vote is needed to pass a motion, then how many affirmative votes are required? The simple rule of thumb is to count the “no” votes and double that count to determine how many “yes” votes are needed to pass a particular motion. For example, in a seven-member body, if two members vote “no” then the “yes” vote of at least four members is required to achieve a two-thirds majority vote to pass the motion. What about tie votes? In the event of a tie, the motion always fails since an affirmative vote is required to pass any motion. For example, in a five-member body, if the vote is two in favor and two opposed, with one member absent, the motion is defeated. Vote counting starts to become complicated when members vote “abstain” or in the case of a written ballot, cast a blank (or unreadable) ballot. Do these votes count, and if so, how does one count them? The starting point is always to check the statutes. In California, for example, for an action of a board of supervisors to be valid and binding, the action must be approved by a majority of the board. (California Government Code Section 25005.) Typically, this means three of the five members of the board must vote affirmatively in favor of the action. A vote of 2-1 would not be sufficient. A vote of 3-0 with two abstentions would be sufficient. In general law cities in Motion to table. This motion, if passed, requires discussion of the agenda item to be halted and the agenda item to be placed on “hold.” The motion can contain a specific time in which the item can come back to the body. “I move we table this item until our regular meeting in October.” Or the motion can contain no specific time for the return of the item, in which case a motion to take the item off the table and bring it back to the body will have to be taken at a future meeting. A motion to table an item (or to bring it back to the body) requires a simple majority vote. Motion to limit debate. The most common form of this motion is to say, “I move the previous question” or “I move the question” or “I call the question” or sometimes someone simply shouts out “question.” As a practical matter, when a member calls out one of these phrases, the chair can expedite matters by treating it as a “request” rather than as a formal motion. The chair can simply inquire of the body, “any further discussion?” If no one wishes to have further discussion, then the chair can go right to the pending motion that is on the floor. However, if even one person wishes to discuss the pending motion further, then at that point, the chair should treat the call for the “question” as a formal motion, and proceed to it. When a member of the body makes such a motion (“I move the previous question”), the member is really saying: “I’ve had enough debate. Let’s get on with the vote.” When such a motion is made, the chair should ask for a second, stop debate, and vote on the motion to limit debate. The motion to limit debate requires a two-thirds vote of the body. Note: A motion to limit debate could include a time limit. For example: “I move we limit debate on this agenda item to 15 minutes.” Even in this format, the motion to limit debate requires a two- thirds vote of the body. A similar motion is a motion to object to consideration of an item. This motion is not debatable, and if passed, precludes the body from even considering an item on the agenda. It also requires a two-thirds vote. Majority and Super Majority Votes In a democracy, a simple majority vote determines a question. A tie vote means the motion fails. So in a seven-member body, a vote of 4-3 passes the motion. A vote of 3-3 with one abstention means the motion fails. If one member is absent and the vote is 3-3, the motion still fails. All motions require a simple majority, but there are a few exceptions. The exceptions come up when the body is taking an action which effectively cuts off the ability of a minority of the body to take an action or discuss an item. These extraordinary motions require a two-thirds majority (a super majority) to pass: Motion to limit debate. Whether a member says, “I move the previous question,” or “I move the question,” or “I call the question,” or “I move to limit debate,” it all amounts to an attempt to cut off the ability of the minority to discuss an item, and it requires a two-thirds vote to pass. 86 6 Now, exactly how does a member cast an “abstention” vote? Any time a member votes “abstain” or says, “I abstain,” that is an abstention. However, if a member votes “present” that is also treated as an abstention (the member is essentially saying, “Count me for purposes of a quorum, but my vote on the issue is abstain.”) In fact, any manifestation of intention not to vote either “yes” or “no” on the pending motion may be treated by the chair as an abstention. If written ballots are cast, a blank or unreadable ballot is counted as an abstention as well. Can a member vote “absent” or “count me as absent?” Interesting question. The ruling on this is up to the chair. The better approach is for the chair to count this as if the member had left his/her chair and is actually “absent.” That, of course, affects the quorum. However, the chair may also treat this as a vote to abstain, particularly if the person does not actually leave the dais. The Motion to Reconsider There is a special and unique motion that requires a bit of explanation all by itself; the motion to reconsider. A tenet of parliamentary procedure is finality. After vigorous discussion, debate and a vote, there must be some closure to the issue. And so, after a vote is taken, the matter is deemed closed, subject only to reopening if a proper motion to consider is made and passed. A motion to reconsider requires a majority vote to pass like other garden-variety motions, but there are two special rules that apply only to the motion to reconsider. First, is the matter of timing. A motion to reconsider must be made at the meeting where the item was first voted upon. A motion to reconsider made at a later time is untimely. (The body, however, can always vote to suspend the rules and, by a two-thirds majority, allow a motion to reconsider to be made at another time.) Second, a motion to reconsider may be made only by certain members of the body. Accordingly, a motion to reconsider may be made only by a member who voted in the majority on the original motion. If such a member has a change of heart, he or she may make the motion to reconsider (any other member of the body — including a member who voted in the minority on the original motion — may second the motion). If a member who voted in the minority seeks to make the motion to reconsider, it must be ruled out of order. The purpose of this rule is finality. If a member of minority could make a motion to reconsider, then the item could be brought back to the body again and again, which would defeat the purpose of finality. If the motion to reconsider passes, then the original matter is back before the body, and a new original motion is in order. The matter may be discussed and debated as if it were on the floor for the first time. California, as another example, resolutions or orders for the payment of money and all ordinances require a recorded vote of the total members of the city council. (California Government Code Section 36936.) Cities with charters may prescribe their own vote requirements. Local elected officials are always well-advised to consult with their local agency counsel on how state law may affect the vote count. After consulting state statutes, step number two is to check the rules of the body. If the rules of the body say that you count votes of “those present” then you treat abstentions one way. However, if the rules of the body say that you count the votes of those “present and voting,” then you treat abstentions a different way. And if the rules of the body are silent on the subject, then the general rule of thumb (and default rule) is that you count all votes that are “present and voting.” Accordingly, under the “present and voting” system, you would NOT count abstention votes on the motion. Members who abstain are counted for purposes of determining quorum (they are “present”), but you treat the abstention votes on the motion as if they did not exist (they are not “voting”). On the other hand, if the rules of the body specifically say that you count votes of those “present” then you DO count abstention votes both in establishing the quorum and on the motion. In this event, the abstention votes act just like “no” votes. How does this work in practice? Here are a few examples. Assume that a five-member city council is voting on a motion that requires a simple majority vote to pass, and assume further that the body has no specific rule on counting votes. Accordingly, the default rule kicks in and we count all votes of members that are “present and voting.” If the vote on the motion is 3-2, the motion passes. If the motion is 2-2 with one abstention, the motion fails. Assume a five-member city council voting on a motion that requires a two-thirds majority vote to pass, and further assume that the body has no specific rule on counting votes. Again, the default rule applies. If the vote is 3-2, the motion fails for lack of a two-thirds majority. If the vote is 4-1, the motion passes with a clear two-thirds majority. A vote of three “yes,” one “no” and one “abstain” also results in passage of the motion. Once again, the abstention is counted only for the purpose of determining quorum, but on the actual vote on the motion, it is as if the abstention vote never existed — so an effective 3-1 vote is clearly a two-thirds majority vote. Now, change the scenario slightly. Assume the same five-member city council voting on a motion that requires a two-thirds majority vote to pass, but now assume that the body DOES have a specific rule requiring a two-thirds vote of members “present.” Under this specific rule, we must count the members present not only for quorum but also for the motion. In this scenario, any abstention has the same force and effect as if it were a “no” vote. Accordingly, if the votes were three “yes,” one “no” and one “abstain,” then the motion fails. The abstention in this case is treated like a “no” vote and effective vote of 3-2 is not enough to pass two-thirds majority muster. 87 7 Appeal. If the chair makes a ruling that a member of the body disagrees with, that member may appeal the ruling of the chair. If the motion is seconded, and after debate, if it passes by a simple majority vote, then the ruling of the chair is deemed reversed. Call for orders of the day. This is simply another way of saying, “return to the agenda.” If a member believes that the body has drifted from the agreed-upon agenda, such a call may be made. It does not require a vote, and when the chair discovers that the agenda has not been followed, the chair simply reminds the body to return to the agenda item properly before them. If the chair fails to do so, the chair’s determination may be appealed. Withdraw a motion. During debate and discussion of a motion, the maker of the motion on the floor, at any time, may interrupt a speaker to withdraw his or her motion from the floor. The motion is immediately deemed withdrawn, although the chair may ask the person who seconded the motion if he or she wishes to make the motion, and any other member may make the motion if properly recognized. Special Notes About Public Input The rules outlined above will help make meetings very public- friendly. But in addition, and particularly for the chair, it is wise to remember three special rules that apply to each agenda item: Rule One: Tell the public what the body will be doing. Rule Two: Keep the public informed while the body is doing it. Rule Three: When the body has acted, tell the public what the body did. Courtesy and Decorum The rules of order are meant to create an atmosphere where the members of the body and the members of the public can attend to business efficiently, fairly and with full participation. At the same time, it is up to the chair and the members of the body to maintain common courtesy and decorum. Unless the setting is very informal, it is always best for only one person at a time to have the floor, and it is always best for every speaker to be first recognized by the chair before proceeding to speak. The chair should always ensure that debate and discussion of an agenda item focuses on the item and the policy in question, not the personalities of the members of the body. Debate on policy is healthy, debate on personalities is not. The chair has the right to cut off discussion that is too personal, is too loud, or is too crude. Debate and discussion should be focused, but free and open. In the interest of time, the chair may, however, limit the time allotted to speakers, including members of the body. Can a member of the body interrupt the speaker? The general rule is “no.” There are, however, exceptions. A speaker may be interrupted for the following reasons: Privilege. The proper interruption would be, “point of privilege.” The chair would then ask the interrupter to “state your point.” Appropriate points of privilege relate to anything that would interfere with the normal comfort of the meeting. For example, the room may be too hot or too cold, or a blowing fan might interfere with a person’s ability to hear. Order. The proper interruption would be, “point of order.” Again, the chair would ask the interrupter to “state your point.” Appropriate points of order relate to anything that would not be considered appropriate conduct of the meeting. For example, if the chair moved on to a vote on a motion that permits debate without allowing that discussion or debate. 88 1400 K Street, Sacramento, CA 95814 (916) 658-8200 | Fax (916) 658-8240 www.cacities.org To order additional copies of this publication, call (916) 658-8200. $10 © 2011 League of California Cities. All rights reserved. Printed on recycled paper. 89 CITY OF CUPERTINO ETHICS POLICY The citizens, businesses, and organizations of the City are entitled fair, ethical, and  accountable local government that has earned the public’s full confidence for integrity.    To this end, the City Council has adopted this Ethics Policy for City Council, appointed  officials, and staff of the City of Cupertino to promote public confidence in the  integrity of local government and its effective and fair operation.      A. Comply with Law  City elected/appointed officials and staff comply with the laws of the nation, the  State of California and the City in the performance of their public duties. These  laws include, but are not limited to: the United States and California  constitutions, the Cupertino Municipal Code, City ordinances and policies, and  laws pertaining to conflicts of interest, election campaigns, financial disclosures,  employer responsibilities and open processes of governments.  The City ensures  its elected/appointed officials and staff receive regular training on ethics as  required by state law.    B. Conduct of Members  The professional and personal conduct of City elected/appointed officials and  staff should be respectful of others, recognizing that individuals can respectfully  disagree with each other. City elected/appointed officials and staff should refrain  from abusive conduct, personal charges, or verbal attacks upon the character or  motives of others, including members of the Council, boards and commissions,  the staff, or the public.   C. Respect for Process  City elected/appointed officials and staff perform their duties in accordance with  various processes and rules of order established from time to time by the City  Council governing the deliberation of public policy issues, conduct of quasi‐ judicial proceedings, meaningful involvement of the public, and implementation  of policy decisions of the City Council by City staff.  D. Decisions Based on Merit  City elected/appointed officials and staff make their decisions in the best interest  of the City, which might include relevant policy considerations, rather than on  unrelated considerations.  E. Conflict of Interest  90 The City’s ethics policy regarding conflicts of interest is to comply with all  applicable ethics rules in the State of California.  This Policy is not intended to go  beyond or expand upon those rules. In general, in order to assure their  independence and impartiality on behalf of the common good, City  elected/appointed officials and staff do not use their official positions to  participate in or influence decisions in which they have a material financial  interest, an organizational responsibility, or a close familial or embroiled personal  relationship.  F.Gifts and Favors City elected/appointed officials and staff limit and report gifts as required by state law, and follow advice provided by the City Attorney. G.Confidential Information City elected/appointed officials and staff respect the confidentiality of information concerning the property, personnel, and affairs of the City. They neither disclose confidential information without proper legal authorization, nor use such information to advance their personal, financial or other private interests. H.Use of Public Resources City elected/appointed officials and staff do not use public resources, such as City staff time, equipment, supplies or facilities, for private gain or personal/political purposes (except to the extent those resources are available to the public generally). I.Representing the City & Advocacy When formally authorized to represent and/or advocate for the official policies or positions of the City, elected/appointed officials and staff must do so accurately and in a limited fashion that does not go beyond the scope of their authority. By contrast, when City elected/appointed officials and staff are presenting their individual opinions and positions on issues potentially relevant to the City, they must explicitly state they do not represent their body or the City and must not allow any inference that they do. J.Positive Work Place Environment City elected/appointed officials and staff support the maintenance of a positive and constructive work place  environment  for  City  employees  and  for  citizens and  businesses  dealing with the City. City elected/appointed officials recognize their  special role in dealings with City staff, taking care not to create any perception of  inappropriate direction to staff. 91 Citywide Policy Manual CITY OF Technology Use Policy TBD fl Attachments: Policy N/A CUPERTINO Effective Date: Responsible Department: November 1 , 2018 Innovation Technology Related Policies & Notes: This policy supersedes the Electronic Communications Policy, Internet Access and Use Policy, iPad Policy, Cell Phone Policy , Acceptable Use Policy, Password Policy , and PDA Handheld Policy. Purpose The purpose of this policy is to provide guidance and set forth the acceptable use of City Technology Resources by Computer Users at the City of Cupertino ("City") to ensure technology resources are used in an appropriate, responsible, and lawful manner that protects the City and serves its interests. Policy Scope and Applicability This policy applies to all City employees, elected officials, commissioners, contractors, consultants, temporary workers, interns, volunteers, and vendors ("Users") who are provided access to City Technology Resources. The policy covers the following topics pertaining to use of City Technology Resources: • Definitions • General • E-Mail • Internet • Network and Cybersecurity • Computer Equipment and Software • Mobile Devices • Data and Information • Telephones and Voicemail • Technology Purchases • Separation or Discontinuance of Services • Netiquette • Violations Version Oct. 2018 [insert path to policy here] 92 Definitions The following definitions apply to this policy. a. City Technology Resources City Technology Resources refers to the City's computing and communications environment and resources used to create, process, store, and transmit data and information, including, but not limited to, the City's network (wired and wireless, including guest Wi-Fi), electronic mail system (e-mail), Internet service, desktop, and laptop computers, systems and applications software, data, storage, mobile electronic devices, including smartphones and tablets, cell phones, telephone system and telephone handsets, voice-mail system, pagers, printers, copiers, facsimile machines, scanners, audio/ video equipment, social media, and cloud-based and third-party software and infrastructure services. This may also be referred to as the City's computing environment or Information Technology systems. b. California Public Records Act The California Public Records Act (CPRA) is a law under California Government Code §6250, et seq., requiring state and local agencies, including the City, to provide access to public (government) records by way of inspection and/or copying to the public upon request unless exempted by law. A public record is a writing prepared, used, owned or retained by a state or local agency pertaining to the conduct of the public's (City's) business, regardless of physical form or characteristic. Soi:pe examples of records that may be exempted from the law include, but are not limited to, the following: • Files pertaining to data that would constitute an unwarranted invasion of personal privacy if disclosed; • Pre-decisional, deliberative communications which are not retained in the ordinary course of business; • Documents pertaining to pending litigation to which the organization is a party; • Examination data; • Records exempted or prohibited from disclosure pursuant to federal or state law; • Employee relations information; • Attorney-client privileged information; and • Homeland Security data. The California Supremt; Court held that when a public official or employee uses a personal account and/or device to communicate about the conduct of public business, such as e-mails or text messages, the applicable writings may be subject to disclosure under the California Public Records Act. Refer to the City Attorney's Office for further guidance on what records require disclosure and to the Clerk of the Council's Office on the process for responding to public records requests. Version Oct.2018 [insert path to policy here] 93 c. Confidential Information Confidential Data and/or Information is privileged information for a designated purpose that is only intended for recipients with a business need-to-know. Some examples include certain personal infor mation such as medical ( e .g.: HIP AA), personally identifiable information (PII), recruitment, disciplinary, and performance information; attorney-client privileged communications; and protected information. Unless exempted by law, some types of confidential information may be subject to legal inspection and/or disclosure requirements. d. Contractor/ Vendor An independent person or business contracted to perform services for the City. e. Copyright The exclusive legal rights to copy, reproduce, or sell a specific piece of intellectual property. f. Encryption Encryption -The coding or scrambling, using sophisticated techniques, of information to prevent third parties from "reading" it. g. User City employees, elected officials, commissioners, contractors, consultants, temporary workers, interns, volunteers, and vendors who are provided access to the City Technology Resources. h. Authorized Approver Employees who have been authorized by a Department Head or his/her designee, to make technology requests for their department. i. Exempt Employees Employees who are not subject to the minimum wage and overtime provisions of the Fair Labor Standards Act. j. Mobile Device An electronically-powered portable device that can view, process, store, and transmit data wirelessly using cellular, radio, satellite, or other communications technology. Examples include smart phones, tablets, laptops, Personal Digital Assistants (PDAs), and cell phones. Also referred to as Mobile Electronic Device. k. Personal Mobile Device A Mobile Device that is personally owned by a User that is authorized to use City Technology Resources. This is can also be referred to as Bring Your Own Device (BYOD). 1. Mobile Device Management (MOM) A system used to administer the management, support, optimization, functionality, and security of mobile wireless devices necessary for the deployment, security, monitoring, and integration within the City computing environment. m. Non-exempt Employees Employees who are subject to the minimum wage and overtime provisions of the Fair Labor Standards Act. n. Intellectual Property Version Oct. 201 8 [in sert path to policy here] 94 Refers to a number of types of creations such as books, movies, songs and software. Intellectual property is protected by a body of law collectively referred to as copyright law. o. Malware Malicious software intending to cause harm and disruption to City Technology Resources. Examples include viruses, worms, Trojan horses, spyware, dishonest ad ware, and ransomware. p. Network The collective name for equipment and devices that interchange information using a common medium. q. Personally Identifiable Information (PII) Any information about an individual maintained by an agency, including (1) any information that can be used to distinguish or trace an individual's identity, such as name, social security number, date and place of birth, mother's maiden name, or biometric records; and (2) any other information that is linked or linkable to an individual, such as medical, educational, financial, and employment information. Examples of PII include, but are not limited to: • Name: full name, maiden name, mother's maiden name or alias • Personal identification numbers: social security number (SSN), passport number, driver's license number, taxpayer identification number, patient identification number, financial account number or credit card number • Personal address information: street address or email address • Personal telephone numbers • Personal characteristics: photographic images (particularly of face or other identifying characteristics), fingerprints, or handwriting • Biometric data: retina scans, voice signatures, or facial geometry • Information identifying personally owned property: VIN number or title number • Asset information: Internet Protocol (IP) or Media Access Control (MAC) addresses that consistently link to a particular person General Background The City utilizes technology resources in every department to support the delivery of public services to City residents, businesses, and the community. Technology is a core element to the effective operation of the City. As such, it is important to have standards in place for its proper use to maximize reliability, integrity, and performance. As with other finite public resources, City staff should be responsible stewards of these resources. These resources should be used judiciously, responsibly, and appropriately. The City is the custodian of vast amounts of data and records processed and stored in its information systems. In addition to public information, there are considerable amounts of Version Oct. 2018 [in sert path to policy here] 95 sensitive and confidential data. The City is responsible to protect and safeguard its data and systems from unauthorized access, corruption, and loss. Technology solutions and deployment models continue to evolve and become increasingly complex. The City's technology environment includes a hybrid of on premise and cloud-based solutions . Many City systems utilize the Internet in some way, and many are integrated and inter-dependent upon one another. Computer operating systems, applications software, and hardware firmware are continually being updated to provide improvements and bug fixes . Increased Internet connectivity, inherent vulnerabilities in systems, and new malware and cy ber-attacks expose City information sy stems and data to increasing threats. This Technology Use Policy puts in place rules and expectations for responsible use of City Technology Resources to optimize value, reliability, integrity, and performance of City information systems, comply with laws, reduce risk of loss and exposure, and protect the City, its image, and interests . Users are required to comply with the provisions of this policy. 1.1 No Expectation of Privacy City Technology Resources are the property of or placed into service for use by the City. Users have no reasonable expectation of privacy in the use of City Technology Resources. At any time and without prior notice, the City may monitor and examine e-mail, website access, network and Internet activity, computer files, and other information transmitted through or stored on City Technology Resources. Logs are recorded for accessing various City Technology Resources such as, but not limited to, network and systems, websites, email, and data / electronic transactions. Records, regardless of form, pertaining to the conduct of City business are subject to the California Public Records Act (CPRA) and may be publically disclosed . Records may also be discoverable and disclosed as allowed under law in the event of litigation. City Technology Resources, such as assigned computers or mobile devices, may be subject to seizure or subpoena in criminal or civil investigations or cases. 1.2 Acceptable Use City Technology Resources should be used for conducting City business. Examples of allowable use of City Technology Resources include the following: • To facilitate the performance of job / service functions . • To facilitate the communication of business-related information. • To coordinate meetings of individuals, locations, and City resources. • To communicate with departments and outside individuals and organizations in order to perform a job / service function. • To store and access City documents and data related to City projects and functions. • For research and education required to perform job / service functions. Version O ct. 201 8 [in se rt path to policy here] 96 Incidental personal use of City Teclmology Resources is acceptable as long as it does not interfere with the normal performance of a User's work duties or over-burden City resources. Personal use should be de minimis and without cost or increased risk to the city . 1.3 Prohibited Use Prohibited use of City Technology Resources include, but are not limited to, the following: • Illegal activities. • Making threats, harassment, slander, defamation, promotion of violence or hate. • Obscene or sexually explicit images or communication. • Use with malicious intent. • Intentionally causing disruption, damage, or loss to City Technology Resources . • Violation of copyright laws. • Using unlicensed software. • Installing non-work related software without approval of IT. • Installation of non-City owned hardware or software. • Utilizing City-owned software for personal use. • Copying City-owned software and/or data to local devices, e.g. laptop, desktop, and/or mobile device. • Unauthorized access to networks, systems, services, files, data, e-mail or voice-mail . • Political endorsements, solicitations, or religious promotion. • Gambling and game playing. • Personal gain~ private use, working for another business, or commercial activities. • Storage of personal music, videos, photos or files. 1.4 Downloading or Opening Internet Files or E-mail Attachments Downloading or opening files from the Internet ore-Mail attachments expose the City to potential harm from malware. Although City Windows-based computers have anti-virus software installed, this software does not protect from all malware. 1. Users should not download or open files on the Internet unless there is a business purpose. 2. Users should exercise extreme caution when downloading or opening files from the Internet or in e-mail attachments. 3. Users should NOT download or open executable files or attachments. Common executable files have the following extensions (the last 3 letters after the last dot). This is not an exhaustive list. • Programs: .exe, .com, .msi, .msp, .cpl, .hta, .jar, .pi£, .scr, .application Version Oct. 2018 [insert path to policy here] 97 • Scripts: .bat, .cmd,.vb, .vbe, .vbs, .js, .jse, .psl, .ps2, .pslxml, .ps2xml, .ws, .wsf • Shortcuts: .scf, .lnk, .inf; Registry: .reg • Microsoft Office files that contain macros: .docm, .dotm, .xlsm, .xltm, .pptm 4. Users should not download or extract compressed or archived files from the Internet or in e-mail attachments without oversight from IT. Compressed files may have malicious executables within them. Common compressed file extensions are .zip, .7z, .rar, .rOO, .rOl, etc. 5. Users ~hould contact IT if uncertain about downloading or opening a file or e-mail attachment. 1.5 Representation Use of a City e-mail address or IP address represents the City when communicating with an external party or using an external service, such as a newsgroup, bulletin board, or listserv. Users authorized to interact with external parties or services should conduct themselves professionally and appropriately within the context of their role and/ or authority at the City. 1.6 Good Judgement Users should use common sense and reasonable judgement when using City Technology Resources. 1.7 Revisions and Related Documents 2 E-Mail 2.1 Authorization 1. New requests must come from an Authorized Approver from the sponsoring department contact to obtain a City e-mail account. 2. Remote access to the City's e-mail system from the Internet using a web browser (e.g.: Outlook Web Access) and/ or a mobile device (e.g.: smartphone, ActiveSync) requires authorization from an Authorized Approver from the sponsoring department. 3. Non-exempt hourly employees are prohibited from checking or accessing City e-mail during off-duty hours unless pre-approved by the employee's supervisor. Non-exempt employees will be compensated for any approved overtime. 2.2 General E-mail Provisions 1. Users are to use City e-mail accounts when sending messages pertaining to City business. 2. Use of personal e-mail accounts for City business should only be used on an exception basis (e.g.: offsite with no access to City e-mail). In such a case, the User's City e-mail address or an appropriate City e-mail address should be copied (cc'd). Version Oct. 2018 [insert path to policy here] 98 3. E-mail messages sent from City e-mail addresses have the same effect as sending on City letterhead. 4. E-mail messages sent from City e-mail addresses or pertaining to the conduct of City business should be professional and business-appropriate. 2.3 Disclosure 1. E-mail messages pertaining to the conduct of City business are subject to the California Public Records Act (CPRA) and may be publically disclosed unless exempt by law. This applies to e-mails using City Technology Resources as well as personal e-mail accounts and/or from personal devices . 2. Users are required to provide to the City copies of any e-mail messages in their personal e-mail account(s) and/ or devices that pertain to the conduct of City business that are responsive to a CPRA request except as exempt by law. 3. E-mail messages may also be discoverable and disclosed as allowed under law in the event of litigation or a criminal investigation. 4. The City may archive e-mail messages of City e-mail accounts. Archived e-mail messages will be retained per the City's retention policy even if a user deletes messages from their email software client (e.g.: Microsoft Outlook). Archived e-mail messages are subject to the CPRA except as exempt by law. 2.4 Special E-mail Access Authorization 1. It may be necessary for a User to access another User's e-mail account under special circumstances . In such a case, the Department Head must authorize access by submitting a written request to IT. 2.5 Mailbox Storage Size 1. Users are responsible for managing and controlling the contents and size of their City e- mail mailbox. 2. User e-mail mailbox storage will be limited to a maximum size threshold identified on the City intranet. 3. Warning messages will be sent if the e-mail account maximum storage size is being approached. 4. If the maximum storage size of an e-mail mailbox is reached, the e-mail User will be notified and e-mail service will be suspended. The service suspension will continue until the e-mail account storage size has been reduced below the maximum size threshold. 5. Users who have a justifiable business requirement for mailbox storage size in excess of the City maximum may submit a Request for Increase to their Department Head and the Innovation Technology Director. Versi on Oct. 2018 [insert path to policy here] 99 2.6 E-mail Retention 1. Purpose of E-mail System. The City's e-mail system is a communications system and is not intended to be used as a records storage system. E-mail messages are generally tranBitory communications not retained in the normal course of business. 2. Retaining E-mail Business Records. To the extent that e-mail messages constitute official business records to be retained pursuant to the City's records retention policy, such e-mail messages shall be retained using one of the following methods. a. Move messages out of Inbox or Sent Items folders to another e-mail folder. b. Save the message or output it to a PDF electronic file and store in an official electronic records storage repository. c. Print the message and store it in an official records storage filing system. Users are responsible to follow the City's records destruction procedure for retained email messages that are official business records when the records retention requirement has been met. 3. Retaining E-mail Pertaining to Litigation. E-mail messages pertaining to an anticipated or actual legal action must be retained until the litigation is concluded regardless of the records retention requirements. City Attorney, Administrative Services Director and Innovation Technology Director should be notified of such E-Mail messages 4. Deleting E-Mail Messages. E-mail messages that do not serve a business purpose shall be routinely discarded. For that reason, each user has the same responsibility for their e-mail messages as they do for any document they obtain in the course of their official duties, and must decide which communications should be retained for business or legal reasons and which should be discarded. If a user has any questions regarding whether an e-mail should be retained as a business record, he or she should seek guidance from their supervisor and/or Department Head who may consult with the City Attorney's Office as necessary. 5. Automatic Deletion of Messages in Inbox, Sent Items, and Deleted Items Folders. E-mail messages in users' Inbox, Sent Items, and Deleted Items folders will be automatically deleted based on defined rules as early as 90 days from receipt or generation. If a message constitutes an official business record that requires being retained pursuant to the City's records retention policy, the user should preserve the message as described above within 90 days. 6. Local E-Mail Archives Not Supported. Version Oct.2018 [insert path to policy here] 100 The use or creation of local e-mail personal archive files (e.g.: Outlook.pst files) are not supported. Such archive files are not backed up. Users shall not store official business records in such files. 7. E-mail System Backups. The City's e-mail system is backed up to separate media regularly and stored offsite for disaster recovery purposes. Backups are not retained for the purpose of archiving messages for future retrieval. 3 Internet Access to the Internet exposes the City to external threats to its information systems and data. As such, the City takes precautions to protect itself from these threats using cyber-security systems and controlling and managing Internet access. 3.1 Internet Services Provided The following Internet services are provided to authorize Users. • E-mail. Send/ receive E-mail messages to/ from external recipients/ senders. • Web Browsing. World-Wide-Web (WWW) services using the hypertext transfer protocol (HTTP or HTTPS -Secured) through web browser software (e.g.: Internet Explorer or Google Chrome). The following Internet services are only allowed on an as-needed basis with business justification and IT approval. • File Transfer Protocol (FTP, SFTP or FTPS -Secured). Send/ receive files over the Internet to/ from an FTP server. Business use examples include mandatory data reporting to the State or authorized data interchange with a business partner (e.g .: bank or service provider). • Peer to Peer File Sharing (P2P). Peer to Peer file sharing allows one to download or upload files with others (nodes) on the Internet typically using torrents and P2P software. This service is not typically used for business purposes and is strictly prohibited without a compelling business case. 3.2 Prohibited Websites Intentional access to websites that promote or predominantly contain the following content are prohibited: • Obscene or Sexually Explicit Content • Illegal Activities • Violence or Hate • Online Gambling and Gaming The City maintains the right to enable website content monitoring and filtering software that will block prohibited website access and monitor user browsing history. Regardless if website filtering is in place, Users should take care to not intentionally visit prohibited websites. Version Oct. 2018 [in sert path to policy here] 101 4 Network and Cybersecurity 4.1 Network Access The City's computing environment is comprised of a common network that includes a collection of cabling, switches, routers, gateways, access points, servers, operating systems, databases, applications, and other teclmology resources. Access to the City computing environment is by way of a network user account (AKA network domain account or Active Directory (AD) account). Users must receive authorization from their supervisor, Department Head or his or her designee, or sponsoring Department contact and Human Resources to obtain a City network user account. The Human Resource contact must submit a Network Access Request to IT and specify the requested network services. IT may revoke access to City Technology Resources without advance notice as required to ensure the security and integrity of the City's network and computing environment. 4.2 Passwords User accounts and passwords are used to secure access to network and computing resources . Passwords are the front line of protection for user accounts. A compromised user account can put City Technology Resources at risk As such, the following rules and terms apply to User passwords. 4.2 .1 Password Rules 1. Users shall use strong password(s) to access City Technology Resources . Unless other password rules exist for a given system, the following rules should be used when selecting a password. • At least eight characters long • Contain a mixture of at least 2 of the following character types: lower case letter, upper letters, and numbers. • Must not contain the Username 2. It is suggested that passwords be created that can be easily remembered yet hard to guess. One way to do this is to create a password based on a song title, affirmation, or phrase. For example, the phrase might be: "This May Be One Way To Remember" and the password could be something like "TmBlw2R!" or another variation. 3. Network User account passwords will expire at a set time interval (e.g.: 3 months). A Windows message will indicate pending password expiration when the expiration date is approaching and will provide a link to reset the password. 4. The last 5 passwords cannot be used when resetting a network User account password. 5. Network User accounts will become locked after 5 failed attempts with the wrong password. Contact the IT Help Desk in the event of a locked account. 4.2 .2 Password Protection User account passwords are to be treated as sensitive and confidential. Version Oct. 201 8 [insert path to policy here] 102 1. Users are not to share passwords with anyone. 111.is includes supervisors, secretaries, administrative assistants, authorized users, unauthorized users and IT support personnel. 2. User passwords should not be written down. 3. Passwords should not be sent in an e-mail, text message, or voice mail. 4. If a file is used to store passwords, the file should be encrypted and a strong password used. 5. Users who suspect their account or password has been compromised should change their password immediately and report the incident to their supervisor and IT. 6. Accounts are to be used only by the assigned authorized user of the account. Attempting to obtain another user's account password is prohibited. 7. Users should lock their computer (on Windows computers, while holding down <Ctrl> & <Alt> keys, press <Delete> key, click Lock), log-off, or shut down their computer when not in use. 4.3 Remote Access 4.3.1 Authorization 1. Remote access to the City's network over the Internet (Virtual Private Network -VPN) will be considered based on business-need on a case-by-case basis. A request for remote access must be authorized by the User's Department Head or his or her designee. The following general criteria will apply on who may be considered. a . City employees in management positions. b. City employees assigned with full-time IT support responsibilities. c. City employees assigned mobile computing devices to perform their specific job functions during regular work hours. d. City employees assigned mobile computing devices and required to perform job functions outside of regular work hours. e. City employees approved for the City's telecommute program. f. City employees under special circumstances. g. Contractors, consultants, and vendors providing services to the City such as IT support. 2. Non-exempt hourly employees are prohibited from accessing the City network and systems during off-duty hours unless pre-approved by the employee's supervisor. Non- exempt employees will be compensated for any approved overtime. Version Oct. 2018 [insert path to policy here] 103 3. Information about the User's remote computing environment must be provided to IT as part of the remote access request. IT will review and assess the information to assess the security risk fo r consideration in granting remote access. 4.3.2 Other Provisions 1. Aside from City-provided mobile devices, the remote User is responsible to provide, configure, and support the remote computer, software, and Internet access. The City will provide the remote access client software or access to a remote access web server. 2. A remote User's computing environment must be on a supported operating system and include reputable anti-virus / malware software with up-to-date anti-virus / malware definitions . 3. Remote Users shall not provide access to or to share City data or printed reports to others except as authorized by their supervisor or assigned City contact. Remote Users shall protect City systems access, data, and printed reports from unauthorized access or disclosure. Proper protective measures include securing the remote computer and reports when unattended and shielding remote computer and reports from unauthorized viewing. Reports containing sensitive or confidential data should be shredded or obliterated prior to disposal. 4. Remote User sessions will be automatically disconnected after a designated threshold of time of inactivity . The User must then logon again to reconnect to the network. 5. Split tunneling is not permitted . Users will not be able to connect to another network, including one's own private network, while remotely connected to the City network. 6. Encryption beyond that provided by the City's remote access server is permitted only with prior approval of the Executive Director of Information Technology or his or her designee. A user authorized to use additional encryption must provide the de- encryption scheme and key upon request of the Executive Director of Information Technology or his or her designee. 7. Department supervisors or assigned Department contacts shall immediately notify IT when the need for a User's remote access has ended. 4.4 Anti-Virus IT will install and configure anti-virus/ malware software on City-issued computers and network devices. Anti-virus / malware software detects and prevents most viruses and malware from causing harm, but it is not perfect. New malware comes out often which constantly poses new threats. Users are to not interfere with the anti-virus/ malware software installed on their assigned computer. Users authorized to use their own computers or mobile devices for City business must be sure their equipment is on a supported operating system and include reputable anti-virus / malware software with up-to-date anti-virus/ malware definitions . Vers ion Oct. 201 8 [in sert p ath to p o li cy here] 104 Users are to immediately contact IT if they suspect their computer has been infected by a virus or malware. It is advised to immediately disconnect the computer from the network if possible. 5 Computer Equipment and Software IT will assign computer equipment and software to employee Users necessary to perform their job functions. The City may provide computer equipment and / or software to other classification of Users who provide services to the City (i.e.: volunteers, contractors or vendors) as approved by the sponsoring User's Department Head or his or her designee and the IT Director or his or her designee. 5.1 Computer Equipment Computer equipment includes items such as, but not limited to, personal computers (also referred to as desktop computers or workstations), laptops, storage, monitors, keyboards, mice, printers, plotters, scanners, speakers, cameras, and cables. 1. Users are responsible to protect and properly care for their assigned computer equipment. 2 . Users shall use City computer equipment properly and not misuse it. Users should contact IT if they need assistance on using computer equipment. 3. Users should not use computer equipment assigned to another without the User's supervisor's permission. 4. Users should always use their own network user account to login, even when using another User's computer. 5. City-owned computer equipment may only be procured, installed, changed, or removed by IT unless approved by IT. 6. IT will coordinate the disposal of computer equipment. Computer equipment may have special disposal requirements and may contain confidential information that needs to be properly wiped. 7. Additional provisions for laptops, tablets, and smartphones are in the Mobile Devices section. 5.2 Software Software includes, but is not limited to, operating systems (e.g.: Microsoft Windows), Microsoft Office (e .g.: Word, Excel, PowerPoint, Access), applications, anti-virus and other utility software. 1. Software installed on or used through City Technology Resources must be approved by IT. This includes client application software (sometimes referred to as "thick" or "fat" client software) or Software as a Service (SaaS), also referred to as cloud-based application services. 2. All software used by Users on or through City Technology Resources must be licensed or the City must have legal right to use (e.g.: in-house developed). Version Oct. 2018 [in sert path to policy here] 105 3. Unauthorized use, copying, transfer, or reproduction of licensed software is prohibited and in violation of copyright laws. Copyright infringement can subject the User and City to liability for damages to the software manufacturer. 4. IT will maintain an inventory of City-owned software licenses. Upon acquisition, software licenses should be provided to IT. User manuals will be provided to and stored by Department Users. 5. Software may only be procured, installed, changed, or removed on City Technology Resources by IT staff unless otherwise approved by IT. 6. Users are not permitted to interfere with anti-virus or anti-malware software installed on their assigned computer(s). 6 Mobile Devices 6.1 Authorization Users must receive authorization by their Department Head or his or her designee in order to access City Technology Resources using a mobile electronic device ("Mobile Device"). Additionally, mobile devices must be approved to access City Technology Resources by the Information Technology Department (IT). Refer to IT for a list of approved mobile devices. 6.2 Personal Mobile Devices · Users who have been authorized for mobile access to City Technology Resources may request to use their personal mobile device. The User's Department Head and IT may authorize this. The following understanding and terms apply to using a personal mobile device for City business use. 1. The City does not expect or require employees to provide a personal device to perform any of th~ employee's assigned job duties. If the Department Head determines a mobile device is required to perform one's job duties, he or she will authorize the issuance of a City-owned mobile device or provide a mo!lthly stipend to reimburse the employee for monthly fees when the phone is used for City business purpose. The reimbursement rate is as follows: • Up to $55 per month (basic City rate plus taxes) for smart phones Cell phone stipends are not considered an "allowance" for employees, in which an employee would receive a flat amount. Rather, employees will be reimbursed for an amount up to $55/month for smart phones. Calculation for reimbursement is as follows: Main line charge+ (total data+ total tax+ total fees)/ total# of lines 2. The City may prohibit an employee from using his or her personal device to conduct City business at any time, with or without cause. 3. Non-exempt hourly employees are prohibited from using their personal devices for City-business during off-duty hours unless pre-approved by the employee's supervisor. Non-exempt employees will be compensated for any approved overtime. Version Oct. 2018 [insert path to policy here] 106 4. The use of personal devices to access City Technology Resources shall be subject to the teclmology controls, policies, and security that are provided and implemented for City- owned devices unless stated otherwise herein. 5. Users have no reasonable expectation of privacy while using City Technology Resources from their personal mobile device such as network traffic, website access, and e-mail messages. To the extent that Users wish their private activities remain private, they should not access City Technology Resources from their personal device. 6. Users provided a monthly stipend for the use of their personal device are responsible for all costs in excess of the monthly stipend including, but not limited to, the cost of the device, service plan, accessories, maintenance, repair, and any insurance or warranties. 7. The City is not responsible for damage to users' personal devices including when being used for City business and accessing City Technology Resources. 8. A user is responsible for all activity performed from his or her mobile device when using the City's Technology Resources and will take all reasonable care to protect his/her device from unauthorized access, compromise, and to be free from malware. 6.3 Mobile Device Management City-owned mobile electronic devices will be centrally managed by IT and use the City's Mobile Device Management (MDM) system to help manage mobile device inventory, software, policies, and security. 1. All authorized mobile devices shall only be managed and supported by authorized IT staff. 2. Users shall not attempt to bypass mobile security and management. 3. Authorized Users shall maintain data on a mobile electronic device in accordance with the City's Records Retention and Destruction Policy. 4. City information on City-owned and personal mobile electronic devices may be subject to the California Public Records Act, the Brown Act, or any other California laws pertaining to public employees/officials. Users must comply with public records request related to City data on City or personal mobile electronic devices. 5. Any approved personal mobile device (non-City issued) that is connected to the City's computing environment must comply with the standards in this policy. 6. IT may activate audit trails without notice for the purpose of identifying unusual usage patterns or suspicious activity to determine if the mobile device has been compromised or to identify misuse. 7. The City reserves the right to audit the configuration and content and inspect files stored on City-owned mobile devices without notice. Version Oct. 2018 [insert path to policy here] 107 6.4 Mobile Device Security All mobile electronic devices shall be physically and electronically protected at all times. This includes, but is not limited to the following : Physical Security (City-owned Devices) 1. Smart Phones should be equipped with a case to reduce risk of physical damage during a drop. 2. Mobile devices should not be left unattended in any public locations. 3. Mobile electronic devices shall not be left in vehicles in plain sight. 4. Physical security such as a laptop cable lock or a locked cabinet should be used when left unattended in work areas. Electronic Security 1. Users shall protect access to their mobile device with a strong password, PIN, or bio- metric (e.g.: fingerprint) security. 2 . Users shall not disclose their passwords or PIN's to others. 3. Users shall not tamper with anti-virus or anti-malware software installed by IT on any client computers. 4 . Users will not modify City-owned mobile devices without approval of IT. 5. IT may restrict the mobile device or User from accessing certain City Technology Resources . 6. The User shall not store City data to resources outside the City computing environment, such as local desktop/laptop/tablet storage, Apple iCloud, Dropbox, Google Drive, Microsoft OneDrive, or other cloud-based file storage services without approval from IT. 7. Users should not use City-owned devices as Hotspots without approval by IT. 8. IT may remotely disable, wipe (erase), or reset City-owned mobile devices under the following circumstances: a. Device is lost or stolen. b. Device is replaced by another device or retired without replacement. c. Device is transferred to another User. d. User separates from the City (e.g. retirement, resignation, termination). e. To repair a software issue (with knowledge of the User). f. The device is infected by a virus or other malware. g. To protect City Technology Resources. h. Upon request of the User's Department Head or his or her designee. Version Oct. 2018 [insert path to policy here] 108 6.5 Mobile Device Data 1. Access to City data/information shall be provided on a "need-to know" basis and with security rules in place to protect from unauthorized access. 2. Wherever possible, data is to reside on the City's network rather than downloaded to the device. 3. Sensitive and Confidential Data Access to sensitive and/or confidential data on mobile devices must be made securely and with considerable care. a. Encryption should be used. b. City data should not be stored on mobile devices. 4 . Any City business electronic communication, or information stored on a mobile device, City-owned or personal, may constitute a record subject to disclosure under the California Public Records Act (CPRA), the California Code of Civil Procedure, the Federal Rules of Civil Procedure, or other applicable statutes, regulations, or legal authorities. Users shall provide access and/ or produce records that meet the requirements for public disclosure stored on the mobile device upon the City's request. 5. Authorized Users and mobile devices may connect to the City's e-mail services. Other City services may be provided as authorized. 6. It is the User's responsibility to back-up any incidental personal data and applications on City-owned devices. In the event the device needs to be wiped, all data and applications will be lost. The City bears no legal or financial responsibility for loss to personal data or applications. 6.6 Lost or Stolen Mobile Devices , Users shall promptly report lost or stolen mobile devices to IT within 24 hours or as soon as reasonably possible. City-owned devices will be remotely wiped and locked to prevent unauthorized access. If the device is recovered, it can be provided to IT and re-provisioned. The user's City network password should be changed as soon as possible after the device is lost or stolen. 6.7 Mobile Device Support 1. City-Owned Mobile Devices a. City-owned mobile devices are supported by IT during IT Help Desk hours. b. Requests for new mobile devices or support should be submitted to the IT by e-mail at helpdesk@cupertino.org, or by calling 777-(City Hall) or 714-245-8411 (PD). c. Departments are responsible for paying monthly data and/or voice plans. In the event data or minutes exceed the monthly plan the employee is responsible to pay for all personal use minutes or data utilized that exceed the plan limit,s. Version Oct 2018 [insert path to policy here] 109 d. Users should not attempt to repair City-owned devices themselves . Contact IT for assistance. e. IT will make best-effort attempts to fix problems Users experience on their mobile device . However, it may become necessary to reset a device to factory settings or wipe it to clear a problem. In such a case, IT will re-initialize the device for City business use. The City is not responsible for personal data or applications lost. The User will be responsible for restoring any incidental personal data and applications . f. Mobile applications required to conduct City business must be approved by IT prior to installation g . Applications should be updated by downloading updates when prompted. It is recommended that mobile applications be updated to keep them running properly. h. IT pays for mobile device repairs and / or replacements. In the event that abuse or severe negligence resulted in damage the employee may be held responsible for repair costs. 2. Personal Mobile Devices a. Authorized Users may use supported personal mobile devices for accessing City e- mail and other authorized City Technology Resources . b. IT will assist in configuring the device's City e-mail, remote access, and other City Technology Resources as authorized on the personal mobile device. c. The User is responsible for their own device and application support from the manufacturer or third-party. 7 Data and Information 7.1 Access and Disclosure 1. Users may have access to data and information ("Data") in City information technology systems through their system user account(s) and in the course of performing their job duties or service functions. 2. Regardless of system access capability, Users shall not search or seek out Data in City systems, databases, repositories, and files except as necessary in the performance of their job duties or service functions. 3. Users shall not share or disclose Data in City systems, databases, repositories, and files to others except as necessary in the performance of the User's job duties or service functions. 4. Any disclosure should be in compliance with departmental policies and procedures and local, state, and federai laws. 5. Users should consult with their supervisor to obtain guidance i£ uncertain about sharing or disclosing Data. Version Oct. 2018 [insert path to policy here] 110 7.1.1 Sen sitiv e and Confidential Data and Information 1. Confidential Information is privileged information for a designated purpose that is only intended for recipients with a business need-to-know. 2. Disclosure of confidential data may violate local, state, and/or federal laws. 3. Users shall not access, take, copy, share or disclose sensitive and/or confidential Data without the authorization from their Department Head or his or her designee. 7.2 Data Storage and Backups 7 .2.1 File Storage Files should not be stored on User workstations, portable or mobile devices. These systems and devices are not backed up, and the information may be lost. City information technology systems store Data on servers used to conduct City business. Data stored on production City-maintained servers are backed up nightly. Users should store Data pertaining to City business on production City-maintained servers . 7.2.2 Sensitive and Confidential Data 1. Users shall not store or copy sensitive and/or confidential information on external storage systems including removable media (e.g.: USB / Flash drives, SD memory cards, CD/DVDs) or cloud-based services (e.g.: Google Drive, iCloud, One Drive, Drop Box), unless authorized by the IT Director. Executive Director of Information Technology or his or her designee. If removable media is used, the device must be encrypted and password-protected. If removable media is lost or stolen, the loss should be reported immediately to IT. 2 . When a storage device containing sensitive and/or confidential information needs to be disposed of (e.g.: retention expiration, retirement of hardware, no longer needed, etc.), it should be provided to IT for proper disposal. The disposal will involve the media be over-written at least three times using specialized software designed to permanently erase data, physical destruction (e.g.: crushing, shredding, incineration), or degaussing (magnetic destruction). 7.3 Data and Records Retention 7.3.1 Re tenti on and Destruction City records are subject to the City's Records Retention and Destruction Schedule This schedule serves as policy for retaining and destroying City records . Users shall adhere to and comply with the Records Retention and Destruction Schedule. Records are not to be destroyed without proper authorization and following the records destruction process required by the Clerk of the Council's and City Attorney's Offices. 7.3 .2 P ending Litigation California Assembly Bill 5 (Electronic Discovery Act) requires processes and technologies to be in place related to finding and managing electronically stored information that might be relevant in a foreseeable legal dispute. The law requires the agency to stop any automated or Version Oct. 2018 [insert path to policy here] 111 regular purging of relevant electronically stored information at the first notification that a legal dispute may be forthcoming. Users are to suspend any record and information destruction plans for any records or information that may be related to a pending litigation. Users should contact the City Attorney's Office for guidar1ce in such circumstances. 8 Telephones and Voicemail Telephones and voicemail are provided at City offices and assigned to Users for the purpose of conducting City business communication. Users shall be professional and responsible when using the City's telephone and voicemail systems. Telephone calls are logged and may be reviewed by supervisors and/or City management. Provisions for use of mobile phones or smart phones are identified in the Mobile Devices section of this policy. 9 Technology Purchases Centralized information technology standards, architecture, processes and practices maximize the reliability, integrity, efficiency and performance of City Technology Resources. As such, IT is responsible for all technology-related purchases or contracts. Departments should contact IT prior to purchasing or entering into an agreement for information technology goods, services, or support. For large projects, IT should be contacted early in the planning process. Users my request computer hardware or software through the IT Help Desk. IT will review and approve or reject purchase requests based on standards, strategic direction, available resources, and ability to support. Technology equipment that is replaced must be turned over to IT upon replacement. Replaced equipment may be redistributed or reallocated to other users. IT will maintain an IT asset inventory database. 10 Separation or Discontinuance of Service The following provisions apply to Users who separate or discontinue service from the City: 1. The User shall return his or her City-assigned Technology and other Resources (e.g.: mobile devices, parking and building access cards) to his or her supervisor or assigned City contact before leaving the City. The User's supervisor shall then turn the City Technology Resource(s) in to IT or make a request to re-provision the Resource(s) to another User. 2. The User should forward any e-mails pertaining to the conduct of City business sent from their personal e-mail account(s) to their supervisor or assigned City contact e-mail address. 3. The User's network and system accounts will be disabled after the separation date. Human Resources will provide IT the date/time user accounts should be disabled. 4. The User should not attempt to access City Technology Resources even if resources appear accessible. 11 Netiquette Version Oct.2018 [insert path to policy here] 112 Users are expected to abide by the generally accepted rules of network etiquette. These rules include, but are not limited to, the following: 1. Be Polite . Never send, or encourage others to send, abusive messages or cornmmlications 2. Use Appropriate Language. Users are representatives of the City. A User may be alone with their computer, but what is written online or in e-mail can possibly be viewed publically. Users should never swear, use vulgarities, or any other inappropriate language online or in e-mail. 3. Privacy. Users should not reveal per sonal data online or-in e-mail (e .g., home address, telephone number, etc.). 4. Disruptions. Users should not use City Technology Resources in a way that would disrupt or disturb others. Do not use computer sound or use a low volume when working near others. Silence mobile phones during meetings. 5. Be Brief and Concise. Long extraneous communication is not as effective. 6. Proof Read and Spell Check. It is a good idea to proof-read and spell-check messages before sending. Try to make commmlication easy to understand and to read. 7. Appropriate Message Distribution. Users should send and copy (cc) messages to appropriate recipients. A void unnecessary or inappropriate distribution. 8. Consider that humor and satire are very often misinterpreted and can be unprofessional. 9. Cite references for any facts presented. 10. Forgive the spelling and grammar errors of others. 11. All Users are human beings. Don't "attack" correspondents; persuade with facts. 12 Violations Violations of the City's Technology Use Policy may result in removal of access to City Technology Resources and / or be subject to disciplinary action, up to and including termination. In the case of illegal activity and / or malicious use, the City may refer the violation to law enforcement and / or the City Attorney for potential criminal investigation and prosecution and/ or civil action. Date: ~)~j Q 0 Revisions: Version Oct. 2018 [in sert path to policy here] 113 114 CITY OF CUPERTINO Agenda Item 23-12543 Agenda Date: 9/13/2023 Agenda #: 3. Subject: Community Outreach Presentation Receive Community Outreach Presentation. CITY OF CUPERTINO Printed on 9/7/2023Page 1 of 1 powered by Legistar™115 Branding Guidelines 2018 116 SECTION I: Brand Fundamentals City Seal & Logo Logo Usage Colors Color Usage Typography SECTION II: Logo Utilization Business Cards, Stationary and Communications Business Card Envelopes and Mailing Labels Letterheads Press Releases Sample Report Covers Program Covers Email Signatures PowerPoint Other Applications Etched Glass Blind Embossing Vehicles Shirts 1 3 9 10 12 15 16 17 19 20 22 23 24 29 30 31 32 Table of Contents 117 1 The master logo is different from the seal in that it excludes the words “city of”. The master logo should be a consistent mark throughout all marketing and outreach communications, serving as a cornerstone for recognition and branding. The font used in the logo is Gill Sans. This City logo is based on the sculpture located at City Hall. It is a stylized version of a morion (pronounced mohr-ee-on), which is a Spanish conquistador helmet. It has been Cupertino’s symbol since the 1970s. The morion was chosen as an ode to Cupertino’s past. The area now known as Cupertino was claimed by the Spanish in 1776 by explorer Juan Bautista de Anza. City Logo History Behind the Morion City Seal & Logo The Cupertino City seal should be used on all official documents, such as staff reports, memos, letterhead and press releases. Use the “City Seal” files from the archive; do not attempt to create the seal by adding the words to the logo. City Seal 118 2 City Seal & Logo On those occasions where a horizontal format is required (e.g., monument signage), the alternate configuration may be used. The type is enlarged 300% and set flush left, centered vertically with the center of the logo’s rectangle. Some departments within the City have had a logo created for them. If you are interested in having a logo designed and developed for your department or division, please contact the Public Information Officer (PIO) for more information. Do not add or edit the City logo to create a new logo or combine with another logo. Please consult the City’s PIO about the logo design process as it is vital for the City’s brand identity to have a unified and cohesive voice. Alternate Configuration City Division Logos 119 X 3 This image is used as the favicon for the City’s websites. It appears in the tab of your internet browser when visiting the site. The logo should always be surrounded by a minimum area of clear space. This space isolates the logo from any competing graphic elements like other logos or body copy that might conflict with, overcrowd or lessen the impact of the logo. The clear space around the logo should be greater than or equal to 1x. 1” X = distance from bottom of background element to bottom of logotype To ensure legibility, the logo should never be smaller than 1 inch tall. Favicon Logo Clear Space Minimum Size Logo Usage 120 4 Pro Tip Holding down the Shift key while dragging from the corner will scale the logo proportionally in most programs. Best Practice: When importing the logo into your software application, be sure to import the graphic, rather than cut and paste. (In Word, the command is Insert > Picture > From File.) Do: Scale proportionally. Logo Usage Do: Keep the logo in its original orientation. Do Not: Tip or rotate the logo. Do Not: Enlarge a raster version of the logo as it may cause distortion. Raster versions of the logo are normally in one of the following file formats: JPG or PNG. Do Not: Stretch or compress the logo. 121 5 Logo Usage Do Not: Change the colors of the logo or elements of the logo. Do Not: Change the size or position of the logo elements. Do Not: Remove or reshape elements. Do Not: Remove or isolate the helmet from the background. 122 6 Do: Align the logo flush left or flush right. When using the logo with blocks of copy, align copy blocks with the left of the “C” or with the right of the “O” in “Cupertino” Do: Center align the logo with centered type. Align the type with the center of the logo. Bus earum aut alitae core volut evenecu llorio. Exeruptat pos sus atur mintent. Bus earum aut alitae core volut evenecu llorio. Exeruptat pos sus atur mintent. Bus earum aut alitae core volut evenecu llorio. Exeruptat pos sus atur mintent. At venimus adisto qui At venimus adisto qui At venimus adisto qui Alignment Logo Usage 123 7 Reversing the Logo Logo Usage Do: Use the reversed out white version of the logo on dark backgrounds. The white areas of the helmet, rays, white rule and “EST. 1955” always appear as white. When the logo appears against a dark background, only “Cupertino” reverses to white. Do Not: Reverse other images in the logo to white. Do: Use the reversed black and white version of the logo when it appears against a dark background that is not PMS 655 or black. When working on a 1-color print job, it is preferable that Cupertino Blue (PMS 655) be used. If this is not possible, the background of the logo may be printed in 100% of the color of the piece. 124 8 Do: The logo stands out well against a background of solid color (PMS 655/screen match or black are preferable), or against one of the logo background images. Use only the back ground logo images supplied; do not create a new one. Do: When the logo appears against a photo background, care should be taken that there is enough contrast for the logo to read. Do: When featured against a photo background, the inverted logo (white “Cupertino”) should be used against a background that has a tonal value equivalent to 40% black or darker. Do: Use the regular logo against back grounds that have the equivalent tonal value of 30% black or lighter. Background Logo Usage 125 9 PRINT ELECTRONIC Note: Using the wrong color mode for the wrong platform may cause color discrepancies. The accent color palette offers an additional range of options and may be used in conjunction with the primary and secondary color palettes as needed. Any of these colors may be used as tints to add dimension and variety to a design The primary color palette is the brand’s signature color and it should be the dominant color used in everything that represents the City. The secondary color palette should also be used in everything that represents the City but should be used at a lower ratio than Cupertino Blue. In instances when only one color from the secondary palette may be used, red should be the default color to accompany Cupertino Blue. Accent Color Usage Primary Secondary 7624 C 144 C 7403 C 2411 C 424 C 421 C 657 C 655 C PMS 0 | 97 | 87 | 60 0 | 51 | 100 | 0 1 | 11 | 58 | 2 72 | 2 | 100 | 76 30 | 20 | 19 | 58 13 | 8 | 11 | 26 22 | 6 | 0 | 0 100 | 79 | 12 | 59 CMYK 128 | 47 | 45 237 | 139 | 0 238 | 212 | 132 28 | 66 | 32 112 | 115 | 114 178 | 180 | 178 200 | 216 | 235 0 | 37 | 84 RGB #802F2D #ED8B00 #EED484 #1C4220 #707372 #B2B4B2 #C8D8EB #002554 HEX The Pantone Matching System (PMS) is also known as spot colors. Pantones are used when printing with a professional printer to promote color accuracy. When the PMS color is followed by a ‘C’ this indicates it should be used for coated (glossy) paper stock. When the PMS color is followed by a ‘U’ this indicates it should be used for non-coated finishes. Colors 126 10 UN-COATED PAPER STOCK COLOR VALUES 655 U 7624 U 2411 U 421 U 657 U 7403 U 144 U 424 U PMS 99 | 60 | 7 | 27 0 | 96 | 90 | 45 79| 30 | 100 | 44 28 | 19 | 19 | 2 17 | 4 | 0 | 0 3 | 13 | 54 | 0 0 | 43 | 90 | 0 25 | 17 | 15 | 44 CMYK Do: Any of the colors from Cupertino’s color palette may be used as tints to add dimension and variety to a design. Please use these colors at the indicated levels shown to the right. Do: When printing on non-coated paper stock please use the PMS-U color values to ensure color accuracy. Color value conversions for spot colors can be checked on Pantone’s website at: pantone.com/color-finder 100% 80% 60% 40% 20% Color Usage Do Not: Change the colors of the logo or elements of the logo. 127 11 Color Usage Below are examples showing how primary, secondary, and acent colors can be used. Color Samples cupertino.org cupertino.org LOREM IPSUM DOLOR cupertino.org LOREM IPSUM DOLOR cupertino.org LOREM IPSUM DOLOR cupertino.org LOREM IPSUM DOLOR cupertino.org LOREM IPSUM DOLOR 128 12 Typography Century Gothic Regular Century Gothic Bold Palatino Linotype Regular Palatino Linotype Bold Century Gothic Italic Century Gothic Bold Italic Palatino Linotype Italic Palatino Linotype Bold Italic Century Gothic Palatino Linotype Cc Cc C c C c Cc Cc C c C c Cupertino’s font families should be used for all communications. This is to ensure a consistent look and feel of all branded items offline and online. No more than 2-3 font families should ever be used in a layout. A third font family, such as script, can be used in the title header of a document if a specific theme or tone is being set and if it is being treated as its own signature or logotype for a specific event, such as a Halloween parade or Christmas concert. Should you use a script font in the header, the remainder of the document should still use the font families as indicated below. To ensure a consistent look, make sure fonts are used in a consistent manner and the weights of the fonts have been considered. Heavier weights should be used for headers and to highlight key messages. Use loosened leading when possible, no more than 4 pts above the font size on body copy. When using all caps in the header, make sure your tracking/kerning is loosened for increased legibility. Century Gothic should be used for: • shorter running text • headlines • subheadings Palatino Linotype should be used for: • body text (particularly longer continuing bodies of text) Research has shown that people can read large bodies of text faster and more efficiently when a serif font is used. Typography 129 13 Century Gothic should be used for: • headlines • subheadings • shorter running text Palatino Linotype should be used for: • body text (particularly longer continuing bodies of text) Typography Sample Use of Fonts 130 Business Cards, Stationary and Communications 131 BRIAN BABCOCK Public Information Officer City Hall • 10300 Torre Avenue Cupertino, CA 95014-3255 Ph: (408) 777-3262 brianb@cupertino.org www.cupertino.org CUPERTINO-HSINCHU SISTER CITY ASSOCIATION ROGER PENG Chairman 10740 Online Ct. Cupertino, CA 95014-3255 Ph: (408) 446-3938 Fax: (408) 255-3915 rpeng@us.fujitsu.com www.cupertino.org City Hall 10300 Torre Avenue Cupertino, CA 95014-3255 Ph: (408) 777-3200 Fax: (408) 777-3366 www.cupertino.org Business cards and stationery should be printed in PMS 655 and use Century Gothic Regular and Bold as their fonts. Font size is 8pt with 10.5 pt lead and 6 pt (or less) additional space between blocks of type. Do not use other fonts or colors. Standard Card Committee Card - When more information is needed on the card. Generic Card - No individual information; switchboard phone number. Business cards 15 Stationary System 132 10300 TORRE AVENUE CUPERTINO, CA 95014-3255 CITY HALL 10300 TORRE AVENUE CUPERTINO, CA 95014-3255 16 Stationary System #10 Envelope Mailing Label 133 First page text margins are set at 2.5” for top, 0.75” at bottom, and 1.25” on left and right. Second page margins and subsequent pages have a top margin of 1”. Body copy should be between 10-12 pt. font (Palatino Linotype). Letterhead 17 Stationary System 134 First page text margins are set at 2.5” for top, 0.75” at bottom, and 1.25” on left and right. Second page margins and subsequent pages have a top margin of 1”. Body copy should be between 10-12 pt. font (Palatino Linotype). Letterhead | Council 18 Stationary System 135 First page margins are set at 3” for top, 0.5” at bottom, and 1.25” on left and right. Second page margins and subsequent pages have a top margin of 1”. Title and header copy is Century Gothic Regular and Bold. (Title set to 18 pt) Body copy is Palatino Linotype set at 11 pt, left aligned. Press Release 19 Stationary System 136 Sample Report Covers CITY OF CUPERTINO Secondary Information Report Title CITY OF CUPERTINO Secondary Information Report Title 20 Logo Utilization 137 Sample Report Covers CITY OF CUPERTINO Secondary Information Report Title Requiring Two Lines CITY OF CUPERTINO Secondary Information One-Line Report Title 21 Logo Utilization 138 Title of Event Date of Event Location 22 Logo Utilization For event programs printed by the City on 8.5 x 11” sheets and folded to 5.5 X 8.5”: • Scale logo to about 2.1” wide. (Be sure to scale proportionally.) • Center logo in horizontal space , with bottom of logo at about 3.6”- from top edge of paper. • 0.5 pt rule (line) ap proximately 4.6” from the top edge of paper. Make rule about 4.4” long. Use PMS 655. • Title of event in Century Gothic, Regular, 22 pt with 30 pt leading, centered. Place title so that top of type is about 5” from top edge. Use PMS 655. • Date and loca tion: Century Gothic, Italic, 14 pt with 20 pt leading, centered. Program Cover 139 Century Gothic, Bold -13 pt Century Gothic, Regular -11 pt Century Gothic, Bold -11 pt Century Gothic, Italic -11 pt 23 Email Signatures Communications All City staff should have the same email signature format. There are a variety of icon options provided for your email signature and you are encouraged to use the icons that are the most appropriate for your department and role. Icons can be linked to the website of your choosing. Please work with the IT department to find out how to set up your email signature and link icons. If the body of the email is set to an 11 pt font, then please use the following email signature settings: Icons have been provided in both gray and blue. Please select one color for all of the icons you use and do not mix. 140 PowerPoint 1 - General Use Title Slides 24 Communications This template was built at a 16:9 ratio for widescreen. The PowerPoint template should be placed in the “Templates” folder in the Microsoft Office Program folder. Basic path: Programs > Microsoft Office > Templates Create a new presentation using the tem plate. The new presentation can be saved in any folder. 141 PowerPoint 1 (continued) Content Slides Divider / Section Slides 25 Communications 142 This PowerPoint template was built at a 16:9 ratio for widescreen and has a 1” safety margin for TV. PowerPoint 2 - TV Broadcast Title Slides View without the 1 inch TV safety margin View of PPT deck at 16:9 ratio 26 Communications 143 PowerPoint 2 (continued) Content Slides View without the 1 inch TV safety margin View of PPT deck at 16:9 ratio 27 Communications 144 Other Applications 145 White areas of the logo are etched. Dark areas are clear glass. Etched Glass 29 Other Applications 146 The high contrast of light and dark in the logo make it a good candidate for blind emboss ing. When creating the die for the embossing, white areas of the logo should be the higher level. The reflection area on the helmet should be midlevel on a 3-level embossing. The lighter areas of gold foil should correspond to the white areas of the logo. White areas of the logo should be the higher (brighter, more polished) levels of the cast ing. The reflection on the helmet should be a shallower depression or darker finish (not on the same level as the background). Blind Embossing Gold Seal Bronze or Brass Signage 30 Other Applications 147 The logo should print PMS 655 (or equivalent) at this ap proximate size and location: Vehicles 31 Other Applications 148 The logo should be printed in black and white or PMS 655 (or equivalent) at this ap proximate size and location: Shirts 95014 32 Other Applications 149 1 2020 Edition Questions or comments? Email communications@cupertino.org Grammar Spelling Punctuation CITY OF CUPERTINO STYLE GUIDE 150 2020 Cupertino Style Guide 1 | Page Contents Introduction .................................................................................................................................. 2 Clear and Effective Writing ........................................................................................................ 3 Inclusive Language ...................................................................................................................... 5 Punctuation ................................................................................................................................... 6 Spelling and Grammar ................................................................................................................ 7 151 2020 Cupertino Style Guide 2 | Page Introduction Welcome to the first edition of the Cupertino Style Guide. The purpose of this document is to establish consistent grammar, punctuation, and spelling usage in communications, publications, and documents prepared by the City of Cupertino. It is intended for use by all City staff involved in the preparation of documents, including writers, support staff, and managers. When should you use these guidelines? When you are composing official communications on behalf of the City, including emails, staff reports, letters, memos, press releases, social media posts, and more. There are items that can be excluded from some of these guidelines due to space constraints, such as postcards, flyers, spreadsheets, charts, graphs, and others. As a first effort, this Style Guide is likely to have gaps in the material it includes, or it will identify areas where there are differences of opinion. It is important that employees contribute their questions, comments, and suggestions to improve the next edition of this guide by emailing communications@cupertino.org. Some differences will come from the American English versus British English spelling of words. The Cupertino Style Guide identifies the American English versions to be correct. This document will be updated yearly and republished every March 4, also known as National Grammar Day. Additional Resources: merriam-webster.com grammarly.com The Elements of Style -William Strunk, Jr. and E.B. White The Book on Writing -Paula LaRocque On Writing Well -William Zinsser 152 2020 Cupertino Style Guide 3 | Page Clear and Effective Writing The principles for writing clear and effective documents and publications are not complex or magical. They come down to some basic concepts. Here is a brief summary of the elements of writing so that we can communicate well with each other and the public. 1. Know Your Audience In other words, “Who am I writing for?” Before you begin writing, make sure you know your purpose and your audience. Is the document meant for City Council, staff, residents, business owners, or a specific neighborhood? Knowing your audience will help guide your writing and ensure good planning and a clear message. Without good planning, the writing of the material usually requires more time to complete and revise, which will likely render your document less effective. 2. Use the Active Voice Government documents are plagued with the use of the passive voice. Authors of staff reports and memos tend to back into their message and end up burying the important information at the end. The passive voice also uses more words than necessary. Instead, use the active voice which is more direct and dynamic. The best way to hold a reader’s attention is by being specific, brief, and concrete. Documents and publications have a far better chance of communicating and achieving their purpose with clear writing, good organization, and valuable information working together. Read more about the active voice. 3. Avoid Jargon Use words that would be suitable for explaining the issue to the average reader. Don’t talk down to your audience but remember they don’t have the familiarity with the subject that you do. Jargon, acronyms, and long and complex words often confuse and obscure the point. Remember that good communication is part of the City’s efforts toward transparency. But transparency without simplicity is not transparency. The use of plain, straightforward, jargon-free language will be more likely to meet the needs of these diverse audiences successfully. 4. Watch Your Tone Voice and tone go hand in hand. Your tone should always be professional, and alternate between friendly and approachable depending on what you are writing. Clear, simple, and professional writing is always the best approach. Learn more about tone. 5. Do Your Research The value of the City’s documents is based on their accuracy and completeness. Check your data and references, and don’t make assumptions. Factual errors, including misspelled names, wrong telephone numbers, and incorrect dates and figures, diminish the level of confidence the reader has in the document and the City’s efforts in general. 153 2020 Cupertino Style Guide 4 | Page 6. Proofread and Rewrite This is the fundamental rule for good writing. Read your drafts carefully, aloud if possible, and don’t hesitate to revise them. Professional writers rewrite their material mercilessly. To assure that you have adequate time to review and revise your writing, make sure your preparation schedule deliberately includes it. It always takes more time to correct mistakes, repair clumsy writing, and recover from their effects after the fact than it does to catch them early and fix them. Some brief self-editing tips. 7. Take Responsibility Whether or not your name will appear on the material you write, take responsibility as if it will be there. Take pride in the authorship of quality material. “When something can be read without great effort, great effort has gone into its writing.” -Enrique Jardiel Poncela 154 2020 Cupertino Style Guide 5 | Page Inclusive Language The City understands the importance of language that is inclusive, accessible, and respectful. See the AP Stylebook and 18F Inclusive Language for more specifics, including how to reference nationality, race, ethnicity, mental illness, and more. Ability and Disability Only reference a person’s disability when it is relevant to what you’re writing. If you must mention it, always emphasize the person before the disability. When writing about a person with disabilities, don’t use the words suffer, victim, or handicapped. Correct Incorrect She has a disability. She is disabled. people with autism autistic people wheelchair user wheelchair-bound Age Avoid referring to someone’s age unless it’s relevant to what you’re writing about (for example, when referring to benefits that are available to people of certain ages). Gender-neutral Use neutral terms instead of gendered alternatives: Correct Incorrect councilmember councilwoman, councilman firefighter fireman people, humanity mankind to staff, to run, to operate to man workforce, employees manpower Gender and Sexuality Use different sex instead of opposite sex as this recognizes gender as a spectrum, not binary. Use spouse or partner instead of husband or wife. Use parent instead of mother or father. They and theirs may be used as singular pronouns. Correct Incorrect Residents should take out A resident should take out their garbage. his or her garbage. 155 2020 Cupertino Style Guide 6 | Page Punctuation and Symbols Punctuation is just as important as the words you choose to use. Punctuation changes the pace of reading, offers sentence variety, and most importantly, clarifies meaning. Ampersand (&) Use only when part of a formal name: AT&T, Ben & Jerry’s. Not a replacement for “and.” Exclamation Point (!) Use sparingly. Overuse defeats the purpose of using them and could make a reader feel like you are yelling at them. Remember, watch your tone. Hyphen (-) The fewer hyphens the better. Hyphens are joiners. Use them to avoid ambiguity or to form a single idea from two or more words: self-driving car, four-year-old child, small-business owner. Hyphens should not be used to replace “to” or “through” in times, dates, and years. Oxford Comma, Serial Comma The last comma in a list, which goes before conjunctions such as “and” or “or.” Always use. Correct Incorrect I love my parents, Beyoncé, and I love my parents, Beyoncé and Michael Bublé. Michael Bublé. (Reads as if you are the child of two pop stars.) Period (.) Use one space after a period. Period. Semicolon (;) Best to avoid it. Use a period instead. Slash (/) Should never be used as a replacement for “and” or “or.” Quotation Marks (“ ”) The period and comma always go within the quotation marks. The dash, semicolon, colon, question mark, and exclamation point go within the quotation marks when they apply to the quoted matter only. They go outside when they apply to the whole sentence: Did the dog bark every time he heard Jim say “I’m bringing dinner”? Correct Incorrect “I love Cupertino,” she said. “I love Cupertino, she said.” “I love Cupertino.” “I love Cupertino”. 156 2020 Cupertino Style Guide 7 | Page Spelling and Grammar a, an Use the article a before consonant sounds: a historic event, a one-year term (sounds as if it begins with a “w”), a united stand (sounds like “you”). Use the article an before vowel sounds: an energy crisis, an honorable person (the “h” is silent), an NBA record, an 1890s celebration. acronym, initialism Always spell out the name of an agency or organization on first reference. The name can be shortened on second reference. First reference Second Reference Silicon Valley Clean Energy SVCE Association of Bay Area Governments ABAG Valley Transportation Authority VTA addresses Always spell out with or without a number: 10300 Torre Avenue, McClellan Road, Stevens Creek Boulevard. Lowercase and spell out when used with more than one street name: Torre and Rodrigues avenues. Always use figures for an address number: 9 Morningside Circle. Spell out and capitalize First through Ninth when used as street names. Use figures with two letters for 10th and above: 7 Fifth Avenue, 100 21st Street. adopt, approve, enact, pass Amendments, ordinances, resolutions, and rules are adopted or approved. Bills are passed. Laws are enacted. a.m., p.m. Lowercase, with periods, and space after the number. Avoid redundant: 10 a.m. this morning. Note: when ending a sentence with a.m. or p.m., the period following the “m” also signifies the end of the sentence. Spell out “to” or “through” when mentioning a timeframe in a sentence: 8 a.m. to 9:30 a.m. Use noon to indicate 12 p.m. Use midnight to indicate 12 a.m. among, between Between introduces two items, and among introduces more than two: The funds were divided among the three projects. Project responsibilities will be split between two employees. 157 2020 Cupertino Style Guide 8 | Page biannual, biennial Biannual means twice a year and is a synonym for the word semiannual. Biennial means every two years. Semiannual may be more clear than biannual in some contexts. bimonthly Every two months: My bimonthly magazine subscription gives me six issues a year. Semimonthly means twice a month: Items of Interest is published semimonthly in the first and third weeks of the month. biweekly Every two weeks: We are paid biweekly, 26 times a year. cancel, canceled, canceling, cancellation The forms of cancel in American English are typically canceled and canceling. Cancellation is the usual spelling in American and British English. city, city of Capitalize city as part of a proper name: City of Cupertino, New York City. Lowercase elsewhere: a California city. Capitalize city on second reference to the City of Cupertino: The City has 200 employees. Always capitalize Cupertino. Use City of Cupertino and the City in reference to the government agency. Never use in reference to the community or geographic city: Cupertino has excellent schools. city council Capitalize when part of a proper name, or specifically referring to the City of Cupertino: The Cupertino City Council. Capitalize on second reference when referring to the Cupertino City Council: The City Council voted unanimously. Retain capitalization if the reference is to a specific council but the context does not require the city name. Lowercase in other uses: the council, a city council. Lowercase for plural references: the Cupertino, Saratoga, and Sunnyvale city councils. city hall Capitalize with the name of a city, or without the name of a city if the reference is specific: Cupertino City Hall, City Hall. Lowercase plural uses: the Cupertino and Santa Clara city halls. Lowercase generic uses: You can’t fight city hall. citywide, countywide One word. Use lowercase when referring to the larger Cupertino community: A citywide trend in unemployment rates has emerged. Use uppercase when referring to the City of Cupertino: The Cupertino City Council approved a new Citywide policy. 158 2020 Cupertino Style Guide 9 | Page citizen, resident A citizen is a person who has acquired the full civil rights of a nation or community. To avoid confusion, use resident, not citizen, in reference to people who live in cities. commission Capitalize as a proper name: Planning Commission. Lowercase plural uses: The Parks and Recreation and Library commissions. committee Do not abbreviate. Capitalize when part of a formal name: Audit Committee. councilmember, commissioner One word. Upper case when used as a title: Councilmember Catherine Cupertino. Lowercase when used collectively: Cupertino councilmembers are elected every four years. county Capitalize when an integral part of a proper name: Santa Clara County, Alameda County. Capitalize the full names of county governmental units: the Santa Clara County Board of Supervisors, the Alameda County Department of Social Services. Retain capitalization for the name of a county body if the proper noun is not needed in the context. Lowercase the word county if it is used to distinguish an agency from state or federal counterparts: the Board of Supervisors, the county Board of Supervisors, the Department of Social Services, the county Department of Social Services. Lowercase the board, the department, etc. whenever they stand alone. dates Spell out all months. Do not use “th,” “nd,” “st,” or “rd” after a date, e.g., 10th, 22nd. December 2020 was a cold month. January 4, 2020 was the coldest day of the year. July, August, and September make up the first quarter of the fiscal year. days of the week Capitalize days of the week and do not abbreviate: The Cupertino City Council meeting will be held on Tuesday, November 3, 2020. department, division, office Capitalize when part of a proper name: The Community Development Department, the GIS Division, the City Clerk’s Office. Retain capitalization on second reference to the same department: The Public Works Department was called out to a fallen tree in the road. The Department responded quickly. 159 2020 Cupertino Style Guide 10 | Page director Capitalize when used as a formal title before a name: Carl Cupertino, Director of Administrative Services. Uppercase on second reference when referring to a specific person: the Director. Do not capitalize in job descriptions, generic usage, or informal designations: the directors on the committee. email One word. Lowercase with no hyphen. fiscal year Spell out for first reference: It is set for Fiscal Year 2020-2021. Use of initials acceptable for second reference: FY 20-21. full time, full-time, part time, part-time Hyphenate when used as an adjective phrase: He was a part-time employee. He works full time. general plan, general fund Capitalize only when accompanied by city name or referring to specific title or item: The Cupertino General Plan was recently updated. The City’s General Fund is threatened by the recession. Lowercase for generic use: The general funds of cities support basic services. The state requires every city to have a general plan. internet, intranet Lowercase. mayor, vice mayor Upper case when used as a title: Mayor Carla Cupertino, Vice Mayor Cooper Cupertino. Uppercase on second reference when referring to a specific person: the Mayor. Lowercase when used in general terms: The West Valley mayors sent a letter to the state. numbers Spell out numbers under 10. Use digits for 10 and above. Spell out at the beginning of a sentence. The child turned five years old yesterday. Thirty-five people attended the meeting. The street was flooded with 11 inches of water. over It generally refers to spatial relationships: The plane flew over the city. Avoid using with numerals: The City paid more than $5,000 for the contract service. 160 2020 Cupertino Style Guide 11 | Page percent, percentage Use the % sign when paired with a numeral (with no space): 4.7%, 0.3%. Spell out the percent when used at the beginning of a sentence but try to avoid this construction. Use percentage when not paired with a number: The percentage of people disagreeing is small. seasons Use lowercase for spring, summer, fall, winter and derivatives such as springtime unless part of a formal name: Summer Winds Nursery, Winter Olympics. setup, set up Setup (one word) is a noun: It can take a while to learn the setup of the office's filing system. Set up (two words) is a verb: The Infrastructure Division will set up the new employee’s computer. Set-up is not a recognized word in American English and should not be used. staff Lowercase and singular: Staff is meeting to set its agenda. In external documents, avoid using staff and instead use City of Cupertino or a program name: The IT Department is overseeing updates to the phone system. web addresses Web addresses should not include “www” if the link will work without it (always check to be sure). Always lowercase. Avoid using long and obscure web addresses. Correct Incorrect For more information, visit For more information, visit cupertino.org/lehigh www.cupertino.org/lehigh To view upcoming meetings, To view upcoming meetings, visit cupertino.org/calendar visit cupertino.org/visitors/calendar-of- events webpage, website One word. Lowercase. years When a phrase refers to a month and day within the current year, do not include the year: The meeting is scheduled for October 6. 161 City of Cupertino Social Media Policy Attachments: Effective Date: 5/12/2020 Responsible Department: City Manager’s Office Related Policies & Notes: Prior versions: 2012 1. Purpose This Social Media Policy establishes guidelines for the creation and operation of Social Media Accounts by the City of Cupertino (“City”) to ensure that the public has access to timely, useful, and important information. The intended purpose of these City Social Media Accounts is to disseminate information regarding the City’s mission, meetings, current issues, programs, projects, services, and events. 2. Definitions “City Social Media Account” means an account on Social Media authorized by the City as described in this policy. “Elected/Appointed City Officials” means City Councilmembers and people appointed by the Council to serve on an advisory body (e.g., commission, committee, task force). “Post” means the addition of information of any kind (e.g., text, links, photos, videos) to Social Media. “Public Comment” means a Post made in connection with a City Social Media Account by anyone other than an authorized member of City Staff. “Social Media” means publicly accessible technologies used to publish and/or share information using the Internet. Examples of Social Media include: Facebook, blogs, OpenGov, YouTube, Twitter, Linkedln, Instagram, and Nextdoor. “Staff” means the City Manager and all subordinate employees of the City under his or her jurisdiction, whether directly or through department directors. 3. Staff Authority City Staff shall operate City Social Media Accounts and Post items on behalf of the City to Social Media only as authorized by the City Manager or his/her designee(s), including the 162 Communications Officer. The City Manager or his/her designee(s) will maintain a list of all authorized City Social Media Accounts, including the log-in information and the staff/department(s) authorized to Post to those accounts. 4. Elected/Appointed City Officials Elected/Appointed City officials will not Post items on behalf of the City to Social Media. If Elected/Appointed City officials have their own Social Media accounts, the City recognizes that they may elect, in their individual capacity, to Post items relevant to City business. In such situations, the City’s existing rules and practices provide that Elected/Appointed City Officials shall make clear that they are speaking for themselves, not for the City or for their elected/appointed body. Elected/Appointed City Officials shall individually ensure they comply with all applicable laws (e.g., free speech laws, the Brown Act, public records laws, Municipal Code, etc.). For example, Elected/Appointed City Officials should be careful not to use Social Media (e.g., “post” “like” “share” “retweet”) in a manner that could constitute an improper serial meeting or otherwise violate the Brown Act. 5. General Guidelines City Staff shall follow these general guidelines when Posting items to Social Media and/or operating the City’s Social Media Accounts: 5.1 The City’s official website (cupertino.org) will remain the City’s primary means of digital communication. Whenever possible, Posts on City Social Media Accounts should contain hyperlinks directing users back to the City's official website for in-depth information, forms, documents or online services necessary to conduct business with the City. 5.2 Limit Posts to dissemination of information about the City (e.g., City-sponsored or City- endorsed programs, services, and events). Content may include information, photographs, videos, and hyperlinks. 5.3 Make clear when a Social Media Account is operated by the City. City Social Media Accounts should include the name of the City and/or its official logo. 5.4 Ensure this Social Media Policy is displayed on all City Social Media Accounts or made available by hyperlink. 5.5 Posts will supplement, not replace, legally required notices and standard methods of communication. 5.6 Posts must contain information that is freely available to the public and cannot be confidential as defined by any City policy or state or federal law. 5.7 Posts may not contain any personal information, except for the names of employees whose job duties include being available for contact by the public. 5.8 Posts must be professional, respectful, and factual. 5.9 Ensure all necessary permissions have been obtained for Post (e.g., photos). 5.10 Ensure Posts reflect the views of the City. All content is subject to oversight by the City’s Communications Office. 5.11 Regularly visit and maintain all authorized City Social Media Accounts. 5.12 Promptly close any City Social Media Accounts that are no longer needed/active. 5.13 Comply with usage rules and regulations required by third party providers of City Social 163 Media Accounts, including privacy policies. 5.14 Post during normal business hours. After-hours or weekend Posts shall only be made with approval of the City's Communications Officer or his/her designee. 5.15 Comply with all applicable City policies pertaining to communications and the use of the internet by employees, including email content. 6. Content Guidelines for Public Comments The City’s Social Media Accounts are considered limited public forums moderated by City Staff. Public Comments containing any of the following inappropriate forms of content shall not be permitted in connection with a City Social Media Account and are subject to removal and/or restriction by the City: 6.1 Content unrelated to the City 6.2 Violent and/or pornographic content 6.3 Content promoting discrimination on the basis of race, creed, color, age, religion, sexual orientation, gender, or national origin 6.4 Profane language or content 6.5 Solicitations of commerce, including but not limited to advertising of any business or product for sale 6.6 Violations of any law and/or promotion of illegal activity 6.7 Content compromising public safety or security 6.8 Content supporting or opposing any political candidate or campaign, including ballot measures 6.9 Content that violates a legal ownership interest of any other party. City Staff shall obtain authorization from the City's Communications Officer, who will consult with the City Manager and City Attorney as appropriate, before removing and/or restricting Public Comment based on these guidelines. Any Public Comment removed based on these guidelines shall be retained in a manner consistent with the City's document retention policy. Any Public Comment posted to a City Social Media Account is the opinion of the commenter. The presence of that content in connection with a City Social Media Account shall in no way imply City endorsement of, or agreement with, the content. 7. No Liability/Guarantee The City operates its Social Media Accounts as a public service to provide information about the City. The City assumes no liability for any inaccuracies its Social Media Accounts may contain and does not guarantee its Social Media Accounts will be uninterrupted, permanent, or error-free. All users of Social Media should review and understand all applicable privacy and other policies, including those established by third parties. City Social Media Accounts may contain content, including but not limited to advertisements or hyperlinks, over which the City has no control. The City does not endorse any hyperlink or advertisement placed on City Social Media Accounts by anyone other than the City. 164 8. Records City Social Media Accounts are subject to the California Public Records Act. Any content maintained on a City Social Media Account that is related to City business, including Posts, Public Comment, and information about subscribers/followers, may be considered a public record and subject to public disclosure. 9. Policy Revisions & Reserved Rights This policy may be revised by the City Manager at any time. The City reserves the right to terminate any City Social Media Account at any time without notice. The City also reserves the right to implement or remove any functionality of its City Social Media Accounts. City Manager’s signature: ___________________________________ Date: _______________ 5/12/2020 165 CITY OF CUPERTINO Agenda Item 23-12544 Agenda Date: 9/13/2023 Agenda #: 4. Subject: Approval of Minutes - August 9, 2023 Review and approve the minutes from the Teen Commission meeting on August 9, 2023. CITY OF CUPERTINO Printed on 9/7/2023Page 1 of 1 powered by Legistar™166 [DRAFT] MINUTES CUPERTINO TEEN COMMISSION Wednesday, August 9, 2023 REGULAR TEEN COMMISSION MEETING CALL TO ORDER At 6:06 p.m. Vice Chair Halambi called the Teen Commission meeting to order. ROLL CALL Present:, Cheung, Ding, Gupta, Halambi, Kumar, Luu, Qin, Shah, Tarra,. Absent: Kasamsetty. Staff: Sonya Lee, Robert Kaufman. CEREMONIAL MATTERS & PRESENTATIONS APPROVAL OF MINUTES 1. Subject: Approval of Minutes – June 14, 2023 Recommended Action: Review and approve the minutes from the Teen Commission meeting on June 14, 2023 Commissioner Shah motioned to approve minutes. Commissioner Cheung seconded the motion. Minutes approved. WRITTEN/ORAL COMMUNICATIONS No written or oral communications received. OLD BUSINESS No old business. NEW BUSINESS 2. Subject: Discussion on Youth Led Organizations and Volunteer Opportunities Recommended Action: : Discuss Youth Led Organizations Opportunities led by Robert Kaufman, Teen Coordinator. Commissioner feedback on highlighting Youth Led Organizations through City social media – 167 Cupertino Teen Commission Minutes August 9, 2023 Commissioners would like to see the program in which they evaluate YLO’s and recommend YLO’s to be highlighted on City social media. In response to highlighting only one to two YLO’s per year: - It is not inclusive enough - It would limit the number of YLO’s that might be interested - YLO’s would have to wait an entire year to apply again if not chosen to be highlighted - Commissioners would like to recognize YLO’s more often Commissioners would be willing to evaluate applications through special committees or through email before meetings so as not to take so much time during the meeting. Commissioners would be willing to create the social meeting post and submit to the Marketing Specialist for approval and posting to help with workload for staff. In response to what should be considered for recognizing a YLO: - Impact and number of people reached - Does it fit with City goals - Relevance - Impact to Residents - How frequently, how often are they providing a service - How active is the YLO - Is the YLO unique, is it providing an unduplicated service or idea - How many other organizations are doing something similar - Does it serve just teens or does it serve all ages The recognition post could indicate the factor that caused Teen Commission to choose the YLO. Other ways Teen Commission could recognize YLO’s: - Booths at City events when what the YLO does is complimentary to the event - Flyers put up in City facilities - Provide a tiered approach to recognizing YLO’s with the highest being something like a social media post and the lowest being putting out flyers Staff discussed the possibility of a Teen Resource Fair in spring: - This might be an opportunity for a limited number of YLO’s to have a booth 3. Subject: Walking tour of McClellan Ranch Park trail to Blackberry Farm Recommended Action: Take a walking tour on the Stevens Creek Trail from McClellan Ranch Preserve to Blackberry Farm Pool and back. Commissioners walked the corridor trail from McClellan Ranch Preserve to Blackberry Farm picnic area and back. 168 Cupertino Teen Commission Minutes August 9, 2023 STAFF & COMMISSION REPORTS • Staff Updates o Recreation Coordinator, Robert Kaufman gave a staff report. • Commissioner Updates o Commissioner Gupta gave an update from the Mayor’s Meeting. COMMISSIONER ATTENDANCE AT UPCOMING MEETINGS AND EVENTS • Will wait to see if the Mayor’s Meeting is moved to 5 p.m. again to inquire if any commissioners can attend. FUTURE AGENDA SETTING No future agenda items were added. ADJOURNMENT At 7:35 p.m., Vice Chair Halambi adjourned the meeting. _______________________________ Sonya Lee, Staff Liaison 169 CITY OF CUPERTINO Agenda Item 23-12545 Agenda Date: 9/13/2023 Agenda #: 5. Subject: 2023-2024 Chair and Vice Chair Selection Select a Chair and Vice Chair for the 2023-2024 Teen Commission term. CITY OF CUPERTINO Printed on 9/7/2023Page 1 of 1 powered by Legistar™170